Superseded

SSR 99-3p (Superseded 11/10/2003 by SSR 03-3p

EFFECTIVE/PUBLICATION DATE: 6/22/99

POLICY INTERPRETATION RULING
TITLE XVI: EVALUATION OF DISABILITY AND BLINDNESS IN INITIAL CLAIMS
FOR INDIVIDUALS AGE 65 OR OLDER

PURPOSE:

To clarify SSA's standards and procedures for the adjudication of title XVI of the Social Security Act (the Act) disability and blindness claims for individuals age 65 or older. In particular, this Ruling explains that:

In general, the regulations and procedures for determining disability for adults under title XVI of the Act who are under age 65 are used when determining whether an individual age 65 or older is disabled.

Adjudicators are required to consider any impairment(s) the individual has, including those that are often found in older individuals.

If an individual age 72 or older has a medically determinable impairment, that impairment will be considered to be "severe."

If the individual's impairment(s) prevents the performance of his or her past relevant work (PRW), or, if the individual does not have PRW, the adjudicator must consider two special medical-vocational profiles showing an inability to make an adjustment to other work before referring to appendix 2 to subpart P of 20 CFR Part 404.

Generally, adjudicators should use the rules for individuals age 60-64 when determining whether an individual age 65 or older can perform other work.

Beginning at age 65, age is considered to be a factor that imposes greater limits on vocational adaptability for individuals who retain the functional capacity to perform medium work. If illiteracy in English or the inability to communicate in English further limits such an individual's vocational scope, a finding of "disabled" is warranted unless the individual's PRW was skilled or semiskilled and provided the individual with transferable skills.

Some individuals age 65 or older may not understand, or be able to comply with, our requests to submit evidence or attend a consultative examination (CE). Therefore, adjudicators must make special efforts in situations in which it appears that an individual age 65 or older may not be cooperating.

CITATIONS:

Section 5301 of Public Law (P.L.) 105-33, sections 402 and 431 of P.L. 104-193, as amended, sections 1614(a), 1619(b) and 1621(f)(1) of the Act, as amended; 20 CFR Part 404, subpart P, appendices 1 and 2, and 20 CFR Part 416, sections 416.901-416.923, 416.925, 416.926, 416.927-416.986, 416.988-416.994, and 416.995-416.998.

BACKGROUND:

On August 5, 1997, P.L. 105-33, the Balanced Budget Act of 1997, amended P.L. 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, as amended, and added additional alien eligibility criteria. Under the new criteria, "qualified" aliens who were lawfully residing in the United States on August 22, 1996, and who are disabled or blind as defined in section 1614(a) of the Act are eligible for benefits under title XVI provided all other eligibility requirements are met. Individuals can establish eligibility based on disability or blindness at any age, even on or after attaining age 65.

In addition to qualified aliens, determinations of disability under title XVI also may be needed for other individuals age 65 or older to determine:

  • State supplements in some States (section 1616 of the Act);
  • Whether the work incentive provisions of section 1619(b) of the Act are applicable; or
  • Appropriate deeming of income and resources (section 1621(f)(1) of the Act; 20 CFR 416.1160, 416.1161, 416.1166a, and 416.1204).

For adults (individuals age 18 or older) section 1614(a)(3)(A) of the Act defines disability as the inability to do 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 12 months.

The rules we use to determine if this definition is met are set forth in our regulations in subpart I of 20 CFR Part 416, and appendices 1 and 2 to subpart P of 20 CFR Part 404. Although these rules were, in general, developed for individuals who have not attained age 65, they do recognize that certain characteristics would result in greater vocational adversity as individuals age.

RULING:

Evaluation Issues

In general, the regulations and procedures for determining disability for adults under title XVI of the Act who are under age 65 are used when determining whether an individual age 65 or older is disabled, except as provided later in this Ruling.

To determine if an adult is disabled as defined in the Act, adjudicators generally use the 5-step sequential evaluation process set out in 20 CFR 416.920.

Step 1--Is the Individual Working?

If the individual is working, and the work is substantial gainful activity (see 20 CFR 416.971-416.976), we will find that the individual is not disabled regardless of his or her medical condition, age, education, or work experience.

Step 2--Does the Individual Have a Severe Impairment?

At step 2 of the sequential evaluation process, a determination is made about whether an individual has a medically determinable impairment and whether the individual's medically determinable impairment--or combination of impairments--is "severe." An individual who does not have an impairment or combination of impairments that is "severe" will be found not disabled.

An impairment(s) is considered "severe" if it significantly limits an individual's physical or mental abilities to do basic work activities. An impairment(s) that is "not severe" must be a slight abnormality, or a combination of slight abnormalities, that has no more than a minimal effect on the ability to do basic work activities. It is incorrect to consider an impairment to be "not severe" because the impairment's effects are "normal" for a person of that age.

As in any claim, adjudicators must consider signs, symptoms, and laboratory findings when determining whether an individual age 65 or older has a medically determinable impairment (see 20 CFR 416.908 and 416.928). The likelihood of the occurrence of some impairments increases with advancing age; e.g., osteoporosis, osteoarthritis, certain cancers, adult-onset diabetes mellitus, impairments of memory, hypertension, and impairments of vision or hearing. Adjudicators are required to consider any impairment(s) the individual has, including impairments like the ones listed above that are often found in older individuals. It is incorrect to disregard any of an individual's impairments because they are "normal" for the person's age.

When an individual has more than one medically determinable impairment and each impairment by itself is "not severe," adjudicators must still assess the impact of the combination of those impairments on the individual's ability to function. A claim may be denied at step 2 only if the evidence shows that the individual's impairments, when considered in combination, are "not severe"; i.e., do not have more than a minimal effect on the individual's physical or mental ability(ies) to perform basic work activities.

Special Rule for Individuals Age 72 or Older

Generally, we use step 2 of the sequential evaluation process as a "screen" to deny individuals with impairments that would have no more than a minimal effect on their ability to work even if we considered their age, education, and work experience. However, with advancing age, it is increasingly unlikely that individuals with medically determinable impairments will be found to have minimal limitations in their ability to do basic work activities. By age 72, separate consideration of whether an individual's medically determinable impairment(s) is "severe" does not serve the useful screening purpose that it does for individuals who have not attained age 72. Therefore, if an individual age 72 or older has a medically determinable impairment(s), that impairment(s) will be considered to be "severe," and evaluation must proceed to the next step of the sequential evaluation process.

Step 3--Does the Individual Have an Impairment(s) That Meets or Equals an Impairment Listed in Appendix 1?

When an individual has a severe impairment(s) that meets or medically equals the requirements for one of the impairments in the Listing of Impairments in appendix 1 to subpart P of 20 CFR Part 404, and meets the duration requirement, the individual is disabled.

When Disability Cannot Be Found at Step 3--Assessing
Residual Functional Capacity

When the individual does not have an impairment(s) that meets or equals the requirements for a listed impairment, the adjudicator is required to assess the individual's residual functional capacity (RFC). The RFC assessment is an adjudicator's finding about the ability of an individual to perform both physical and mental work-related activities despite his or her impairment(s). The assessment considers all of the individual's medically determinable impairments, including those that are "not severe," and all limitations or restrictions caused by symptoms, such as pain, that are related to the medically determinable impairment(s). The assessment is based upon consideration of all relevant evidence in the case record, including medical evidence and relevant nonmedical evidence, such as observations of lay witnesses of an individual's apparent symptomatology, or an individual's own statement of what he or she is able or unable to do.

When assessing RFC in an initial claim, an adjudicator should not find that an individual has limitations or restrictions beyond those caused by his or her medically determinable impairment(s). Limitations or restrictions due to factors such as age, height, or whether the individual has ever engaged in certain activities in his or her PRW (e.g., lifting heavy weights) are, per se, not considered in assessing RFC. (See SSR 96-8p, "Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims.")

Step 4--Does the Individual Have an Impairment(s) That Prevents Him or Her from Performing Past Relevant Work?

The RFC assessment discussed above is first used at step 4 of the sequential evaluation process to determine whether the individual is capable of doing PRW. The rules and procedures we use to make this determination for individuals under age 65 are also applicable to individuals age 65 or older. This includes consideration of whether the individual can perform his or her PRW as he or she actually performed it or as it is generally performed in the national economy. If the individual's PRW was performed in a foreign economy, we will generally only consider whether the individual can perform his or her PRW as he or she described it. However, if the work the individual did in a foreign economy also exists in the U.S. economy, we will consider whether he or she can perform the work as it is generally performed in the national economy. If the individual can perform his or her PRW, he or she will be found not disabled.

(See SSR 82-40, "Titles II and XVI: The Vocational Relevance of the Past Work Performed in a Foreign Country.")

Step 5--Can the Individual Do Other Work?

The last step of the sequential evaluation process requires us to determine whether an individual can do other work considering his or her RFC, age, education and work experience.

Special Medical-Vocational Profiles Showing an Inability to Make an Adjustment to Other Work

If the individual's impairment(s) does preclude the performance of PRW, or if the individual does not have PRW, two special medical-vocational profiles must be considered before referring to appendix 2 to subpart P of 20 CFR Part 404. The special profiles are discussed in SSR 82-63, "Titles II and XVI: Medical-Vocational Profiles Showing an Inability to Make an Adjustment to Other Work."

The "arduous unskilled physical labor" profile applies when an individual:

  • Is not working;
  • Has a history of 35 years or more of arduous unskilled physical labor[1];
  • Can no longer perform this past arduous work because of a severe impairment(s); and
  • Has no more than a marginal education (generally 6th grade or less).

The "no work experience" profile applies when an individual:

  • Has a severe impairment(s);
  • Has no past relevant work;
  • Is age 55 or older; and
  • Has no more than a limited education (generally, 11th grade or less).

If either of these profiles applies, a finding of "disabled" must be made. This finding is made without considering the criteria in appendix 2 to subpart P of 20 CFR Part 404.

Applying the Criteria in Appendix 2 to Subpart P of 20 CFR Part 404

If the special medical-vocational profiles are not applicable, we use the rules in appendix 2 to subpart P of 20 CFR Part 404 to determine whether the individual has the ability to do other work. The highest age category used in appendix 2 is age 60-64, "closely approaching retirement age." However, we have longstanding internal procedures that direct our adjudicators to use the rules for ages 60-64 when making determinations for individuals age 65 or older at step 5.

Under those rules, individuals age 65 or older who are limited to "sedentary" or "light" work will be found disabled unless their PRW provided them with transferable skills or they are at least a high school graduate and their education provides for direct entry into skilled work. As set out in sections 201.00(f) and 202.00(f) of appendix 2, to find transferability of skills for individuals age 65 or older who are limited to sedentary or light work, there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.[2]

Individuals age 65 or older who can perform the full range of "medium" work are found disabled when they have no more than a marginal education and their PRW was unskilled or they had no PRW, or when they have no more than a limited education and no PRW. In addition, some individuals who do not meet these criteria may also be found disabled as set forth in the next section.

Special Rule for Determining Disability for Individuals Age 65 or Older Who Can Perform Medium Work But Who Are Illiterate in English or Unable to Communicate in English

Section 203.00 of appendix 2 contains rules used to make disability determinations for individuals who retain the functional capacity to perform medium work. The capacity to perform medium work also includes the capacity to perform light and sedentary work, and represents the capability to perform a substantial number of jobs. For individuals under age 65 considered under this section, this capability represents a substantial vocational scope even for individuals who are illiterate in English or unable to communicate in English.

However, beginning at age 65, the individual's age is considered to be a factor that imposes greater limits on vocational adaptability. If illiteracy in English or the inability to communicate in English further limits such an individual, a finding of "disabled" is warranted unless the individual's PRW was skilled or semiskilled and provided the individual with transferable skills. For a finding of transferability of skills to medium work for an individual age 65 or older, there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.

Duration

As indicated earlier, the likelihood of the occurrence of some impairments, such as osteoporosis, osteoarthritis, certain cancers, adult-onset diabetes mellitus, impairments of memory, hypertension, and impairments of vision or hearing, increases with advancing age. Moreover, such impairments are more likely to be chronic than acute. Therefore, adjudicators must be especially careful before concluding that an impairment in an individual age 65 or older will not meet the 12-month duration requirement.

Development Issues

Developing Allegations of Impairment(s)

When obtaining the medical history of an individual age 65 or older, it is important to be alert to and address allegations of impairments that are commonly associated with the aging process, such as osteoporosis, arthritis, loss of vision, hearing loss, and memory loss. Allegations may be raised in response to specific questions about the individual's impairment(s); e.g., on Form SSA-3368-BK. However, adjudicators must also be alert to allegations raised in other evidence in the file. For example, questionnaires about activities of daily living may contain statements like "I have difficulty walking or climbing stairs because my legs hurt," "I can't clean my apartment because my back hurts," or "I don't read much anymore because I don't see well." These statements constitute allegations of impairment(s). Therefore, adjudicators must:

  • Review the case file thoroughly to identify all allegations or other indications of impairment.
  • Be aware that the medical evidence or third party statements can raise additional allegations.
  • When contacting an individual age 65 or older, be alert to statements indicating the presence of an impairment(s) commonly associated with the aging process.
  • Consider all signs or symptoms indicative of an impairment(s), including those impairments caused by degenerative changes associated with the aging process.

Purchasing Medical Evidence

Our regulations, at 20 CFR 416.912(f) and 416.917, indicate that we will purchase CEs when the individual's medical sources cannot or will not give us sufficient medical evidence about the individual's impairment for us to determine if he or she is disabled. Section 416.919f further provides that we will purchase only the specific examinations and tests that we need to make a determination or decision. Due to the wide range of allegations contained in cases of individuals age 65 or older, evidence addressing more than one body system may need to be purchased. In these situations, it is usually appropriate to purchase general medical examinations rather than examinations targeted at particular body systems. This will ensure that all allegations of impairment are evaluated, and will reduce the burden on the individual. For example, if the individual alleges back and knee pain, shortness of breath on exertion, and numbness and weakness in his or her arm, a general medical examination would usually be preferable to separate orthopedic, neurologic, and respiratory or cardiac examinations.

Failure to Cooperate

Individuals filing for benefits based on disability or blindness have certain responsibilities for furnishing us with, or helping us obtain, needed evidence. Our regulations at 20 CFR 416.912(c), 416.916, and 416.918 describe these responsibilities. However, due to factors such as possible language barriers or limited education, some individuals age 65 or older may not understand, or be able to comply with, our requests to submit evidence or attend a CE.

If it appears that an individual age 65 or older is not cooperating, adjudicators must take the following additional actions when the individual does not have an appointed representative, or when the appointed representative has asked us to deal directly with the individual.

If an individual age 65 or older has not supplied evidence or taken an action we requested and still need, the adjudicator must:

  • Contact the individual to determine why he or she has not complied with our request. If it appears that the individual needs personal assistance, including interpreter assistance, to complete forms, request field office assistance.
  • Contact a third party (i.e., someone other than the individual's representative) if one has been identified, about assisting the individual at the same time the adjudicator contacts the individual.

If an individual age 65 or older did not attend a CE, the adjudicator must:

  • Contact the individual to determine why he or she did not attend the CE.
  • Make at least two attempts at different times on different days to contact the individual by telephone. (A busy signal does not constitute an attempt.)
  • Send the claimant a call-in letter if telephone contact is not possible or successful.
  • Contact a third party, if one has been identified, about assisting the claimant at the same time contact is attempted with the claimant.
  • When contact is made with the individual or the third party, explain that the CE is for evaluation purposes only, and that no treatment will be required.
  • Reschedule the CE if the individual had a good reason for not attending the prior CE (e.g., he or she had transportation problems or was out of the country at the time of the CE) and indicates a willingness to attend a rescheduled CE.

Non-English-Speaking or Limited-English-Proficiency Individuals

For all the development issues discussed above, adjudicators must remember that we are responsible for obtaining the services of a qualified interpreter if the individual requests or needs one. This includes providing an interpreter at a CE if the CE provider is not sufficiently fluent in the individual's language.

EFFECTIVE DATE:

This Ruling is effective on the date of its publication in the Federal Register.

CROSS-REFERENCES:

SSR 82-40, "Titles II and XVI: The Vocational Relevance of the Past Work Performed in a Foreign Country"; SSR 82-61, "Titles II and XVI: Past Relevant Work -- The Particular Job or the Occupation as Generally Performed"; SSR 82-62, "Titles II and XVI: A Disability Claimant's Capacity To Do Past Relevant Work, In General"; SSR 82-63, "Titles II and XVI: Medical-Vocational Profiles Showing an Inability To Make an Adjustment to Other Work"; SSR 85-28, "Titles II and XVI: Medical Impairments That Are Not Severe"; SSR 96-3p, "Titles II and XVI: Considering Allegations of Pain and Other Symptoms in Determining Whether a Medically Determinable Impairment Is Severe"; SSR 96-8p, "Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims"; AR 95-1(6), "Preslar v. Secretary of Health and Human Services, 14 F.3d 1107 (6th Cir. 1994) -- Definition of Highly Marketable Skills for Individuals Close to Retirement Age -- Titles II and XVI of the Social Security Act"; AR 99-2(8), "Kerns v. Apfel, 160 F.3d 464 (8th Cir. 1998) -- Definition of Highly Marketable Skills for Individuals Close to Retirement Age--Titles II and XVI of the Social Security Act"; AR 99-3(5), "McQueen v. Apfel -- Definition of Highly Marketable Skills for Individuals Close to Retirement Age -- Titles II and XVI of the Social Security Act"; and Program Operations Manual System, sections DI 22505.015, DI 22510.018, DI 22510.019, DI 23515.010, DI 23515.025, DI 25010.001, SI 00502.142, and GN 00203.001.

[1] Training, or isolated, brief, or remote periods of semiskilled or skilled work will not preclude a finding of arduous if such training or experience did not result in skills that enable the individual to do other work.

[2] However, for individuals residing in the Fifth, Sixth, and Eighth Federal judicial circuits, see Acquiescence Rulings AR 95-1(6), AR 99-2(8), and AR 99-3(5).

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