Social Security Ruling, SSR 23-1p.; Titles II and XVI: Duration Requirement for Disability, 76885-76888 [2023-24523]

Download as PDF Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Notices Paper Comments • Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090. All submissions should refer to file number SR–CboeBZX–2023–085. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission’s internet website (https://www.sec.gov/ rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission’s Public Reference Room, 100 F Street NE, Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–CboeBZX–2023–085 and should be submitted on or before November 28, 2023. For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.25 Sherry R. Haywood, Assistant Secretary. [FR Doc. 2023–24519 Filed 11–6–23; 8:45 am] BILLING CODE 8011–01–P SOCIAL SECURITY ADMINISTRATION khammond on DSKJM1Z7X2PROD with NOTICES [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). VerDate Sep<11>2014 16:30 Nov 06, 2023 Jkt 262001 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 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. 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. SUPPLEMENTARY INFORMATION: (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 PO 00000 Frm 00167 Fmt 4703 Sfmt 4703 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 E:\FR\FM\07NON1.SGM 07NON1 76886 Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Notices 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 khammond on DSKJM1Z7X2PROD with NOTICES 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. VerDate Sep<11>2014 16:30 Nov 06, 2023 Jkt 262001 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. PO 00000 Frm 00168 Fmt 4703 Sfmt 4703 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 E:\FR\FM\07NON1.SGM 07NON1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Notices 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). VerDate Sep<11>2014 16:30 Nov 06, 2023 Jkt 262001 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 PO 00000 Frm 00169 Fmt 4703 Sfmt 4703 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 E:\FR\FM\07NON1.SGM 07NON1 76888 Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Notices 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. khammond on DSKJM1Z7X2PROD with NOTICES 34 See VerDate Sep<11>2014 16:30 Nov 06, 2023 Jkt 262001 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] BILLING CODE 4191–02–P DEPARTMENT OF STATE [Public Notice: 12251] 60-Day Notice of Proposed Information Collection: DS–157, Petition for Special Immigrant Classification for Afghan Special Immigrant Visa (SIV) Applicant Notice of request for public comment. ACTION: 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

Social Security Administration

[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]


=======================================================================
-----------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \21\ See 20 CFR 404.1509, 404.1520(a)(4)(ii) and 416.909, 
416.920(a)(4)(ii).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.