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6408 Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and RegulationsSOCIAL SECURITY ADMINISTRATION20 CFR Parts 404 and 416[Regulations Nos. 4 and 16]RIN 0960-AE57Supplemental Security Income;Determining Disability for a ChildUnder Age 18; Interim Final Rules WithRequest for CommentsAGENCY: Social Security Administration.ACTION: Interim final rules with requestfor comments.SUMMARY: These rules implement thechildhood disability provisions ofsections 211 and 212 of Public Law104–193, the Personal Responsibilityand Work Opportunity ReconciliationAct of 1996 that provide a newdefinition of disability for children (i.e.,individuals under age 18), mandatechanges to the evaluation process forchildren’s disability claims andcontinuing disability reviews (CDRs),and require that disabilityredeterminations be performed for 18-year-olds eligible as children in themonth before they attain age 18.DATES: These rules are effectivebeginning April 14, 1997. To be surethat your comments are considered, wemust receive them no later than April14, 1997.ADDRESSES: Comments should besubmitted in writing to theCommissioner of Social Security, P.O.Box 1585, Baltimore, MD 21235; sent bytelefax to (410) 966–2830; sent by E-mailto ‘‘regulations@ssa.gov’’; or deliveredto the Division of Regulations andRulings, Social Security Administration,3–B–1 Operations Building, 6401Security Boulevard, Baltimore, MD21235, between 8:00 a.m. and 4:30 p.m.on regular business days. Commentsmay be inspected during these samehours by making arrangements with thecontact person shown below.FOR FURTHER INFORMATION CONTACT:Daniel T. Bridgewater, Legal Assistant,Division of Regulations and Rulings,Social Security Administration, 6401Security Boulevard, Baltimore, MD21235, (410) 965–3298 for informationabout these rules. For information oneligibility or claiming benefits, call ournational toll-free number, 1–800–772–1213.SUPPLEMENTARY INFORMATION:HistoryPrior to the enactment of Public Law104–193 on August 22, 1996, the Actdefined childhood disability in relationto the definition of disability for adults.The definition of disability for adults insection 1614(a)(3) of the Act is aninability ‘‘to engage in any substantialgainful activity by reason of anymedically determinable physical ormental impairment which can beexpected to result in death or which haslasted or can be expected to last for acontinuous period of not less thantwelve months.’’ Prior to August 22,1996, the definition of disability forchildren (i.e., individuals under the ageof 18) was contained in a parentheticalstatement at the end of section1614(a)(3)(A): A child was considereddisabled for purposes of eligibility forSSI if he or she ‘‘* * * suffer[ed] fromany medically determinable physical ormental impairment of comparableseverity’’ to an impairment(s) thatwould make an adult disabled.Social Security Administration (SSA)regulations at 20 CFR 416.920 set out afive-step sequential evaluation processfor determining the disability of adults:1. Whether the adult is engaging insubstantial gainful activity;2. Whether, in the absence ofsubstantial gainful activity, theindividual’s medically determinableimpairment or combination ofimpairments is ‘‘severe;’’3. Whether, if the impairment(s) issevere, it meets or medically equals theseverity of a listing in the Listing ofImpairments in appendix 1 of subpart Pof 20 CFR part 404 (the Listing);4. Whether, if the impairment(s) issevere but does not meet or equal theseverity of a listing, the individualretains the capacity to do his or her pastrelevant work, considering his or herresidual functional capacity; and5. Whether, if past relevant work isprecluded, the individual retains thecapacity to do any other kind of workwhich exists in significant numbers inthe national economy, considering theindividual’s residual functional capacityand the vocational factors of age,education and work experience.Until 1990, if a child was notengaging in substantial gainful activityand his or her impairment(s) met thestatutory duration requirement, a child’sclaim for SSI benefits based ondisability was decided based onwhether or not the child’s impairment(s)met or equaled the severity of a listing,as in the third step of the process foradults. We did not provide additionalevaluation steps for children as we didfor adults because it was inappropriateto apply the vocational rules we usedfor adults whose impairments do notmeet or equal the severity of a listedimpairment to childhood claims.Sullivan v. ZebleyOn February 20, 1990, in the case ofSullivan v. Zebley, 493 U.S. 521 (1990),the Supreme Court decided that the‘‘listings-only’’ approach SSA had usedto deny claims for SSI benefits based onchildhood disability did not carry outthe ‘‘comparable severity’’ standard intitle XVI of the Act. This was becausethe listings did not provide for anassessment of a child’s overallfunctional impairment. The Court heldthat, under the comparable severitystandard, children claiming SSI benefitsbased on disability were entitled to anassessment as part of the disabilitydetermination process, comparable toadults who have impairments that donot meet or equal the severity of alisting and who receive such anindividualized assessment. The Courtfound that, whereas adults who are notfound to be disabled under the Listingstill have the opportunity to show thatthey are disabled at the last step of thesequential evaluation process, nosimilar opportunity existed for children.The Court concluded that, although thevocational analysis we use in claimsfiled by adults is inapplicable to claimsfor SSI benefits based on disability filedby children, this does not mean that afunctional analysis could not be appliedto children’s claims.The Court also addressed variousaspects of the way in which weemployed the Listing in evaluatingchildhood disability claims. The Courtstated that the policies for establishingwhether a child’s impairment(s) wasequivalent in severity to a listedimpairment ‘‘exclude[d] claimants whohave unlisted impairments orcombinations of impairments that donot fulfill all the criteria for any onelisted impairment.’’ The Court was alsoconcerned that all claimants be given anopportunity for an assessment of theirfunctional limitations, including theeffects of their symptoms, inestablishing medical equivalence.The Childhood Rules That ResultedFrom ZebleyAs a result of the Zebley decision, werevised the rules we used to evaluatechildhood disability claims under SSI.The rules were first published in theFederal Register on February 11, 1991(56 FR 5534) as a final rule with arequest for comments. Followingconsideration of public comments, wepublished a final rule in the FederalRegister on September 9, 1993 (58 FR47532).In § 416.924(a) of the prior rules, wedefined the term ‘‘comparable severity’’in terms of the impact of an impairment