[Federal Register: October 22, 2003 (Volume 68, Number 204)]
[Rules and Regulations]
[Page 60290-60294]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22oc03-6]
=======================================================================
-----------------------------------------------------------------------
RAILROAD RETIREMENT BOARD
20 CFR Part 220
RIN 3220-AA99
Determining Disability
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Railroad Retirement Board (Board) updates its regulations
to reflect a change in how it evaluates pain and other subjective
symptoms when determining if an individual is disabled from all regular
employment to reflect recent changes in law.
DATES: This rule is effective on October 22, 2003.
ADDRESSES: Secretary to the Board, Railroad Retirement Board, 844 North
Rush Street, Chicago, Illinois 60611-2092.
FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, Assistant
General Counsel, (312) 751-4945, TDD (312) 751-4701.
SUPPLEMENTARY INFORMATION: Courts have consistently held that
disability for all regular employment under section 2(a)(1)(v) of the
Railroad Retirement Act (45 U.S.C. 231a(a)(1)(v)) is synonymous with
the inability to perform any substantial gainful activity under section
223(d) of the Social Security Act (42 U.S.C. 423(d)). Therefore, the
Board has generally patterned its regulations dealing with the
adjudication of claims for disability based upon the inability to
engage in all regular employment (20 CFR Part 220) on regulations
promulgated by the Social Security Administration (20 CFR Part 404,
Subpart P). On November 14, 1991, the Social Security Administration
published its final rule (56 FR 57928) expanding its regulations
pertaining to how it evaluates symptoms, including pain, in its
disability adjudication. The Board has generally followed these
regulations in adjudication of claims for disability based on inability
to engage in regular employment and now amends its regulations to
conform thereto.
Section 220.100(f) explains how a symptom, such as pain, is
considered when it appears as a criterion in the Listing of Impairments
found in Appendix 1 of this part. Appendix 1 contains medical criteria
for finding a person disabled on medical factors alone without
consideration of the person's age, education, and work experience.
Section 220.112(a) is amended by eliminating the reference to
remarried widow(ers) and surviving divorced spouses. Section 5103 of
Public Law 101-508 revised the standard of disability for these groups
of beneficiaries to require the consideration of other than medical
factors, such as age, education, and experience, in determining
disability for all substantial activity for these groups. Prior to the
amendment, only medical factors were required to be used in a
disability determination for these beneficiaries.
Section 220.114 is revised to parallel the Social Security
regulation dealing with the same subject. See Sec. 404.1529 of this
chapter. Section 220.114 provides guidance on the evaluation of
symptoms, including pain. The regulation conforms to the Board's
current procedures and applicable court decisions on the evaluation of
symptoms, especially pain, in making disability determinations.
Section 220.114(a) is a general statement of how symptoms, such as
pain, are considered in determining disability. It explains that the
Board will consider a claimant's symptoms along with other objective
medical evidence and other evidence relating to a claimant's condition.
Section 220.114(b) explains that the Board will not find that pain
will affect an individual's ability to do basic work activities unless
the claimant first establishes that he or she has a medically
determinable physical or mental impairment, supported by medical signs
and laboratory findings, to which the allegation of pain can reasonably
be related.
Section 220.114(c) provides that when a symptom, such as pain, is
established, the Board must then evaluate the intensity and persistence
of the symptom with respect to how it limits the claimant's capacity
for work. In making this evaluation the Board considers all available
evidence, including the claimant's medical history, statements from the
claimant and his treating physician, and statements from others who
have knowledge of the claimant's situation.
Section 220.114(d) explains how symptoms, such as pain, are
evaluated in the sequential evaluation process required in disability
adjudication.
Section 220.120 is revised to explain that in determining the
claimant's residual functional capacity the Board considers the
claimant's symptoms, such as pain, and that such pain or other symptoms
may limit the claimant's residual functional capacity beyond what can
be determined from anatomical or physiological abnormalities taken
alone. Consistent with the revision of Sec. 220.120, a new Sec.
220.135 explains that a claimant's symptoms, such as pain, may cause
both exertional and nonexertional limitations. This new section defines
those terms. Only when the claimant's impairments and related symptoms
impose solely exertional restrictions do the rules set forth in
Appendix 2 of this part direct a conclusion.
Appendix 2 contains the medical-vocational guidelines or ``grids''.
The grids direct a finding of disabled or not disabled based on
specified limitations combined with the individual's age, education and
work experience. The amendment to Sec. 200.00 of Appendix 2 of this
part conforms the section to the revised Sec. 220.120.
Collection of Information Requirements
The amendments to this part do not impose information collection
and recordkeeping requirements. Consequently, the final rule need not
be reviewed by the Office of Management and Budget under the authority
of the Paperwork Reduction Act of 1995.
Regulatory Impact Statement
Prior to publication of this final rule, the Board submitted the
rule to the Office of Management and Budget for review pursuant to
Executive Order 12866. Executive Order 12866 directs agencies to assess
all costs and benefits of available regulatory alternatives and when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). A
regulatory impact analysis (RIA) must be prepared for rules that
constitute significant regulatory action, including rules that have an
economic effect of $100 million or more annually. This rule is not a
major rule in terms of the aggregate costs involved. Specifically, we
have determined that this rule is not a major rule with economically
significant effects because it would not result in increases in total
expenditures of $100 million or more per year.
[[Page 60291]]
The amendments made by this rule are not significant. The
amendments to sections of part 220 update the Board's regulations to
reflect a change in the manner in which pain and other subjective
symptoms are evaluated when determining if an individual is disabled
from all regular employment. The amendments also clarify the use of
Appendices 1 and 2, and make other amendments to reflect recent changes
in law.
Both the Regulatory Flexibility Act and the Unfunded Mandates Act
of 1995 define ``agency'' by referencing the definition of ``agency''
contained in 5 U.S.C. 551(l). Section 551(1)(E) excludes from the term
``agency'' an agency that is composed of representatives of the parties
or of representatives of organizations of the parties to the disputes
determined by them. The Railroad Retirement Board falls within this
exclusion (45 U.S.C. 231f(a)) and is therefore exempt from the
Regulatory Flexibility Act and the Unfunded Mandates Act.
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct compliance costs on State and local government, preempts State
law, or otherwise has Federalism implications. We have reviewed this
final rule under the threshold criteria of Executive Order 13132 and
have determined that it would not have a substantial direct effect on
the rights, roles, and responsibilities of States or local governments.
The proposed rule was published in the Federal Register on
September 11, 1995 (60 FR 47122). Comments were solicited and one was
received. That commenter suggested that the Board could strengthen its
disability program by establishing a mechanism for reevaluating an
individual's entitlement to disability annuities being paid by the
Board. The Board has an active program of reevaluating disability
annuitants by its continuing disability review program. The guidelines
for that program are set forth in Sec. 220.186 of this part.
The Board has modified the proposed rule by removing the suggested
addition of a paragraph (g) to Sec. 220.110 and a paragraph (d) to
Sec. 220.134. That proposed text has been removed as it was
inconsistent with regulations governing the cross-referencing by one
agency to the regulations of another agency. See 1 CFR 21.21(c).
List of Subjects in 20 CFR Part 220
Railroad retirement.
0
For the reasons set out in the preamble, the Railroad Retirement Board
amends part 220 of title 20 of the Code of Federal Regulations as
follows:
PART 220--DETERMINING DISABILITY
0
1. The authority citation for part 220 continues to read as follows:
Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.
0
2. Section 220.110 is amended by adding a new paragraph (f) to read as
follows:
Sec. 220.110 Listing of Impairments in Appendix 1 of this part.
* * * * *
(f) Symptoms as criteria of listed impairment(s). Some listed
impairment(s) include symptoms usually associated with those
impairment(s) as criteria. Generally, when a symptom is one of the
criteria in a listed impairment, it is only necessary that the symptom
be present in combination with the other criteria. It is not necessary,
unless the listing specifically states otherwise, to provide
information about the intensity, persistence or limiting effects of the
symptom as long as all other findings required by the specific listing
are present.
0
3. The penultimate sentence of Sec. 220.112(a) is revised to read as
follows:
Sec. 220.112 Conclusions by physicians concerning the claimant's
disability.
(a) * * * The decision as to whether a claimant is disabled may
involve more than medical considerations and the Board may have to
consider such factors as age, education and past work experience. * * *
0
4. Section 220.114 is revised to read as follows:
Sec. 220.114 Evaluation of symptoms, including pain.
(a) General. In determining whether the claimant is disabled, the
Board considers all of the claimant's symptoms, including pain, and the
extent to which the claimant's symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence. By
objective medical evidence, the Board means medical signs and
laboratory findings as defined in Sec. Sec. 220.113(b) and (c) of this
part. By other evidence, the Board means the kinds of evidence
described in Sec. Sec. 220.45 and 220.46 of this part. These include
statements or reports from the claimant, the claimant's treating or
examining physician or psychologist, and others about the claimant's
medical history, diagnosis, prescribed treatment, daily activities,
efforts to work, and any other evidence showing how the claimant's
impairment(s) and any related symptoms affect the claimant's ability to
work. The Board will consider all of the claimant's statements about
his or her symptoms, such as pain, and any description by the claimant,
the claimant's physician, or psychologist, or other persons about how
the symptoms affect the claimant's activities of daily living and
ability to work. However, statements alone about the claimant's pain or
other symptoms will not establish that the claimant is disabled; there
must be medical signs and laboratory findings which show that the
claimant has a medical impairment(s) which could reasonably be expected
to produce the pain or other symptoms alleged and which, when
considered with all of the other evidence (including statements about
the intensity and persistence of the claimant's pain or other symptoms
which may reasonably be accepted as consistent with the medical signs
and laboratory findings), would lead to a conclusion that the claimant
is disabled. In evaluating the intensity and persistence of the
claimant's symptoms, including pain, the Board will consider all of the
available evidence, including the claimant's medical history, the
medical signs and laboratory findings and statements about how the
claimant's symptoms affect the claimant. (Section 220.112(b) of this
part explains how the Board considers opinions of the claimant's
treating source and other medical opinions on the existence and
severity of the claimant's symptoms, such as pain.) The Board will then
determine the extent to which the claimant's alleged functional
limitations and restrictions due to pain or other symptoms can
reasonably be accepted as consistent with the medical signs and
laboratory findings and other evidence to decide how the claimant's
symptoms affect the claimant's ability to work.
(b) Need for medically determinable impairment that could
reasonably be expected to produce symptoms, such as pain. The
claimant's symptoms, such as pain, fatigue, shortness of breath,
weakness, or nervousness, will not be found to affect the claimant's
ability to do basic work activities unless medical signs or laboratory
findings show that a medically determinable impairment(s) is present.
Medical signs and laboratory findings, established by medically
acceptable clinical or laboratory diagnostic techniques, must show the
existence of a medical impairment(s) which results from anatomical,
physiological, or psychological
[[Page 60292]]
abnormalities and which could reasonably be expected to produce the
pain or other symptoms alleged. The finding that the claimant's
impairment(s) could reasonably be expected to produce the claimant's
pain or other symptoms does not involve a determination as to the
intensity, persistence, or functionally limiting effects of the
claimant's symptoms. The Board will develop evidence regarding the
possibility of a medically determinable mental impairment when the
Board has information to suggest that such an impairment exists, and
the claimant alleges pain or other symptoms but the medical signs and
laboratory findings do not substantiate any physical impairment(s)
capable of producing the pain or other symptoms.
(c) Evaluating the intensity and persistence of symptoms, such as
pain, and determining the extent to which the claimant's symptoms limit
his or her capacity for work.--(1) General. When the medical signs or
laboratory findings show that the claimant has a medically determinable
impairment(s) that could reasonably be expected to produce the
claimant's symptoms, such as pain, the Board must then evaluate the
intensity and persistence of the claimant's symptoms so that it can
determine how the claimant's symptoms limit the claimant's capacity for
work. In evaluating the intensity and persistence of the claimant's
symptoms, the Board considers all of the available evidence, including
the claimant's medical history, the medical signs and laboratory
findings, and statements from the claimant, the claimant's treating or
examining physician or psychologist, or other persons about how the
claimant's symptoms affect the claimant. The Board also considers the
medical opinions of the claimant's treating source and other medical
opinions as explained in Sec. 220.112 of this part. Paragraphs (c)(2)
through (c)(4) of this section explain further how the Board evaluates
the intensity and persistence of the claimant's symptoms and how it
determines the extent to which the claimant's symptoms limit the
claimant's capacity for work, when the medical signs or laboratory
findings show that the claimant has a medically determinable
impairment(s) that could reasonably be expected to produce the
claimant's symptoms, such as pain.
(2) Consideration of objective medical evidence. Objective medical
evidence is evidence obtained from the application of medically
acceptable clinical and laboratory diagnostic techniques, such as
evidence of reduced joint motion, muscle spasm, sensory deficit or
motor disruption. Objective medical evidence of this type is a useful
indicator to assist the Board in making reasonable conclusions about
the intensity and persistence of the claimant's symptoms and the effect
those symptoms, such as pain, may have on the claimant's ability to
work. The Board must always attempt to obtain objective medical
evidence and, when it is obtained, the Board will consider it in
reaching a conclusion as to whether the claimant is disabled. However,
the Board will not reject the claimant's statements about the intensity
and persistence of the claimant's pain or other symptoms or about the
effect the claimant's symptoms have on the claimant's ability to work
solely because the available objective medical evidence does not
substantiate the claimant's statements.
(3) Consideration of other evidence. Since symptoms sometimes
suggest a greater severity of impairment than can be shown by objective
medical evidence alone, the Board will carefully consider any other
information the claimant may submit about his or her symptoms. The
information that the claimant, the claimant's treating or examining
physician or psychologist, or other persons provide about the
claimant's pain or other symptoms (e.g., what may precipitate or
aggravate the claimant's symptoms, what medications, treatments or
other methods he or she uses to alleviate them, and how the symptoms
may affect the claimant's pattern of daily living) is also an important
indicator of the intensity and persistence of the claimant's symptoms.
Because symptoms, such as pain, are subjective and difficult to
quantify, any symptom-related functional limitations and restrictions
which the claimant, his or her treating or examining physician or
psychologist, or other persons report, which can reasonably be accepted
as consistent with the objective medical evidence and other evidence,
will be taken into account as explained in paragraph (c)(4) of this
section in reaching a conclusion as to whether the claimant is
disabled. The Board will consider all of the evidence presented,
including information about the claimant's prior work record, the
claimant's statements about his or her symptoms, evidence submitted by
the claimant's treating, examining or consulting physician or
psychologist, and observations by Board employees and other persons.
Section 220.112 of this part explains in detail how the Board considers
and weighs treating source and other medical opinions about the nature
and severity of the claimant's impairment(s) and any related symptoms,
such as pain. Factors relevant to the claimant's symptoms, such as
pain, which the Board will consider include:
(i) The claimant's daily activities;
(ii) The location, duration, frequency, and intensity of the
claimant's pain or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication the claimant takes or has taken to alleviate the claimant's
pain or other symptoms;
(v) Treatment, other than medication, the claimant receives or has
received for relief of pain or other symptoms;
(vi) Any measures the claimant uses or has used to relieve pain or
other symptoms (e.g., lying flat on the claimant's back, standing for
15 to 20 minutes every hour, sleeping on a board, etc.); and
(vii) Other factors concerning the claimant's functional
limitations and restrictions due to pain or other symptoms.
(4) How the Board determines the extent to which symptoms, such as
pain, affect the claimant's capacity to perform basic work activities.
In determining the extent to which the claimant's symptoms, such as
pain, affect the claimant's capacity to perform basic work activities,
the Board considers all of the available evidence described in
paragraphs (c)(1) through (c)(3) of this section. The Board will
consider the claimant's statements about the intensity, persistence,
and limiting effects of the claimant's symptoms, and the Board will
evaluate the claimant's statements in relation to the objective medical
evidence and other evidence, in reaching a conclusion as to whether the
claimant is disabled. The Board will consider whether there are any
inconsistencies in the evidence and the extent to which there are any
conflicts between the claimant's statements and the rest of the
evidence, including the claimant's medical history, the medical signs
and laboratory findings, and statements by the claimant's treating or
examining physician or psychologist or other persons about how the
claimant's symptoms affect the claimant. The claimant's symptoms,
including pain, will be determined to diminish the claimant's capacity
for basic work activities to the extent that the claimant's alleged
functional limitations and restrictions due to symptoms, such as pain,
can reasonably be accepted as consistent with the objective medical
evidence and other evidence.
(d) Consideration of symptoms in the disability determination
process. The Board follows a set order of steps to determine whether
the claimant is
[[Page 60293]]
disabled. If the claimant is not doing substantial gainful activity,
the Board considers the claimant's symptoms, such as pain, to evaluate
whether the claimant has a severe physical or mental impairment(s), and
at each of the remaining steps in the process. Section 220.100 explains
this process in detail. The Board also considers the claimant's
symptoms, such as pain, at the appropriate steps in the Board's review
when the Board considers whether the claimant's disability continues.
Subpart O of this part explains the procedure the Board follows in
reviewing whether the claimant's disability continues.
(1) Need to establish a severe medically determinable
impairment(s). The claimant's symptoms, such as pain, fatigue,
shortness of breath, weakness, or nervousness, are considered in making
a determination as to whether the claimant's impairment or combination
of impairment(s) is severe. (See Sec. 220.100(b)(2) of this part).
(2) Decision whether the Listing of Impairments is met. Some listed
impairment(s) include symptoms, such as pain, as criteria. Section
220.100(f) of this part explains how the Board considers the claimant's
symptoms when the claimant's symptoms are included as criteria for a
listed impairment.
(3) Decision whether the Listing of Impairments is equaled. If the
claimant's impairment is not the same as a listed impairment, the Board
must determine whether the claimant's impairment(s) is medically
equivalent to a listed impairment. Section 220.111 of this part
explains how the Board makes this determination. Under Sec. 220.111(b)
of this part, the Board will consider equivalence based on medical
evidence only. In considering whether the claimant's symptoms, signs,
and laboratory findings are medically equal to the symptoms, signs, and
laboratory findings of a listed impairment, the Board will look to see
whether the claimant's symptoms, signs, and laboratory findings are at
least equal in severity to the listed criteria. However, the Board will
not substitute the claimant's allegations of pain or other symptoms for
a missing or deficient sign or laboratory finding to raise the severity
of the claimant's impairment(s) to that of a listed impairment. If the
symptoms, signs, and laboratory findings of the claimant's
impairment(s) are equivalent in severity to those of a listed
impairment, the Board will find the claimant disabled. If it does not,
the Board will consider the impact of the claimant's symptoms on the
claimant's residual functional capacity. (See paragraph (d)(4) of this
section.)
(4) Impact of symptoms (including pain) on residual functional
capacity. If the claimant has a medically determinable severe physical
or mental impairment(s), but the claimant's impairment(s) does not meet
or equal an impairment listed in Appendix 1 of this part, the Board
will consider the impact of the claimant's impairment(s) and any
related symptoms, including pain, on the claimant's residual functional
capacity. (See Sec. 220.120 of this part.)
0
5. Section 220.120 is revised to read as follows:
Sec. 220.120 The claimant's residual functional capacity.
(a) General. The claimant's impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that
affect what the claimant can do in a work setting. The claimant's
residual functional capacity is what the claimant can still do despite
the claimant's limitations. If the claimant has more than one
impairment, the Board will consider all of the claimant's impairment(s)
of which the Board is aware. The Board will consider the claimant's
ability to meet certain demands of jobs, such as physical demands,
mental demands, sensory requirements, and other functions, as described
in paragraphs (b), (c), and (d) of this section. Residual functional
capacity is an assessment based upon all of the relevant evidence. It
may include descriptions (even the claimant's own) of limitations that
go beyond the symptoms, such as pain, that are important in the
diagnosis and treatment of the claimant's medical condition.
Observations by the claimant's treating or examining physicians or
psychologists, the claimant's family, neighbors, friends, or other
persons, of the claimant's limitations, in addition to those
observations usually made during formal medical examinations, may also
be used. These descriptions and observations, when used, must be
considered along with the claimant's medical records to enable us to
decide to what extent the claimant's impairment(s) keeps the claimant
from performing particular work activities. This assessment of the
claimant's remaining capacity for work is not a decision on whether the
claimant is disabled, but is used as the basis for determining the
particular types of work the claimant may be able to do despite the
claimant's impairment(s). Then, using the guidelines in Sec. Sec.
220.125 and 220.134 of this part the claimant's vocational background
is considered along with the claimant's residual functional capacity in
arriving at a disability determination or decision. In deciding whether
the claimant's disability continues or ends, the residual functional
capacity assessment may also be used to determine whether any medical
improvement the claimant has experienced is related to the claimant's
ability to work as discussed in Sec. 220.178 of this part.
(b) Physical abilities. When the Board assesses the claimant's
physical abilities, the Board first assesses the nature and extent of
the claimant's physical limitations and then determines the claimant's
residual functional capacity for work activity on a regular and
continuing basis. A limited ability to perform certain physical demands
of work activity, such as sitting, standing, walking, lifting,
carrying, pushing, pulling, or other physical functions (including
manipulative or postural functions, such as reaching, handling,
stooping or crouching), may reduce the claimant's ability to do past
work and other work.
(c) Mental abilities. When the Board assesses the claimant's mental
abilities, the Board first assesses the nature and extent of the
claimant's mental limitations and restrictions and then determines the
claimant's residual functional capacity for work activity on a regular
and continuing basis. A limited ability to carry out certain mental
activities, such as limitations in understanding, remembering, and
carrying out instructions, and in responding appropriately to
supervision, co-workers, and work pressures in a work setting, may
reduce the claimant's ability to do past work and other work.
(d) Other abilities affected by impairment(s). Some medically
determinable impairment(s), such as skin impairment(s), epilepsy,
impairment(s) of vision, hearing or other senses, and impairment(s)
which impose environmental restrictions, may cause limitations and
restrictions which affect other work-related abilities. If the claimant
has this type of impairment(s), the Board considers any resulting
limitations and restrictions which may reduce the claimant's ability to
do past work and other work in deciding the claimant's residual
functional capacity.
(e) Total limiting effects. When the claimant has a severe
impairment(s), but the claimant's symptoms, signs, and laboratory
findings do not meet or equal those of a listed impairment in Appendix
1 of this part, the Board will consider the limiting effects of all of
the claimant's impairment(s), even those that are not severe, in
determining the claimant's residual functional capacity.
[[Page 60294]]
Pain or other symptoms may cause a limitation of function beyond that
which can be determined on the basis of the anatomical, physiological
or psychological abnormalities considered alone; e.g., someone with a
low back disorder may be fully capable of the physical demands
consistent with those of sustained medium work activity, but another
person with the same disorder, because of pain, may not be capable of
more than the physical demands consistent with those of light work
activity on a sustained basis. In assessing the total limiting effects
of the claimant's impairment(s) and any related symptoms, the Board
will consider all of the medical and nonmedical evidence, including the
information described in Sec. 220.114 of this part.
0
6. A new Sec. 220.135 is added to Subpart K to read as follows:
Sec. 220.135 Exertional and nonexertional limitations.
(a) General. The claimant's impairment(s) and related symptoms,
such as pain, may cause limitations of function or restrictions which
limit the claimant's ability to meet certain demands of jobs. These
limitations may be exertional, nonexertional, or a combination of both.
Limitations are classified as exertional if they affect the claimant's
ability to meet the strength demands of jobs. The classification of a
limitation as exertional is related to the United States Department of
Labor's classification of jobs by various exertional levels (sedentary,
light, medium, heavy, and very heavy) in terms of the strength demands
for sitting, standing, walking, lifting, carrying, pushing, and
pulling. Sections 220.132 and 220.134 of this part explain how the
Board uses the classification of jobs by exertional levels (strength
demands) which is contained in the Dictionary of Occupational Titles
published by the Department of Labor, to determine the exertional
requirements of work which exists in the national economy. Limitations
or restrictions which affect the claimant's ability to meet the demands
of jobs other than the strength demands, that is, demands other than
sitting, standing, walking, lifting, carrying, pushing or pulling, are
considered nonexertional. Sections 220.100(b)(5) and 220.180(h) of this
part explain that if the claimant can no longer do the claimant's past
relevant work because of a severe medically determinable impairment(s),
the Board must determine whether the claimant's impairment(s), when
considered along with the claimant's age, education, and work
experience, prevents the claimant from doing any other work which
exists in the national economy in order to decide whether the claimant
is disabled or continues to be disabled. Paragraphs (b), (c), and (d)
of this section explain how the Board applies the medical-vocational
guidelines in Appendix 2 of this part in making this determination,
depending on whether the limitations or restrictions imposed by the
claimant's impairment(s) and related symptoms, such as pain, are
exertional, nonexertional, or a combination of both.
(b) Exertional limitations. When the limitations and restrictions
imposed by the claimant's impairment(s) and related symptoms, such as
pain, affect only the claimant's ability to meet the strength demands
of jobs (sitting, standing, walking, lifting, carrying, pushing, and
pulling), the Board considers that the claimant has only exertional
limitations. When the claimant's impairment(s) and related symptoms
only impose exertional limitations and the claimant's specific
vocational profile is listed in a rule contained in Appendix 2 of this
part, the Board will directly apply that rule to decide whether the
claimant is disabled.
(c) Nonexertional limitations. (1) When the limitations and
restrictions imposed by the claimant's impairment(s) and related
symptoms, such as pain, affect only the claimant's ability to meet the
demands of jobs other than the strength demands, the Board considers
that the claimant has only nonexertional limitations or restrictions.
Some examples of nonexertional limitations or restrictions include the
following:
(i) Difficulty functioning because the claimant is nervous,
anxious, or depressed;
(ii) Difficulty maintaining attention or concentration;
(iii) Difficulty understanding or remembering detailed
instructions;
(iv) Difficulty in seeing or hearing;
(v) Difficulty tolerating some physical feature(s) of certain work
settings, e.g., the claimant cannot tolerate dust or fumes; or
(vi) Difficulty performing the manipulative or postural functions
of some work such as reaching, handling, stooping, climbing, crawling,
or crouching.
(2) If the claimant's impairment(s) and related symptoms, such as
pain, only affect the claimant's ability to perform the nonexertional
aspects of work-related activities, the rules in Appendix 2 do not
direct factual conclusions of disabled or not disabled. The
determination as to whether disability exists will be based on the
principles in the appropriate sections of the regulations, giving
consideration to the rules for specific case situations in Appendix 2
of this part.
(d) Combined exertional and nonexertional limitations. When the
limitations and restrictions imposed by the claimant's impairment(s)
and related symptoms, such as pain, affect the claimant's ability to
meet both the strength and demands of jobs other than the strength
demands, the Board considers that the claimant has a combination of
exertional and nonexertional limitations or restrictions. If the
claimant's impairment(s) and related symptoms, such as pain, affect the
claimant's ability to meet both the strength and demands of jobs other
than the strength demands, the Board will not directly apply the rules
in Appendix 2 unless there is a rule that directs a conclusion that the
claimant is disabled based upon the claimant's strength limitations;
otherwise the rules provide a framework to guide the Board's decision.
Appendix 2 to Part 220--Medical-Vocational Guidelines
0
7. Revise section 200.00(c) of Appendix 2 to part 220--Medical-
Vocational Guidelines to read as follows:
200.00 Introduction.
* * * * *
(c) In the application of the rules, the individual's residual
functional capacity (i.e., the maximum degree to which the individual
retains the capacity for sustained performance of the physical-mental
requirements of jobs), age, education, and work experience must first
be determined. When assessing the person's residual functional
capacity, the Board considers his or her symptoms (such as pain),
signs, and laboratory findings together with other evidence the Board
obtains.
* * * * *
Dated: October 16, 2003.
By Authority of the Board.
Beatrice Ezerski,
Secretary to the Board.
[FR Doc. 03-26623 Filed 10-21-03; 8:45 am]
BILLING CODE 7905-01-P