EFFECTIVE/PUBLICATION DATE: 05/22/91
SSR 91-3p: POLICY INTERPRETATION RULING Title II: Determining Entitlement To Disability Benefits for Months Prior to January 1991 For Widows, Widowers And Surviving Divorced Spouses Claims
Purpose: To explain the processes to be used to determine entitlement to disability benefits for widows, widowers and surviving divorced spouses (hereafter referred to as widows) on the basis of the deceased spouse's earnings record under sections 202(e) and (f) and 223(d) of title II of the Social Security Act (the Act) for months prior to January 1991. Specifically, this Ruling describes how the Social Security Administration (SSA) will apply the sequential evaluation process and consider a widow's residual functional capacity in determining entitlement to benefits payable for months prior to January 1991.
Citations (authority): Section 223(d) of the Social Security Act; Regulations No. 4, Subpart P, sections 404.1511(b), 404.1520, 404.1525, 404.1526, 404.1545, 404.1546, 404.1572, 404.1577, and 404.1578.
Introduction: Section 5103 of the Omnibus Budget Reconciliation Act (OBRA) of 1990 (P.L. 101-508) made the standard for determining disability in widows' claims the same as the standard applied to other title II disability claims. This OBRA provision is effective for purposes of determining entitlement to disability benefits for widows for months after December 1990, based on applications filed on or after January 1, 1991, or pending on that date.
In order to be entitled to widow's benefits based on disability, the widow must also meet certain nondisability requirements in the statute; such as, the widow must be at least 50 and less than age 60 and the disability must have begun not later than 7 years after either the insured died or the widow was last entitled to mother's or father's benefits. Prior to the enactment of OBRA, the Act provided a special standard for determining disability for widows. Section 223(d)(2)(B) specified that widow's benefits based on disability were to be awarded only when the widow's "impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity."
This special statutory standard is still applicable with respect to benefits payable for months prior to January 1991. The process used in determining disability for widows under the pre-OBRA standard is contained in 20 C.F.R. 404.1577 and 404.1578 which state that only the claimant's physical and mental impairments are considered, and not the claimant's age, education, and work experience. Specifically, section 404.1578 provides that a widow will be found disabled if all the following conditions are met: (1) the claimant is not engaging in substantial gainful activity; (2) the claimant's impairment(s) meets the duration requirement; and (3) the claimant's "impairment(s) has specific clinical findings that are the same as those for any impairment in the Listing of Impairments in Appendix 1 or are medically equivalent to those for any impairments shown there." Under SSA's interpretation of the regulations, the claimant's residual functional capacity has not been specifically considered in determining whether this test was satisfied. (Residual functional capacity is defined in 20 C.F.R. 404.1545 as what the claimant can still do in a work setting despite the physical or mental limitations caused by his or her impairment(s).)
Since October 1989, seven United States Court of Appeals have invalidated the pre-1991 process described above as being underinclusive in its evaluative criteria. These courts have held that the Act requires a consideration of functional limitations in determining entitlement to widow's benefits based on disability. A number of these decisions have further indicated that the regulations, as applicable with respect to benefits payable for months prior to January 1991, could allow for a consideration of functional limitations or residual functional capacity in widows' cases, but it is the Agency's interpretations of those regulations which is incorrect.
As a result of these court decisions, affecting widows in approximately two-thirds of the States, which found the pre-1991 approach to be under-inclusive, SSA has reevaluated its interpretation of the regulations for determining entitlement to widow's disability benefits payable for months prior to January 1991. In response to this clear trend in the courts, this Ruling is being issued to provide a uniform national interpretation of the regulations for determining entitlement to widow's benefits payable for months prior to January 1991. This action to revise the way widow's benefits are decided is consistent with the legislative history of the Social Security Disability Benefits Reform Act of 1984. The Conference Report for that legislation states that, "The conferees reaffirm the congressional intent that the Secretary resolve policy conflicts promptly in order to achieve consistent uniform administration of the program. . . . It is clear undesirable to have major differences in statutory interpretation between the Secretary and the courts remain unresolved for a protracted period of time." H.R. Rep. No. 98-1039, 98th Cong., 2d Sess. 37-38 (1984).
Under this Ruling, residual functional capacity assessments will be used in determining whether a widow is disabled in a manner similar to the manner in which residual functional capacity assessments are used in determining whether other adult claimants, including widows under the OBRA standard, are disabled. In view of the limited applicability of this Ruling (i.e., for widow's disability benefits payable for months prior January 1991) and our interest in providing widows with the most expeditious and accurate determinations of their claims possible, the process discussed below is, to the extent possible, patterned after the existing disability determination process (i.e., the sequential evaluation process) to avoid the creation of entirely new and untested methodologies.
Policy Interpretation: The five-step sequential evaluation process described in 20 C.F.R. 404.1520 will be applied when adjudicating a widow's claim for disability benefits. If application of this process results in a finding of disability at step three (meets or equals a listed impairment in Appendix 1), the widow will be found entitled to benefits for all months (subject to the established onset date and any closed period determinations), including those before January 1991, in which the nondisability requirements for widow's benefits are satisfied. If the application of the five-step sequential evaluation process results in a finding that the widow is able to engage in substantial gainful activity at any step in the process, i.e., at step one (currently engaging in substantial gainful activity), step two (no severe impairment), step four (able to engage in past relevant work) or step five (able to engage in other work) for all or part of the period, the widow will be denied benefits for those months of potential entitlement including those before January 1991, subject to any closed period determinations, because the widow is not disabled under either the pre-OBRA or OBRA standard. This denial for months prior to 1991 is appropriate because the pre-OBRA standard is clearly more restrictive than the OBRA standard: Inability to do any gainful activity as opposed to inability to engage in substantial gainful activity. By definition, a claimant who can engage in substantial gainful activity can also engage in any gainful activity.
If application of the five-step sequential evaluation process results, at step five, in a finding that the widow is unable to engage in substantial gainful activity, an additional determination will be needed regarding the widow's entitlement to disability benefits for months prior to January 1991 i.e., her ability to engage in any gainful activity. SSA will make this additional determination utilizing the residual functional capacity assessment used in conjunction with steps four and five of the sequential evaluation process, but without considering age, education, and work experience.
If the residual functional capacity assessment shows that the widow does not retain the functional capacity to perform a range of work comparable to the full range of sedentary work, the widow will be found disabled and entitled to benefits for all months of potential entitlement prior to January 1991 (subject to the established onset date and any closed period determinations). To assess whether the range of work is comparable to the full range of sedentary work, SSA will use the guidelines for determining, by residual functional capacity, the person's remaining occupational base. The guidelines are discussed in Social Security Rulings 83-12, 83-14, and 85-15, which deal with exertional impairments, nonexertional impairments, and combinations of exertional and nonexertional impairments. If the widow retains the functional capacity to perform a range of work comparable to the full range of sedentary work or more, then the widow can only begin receiving benefits for months after December 1990 subject to any closed period determinations. Denial on this basis for months prior to January 1991 is consistent with the applicable statutory standard since a widow who is able to perform a range of work comparable to the full range of sedentary work is obviously functionally capable of engaging in any gainful activity, i.e., the pre-OBRA standard.
Effective Date: This ruling is effective on publication in the Federal Register, and applies to all claims pending administratively on or after the effective date with respect to the issue of entitlement to widow's disability benefits payable for months prior to January 1991. Of course, consistent with standard SSA operating procedures, any final court order requiring adjudication of a disabled widow's claim in a manner different from this Ruling will be followed by SSA. We will issue separate procedures, if necessary, detailing how to address any such court order. In addition, if a determination or decision was made between the date of the applicable Court of Appeals' decision which required consideration of functional limitations in widow's cases in the First (Cassas v. Secretary of Health and Human Services, 893 F.2d. 454 (1st Cir. January 11, 1990)), Second (Kier v. Sullivan, 888 F.2d. 244 (2nd Cir. October 23, 1989)), Third (Finkelstein v. Sullivan, 924 F.2d 483 (3rd Cir. January 23, 1991)), Fourth (Bennett v. Sullivan, 917 F.2d 157 (4th Cir. October 25, 1990)), Seventh (Marcus v. Sullivan, 926 F.2d 604 (7th Cir. February 21, 1991)), Ninth (Ruff v. Sullivan, 907 F.2d 915 (9th Cir. July 9, 1990)), or Tenth (Davidson v. Secretary of Health and Human Services, 912 F.2d 1246 (10th Cir. August 29, 1990)) Circuit and the effective date of this Social Security Ruling, a claimant may request application of this Social Security Ruling to his or her claim if he or she first demonstrates that application of the Ruling could change the prior determination or decision. This additional applicability is being provided to make this Ruling applicable to the extent to which the published Acquiescence Rulings for those decisions in the First, Second, and Ninth Circuits were applicable prior to their rescission and the extent to which Acquiescence Rulings for those decisions in the Third, Fourth, Seventh, and Tenth Circuits would have been applicable under 20 C.F.R. 404.985 had they been published before the issuance of this national Ruling. Under 20 C.F.R. 404.988 and 404.989, a change of legal interpretation or administrative ruling does not justify a finding of good cause required to reopen a final determination or decision more than 12 months after and within 4 years of the date of the notice of the initial determination.