federal register - U.S. Government Printing Office

Federal Register / Vol. 62, No. 28 / Tuesday, February 11, 1997 / Rules and Regulations6411this subpart, but the meanings of thesewords in the phrase marked and severefunctional limitations is not the same astheir meanings when used separately.The meaning of the phrase marked andsevere functional limitations derivesdirectly from the legislative history ofPublic Law 104–193, quoted in the‘‘Summary of the Childhood DisabilityProvisions of Public Law 104–193,’’above. Since the meanings of theseparate terms marked and severepredate enactment of Public Law 104–193, they are touched on in this sectionto minimize any confusion from thenew law’s use of the same words, usedin combination with a differentmeaning. Finally, we defineCommissioner to mean theCommissioner of Social Security.Section 416.906 Basic Definition ofDisability for ChildrenWe have revised this section toreplace the prior ‘‘comparable severity’’standard with the new ‘‘marked andsevere functional limitations’’ standardfor childhood disability. We also addedthe statutory provision that anindividual under age 18 who files a newclaim and who is engaging insubstantial gainful activity will not beconsidered disabled. For clarity, weadded language specifying ourlongstanding policy that we considerthe effects of combined impairments inassessing whether a child is disabled.Section 416.911 Definition ofDisabling ImpairmentUnder the Act and our regulations,individuals who file new applicationsfor benefits based on disability and whoare engaging in substantial gainfulactivity are found not disabled.However, after a disabled individual iseligible for SSI, the Act and ourregulations permit some individuals totry to work without losing eligibility. Arecipient of SSI benefits who begins orreturns to work despite a ‘‘disablingimpairment’’ may be found eligible forspecial SSI cash benefits and for specialSSI eligibility status under §§ 416.260 ff.of our regulations.Section 416.911 provides thedefinition of the term ‘‘disablingimpairment’’ for such cases. We haveredesignated all but the last sentence ofprior § 416.911, which was applicableonly to adults, as paragraph (a)(1), andadded a paragraph (b)(1) to define‘‘disabling impairment’’ for children.Final paragraph (a)(2) takes account ofthe new rules in § 416.987 for thedisability redeterminations required bysection 212(b) of Public Law 104–193.Consistent with this section of the newlaw, the rules explain that, for disabilityredetermination cases of individualswho are age 18, and who were eligiblefor SSI benefits based on a disability forthe month before the month in whichthey attained age 18, a disablingimpairment is one that meets the criteriafor initial eligibility set forth in§§ 416.920(c) through (f) for adults. Thisis because the new law specifies thatthese disability redeterminations shallapply the eligibility criteria for newapplicants, and not the medicalimprovement review standardprovisions of section 1614(a)(4) of theAct applicable to CDRs. However, step1 of the sequential evaluation processfor new claims (the substantial gainfulactivity step) will not apply. Forindividuals affected by this provisionwho have a disabling impairment, andwho are working, we will apply therules in §§ 416.260 ff. We redesignatedas paragraph (c) the last sentence ofprior § 416.911, which provides thatearnings are not considered in deemingwhether a recipient has a disablingimpairment(s), because it applies toboth adults and children.Section 416.919n Informing theExamining Physician or Psychologist ofExamination Scheduling, ReportContent, and Signature RequirementsWe have amended § 416.919n(c)(6),which concerns the opinion of aconsulting physician or psychologistabout an individual’s ability to functiondespite his or her impairment(s), to adda discussion specific to childhood casesto make it clear that the provisionapplies to both adults and children.Section 416.924 How We DetermineDisability for ChildrenWe have extensively revised thissection, which provides the sequentialevaluation process for childhooddisability claims, to conform to theprovisions of Public law 104–193.We have deleted former paragraphs(a) and (f). Prior paragraph (a) definedcomparable severity and prior paragraph(f) discussed the IFA. We redesignatedprior paragraphs (b) through (e) as (a)through (d), and revised them asexplained below. We added a newparagraph (e) to explain what we will dowhen children become adults (i.e., theyattain age 18) after they file theirapplications for SSI benefits based ondisability but before we make adetermination or decision. Weredesignated prior paragraph (g) asparagraph (f), but it is otherwiseunchanged. Also, we added a newparagraph (g).In final § 416.924, the new sequentialevaluation process for determininginitial eligibility is:1. Whether the child is engaging insubstantial gainful activity;2. If not, whether the child has amedically determinable impairment orcombination of impairments that issevere; and3. If the child’s impairment(s) issevere, whether it meets or medicallyequals the requirements of a listing, orwhether the functional limitationscaused by the impairment(s) are thesame as the disabling functionallimitations of any listing and, therefore,functionally equivalent to such listing.As in the prior sequential evaluationprocess, we will follow the steps inorder. If a determination or decision canbe made at a step, we will stop; if not,we will proceed to the next step.New § 416.924(a), ‘‘Steps inevaluating disability,’’ retains basicguidance from prior § 416.924(b) that isunaffected by the new law. It continuesto provide that we will consider allrelevant evidence in a child’s caserecord, that we will consider allimpairments for which we haveevidence and their combined effects,and that we will evaluate anylimitations in a child’s functioning thatresult from a child’s symptoms,including pain. We have removed thereference to the prior IFA step and mademinor revisions to reflect the newstatutory standard and the newsequence of evaluation. Becausemeeting or equaling the severity of alisting is now the last step of thesequence, we have emphasized theimportance of the step by specifyingthat a child will be disabled if his or herimpairment(s) meets, medically equals,or functionally equals the severity ofany listing. We also changed referencesto the ‘‘ability to function’’ to‘‘functioning’’ in order to conform to thenew statutory definition of disability,which is now expressed in terms of‘‘marked and severe functionallimitations.’’Final paragraphs (b) through (d)provide more detail on the sequentialevaluation steps outlined in paragraph(a). Final paragraph (b), ‘‘If you areworking,’’ is the same as prior paragraph(c). A child who files a new application,and who is engaging in substantialgainful activity, will be found notdisabled as required by the statute. Finalparagraph (c), ‘‘You must have a severeimpairment(s),’’ is substantively thesame as prior paragraph (d), but revisedto reflect the new law. At step two of thesequential process, we will continue toevaluate whether a child has a ‘‘severe’’impairment or combination ofimpairments. We now provide that if achild has a slight abnormality or acombination of slight abnormalities that