Revised Medical Criteria for Evaluating Visual Disorders, 67037-67055 [06-9236]

Agencies

• Social Security Administration

[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Rules and Regulations]
[Pages 67037-67055]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9236]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Part 404

[Docket No. SSA-2006-0098]
RIN 0960-AF34


Revised Medical Criteria for Evaluating Visual Disorders

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising the criteria in the Listing of Impairments 
(the listings) that we use to evaluate claims involving visual 
disorders. We apply these criteria when you claim benefits based on 
disability under title II and title XVI of the Social Security Act (the 
Act). The revisions reflect our program experience and advances in 
medical knowledge, treatment, and methods of evaluating visual 
disorders.

DATES: These rules are effective February 20, 2007.

FOR FURTHER INFORMATION CONTACT: Michelle Hungerman, Social Insurance 
Specialist, Office of Disability and Income Security Programs, Social 
Security Administration, 100 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, MD 21235-6401, (410) 965-2289 or TTY (410) 966-
5609 for information about these rules. 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.

[[Page 67038]]


SUPPLEMENTARY INFORMATION: 

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.
    We are revising and making final the rules we proposed for 
evaluating visual disorders in the notice of proposed rulemaking (NPRM) 
published in the Federal Register on August 17, 2005 (70 FR 48342). We 
provide a summary of the provisions of the final rules below, with an 
explanation of the changes we have made from the text in the NPRM. We 
then provide summaries of the public comments and our reasons for 
adopting or not adopting the recommendations in those comments in the 
section ``Public Comments.'' The final rule language follows the Public 
Comments section.

What programs do these final regulations affect?

    These final regulations affect disability and blindness 
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 or 
blindness benefits under title II or title XVI, these final regulations 
also affect the Medicare and Medicaid programs.

Who can get disability or blindness benefits?

    Under title II of the Act, we provide for the payment of disability 
benefits, including disability benefits based on blindness 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 or blindness if you 
are disabled or blind and have limited income and resources.

Is blindness treated differently under title II and title XVI?

    Under title II, impairments that result in ``blindness'' are 
evaluated in the same way as other impairments. However, under title 
XVI, ``blindness'' is considered separately from other impairments 
under different eligibility requirements. In other words, under title 
XVI, you may qualify for benefits on the basis of ``blindness'' or on 
the basis of ``disability.''

How do we define blindness?

    For both the title II and title XVI programs, the Act defines 
blindness as ``central visual acuity of 20/200 or less in the better 
eye with the use of a correcting lens. An eye which is accompanied by a 
limitation in the fields of vision such that the widest diameter of the 
visual field subtends an angle no greater than 20 degrees shall be 
considered * * * as having a central visual acuity of 20/200 or less.'' 
(Sections 216(i)(1) and 1614(a)(2) of the Act.) We refer to the Act's 
definition of blindness as ``statutory blindness.''
    If you are seeking benefits under title II, your blindness 
generally must meet the 12-month statutory duration requirement. 
However, if you are seeking payments under title XVI of the Act based 
on blindness (rather than disability, as discussed below), your 
blindness need not meet the 12-month statutory duration requirement. 
Also, if you are seeking payments under title XVI of the Act based on 
blindness, there is no requirement that you be unable to do any 
substantial gainful activity (SGA). However, if you are working, we 
will consider your earnings to determine if you are eligible for SSI 
payments.

How do we define disability?

    If your visual disorder does not meet our definition of blindness, 
you may still be eligible for disability benefits. 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 impairment(s) as
     If you file a claim under * * *               And you are * * *                             described above that results in * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
title II................................  an adult or a child................  the inability to do any SGA.
title XVI...............................  a person age 18 or older...........  the inability to do any SGA.
title XVI...............................  a person under age 18..............  marked and severe functional limitations.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    There is also an additional definition of disability if you are 
seeking benefits under title II of the Act, have attained age 55, and 
have blindness as defined in section 216(i)(1) of the Act: Disability 
means that the blindness has resulted in the inability to engage in SGA 
requiring skills or abilities comparable to those of any gainful 
activity in which you previously engaged with some regularity and over 
a substantial period of time. (See section 223(d)(1)(B) of the Act.)

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 payments 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 if so, 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,

[[Page 67039]]

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 title XVI of the Act. We 
describe that sequential evaluation process in Sec.  416.924 of our 
regulations. 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, 416.994, and 416.994a of 
our regulations. However, all of the 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 an individual age 18 or over, 
we apply the listings in part A when we assess your claim, and we do 
not use the listings in part B.
    If you are an individual under age 18, we first use the criteria in 
part B of the listings. If the listings in part B do not apply, and 
your 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 also 
consider whether it medically equals any listing; that is, whether it 
is as medically severe as an impairment in the listings. (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 not deny your claim because your 
impairment(s) does not meet or medically equal a listing. If you are 
not doing work that is substantial gainful activity, and 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'' described above. 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 had qualified for disability benefits or SSI payments 
based on our determination or decision that your impairment(s) met or 
medically equaled the listings. 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 
after we decide that you have experienced medical improvement in your 
condition(s). See Sec.  416.994a(b)(2).

Why are we revising the listings for visual disorders?

    We are making these revisions to update the medical criteria in the 
listings for visual disorders and to provide more information about how 
we evaluate visual disorders.
    The listings for visual disorders, disturbances of labyrinthine-
vestibular function, hearing impairments, and loss of speech are 
contained in listings for Special Senses and Speech. In these final 
rules, we are making changes only to the listings for visual disorders.
    On April 24, 2002, we published final rules in the Federal Register 
(67 FR 20018) that included technical revisions to the listings for 
special senses and speech disorders. Prior to this, we published final 
rules that included revisions to the special senses and speech listings 
in the Federal Register on December 6, 1985 (50 FR 50068). We last 
published final rules making comprehensive revisions to the part A 
special senses and speech listings in the Federal Register on March 27, 
1979 (44 FR 18170), and final rules making comprehensive revisions to 
the part B special senses and speech listings on March 16, 1977 (42 FR 
14705). We intend to publish separately proposed rules that would 
update the criteria for the other disorders included in the Special 
Senses and Speech listings.

What do we mean by ``final rules'' and ``prior rules''?

    Even though these rules will not go into effect until 90 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.''

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 
whenever we make a determination or decision, including in 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 the 
final decision of the Commissioner was issued. If a court reverses the 
Commissioner's final decision and remands the case for further 
administrative proceedings after the effective date of these final 
rules, we will apply the provisions of these final rules to the entire 
period at issue in the claim in our new decision issued pursuant to the 
court's remand.

How long will these final rules be effective?

    These final rules will no longer be effective 8 years after the 
date on which they become effective, unless we extend them, or revise 
and issue them again.

How are we changing the introductory text to the special senses and 
speech listings for adults?

2.00 Special Senses and Speech

    We are removing the following sections of prior 2.00:

[[Page 67040]]

     The last paragraph of 2.00A3, ``Field of vision.''
     Paragraph 2.00A4, ``Muscle function.''
     The first paragraph of 2.00A6, ``Special situations.''
    The last paragraph of prior 2.00A3, ``Field of vision,'' explained 
that when the visual field loss was predominantly in the lower visual 
fields, a system such as the weighted grid scale for perimetric fields 
as described by B. Esterman in 1968 could be used for determining 
whether the visual field loss was comparable to that described in table 
2 in section 2.00 of the listings. As this kind of scale is rarely 
used, we no longer need this guidance in the introductory text.
    Prior 2.00A4, ``Muscle function,'' described the type of impairment 
evaluated under prior listing 2.06, ``Total bilateral 
ophthalmoplegia.'' (Ophthalmoplegia is paralysis of the eye muscles.) 
As the causes of this disorder are now more readily detectable and 
treatable, this disorder has become extremely rare. Therefore, we are 
removing both the prior listing and the guidance in the introductory 
text that addressed this disorder. Instead, we will evaluate total 
bilateral ophthalmoplegia and other eye muscle disorders by assessing 
the impact of such disorders on your visual efficiency under final 
listing 2.04, or based on your visual functioning.
    The first paragraph of prior 2.00A6, ``Special situations,'' 
explained how we calculated visual acuity efficiency for individuals 
with aphakia (the absence of the anatomical lens of the eye). Advances 
in technology have led to the development of effective synthetic 
intraocular lenses. Also, contact lenses have been technically refined 
and may be used in those instances in which the anatomical lens is not 
replaced with a synthetic lens. Because the synthetic intraocular lens 
or the contact lens corrects both the visual acuity and the visual 
field, we compute the visual acuity efficiency or visual field 
efficiency as though your eye has an anatomical lens.
    We are reorganizing and expanding the rest of the introductory text 
for visual disorders to provide additional guidance. The following is a 
detailed explanation of the final introductory text.
2.00A--How do we evaluate visual disorders?
    This section corresponds to prior 2.00A, ``Disorders of Vision.'' 
We are clarifying the information in the prior section by reorganizing 
the material into eight subsections and by providing additional 
guidance as explained below.
2.00A1--What are visual disorders?
    This section corresponds to prior 2.00A1, ``Causes of impairment.'' 
We are making nonsubstantive editorial changes for clarity.
2.00A2--How do we define statutory blindness?
    This section revises prior 2.00A7, ``Statutory blindness,'' to 
include the statutory definition. In response to a public comment, we 
have added an explanation that we use your best-corrected visual acuity 
for distance in the better eye when we determine if you have statutory 
blindness based on visual acuity loss. We also clarify that you have 
statutory blindness only if your visual disorder meets the criteria of 
2.02 or 2.03A. We further clarify that you do not have statutory 
blindness if your visual disorder medically equals the criteria of 2.02 
or 2.03A, or if it meets or medically equals 2.03B, 2.03C, or 2.04. If 
your visual disorder medically equals the criteria of 2.02 or 2.03A, or 
if it meets or medically equals 2.03B, 2.03C, or 2.04, we will find 
that you have a disability if your visual disorder also meets the 
duration requirement.
    In the NPRM, this section was headed ``What is statutory 
blindness?'' We are changing the heading to be consistent with other 
headings in this section.
2.00A3--What evidence do we need to establish statutory blindness under 
title XVI?
    In this new section, we explain that when we make a determination 
or decision that you have statutory blindness under title XVI, we 
require evidence showing only that the statutory criteria are 
satisfied; we do not need evidence to document the visual disorder that 
causes the blindness. We also explain that there is no duration 
requirement for statutory blindness under title XVI.
    We are adding this section because blindness is treated differently 
under title II and title XVI of the Act. Under title II, blindness is 
generally evaluated in the same way as other medical impairments. Under 
title XVI, blindness and disability are separate categories, and the 
requirements for eligibility based on blindness are different from the 
requirements for eligibility based on disability.
2.00A4--What evidence do we need to evaluate visual disorders, 
including those that result in statutory blindness under title II?
    We are revising the last sentence of prior 2.00A1 to explain what 
evidence we need to evaluate a visual disorder. In response to public 
comments, we have revised proposed 2.00A4b to refer to a ``cortical 
visual disorder'' instead of ``cortical blindness'' and provided 
additional guidance on cortical visual disorders and how to document 
them.
2.00A5--How do we measure best-corrected visual acuity?
    We are revising the guidance in the second sentence of prior 
2.00A2, ``Visual acuity,'' by providing that, in addition to testing 
that uses Snellen methodology, we may also use visual acuity 
measurements obtained using another testing methodology that is 
comparable to Snellen methodology. We also clarify what constitutes 
best-corrected visual acuity.
    In the NPRM, we proposed, in 2.00A5b(i), that we would not use the 
results of visual evoked response (VER) testing to determine best-
corrected visual acuity. This guidance was questioned by several 
commenters who indicated that no response to VER testing demonstrates 
that an individual cannot see in that eye. We agree with these 
commenters, and have revised proposed 2.00A5b(i) to indicate that if 
you have an absent response to VER testing in an eye, we can use that 
result to determine that your visual acuity is 20/200 or less in that 
eye. However, we will not use a positive response to VER testing to 
determine best-corrected visual acuity. VER testing evaluates the 
function of the visual pathways from the retina, along the optic nerve 
and optic tract, to the vision cortex in the occipital lobe of the 
brain. While this testing can provide an estimate of visual acuity, it 
is not a direct measure of visual acuity.
    We also provide that we will not use pinhole testing to determine 
best-corrected visual acuity. Pinhole testing is used to determine 
whether your visual acuity can be improved with a corrective lens. 
However, you may not achieve the same degree of correction with 
corrective lenses that you have with pinholes. Additionally, even when 
pinhole testing fails to show an improvement in your acuity, your 
acuity may improve with corrective lenses. Because pinhole testing may 
underestimate or overestimate your visual acuity, we will not use it to 
determine your best-corrected visual acuity.

[[Page 67041]]

    In response to a public comment, we have also added guidance in 
final 2.00A5b(i) explaining that we will not use automated refraction 
acuity to determine your best-corrected visual acuity. An automated 
refractor is a machine that measures how light is changed as it enters 
the eye. It is used to provide an estimate of refractive error and the 
prescription for glasses. This estimate gives the clinician a place to 
start in determining the best-corrected visual acuity; it is not a 
direct measure of visual acuity.
    In response to another public comment, we have added guidance in 
final 2.00A5b(ii) to explain that best-corrected visual acuity for 
distance is your best acuity at 20 feet, and to explain how we use 
visual acuity measurements obtained for other distances.
2.00A6--How do we measure visual fields?
    This section replaces prior 2.00A3, ``Field of vision.'' Prior 
2.00A3 indicated that we would use ``usual perimetric methods'' or 
other ``comparable perimetric devices'' to measure the size of the 
visual field. The Goldmann perimeter was cited as a comparable 
perimetric device.
    The National Research Council (NRC), in its 2002 report, Visual 
Impairments: Determining Eligibility for Social Security Benefits 
(hereinafter, the ``NRC report''), recommended that ``the current SSA 
standard [for assessing visual field loss] should be revised so that 
disability determinations are based on the results of automated static 
projection perimetry rather than Goldmann (kinetic, nonautomated) 
visual fields.'' (Citations for the NRC report and other sources cited 
in this preamble are available in the NPRM (70 FR at 48348).) These 
final rules partially adopt this recommendation by providing that we 
will use visual field measurements obtained with an automated static 
threshold perimetry test performed on a perimeter that meets our 
requirements. However, we have decided that we will also continue to 
use visual field measurements obtained with Goldmann or other kinetic 
perimetry as these measurements are comparable to those obtained with 
automated static threshold perimetry.
    In final 2.00A6a(i), we explain when we need visual field testing. 
In response to a public comment, we have deleted macular edema as an 
example of a visual disorder that could cause visual field loss.
    In final 2.00A6a(ii), we explain that, when we need to measure the 
extent of your visual field loss, we will use visual field measurements 
obtained with an automated static threshold perimetry test performed on 
a perimeter that meets our requirements. We adopted as our requirements 
the criteria recommended in the NRC report. We cite the Humphrey Field 
Analyzer as an example of an acceptable perimeter because the NRC 
report cited it, and the Humphrey Field Analyzer is the most widely 
used automated perimeter in the United States to perform this type of 
test.
    The NRC report also cited the Octopus perimeter as another example 
of an automated perimeter that meets the criteria set out in its 
recommendations. We have not included the Octopus perimeter as an 
example of an acceptable perimeter in final 2.00A6a(ii), because it is 
not our intention to list in these rules every acceptable automated 
perimeter and the Octopus perimeter is not widely used in the United 
States. However, we will accept findings from the Octopus perimeter or 
any other automated perimeter that satisfies the requirements of final 
2.00A6a(ii).
    In final 2.00A6a(iii), we describe the requirements of an 
acceptable automated static threshold perimetry test.
    In final 2.00A6a(iv), we explain that we need a test that measures 
the central 24 to 30 degrees of the visual field to determine statutory 
blindness. We also provide examples of acceptable tests. In response to 
a public comment, we have added a reference to final listing 2.03A in 
this section.
    In proposed 2.00A6a(v), we indicated that to determine if the 
criterion in listing 2.03B is met, we need a test performed on a 
Humphrey Field Analyzer that measures the central 30 degrees of the 
visual field. We also indicated that we could use comparable results 
from other acceptable perimeters. In response to a comment that these 
two statements were inconsistent with each other, we have clarified 
this section to explain that while the criterion in final listing 2.03B 
is based on using a test performed on a Humphrey Field Analyzer that 
measures the central 30 degrees of the visual field, we can also use 
comparable results from other acceptable perimeters. We also provide an 
example of a comparable result. Additionally, we explain that we cannot 
use tests that do not measure the central 30 degrees of the visual 
field, such as the Humphrey 24-2 test, to determine if your impairment 
meets or medically equals final listing 2.03B. The criterion we use in 
final listing 2.03B adopts the recommendation in the NRC report for 
determining that your visual field loss is disabling. That 
recommendation was based on the use of a test measuring the central 30 
degrees of the visual field.
    In final 2.00A6a(vi), we explain that we measure the extent of 
visual field loss by determining the portion of the visual field in 
which you can see a white III4e stimulus. This stimulus specification 
is the same as the specification in the second paragraph of prior 
2.00A3.
    In final 2.00A6a(vii), we explain that we need to determine the 
decibel (dB) level that corresponds to a 4e intensity for the 
particular perimeter being used. We further explain that we will then 
use the dB printout to determine which points would be seen at the 4e 
intensity level. We also give an example that explains that, for tests 
performed on Humphrey Field Analyzers, any point seen at 10 dB or 
higher is a point that would be seen with a 4e stimulus.
    In final 2.00A6a(viii), we explain that we can also use visual 
field measurements obtained using kinetic perimetry, such as the 
Humphrey ``SSA Test Kinetic'' (a kind of automated kinetic perimetry) 
or Goldmann perimetry (a kind of manual kinetic perimetry). In response 
to a public comment, we have clarified this section to make it clear 
that this type of testing may be used instead of automated static 
threshold perimetry.
    We contracted with West Virginia University to conduct research to 
determine whether the Humphrey ``SSA Test Kinetic'' is comparable to 
Goldmann perimetry. This research, which was completed in April 2000, 
showed that the Humphrey ``SSA Test Kinetic'' is comparable to Goldmann 
perimetry, except that the Humphrey ``SSA Test Kinetic'' does not 
identify scotomata, that is, non-seeing areas in the visual field 
surrounded by seeing areas. Therefore, in the NPRM, we proposed that if 
we needed additional information because your visual disorder had 
progressed to the point where it was likely to result in a significant 
limitation in the central visual field, such as a scotoma, we would 
supplement the automated kinetic perimetry with the results of a 
Humphrey 30-2 or comparable test. There were public comments 
questioning this guidance. In response to those comments, we have 
clarified this section to state that we will not use the results of 
automated kinetic testing to assess your visual field loss in this 
situation. Instead, we will assess your visual field loss with 
automated static threshold perimetry or with manual kinetic perimetry.

[[Page 67042]]

    In final 2.00A6a(ix), we explain that we will not use the results 
of visual field screening tests, such as confrontation tests, tangent 
screen tests, or automated static screening tests, to determine that 
your impairment meets or medically equals a listing or to evaluate your 
residual functional capacity. We also explain that we can consider 
normal results from visual field screening tests to determine whether 
your visual disorder is severe when these results are consistent with 
the other evidence in your case record. We also list some circumstances 
under which we will not consider normal test results to be consistent 
with the other evidence in the file.
    Consistent with our removal of the guidance on aphakia, we are 
removing the stimulus specifications used to test individuals with 
aphakia contained in the first two paragraphs of prior 2.00A3.
    In final 2.00A6b, we revise the guidance in the first paragraph of 
prior 2.00A3 on the use of corrective lenses during visual field 
testing. We explain that eyeglasses must not be worn during the visual 
field examination because they limit your field of vision, but contact 
lenses or perimetric lenses may be used in order to obtain the most 
accurate visual field measurements. We also provide that, for this 
single purpose, you do not need to demonstrate that you have the 
ability to use the contact or perimetric lenses on a sustained basis.
2.00A7--How do we calculate visual efficiency?
    In this section, we expand the guidance in prior 2.00A5, ``Visual 
efficiency,'' by explaining how we calculate visual acuity efficiency, 
visual field efficiency, and visual efficiency. The guidance in 2.00A7b 
is based on the first sentence of paragraph 2 of the explanatory text 
following Table 2 in the prior rules. We are deleting that sentence 
from the explanation of Table 2 because we are moving it here. The 
guidance in 2.00A7c is based on prior 2.00A5 and the parenthetical 
statement at the end of prior listing 2.04, which we are deleting 
because it is redundant. In response to a public comment, we are also 
adding an example to 2.00A7c to illustrate how visual efficiency is 
calculated.
2.00A8--How do we evaluate specific visual problems?
    This section replaces prior 2.00A6, ``Special situations.'' In this 
section, we are adding guidance for evaluating specific visual 
problems. The following is a discussion of the section.
2.00A8a--Statutory blindness
    In this section, we codify a longstanding procedure. The most 
commonly used visual acuity test charts are charts based on Snellen 
methodology. These charts usually do not have lines that measure visual 
acuity between 20/100 and 20/200. Therefore, if you are unable to read 
any of the letters on the 20/100 line on a test chart based on Snellen 
methodology, your visual acuity will be assessed as 20/200 or less.
    There are newer test charts (not yet widely used, but comparable to 
charts based on Snellen methodology) that do have lines to measure 
visual acuity between 20/100 and 20/200. Based on medical literature, 
we know that if your visual acuity is between 20/100 and 20/200 as 
measured on those newer test charts, it would be 20/200 if it were 
measured using the more common chart based on Snellen methodology. We 
explain in this section that if your visual acuity is measured using 
one of these newer charts and you cannot read any of the letters on the 
20/100 line, we will determine that you have statutory blindness based 
on a visual acuity of 20/200 or less. We also provide that, regardless 
of the type of test chart used, you do not have statutory blindness if 
you can read at least one letter on the 20/100 line. In response to a 
public comment, we have added examples of how we evaluate visual acuity 
measurements between 20/100 and 20/200.
2.00A8b--Blepharospasm
    In the NPRM, we described the disorder and explained that we must 
consider how the involuntary blinking that characterizes it can affect 
your ability to maintain the measured visual acuities and visual fields 
over time. In response to a public comment, we have revised this 
section to refer to your ability to maintain visual functioning over 
time instead of your ability to maintain the measured visual acuities 
and visual fields over time. Also, as we reviewed this section to 
respond to the public comment, we realized that ``closure of the 
eyelids'' is a better descriptor of how the disease manifests than 
``eye blinking,'' and have made this nonsubstantive change to more 
clearly describe the disorder. We have also made other nonsubstantive 
editorial changes for clarity.
2.00A8c--Scotoma
    We define the term ``scotoma'' as a non-seeing area in the visual 
field surrounded by a seeing area. We also explain that when we measure 
your visual field, we will subtract the length of any scotoma, other 
than the normal blind spot, from the overall length of any diameter on 
which it falls.
2.00C--How do we evaluate impairments that do not meet one of the 
special senses and speech listings?
    We are revising the guidance in the second paragraph of prior 
2.00A6 by stating our basic adjudicative principle that if the 
impairment(s) does not meet or medically equal the criteria of a 
listing in this body system, we must consider whether it meets or 
medically equals the criteria of a listing in another body system. If 
not, we must continue the sequential evaluation process (see Sec. Sec.  
404.1520 and 416.920) to determine whether you are disabled or continue 
to be disabled (see Sec. Sec.  404.1594, 416.994 and 416.994a). This 
new section applies to all the impairments in this body system, not 
just visual disorders.

How are we changing the criteria in the special senses and speech 
listings for adults?

2.01 Category of Impairments, Special Senses and Speech

    We are removing the reservation for listing 2.05 because it is no 
longer needed. We are also removing prior listing 2.06, ``Total 
bilateral ophthalmoplegia,'' for the reasons cited in ``2.00 Special 
Senses and Speech'' above.

Listing 2.02--Loss of visual acuity

    This final listing corresponds to prior listing 2.02, ``Impairment 
of visual acuity.'' We are changing the heading to be consistent with 
other language in these final rules.

Listing 2.03--Contraction of the visual field in the better eye

    This final listing corresponds to prior listing 2.03, ``Contraction 
of peripheral visual fields in the better eye.'' We are removing prior 
listing 2.03A, which provided that an individual's visual field loss 
was of listing-level severity when the field was contracted to 10 
degrees or less from the point of fixation. Prior listing 2.03B 
provided that an individual's visual field loss was of listing-level 
severity if that loss resulted in the widest diameter of the field 
subtending an angle no greater than 20 degrees. Any visual field loss 
that satisfied the criterion in prior listing 2.03A also satisfied the 
criterion in prior listing 2.03B. Therefore, prior listing 2.03A was 
unnecessary.
    We are redesignating prior listing 2.03B as final listing 2.03A. In 
response to a public comment, we have added the phrase ``around the 
point of fixation'' to

[[Page 67043]]

make it clear that when we measure the widest diameter, the diameter 
must go through the point of fixation.
    The NRC report contained a recommendation that a mean deviation 
(MD) of -22 or worse on an automated static threshold perimetry test 
measuring the central 30 degrees of the visual field ``would serve as a 
reasonable criterion for disability determination.'' We agree with the 
NRC and are adding this criterion as final listing 2.03B.
    Final listing 2.03C corresponds to prior listing 2.03C. We are 
clarifying the criterion by indicating that a determination of visual 
field efficiency must be based on kinetic perimetry.

Listing 2.04--Loss of visual efficiency

    This final listing corresponds to prior listing 2.04, ``Loss of 
visual efficiency.'' As already explained, we are removing the 
parenthetical statement at the end of the prior listing because it was 
redundant of information in proposed 2.00A7c. However, we are adding a 
reference to that section of the final introductory text as a reminder 
of where this guidance is contained.

Table 1--Percentage of Visual Acuity Efficiency Corresponding to the 
Best-Corrected Visual Acuity Measurement for Distance in the Better Eye

    To be consistent with our removal of the introductory text on 
aphakia, we are removing the columns and guidance addressing aphakia 
from prior Table 1. We are also removing the entries for visual 
acuities worse than 20/100 for the reasons we gave under the 
explanation of final 2.00A8a. In response to a public comment, we are 
removing the entries for visual acuities of 20/32 and 20/64 and adding 
entries for visual acuities of 20/30, 20/60, and 20/70.

Table 2--Charts of Visual Fields

    We are removing the first sentence of prior paragraph 2 in the 
explanation of how to use Table 2. That sentence provided instructions 
for calculating the percent of visual field efficiency, and we moved it 
to final 2.00A7b. We are also making nonsubstantive editorial changes 
for clarity.

How are we changing the introductory text to the special senses and 
speech listings for children?

102.00 Special Senses and Speech

    Except for minor editorial changes, we have repeated much of the 
introductory text of final 2.00A in the introductory text to final 
102.00A. This is because the same basic rules for establishing and 
evaluating the existence and severity of visual disorders in adults 
also apply to children. Because we have already described these 
provisions under the explanation of final 2.00A, the following 
discussions describe only those provisions that are unique to the 
childhood rules or that require further explanation specific to 
evaluating disability in children.
    We are removing the second paragraph of prior 102.00A, ``Visual 
impairments in children.'' This paragraph indicated that the 
accommodative reflex is generally not present in children under 6 
months of age (or, for a premature child, until 6 months of age plus 
the number of months the child is premature). It also provided that the 
absence of this reflex should be considered indicative of a visual 
impairment only in children above this age. We included this guidance 
in the prior rules to explain that it was not appropriate to use the 
criterion in prior listing 102.02B1 until the child reached the 
required age. However, in these final listings, we incorporated prior 
listing 102.02B1 into the more general category of abnormal anatomical 
findings evaluated under final listing 102.02B2. As the lack of the 
accommodative reflex is not considered an abnormal anatomical finding 
in very young children, its absence would not satisfy the final listing 
criterion. Therefore, we no longer need this explanation.
102.00A1--What are visual disorders?
    In this section, we expand the guidance provided for adults in 
final 2.00A1 to indicate that in addition to limiting your ability to 
distinguish detail, read, and do fine work, a loss of visual acuity may 
affect your ability to perform other age-appropriate activities. We 
added this supplemental guidance to reflect the way we evaluate 
disability claims of children.
102.00A2--How do we define statutory blindness?
    In this section, we repeat the guidance in final 2.00A2, but refer 
to the childhood listings that show statutory blindness.
102.00A4--What evidence do we need to evaluate visual disorders, 
including those that result in statutory blindness under title II?
    In this section, which is the same as final 2.00A4, we replace and 
expand the third paragraph of prior 102.00A.
102.00A5--How do we measure best-corrected visual acuity?
    In this section, we revise the guidance in the first paragraph of 
prior 102.00A. In final 102.00A5a, we discuss comparable visual acuity 
testing for children who are unable to participate in testing using 
Snellen methodology, for example, because they are too young, and add 
guidance for how we evaluate children who are unable to participate in 
testing using Snellen methodology or other comparable testing. In 
response to a public comment, we have revised proposed 102.00A5b by 
adding examples of abnormal anatomical findings and abnormal 
neuroimaging of the cerebral cortex that would indicate a visual acuity 
of 20/200 or less.
102.00A6--How do we measure visual fields?
    In this final section, we repeat the guidance in final 2.00A6 but 
in 102.00A6a(ix) refer to the way we evaluate disability in children.
102.00C--How do we evaluate impairments that do not meet one of the 
special senses and speech listings?
    In this section, we repeat the guidance in final 2.00C, but include 
the definition of disability for children who are filing for or are 
receiving SSI payments.

How are we proposing to change the criteria in the special senses and 
speech listings for children?

102.01 Category of Impairments, Special Senses and Speech

    We are adding new listings 102.03, ``Contraction of the visual 
field in the better eye,'' and 102.04, ``Loss of visual efficiency,'' 
because they apply to children as well as adults. Due to the addition 
of these listings, we are also adding Table 1, ``Percentage of Visual 
Acuity Efficiency Corresponding to the Best-Corrected Visual Acuity 
Measurements for Distance in the Better Eye,'' and Table 2, ``Charts of 
Visual Fields.''
    These new listings and tables are identical to the corresponding 
adult listings and tables. Previously, we used prior listings 2.03 and 
2.04 (and their corresponding tables) to evaluate children with visual 
field and visual efficiency impairments. With final listings 102.03 and 
102.04 we will no longer need to refer to the listings in part A when 
we evaluate these impairments in children.
    We are also making nonsubstantive editorial changes to the heading 
of this section to be consistent with the heading of 2.01.

Listing 102.02--Loss of visual acuity

    This final listing corresponds to prior listing 102.02, 
``Impairments of visual acuity.'' We are not making any changes to 
prior listing 102.02A.

[[Page 67044]]

    We used prior listing 102.02B to evaluate loss of visual acuity in 
children below 3 years of age at the time of adjudication. We are 
removing the age criterion and instead will use final listing 102.02B 
to evaluate loss of visual acuity in any child who is unable to 
participate in testing using Snellen methodology or other comparable 
visual acuity testing and who has clinical findings that fixation and 
visual-following behavior are absent in the better eye.
    The criteria in prior listing 102.02B were all examples of abnormal 
anatomical findings observable during a clinical eye examination. When 
present in the better eye, these abnormal anatomical findings would be 
expected to result in the absence of fixation and visual-following 
behavior, and would indicate a visual acuity of 20/200 or less. Rather 
than list each type of abnormal anatomical finding, we combined the 
prior criteria into a general category of abnormal anatomical findings 
in final listing 102.02B1. We used the phrase ``a visual acuity of 20/
200 or worse'' in proposed listing 102.02B1. We have revised this 
phrase in final listing 102.02B1 to read ``a visual acuity of 20/200 or 
less'' to be consistent with the statutory language that defines 
blindness.
    Final listings 102.02B2, 102.02B3, and 102.02B4 add criteria for 
impairments that generally are not observable during a clinical eye 
examination, but are diagnosed based on abnormal neuroimaging, an 
abnormal electroretinogram, or an absent response to VER testing. We 
did not propose the criterion in final listing 102.02B4, an absent 
response to VER testing in the better eye, in the NPRM. This criterion 
was added in response to a public comment.

Public Comments

    In the NPRM we published in the Federal Register on August 17, 2005 
(70 FR 48342), we provided the public with a 60-day comment period that 
ended on October 17, 2005. In addition to our notice to the public, we 
invited comments from national medical organizations and professionals 
who have expertise in the evaluation of visual disorders. As part of 
our outreach efforts, we also invited comments from advocacy groups and 
legal services organizations.
    We received comments from 13 commenters. The commenters included 
advocacy groups, legal services organizations, State agencies that make 
disability determinations for us, medical organizations, 
ophthalmologists, and other individuals. We carefully considered all of 
the comments. Because some of the comments were long, we have 
condensed, summarized, and paraphrased them. We believe we have 
presented the commenters' views accurately, and have responded to all 
of the significant issues raised by the commenters that were within the 
scope of these rules.

Statutory Blindness

    Comment: Two commenters suggested that we use the term 
``blindness'' in the listings only to describe total vision loss or 
near-total vision loss; that is, situations in which the individual 
must rely primarily on vision substitution skills. They indicated that 
it is more appropriate to use the ranges of ``mild,'' ``moderate,'' 
``severe,'' and ``profound'' vision loss as defined in the American 
Medical Association's Guides to the Evaluation of Permanent Impairment, 
Fifth Edition (hereinafter, the ``AMA Guides'') for those individuals 
who have residual vision; that is, those that can still benefit from 
vision enhancement aids. As defined in the AMA Guides, the term 
``severe vision loss'' reflects the statutory standard.
    Response: We were not able to adopt this comment because we must 
follow the language of the Act. The definition of ``blindness'' in 
sections 216(i)(1) and 1614(a)(2) of the Act is:

[C]entral visual acuity of 20/200 or less in the better eye with the 
use of a correcting lens. An eye which is accompanied by a 
limitation in the fields of vision such that the widest diameter of 
the visual field subtends an angle no greater than 20 degrees shall 
be considered * * * as having a central visual acuity of 20/200 or 
less.

    Comment: One commenter noted that the definition of blindness in 
proposed 2.00A2 and 102.00A2 contained the phrase ``with the use of a 
correcting lens.'' The commenter believed that this language can be 
taken to mean that any corrective lens will fulfill the requirement and 
recommended that the language be changed to read ``visual acuity of 20/
200 or less in the better eye with the use of best possible corrective 
lens.''
    Response: We partially adopted this comment. We have not deleted 
the phrase ``with the use of a correcting lens'' from the definition of 
blindness in final 2.00A2 and 102.00A2 as those sections reflect the 
statutory definition of blindness and the phrase is part of the 
statutory language. However, we have added a reference to sections 
216(i)(1) and 1614(a)(2) of the Act in final sections 2.00A2 and 
102.00A2 of the rules to make it clearer that we are providing the 
statutory definition. We also added guidance indicating that when we 
determine whether the statutory definition of blindness based on visual 
acuity is met, we use the best-corrected visual acuity for distance in 
the better eye.
    Comment: One commenter suggested that we expand the definition of 
statutory blindness to include the criteria in proposed listings 2.03B 
and C and proposed listing 2.04. The commenter indicated that we can 
interpret the statute, and that the suggestion would be a reasonable 
interpretation.
    Response: We did not adopt this comment. Although we agree that we 
have the authority to interpret the statute when necessary, the 
definition of blindness in the Act is clear and explicit, and there is 
nothing in the legislative history to suggest that Congress intended us 
to apply any standard other than the definitions in the statute, which 
are reflected in final listings 2.02 and 2.03A. (S. Rep. No. 90-744, at 
7, 46-47 (1967), as reprinted in 1967 U.S.C.C.A.N. 2834, 2842, 2886-
2887.)
    Comment: We received several comments on our method for evaluating 
visual acuity measurements between 20/100 and 20/200 (proposed 2.00A8a 
and 102.00A8a). One commenter said that finding statutory blindness 
based on a visual acuity of 20/200 is a more liberal standard than that 
used in any other country, and that our proposal to treat visual acuity 
measurements between 20/100 and 20/200 as visual acuity of 20/200 would 
move us even further out of the global mainstream. This commenter 
stated we should instead use visual acuity that is worse than 20/160 as 
our standard, and indicated that when the clinician does not use a 
chart containing visual acuity measurements between 20/100 and 20/200, 
the clinician should measure best-corrected visual acuity from a 
distance of 10 feet instead of the usual 20 feet. Other commenters, 
including the American Optometric Association, indicated that our 
approach to interpreting visual acuity measurements between 20/100 and 
20/200 is sensible because it does not adversely affect people who had 
previously been classified as disabled. Another commenter wondered 
whether an individual who can see only one letter on the 20/100 line of 
a visual acuity chart has functionally better vision than someone with 
best-corrected visual acuity of 20/200. However, this commenter did 
acknowledge that a line must be drawn somewhere.
    Response: We did not adopt the recommendations to change our policy 
on evaluating visual acuity measurements between 20/100 and 20/

[[Page 67045]]

200. As we indicated in our explanation of proposed 2.00A8a in the NPRM 
(70 FR at 48346) and in our explanation of final 2.00A8a earlier in 
this preamble, the most commonly used visual acuity test charts are 
based on Snellen methodology and usually do not have lines that measure 
visual acuity between 20/100 and 20/200. While there are newer test 
charts that do provide such measurements, such as the Early Treatment 
Diabetic Retinopathy Study (ETDRS) chart, these charts are not widely 
used in clinical practice. Also, we know that if an individual's visual 
acuity is between 20/100 and 20/200 as measured on those newer charts, 
it would be 20/200 if measured using the most commonly used charts. 
Rather than evaluating the severity of a visual disorder based on the 
different types of charts used to test an individual's visual acuity, 
we have determined that it is more appropriate to assess visual acuity 
for all individuals using the same methodology--the one incorporated in 
the most commonly used test charts and the one contemplated in the 
statutory definition of blindness.
    Moreover, we do not agree that requiring testing at 10 feet, 
instead of 20 feet, is a feasible alternative. The testing of visual 
acuity requires a specific optics setup in the clinician's office, and 
in most offices the optics setup is designed to obtain visual acuity 
measurements at a 20-foot working distance; that is, even when the 
testing lane is not 20 feet long, the optics setup is designed to give 
results comparable to those obtained at 20 feet. We believe that 
requiring best-corrected visual acuity measurements at a 10-foot 
working distance would greatly restrict our ability to use evidence 
provided by the individual's treating source(s) because we do not 
believe that clinicians would reconfigure the optics in their offices 
to obtain measurements that are not widely used in the medical 
community.
    Also, we do not believe we should expand the standards for 
statutory blindness to encompass individuals who can read some, but not 
all, of the letters on the 20/100 line of the visual acuity chart. Such 
a standard would be more lenient than the 20/200 definition for 
blindness contained in the Act, even when measured on more commonly 
used visual acuity test charts. As we indicated above, there is nothing 
in the language of the statute or the legislative history to suggest 
that Congress intended that we apply any standard other than the strict 
definitions in the statute.
    Comment: One commenter, who believed that we were expanding our 
definition of statutory blindness by providing that individuals who 
have visual acuity between 20/100 and 20/200 would meet the definition 
of statutory blindness, indicated that it was not obvious that the 
changes we proposed would have no cost. The commenter recommended that 
we do a field study to ascertain the fiscal impact of the proposed 
rules.
    Response: As we indicated in our explanation of proposed 2.00A8a in 
the NPRM (70 FR at 48346) and in our explanation of final 2.00A8a 
earlier in this preamble, we are codifying in our regulations our 
longstanding procedure for evaluating visual acuity measurements 
between 20/100 and 20/200. We have used this procedure since 1991. 
Therefore, the proposed rules did not, and these final rules do not, 
change how we evaluate such clinical findings. We do not expect there 
will be any impact on program or administrative costs, and we do not 
agree that a field study is needed.
    Comment: One commenter indicated that our policy on evaluating 
visual acuity measurements between 20/100 and 20/200 needed to be more 
clearly discussed and suggested that we add examples.
    Response: We partially adopted this comment by adding examples in 
final 2.00A8a and 102.00A8a to illustrate how we use visual acuity 
measurements between 20/100 and 20/200 to determine whether an 
individual has statutory blindness.
    Comment: Several commenters questioned the differences between the 
eligibility requirements for benefits based on blindness under title 
XVI and benefits based on disability under title II and title XVI. One 
commenter noted that individuals age 18 or older have to show an 
inability to do substantial gainful activity (SGA) to receive 
disability benefits, but that the inability to do SGA is not required 
for benefits based on blindness under title XVI. Three commenters noted 
that it is not necessary to establish the cause of the blindness in 
order to receive benefits based on blindness under title XVI, but it is 
necessary to establish the cause of any visual loss in order to receive 
disability benefits under either title XVI or title II, including 
disability benefits based on blindness under title II. One of these 
commenters indicated that these differences, as well as the fact that 
there is no duration requirement for benefits based on blindness under 
title XVI while there is such a requirement under title II, penalize 
individuals who receive title II disability benefits based on 
blindness. This commenter also recommended that if the title XVI 
eligibility requirements are statutory and cannot be changed, we should 
apply them when we determine whether individuals are disabled based on 
blindness under title II. Another commenter indicated that having 
different eligibility criteria could be confusing to our adjudicators.
    Response: As we indicated in our explanation of proposed 2.00A3 in 
the NPRM (70 FR at 48345) and in our explanation of final 2.00A3 
earlier in this preamble, these rules are required by the Act. 
``Blindness'' and ``disability'' are separate categories under title 
XVI, whereas under title II blindness is considered a type of 
``disability.'' The statutory requirements for eligibility based on 
blindness under title XVI are different from the statutory requirements 
for eligibility based on disability under title II and title XVI. As a 
matter of law, we cannot apply the title XVI eligibility requirements 
for statutory blindness to title II claims for disability.
    We do not believe that our adjudicators will be confused by the 
different eligibility criteria in these final rules because we have 
been following these different rules for adjudicating blindness under 
title II and title XVI since the SSI program began in 1974. Therefore, 
our adjudicators have long been aware of these differences.

Visual Acuity

    Comment: One commenter noted that there are some visual acuity 
tests used in low vision clinics that use a testing distance of 10 
feet. The commenter suggested that the regulation explain how to 
interpret these results.
    Response: In response to this comment, we expanded our guidance in 
proposed 2.00A5b(ii) and 102.00A5b(ii) to address this issue.
    Comment: One commenter suggested that we revise proposed 2.00A5b(i) 
and 102.00A5b(i) to add ``automated refraction acuity'' as an example 
of a type of visual acuity testing that cannot be used to determine 
best-corrected visual acuity.
    Response: We adopted this comment.
    Comment: Two commenters noted that while proposed 2.00A5b(i) and 
102.00A5b(i) clarified that VER testing cannot be used to measure best-
corrected visual acuity, the proposed rules did not describe how VER 
testing should be used. The commenters indicated that VER testing can 
be useful in many situations, such as ascertaining whether a non-verbal 
individual is able to see, diagnosing cortical visual disorders, and 
evaluating cases in which malingering is suspected. One commenter asked 
how we evaluate

[[Page 67046]]

cases of young children in which neuroimaging results are not 
obtainable, but in which the treating source has diagnosed a cortical 
visual disorder, there is an absent response to VER testing, and 
fixation and following behavior are absent.
    Response: We agree with the commenters that when there is an absent 
response to VER testing in an eye, we can use that result to determine 
that the visual acuity is 20/200 or less in that eye, and we are adding 
this guidance to proposed 2.00A5b and 102.00A5b. We are also revising 
proposed 2.00A4b and 102.00A4b to indicate that we will request a copy 
of VER testing results if this testing was performed to help diagnose a 
cortical visual disorder. Lastly, we are adding an absent response to 
VER testing as a criterion in final listing 102.02B.
    We also agree that VER testing has other uses in clinical practice. 
However, VER testing is one tool among many that clinicians use to 
assess the degree of visual loss, and it is beyond the scope of these 
listings to explain how tools such as VER testing are used by 
clinicians in making their assessments.
    Comment: One commenter noted that proposed 2.05A and 102.05A 
provided that we will use visual acuity testing that was carried out 
using Snellen methodology or any other testing methodology that is 
comparable to Snellen methodology. The commenter indicated that there 
is no generally agreed on definition of Snellen methodology, and 
suggested we use ``letter chart testing'' instead of ``Snellen 
methodology.''
    Response: We did not adopt the comment. The term ``Snellen 
methodology'' is well recognized by the medical community as meaning a 
chart on which there is one large letter for 20/200 and below it rows 
of letters in progressively smaller sizes that reflect the distance at 
which a normal eye would be able to see the letters in that row.

Measuring Visual Acuity in Children

    Comment: One commenter noted that proposed listing 102.02A requires 
best-corrected visual acuity at distance. The commenter also noted that 
paragraph 102.00A5a(iii) provides that if a child is unable to 
participate in visual acuity testing, fixation and following behavior 
will be considered. The commenter indicated that some children retain 
the ability to fix and follow at short distances, such as three feet, 
but not at far distances. The commenter asked how we assess visual 
acuity for these individuals if neuroimaging is not available.
    Response: A child has statutory blindness based on visual acuity 
loss if his or her visual acuity is 20/200 or less in the better eye 
with the use of a correcting lens. For children who can participate in 
visual acuity testing, we determine whether the child has statutory 
blindness by assessing the child's best-corrected visual acuity for 
distance in the better eye.
    However, not all children can participate in visual acuity testing. 
For these children, we developed alternative criteria in final listing 
102.02B for determining if their visual acuity loss has resulted in 
statutory blindness. One of the requirements of that listing is that 
the visual disorder results in the absence of fixation and visual-
following behavior. The listing contemplates that this behavior will be 
assessed at short distances; that is, within a few feet, because that 
is how this behavior is assessed in clinical practice. If a child can 
use the better eye to fixate and visually follow at short distances, 
his or her impairment does not meet the listing. We will then evaluate 
the visual disorder to determine if it medically equals a listing or 
functionally equals the listings.
    Comment: One commenter noted that proposed listing 102.02B required 
clinical findings that fixation and visual-following behavior be absent 
in the better eye and indicated that the phrase ``in the better eye'' 
is unnecessary. The commenter remarked that if the better eye cannot 
fix and follow, the lesser eye certainly cannot.
    Response: We did not delete the phrase ``in the better eye'' from 
final listing 102.02B because we believe it is necessary to the meaning 
of the rule. If we did not have it, the listing could be met if a child 
could not fixate and visually follow in the lesser eye but could in the 
better eye.
    Comment: One commenter noted that proposed 102.00A5b(i) provided 
that visual acuity measurements obtained with a specialized lens can be 
used only if the child has demonstrated the ability to use the lens on 
a sustained basis. It also provided that telescopic lenses cannot be 
used because they significantly reduce the visual fields. The commenter 
wanted to know how visual acuity is assessed if the child is too young 
to wear specialized lenses on a sustained basis and telesc