Social Security Ruling, SSR 23-1p.; Titles II and XVI: Duration Requirement for Disability, 76885-76888 [2023-24523]
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[FR Doc. 2023–24519 Filed 11–6–23; 8:45 am]
BILLING CODE 8011–01–P
SOCIAL SECURITY ADMINISTRATION
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[Docket No. SSA–2023–0013]
Social Security Ruling, SSR 23–1p.;
Titles II and XVI: Duration Requirement
for Disability
Social Security Administration.
Notice of social security ruling
AGENCY:
ACTION:
(SSR).
25 17
CFR 200.30–3(a)(12).
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We are providing notice of
SSR 23–1p. This SSR explains and
clarifies our policy regarding the
duration requirement for establishing
disability under Titles II and XVI of the
Social Security Act and implementing
regulations. This ruling rescinds and
replaces SSR 82–52.
SUMMARY:
We will apply this notice on
November 7, 2023.
DATES:
FOR FURTHER INFORMATION CONTACT:
Mary Quatroche, Social Security
Administration, Office of Disability
Policy, 6401 Security Boulevard,
Baltimore, MD 21235–6401, (410) 966–
4794 or TTY 410–966–5609, for
information about this notice. For
information on eligibility or filing for
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number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our internet site,
Social Security Online, at https://
www.ssa.gov.
Although
5 U.S.C. 552(a)(1) and (a)(2) do not
require us to publish this SSR, we are
publishing it in accordance with 20 CFR
402.35(b)(1).
SSRs represent precedential final
opinions, orders, and statements of
policy and interpretations that we have
adopted relating to the Federal Old Age,
Survivors, and Disability Insurance
program, and Supplemental Security
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determinations or decisions made in our
administrative review process, Federal
court decisions, decisions of our
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of the General Counsel, or other
interpretations of law and regulations.
Although SSRs do not have the same
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on all SSA components in accordance
with 20 CFR 402.35(b)(1).
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Register that rescinds it, or until we
publish a new SSR that replaces or
modifies it.
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(Federal Assistance Listings, Program Nos.
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76885
Security Administration, for purposes of
publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation
and Congressional Affairs, Social Security
Administration.
Policy Interpretation Ruling
SSR 23–1p
Titles II and XVI: Duration
Requirement for Disability
This Social Security Ruling (SSR)
rescinds and replaces SSR 82–52: Titles
II and XVI: Duration of the Impairment.
Purpose: This SSR updates and
consolidates our policy regarding the
duration requirement for establishing
disability under Titles II and XVI of the
Social Security Act (Act) and its
implementing regulations. We
published SSR 82–52 in 1982, and in
the ensuing four decades we revised
several rules and issued policy guidance
that leave the original ruling misaligned
with current regulatory authority and
policy guidance. For instance, we
changed the sequential evaluation
process for widows and Title XVI
children; 1 established the process for
evaluating medical improvement in
continuing disability review (CDR)
cases; 2 instituted multiple work
incentives for recipients of Title XVI
payments; 3 and extended the
reentitlement period for Title II claims.4
Citations (Authority): Sections 216(i),
223(d), and 1614(a) of the Act, 42 U.S.C.
416(i), 423(d), and 1382c(a), as
amended; Regulations No. 4, subpart P,
sections 404.988, 404.1505, 404.1509,
404.1520, 404.1523, 404.1545, 404.1574,
404.1581, 404.1592, 404.1592a,
404.1592b, 404.1594, and 404.1598;
Regulations No. 16, Subpart I, sections
416.260, 416.262, 416.905, 416.906,
416.909, 416.920, 416.923, 416.924,
416.945, 416.974, 416.981, 416.994,
416.994a, 416.998, and 416.1488.
Dates: We will apply this SSR on
November 7, 2023.5
1 See
20 CFR 404.1520(a)(2) and 416.924.
20 CFR 404.1594, 416.994, and 416.994a.
3 See section 1619(a)–(b) of the Act. See also 20
CFR 416.260 and 416.262.
4 See 20 CFR 404.1592a and 404.1592b.
5 We will use this SSR beginning on its applicable
date. We will apply this SSR to new applications
filed on or after the applicable date of the SSR and
to claims that are pending on and after the
applicable date. This means that we will use this
SSR on and after its applicable date in any case in
which we make a determination or decision. We
expect that Federal courts will review our final
decisions using the rules that were in effect at the
time we issued the decisions. If a court reverses our
final decision and remands a case for further
administrative proceedings after the applicable date
of this SSR, we will apply this SSR to the entire
period at issue in the decision we make after the
court’s remand.
2 See
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Policy Interpretation
To be disabled under Title II of the
Act, or as an adult 6 under Title XVI of
the Act, a claimant must be unable to
engage in any substantial gainful
activity (SGA) by reason of one or more
medically determinable physical or
mental impairments (MDIs) which can
be expected to result in death, or which
has lasted or can be expected to last for
a continuous period of at least 12
months.7 We refer to the period of time
during which a claimant is continuously
unable to engage in SGA because of one
or more MDI(s) as ‘‘duration.’’ 8
The following information is in a
question-and-answer format that
provides guidance on how we assess
whether a person meets the duration
requirement for disability. Questions 1
through 3 explain how we define and
measure the duration requirement.
Questions 4 and 5 provide information
about how the duration requirement
affects the sequential disability
evaluation process. Question 6
addresses how we consider duration in
continuing disability review (CDR) cases
when the beneficiary or recipient has a
new, severe MDI(s). Question 7 explains
how we make a finding about the
expected duration of an impairment and
what will happen if we learn of a return
to SGA within 12 months of a claimant’s
onset of disability.
new, severe MDI(s) in continuing
disability review (CDR) cases?
7. What if we find that the claimant
meets the duration requirement based
on an expectation of continued severity,
but the claimant returned to SGA within
12 months?
Answers—
1. How does a claimant meet the
duration requirement for disability?
Duration is the period of time during
which a claimant is continuously
unable to engage in SGA because of one
or more MDI(s).9 To satisfy the duration
requirement for disability, the
claimant’s relevant MDI(s) must have
lasted or must be expected to last for a
continuous period of at least 12 months,
unless we expect the MDI(s) to result in
death within 12 months of the onset of
disability.10 An individual’s inability to
perform SGA because of the relevant
MDI(s) must also last the required 12month period, unless we expect an
MDI(s) to result in death within 12
months of the onset of disability. A
claimant must satisfy both elements to
meet the duration requirement.11 A
claimant who was previously entitled to
a period of disability must again meet
the duration requirement for the current
application before a subsequent period
of disability can be established.12
2. What is an MDI that ‘‘can be
expected to result in death’’?
List of Questions—
An MDI that ‘‘can be expected to
result in death’’ is one for which the
1. How does a claimant meet the
generally accepted prognosis within the
duration requirement for disability?
medical field and the evidence in the
2. What is an MDI that ‘‘can be
case file demonstrate that the claimant
expected to result in death’’?
is expected to die as a result of that
3. What do we mean by ‘‘12
impairment within 12 months of the
continuous months’’ and how do we
date that the claimant became unable to
measure it in initial claims?
4. How does the duration requirement engage in SGA. We also consider an
affect the five-step sequential disability
MDI that actually results in death to be
evaluation process?
one that was ‘‘expected to result in
5. How does the duration requirement death.’’
affect the three-step sequential disability
3. What do we mean by ‘‘12
evaluation process for Title XVI
continuous months’’ and how do we
claimants who have not yet attained 18
measure it in initial claims?
years of age?
The phrase ‘‘12 continuous months’’
6. How do we consider the duration
means both that the MDI(s) must have
requirement when the claimant has
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9 For
6 Title XVI claimants under age 18 are disabled
if they are not performing SGA and their medically
determinable physical or mental impairment(s)
causes marked and severe functional limitations
and can be expected to cause death or has lasted
or can be expected to last for a continuous period
of 12 months. See section 1614(a)(3)(C) of the Act
and 20 CFR 416.906.
7 See sections 216(i), 223(d), 1614(a) of the Act.
See also 20 CFR 404.1505, 404.1521 and 416.905,
416.921. While there is no duration requirement for
statutorily blind individuals under Title XVI, the
duration requirement applies to statutorily blind
individuals under Title II. See generally 216(i) and
1614(a) of the Act. See also 20 CFR 404.1581 and
416.981.
8 20 CFR 404.1509 and 416.909.
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title XVI claimants under the age of 18,
duration is the period of time during which the
claimant is not performing SGA and experiences
marked and severe functional limitations because of
a medically determinable physical or mental
impairment, or a combination of impairments. See
20 CFR 416.906 and 416.924. For these claimants,
we generally measure duration from the first date
the claimant’s MDI(s) results in marked and severe
functional limitations. An impairment(s) causes
marked and severe functional limitations if it meets
or medically equals the severity of a set of criteria
for an impairment in the listings, or if it
functionally equals the listings. See 20 CFR
416.924.
10 20 CFR 404.1509 and 416.909.
11 See Barnhart v. Walton, 535 U.S. 212 (2002).
12 20 CFR 404.321.
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lasted, or be expected to last, for a
continuous period of at least 12 months
and that the claimant’s resulting
inability to perform SGA by reason of
the MDI(s) must also have lasted, or be
expected to last, for not less than 12
months without interruption or
stopping.13
We measure the 12-month period
from any date 14 the claimant’s MDI(s)
first prevented the claimant from
performing SGA.15 We do not consider
any period during which an MDI or
combination of MDIs did not prevent
the claimant from performing SGA
when measuring duration. The duration
period may begin before, but cannot end
before, the period during which we can
establish entitlement or eligibility.16 For
example, the duration period may begin
before the date first insured (DFI) in
Title II disability insurance benefit (DIB)
claims, before the date of a spouse’s
death in Title II disabled widow(er)’s
benefit (DWB) claims, prior to the
potential onset date in Title II childhood
disability benefits (CDB) claims, or prior
to the filing date in Title XVI claims.
Unless the MDI(s) is expected to
result in death, duration continues
through the earliest of the following
dates:
• When the MDI(s) no longer prevents
the claimant from engaging in SGA; or
• When the MDI(s) is no longer
expected to prevent the claimant from
engaging in SGA.17
4. How does the duration requirement
affect the five-step sequential disability
evaluation process?
We consider the duration requirement
at multiple steps of the five-step
sequential evaluation process we use to
evaluate disability in initial claims
under Title II,18 age 18
redeterminations,19 and adult claims
under Title XVI.20 At step one, if the
claimant is currently performing SGA
we will generally find that the claimant
is not disabled. However, if the claimant
is not currently performing SGA, or if
the claimant is currently performing
13 See
Barnhart v. Walton, 535 U.S. 212 (2002).
detailed guidance on how we determine
whether a claimant meets the statutory definition of
disability, and if so, when the claimant first met
that definition, see SSR 18–1p Titles II and XVI:
Determining the Established Onset Date (EOD) in
Disability Claims.
15 For Title XVI claimants under age 18, we
generally measure duration from the first date the
claimant’s MDI(s) results in marked and severe
functional limitations. See 20 CFR 416.924.
16 See Walton, 535 U.S. 212 (2002).
17 For Title XVI claimants under age 18, duration
ends when the child engages in SGA or no longer
has marked and severe functional limitations. See
20 CFR 416.924.
18 See 20 CFR 404.1520.
19 See 20 CFR 416.987.
20 See 20 CFR 416.920.
14 For
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SGA but during the period covered by
the current application they did not
perform SGA for at least 12 continuous
months, the duration requirement could
be met (as discussed in Question 1) and
the sequential evaluation process would
proceed to step two.
At step two, if the claimant does not
have a severe MDI, or combination of
MDIs that is medically severe, and has
lasted, or is expected to last, for a
continuous period of not less than 12
months or is expected to result in death,
the claimant cannot meet the duration
requirement and we will find the
claimant is not disabled.21
Further, we do not combine two or
more successive, unrelated impairments
to meet the 12-month requirement in
initial claims.22 For example, a claimant
involved in a bicycling accident on
January 1, 2022, suffered a pelvic
fracture for which they underwent
immediate surgery. The fracture
completely healed by August 1, 2022.
The same claimant injured their rotator
cuff in a fall on July 1, 2022. With
treatment, the rotator cuff injury
resolved completely by February 2,
2023. The MDIs were unrelated and
neither MDI lasted 12 months. We will
find the claimant not disabled at step
two because there is no severe MDI that
could meet the duration requirement.23
Because of the duration requirement,
we will not consider an MDI that
completely resolves in less than 12
months after step two of the sequential
evaluation process. Consider, instead, a
case where the individual sustained a
pelvic fracture that resolved completely
within nine months but had a
subsequent rotator cuff injury that
remained severe for 12 continuous
months. Sequential evaluation for the
rotator cuff impairment would continue
but we would not consider the pelvic
fracture beyond step two.
If the analysis proceeds to step three,
we will consider: (1) whether an MDI(s)
meets or medically equals a listing in
the Listing of Impairments (listings),
according to the set of medical criteria
in the listing; and, if so (2) whether the
MDI(s) meets the duration
requirement.24 Once the claimant
establishes that their MDI(s) is severe
enough to meet or equal a listed
impairment, the claimant must also
show that this level of severity lasted, or
is expected to last, for a continuous
period of at least 12 months, or that the
21 See 20 CFR 404.1509, 404.1520(a)(4)(ii) and
416.909, 416.920(a)(4)(ii).
22 See 20 CFR 404.1523(a) and 416.923(a).
23 Id.
24 See 20 CFR 404.1520(a)(4)(iii) and
416.920(a)(4)(iii).
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impairment is expected to result in
death.25
Some listings specify a period of time
we will consider the claimant under a
disability if their MDI(s) meets all the
criteria of the listing. This listing
specification does not change,
supersede, or establish that the MDI(s)
meets the duration requirement. We use
this listing specification in certain
instances to establish the appropriate
timeline for our continuing disability
review process as it relates to that
impairment. The evidence of record
must show that the MDI(s) also meets
the duration requirement. For example,
listing 6.04 (chronic kidney disease,
with kidney transplant) states that we
will consider an individual who has a
kidney transplant due to chronic kidney
disease to be under a disability for one
year from the date of the transplant due
to the potential for complications, such
as rejection episodes and posttransplant functioning. Thereafter, we
will evaluate any residual limiting
effects of the impairment. If the
claimant engages in SGA within 12
months from the date the MDI(s) first
prevented them from performing SGA
we generally will find them not disabled
under the Act (as discussed in Question
7).26
Other listings contain criteria with
temporal requirements during which
certain findings must be present. These
temporal requirements do not establish
that the MDI(s) met the duration
requirement but instead serve as a
specific indicator of listing-level
severity. For example, listing 11.02
(Epilepsy, generalized tonic-clonic
seizures or dyscognitive seizures) states
that the seizures must occur at least
once a month for at least three
consecutive months, despite adherence
to prescribed treatment. The frequency
of seizures outlined in the listing
criteria establishes that the impairment
is of listing-level severity but is distinct
from the duration requirement. To meet
the duration requirement, the evidence
must show the MDI(s) lasted at listing
level or is expected to last at listing
level for 12 continuous months and that
the claimant’s resulting inability to
perform SGA by reason of the MDI(s)
has lasted, or is expected to last, for not
less than 12 months without
interruption or stopping.
If we cannot find the claimant
disabled at step three, the sequential
evaluation process continues.27 We
25 See
20 CFR 404.1520(d) and 416.920(d).
sections 216(i), 223(d), 1614(a) of the Act.
See 20 CFR 404.1505, 404.1509, 404.1520 and
416.905, 416.909, 416.920. See also Walton, 535
U.S. at 217–22.
27 See 20 CFR 404.1520(a)(4) and 416.920(a)(4).
26 See
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76887
assess the claimant’s residual functional
capacity (RFC), which is the most an
individual can do despite their
impairment-related limitations.28
Because of the duration requirement, we
will not include limitations in the RFC
assessment that completely resolve, or
that we expect to completely resolve,
within 12 months.
If the analysis proceeds to steps four
or five of the sequential evaluation
process, we consider the claimant’s RFC
when determining whether an
individual can perform past relevant
work, or other work that exists in
significant numbers in the national
economy.
5. How does the duration requirement
affect the three-step sequential
evaluation process for Title XVI
claimants who have not yet attained 18
years of age?
For Title XVI disability claimants
under age 18, we will consider the child
disabled if the child does not perform
SGA and has a medically determinable
physical or mental impairment, or
combination of impairments, that causes
marked and severe functional
limitations and has lasted or can be
expected to last for a continuous period
of not less than 12 months, or is
expected to result in death.29 In these
cases, we use a three-step sequential
evaluation process, and the duration
requirement for disability applies
throughout the sequential evaluation
process for children. 30
At steps one and two of the sequential
evaluation process for Title XVI
children, we will apply the same rules
discussed for steps one and two of the
adult sequential evaluation process (as
discussed above in response to Question
4). If the child satisfies the requirements
for both steps one and two, we will
proceed to step three where we consider
whether the child’s MDI(s) meets,
medically equals, or functionally equals
a listing.31
At step three, to establish that the
child has an MDI(s) that meets,
medically equals or functionally equals
the listings, the evidence must show
that the MDI(s) has lasted, or is expected
to last, for a continuous period of at
least 12 months at listing level severity
or is expected to result in death.32 If a
child’s MDI(s) is severe but does not
meet or medically equal any listing, we
will determine if the MDI(s)
28 See
20 CFR 404.1545 and 416.945.
section 1614(a)(3)(C) of the Act. See also 20
CFR 416.906.
30 See 20 CFR 416.924.
31 See 20 CFR 416.924(d).
32 See 20 CFR 416.924.
29 See
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functionally equals the listings.33 We
will decide that the MDI(s) functionally
equals the listings if it results in marked
limitations in two domains of
functioning, or an extreme limitation in
one domain of functioning for a
continuous 12-month period.34 If the
child’s MDI(s) does not meet, medically
equal, or functionally equal the listings,
or does not meet the duration
requirement, we will find the child is
not disabled.
6. How do we consider the duration
requirement when the claimant has a
new, severe MDI(s) in CDRs cases?
In CDR cases, the beneficiary or
recipient has already satisfied the
duration requirement and established
disability. As a result, we only consider
the duration requirement when the
impairment for which the claimant was
originally found disabled has improved,
and disability ended.
How we consider duration when
evaluating a new severe MDI(s) depends
on whether the new MDI(s) is disabling
and, if so, when it became disabling. To
be disabling, the new impairment(s)
must be so severe as to prevent SGA.35
If the previously established MDI(s) is
no longer disabling but the new, severe
MDI(s) is disabling, and if the new
disabling MDI(s) begins in, or before, the
month in which the previously
established MDI(s) is no longer
disabling,36 we do not consider duration
and will find that disability continues.37
If, however, the claimant has a new
disabling MDI(s) that begins after the
month in which the last impairment(s)
was no longer disabling, we consider
the duration requirement and determine
whether to establish a new period of
disability using the rules for initial
claims.
7. What if we find that the claimant’s
MDI(s) meets the duration requirement
based on an expectation of continued
severity, but the claimant returned to
SGA within 12 months?
A claimant who recovers their ability
to engage in SGA within 12 months is
not disabled under the Act.38 How we
evaluate an actual return to work that is
33 See
20 CFR 416.924(d) and 416.926a.
20 CFR 416.926a(d).
35 Or, in the case of a child under age 18 receiving
Supplemental Security Income payments, the new
impairment(s) must be so severe as to result in
marked and severe functional limitations. See 20
CFR 416.998.
36 See 20 CFR 404.1594(g) and 416.994(b)(6),
416.994a(g), for how we determine the month in
which the individual’s last impairment(s) is no
longer disabling.
37 See 20 CFR 404.1598 and 416.998.
38 See sections 216(i), 223(d), 1614(a) of the Act,
20 CFR 404.1505, 404.1509, 404.1520 and 416.905,
416.909, 416.920. See also Walton, 535 U.S. at 217–
22.
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34 See
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SGA depends, in part, on whether we
have already approved an award of
benefits.
If we have not issued a final
determination or decision that the
individual was disabled and entitled to
benefits, and we determine the
individual returned to work within 12
months of the first date the individual’s
MDI(s) otherwise met the definition of
disability, we deny the claim. If we
issued a final determination or decision
that the individual was disabled, and
we later find that the individual has
returned to SGA after an award of
benefits, but within the 12-month
period after onset, we do not reopen and
reverse the determination or decision.
This is because once disability
payments begin, individuals might be
entitled to a trial work period (Title II),
or to continued Supplemental Security
Income payments under section 1619(a)
of the Act.39
If we issued a final determination or
decision that the individual was entitled
to disability insurance benefits and we
later determine the individual returned
to SGA during the 5-month waiting
period for Title II, we may reopen and
revise the determination or decision to
issue a denial. These individuals are not
entitled to any disability benefit
payments. If we later determine the
return to work was an unsuccessful
work attempt,40 we may reopen and
revise the denial to issue an allowance.
However, we can only reopen the
determination or decision within the
time limitations under the rules of
administrative finality.41
[FR Doc. 2023–24523 Filed 11–6–23; 8:45 am]
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The Department of State is
seeking Office of Management and
Budget (OMB) approval for the
information collection described below.
In accordance with the Paperwork
Reduction Act of 1995, we are
requesting comments on this collection
from all interested individuals and
organizations. The purpose of this
SUMMARY:
39 See
20 CFR 404.1592.
20 CFR 404.1574(c) and 416.974(c).
41 See 20 CFR 404.988 and 416.1488.
40 See
PO 00000
Frm 00170
Fmt 4703
Sfmt 4703
notice is to allow 60 days for public
comment preceding submission of the
collection to OMB.
DATES: The Department will accept
comments from the public up to January
8, 2024.
ADDRESSES: You may submit comments
by any of the following methods:
• Web: Persons with access to the
internet may comment on this notice by
going to www.Regulations.gov. You can
search for the document by entering
‘‘Docket Number: –DOS–2023–0035’’ in
the Search field. Then click the
‘‘Comment Now’’ button and complete
the comment form.
• Email: PRA_BurdenComments@
state.gov.
You must include the DS form
number (if applicable), information
collection title, and the OMB control
number in any correspondence.
SUPPLEMENTARY INFORMATION:
• Title of Information Collection: DS–
157, Petition for Special Immigrant
Classification for Afghan SIV Applicant.
• OMB Control Number: 1405–0134.
• Type of Request: Extension of a
currently approved collection.
• Originating Office: CA/VO.
• Form Number: DS–157.
• Respondents: Afghan Special
Immigrant Visa (SIV) applicants.
• Estimated Number of Respondents:
15,000.
• Estimated Number of Responses:
15,000.
• Average Time per Response: 1 hour.
• Total Estimated Burden Time:
15,000 hours.
• Frequency: Once per application.
• Obligation to Respond: Required to
obtain or retain a benefit.
We are soliciting public comments to
permit the Department to:
• Evaluate whether the proposed
information collection is necessary for
the proper functions of the Department.
• Evaluate the accuracy of our
estimate of the time and cost burden for
this proposed collection, including the
validity of the methodology and
assumptions used.
• Enhance the quality, utility, and
clarity of the information to be
collected.
• Minimize the reporting burden on
those who are to respond, including the
use of automated collection techniques
or other forms of information
technology.
Please note that comments submitted
in response to this Notice are public
record. Before including any detailed
personal information, you should be
aware that your comments as submitted,
including your personal information,
will be available for public review.
E:\FR\FM\07NON1.SGM
07NON1
]]>Agencies
[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Notices]
[Pages 76885-76888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24523]
=======================================================================
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2023-0013]
Social Security Ruling, SSR 23-1p.; Titles II and XVI: Duration
Requirement for Disability
AGENCY: Social Security Administration.
ACTION: Notice of social security ruling (SSR).
-----------------------------------------------------------------------
SUMMARY: We are providing notice of SSR 23-1p. This SSR explains and
clarifies our policy regarding the duration requirement for
establishing disability under Titles II and XVI of the Social Security
Act and implementing regulations. This ruling rescinds and replaces SSR
82-52.
DATES: We will apply this notice on November 7, 2023.
FOR FURTHER INFORMATION CONTACT: Mary Quatroche, Social Security
Administration, Office of Disability Policy, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 966-4794 or TTY 410-966-5609, for
information about this notice. 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 site, Social Security Online, at
https://www.ssa.gov.
SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do
not require us to publish this SSR, we are publishing it in accordance
with 20 CFR 402.35(b)(1).
SSRs represent precedential final opinions, orders, and statements
of policy and interpretations that we have adopted relating to the
Federal Old Age, Survivors, and Disability Insurance program, and
Supplemental Security Income program. We may base SSRs on
determinations or decisions made in our administrative review process,
Federal court decisions, decisions of our Commissioner, opinions from
our Office of the General Counsel, or other interpretations of law and
regulations.
Although SSRs do not have the same force and effect as law, they
are binding on all SSA components in accordance with 20 CFR
402.35(b)(1).
This SSR will remain in effect until we publish a notice in the
Federal Register that rescinds it, or until we publish a new SSR that
replaces or modifies it.
(Federal Assistance Listings, Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004--Social Security--Survivors Insurance; 96.006
Supplemental Security Income.)
The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D.,
M.S.W., having reviewed and approved this document, is delegating the
authority to electronically sign this document to Faye I. Lipsky, who
is the primary Federal Register Liaison for the Social Security
Administration, for purposes of publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional
Affairs, Social Security Administration.
Policy Interpretation Ruling
SSR 23-1p
Titles II and XVI: Duration Requirement for Disability
This Social Security Ruling (SSR) rescinds and replaces SSR 82-52:
Titles II and XVI: Duration of the Impairment.
Purpose: This SSR updates and consolidates our policy regarding the
duration requirement for establishing disability under Titles II and
XVI of the Social Security Act (Act) and its implementing regulations.
We published SSR 82-52 in 1982, and in the ensuing four decades we
revised several rules and issued policy guidance that leave the
original ruling misaligned with current regulatory authority and policy
guidance. For instance, we changed the sequential evaluation process
for widows and Title XVI children; \1\ established the process for
evaluating medical improvement in continuing disability review (CDR)
cases; \2\ instituted multiple work incentives for recipients of Title
XVI payments; \3\ and extended the reentitlement period for Title II
claims.\4\
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\1\ See 20 CFR 404.1520(a)(2) and 416.924.
\2\ See 20 CFR 404.1594, 416.994, and 416.994a.
\3\ See section 1619(a)-(b) of the Act. See also 20 CFR 416.260
and 416.262.
\4\ See 20 CFR 404.1592a and 404.1592b.
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Citations (Authority): Sections 216(i), 223(d), and 1614(a) of the
Act, 42 U.S.C. 416(i), 423(d), and 1382c(a), as amended; Regulations
No. 4, subpart P, sections 404.988, 404.1505, 404.1509, 404.1520,
404.1523, 404.1545, 404.1574, 404.1581, 404.1592, 404.1592a, 404.1592b,
404.1594, and 404.1598; Regulations No. 16, Subpart I, sections
416.260, 416.262, 416.905, 416.906, 416.909, 416.920, 416.923, 416.924,
416.945, 416.974, 416.981, 416.994, 416.994a, 416.998, and 416.1488.
Dates: We will apply this SSR on November 7, 2023.\5\
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\5\ We will use this SSR beginning on its applicable date. We
will apply this SSR to new applications filed on or after the
applicable date of the SSR and to claims that are pending on and
after the applicable date. This means that we will use this SSR on
and after its applicable date in any case in which we make a
determination or decision. We expect that Federal courts will review
our final decisions using the rules that were in effect at the time
we issued the decisions. If a court reverses our final decision and
remands a case for further administrative proceedings after the
applicable date of this SSR, we will apply this SSR to the entire
period at issue in the decision we make after the court's remand.
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[[Page 76886]]
Policy Interpretation
To be disabled under Title II of the Act, or as an adult \6\ under
Title XVI of the Act, a claimant must be unable to engage in any
substantial gainful activity (SGA) by reason of one or more medically
determinable physical or mental impairments (MDIs) which can be
expected to result in death, or which has lasted or can be expected to
last for a continuous period of at least 12 months.\7\ We refer to the
period of time during which a claimant is continuously unable to engage
in SGA because of one or more MDI(s) as ``duration.'' \8\
---------------------------------------------------------------------------
\6\ Title XVI claimants under age 18 are disabled if they are
not performing SGA and their medically determinable physical or
mental impairment(s) causes marked and severe functional limitations
and can be expected to cause death or has lasted or can be expected
to last for a continuous period of 12 months. See section
1614(a)(3)(C) of the Act and 20 CFR 416.906.
\7\ See sections 216(i), 223(d), 1614(a) of the Act. See also 20
CFR 404.1505, 404.1521 and 416.905, 416.921. While there is no
duration requirement for statutorily blind individuals under Title
XVI, the duration requirement applies to statutorily blind
individuals under Title II. See generally 216(i) and 1614(a) of the
Act. See also 20 CFR 404.1581 and 416.981.
\8\ 20 CFR 404.1509 and 416.909.
---------------------------------------------------------------------------
The following information is in a question-and-answer format that
provides guidance on how we assess whether a person meets the duration
requirement for disability. Questions 1 through 3 explain how we define
and measure the duration requirement. Questions 4 and 5 provide
information about how the duration requirement affects the sequential
disability evaluation process. Question 6 addresses how we consider
duration in continuing disability review (CDR) cases when the
beneficiary or recipient has a new, severe MDI(s). Question 7 explains
how we make a finding about the expected duration of an impairment and
what will happen if we learn of a return to SGA within 12 months of a
claimant's onset of disability.
List of Questions--
1. How does a claimant meet the duration requirement for
disability?
2. What is an MDI that ``can be expected to result in death''?
3. What do we mean by ``12 continuous months'' and how do we
measure it in initial claims?
4. How does the duration requirement affect the five-step
sequential disability evaluation process?
5. How does the duration requirement affect the three-step
sequential disability evaluation process for Title XVI claimants who
have not yet attained 18 years of age?
6. How do we consider the duration requirement when the claimant
has new, severe MDI(s) in continuing disability review (CDR) cases?
7. What if we find that the claimant meets the duration requirement
based on an expectation of continued severity, but the claimant
returned to SGA within 12 months?
Answers--
1. How does a claimant meet the duration requirement for
disability?
Duration is the period of time during which a claimant is
continuously unable to engage in SGA because of one or more MDI(s).\9\
To satisfy the duration requirement for disability, the claimant's
relevant MDI(s) must have lasted or must be expected to last for a
continuous period of at least 12 months, unless we expect the MDI(s) to
result in death within 12 months of the onset of disability.\10\ An
individual's inability to perform SGA because of the relevant MDI(s)
must also last the required 12-month period, unless we expect an MDI(s)
to result in death within 12 months of the onset of disability. A
claimant must satisfy both elements to meet the duration
requirement.\11\ A claimant who was previously entitled to a period of
disability must again meet the duration requirement for the current
application before a subsequent period of disability can be
established.\12\
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\9\ For title XVI claimants under the age of 18, duration is the
period of time during which the claimant is not performing SGA and
experiences marked and severe functional limitations because of a
medically determinable physical or mental impairment, or a
combination of impairments. See 20 CFR 416.906 and 416.924. For
these claimants, we generally measure duration from the first date
the claimant's MDI(s) results in marked and severe functional
limitations. An impairment(s) causes marked and severe functional
limitations if it meets or medically equals the severity of a set of
criteria for an impairment in the listings, or if it functionally
equals the listings. See 20 CFR 416.924.
\10\ 20 CFR 404.1509 and 416.909.
\11\ See Barnhart v. Walton, 535 U.S. 212 (2002).
\12\ 20 CFR 404.321.
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2. What is an MDI that ``can be expected to result in death''?
An MDI that ``can be expected to result in death'' is one for which
the generally accepted prognosis within the medical field and the
evidence in the case file demonstrate that the claimant is expected to
die as a result of that impairment within 12 months of the date that
the claimant became unable to engage in SGA. We also consider an MDI
that actually results in death to be one that was ``expected to result
in death.''
3. What do we mean by ``12 continuous months'' and how do we
measure it in initial claims?
The phrase ``12 continuous months'' means both that the MDI(s) must
have lasted, or be expected to last, for a continuous period of at
least 12 months and that the claimant's resulting inability to perform
SGA by reason of the MDI(s) must also have lasted, or be expected to
last, for not less than 12 months without interruption or stopping.\13\
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\13\ See Barnhart v. Walton, 535 U.S. 212 (2002).
---------------------------------------------------------------------------
We measure the 12-month period from any date \14\ the claimant's
MDI(s) first prevented the claimant from performing SGA.\15\ We do not
consider any period during which an MDI or combination of MDIs did not
prevent the claimant from performing SGA when measuring duration. The
duration period may begin before, but cannot end before, the period
during which we can establish entitlement or eligibility.\16\ For
example, the duration period may begin before the date first insured
(DFI) in Title II disability insurance benefit (DIB) claims, before the
date of a spouse's death in Title II disabled widow(er)'s benefit (DWB)
claims, prior to the potential onset date in Title II childhood
disability benefits (CDB) claims, or prior to the filing date in Title
XVI claims.
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\14\ For detailed guidance on how we determine whether a
claimant meets the statutory definition of disability, and if so,
when the claimant first met that definition, see SSR 18-1p Titles II
and XVI: Determining the Established Onset Date (EOD) in Disability
Claims.
\15\ For Title XVI claimants under age 18, we generally measure
duration from the first date the claimant's MDI(s) results in marked
and severe functional limitations. See 20 CFR 416.924.
\16\ See Walton, 535 U.S. 212 (2002).
---------------------------------------------------------------------------
Unless the MDI(s) is expected to result in death, duration
continues through the earliest of the following dates:
When the MDI(s) no longer prevents the claimant from
engaging in SGA; or
When the MDI(s) is no longer expected to prevent the
claimant from engaging in SGA.\17\
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\17\ For Title XVI claimants under age 18, duration ends when
the child engages in SGA or no longer has marked and severe
functional limitations. See 20 CFR 416.924.
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4. How does the duration requirement affect the five-step
sequential disability evaluation process?
We consider the duration requirement at multiple steps of the five-
step sequential evaluation process we use to evaluate disability in
initial claims under Title II,\18\ age 18 redeterminations,\19\ and
adult claims under Title XVI.\20\ At step one, if the claimant is
currently performing SGA we will generally find that the claimant is
not disabled. However, if the claimant is not currently performing SGA,
or if the claimant is currently performing
[[Page 76887]]
SGA but during the period covered by the current application they did
not perform SGA for at least 12 continuous months, the duration
requirement could be met (as discussed in Question 1) and the
sequential evaluation process would proceed to step two.
---------------------------------------------------------------------------
\18\ See 20 CFR 404.1520.
\19\ See 20 CFR 416.987.
\20\ See 20 CFR 416.920.
---------------------------------------------------------------------------
At step two, if the claimant does not have a severe MDI, or
combination of MDIs that is medically severe, and has lasted, or is
expected to last, for a continuous period of not less than 12 months or
is expected to result in death, the claimant cannot meet the duration
requirement and we will find the claimant is not disabled.\21\
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\21\ See 20 CFR 404.1509, 404.1520(a)(4)(ii) and 416.909,
416.920(a)(4)(ii).
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Further, we do not combine two or more successive, unrelated
impairments to meet the 12-month requirement in initial claims.\22\ For
example, a claimant involved in a bicycling accident on January 1,
2022, suffered a pelvic fracture for which they underwent immediate
surgery. The fracture completely healed by August 1, 2022. The same
claimant injured their rotator cuff in a fall on July 1, 2022. With
treatment, the rotator cuff injury resolved completely by February 2,
2023. The MDIs were unrelated and neither MDI lasted 12 months. We will
find the claimant not disabled at step two because there is no severe
MDI that could meet the duration requirement.\23\
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\22\ See 20 CFR 404.1523(a) and 416.923(a).
\23\ Id.
---------------------------------------------------------------------------
Because of the duration requirement, we will not consider an MDI
that completely resolves in less than 12 months after step two of the
sequential evaluation process. Consider, instead, a case where the
individual sustained a pelvic fracture that resolved completely within
nine months but had a subsequent rotator cuff injury that remained
severe for 12 continuous months. Sequential evaluation for the rotator
cuff impairment would continue but we would not consider the pelvic
fracture beyond step two.
If the analysis proceeds to step three, we will consider: (1)
whether an MDI(s) meets or medically equals a listing in the Listing of
Impairments (listings), according to the set of medical criteria in the
listing; and, if so (2) whether the MDI(s) meets the duration
requirement.\24\ Once the claimant establishes that their MDI(s) is
severe enough to meet or equal a listed impairment, the claimant must
also show that this level of severity lasted, or is expected to last,
for a continuous period of at least 12 months, or that the impairment
is expected to result in death.\25\
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\24\ See 20 CFR 404.1520(a)(4)(iii) and 416.920(a)(4)(iii).
\25\ See 20 CFR 404.1520(d) and 416.920(d).
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Some listings specify a period of time we will consider the
claimant under a disability if their MDI(s) meets all the criteria of
the listing. This listing specification does not change, supersede, or
establish that the MDI(s) meets the duration requirement. We use this
listing specification in certain instances to establish the appropriate
timeline for our continuing disability review process as it relates to
that impairment. The evidence of record must show that the MDI(s) also
meets the duration requirement. For example, listing 6.04 (chronic
kidney disease, with kidney transplant) states that we will consider an
individual who has a kidney transplant due to chronic kidney disease to
be under a disability for one year from the date of the transplant due
to the potential for complications, such as rejection episodes and
post-transplant functioning. Thereafter, we will evaluate any residual
limiting effects of the impairment. If the claimant engages in SGA
within 12 months from the date the MDI(s) first prevented them from
performing SGA we generally will find them not disabled under the Act
(as discussed in Question 7).\26\
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\26\ See sections 216(i), 223(d), 1614(a) of the Act. See 20 CFR
404.1505, 404.1509, 404.1520 and 416.905, 416.909, 416.920. See also
Walton, 535 U.S. at 217-22.
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Other listings contain criteria with temporal requirements during
which certain findings must be present. These temporal requirements do
not establish that the MDI(s) met the duration requirement but instead
serve as a specific indicator of listing-level severity. For example,
listing 11.02 (Epilepsy, generalized tonic-clonic seizures or
dyscognitive seizures) states that the seizures must occur at least
once a month for at least three consecutive months, despite adherence
to prescribed treatment. The frequency of seizures outlined in the
listing criteria establishes that the impairment is of listing-level
severity but is distinct from the duration requirement. To meet the
duration requirement, the evidence must show the MDI(s) lasted at
listing level or is expected to last at listing level for 12 continuous
months and that the claimant's resulting inability to perform SGA by
reason of the MDI(s) has lasted, or is expected to last, for not less
than 12 months without interruption or stopping.
If we cannot find the claimant disabled at step three, the
sequential evaluation process continues.\27\ We assess the claimant's
residual functional capacity (RFC), which is the most an individual can
do despite their impairment-related limitations.\28\ Because of the
duration requirement, we will not include limitations in the RFC
assessment that completely resolve, or that we expect to completely
resolve, within 12 months.
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\27\ See 20 CFR 404.1520(a)(4) and 416.920(a)(4).
\28\ See 20 CFR 404.1545 and 416.945.
---------------------------------------------------------------------------
If the analysis proceeds to steps four or five of the sequential
evaluation process, we consider the claimant's RFC when determining
whether an individual can perform past relevant work, or other work
that exists in significant numbers in the national economy.
5. How does the duration requirement affect the three-step
sequential evaluation process for Title XVI claimants who have not yet
attained 18 years of age?
For Title XVI disability claimants under age 18, we will consider
the child disabled if the child does not perform SGA and has a
medically determinable physical or mental impairment, or combination of
impairments, that causes marked and severe functional limitations and
has lasted or can be expected to last for a continuous period of not
less than 12 months, or is expected to result in death.\29\ In these
cases, we use a three-step sequential evaluation process, and the
duration requirement for disability applies throughout the sequential
evaluation process for children. \30\
---------------------------------------------------------------------------
\29\ See section 1614(a)(3)(C) of the Act. See also 20 CFR
416.906.
\30\ See 20 CFR 416.924.
---------------------------------------------------------------------------
At steps one and two of the sequential evaluation process for Title
XVI children, we will apply the same rules discussed for steps one and
two of the adult sequential evaluation process (as discussed above in
response to Question 4). If the child satisfies the requirements for
both steps one and two, we will proceed to step three where we consider
whether the child's MDI(s) meets, medically equals, or functionally
equals a listing.\31\
---------------------------------------------------------------------------
\31\ See 20 CFR 416.924(d).
---------------------------------------------------------------------------
At step three, to establish that the child has an MDI(s) that
meets, medically equals or functionally equals the listings, the
evidence must show that the MDI(s) has lasted, or is expected to last,
for a continuous period of at least 12 months at listing level severity
or is expected to result in death.\32\ If a child's MDI(s) is severe
but does not meet or medically equal any listing, we will determine if
the MDI(s)
[[Page 76888]]
functionally equals the listings.\33\ We will decide that the MDI(s)
functionally equals the listings if it results in marked limitations in
two domains of functioning, or an extreme limitation in one domain of
functioning for a continuous 12-month period.\34\ If the child's MDI(s)
does not meet, medically equal, or functionally equal the listings, or
does not meet the duration requirement, we will find the child is not
disabled.
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\32\ See 20 CFR 416.924.
\33\ See 20 CFR 416.924(d) and 416.926a.
\34\ See 20 CFR 416.926a(d).
---------------------------------------------------------------------------
6. How do we consider the duration requirement when the claimant
has a new, severe MDI(s) in CDRs cases?
In CDR cases, the beneficiary or recipient has already satisfied
the duration requirement and established disability. As a result, we
only consider the duration requirement when the impairment for which
the claimant was originally found disabled has improved, and disability
ended.
How we consider duration when evaluating a new severe MDI(s)
depends on whether the new MDI(s) is disabling and, if so, when it
became disabling. To be disabling, the new impairment(s) must be so
severe as to prevent SGA.\35\ If the previously established MDI(s) is
no longer disabling but the new, severe MDI(s) is disabling, and if the
new disabling MDI(s) begins in, or before, the month in which the
previously established MDI(s) is no longer disabling,\36\ we do not
consider duration and will find that disability continues.\37\ If,
however, the claimant has a new disabling MDI(s) that begins after the
month in which the last impairment(s) was no longer disabling, we
consider the duration requirement and determine whether to establish a
new period of disability using the rules for initial claims.
---------------------------------------------------------------------------
\35\ Or, in the case of a child under age 18 receiving
Supplemental Security Income payments, the new impairment(s) must be
so severe as to result in marked and severe functional limitations.
See 20 CFR 416.998.
\36\ See 20 CFR 404.1594(g) and 416.994(b)(6), 416.994a(g), for
how we determine the month in which the individual's last
impairment(s) is no longer disabling.
\37\ See 20 CFR 404.1598 and 416.998.
---------------------------------------------------------------------------
7. What if we find that the claimant's MDI(s) meets the duration
requirement based on an expectation of continued severity, but the
claimant returned to SGA within 12 months?
A claimant who recovers their ability to engage in SGA within 12
months is not disabled under the Act.\38\ How we evaluate an actual
return to work that is SGA depends, in part, on whether we have already
approved an award of benefits.
---------------------------------------------------------------------------
\38\ See sections 216(i), 223(d), 1614(a) of the Act, 20 CFR
404.1505, 404.1509, 404.1520 and 416.905, 416.909, 416.920. See also
Walton, 535 U.S. at 217-22.
---------------------------------------------------------------------------
If we have not issued a final determination or decision that the
individual was disabled and entitled to benefits, and we determine the
individual returned to work within 12 months of the first date the
individual's MDI(s) otherwise met the definition of disability, we deny
the claim. If we issued a final determination or decision that the
individual was disabled, and we later find that the individual has
returned to SGA after an award of benefits, but within the 12-month
period after onset, we do not reopen and reverse the determination or
decision. This is because once disability payments begin, individuals
might be entitled to a trial work period (Title II), or to continued
Supplemental Security Income payments under section 1619(a) of the
Act.\39\
---------------------------------------------------------------------------
\39\ See 20 CFR 404.1592.
---------------------------------------------------------------------------
If we issued a final determination or decision that the individual
was entitled to disability insurance benefits and we later determine
the individual returned to SGA during the 5-month waiting period for
Title II, we may reopen and revise the determination or decision to
issue a denial. These individuals are not entitled to any disability
benefit payments. If we later determine the return to work was an
unsuccessful work attempt,\40\ we may reopen and revise the denial to
issue an allowance. However, we can only reopen the determination or
decision within the time limitations under the rules of administrative
finality.\41\
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\40\ See 20 CFR 404.1574(c) and 416.974(c).
\41\ See 20 CFR 404.988 and 416.1488.
[FR Doc. 2023-24523 Filed 11-6-23; 8:45 am]
BILLING CODE 4191-02-P
