II-4-1-1.Supplemental Security Income; Determining Disability for a Child Under Age 18 (Final Rules with Request for Comments; 56 FR 5534 February 11, 1991; )
THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Part 416 (56 FR 5534)
Regulations No. 16
Supplemental Security Income; Determining Disability for a Child Under Age 18
AGENCY: Social Security Administration, HHS.
ACTION: Final rule with request for comments.
SUMMARY: These amendments revise the disability evaluation and determination process for Supplemental Security Income (SSI) claims of children based on disability. The revisions are designed to comply with the February 20, 1990, U.S. Supreme Court ruling in the case of Sullivan v. Zebley, __U.S.__, 110 S. Ct. 885 (1990). In Zebley, the Supreme Court invalidated the use of a medical "listings-only" approach to evaluating such childhood disability claims and required the use of an individualized functional assessment of children whose impairments did not meet or equal the severity of listed medical impairments. The changes incorporate into the disability determination process for children concepts and criteria reflecting current knowledge in the field of childhood disability and functioning.
Although these regulations are being published as final rules, we are asking for comments concerning these rules from members of the public. After the end of the comment period, we will carefully consider any comments we receive in order to determine whether any changes are necessary.
DATES: These final rules are effective on February 11, 1991; comments must be received on or before April 10, 1991.
ADDRESSES: You may submit comments to the Commissioner of Social Security, Department of Health and Human Services, P.O. Box 1585, Baltimore, Maryland 21203, or deliver them to the Office of Regulations, Social Security Administration, 3-B-4 Operations Building, 6401 Security Boulevard, Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m. on regular business days. Comments may be inspected during these same hours by making arrangements with the contact person shown below.
FOR FURTHER INFORMATION CONTACT: Martin Sussman, Legal Assistant, Office of Regulations, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235, telephone (301) 965-1758.
Provisions for benefits for disabled children were part of the original 1972 legislation establishing the SSI program, which became operational in 1974. The Social Security Act (the Act) provides the same definition of disability for adults under the SSI program under title XVI of the Act as it does for workers and children of workers under the disability insurance (DI) program under title II of the Act. A different definition applies to widows, widowers, and surviving divorced spouses under title II of the Act.
The Act, at § 1614(a)(3)(A), defines disability for adults as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." The law further provides, at § 1614(a)(3)(B), that an adult (that is, a person age 18 or older) will be considered disabled, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...."
The definition of disability for children is contained in a parenthetical statement at the end of § 1614(a)(3)(A). The Act provides that a child (that is, a person under the age of 18) will be considered disabled for purposes of eligibility for SSI, "if he suffers from any medically determinable physical or mental impairment of comparable severity" to that which would make an adult disabled.
Under the Social Security Administration (SSA) regulations, the decision process for determining if an adult is disabled is different in concept from the process we formerly used for children. Regulations §§ 404.1520 and 416.920 set out a five-step sequential evaluation process for determining disability in adults, which considers in turn:
Whether the adult is doing substantial gainful activity;
Whether, in the absence of substantial gainful activity, his or her medically determinable impairment or combination of impairments is severe;
Whether, if the impairment(s) is severe, it meets or equals in severity an impairment listed in Appendix 1 of Subpart P of the Regulations Part 404;
Whether, in the presence of a severe impairment or combination of impairments, the individual retains the capacity to do his or her past relevant work, considering his or her residual functional capacity; and
Whether, if past relevant work is precluded, the individual retains the capacity to do any other work, considering the individual's residual functional capacity and the vocational factors of age, education, and work experience.
We published the regulation that was at issue in the Zebley case at § 416.923 at 45 FR 55621 (August 20, 1980) and redesignated it to § 416.924 at 50 FR 8729 (March 5, 1985). Under this section, we determined whether a child was disabled by comparing the child's impairment(s) to those in the medical listings, as in the third step of the process for adults. If the child's impairment(s) met, or was equivalent in severity to, one in the listings, we determined that the child was disabled, as long as he or she was not engaging in substantial gainful activity and met the 12-month duration of impairment requirement. If the child's impairment(s) did not meet or was not equivalent to, one in the listings, we determined that the child was not disabled; we did not provide additional evaluation steps for children, as we do for adults. Thus, SSA defined the comparable severity standard contained in the law in terms of whether a child's impairment(s) met or equaled in severity those in the listings.
Part A of the Listing of Impairments in Appendix 1 of Subpart P of the Regulations Part 404 describes, for each of the major body systems, impairments that are considered severe enough to prevent a person from doing any gainful activity, as opposed to substantial gainful activity. Part B of the listings provides criteria solely for the evaluation of impairments of children. Part B is used first in evaluating claims of children. The criteria in Part A normally apply to adults, although they can be used for a child if the child's impairment(s) is not found to meet or equal in severity the criteria in Part B or is not addressed in Part B.
Sullivan v. Zebley
On February 20, 1990, the Supreme Court, in the case of Sullivan v. Zebley, decided that SSA's regulations implementing the law for evaluating disability in children did not adequately reflect Congressional intent. The Court held that the "listings-only" approach SSA had used to evaluate the disabilities of children did not carry out the "comparable severity" standard in the law, in that the listings were set at a level of severity stricter than the level at which an adult worker can be found disabled and our former policies did not provide for an assessment of overall functional impairment.
We read the Supreme Court's decision as holding that children are entitled to an "individualized functional assessment" as part of SSA's disability determination process, comparable to adults who have impairments that do not meet or equal the listings and receive such an individualized assessment. The Court found that, whereas adults who do not qualify under the listings still have the opportunity to show that they are disabled at the last steps of the evaluation sequence, no similar opportunity exists for children, who are denied benefits even if their impairments are of comparable severity to ones that would actually disable adults. The Court concluded that, although the vocational analysis used in adult claims is inapplicable to childhood cases, this does not mean that a functional analysis cannot be applied to them.
Since late February we have not denied any childhood SSI claims or terminated benefits based on findings that a child fails to meet or equal the listings. Since May, 1990, we have been adjudicating cases using an interim standard pursuant to an order of the District Court for the Eastern District of Pennsylvania, the court where the Zebley litigation was orginally brought. The interim standard provides for consideration of a child's functioning for the determination whether the child's impairment(s) is equivalent in severity to a listed impairment and for the determination based on an individualized functional assessment whenever a child does not meet or equal a listing. This regulation will replace the interim standard.
Method Used To Revise the Childhood Disability Rules
On March 23, 1990, the Department of Health and Human Services and SSA announced that experts in child development and childhood disability would be asked to meet with SSA representatives and assist in devising the new regulations by supplying input based on their individual expertise. The experts were chosen to represent a wide range of areas in the assessment of child development and childhood disability, including general pediatrics, developmental genetics, developmental pediatrics, infant development, family and support systems, behavioral pediatrics, pediatric psychiatry, pediatric neurology, child psychology, pediatric special education, home and community care, physical and occupational deficits, early childhood education, pediatric rehabilitation, learning disorders, chronic illness and somatics, and communication disorders. We met with the experts in meetings held in Washington, D.C., on April 16 and 17, May 3, 4 and 5, and June 28 and 29, 1990. The meetings were open to the public.
We also asked other people for their ideas on how to evaluate childhood disability. We solicited comments and suggestions from other experts who were unable to attend our meetings. These experts, who included individuals we selected and individuals who were recommended to us by advocates and others, or who offered their help to us, further broadened our base of knowledge in the fields of pediatric medicine and childhood disability.
We also sought input from advocacy groups as we revised the rules. From the outset of the process, before we met with the experts or began drafting these rules, we shared and exchanged ideas with the advocacy community. In March 1990, we met with more than two dozen groups interested in childhood disability to get their input on what we should consider in developing our new standard. We have also corresponded with many of these groups and other advocacy groups concerning our progress. In addition, we were assisted as we drafted our new policies by representatives from four advocacy groups: Community Legal Services, in Philadelphia (the attorneys who represented the Zebley plaintiff class), the Association for Retarded Citizens of the United States, the Mental Health Law Project, and the National Senior Citizens Law Center.
Within the SSA community, we solicited comments and advice from our own regional office staffs and the State agencies, the agencies in the individual States that make disability determinations under the Act. Finally, as a consequence of our outreach efforts, we also received several valuable comments from organizations and individuals who were aware of the Zebley decision and our revision of the regulations.
Explanation of Revisions
The final regulations replace our prior rules for deciding disability in childhood cases under SSI and the interim standard that we have been using in these cases since May, 1990. As required by the Supreme Court's ruling in Zebley, they accord each child whose impairment(s) does not medically meet or equal a listing an opportunity to receive an individualized assessment of his or her functioning. The new rules provide two steps at which a child's functioning will be assessed. First, they provide a new policy for considering functioning at the listings equivalence step. Second, they ensure that disability evaluations of children under the SSI program include a process for evaluating childhood disability that is not based solely on listing-level severity. They provide an additional step beyond the listings at which we may determine that children with severe impairments that do not meet or equal (medically or functionally) a listing are disabled based on an assessment of their functioning that demonstrates that they have impairments of "comparable severity" to impairments that would disable adults.
As a result, the new sequence for children is:
Whether the child is engaging in substantial gainful activity;
Whether the child's impairment or combination of impairments is severe;
Whether the child has a medically determinable impairment(s) that meets or equals in severity a listing in Appendix 1 of Subpart P of Part 404 or, if not, whether the functional consequences of the child's impairment or combination of impairments functionally equal a listing; and
Whether the child's severe impairment(s) so limits the child's ability to function in an age-appropriate manner that the limitations are comparable in severity to those that would disable an adult.
It is still possible for children to have impairments equal in severity to listed impairments based solely upon medical findings. Because the longstanding concepts of meeting or equaling a listing based upon medical findings permit us to find many claimants disabled on medical grounds alone, we have retained these longstanding procedures. However, we have also expanded and clarified our prior rules for making determinations of equivalence.
We have also removed our prior medical improvement rules for children, formerly in §416.994(c), and have added a new medical improvement regulation for children, § 416.994a, to be used in determining whether childhood disability continues. Because the former rules in § 416.994(c) were based on our prior listings-only test, we are replacing them. The new section is modeled after the adult rules and takes into account the new childhood disability rules in §§ 416.924 and 416.924a through 416.924e.
We have revised some of the rules in Subpart I that are relevant to children so that they explicitly refer to children. In addition to the new rules in § 416.924, which provide a sequential evaluation process for children and a new interpretation of the statutory definition of disability for children, we have also added new rules and language that were necessary to address issues specific to the evaluation of disability in children or to provide clarification of existing policies in terms that are more meaningful to the evaluation of children's cases.
Inclusion of adult claimants in separate publications of the FEDERAL REGISTER. We believe that the Supreme Court's analysis of our equivalence policies in Zebley addressed policy issues that do not necessarily have to be confined to children's cases, and that the new functional equivalence policy we have developed for children could apply to adult claimants as well. Therefore, we have decided to extend the revisions to determinations of equivalence for adults under titles II and XVI by publishing separately a notice of proposed rulemaking (NPRM) that will propose to extend the provisions to all other adults under titles II and XVI. The NPRM will propose to consolidate the provisions of the two regulations into identical revisions under Parts 404 and 416 of this chapter, to establish a uniform standard for all individuals who apply for and receive disability benefits under the Act.
Summary of Specific Provisions
From our public meetings with the experts and our discussions with other individuals and organizations, we received many thoughtful comments and suggestions on the standard and criteria we should use to evaluate disability in children. The comments were very helpful to us as we developed these regulations.
The suggestions had certain common elements. There was considerable support in the comments for the principle of assessing a child's overall functioning in all domains—that is, broad spheres of physical and mental functioning—measured by how well the child can do age- appropriate activities. Many commenters were concerned about the need to consider the setting in which the child resided, such as the family, and the need to consider both the positive and negative influences of the child's environment (including family, school, and community) on the child's medical status, development, and functioning. Many comments also emphasized the importance of gathering "multidisciplinary" evidence—that is, evidence from several expert sources in different disciplines in addition to medicine—as well as information from parents and others who have knowledge of a child's day-to-day functioning.
A frequent comment concerned the need to address the problem of assessing disability in infants, who are often difficult to evaluate because they exhibit a narrow range of medical findings and behaviors and cannot be tested or be precisely diagnosed. Many people urged us to create special rules for the youngest children which would give the benefit of the doubt to those infants who exhibit signs of disability but who are as yet too young to be specifically evaluated. Most commenters suggested that we also provide special rules for reevaluating the claims of children whom we found disabled in this manner when the children became old enough for complete assessment.
A related idea, which arose from our discussions with the group of experts, suggested creating a "screen"—a list of specific conditions or specific functional limitations or other descriptors of obvious disability which, if met, would presumptively establish disability. As we explain below, our revision of the equivalence rules derives in part from this recommendation.
We have given careful consideration to the suggestions made by all those from whom we solicited comments and who offered us their thoughts and assistance. We have used as many of their ideas as we could within the framework of the Act, including the suggestion to provide rules that would give special consideration to the problems of evaluating disability in infants.
However, we have not included all of the suggestions from the experts, the advocacy community, the State agencies, our regional offices, and others. Throughout the process of drafting these rules, we have been mindful of the law, which states that children are disabled if they "suffer from" an impairment of "comparable severity" to that which would disable an adult; in our view, some suggestions addressed areas of social policy beyond what is permissible under the law.
The new rules relating to disability in infants are an example of a change we could make. Infants—especially infants less than 6 months old—can be very difficult to evaluate because they do not always exhibit clear medical or functional findings. Even when such infants do exhibit signs of limitation or deficits in functioning, it is often difficult to diagnose the specific medical cause of their problems and, hence, to predict the course of the impairment for the purpose of establishing whether the duration requirement will be met. Our prior policy required infants to prove that they were disabled, just as any claimant has to do. However, because of the unique problems in evaluating infants, we sometimes had to defer decisions in these cases; that is, hold them until the children were older and could be more easily evaluated.
Consistent with the recommendations and based on our operating experience with infant claims, we have established new rules for infants that are consistent with the law and are comparable to our longstanding policies for evaluating disability in adults. Our new rules on equivalence based on function in § 416.926a, and the recent publication of Listing 112.12 of the childhood mental listings, a listing specifically for infants from birth to age 12 months, provide a means by which infants may establish both that they have medically determinable impairments and that they are disabled based on their functional impairment. Our case experience has shown that infants who demonstrate the kinds of functional deficits that will be required to establish disability under new Listing 112.12, or to establish functional equivalence to that listing under the new rule in § 416.926a, are likely to continue to demonstrate that they are disabled when they are older.
For similar reasons, we have established new guidelines in § 416.924b(d) for considering age in children analogous to the consideration given to age in adults, so that infants under 12 months of age are considered in much the same way as adults who are closely approaching retirement age (i.e., age 60 and older). Just as the adult rules recognize advancing age as an increasingly important factor in determining disability, so that older adults may be found disabled with a lesser degree of functional limitations than younger adults, the new childhood rules provide that, the younger the child, the greater the impact of impairments is likely to be on the child's overall ability to develop and function. This rule, too, is based on sound principles of pediatrics and our operating experience in childhood cases.
With respect to records from schools, early intervention and similar programs, if a child has been assessed under another program that serves children with disabilities, we will make every reasonable effort to obtain any assessments and records of the child's functioning (e.g., an Individualized Education Plan) that may be useful and available from that program; for example, from Head Start, which serves a percentage of children with handicapping conditions; from the program for Children with Special Health Care Needs of the Maternal and Child Health program; from Part H early intervention programs for children from birth to age 2, inclusive, under the Education for All Handicapped Children Act (EHA); and from public school records required under Part B of the EHA for all school-age children with qualifying handicapping conditions. We will use these records and assessments to help us determine whether the child may be found disabled under title XVI.
The following is a summary of the major rules we are adopting in this regulation, as well as a detailed explanation of the content and intent of the rules. Following the summary of the major rules, we provide a brief summary of other changes we have made throughout Subpart I to ensure conformity throughout our SSI disability regulations.
It should be noted that these rules provide only new policies and clarifications of existing policies in response to the Zebley decision. They must be read in the context of our existing rules for determining disability. For instance, the evaluation of functioning includes consideration of all relevant evidence, including evidence of symptoms such as pain, which must be evaluated in accordance with our existing rules.
General Note on Style
The childhood disability regulations are written in the first and second persons, addressed from us to the children who claim to be disabled, instead of their parents or other appropriate adults. Even though addressing a regulation to infants and very young children can appear illogical, it is consistent with our regulatory terminology and style, and less cumbersome than the language that would be required to address these regulations to the adults who will ordinarily be responsible for assisting the children in their claims. However, should any member of the public believe that the terminology and style we have used in these regulations creates an ambiguity or might present a problem in the application of particular sections of these regulations, we would appreciate such concerns being brought to our attention.
Section 416.902 General definitions and terms for this subpart.
We have added definitions for the terms "adult" and "child" to this section. We derived the definition of a child as "a person who has not attained age 18" from § 1614(a)(3)(A) of the Act, which confines the childhood definition of disability to children "under the age of 18." This is the same definition we have always used in Subpart I of these regulations.
Because we provide a definition of the term "child" at the beginning of Subpart I, we believe that it is unnecessary to repeat the phrase "a child under age 18" throughout the remainder of the subpart, as we did in our prior regulations. We simply use the word "child."
We have not changed the meaning of the term "you" in this section. We believe that the current definition ("the person who has applied for benefits or is receiving benefits") is sufficient to convey the meaning of the term, which includes both the child for whom a claim has been filed and the person who has filed the claim for the child.
Section 416.924 How we determine disability for children.
We have completely revised this section. In paragraph (a), we restate the statutory definition of disability for children; that is, an impairment or combination of impairments that is of comparable severity to an impairment or combination of impairments that would disable an adult. We then provide successively more detailed definitions of "comparable severity."
The term "comparable severity" means that a child's physical or mental impairment(s) so limits his or her ability to function independently, appropriately, and effectively in an age-appropriate manner that the impairment(s) and its consequent limitations are comparable to those that would disable an adult. We then explain that this means that a child's impairment(s) must substantially reduce or, in the case of infants from birth to the attainment of age 1, be expected to substantially reduce his or her ability to grow, develop, or mature in an age-appropriate manner.
The three subparagraphs (a)(1) through (a)(3) describe different ways of applying this definition and are linked to different ages, using terms that we later define in § 416.924a(c). Thus, (a)(1) is applicable to the evaluation of infants and young children, and so is couched in terms of "developmental milestones"; (a)(2) is applicable to school-age children, and so is couched in terms of "activities of daily living"; and (a)(3) is applicable to older adolescents, and so is couched in terms of the acquisition of skills needed to assume adult roles. We do not intend these general distinctions to be rigidly applied. It is often appropriate to speak of developmental milestones in younger school-age children, and of activities of daily living in preschoolers; clearly, both activities of daily living and the acquisition of skills needed to assume roles reasonably expected of adults are meaningful and important to the evaluation of impairment in adolescents.
Paragraphs (b) through (f) introduce the new sequential evaluation process for children. As in the adult sequence, we consider all available relevant and material evidence in the case record at each step, and all impairments a child alleges, both singly and in combination. Likewise, each step of the sequence except the last provides two alternatives: either a determination or decision that the child is or is not disabled, in which case we do not continue in the sequence; or no determination or decision can be made at that point, in which case we proceed to the next step. At the last step of the sequence, a determination or decision must be made.
The sequence is as follows:
Is the child engaging in substantial gainful activity?
Inasmuch as the basic statutory definition of disability requires an inability to engage in substantial gainful activity, no individual—including a child—may be found disabled if he or she is actually working at this level. In paragraph (c) we provide that, as in adult claims, we will not consider a child's impairments, no matter how severe they are, if the child is engaging in substantial gainful activity. The same rules for determining whether an adult is engaging in substantial gainful activity, which provide for consideration of such things as subsidies, impairment- related work expenses, and other special considerations in determining the level of earnings, also apply to children.
If a child is engaging in substantial gainful activity, we will find the child not disabled. If not, we will proceed to the next step in the sequence.
Does the child have a "severe" impairment or combination of impairments?
If a child has an impairment or combination of impairments that causes more than a minimal limitation in his or her ability to function, we will find that the child has a severe impairment(s) and go on to the next step in the process. If we find that the child has no more than a minimal limitation in his or her ability to function, we will find the child not disabled.
We have added a "severe" step to the childhood sequence to make it more comparable to the sequence used for adults. Prior to Zebley, we used a relatively simple process to determine disability for children—whether the child was engaging in substantial gainful activity and, if not, whether his or her medically determinable impairment met or equaled in severity an impairment in the listings. Because this process was not comparable to the evaluation sequence used for adults, the Supreme Court found it lacking. Adding a "severe" step makes the evaluation processes more alike and, we believe, comports with the spirit of the Zebley decision to evaluate children comparably to adults. In adult cases, we assess residual functional capacity only after we have found that the person has a severe impairment(s). Likewise, we will first determine that a child has an impairment(s) that is severe before we do an individualized functional assessment.
We want to stress, however, that by including this policy in the new childhood rules, we do not intend to deny benefits to any child who may fit within the statutory definition of disability, only to provide a more efficient process. As the Supreme Court noted when it upheld the validity of the severity step in the adult sequence in the case of Bowen v. Yuckert:
The severity regulation increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account. Similarly, step three [the "meets/equals" step of the adult sequence] streamlines the decision process by identifying those claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational background. Bowen v. Yuckert, 482 U.S. 137, 153 (1987).
We believe that the same basic principles apply to childhood disability claims, and have therefore provided both a listings step which identifies the most severely disabled children and a step that identifies those children whose impairments are so slight that it is unlikely that they would be found disabled were we to proceed to the end of the sequence. We will not use the not severe step to disqualify any child who may fit within the statutory definition of disability without determining whether he or she has an impairment(s) of comparable severity to an impairment(s) that would disable an adult. Only those claimants with slight abnormalities that do not significantly affect the ability to function independently, appropriately, and effectively in an age-appropriate manner can be denied benefits without undertaking the analysis associated with an individualized functional assessment.
As the Supreme Court noted in Yuckert, both the listings step and the not severe step provide a method for determining the most obvious cases. In childhood claims, the considerations are the same at both steps. Just as we consider both medical and functional evidence at the listings step to determine whether a child's impairment(s) is so severe that a finding of disability can be made without the need for an individualized functional assessment, we will use the same considerations to decide whether the child's medically determinable impairment(s) is so minimal that it could not possibly be disabling.
If a child does not have a "severe" impairment or combination of impairments, we will find the child not disabled. If the child has a "severe" impairment, we will proceed to the next step of the sequence.
Does the child have a medically determinable impairment(s) that meets a listing in Appendix 1 of Subpart P of Part 404? If not, does the child have an impairment or combination of impairments that is equivalent in severity to any impairment in the Listing of Impairments, including an impairment or combination of impairments that is functionally equivalent to a listing?
In paragraph (e) we provide that, if a child has an impairment that meets a listing, or an impairment(s) that equals a listing, including the duration requirement, we will find the child disabled. If not, we will proceed to the final step in the sequence.
Does the child have an impairment or combination of impairments that so limits his or her physical or mental abilities to function independently, appropriately, and effectively in an age-appropriate manner that the limitations are comparable in severity to those which would disable an adult?
Paragraph (f) introduces the new term "individualized functional assessment" (IFA) to the regulations. We derived the term from language in the Zebley decision to provide a means for describing the assessment of functional limitations and abilities in children. (We provide detailed rules for doing IFAs in a new regulation, § 416.924a.) This paragraph provides that we will do an IFA and use it to decide whether the child has an impairment(s) of comparable severity to an impairment(s) that would disable an adult.
Paragraph (f)(1) provides that if a child has such an impairment or combination of impairments, and the impairment(s) meets the duration requirement, we will find the child disabled. Paragraph (f)(2) provides that, if the child does not have such an impairment or combination of impairments, or the child has such an impairment or combination of impairments but the impairment(s) does not meet the duration requirement, we will find the child not disabled. These steps are intended to provide criteria comparable to the steps in the adult sequence for adults who do not have impairments that meet or equal the listings but who may nevertheless be disabled.
We also provide additional detailed guidance throughout §§ 416.924a through 416.924d, regarding the role of age in the determination process and about age-appropriate skills, abilities, and behaviors. Because the evaluation of impairments in children, like adults, is necessarily complex, we provide detailed guidelines for implementing the final step using the individualized functional assessment in new regulation § 416.924e.
Section 416.924a Individualized functional assessment for children.
In this section, we describe generally the purpose of the individualized functional assessment for children and how we will do the assessment. We explain that the assessment is to be based on all relevant evidence in the case record from both medical and nonmedical sources. We reaffirm the important principle that evaluation of the evidence should result in an assessment of a child's functioning on a longitudinal basis—that is, over time.
In paragraph (b), we give examples of some of the types of evidence we consider in doing an individualized functional assessment. We explain that medical evidence consists of symptoms, signs, and laboratory findings. We also provide guidance, modeled on our discussions in 112.00D of the childhood mental listings about determining the validity and reliability of formal testing, that the results of standardized testing should be consistent with the remainder of the record, and that, ideally, any medical findings in the case record should be based on the medical source's own findings and consideration of information from the child's parents or other knowledgeable individuals. We also state that parents, relatives, teachers, school records, and the records of early intervention and other, similar programs, are important sources of information about a child's day-to-day functioning.
We recognize that there are definitions of disability for children in three other programs administered by the Federal government, specifically in the Developmental Disabilities Act and in Parts B and H of the Education of All Handicapped Children Act (EHA). We were unable to adopt any of these other definitions because none of them could serve the particular program needs generated by the Supreme Court's mandate that SSA do an individualized functional assessment for the population of children served by the SSI program. For the same reasons, we are unable to adopt the disability determinations of other programs. Indeed, we have a general policy, set forth in regulation section 416.904, that we must make a disability or blindness determination based on Social Security law. A decision by any nongovernmental agency or any other governmental agency about whether an individual is disabled or blind is based on its rules and is not our decision about whether the individual is disabled or blind. Therefore, a determination made by another agency that a child is disabled or blind is not binding on us. However, we recognize that the other definitions reinforce the concept that an individualized functional assessment is a procedure resulting in necessary descriptive information about a child, and that this information is vital to making decisions about the presence or absence of disability according to SSA's definition of disability.
The Developmental Disabilities Act definition is similar to the title XVI definition in that it defines a developmental disability as (1) severe, (2) attributable to a mental or physical impairment or a combination of both mental and physical impairments, and (3) functionally-based, resulting in substantial limitations in three of seven major life activities (e.g., self-care, mobility). However, the definition differs from the title XVI definition in that it requires (1) a chronic disability that is likely to continue indefinitely, that (2) is manifested before age 22, and that (3) reflects the person's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services which are of lifelong or extended duration and are individually planned and coordinated. In contrast, the title XVI definition requires only 12 months of disability with onset prior to age 18, and is not limited to conditions that require extensive, interdisciplinary treatment.
Similarly, the Parts B and H definitions in the EHA, although congruent in some ways with our proposed definition, are in other ways incongruent and, thus, unusable in our program. The definition of "handicapped children" under Part B of the EHA is a set of categorical definitions for school-age children, such as speech impaired, mentally retarded, and seriously emotionally disturbed. Although these categories cover the functionally-based impairments that we would anticipate in children applying for benefits under title XVI, there are other factors that make the Part B definition unusable: (1) Part B is an entitlement program, whereas title XVI is a means-tested program; while all school-age children with qualifying handicapping conditions are to be served under Part B, only those children who meet both the disability and income and resource tests under title XVI may become eligible for SSI benefits; and (2) the categorical definitions of Part B do not provide a usable framework for evaluating the ranges of functional limitations produced by either developmental or physiological disorders.
Finally, Part H of the EHA, which provides for early intervention services from birth through age two, inclusive, identifies "infants and toddlers with handicaps" in three separate groups: Children who are already experiencing developmental delays in one or more functional areas of development (e.g., cognitive, physical); children who have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; and, at a State's discretion, children who are at risk of having substantial developmental delays if early intervention services are not provided. Although the functional descriptors for the first Part H group may be congruent with the proposed definition for evaluation of children under title XVI, there is no standard as to how serious the delay must be in order for a child to qualify for services. Although the description of the second Part H group could apply to infants for whom applications are filed under title XVI, the last definition is not usable in the formulation of new disability rules for children under title XVI because it addresses the possibility of future disability for a child rather than the child's present condition, as is required by the title XVI statute for children.
In paragraph (c), we define the terms "age-appropriate activities," "developmental milestones," "activities of daily living," "developmental domains," and "functional domains." These are terms that are used by professionals who deal with children who have impairments and that we find in evidence from such individuals. We will use these terms to describe the components of individualized functional assessments.
In paragraph (c)(1), we explain that the term "age-appropriate activities" is a comprehensive term that refers to the normal activities of a child of any age; i.e., what a child is expected to be able to do given his or her age. It may refer to any discrete behavior of an infant or young child (e.g., the age at which an infant can turn its head from side-to-side, or an older child is able to utter two-word sentences) or to any global behavior of an older child or adolescent (e.g., reading). In the evidence of record, a child's activities may be described in terms of the achievement of "developmental milestones," "activities of daily living," or other such terminology. Information about a child's activities creates a profile of how the child is functioning, i.e., what a child does, and thus what he or she is able to do. This makes possible a comparison between the child's profile and the activities that are age-appropriate for that child.
In paragraph (c)(2), we explain that the term "developmental milestones" refers to a child's expected principal developmental achievements at particular points in time. Ordinarily, failures to achieve developmental milestones are the most important indicators of impaired functioning in children from birth until the attainment of age 6, although they may be used to evaluate older children, especially school-age children.
In paragraph (c)(3), we explain that the term "activities of daily living" refers to those activities of children that involve continuity of purpose and action, and goal or task orientation; that is, the practical implementation of skills mastered at earlier ages. Ordinarily, activities of daily living are the most important indicators of functional limitations in children aged 6 to 18, although they may be used to evaluate younger children, especially preschool-age children.
In paragraph (c)(4), we explain that the terms "developmental domains" and "functional domains" refer to broad areas of development or functioning that can be identified in infancy and traced throughout a child's growth and maturation into adulthood. The terms describe a child's major spheres of activity physically, cognitively, communicatively, and socially/emotionally. In these regulations, the term "developmental domains" is generally used when we discuss younger children, i.e., from birth to age 6; the term "functional domains" is generally used when we discuss older children and young adolescents, i.e., from age 6 to age 16. We also provide a cross-reference to § 416.924c, where we describe in detail the various domains as they pertain to the different age groups.
Section 416.924b Age as a factor of evaluation in childhood disability.
Paragraph (a) of this section explains how we consider age in childhood cases at each step of the childhood sequence of evaluation. Ordinarily, age is considered in determining whether a child has impairments that meet or equal a listing only when the listing we are using for comparison includes separate criteria for different ages. At the second and last steps of the sequence, however, age is integral to every determination, inasmuch as we must consider a child's abilities to perform age-appropriate activities. "Age" means chronological age, except in the cases of premature infants who are considered disabled under special rules for low birth weight, as we explain in a separate paragraph (c).
In paragraph (b), "Age categories," we define the three age categories we use as guidance for assessing age-appropriate activities: newborn and young infants (birth to attainment of age 1), older infants and toddlers (age 1 to attainment of age 3), and children (age 3 to attainment of age 18). We will not apply the age categories mechanically in borderline situations. The categories are the same as those in the childhood mental listings, and are based on the recognition that there are broad developmental and functional domains common to these age categories. We also describe four subdivisions of the age 3 to 18 category. As in the childhood mental listings, we recognize that impairment manifestations within the domains, and the evidence that will be needed to evaluate these manifestations, will vary for different age levels within the group. We have, therefore, provided the following more specific categories: preschool (age 3 to attainment of age 6), school-age (age 6 to attainment of age 12), young adolescent (age 12 to attainment of age 16), and older adolescent (age 16 to attainment of age 18).
In paragraph (c), "Evaluation of premature and low birth weight infants," our method of considering prematurity is the same as the standard generally followed in neonatology. For purposes of these rules, we define prematurity as birth at less than 37 weeks' gestation. Under our rules for functional equivalence in § 416.926a(d), infants who weigh less than 1200 grams at birth or who weigh at least 1200 grams but less than 2000 grams and are at least 4 weeks small for gestational age are found disabled. If an infant is not considered to have an impairment that is functionally equivalent to a listing in this manner under the new provisions in § 416.926a, we will evaluate the child using a corrected chronological age. The corrected chronological age is the age obtained by subtracting the number of weeks of prematurity from the child's chronological age. We will use the corrected chronological age until it is no longer a significant factor, which is generally about chronological age 2. We further explain that, when we evaluate growth impairments using standard neonatal growth charts, we will not compute a corrected age if the charts already include this computation.
In paragraph (d), "Impact of severe impairment(s) on younger children and older adolescents," we provide general guidance on considering the effects of age when determining the impact of impairments on development and functioning at the two age extremes of childhood. This guidance may also be used to infer the effects of age in the intervening years. We explain that our assessment of the impact of impairments on children's development and functioning will consider age in a manner similar to how we consider the impact of age in adults when we make determinations at the fifth step of the adult sequential evaluation process, except in the opposite way; that is, as a general, though not invariable, rule, age has the greatest significance the younger the child is and is a lesser factor as the child approaches adulthood. Inherent in this guidance is also the recognition, built in throughout the new rules, that the very youngest infants are difficult to test and exhibit a narrow range of medical findings and behaviors. As infants age, observations and testing become more informative and more precise.
Although adults of any age may be found disabled at the last step of the adult sequential evaluation process, we consider advancing age to have an increasingly adverse impact on an adult's ability to make an adjustment to other work, or to begin work for the first time. Thus, adults who are of advanced age (age 55 or older) or who are closely approaching retirement age (age 60 or older) may be found disabled with less severe impairments than younger adults. At the opposite end of the adult spectrum, our rules recognize that younger individuals (i.e., those age 18 to age 45) are better able to adapt to the workplace despite severe impairments.
Children, of course, are not easily compared with adults. Nevertheless, it is possible to make some generalizations about the effects of age in the youngest and the oldest children. In general, impairments that affect an infant's or young child's growth or development can have a more substantial impact on the child's overall functioning (the analog to an adult's ability to adapt to other work) than the same impairments would have on an older child. This is because children develop many of their skills sequentially, building upon skills they have already achieved. Furthermore, the acquisition of skills is not a simple straight-line process confined to single domains; there is a complex interdependence among the domains, so that interference in a child's acquisition of skills in one domain can have an effect upon the child's development in other domains as well. The younger the child, the more serious the total impact can be.
Conversely, by the age of adolescence, children have acquired and developed basic physical and mental functional abilities, skills and behaviors, such that impairments do not have the cumulative impact on functioning that they do in infants and young children. As children approach adulthood—that is, by about age 16—they have the same abilities to adapt as the youngest adults. They also exhibit functional abilities, skills, and behaviors that may be meaningfully compared with those of 18-year-olds.
We do not intend for this rule to be applied mechanically. We recognize that there will be cases in which impairments acquired by older children will have a greater impact than the same impairments in younger children. Our intent is to provide only general guidance, with the understanding that each case must be evaluated on its own merits.
Section 416.924c Functioning in children
In this section, we describe the domains of development and functioning and certain behaviors in which we evaluate children when we do individualized functional assessments. We also provide age-appropriate examples for each domain and behavior. To describe a child's mental or physical functioning, we employ as a frame of reference the terminology and definitions in the listing of childhood mental disorders in 112.00C of the Listing of Impairments in Appendix 1 to Subpart P of Part 404.
The descriptors of functioning in the childhood mental listings also include developmental and functional domains and behaviors. These domains can also be appropriate to the evaluation of physical impairments. However, because the childhood listings are designed for the evaluation of mental disorders, they do not include descriptors of the range of functions necessary to address all physical and mental impairments in all the age categories needed for the more refined assessment of functioning in the individualized functional assessment. We have, therefore, added to the descriptors of the listings and modified some of them in this rule.
In this rule, we have divided the cognitive/communicative domain of the childhood mental listings into two separate domains (that is, cognition and communication) for children in all of the age categories in order to recognize the specific role that speech and language have in a child's development or functioning. We have also included the domain of personal/behavioral functioning in the age group of older infants and toddlers (whereas the childhood mental listings do not) in order to recognize the development of self-help skills and other activities appropriate to this age group. In addition, we have added the domain of motor development or functioning to the age groups ranging from age 3 to the attainment of age 16 in order to recognize the physical development or functioning of children in these age groups.
In paragraph (a), we identify the developmental and functional domains and behaviors that we will use in the individualized functional assessment. We explain that when a child's impairment(s) affects a particular domain or behavior, we will consider the extent of the child's limitations as well as how well the child can do age-appropriate activities despite his or her limitations. We further explain that we will consider how a child's impairment(s) in one domain affects the child in other domains, and whether any help or intervention the child needs in order to do any particular activity is appropriate to the child's age.
In paragraphs (b) through (g), we describe the functioning of children according to the domains or behaviors appropriate to the several age groups. For each group from birth to the attainment of age 16, we discuss the general kinds of activities that characterize each developmental or functional domain or behavior.
When we consider the functioning of older adolescents, from age 16 to the attainment of age 18, descriptive information about their activities of daily living will tell us something about how they are affected by their impairment(s). For this age group, those activities at school which give evidence of the individual's ability to function in a job setting, as well as the activities in any actual employment that the older adolescent may have are primary indications of functional capacity.
Section 416.924d Other factors we will consider in the individualized functional assessment
This section discusses some of the other factors we will consider when we do individualized functional assessments. Its provisions are based on 12.00E, F, G, and H of the adult mental listings and 112.00E and F of the childhood mental listings, as well as input from the experts who assisted us.
Both the adult and childhood mental listings explain that, in mental disorders, superficial appearances or single examinations may or may not accurately reflect an individual's ability to function in normal settings. Individuals with chronic mental impairments may have their lives structured in such a way as to minimize stress and reduce their overt signs and symptoms, yet be unable to tolerate the stresses of normal activities without worsening their signs or symptoms. Some may appear less impaired on a single examination than the longitudinal evidence may show. Similarly, structured settings, hospitalization, residential placement, and other sheltered environments may have the same effect of apparent improvement in an individual's condition when, in fact, the individual may or may not be able to function independently as well as he or she would appear to be able to within the sheltered setting. Both the adult and the childhood mental listings emphasize the necessity for careful evaluation of all of the evidence relevant to the individual's ability to function under normal circumstances.
The introductory paragraphs to the adult and childhood mental listings also provide guidance for evaluating the effects of medication and other treatment. They point out that adverse side effects of medication can themselves contribute to functional impairment. Treatment may also minimize the most obvious effects of a mental impairment, yet not result in a significant improvement in the individual's ability to function. On the other hand, treatment may actually improve an individual's condition. Again, the principle stressed in both listings is the importance of considering all of the relevant evidence and of making careful judgments on a case-by-case basis.
We believe that these principles, which we have used in adjudicating mental impairment cases since the adult mental listings were published in 1985, are generally applicable to the evaluation of childhood disability cases, irrespective of whether they involve mental impairments. We have, therefore, included them in new § 416.924d, with guidance specific to children. Paragraph (a) summarizes the kinds of factors we will consider, and subsequent paragraphs provide more detail than is in either of the sets of mental listings.
We provide in paragraph (b) that chronic illness resulting in frequent hospitalizations or outpatient care can itself be the basis for a finding of disability. Paragraph (c) explains that medication may improve a child's symptoms, signs, or laboratory findings but may itself be the cause of additional limitations. Medication may also lessen obvious symptoms and signs without actually improving the child's ability to function independently, appropriately, or effectively in an age-appropriate manner.
Paragraph (d) emphasizes that nearly all children live in some sort of structured setting or environment, such as a family or an institution, and are subject to adult supervision or interaction in the home, at school, and elsewhere.
In paragraph (e), "Adaptations," we extend our policies for considering the effects of medication and other treatment to the consideration of assistive devices, appliances, and technology, and to special support services or intervention. We explain that some adaptations can result in improvement by restoring adequate functioning (for example, eyeglasses); that some adaptations can effect some improvement, but cannot be said to restore adequate functioning; and that some adaptations may themselves impose limitations.
In paragraph (f), we discuss a child's potential need for therapy from more than one kind of health care professional in order for the child to maintain or improve functional status. We explain that when we determine whether the child is disabled, we will consider the effect of such multidisciplinary therapy on a child's development and ability to engage in age-appropriate activities; i.e., the extent to which a frequent, ongoing regimen of therapy interferes with the child's age-appropriate functioning.
In paragraph (g), we explain that schools are important sources of information and we will try to get this information when we evaluate functioning. We also explain, however, that the fact that a child is able to attend school does not in itself indicate that the child is not disabled. Similarly, even though we will consider the fact that a child is or is not placed in a special education setting when we assess the child's abilities, we will consider each child's individual circumstances and not draw any conclusions based on the mere fact of placement or lack of placement; indeed, some schools do not offer special education classes. As with all the other factors in this regulation, appearances may or may not reflect a child's actual abilities or limitations. However, evidence showing that a child is prevented from attending school on a regular basis because of a medical condition(s) may be a reliable indicator of impairment severity.
Paragraph (h) corresponds to the provisions in 12.00H of the adult mental listings. It is a reminder that, notwithstanding the discussions in paragraphs (b) through (g) about the possible negative or masking effects of a child's treatment or intervention, it is also possible that treatment or intervention can control, reduce, or eliminate functional limitations resulting from an impairment(s).
Section 416.924e Guidelines for determining disability using the individualized functional assessment.
In this section, we provide a framework and examples for evaluating childhood disability claims at the last step of the childhood sequence. The regulation provides guidelines to assist the adjudicator in determining when a child's impairment(s) is of comparable severity to an impairment(s) that would disable an adult. The guidelines are intended to illustrate severity; they do not comprise all-inclusive, hard-and-fast rules for decisionmaking.
The guidelines in this section are based on the rules and principles already present in the new listings for mental disorders in childhood. The childhood mental listings provide rules for evaluating mental disorders in terms of domains of functioning and abnormalities of behavior, specified according to the different age categories. They also provide guidance for rating the severity of functional limitations at the listing level. Thus, children from birth to the attainment of age 3 are found to meet listing-level severity for mental disorders if they are functioning in one developmental area (e.g., motor development) at a level that is no more than one-half of their chronological age, or at no more than two-thirds of their chronological age in each of two developmental areas (e.g., cognitive/communicative and social function). Children from age 3 to the attainment of age 18 are found to meet listing-level severity if there is marked impairment of their functioning in two functional areas (e.g., social and personal/behavioral). The severity level, "marked," is defined in 112.00C of the listings in terms describing serious interference with the ability to function independently, appropriately, and effectively in an age- appropriate manner and on a sustained basis. "Marked" is said to fall between a moderate and an extreme level of impairment; the term also equates with a valid standardized test score that is two standard deviations below the norm.
Using the severity levels of the childhood mental disorder listings as a broad frame of reference, we have extrapolated for children of various ages those levels of impairment severity of both mental and physical impairments that would constitute "moderate" limitation of functioning; i.e., a severe impairment or combination of impairments that has more than a minimal effect on a child's ability to function in an age-appropriate manner, yet is less than "marked" in its effects. We then devised examples of impaired functioning at the different age levels that would not be at the listing level but that we would generally find disabling. The examples employ terminology and guidance both from the childhood mental listings and from §§ 416.924 through 416.924d, especially § 416.924c, to describe the impact of mental and physical impairments on children at the various ages.
Our approach to older adolescents, age 16 to the attainment of age 18, focuses on the critical transition that adolescents experience as they approach young adulthood. Children in this age category are closely approaching adulthood, and are much like 18- and 19-year-old adults in their physical and mental activities and capabilities. The notion of "comparable severity" to an adult, therefore, is more work-related in this age category than in the younger age categories. However, unlike the rules for evaluating adults, the guidance in this section provides that older adolescents must still be evaluated in terms of limitations and abilities in age-appropriate contexts.
Section 416.924e is organized as follows:
In paragraph (a), we provide a general introduction to the guidelines as a framework for deciding comparable severity. We emphasize to adjudicators that the guidelines are not rigid rules and that evaluation of disability in each child must be made on the basis of all relevant evidence in the child's case, using the principles in all of the childhood regulations.
In paragraph (b), we explain how we describe the functional impairments of children in the examples. We explain that the impairments of children from birth to the attainment of age 3 are generally described in terms of developmental delay, i.e., the fraction or percentage of the child's chronological age that represents his or her level of functioning in a mental or physical domain. Developmental information about these children is often available in the results of formal testing as well as the clinical reports and observations of the people who treat the children for their impairments.
The impairments of older children and young adolescents, from age 3 to the attainment of age 16, are generally described in terms of age-appropriate activities, functional abilities, or abnormal behaviors. Apart from testing of intelligence, aptitude, and academic achievement in school contexts, however, older children and young adolescents may undergo formal testing less often than children in the younger categories, who are in the early developmental years. Information about an older child or young adolescent's functioning may be obtained in descriptive terms concerning the child's activities of daily living. The functioning of older adolescents, age 16 to the attainment of age 18, is also more likely to be reported in descriptive terms, which tell us about the individual's physical and mental capacities as they are manifested in school, work, or worklike settings.
In paragraph (c), we provide guidance and examples for evaluating impairment severity for children from birth to the attainment of age 16.
In paragraph (d), we discuss older adolescents, age 16 to the attainment of age 18. We explain that these individuals, because they are closely approaching adulthood and have many of the same abilities, behaviors, and activities as young adults, can be evaluated in terms that are the same as, or similar to, those used for evaluating disability in adults. We then provide guidance for evaluating the mental or physical functioning of individuals in this age group, acknowledging that the guidelines, as for all the age groups, are not to be applied in a rigid or mechanical manner, and that each case must be evaluated on its own merits, using the guidance of all of the regulations addressing childhood disability.
Section 416.926a Equivalence for children.
We are changing our policy for deciding whether a child has an impairment or combination of impairments that is equivalent in severity to a listed impairment. The changes add a new method of determining equivalence for children that is based on an assessment of the child's functioning and a comparison of this assessment with the functional consequences of impairments in the listings.
Background. Our previous rules for determining equivalence in childhood claims were contained in regulation § 416.926, which is still to be used in adult claims, and in Social Security Ruling (SSR) 83-19, entitled "Titles II and XVI: Finding Disability on the Basis of Medical Considerations Alone—The Listing of Impairments and Medical Equivalence." We rescinded SSR 83-19 on April 5, 1990.
The rules in § 416.926 and in our previous interpretive instructions called for a comparison of the child's medical "symptoms, signs, and laboratory findings" of an individual's impairment(s) with the symptoms, signs, and laboratory findings of impairments described in the Listing of Impairments in Appendix 1 of Subpart P of Part 404, from which comparison a judgment as to medical equivalence was to be made. Equivalence could be found in only three circumstances:
If the child had a single listed impairment, but one or more of the specified medical findings in the listing were absent, medical equivalence could be found if the person had other, related medical findings that were equal or greater in clinical significance to the absent listed findings.
If the child had a single impairment that was not listed, medical equivalence could be found if the impairment demonstrated medical findings that could be compared in severity with the findings associated with the most closely analogous listed impairment.
If the child had a combination of impairments, no one of which by itself met or equaled a listing, medical equivalence could be found by comparing the combined sets of symptoms, signs, and laboratory findings of all of the child's impairments and determining that they were medically equivalent in medical severity to that listed set to which the combined sets could be most closely related.
Two of our former equivalence procedures for children have been the focus of some criticism. The first was that our former policies prohibited findings of equivalence when children lacked listed findings and had no other related medical findings of equivalent significance; furthermore, we did not consider symptoms, no matter how severe, to be acceptable substitutes for absent listed findings. The second was that we did not permit a finding of equivalence based on an assessment of the child's overall functioning.
Basis of our policy. The new rule is based on three primary sources:
The Supreme Court decision in Zebley, which addressed the use of our equivalence rules in adjudicating childhood cases in the absence of an individualized functional assessment;
An idea for a "screening" step for children that came out of our discussions with the experts who helped us in our formulation of the new childhood regulations; and
The Listing of Impairments itself, which contains examples of overall impairments of functioning, as exemplified by the paragraph "B" and "C" criteria of the adult mental listings and the paragraph "B" criteria of the childhood mental listings, and various other types of functional impairments.
The Supreme Court decision. In Zebley, the Supreme Court found that the childhood disability policies for establishing equivalence "exclude[ ] claimants who have unlisted impairments, or combinations of impairments, that do not fulfill all the criteria for any one listed impairment." The Court also found that our policies for establishing equivalence did not give childhood claimants an opportunity for an adequate assessment of their functional limitations. The Court noted that the listings excluded, among other things, "any claimant whose impairment would not prevent any and all persons from doing any kind of work, but which actually precludes the particular claimant from working, given its actual effects on him—such as pain, consequences of medications, and other symptoms that vary greatly with the individual...."
Moreover, after the Zebley case was remanded to the U.S. District Court for the Eastern District of Pennsylvania, the lower court issued a stipulated order on May 5, 1990, providing an interim standard for childhood cases in compliance with Zebley pending publication of these regulations. The interim standard required the consideration of functioning in determinations of equivalence. Specifically, the new standard ordered by the district court required that for childhood cases involving single as well as multiple impairments, "no one of which in itself meets or equals a listing, such impairments must be considered in terms of their combined functional effects on the individual child to determine whether they are equivalent in severity to any listed impairment." (Emphases in original.) Thus, this new rule is based on the interim standard, which the district court ordered to comply with the Zebley decision.
The screen. The screening step suggested by individual experts would have been the first step of a disability evaluation process for children that would have also included a meets or equals the listings step. It was to be a separate list of specific medical conditions or kinds of medical conditions, specific functional limitations, and other effects of impairments. All would quickly identify children who were obviously disabled and who could immediately be found disabled with minimal development of the evidence.
Impairments could be suitable for inclusion on the list for several reasons. Conditions could be included because they were known to be fatal within a specified period of time; because they resulted in obviously disabling functional limitations (such as inability to walk, profound impairment of major organ function, or very severe cognitive impairment); or, though not so obviously disabling, because they had a profound effect on the child's life (for example, because they resulted in frequent or prolonged hospitalizations); or, in the case of certain episodic conditions, because the episodes were so frequent, despite treatment, that there was a profound impact on the child's day-to-day life.
In some cases, such as the expectation of death within a given period of time or profound decrease of function of a major organ, the nature of the impairment was the element that was critical to the determination of disability, and was essentially a purely medical determination. In the categories that relied on profound functional impairment, such as inability to walk, the nature of the impairment was, in a sense, less important to the finding of disability; what ultimately determined that a person was disabled were the consequences of the impairment, the inability to walk itself, more so than the medical reason why the child was functionally impaired. Once it was established that the child had a medically determinable impairment or combination of impairments that caused the profound limitations, he or she had satisfied the legal requirement that disability be the result of a medically determinable impairment. The disability standard was satisfied by the functional limitation. The other impairments on the list could be viewed in a similar manner: the need for intensive treatment or frequent hospitalizations may ultimately be disabling because they interfere substantially with a child's normal functioning over time.
The Listing of Impairments. The listings contain impairments like those on the experts' proposed screen list. Several of the specific categories of medical disorders suggested by the experts for a tentative screen list, such as major organ transplants, in fact already include listed impairments. The listings also contain many impairments that are expected to result in death or that are disabling because of their functional consequences.
However, the listings are medically specific; that is, they link the disabling consequences of impairments to specific medical diagnoses or to specific body systems. They, therefore, could present an obstacle to comparing impairments that should be susceptible of comparison. For example, current listing 106.02D provides for a finding of disability for at least 1 year following kidney transplantation; the same finding could be made for other major organ transplants (e.g., heart, liver), or based on the fact that a person is on a list for such a transplant, even though the listings do not currently include these possibilities. We have removed this obstacle with these new rules and the adoption of the idea that the primary focus should be on the disabling consequences of an individual's conditions, as long as there is a direct, medically determinable cause for an individual's disability.
There are many specific functional impairments stated in the listings, such as deafness, inability to walk or marked impairment of ambulation (due to a variety of impairments, such as amputations, deformity, or other musculoskeletal disease; paralysis, and other neurological disease; and mental disorder), cognitive deficit, and specific diagnoses expected to result in death.
Moreover, the paragraph B and C criteria of the adult mental listings in 12.00 of Part A of the listings (which can be applied to children), and the paragraph B criteria of the new childhood mental listings in 112.00 of Part B of the listings illustrate that there is another, comprehensive way to look at the functional effects of impairments.
In several of the examples above, the impairments have impacts on specific functions or carry the expectation of death. The paragraph B and C criteria of the childhood and adult mental listings may be viewed as describing the impact of specific functional limitations on overall functioning in broad domains of activity, behavior, or ability.
For instance, the third paragraph B criterion for children age 3 to 18 describes marked impairment in personal/behavioral function as evidenced by marked restriction of age-appropriate activities of daily living; these activities are further described by more refined age breakdowns in 112.00C. Similarly, the first paragraph B criterion in the adult mental listings, activities of daily living, is defined in 12.00C1 in terms of adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a residence, caring appropriately for one's grooming and hygiene, using telephones and directories, and using a post office. It is self-evident that a person could have a physical impairment (or a combination of physical impairments or physical and mental impairments) that could cause the same limitations of the activities of daily living.
Indeed, both 12.00A and 112.00A provide that the paragraph B and C criteria—not the paragraph A criteria, which substantiate the existence of the particular mental disorders in the listings—set the standard for determining listing-level severity. Section 12.00A states: "The purpose of including the criteria in paragraphs B and C of the listings for mental disorders is to describe those functional limitations associated with mental disorders which are incompatible with the ability to work." Likewise, 112.00A provides: "The purpose of the paragraph B criteria is to describe impairment-related functional limitations which are applicable to children." In both sections, the functional restrictions must be the result of the mental disorder which is manifested by the criteria in paragraph A.
Hence, the mental listings demonstrate that it is not so much the cause of the functional impairment that establishes disability but the effect, the functional consequence itself, provided that the effect is the result of a medically determinable impairment or combination of impairments.
The new rule. The new regulation for children, § 416.926a, establishes several new principles in our rule for determining equivalence. The new rule provides a means by which children with any medically determinable impairments or any combination of impairments, can establish that they have impairments that are equivalent in severity to listed impairments. It carries the recognition that the listings do not include every possible medical condition or combination of conditions from which an individual might suffer by providing that the listings are a standard and a set of examples by which every possible condition or combination of conditions can be judged. It is predicated on the principle that the listings include examples of functioning that demonstrate a level of severity establishing inability to engage in gainful activity or that would, in a child, be comparable to this inability.
The rule provides that, if a child's impairment(s) does not medically equal any listing under our existing rules for equivalence, an assessment of his or her functional limitations will be made and compared with the disabling functional consequences of any impairment in any listing. The child's functional limitations need not be compared with an impairment that is medically "related" to his or her medical impairment(s); however, the functional limitations must arise from a medically determinable impairment or combination of impairments. The assessment of the individual's functional limitations will consider the impact of all of the individual's medically determinable impairments on his or her functioning and consider all relevant evidence, including the effects of the individual's symptoms, the side effects of medications, and all other relevant evidence we consider when we assess functioning.
This approach will readily identify disabled children like the screen proposed by the experts. However, the screen would have resulted in another circumscribed list of impairments in addition to the listings, albeit with many items that were not specific medical conditions, as in our listings. Although many of the experts thought that impairments on the screen list could have been evaluated more easily than impairments in the listings, we do not fully agree; for example, there is no distinction between the evidence we would have been required to gather using the screen list and the evidence that will be needed to apply the new equivalency rules in order to comply with the law.
For clarity, we are also providing a new paragraph (d) which gives examples of functional impairments that will equal the listings; several of the examples were derived from the screen list.
We have also retained our existing policies for determining medical equivalence based on medical findings, although we have revised the language of the new regulation to combine and clarify the rules. We believe that the Zebley decision does not preclude us from continuing to use our longstanding policies to permit determinations of equivalence. Rather, the court held that our policies did not go far enough.
Other changes. In addition to the foregoing revisions, new § 416.926a does not contain a paragraph that corresponds to § 416.926(b) of the adult rules, "Medical equivalence must be based on medical findings." Our intent is to remove any suggestion that the ultimate finding of equivalence must be based on objective medical evidence alone.
Because we did not copy the text of § 416.926(b) in the new regulation for children, the new regulation also does not contain a provision regarding the "medical opinion of one or more medical or psychological consultants designated by the Secretary," which has been the source of some confusion in the past. The sentence uses the terms we use to describe the physicians and psychologists who make determinations at our State agencies—medical and psychological consultants. It also refers to § 416.1016, the regulation that explains the qualifications of these individuals. Medical and psychological consultants are adjudicators at the initial and reconsidered determination levels; as such, they do not express opinions about equivalence, but make findings that become part of the determination. Our policy is that medical and psychological consultant findings on equivalence become opinion evidence only in cases that rise to the administrative law judge hearing level and to the Appeals Council. However, the sentence in § 416.926(b) does not make this policy clear; therefore, it could be misunderstood.
For similar reasons, we have not retained the language of § 416.926(c) in § 416.926a(c), inasmuch as it also refers to medical and psychological consultants, but fails to mention the medical experts (formerly called medical advisors) employed by the Office of Hearings and Appeals to function as physicians designated by the Secretary. For clarity, and because of our changes in policy, paragraph (c) of the new regulation for children is similar to our provisions in § 416.946, regarding our policies on the responsibility for making residual functional capacity determinations. Section 416.926a(c) details our longstanding policy on adjudicator responsibility for equivalence determinations at each level of application and appeal. At the initial and reconsideration levels, the medical or psychological consultant is responsible for the finding of equivalence. At the disability hearing reconsideration level, the disability hearing officer or the Associate Commissioner for Disability (successor to the Director of the Office of Disability Hearings), or his or her delegate, is responsible. At the administrative law judge hearing level and the Appeals Council level, the administrative law judge and the Appeals Council are responsible.
Section 416.994a How we will decide whether your disability continues or ends, disabled children.
Because the rules for finding a child disabled are no longer based on a listings-only test, we have also revised our policies for finding that a child's disability continues or has ended, which were also based on a listings-only test. We have, therefore, provided a new regulation, § 416.994a, for the evaluation of continuing disability in childhood claims that is no longer based on a listings-only test. We have removed the former provisions in § 416.994(c) without replacement; § 416.994 now applies only to the evaluation of continuing disability in adults.
We have generally adopted the provisions of the adult rules for determining continuing disability as a model for the new childhood rule, inasmuch as our new childhood disability process is now comparable to the adult process. However, we have simplified the language and organization of these rules as compared to the adult rules, although we have retained all of the language from the adult rules, and former childhood rules, that mirrors the language of the law. Except as explained below, any changes in language are not intended to change our policies. We have, of course, also taken into account the terminology and sequence of the new rules for evaluating childhood disability in §§ 416.924 through 416.924e.
An example of how we simplified the language of the regulation without changing its meaning is presented in the third step of the new childhood sequence. Under the law, we must show that an individual's impairment(s) has medically improved and that the medical improvement is related to the ability to work. (As we explain later in this preamble, we use the term "ability to work" because it is provided in the Act; however, we have defined it in these rules in terms appropriate to children.) If we cannot demonstrate improvement, or that improvement is related to the ability to work, we will ordinarily find that the person's disability continues. However, there are exceptions that permit us to find that an individual's disability has ceased or to continue evaluating the individual's case to determine if the individual is currently disabled.
In paragraph (b)(3) of the new regulation, we make a statement to this effect, explaining how the exceptions to medical improvement related to the ability to work impact on the outcome of the case:
(3) If there has been medical improvement, is it related to the ability to work? If there has been medical improvement in your impairment(s), we will determine whether your medical improvement is related to the ability to work, as defined for children in (d). If it is, we will proceed to the next step. If the medical improvement of your impairment(s) is not related to the ability to work, we will find that your disability continues, unless one of the exceptions to medical improvement described in (f) or (g) applies.
If one of the first group of exceptions to medical improvement applies, we will proceed to the next step.
If one of the second group of exceptions to medical improvement applies, we may find that your disability has ended.
Sections 416.994(b)(5)(iv), and (v) of the adult rules contain the same provisions, but in a different presentation:
If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1)(i) through (b)(1)(iv) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to work, see step (v). If medical improvement is related to your ability to do work, see step (vi).
If we found at step (iii) that there has been no medical improvement or if we found at step (iv) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (b)(3) and (b)(4) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, see step (vi). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions may be considered at any point in the process.
The statement that we may consider exceptions in the second group of exceptions at any point in our process is now in paragraph (g), the section that describes the second group of exceptions.
We have also updated the rules with respect to children to reflect changes that have taken place since we first published the medical improvement standard. For example, we deleted all references (from the sequence and elsewhere) to substantial gainful activity. Under § 1619 of the Act, we do not find that any eligible individual's disability has ended because he or she is engaging in substantial gainful activity. We no longer apply the concepts of "trial work periods" or the "reentitlement period" (i.e., the extended period of eligibility) in SSI claims. Instead, we determine whether the individual continues to have a "disabling impairment," as defined in § 416.911. If the individual is working despite having a disabling impairment, cash benefits and Medicaid benefits may continue. If the individual does not continue to have a disabling impairment, we will find that his or her disability has ended. In either event, the fact that the claimant is working is not pertinent.
We have also made a number of minor changes to the language we adopted from the adult rules and our former childhood rules. These changes are intended to have no effect on the meaning of the rules.
For example, the adult rules sometimes use interchangeably the terms "determination" and "decision," signifying the final adjudication of a case. In fact, § 416.1401 of our regulations provides that the terms have separate meanings. A "decision" means the decision made by an administrative law judge or the Appeals Council, whereas a "determination" means the initial determination or reconsidered determination made at a State agency, the Federal Disability Determination Services, or by a disability hearing officer. We have, therefore, clarified the language of the regulation by using the phrase "determination or decision" wherever appropriate.
We have also eliminated language that could be viewed as redundant. For instance, we define the term "medical improvement" only once in the new regulation. We also do not repeat provisions of the initial determination process described in §§ 416.924 through 416.924e, which we use when we must determine whether a child is currently disabled. Instead, we provide cross-references to the appropriate regulations.
We have also chosen not to provide lengthy examples like the ones in the adult rules, because we believe they no longer are needed. We put examples in the initial medical improvement regulations because, when we first published the rules in 1985, the concept of medical improvement was new and we wanted to be sure that the rules would be understood and applied consistently.
We explain other changes in the following summary of the new regulation.
In paragraph (a), we provide an overview of the regulation. We indicate that in our continuing disability review sequence for children, the first step is whether the child has an impairment or combination of impairments that meets or equals the severity of any current listing. If not, we determine whether there has been any medical improvement related to the ability to work and, if so, whether the child is currently disabled. We explain that we derived the phrase "related to the ability to work" from the law, but that we have defined the phrase in paragraph (d) in terms that are meaningful to children. Paragraph (a)(2), regarding evidence and the basis for our decision, contains the provisions that were formerly at § 416.994(c)(1)(iv). We retained this paragraph intact because it reflects § 1614(a)(4) of the Act.
In paragraph (b), we describe the sequence of evaluation for continuing disability reviews:
At the first step, we explain that we will first determine whether the child has an impairment that meets a current listing, or an impairment or combination of impairments that is equivalent in severity to a current listing. If the child does, we will find that he or she continues to be disabled.
If a child does not have an impairment that meets or equals a current listing, we continue in the sequence and determine whether there has been medical improvement in the child's impairment(s). We do not define the term "medical improvement" in this section, but instead provide a cross- reference to the definition, in paragraph (c).
If there has not been medical improvement, we generally will find that the child's disability continues, unless one of the exceptions applies. The section explains that any of the first group of exceptions will cause us to continue to the fourth step in the sequence, while exceptions in the second group may result in a finding that disability has ended. With regard to the provisions in the sequence addressing the second group of exceptions, we have made a minor technical correction. We changed the language in the description of the sequence from "will," in former § 416.994(c)(5)(iv) to "may" in this subparagraph and in subparagraph (b)(3) of the new regulation. The word "will" in the former provision was inconsistent with the later provisions that describe the second group of exceptions in former § 416.994(c)(4), which we retained in new § 416.994a(g); the provisions describing the second group of exceptions state that we "may" find disability to have ended if one of the second group of exceptions applies. Therefore, the change only corrects an inadvertent error and does not change our policies.
If there has been medical improvement, we continue in the sequence and determine whether the child's medical improvement is "related to the ability to work." Again, instead of defining the term "related to the ability to work" within this section, we provide a reference to the definition in paragraph (d).
If medical improvement is not related to the ability to work, we generally will find that the child's disability continues, unless one of the exceptions applies. The regulation explains that exceptions in the first group of exceptions will cause us to continue in the sequence, while exceptions in the second group may result in a finding that disability has ended.
If medical improvement is related to the ability to work, or one of the first group of exceptions applies, we go on to determine whether the child's impairment(s) is currently severe. If the child no longer has any severe impairment(s), as defined in § 416.924(d), we will find that disability has ended. If the child's impairment(s) is severe, we proceed to the last step of the continuing disability sequence.
In the last step of the continuing disability sequence, we do an individualized functional assessment based on all of the relevant evidence in the case record and determine whether the child is currently disabled under the rules and guidelines of §§ 416.924 through 416.924e. If the child is currently disabled, eligibility continues. If the child is not currently disabled, eligibility ends.
In paragraph (c), we define medical improvement. We retain our definition of the term medical improvement as any decrease in the medical severity of the impairment(s) which was present at the time of the most recent favorable decision. A decrease in medical severity means that there has been improvement in the symptoms, signs, or laboratory findings associated with the child's impairment(s).
In (c)(1) we explain what we mean by the most recent favorable decision.
In (c)(2), we define the terms "symptoms," "signs," and "laboratory findings" by cross-reference to § 416.928. However, we also clarify our intent by stating that, for children, our definitions of the terms "symptoms," "signs," and "laboratory findings" may include the child's physical and mental functioning.
As the new childhood rules make clear, the significance of functioning in children is often critical to an understanding of their medical conditions. Indeed, in the case of infants who meet or equal listing 112.12, for example, and in many other cases of young children, evidence of functioning can serve the dual purpose of establishing the existence of a medically determinable impairment and of establishing disabling severity. We believe, as did the experts, that in such cases, evidence of a child's functioning can satisfy the definition of signs as "anatomical, physiological, or psychological abnormalities which can be observed apart from [symptoms]" and can be shown by medically acceptable clinical diagnostic techniques or by medically demonstrable phenomena which indicate specific abnormalities of behavior, affect, thought, memory, orientation and contact with reality. Since our definition of "laboratory findings" includes standardized tests, such as psychological tests, this definition can also include a child's functioning, as measured by an appropriate instrument.
In paragraph (c)(3), we retain the provision from the prior regulation that we will not consider temporary remissions in impairments that are subject to such remissions to be evidence of medical improvement.
In paragraph (d), we define the term "medical improvement related to the ability to work" in terms appropriate to children. Under the law (if no exception applies), we can find an individual to be no longer eligible for disability benefits only if there has been medical improvement in the individual's impairment(s) "other than medical improvement which is not related to the individual's ability to work." Instead of employing the Act's double negative, we rephrased the quoted requirement in positive terms of medical improvement that is related to the ability to work; that is, when there has been an increase in the child's ability to function independently, appropriately, and effectively in an age-appropriate manner. The section then explains that medical improvement is not related to the ability to work when there has been no such increase.
In (d)(1) and (d)(2), we provide detailed rules for determining whether medical improvement is related to the ability to work. In (d)(1)(i), we provide that, if a child was found to have an impairment or combination of impairments that met or equaled a current listing at the time of the most recent favorable decision and no longer has such an impairment or combination of impairments, we will find that medical improvement is related to the ability to work. Subparagraph (d)(1)(ii) is a provision for children for whom our most recent favorable decision was based on a finding that the child met or equaled a listing that is no longer in the listings or that has been revised. We explain that in such cases we will determine whether the child continues to meet or equal the prior listing. If so, we will find that disability continues; if not, we will find that there is medical improvement related to the ability to work and proceed to assess current disability.
In (d)(2), we provide that, if our most recent favorable decision was based on an individualized functional assessment, we will do a new individualized functional assessment based on the impairments that were present at the time of the most recent favorable decision; however, we will consider functions appropriate to the child's current age. We will use this assessment to determine whether there has been an increase in the child's ability to function in an age-appropriate manner comparing our current assessment with the assessment we made at the time of the most recent favorable determination or decision.
In subparagraph (d)(2)(ii), we have adopted provisions from the adult rules on prior residual functional capacity assessments. We provide that we will not substitute current judgment for our prior judgment by reassessing a child's functioning for the time covered by the most recent favorable determination or decision. However, there will be cases in which an individualized functional assessment formed the basis for the most recent favorable decision, yet is missing from the case file. In such cases, we will reconstruct the assessment. As in the adult rules, we will do this by assuming the maximum functional abilities consistent with a decision of allowance or continuance at the time of the most recent favorable decision; this is the most advantageous finding for the claimant when we determine whether there has been medical improvement related to the ability to work.
A determination that there has been medical improvement related to a child's ability to work does not mean that we will find the child no longer disabled. We must also show that the child is not currently disabled using rules governing the last step of the childhood sequential evaluation process for initial claims in §§ 416.924 through 416.924e.
Paragraph (e), "Prior file cannot be located," is the same provision that was in the former childhood rule at § 416.994(c)(2)(iii), revised to conform to the new rules for determining disability in § 416.924. The same provision also appears in the adult regulation. We have also corrected a misprint; the reference to "§ 416.988" should be to "§ 416.1488."
In paragraph (f), "First group of exceptions to medical improvement," we have revised the language to conform to the new childhood rules. Our revisions are modeled after the language in the adult rules, using appropriate terminology for children as necessary.
In paragraphs (f)(1), (f)(2), and (f)(3), the first three exceptions in the first group, we made minor revisions to the prior language to tailor it specifically for children. As explained above, we did not provide case examples to correspond to the adult examples.
We have updated paragraph (f)(3)(i)(B), the explanation (formerly in § 416.994(c)(3)(ii)(B)(2)) of the second procedure by which we will inform the public that there are new and improved diagnostic techniques we will consider when we apply the exception, by deleting text from the prior section that is no longer applicable. The former provision stated that we would publish in the Notices section of the FEDERAL REGISTER a cumulative list since 1970 of the new or improved diagnostic techniques or evaluations we would consider, as well as the month and year in which they became available. It also stated that we would not process any cases under the exception until we had published such a cumulative list.
We published the first cumulative list in the FEDERAL REGISTER in May, 1986 (51 FR 19413, May 29, 1986), and a second notice updating the list in May, 1990 (55 FR 19357, May 9, 1990). We have therefore revised the paragraph to delete the statements that indicate that we have not yet published any such lists.
In (f)(4), we made minor language revisions for clarity and we did not include case examples. Otherwise, the provisions are identical to the adult rules.
For reasons we have already explained, we did not include a fifth exception for children who engage in substantial gainful activity.
The language in paragraph (g), the second group of exceptions to medical improvement, is in the main unchanged. As we explained above in our example of how we simplified the language of paragraph (b), we have also moved the statement that the second group of exceptions may be applied at any point in the review process from the section detailing the sequence of evaluation into this paragraph.
In paragraph (g)(2), the second exception of the second group of exceptions, we have corrected a typographical error that was in the prior rules; we are making the same correction to the adult rules in § 416.994(b)(4)(ii). The reference to the good cause provisions of "Section 416.911" should refer to "Section 416.1411." We are also correcting an oversight in the prior childhood provision and the corresponding adult provision. We have rules for establishing good cause for failure to attend a consultative examination, and a discussion of the consequences of such failure, in § 416.918. We have, therefore, added a reference to this regulation in the childhood rule. These are longstanding policies; the revisions here are corrections, not changes.
In paragraph (h), "The month in which we will find you no longer disabled," we have deleted all references to findings of ending dates of disability following the completion of a trial work period or the reentitlement period, inasmuch as neither applies to individuals eligible for SSI. Therefore, we did not include a provision in the childhood rule to correspond to the fourth provision in the adult rules at § 416.994(b)(6)(i)(D), also in our prior childhood rules, which addresses ending disability following the completion of a trial work period. Likewise, we omitted the entire paragraph now in the adult rules at § 416.994(b)(6)(ii), also formerly in the childhood rules, regarding the setting of an ending date for disability in the month before the termination month; this is a reference to the rules on the reentitlement period. Because we no longer have a paragraph corresponding to § 416.994(b)(6)(ii), there was no need to distinguish two separate sections under paragraph (g) in the childhood rule; therefore, we have omitted the opening statement that the list of dates on which disability may end is only for purposes of § 416.1331, the rule which establishes that benefits can be paid for the month in which disability ends and the two following months.
In (h)(3), the provision regarding full-time work, we have added the phrase "or begin" after the word "to" in the clause "you return to work...." The provision (without the additional language) appeared in our former childhood rules; we retained it here because there might be rare instances in which it would apply to adolescents. For conformity, we also use the language now in the adult rule in § 416.994(b)(6)(i)(C), which is slightly different from the language of the childhood rule in former § 416.994(c)(6)(i)(C); there was no substantive difference in their meanings.
In paragraph (i), "Before we stop your benefits," we adopted the language of the adult rules.
The new childhood regulation does not contain a provision that would correspond to the provisions of former § 416.994(d), "Persons who were found disabled under a State plan," now redesignated as § 416.994(c) of the adult rules. The references to childhood claims in the former rules under § 416.994 were in error; in fact, there were no children who were found disabled under State plans and, therefore, no children were converted to SSI under the special rules for State conversions.
Explanation of Changes to Other Regulations
Section 416.901 Scope of subpart
We revised paragraph (d) to indicate that it now applies only to adults. We added a new paragraph (e) that refers to the regulations for children, and redesignated all of the subsequent paragraphs.
Section 416.905 Basic definition of disability for adults
We revised the section heading of this regulation to indicate that it provides the definition of disability for adults. We also added a cross-reference to § 416.920, the regulation that provides the adult sequential evaluation process, at the end of the last sentence.
Section 416.906 Basic definition of disability for children
We revised the section heading of this regulation to use language in conformance with the section heading of § 416.905 and to delete the words "under 18," since we now provide a definition for the term "child" in § 416.901. We also added a sentence to refer to the new regulations for evaluating childhood disability.
Section 416.913 Medical evidence of your impairment
We have added a new paragraph (a)(6) to this section to indicate that acceptable medical evidence includes the report of an interdisciplinary team that contains the evaluation and signature of an acceptable medical source. The language of the new provision is based on language in the third paragraph of 112.00D of the new listings for mental disorders in children which we published on December 12, 1990 (see 55 Fed. Reg. 51232). New paragraph 416.913(a)(6) is applicable to multidisciplinary evidence for any physical or mental impairments.
We have also added a new paragraph (c)(3) to this section, to define medical assessments in terms meaningful to childhood cases. We have also expanded the list of other sources of information in paragraph (e) to include more sources, such as parents and schools, that are relevant to children.
Section 416.916 If you fail to submit medical and other evidence
We have revised the first sentence of § 416.916 to incorporate our current policies that the person acting on a child's behalf must also cooperate with us by providing evidence. We also clarify that cooperation means that the person must furnish evidence or help us to obtain or identify available medical or other evidence.
Section 416.920 Evaluation of disability of adults, in general; Section 416.921 What we mean by a not severe impairment(s) in an adult
We revised the heading of § 416.920, to indicate that the sequential evaluation process in this regulation is only applicable to adults. We also revised the heading of § 416.921 to indicate that the definition of a "not severe impairment" in this regulation is only to be applied to adults.
Section 416.923 Multiple impairments
We are adding a cross-reference to § 416.924 at the end of § 416.923 to indicate that the regulation is applicable to both adults and children.
Section 416.926 Medical equivalence for adults.
We revised the heading of this section to indicate that it is to be used only in cases of adults.
Section 416.994 How we will decide whether your disability continues or ends, disabled adults
We have made several nonsubstantive revisions to conform this regulation to the new childhood rules in § 416.994a. We changed the heading of this section to indicate that it is applicable only to adults. Because we removed the former childhood paragraph (c), we have redesignated paragraph (d) as paragraph (c), and have made appropriate changes to the cross-references within that paragraph; in addition, we have removed the references to paragraph (a), which were erroneously in the paragraph. We have also revised paragraph (a) for the same reasons. As in the new childhood regulation, we are also changing the reference to "Section 416.911" in the second sentence of § 416.994(b)(4)(ii) to "Section 416.1411" to correct a typographical error.