[Title 20 CFR 416]
[Code of Federal Regulations (annual edition) - April 1, 1996 Edition]
[Title 20 - EMPLOYEES' BENEFITS]
[Chapter III - SOCIAL SECURITY ADMINISTRATION]
[Part 416 - SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED]
[From the U.S. Government Publishing Office]
20
EMPLOYEES' BENEFITS
2
1996-04-01
1996-04-01
false
SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED
416
PART 416
EMPLOYEES' BENEFITS
SOCIAL SECURITY ADMINISTRATION
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED--Table of Contents
Subpart A--Introduction, General Provisions and Definitions
Sec.
416.101 Introduction.
416.105 Administration.
416.110 Purpose of program.
416.120 General definitions and use of terms.
416.121 Receipt of aid or assistance for December 1973 under an
approved State plan under title I, X, XIV, or XVI of the
Social Security Act.
[[Page 603]]
Subpart B--Eligibility
General
416.200 Introduction.
416.201 General definitions and terms used in this subpart.
416.202 Who may get SSI benefits.
416.203 Initial determinations of SSI eligibility.
416.204 Redeterminations of SSI eligibility.
Reasons Why You May Not Get SSI Benefits for Which You Are Otherwise
Eligible
416.210 You do not apply for other benefits.
416.211 You are a resident of a public institution.
416.212 Continuation of full benefits in certain cases of medical
confinement.
416.213 You do not accept vocational rehabilitation services.
416.214 You are disabled and drug addiction or alcoholism is a
contributing factor material to the determination of
disability.
416.215 You leave the United States.
416.216 You are a child of armed forces personnel living overseas.
Eligibility for Increased Benefits Because of Essential Persons
416.220 General.
416.221 Who is a qualified individual.
416.222 Who is an essential person.
416.223 What happens if you are a qualified individual.
416.250 Experimental, pilot, and demonstration projects in the SSI
program.
Special Provisions for People Who Work Despite a Disabling Impairment
416.260 General.
416.261 What are special SSI cash benefits and when are they payable.
416.262 Eligibility requirements for special SSI cash benefits.
416.263 No additional application needed.
416.264 When does the ``special SSI eligibility status'' apply.
416.265 Requirements for the special SSI eligibility status.
416.266 Continuation of SSI status for Medicaid.
416.267 General.
416.268 What is done to determine if you must have Medicaid in order to
work.
416.269 What is done to determine whether your earnings are too low to
provide comparable benefits and services you would receive in
the absence of those earnings.
Subpart C--Filing of Applications
General Provisions
416.301 Introduction.
416.302 Definitions.
416.305 You must file an application to receive supplemental security
income benefits.
Applications
416.310 What makes an application a claim for benefits.
416.315 Who may sign an application.
416.320 Evidence of authority to sign an application for another.
416.325 When an application is considered filed.
Effective Filing Period of Application
416.330 Filing before the first month you meet the requirements for
eligibility.
416.335 Filing in or after the month you meet the requirements for
eligibility.
Filing Date Based Upon a Written Statement or Oral Inquiry
416.340 Use of date of written statement as application filing date.
416.345 Use of date of oral inquiry as application filing date.
416.350 Treating a title II application as an oral inquiry about SSI
benefits.
Deemed Filing Date Based on Misinformation
416.351 Deemed filing date in a case of misinformation.
Withdrawal of Application
416.355 Withdrawal of an application.
416.360 Cancellation of a request to withdraw.
Subpart D--Amount of Benefits
416.401 Scope of subpart.
416.405 Cost-of-living adjustments in benefits.
416.410 Amount of benefits; eligible individual.
416.412 Amount of benefits; eligible couple.
416.413 Amount of benefits; qualified individual.
416.414 Amount of benefits; eligible individual or eligible couple for
a medical care facility.
416.415 Amount of benefits; eligible individual is disabled child under
age 18.
416.420 Determination of benefits; general.
416.421 Determination of benefits; computation of prorated benefits.
416.426 Change in status involving an individual; ineligibility occurs.
[[Page 604]]
416.428 Eligible individual without an eligible spouse has an essential
person in his home.
416.430 Eligible individual with eligible spouse; essential person(s)
present.
416.432 Change in status involving a couple; eligibility continues.
416.435 Change in status involving a couple; ineligibility occurs.
Subpart E--Payment of Benefits, Overpayments, and Underpayments
416.501 Payment of benefits: General.
416.502 Manner of payment.
416.503 Minimum monthly benefit amount.
416.520 Emergency advance payments.
416.525 Reimbursement to States for interim assistance payments.
416.532 Method of payment when the essential person resides with more
than one eligible person.
416.533 Transfer or assignment of benefits.
416.535 Underpayments and overpayments.
416.536 Underpayments--defined.
416.537 Overpayments--defined.
416.538 Amount of underpayment or overpayment.
416.542 Underpayments--to whom underpaid amount is payable.
416.543 Underpayments--applied to reduce overpayments.
416.544 Paying benefits in installments: Drug addiction or alcoholism.
416.550 Waiver of adjustment or recovery--when applicable.
416.551 Waiver of adjustment or recovery--effect of.
416.552 Waiver of adjustment or recovery--without fault.
416.553 Waiver of adjustment or recovery--defeat the purpose of the
supplemental security income program.
416.554 Waiver of adjustment or recovery--against equity and good
conscience.
416.555 Waiver of adjustment or recovery--impede administration.
416.556 Waiver of adjustment or recovery--countable resources in excess
of the limits prescribed in Sec. 416.1205 by $50 or less.
416.558 Notice relating to overpayments and underpayments.
416.560 Recovery--refund.
416.570 Adjustment-general rule.
416.571 10-percent limitation of recoupment rate--overpayment.
Subpart F--Representative Payment
416.601 Introduction.
416.610 When payment will be made to a representative payee.
416.615 Information considered in determining whether to make
representative payment.
416.620 Information considered in selecting a representative payee.
416.621 Order of preference in selecting a representative payee.
416.625 Information to be submitted by a representative payee.
416.630 Advance notice of the determination to make representative
payment.
416.635 Responsibilities of a representative payee.
416.640 Use of benefit payments.
416.640a Compensation for qualified organizations serving as
representative payees.
416.641 Liability for misuse of benefit payments.
416.645 Conservation and investment of benefit payments.
416.650 When new representative payee will be selected.
416.655 When representative payment will be stopped.
416.660 Transfer of accumulated benefit payments.
416.665 Accounting for benefit payments.
Subpart G--Reports Required
Introduction
416.701 Scope of subpart.
416.702 Definitions.
Report Provisions
416.704 Who must make reports.
416.708 What you must report.
416.710 What reports must include.
416.712 Form of the report.
416.714 When reports are due.
Penalty Deductions
416.722 Circumstances under which we make a penalty deduction.
416.724 Amounts of penalty deductions.
416.726 Penalty period: First failure to report.
416.728 Penalty period: Second failure to report.
416.730 Penalty period: Three or more failures to report.
416.732 No penalty deduction if you have good cause for failure to
report timely.
Subpart H--Determination of Age
416.801 Evidence as to age--when required.
416.802 Type of evidence to be submitted.
416.803 Evaluation of evidence.
416.804 Certified copy in lieu of original.
416.805 When additional evidence may be required.
416.806 Expedited adjudication based on documentary evidence of age.
[[Page 605]]
Subpart I--Determining Disability and Blindness
General
416.901 Scope of subpart.
416.902 General definitions and terms for this subpart.
Determinations
416.903 Who makes disability and blindness determinations.
416.903a Program integrity.
416.904 Determinations by other organizations and agencies.
Definition of Disability
416.905 Basic definition of disability for adults.
416.906 Basic definition of disability for children.
416.907 Disability under a State plan.
416.908 What is needed to show an impairment.
416.909 How long the impairment must last.
416.910 Meaning of substantial gainful activity.
416.911 Definition of disabling impairment.
Evidence
416.912 Evidence of your impairment.
416.913 Medical evidence of your impairment.
416.914 When we will purchase existing evidence.
416.915 Where and how to submit evidence.
416.916 If you fail to submit medical and other evidence.
416.917 Consultative examination at our expense.
416.918 If you do not appear at a consultative examination.
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
416.919 The consultative examination.
416.919a When we will purchase a consultative examination and how we
will use it.
416.919b When we will not purchase a consultative examination.
Standards for the Type of Referral and for Report Content
416.919f Type of purchased examinations.
416.919g Who we will select to perform a consultative examination.
416.919h Your treating physician or psychologist.
416.919i Other sources for consultative examinations.
416.919j Objections to the designated physician or psychologist.
416.919k Purchase of medical examinations, laboratory tests, and other
services.
416.919m Diagnostic tests or procedures.
416.919n Informing the examining physician or psychologist of
examination scheduling, report content, and signature
requirements.
416.919o When a properly signed consultative examination report has not
been received.
416.919p Reviewing reports of consultative examinations.
416.919q Conflict of interest.
Authorizing and Monitoring the Referral Process
416.919s Authorizing and monitoring the consultative examination.
Procedures To Monitor the Consultative Examination
416.919t Consultative examination oversight.
Evaluation of Disability
416.920 Evaluation of disability of adults, in general.
.416.920a Evaluation of mental impairments.
416.921 What we mean by a not severe impairment(s) in an adult.
416.922 When you have two or more unrelated impairments--initial
claims.
416.923 Multiple impairments.
416.924 How we determine disability for children.
416.924a Age as a factor of evaluation in childhood disability.
416.924b Functioning in children.
416.924c Other factors we will consider.
416.924d Individualized functional assessment for children.
416.924e Guidelines for determining disability using the individualized
functional assessment.
Medical Considerations
416.925 Listing of Impairments in Appendix 1 of Subpart P of Part 404
of this chapter.
416.926 Medical equivalence for adults.
416.926a Equivalence for children.
416.927 Evaluating medical opinions about your impairment(s) or
disability.
416.928 Symptoms, signs, and laboratory findings.
416.929 How we evaluate symptoms, including pain.
416.930 Need to follow prescribed treatment.
Presumptive Disability and Blindness
416.931 The meaning of presumptive disability or presumptive blindness.
416.932 When presumptive payments begin and end.
416.933 How we make a finding of presumptive disability or presumptive
blindness.
416.934 Impairments which may warrant a finding of presumptive
disability or presumptive blindness.
Drug Addiction and Alcoholism
416.935 How we will determine whether your drug addiction or alcoholism
is a contributing factor material to the determination of
disability.
416.936 Treatment required for individuals whose drug addiction or
alcoholism is a contributing factor material to the
determination of disability.
416.937 What we mean by appropriate treatment.
416.938 What we mean by approved institutions or facilities.
416.939 How we consider whether treatment is available.
416.940 Evaluating compliance with the treatment requirements.
416.941 Establishment and use of referral and monitoring agencies.
Residual Functional Capacity
416.945 Your residual functional capacity.
416.946 Responsibility for assessing and determining residual
functional capacity.
Vocational Considerations
416.960 When your vocational background will be considered.
416.961 Your ability to do work depends upon your residual functional
capacity.
416.962 If you have done only arduous unskilled physical labor.
416.963 Your age as a vocational factor.
416.964 Your education as a vocational factor.
416.965 Your work experience as a vocational factor.
416.966 Work which exists in the national economy.
416.967 Physical exertion requirements.
416.968 Skill requirements.
416.969 Listing of Medical--Vocational Guidelines in Appendix 2 of
Subpart P of Part 404 of this chapter.
416.969a Exertional and nonexertional limitations.
Substantial Gainful Activity
416.971 General.
416.972 What we mean by substantial gainful activity.
416.973 General information about work activity.
416.974 Evaluation guides if you are an employee.
416.975 Evaluation guides if you are self-employed.
416.976 Impairment-related work expenses.
Blindness
416.981 Meaning of blindness as defined in the law.
416.982 Blindness under a State plan.
416.983 How we evaluate statutory blindness.
416.984 If you are statutorily blind and still working.
416.985 How we evaluate other visual impairments.
416.986 Why and when we will find that you are no longer entitled to
benefits based on statutory blindness.
Continuing or Stopping Disability or Blindness
416.988 Your responsibility to tell us of events that may change your
disability or blindness status.
416.989 We may conduct a review to find out whether you continue to be
disabled.
416.989a We may conduct a review to find out whether you continue to be
blind.
416.990 When and how often we will conduct a continuing disability
review.
416.991 If your medical recovery was expected and you returned to work.
416.992 The trial work period.
416.992a The reentitlement period.
416.993 Medical evidence in continuing disability review cases.
416.994 How we will determine whether your disability continues or
ends.
416.994a How we will determine whether your disability continues or
ends, disabled children.
416.995 If we make a determination that your physical or mental
impairment(s) has ceased, did not exist or is no longer
disabling (Medical Cessation Determination).
416.996 Continued disability or blindness benefits pending appeal of a
medical cessation determination.
416.998 If you become disabled by another impairment(s).
Subpart J--Determinations of Disability
General Provisions
416.1001 Purpose and scope.
416.1002 Definitions.
416.1003 Basic responsibilities for us and the State.
Responsibilities for Performing the Disability Determination Function
416.1010 How a State notifies us that it wishes to perform the
disability determination function.
416.1011 How we notify a State whether it may perform the disability
determination function.
416.1013 Disability determinations the State makes.
[[Page 607]]
416.1014 Responsibilities for obtaining evidence to make disability
determinations.
416.1015 Making disability determinations.
416.1016 Medical or psychological consultant.
416.1017 Reasonable efforts to obtain review by a qualified
psychiatrist or psychologist.
416.1018 Notifying claimants of the disability determination.
Administrative Responsibilities and Requirements
416.1020 General administrative requirements.
416.1021 Personnel.
416.1022 Training.
416.1023 Facilities.
416.1024 Medical and other purchased services.
416.1025 Records and reports.
416.1026 Fiscal.
416.1027 Audits.
416.1028 Property.
416.1029 Participation in research and demonstration projects.
416.1030 Coordination with other agencies.
416.1031 Confidentiality of information and records.
416.1032 Other Federal laws and regulations.
416.1033 Policies and operating instructions.
Performance Standards
416.1040 General.
416.1041 Standards of performance.
416.1042 Processing time standard.
416.1043 Performance accuracy standard.
416.1044 How and when we determine whether the processing time
standards are met.
416.1045 How and when we determine whether the performance accuracy
standard is met.
416.1050 Action we will take if a State agency does not meet the
standards.
Performance Monitoring and Support
416.1060 How we will monitor.
416.1061 When we will provide performance support.
416.1062 What support we will provide.
Substantial Failure
416.1070 General.
416.1071 Good cause for not following the Act, our regulations, or
other written guidelines.
416.1075 Finding of substantial failure.
Hearings and Appeals
416.1080 Notice of right to hearing on proposed finding of substantial
failure.
416.1081 Disputes on matters other than substantial failure.
416.1082 Who conducts the hearings.
416.1083 Hearings and appeals process.
Assumption of Disability Determination Function
416.1090 Assumption when we make a finding of substantial failure.
416.1091 Assumption when State no longer wishes to perform the
disability determination function.
416.1092 Protection of State employees.
416.1093 Limitation on State expenditures after notice.
416.1094 Final accounting by the State.
Subpart K--Income
General
416.1100 Income and SSI eligibility.
416.1101 Definition of terms.
416.1102 What is income.
416.1103 What is not income.
416.1104 Income we count.
Earned Income
416.1110 What is earned income.
416.1111 How we count earned income.
416.1112 Earned income we do not count.
Unearned Income
416.1120 What is unearned income.
416.1121 Types of unearned income.
416.1123 How we count unearned income.
416.1124 Unearned income we do not count.
In-Kind Support and Maintenance
416.1130 Introduction.
416.1131 The one-third reduction rule.
416.1132 What we mean by ``living in another person's household.''
416.1133 What is a pro rata share of household operating expenses.
416.1140 The presumed value rule.
416.1141 When the presumed value rule applies.
416.1142 If you live in a public assistance household.
416.1143 If you live in a noninstitutional care situation.
416.1144 If you live in a nonprofit retirement home or similar
institution.
416.1145 How the presumed value rule applies in a nonmedical for-profit
institution.
In-Kind Support and Maintenance in Special Circumstances
416.1147 How we value in-kind support and maintenance for a couple.
416.1147a Income rules in change-of-status situations involving in-kind
support and maintenance.
416.1148 If you have both in-kind support and maintenance and income
that is deemed to you.
[[Page 608]]
Temporary Absence
416.1149 What is a temporary absence from your living arrangement.
Disasters
416.1150 How we treat income received because of a major disaster.
416.1151 How we treat the repair or replacement of lost, damaged, or
stolen resources.
Home Energy Assistance
416.1157 Support and maintenance assistance.
Deeming of Income
416.1160 What is deeming of income.
416.1161 Income of an ineligible spouse, ineligible parent, and
essential person for deeming purposes.
416.1161a Income for deeming purposes where Medicaid eligibility is
affected.
416.1163 How we deem income to you from your ineligible spouse.
416.1165 How we deem income to you from your ineligible parent(s).
416.1166 How we deem income to you and your eligible child from your
ineligible spouse.
416.1166a How we deem income to you from your sponsor if you are an
alien.
416.1167 Temporary absences and deeming rules.
416.1168 How we deem income to you from your essential person.
416.1169 When we stop deeming income from an essential person.
Alternative Income Counting Rules for Certain Blind Individuals
416.1170 General.
416.1171 When the alternative rules apply.
Rules for Helping Blind and Disabled Individuals Achieve Self-Support
416.1180 General.
416.1181 What a plan to achieve self-support is.
416.1182 When we begin to count the income excluded under the plan.
Appendix to Subpart K--List of Types of Income Excluded Under the SSI
Program as Provided by Federal Laws Other Than the Social
Security Act
Subpart L--Resources and Exclusions
416.1201 Resources; general.
416.1202 Deeming of resources.
416.1203 Deeming of resources of an essential person.
416.1204 Deeming of resources of the sponsor of an alien.
416.1204a Deeming of resources where Medicaid eligibility is affected.
416.1205 Limitation on resources.
416.1207 Resources determinations.
416.1208 How funds held in financial institution accounts are counted.
416.1210 Exclusions from resources; general.
416.1212 Exclusion of the home.
416.1216 Exclusion of household goods and personal effects.
416.1218 Exclusion of the automobile.
416.1220 Property essential to self-support; general.
416.1222 How income-producing property essential to self-support is
counted.
416.1224 How nonbusiness property used to produce goods or services
essential to self-support is counted.
416.1225 An approved plan for self-support; general.
416.1226 What a plan to achieve self-support is.
416.1227 When the resources excluded under a plan to achieve self-
support begin to count.
416.1228 Exclusion of Alaskan natives' stock in regional or village
corporations.
416.1229 Exclusion of payments received as compensation for expenses
incurred or losses suffered as a result of a crime.
416.1230 Exclusion of life insurance.
416.1231 Burial spaces and certain funds set aside for burial expenses.
416.1232 Replacement of lost, damaged, or stolen excluded resources.
416.1233 Exclusion of certain underpayments from resources.
416.1234 Exclusion of Indian lands.
416.1235 Exclusion of earned income tax credit.
416.1236 Exclusions from resources; provided by other statutes.
416.1237 Assistance received on account of major disaster.
416.1238 Exclusion of certain housing assistance.
416.1239 Exclusion of State or local relocation assistance payments.
416.1240 Disposition of resources.
416.1242 Time limits for disposing of resources.
416.1244 Treatment of proceeds from disposition of resources.
416.1245 Exceptions to required disposition of real property.
416.1246 Disposal of resources at less than fair market value.
416.1260 Special resource provision for recipients under a State plan.
416.1261 Application of special resource provision.
416.1262 Special resource provision applicable in cases involving
essential persons.
416.1264 Spouse ineligible under a State plan in December 1973.
416.1266 Individual under special resource provision dies after
December 1973.
[[Page 609]]
Subpart M--Suspensions and Terminations
416.1321 Suspensions; general.
416.1322 Suspension due to failure to comply with request for
information.
416.1323 Suspension due to excess income.
416.1324 Suspension due to excess resources.
416.1325 Suspension due to status as a resident of a public
institution.
416.1326 Suspension for failure to comply with treatment for drug
addiction or alcoholism.
416.1327 Suspension due to absence from the United States.
416.1328 Suspension due to refusal to accept vocational rehabilitation
services.
416.1329 Suspension due to loss of United States residency, United
States citizenship, or status as an alien lawfully admitted
for permanent residence or otherwise permanently residing in
the United States under color of law.
416.1330 Suspension due to failure to apply for and obtain other
benefits.
416.1331 Termination of your disability or blindness payments.
416.1332 Termination of benefit for disabled individual: Exception.
416.1333 Termination at the request of the recipient.
416.1334 Termination due to death of recipient.
416.1335 Termination due to continuous suspension.
416.1336 Notice of intended action affecting recipient's payment
status.
416.1337 Exceptions to the continuation of previously established
payment level.
416.1338 If you are participating in a vocational rehabilitation
program.
Subpart N--Determinations, Administrative Review Process, and Reopening
of Determinations and Decisions
Introduction, Definitions, and Initial Determinations
416.1400 Introduction.
416.1401 Definitions.
416.1402 Administrative actions that are initial determinations.
416.1403 Administrative actions that are not initial determinations.
416.1404 Notice of the initial determination.
416.1405 Effect of an initial determination.
416.1406 Testing modifications to the disability determination
procedures.
Reconsideration
416.1407 Reconsideration--general.
416.1408 Parties to a reconsideration.
416.1409 How to request reconsideration.
416.1411 Good cause for missing the deadline to request review.
416.1413 Reconsideration procedures.
416.1413a Reconsiderations of initial determinations on applications.
416.1413b Reconsideration procedures for post-eligibility claims.
416.1413c Arrangement for conferences.
416.1414 Disability hearing--general.
416.1415 Disability hearing--disability hearing officers.
416.1416 Disability hearing--procedures.
416.1417 Disability hearing--disability hearing officer's reconsidered
determination.
416.1418 Disability hearing--review of the disability hearing officer's
reconsidered determination before it is issued.
416.1419 Notice of another person's request for reconsideration.
416.1420 Reconsidered determination.
416.1421 Effect of a reconsidered determination.
416.1422 Notice of a reconsidered determination.
Expedited Appeals Process
416.1423 Expedited appeals process--general.
416.1424 When the expedited appeals process may be used.
416.1425 How to request expedited appeals process.
416.1426 Agreement in expedited appeals process.
416.1427 Effect of expedited appeals process agreement.
416.1428 Expedited appeals process request that does not result in
agreement.
Hearing Before an Administrative Law Judge
416.1429 Hearing before an administrative law judge--general.
416.1430 Availability of a hearing before an administrative law judge.
416.1432 Parties to a hearing before an administrative law judge.
416.1433 How to request a hearing before an administrative law judge.
416.1435 Submitting evidence prior to a hearing before an
administrative law judge.
416.1436 Time and place for a hearing before an administrative law
judge.
416.1438 Notice of a hearing before an administrative law judge.
416.1439 Objections to the issues.
416.1440 Disqualification of the administrative law judge.
416.1441 Prehearing case review.
416.1442 Prehearing proceedings and decisions by attorney advisors.
416.1443 Responsibilities of the adjudication officer.
[[Page 610]]
Administrative Law Judge Hearing Procedures
416.1444 Administrative law judge hearing procedures--general.
416.1446 Issues before an administrative law judge.
416.1448 Deciding a case without an oral hearing before an
administrative law judge.
416.1449 Presenting written statements and oral arguments.
416.1450 Presenting evidence at a hearing before an administrative law
judge.
416.1451 When a record of a hearing before an administrative law judge
is made.
416.1452 Consolidated hearings before an administrative law judge.
416.1453 The decision of an administrative law judge.
416.1455 The effect of an administrative law judge's decision.
416.1456 Removal of a hearing request from an administrative law judge
to the Appeals Council.
416.1457 Dismissal of a request for a hearing before an administrative
law judge.
416.1458 Notice of dismissal of a request for a hearing before an
administrative law judge.
416.1459 Effect of dismissal of a request for a hearing before an
administrative law judge.
416.1460 Vacating a dismissal of a request for a hearing before an
administrative law judge.
416.1461 Prehearing and posthearing conferences.
416.1465 [Reserved]
Appeals Council Review
416.1467 Appeals Council review--general.
416.1468 How to request Appeals Council review.
416.1469 Appeals Council initiates review.
416.1470 Cases the Appeals Council will review.
416.1471 Dismissal by Appeals Council.
416.1472 Effect of dismissal of request for Appeals Council review.
416.1473 Notice of Appeals Council review.
416.1474 Obtaining evidence from Appeals Council.
416.1475 Filing briefs with the Appeals Council.
416.1476 Procedures before Appeals Council on review.
416.1477 Case remanded by Appeals Council.
416.1479 Decision of Appeals Council.
416.1481 Effect of Appeals Council's decision or denial of review.
416.1482 Extension of time to file action in Federal district court.
Court Remand Cases
416.1483 Case remanded by a Federal court.
416.1484 Appeals Council review of administrative law judge decision in
a case remanded by a Federal court.
416.1485 Application of circuit court law.
Reopening and Revising Determinations and Decisions
416.1487 Reopening and revising determinations and decisions.
416.1488 Conditions for reopening.
416.1489 Good cause for reopening.
416.1491 Late completion of timely investigation.
416.1492 Notice of revised determination or decision.
416.1493 Effect of revised determination or decision.
416.1494 Time and place to request further review or a hearing on
revised determination or decision.
Payment of Certain Travel Expenses
461.1495 Payment of certain travel expenses--general.
416.1496 Who may be reimbursed.
416.1498 What travel expenses are reimbursable.
416.1499 When and how to claim reimbursement.
Subpart O--Representation of Parties
416.1500 Introduction.
416.1503 Definitions.
416.1505 Who may be your representative.
416.1506 Notification of options for obtaining attorney representation.
416.1507 Appointing a representative.
416.1510 Authority of a representative.
416.1515 Notice or request to a representative.
416.1520 Fee for a representative's services.
416.1525 Request for approval of a fee.
416.1528 Proceedings before a State or Federal court.
416.1535 Services in a proceeding under title XVI of the Act.
416.1540 Rules governing representatives.
416.1545 What happens to a representative who breaks the rules.
416.1550 Notice of charges against a representative.
416.1555 Withdrawing charges against a representative.
416.1565 Hearing on charges.
416.1570 Decision by hearing officer.
416.1575 Requesting review of the hearing officer's decision.
416.1576 Assignment of request for review of the hearing officer's
decision.
416.1580 Appeals Council's review of hearing officer's decision.
416.1585 Evidence permitted on review.
416.1590 Appeals Council's decision.
[[Page 611]]
416.1595 When the Appeals Council will dismiss a request for review.
416.1597 Reinstatement after suspension--period of suspension expired.
416.1599 Reinstatement after suspension or disqualification--period of
suspension not expired.
Subpart P--Residence and Citizenship
416.1600 Introduction.
416.1601 Definitions and terms used in this subpart.
416.1603 How to prove you are a resident of the United States.
416.1610 How to prove you are a citizen or a national of the United
States.
416.1615 How to prove you are lawfully admitted for permanent residence
in the United States.
416.1618 When you are considered permanently residing in the United
States under color of law.
416.1619 When you cannot be considered permanently residing in the
United States under color of law.
Subpart Q--Referral of Persons Eligible for Supplemental Security Income
to Other Agencies
General
416.1701 Scope of subpart.
416.1705 Definitions.
Referral for Vocational Rehabilitation Services
416.1710 Whom we refer and when.
416.1715 Effect of your rejecting vocational rehabilitation services.
Referral for Treatment of Alcoholism or Drug Addiction
416.1720 Whom we refer.
416.1725 Effect of your failure to comply with treatment requirements
for your drug addiction or alcoholism.
Subpart R--Relationship
416.1801 Introduction.
Who Is Considered Your Spouse
416.1802 Effects of marriage on eligibility and amount of benefits.
416.1806 Whether you are married and who is your spouse.
416.1816 Information we need concerning marriage when you apply for
SSI.
416.1821 Showing that you are married when you apply for SSI.
416.1826 Showing that you are not married when you apply for SSI.
416.1830 When we stop considering you and your spouse an eligible
couple.
416.1832 When we consider your marriage ended.
416.1835 Information we need about separation or end of marriage after
you become eligible for SSI.
Who Is Considered a Child
416.1851 Effects of being considered a child.
416.1856 Who is considered a child.
416.1861 Deciding whether you are a child: Are you a student?
416.1866 Deciding whether you are a child: Are you the head of a
household?
Who Is Considered Your Parent
416.1876 Effects a parent (or parents) can have on the child's
benefits.
416.1881 Deciding whether someone is your parent or stepparent.
Subpart S--Interim Assistance Provisions
Introduction
416.1901 Scope of subpart S.
416.1902 Definitions.
Authorizations
416.1904 Authorization to withhold SSI benefits.
416.1906 When your authorization is in effect.
416.1908 When we need another authorization.
Interim Assistance Agreements
416.1910 Requirements for interim assistance agreement.
Appeals
416.1920 Your appeal rights in the State.
416.1922 Your appeal rights in SSA.
Subpart T--State Supplementation Provisions; Agreements; Payments
416.2001 State supplementary payments; general.
416.2005 Administration agreements with the Secretary.
416.2010 Essentials of the administration agreements.
416.2015 Establishing eligibility.
416.2020 Federally administered supplementary payments.
416.2025 Optional supplementation: Countable income.
416.2030 Optional supplementation: Variations in payments.
416.2035 Optional supplementation: Additional State options.
416.2040 Limitations on eligibility.
416.2045 Overpayments and underpayments; federally administered
supplementation.
416.2047 Waiver of State supplementary payments.
[[Page 612]]
416.2050 Mandatory minimum State supplementation.
416.2055 Mandatory minimum supplementation reduced.
416.2060 Mandatory minimum supplementary payments not applicable.
416.2065 Mandatory minimum State supplementation: Agreement deemed.
416.2070 Mandatory supplementation: State compliance not applicable.
416.2075 Monitoring of mandatory minimum supplementary payments.
416.2080 Limitation of fiscal liability of States.
416.2082 Non-Federal share of expenditures; defined.
416.2085 Adjusted payment level.
416.2090 State funds advanced for supplementary payments.
416.2095 Pass-along of Federal benefit increases.
416.2096 Basic pass-along rules.
416.2097 Combined supplementary/SSI payment levels.
416.2098 Supplementary payment levels.
416.2099 Compliance with pass-along.
Subpart U--Medicaid Eligibility Determinations
416.2101 Introduction.
416.2111 Conditions for our agreeing to make Medicaid eligibility
determinations.
416.2116 Medicaid eligibility determinations.
416.2130 Effect of the agreement and responsibilities of States.
416.2140 Liability for erroneous Medicaid eligibility determinations.
416.2145 Services other than Medicaid determinations.
416.2161 Charges to States.
416.2166 Changing the agreement.
416.2171 Duration of agreement.
416.2176 Disagreements between a State and us.
Subpart V--Payments for Vocational Rehabilitation Services
General Provisions
416.2201 General.
416.2202 Purpose and scope.
416.2203 Definitions.
416.2204 Participation by State VR agencies or alternate participants.
416.2206 Basic qualifications for alternate participants.
Payment Provisions
416.2208 Requirements for payment.
416.2209 Responsibility for making payment decisions.
416.2210 What we mean by ``SGA'' and by ``a continuous period of 9
months''.
416.2211 Criteria for determining when VR services will be considered
to have contributed to a continuous period of 9 months.
416.2212 Payment for VR services in a case where an individual
continues to receive disability or blindness payment based on
participation in an approved VR program.
416.2213 Payment for VR services in a case of VR refusal.
416.2214 Services for which payment may be made.
416.2215 When services must have been provided.
416.2216 When claims for payment for VR services must be made (filing
deadlines).
416.2217 What costs will be paid.
Administrative Provisions
416.2218 Applicability of these provisions to alternate participants
416.2219 Method of payment.
416.2220 Audits.
416.2221 Validation reviews.
416.2222 Confidentiality of information and records.
416.2223 Other Federal laws and regulations.
416.2227 Resolution of disputes.
Subpart A--Introduction, General Provisions and Definitions
Sec. 416.101 Introduction.
The regulations in this part 416 (Regulations No. 16 of the Social
Security Administration) relate to the provisions of title XVI of the
Social Security Act as amended by section 301 of Pub. L. 92-603 enacted
October 30, 1972, and as may thereafter be amended. Title XVI
(Supplemental Security Income For The Aged, Blind, and Disabled) of the
Social Security Act, as amended, established a national program,
effective January 1, 1974, for the purpose of providing supplemental
security income to individuals who have attained age 65 or are blind or
disabled. The regulations in this part are divided into the following
subparts according to subject content:
[[Page 613]]
(a) This subpart A contains this introduction, a statement of the
general purpose underlying the supplemental security income program,
general provisions applicable to the program and its administration, and
definitions and use of terms occurring throughout this part.
(b) Subpart B of this part covers in general the eligibility
requirements which must be met for benefits under the supplemental
security income program. It sets forth the requirements regarding
residence, citizenship, age, disability, or blindness, and describes the
conditions which bar eligibility and generally points up other
conditions of eligibility taken up in greater detail elsewhere in the
regulations (e.g., limitations on income and resources, receipt of
support and maintenance, etc.).
(c) Subpart C of this part sets forth the rules with respect to the
filing of applications, requests for withdrawal of applications,
cancellation of withdrawal requests and other similar requests.
(d) Subpart D of this part sets forth the rules for computing the
amount of benefits payable to an eligible individual and eligible
spouse.
(e) Subpart E of this part covers provisions with respect to
periodic payment of benefits, joint payments, payment of emergency cash
advances, payment of benefits prior to a determination of disability,
prohibition against transfer or assignment of benefits, adjustment and
waiver of overpayments, and payment of underpayments.
(f) Subpart F of this part contains provisions with respect to the
selection of representative payees to receive benefits on behalf of and
for the use of recipients and to the duties and responsibilities of
representative payees.
(g) Subpart G of this part sets forth rules with respect to the
reporting of events and circumstances affecting eligibility or the
amount of benefits payable.
(h) Subpart H of this part sets forth rules and guidelines for the
submittal and evaluation of evidence of age where age is pertinent to
establishing eligibility or the amount of benefits payable.
(i) Subpart I of this part sets forth the rules for establishing
disability or blindness where the establishment of disability or
blindness is pertinent to eligibility.
(j) Subpart J of this part sets forth the standards, requirements
and procedures for States making determinations of disability for the
Secretary. It also sets out the Secretary's responsibilities in carrying
out the disability determination function.
(k) Subpart K of this part defines income, earned income, and
unearned income and sets forth the statutory exclusions applicable to
earned and unearned income for the purpose of establishing eligibility
for and the amount of benefits payable.
(l) Subpart L of this part defines the term resources and sets forth
the statutory exclusions applicable to resources for the purpose of
determining eligibility.
(m) Subpart M of this part deals with events or circumstances
requiring suspension or termination of benefits.
(n) Subpart N of this part contains provisions with respect to
procedures for making determinations with respect to eligibility, amount
of benefits, representative payment, etc., notices of determinations,
rights of appeal and procedures applicable thereto, and other procedural
due process provisions.
(o) Subpart O of this part contains provisions applicable to
attorneys and other individuals who represent applicants in connection
with claims for benefits.
(p) Subpart P of this part sets forth the residence and citizenship
requirements that are pertinent to eligibility.
(q) Subpart Q of this part contains provisions with respect to the
referral of individuals for vocational rehabilitation, treatment for
alcoholism and drug addiction, and application for other benefits to
which an applicant may be potentially entitled.
(r) Subpart R of this part sets forth the rules for determining
marital and other family relationships where pertinent to the
establishment of eligibility for or the amount of benefits payable.
(s) Subpart S of this part explains interim assistance and how
benefits may
[[Page 614]]
be withheld to repay such assistance given by the State.
(t) Subpart T of this part contains provisions with respect to the
supplementation of Federal supplemental security income payments by
States, agreements for Federal administration of State supplementation
programs, and payment of State supplementary payments.
(u) Subpart U of this part contains provisions with respect to
agreements with States for Federal determination of Medicaid eligibility
of applicants for supplemental security income.
(v) Subpart V of this part explains when payments are made to State
vocational rehabilitation agencies (or alternate participants) for
vocational rehabilitation services.
[39 FR 28625, Aug. 9, 1974, as amended at 51 FR 11718, Apr. 7, 1986]
Sec. 416.105 Administration.
The Supplemental Security Income for the Aged, Blind, and Disabled
program is administered by the Social Security Administration under
authority delegated by the Secretary of Health and Human Services.
[51 FR 11718, Apr. 7, 1986]
Sec. 416.110 Purpose of program.
The basic purpose underlying the supplemental security income
program is to assure a minimum level of income for people who are age 65
or over, or who are blind or disabled and who do not have sufficient
income and resources to maintain a standard of living at the established
Federal minimum income level. The supplemental security income program
replaces the financial assistance programs for the aged, blind, and
disabled in the 50 States and the District of Columbia for which grants
were made under the Social Security Act. Payments are financed from the
general funds of the United States Treasury. Several basic principles
underlie the program:
(a) Objective tests. The law provides that payments are to be made
to aged, blind, and disabled people who have income and resources below
specified amounts. This provides objective measurable standards for
determining each person's benefits.
(b) Legal right to payments. A person's rights to supplemental
security income payments--how much he gets and under what conditions--
are clearly defined in the law. The area of administrative discretion is
thus limited. If an applicant disagrees with the decision on his claim,
he can obtain an administrative review of the decision and if still not
satisfied, he may initiate court action.
(c) Protection of personal dignity. Under the Federal program,
payments are made under conditions that are as protective of people's
dignity as possible. No restrictions, implied or otherwise, are placed
on how recipients spend the Federal payments.
(d) Nationwide uniformity of standards. The eligibility requirements
and the Federal minimum income level are identical throughout the 50
States and the District of Columbia. This provides assurance of a
minimum income base on which States may build supplementary payments.
(e) Incentives to work and opportunities for rehabilitation. Payment
amounts are not reduced dollar-for-dollar for work income but some of an
applicant's income is counted toward the eligibility limit. Thus,
recipients are encouraged to work if they can. Blind and disabled
recipients with vocational rehabilitation potential are referred to the
appropriate State vocational rehabilitation agencies that offer
rehabilitation services to enable them to enter the labor market.
(f) State supplementation and Medicaid determinations. (1) Federal
supplemental security income payments lessen the variations in levels of
assistance and provide a basic level of assistance throughout the
nation. States are required to provide mandatory minimum State
supplementary payments beginning January 1, 1974, to aged, blind, or
disabled recipients of assistance for the month of December 1973 under
such State's plan approved under title I, X, XIV, or XVI of the Act in
order for the State to be eligible to receive title XIX funds (see
subpart T of this part). These payments must be in an amount sufficient
to ensure that individuals who are converted to the new program will not
have their income reduced
[[Page 615]]
below what it was under the State program for December 1973. In
addition, each State may choose to provide more than the Federal
supplemental security income and/or mandatory minimum State
supplementary payment to whatever extent it finds appropriate in view of
the needs and resources of its citizens or it may choose to provide no
more than the mandatory minimum payment where applicable. States which
provide State supplementary payments can enter into agreements for
Federal administration of the mandatory and optional State supplementary
payments with the Federal Government paying the administrative costs. A
State which elects Federal administration of its supplementation program
must apply the same eligibility criteria (other than those pertaining to
income) applied to determine eligibility for the Federal portion of the
supplemental security income payment, except as provided in sec. 1616(c)
of the Act (see subpart T of this part). There is a limitation on the
amount payable to the Secretary by a State for the amount of the
supplementary payments made on its behalf for any fiscal year pursuant
to the State's agreement with the Secretary. Such limitation on the
amount of reimbursement is related to the State's payment levels for
January 1972 and its total expenditures for calendar year 1972 for aid
and assistance under the appropriate State plan(s) (see subpart T of
this part).
(2) States with Medicaid eligibility requirements for the aged,
blind, and disabled that are identical (except as permitted by
Sec. 416.2111) to the supplemental security income eligibility
requirements may elect to have the Social Security Administration
determine Medicaid eligibility under the State's program for recipients
of supplemental security income and recipients of a federally
administered State supplementary payment. The State would pay half of
Social Security Administration's incremental administrative costs
arising from carrying out the agreement.
[39 FR 28625, Aug. 9, 1974, as amended at 53 FR 12941, Apr. 20, 1988]
Sec. 416.120 General definitions and use of terms.
(a) Terms relating to acts and regulations. As used in this part:
(1) The Act means the Social Security Act as amended (42 U.S.C.
Chap. 7).
(2) Wherever a title is referred to, it means such title of the Act.
(3) Vocational Rehabilitation Act means the act approved June 2,
1920 (41 Stat. 735), 29 U.S.C. 31-42, as amended, and as may be amended
from time to time hereafter.
(b) Secretary; Commissioner; Appeals Council; defined. As used in
this part:
(1) Secretary means the Secretary of Health and Human Services.
(2) Commissioner means the Commissioner of Social Security.
(3) Appeals Council means the Appeals Council of the Office of
Hearings and Appeals in the Social Security Administration or such
member or members thereof as may be designated by the Chairman.
(c) Miscellaneous. As used in this part unless otherwise indicated:
(1) Supplemental security income benefit means the amount to be paid
to an eligible individual (or eligible individual and his eligible
spouse) under title XVI of the Act.
(2) Income means the receipt by an individual of any property or
service which he can apply, either directly or by sale or conversion, to
meeting his basic needs (see subpart K of this part).
(3) Resources means cash or other liquid assets or any real or
personal property that an individual owns and could convert to cash to
be used for support and maintenance (see Sec. 416.1201(a)).
(4) Attainment of age. An individual attains a given age on the
first moment of the day preceding the anniversary of his birth
corresponding to such age.
(5) Couple means an eligible individual and his eligible spouse.
(6) Institution (see Sec. 416.201).
(7) Public institution (see Sec. 416.201).
(8) Resident of a public institution (see Sec. 416.201).
(9) State, unless otherwise indicated, means a State of the United
States, the District of Columbia, or effective January 9, 1978, the
Northern Mariana Islands.
[[Page 616]]
(10) The term United States when used in a geographical sense means
the 50 States, the District of Columbia, and effective January 9, 1978,
the Northern Mariana Islands.
(11) Masculine gender includes the feminine, unless otherwise
indicated.
(12) Section means a section of the regulations in part 416 of this
chapter unless the context indicates otherwise.
(13) Eligible individual means an aged, blind, or disabled
individual who meets all the requirements for eligibility for benefits
under the supplemental security income program.
(14) Eligible spouse means an aged, blind, or disabled individual
who is the husband or wife of another aged, blind, or disabled
individual and who is living with that individual (see
Sec. 416.1801(c)).
(d) Periods of limitation ending on nonwork days. Pursuant to the
Act, where any provision of title XVI, or any provision of another law
of the United States (other than the Internal Revenue Code of 1954)
relating to or changing the effect of title XVI, or any regulation of
the Secretary issued under title XVI, provides for a period within which
an act is required to be done which affects eligibility for or the
amount of any benefit or payment under title XVI or is necessary to
establish or protect any rights under title XVI and such period ends on
a Saturday, Sunday, or Federal legal holiday or on any other day all or
part of which is declared to be a nonworkday for Federal employees by
statute or Executive Order, then such act shall be considered as done
within such period if it is done on the first day thereafter which is
not a Saturday, Sunday, or legal holiday or any other day all or part of
which is declared to be a nonworkday for Federal employees either by
statute or Executive Order. For purposes of this paragraph, the day on
which a period ends shall include the final day of any extended period
where such extension is authorized by law or by the Secretary pursuant
to law. Such extension of any period of limitation does not apply to
periods during which an application for benefits or payments may be
accepted as such an application pursuant to subpart C of this part.
[39 FR 28625, Aug. 9, 1974, as amended at 43 FR 25091, June 9, 1978; 51
FR 11719, Apr. 7, 1986; 60 FR 16374, Mar. 30, 1995]
Sec. 416.121 Receipt of aid or assistance for December 1973 under an approved State plan under title I, X, XIV, or XVI of the Social Security Act.
(a) Recipient of aid or assistance defined. As used in this part
416, the term individual who was a recipient of aid or assistance for
December 1973 under a State plan approved under title I, X, XIV, or XVI
of the Social Security Act means an individual who correctly received
aid or assistance under such plan for December 1973 even though such aid
or assistance may have been received subsequent to December 1973. It
also includes an individual who filed an application prior to January
1974 and was otherwise eligible for aid or assistance for December 1973
under the provisions of such State plan but did not in fact receive such
aid or assistance. It does not include an individual who received aid or
assistance because of the provisions of 45 CFR 205.10(a) (pertaining to
continuation of assistance until a fair hearing decision is rendered),
as in effect in December 1973, and with respect to whom it is
subsequently determined that such aid or assistance would not have been
received without application of the provisions of such 45 CFR 205.10(a).
(b) Aid or assistance defined. As used in this part 416, the term
aid or assistance means aid or assistance as defined in titles I, X,
XIV, and XVI of the Social Security Act, as in effect in December 1973,
and such aid or assistance is eligible for Federal financial
participation in accordance with those titles and the provisions of 45
CFR Chapter II as in effect in December 1973.
(c) Determinations of receipt of aid or assistance for December
1973. For the purpose of application of the provisions of this part 416,
the determination as to whether an individual was a recipient of aid or
assistance for December 1973 under a State plan approved under title I,
X, XIV, or XVI of the Social Security Act will be made by the Social
[[Page 617]]
Security Administration. In making such determination, the Social
Security Administration may take into consideration a prior
determination by the appropriate State agency as to whether the
individual was eligible for aid or assistance for December 1973 under
such State plan. Such prior determination, however, shall not be
considered as conclusive in determining whether an individual was a
recipient of aid or assistance for December 1973 under a State plan
approved under title I, X, XIV, or XVI of the Social Security Act for
purposes of application of the provisions of this part 416.
(d) Special provision for disabled recipients. For purposes of
Sec. 416.907, the criteria and definitions enumerated in paragraphs (a)
through (c) of this section are applicable in determining whether an
individual was a recipient of aid or assistance (on the basis of
disability) under a State plan approved under title XIV or XVI of the
Act for a month prior to July 1973. It is not necessary that the aid or
assistance for December 1973 and for a month prior to July 1973 have
been paid under the State plan of the same State.
[39 FR 32024, Sept. 4, 1974; 39 FR 33207, Sept. 16, 1974, as amended at
51 FR 11719, Apr. 7, 1986]
Subpart B--Eligibility
Sec. 416.200 Introduction.
You are eligible for SSI benefits if you meet all the basic
requirements listed in Sec. 416.202. You must give us any information we
request and show us necessary documents or other evidence to prove that
you meet these requirements. We determine your eligibility for each
month on the basis of your countable income in that month. You continue
to be eligible unless you lose your eligibility because you no longer
meet the basic requirements or because of one of the reasons given in
Secs. 416.210 through 416.214.
[50 FR 48570, Nov. 26, 1985]
Sec. 416.201 General definitions and terms used in this subpart.
Any 9-month period means any period of 9 full calendar months ending
with any full calendar month throughout which (as defined in
Sec. 416.211) an individual is residing in a public emergency shelter
for the homeless (as defined in this section) and including the
immediately preceding 8 consecutive full calendar months. January 1988
is the earliest possible month in any 9-month period.
Educational or vocational training means a recognized program for
the acquisition of knowledge or skills to prepare an individual for
gainful employment. For purposes of these regulations, educational or
vocational training does not include programs limited to the acquisition
of basic life skills including but not limited to eating and dressing.
Emergency shelter means a shelter for individuals whose homelessness
poses a threat to their lives or health.
Homeless individual is one who is not in the custody of any public
institution and has no currently usable place to live. By custody we
mean the care and control of an individual in a mandatory residency
where the individual's freedom to come and go as he or she chooses is
restricted. An individual in a public institution awaiting discharge and
placement in the community is in the custody of that institution until
discharged and is not homeless for purposes of this provision.
Institution means an establishment that makes available some
treatment or services in addition to food and shelter to four or more
persons who are not related to the proprietor.
Medical care facility means a hospital (defined in section 1861(e)
of the Act), a skilled nursing facility (defined in section 1861(j) of
the Act), or an intermediate care facility (defined in section 1905(c)
of the Act).
[[Page 618]]
Public emergency shelter for the homeless means a public institution
or that part of a public institution used as an emergency shelter by the
Federal government, a State, or a political subdivision of a State,
primarily for making available on a temporary basis a place to sleep,
food, and some services or treatment to homeless individuals. A medical
facility (as defined in Sec. 416.201) or any holding facility,
detoxification center, foster care facility, or the like that has
custody of the individual is not a public emergency shelter for the
homeless. Similarly, transitional living arrangements such as a halfway
house that are part of an insitution's plan to facilitate the
individual's adjustment to community living are not public emergency
shelters for the homeless.
Public institution means an institution that is operated by or
controlled by the Federal government, a State, or a political
subdivision of a State such as a city or county. The term public
institution does not include a publicly operated community residence
which serves 16 or fewer residents.
Resident of a public institution means a person who can receive
substantially all of his or her food and shelter while living in a
public institution. The person need not be receiving treatment and
services available in the institution and is a resident regardless of
whether the resident or anyone else pays for all food, shelter, and
other services in the institution. A person is not a resident of a
public institution if he or she is living in a public educational
institution for the primary purpose of receiving educational or
vocational training as defined in this section. A resident of a public
institution means the same thing as an inmate of a public institution as
used in section 1611(e)(1)(A) of the Social Security Act. (See
Sec. 416.211(b), (c), and (d) of this subpart for exceptions to the
general limitation on the eligibility for Supplemental Security Income
benefits of individuals who are residents of a public institution.)
SSI means supplemental security income.
State assistance means payments made by a State to an aged, blind,
or disabled person under a State plan approved under title I, X, XIV, or
XVI (AABD) of the Social Security Act which was in effect before the SSI
Program.
We or Us means the Social Security Administration.
You or Your means the person who applies for or receives SSI
benefits or the person for whom an application is filed.
[47 FR 3103, Jan. 22, 1982, as amended at 49 FR 19639, May 19, 1984; 50
FR 48570, Nov. 26, 1985; 50 FR 51517, Dec. 18, 1985; 54 FR 19164, May 4,
1989]
Sec. 416.202 Who may get SSI benefits.
You are eligible for SSI benefits if you meet all of the following
requirements:
(a) You are--
(1) Aged 65 or older (subpart H);
(2) Blind (subpart I); or
(3) Disabled (subpart I).
(b) You are a resident of the United States (Sec. 416.1603), and--
(1) A citizen or a national of the United States (Sec. 416.1610);
(2) An alien lawfully admitted for permanent residence in the United
States (Sec. 416.1615);
(3) An alien permanently residing in the United States under color
of law (Sec. 416.1618); or
(4) A child of armed forces personnel living overseas as described
in Sec. 416.216.
(c) You do not have more income than is permitted (subparts K and
D).
(d) You do not have more resources than are permitted (subpart L).
(e) You are disabled, drug addiction or alcoholism is a contributing
factor material to the determination of disability (see Sec. 416.935),
and you have not previously received a total of 36 months of Social
Security benefit payments when appropriate treatment was available or 36
months of SSI benefits on the basis of disability where drug addiction
or alcoholism was a contributing factor material to the determination of
disability.
(f) You file an application for SSI benefits (subpart C).
[47 FR 3103, Jan. 22, 1982, as amended at 58 FR 4897, Jan. 19, 1993; 60
FR 8149, Feb. 10, 1995; 61 FR 10277, Mar. 13, 1996]
[[Page 619]]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, in Sec. 416.202
paragraph (b)(4) was revised, effective May 13, 1996. For the
convenience of the reader, the superseded text is set forth below.
Sec. 416.202 Who may get SSI benefits.
* * * * *
(b) * * *
(4) A child of armed forces personnel living overseas as described
in Sec. 416.215.
* * * * *
Sec. 416.203 Initial determinations of SSI eligibility.
(a) What happens when you apply for SSI benefits. When you apply for
SSI benefits we will ask you for documents and any other information we
need to make sure you meet all the requirements. We will ask for
information about your income and resources and about other eligibility
requirements and you must answer completely. We will help you get any
documents you need but do not have.
(b) How we determine your eligibility for SSI benefits. We determine
that you are eligible for SSI benefits for a given month if you meet the
requirements in Sec. 416.202 in that month. However, we usually
determine the amount of your SSI benefits for that month based on your
income in an earlier month (see Sec. 416.420). Thus, it is possible for
you to meet the eligibility requirements in the given month but receive
no benefit payment for that month.
[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985]
Sec. 416.204 Redeterminations of SSI eligibility.
(a) Redeterminations defined. A redetermination is a review of your
eligibility to make sure that you are still eligible and that you are
receiving the right amount of SSI benefits. This review deals with the
requirements for eligibility other than whether you are still disabled
or blind. Continuation of disability or blindness reviews are discussed
in Secs. 416.989 and 416.990.
(b) When we make redeterminations. (1) We redetermine your
eligibility on a scheduled basis at periodic intervals. The length of
time between scheduled redeterminations varies depending on the
likelihood that your situation may change in a way that affects your
benefits.
(2) We may also redetermine your eligibility when you tell us (or we
otherwise learn) of a change in your situation which affects your
eligibility or the amount of your benefit.
(c) The period for which a redetermination applies: (1) The first
redetermination applies to--
(i) The month in which we make the redetermination;
(ii) All months beginning with the first day of the latest of the
following:
(A) The month of first eligibility or re-eligibility; or
(B) The month of application; or
(C) The month of deferred or updated development; and
(iii) Future months until the second redetermination.
(2) All other redeterminations apply to--
(i) The month in which we make the redetermination;
(ii) All months beginning with the first day of the month the last
redetermination was initiated; and
(iii) Future months until the next redetermination.
(3) If we made two redeterminations which cover the same month, the
later redetermination is the one we apply to that month.
[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 48570, Nov. 26, 1985; 58
FR 64893, Dec. 10, 1993]
Reasons Why You May Not Get SSI Benefits for Which You Are Otherwise
Eligible
Sec. 416.210 You do not apply for other benefits.
(a) General rule. You are not eligible for SSI benefits if you do
not apply for all other benefits for which you may be eligible.
(b) What ``other benefits'' includes. ``Other benefits'' includes
any payments for which you can apply that are available to you on an
ongoing or one-time basis of a type that includes annuities, pensions,
retirement benefits, or disability benefits. For example, ``other
benefits'' includes veterans' compensation and pensions, workers'
[[Page 620]]
compensation payments, Social Security insurance benefits and
unemployment insurance benefits. ``Other benefits'' for which you are
required to apply do not include payments that you may be eligible to
receive from a fund established by a State to aid victims of crime. (See
Sec. 416.1124(c)(17).)
(c) Our notice to you. We will give you a dated, written notice that
will tell you about any other benefits that we think you are likely to
be eligible for. In addition, the notice will explain that your
eligibility for SSI benefits will be affected if you do not apply for
those other benefits.
(d) What you must do to apply for other benefits. In order to apply
for other benefits, you must file any required applications and do
whatever else is needed so that your eligibility for the other benefits
can be determined. For example, if any documents (such as a copy of a
birth certificate) are required in addition to the application, you must
submit them.
(e) What happens if you do not apply for the other benefits. (1) If
you do not apply for the other benefits within 30 days from the day that
you receive our written notice, you are not eligible for SSI benefits.
This means that if you are applying for SSI benefits, you cannot receive
them. If you are receiving SSI benefits, your SSI benefits will stop. In
addition, you will have to repay us for any SSI benefits that you
received beginning with the month that you received our written notice.
We assume (unless you prove otherwise) that you received our written
notice 5 days after the date shown on the notice. We will also find that
you are not eligible for SSI benefits if you file the required
application for other benefits but do not take other necessary steps to
obtain them.
(2) We will not find you ineligible for SSI benefits if you have a
good reason for not applying for the other benefits within the 30-day
period or taking other necessary steps to obtain them. In determining
whether a good reason exists, we will take into account any physical,
mental, educational, or linguistic limitations (including any lack of
facility with the English language) which may have caused you to fail to
apply for other benefits. You may have a good reason if, for example--
(i) You are incapacitated (because of illness you were not able to
apply); or
(ii) It would be useless for you to apply (you once applied for the
benefits and the reasons why you were turned down have not changed).
[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 5573, Feb. 11, 1985; 50
FR 14211, April 11, 1985; 59 FR 1635, Jan. 12, 1994; 61 FR 1712, Jan.
23, 1996]
Sec. 416.211 You are a resident of a public institution.
(a) General rule. (1) Subject to the exceptions described in
paragraphs (b), (c), and (d) of this section and Sec. 416.212, you are
not eligible for SSI benefits for any month throughout which you are a
resident of a public institution as defined in Sec. 416.201. In
addition, if you are a resident of a public institution when you apply
for SSI benefits and meet all other eligibility requirements, you cannot
be eligible for benefits until the day of your release from the
institution. The amount of your SSI benefits for the month of your
release will be prorated (see subpart D of this part) beginning with the
date of your release.
(2) By throughout a month we mean that you reside in an institution
as of the beginning of a month and stay the entire month. If you have
been a resident of a public institution, you remain a resident if you
are transferred from one public institution to another or if you are
temporarily absent for a period of not more than 14 consecutive days. A
person also is a resident of an institution throughout a month if he or
she is born in the institution during the month and resides in the
institution the rest of the month or resides in the institution as of
the beginning of a month and dies in the institution during the month.
(b) Exception--SSI benefits payable at a reduced rate. You may be
eligible for SSI benefits at a reduced rate described in Sec. 416.414,
if--
(1)(i) The public institution in which you reside throughout a month
is a medical care facility for which Medicaid (title XIX of the Social
Security Act) pays a substantial part (more than 50 percent) of the cost
of your care; or
[[Page 621]]
(ii) You reside for part of a month in a public institution and the
rest of the month in a public institution or private medical facility
where Medicaid pays more than 50 percent of the cost of your care; and
(2) You are ineligible in that month for a benefit described in
Sec. 416.212 that is payable to a person temporarily confined in a
medical facility.
(c) Exception for publicly operated community residences which serve
no more than 16 residents. (1) General rule. If you are a resident of a
publicly operated community residence which serves no more than 16
residents, you may be eligible for SSI benefits.
(2) Services that a facility must provide in order to be a community
residence. To be a community residence, a facility must provide food and
shelter. In addition, it must make available some other services. For
example, the other services could be--
(i) Social services;
(ii) Help with personal living activities;
(iii) Training in socialization and life skills; or
(iv) Providing occasional or incidental medical or remedial care.
(3) Serving no more than 16 residents. A community residence serves
no more than 16 residents if--
(i) It is designed and planned to serve no more than 16 residents,
or the design and plan were changed to serve no more than 16 residents;
and
(ii) It is in fact serving 16 or fewer residents.
(4) Publicly operated. A community residence is publicly operated if
it is operated or controlled by the Federal government, a State, or a
political subdivision of a State such as a city or county.
(5) Facilities which are not a publicly operated community
residence. If you live in any of the following facilities, you are not a
resident of a publicly operated community residence:
(i) A residential facility which is on the grounds of or next to a
large institution or multipurpose complex;
(ii) An educational or vocational training institution whose main
function is to provide an approved, accredited, or recognized program to
some or all of those who live there;
(iii) A jail or other facility where the personal freedom of anyone
who lives there is restricted because that person is a prisoner, is
being held under court order, or is being held until charges against
that person are disposed of; or
(iv) A medical care facility (defined in Sec. 416.201).
(d) Exception for residents of public emergency shelters for the
homeless. For months after December 1987, if you are a resident of a
public emergency shelter for the homeless (defined in Sec. 416.201) you
may be eligible for SSI benefits for any 6 months throughout which you
reside in a shelter in any 9-month period (defined in Sec. 416.201). The
6 months do not need to be consecutive and we will not count as part of
the 6 months any prior months throughout which you lived in the shelter
but did not receive SSI benefits. We will also not count any months
throughout which you lived in the shelter and received SSI benefits
prior to January 1988.
Example: You are receiving SSI benefits when you lose your home and
enter a public emergency shelter for the homeless on March 10, 1988. You
remain a resident of a shelter until October 10, 1988. Since you were
not in the shelter throughout the month of March, you are eligible to
receive your benefit for March without having this month count towards
the 6-month period. The last full month throughout which you reside in
the shelter is September 1988. Therefore, if you meet all eligibility
requirements, you will also be paid benefits for April through September
(6 months during the 9-month period September 1988 back through January
1988). If you are otherwise eligible, you will receive your SSI benefit
for October when you left the shelter, since you were not a resident of
the shelter throughout that month.
[47 FR 3103, Jan. 22, 1982, as amended at 50 FR 51518, Dec. 18, 1985; 51
FR 13492, Apr. 21, 1986; 51 FR 17332, May 12, 1986; 51 FR 34464, Sept.
29, 1986; 54 FR 19164, May 4, 1989; 61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, in Sec. 416.211
paragraphs (a)(1) and (b) were revised, effective May 13, 1996. For the
convenience of the reader, the superseded text is set forth below.
Sec. 416.211 You are a resident of a public institution.
(a) * * * (1) You are not eligible for SSI benefits for any month
throughout which you
[[Page 622]]
are a resident of a public institution (defined in Sec. 416.201). In
addition, if you are a resident of a public institution when you first
apply for SSI benefits and meet all other eligibility requirements you
cannot be eligible until the day of your release from the institution.
The amount of SSI benefits for the month of your release will be
prorated (see subpart D) beginning with the date of your release.
* * * * *
(b) Exception for medical care facilities. You may be eligible for
SSI benefits at the reduced rate described in Sec. 416.414 if--
(1) The public institution in which you reside throughout a month--
(i) Is a medical care facility; and
(ii) Medicaid (title XIX of the Act) pays a substantial part (more
than 50 percent) of the cost of your care; or
(2) You reside for part of a month in a public institution and for
the rest of the month are in a public or private medical care facility
where Medicaid pays more than 50 percent of the cost of your care.
* * * * *
Sec. 416.212 Continuation of full benefits in certain cases of medical confinement.
(a) Benefits payable under section 1611(e)(1)(E) of the Social
Security Act. Subject to eligibility and regular computation rules (see
subparts B and D of this part), you are eligible for the benefits
payable under section 1611(e)(1)(E) of the Social Security Act for up to
2 full months of medical confinement during which your benefits would
otherwise be suspended because of residence in a public institution or
reduced because of residence in a public or private institution where
Medicaid pays over 50 percent of the cost of your care if--
(1) You were eligible under either section 1619(a) or section
1619(b) of the Social Security Act in the month before the first full
month of residence in an institution;
(2) The institution agrees that no portion of these benefits will be
paid to or retained by the institution excepting nominal sums for
reimbursement of the institution for any outlay for a recipient's
personal needs (e.g., personal hygiene items, snacks, candy); and
(3) The month of your institutionalization is one of the first 2
full months of a continuous period of confinement.
(b) Benefits payable under section 1611(e)(1)(G) of the Social
Security Act. (1) Subject to eligibility and regular computation rules
(see subparts B and D of this part), you are eligible for the benefits
payable under section 1611(e)(1)(G) of the Social Security Act for up to
3 full months of medical confinement during which your benefits would
otherwise be suspended because of residence in a public institution or
reduced because of residence in a public or private institution where
Medicaid pays over 50 percent of the cost if--
(i) You were eligible for SSI cash benefits and/or federally
administered State supplementary payments for the month immediately
prior to the first full month you were a resident in such institution;
(ii) The month of your institutionalization is one of the first 3
full months of a continuous period of confinement;
(iii) A physician certifies, in writing, that you are not likely to
be confined for longer than 90 full consecutive days following the day
you entered the institution, and the certification is submitted to SSA
no later than the day of discharge or the 90th full day of confinement,
whichever is earlier; and
(iv) You need to pay expenses to maintain the home or living
arrangement to which you intend to return after institutionalization and
evidence regarding your need to pay these expenses is submitted to SSA
no later than the day of discharge or the 90th full day of confinement,
whichever is earlier.
(2) We will determine the date of submission of the evidence
required in paragraphs (b)(1) (iii) and (iv) of this section to be the
date we receive it or, if mailed, the date of the postmark.
(c) Prohibition against using benefits for current maintenance. If
the recipient is a resident in an institution, the recipient or his or
her representative payee will not be permitted to pay the institution
any portion of benefits payable under section 1611(e)(1)(G) excepting
nominal sums for reimbursement of the institution for any outlay for the
recipient's personal needs (e.g., personal hygiene items, snacks,
candy). If
[[Page 623]]
the institution is the representative payee, it will not be permitted to
retain any portion of these benefits for the cost of the recipient's
current maintenance excepting nominal sums for reimbursement for outlays
for the recipient's personal needs.
[61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, Sec. 416.212 was
redesignated as Sec. 416.213 and a new Sec. 416.212 was added, effective
May 13, 1996.
Sec. 416.213 You do not accept vocational rehabilitation services.
If you are disabled or blind, you must accept any appropriate
vocational rehabilitation services offered to you by the State agency to
which we refer you. If you refuse these services, you are not eligible
for benefits unless you have a good reason for not accepting them. The
rules on vocational rehabilitation services are in subpart Q.
[47 FR 3103, Jan. 22, 1982. Redesignated at 61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, Sec. 416.212 was
redesignated as Sec. 416.213, effective May 13, 1996.
Sec. 416.214 You are disabled and drug addiction or alcoholism is a contributing factor material to the determination of disability.
(a) If you do not comply with treatment requirements. If you receive
benefits because you are disabled and drug addiction or alcoholism is a
contributing factor material to the determination of disability (see
Sec. 416.935), you must avail yourself of any appropriate treatment for
your drug addiction or alcoholism at an approved institution or facility
when this treatment is available and make progress in your treatment.
You are not eligible for SSI benefits beginning with the month after the
month you are notified in writing that we determined that you have
failed to comply with the treatment requirements. If your benefits are
suspended because you failed to comply with treatment requirements, you
will not be eligible to receive benefits until you have demonstrated
compliance with treatment for a period of time, as specified in
Sec. 416.1326. The rules regarding treatment for drug addiction and
alcoholism are in subpart I of this part.
(b) If you previously received 36 months of SSI or Social Security
benefits. You are not eligible for SSI benefits by reason of disability
on the basis of drug addiction or alcoholism as described in
Sec. 416.935 if--
(1) You previously received a total of 36 months of SSI benefits on
the basis of disability and drug addiction or alcoholism was a
contributing factor material to the determination of disability for
months beginning March 1995, as described in Sec. 416.935. Not included
in these 36 months are months before March 1995 and months for which
your benefits were suspended for any reason. The 36-month limit is no
longer effective for months beginning after September 2004; or
(2) You previously received a total of 36 months of Social Security
benefits counted in accordance with the provisions of Secs. 404.316,
404.337, and 404.352 by reason of disability on the basis of drug
addiction or alcoholism as described in Sec. 404.1535.
[60 FR 8149, Feb. 10, 1995. Redesignated at 61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, Sec. 416.213 was
redesignated as Sec. 416.214, effective May 13, 1996.
Sec. 416.215 You leave the United States.
You lose your eligibility for SSI benefits for any month during all
of which you are outside of the United States. If you are outside of the
United States for 30 days or more in a row, you are not considered to be
back in the United States until you are back for 30 days in a row. You
may again be eligible for SSI benefits in the month in which the 30 days
end if you continue to meet all other eligibility requirements.
By United States, we mean the 50 States, the District of Columbia, and
the Northern Mariana Islands.
[47 FR 3103, Jan. 22, 1982. Redesignated at 61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, Sec. 416.214 was
redesignated as Sec. 416.215, effective May 13, 1996.
Sec. 416.216 You are a child of armed forces personnel living overseas.
(a) General rule. You may be eligible for continuation of SSI
benefits if you live overseas and if--
[[Page 624]]
(1) You are a child as described in Sec. 416.1856;
(2) You are a citizen of the United States;
(3) You are living with a parent as described in Sec. 416.1881 who
is a member of the armed forces of the United States assigned to
permanent duty ashore outside the United States; and
(4) You were eligible for an SSI benefit (including any federally
administered State supplementary payment) for the month before your
parent reported for such duty.
(b) Living with. You are considered to be living with your parent
who is a member of the armed forces if--
(1) You physically live with the parent who is a member of the armed
forces overseas; or
(2) You are not living in the same household as the military parent
but your presence overseas is due to his or her permanent duty
assignment.
[58 FR 4897, Jan. 19, 1993; 58 FR 9597, Feb. 22, 1993, as amended at 59
FR 41400, Aug. 12, 1994. Redesignated at 61 FR 10277, Mar. 13, 1996]
Effective Date Note: At 61 FR 10277, Mar. 13, 1996, Sec. 416.215 was
redesignated as Sec. 416.216, effective May 13, 1996.
Eligibility for Increased Benefits Because of Essential Persons
Sec. 416.220 General.
If you are a qualified individual and have an essential person you
may be eligible for increased benefits. You may be a qualified
individual and have an essential person only if you received benefits
under a State assistance plan approved under title I, X, XIV, or XVI
(AABD) of the Act for December 1973. Definitions and rules that apply to
qualified individuals and essential persons are discussed in
Secs. 416.221 through 416.223.
Sec. 416.221 Who is a qualified individual.
You are a qualified individual if--
(a) You received aid or assistance for the month of December 1973
under a State plan approved under title I, X, XIV, or XVI (AABD) of the
Act;
(b) The State took into account the needs of another person in
deciding your need for the State assistance for December 1973;
(c) That other person was living in your home in December 1973; and
(d) That other person was not eligible for State assistance for
December 1973.
Sec. 416.222 Who is an essential person.
(a) General rule. A person is an essential person if--
(1) That person has continuously lived in the home of the same
qualified individual since December 1973;
(2) That person was not eligible for State assistance for December
1973;
(3) That person was never eligible for SSI benefits in his or her
own right or as an eligible spouse; and
(4) There are State records which show that under a State plan in
effect for June 1973, the State took that person's needs into account in
determining the qualified individual's need for State assistance for
December 1973.
Any person who meets these requirements is an essential person. This
means that the qualified individual can have more than one essential
person.
(b) Absence of an essential person from the home of a qualified
individual. An essential person may be temporarily absent from the house
of a qualified individual and still be an essential person. For example,
the essential person could be hospitalized. We consider an absence to
temporary if--
(1) The essential person intends to return;
(2) The facts support this intention;
(3) It is likely that he or she will return; and
(4) The absence is not longer than 90 days.
(c) Absence of a qualified individual from his or her home. You may
be temporarily absent from your home and still have an essential person.
For example, you could be hospitalized. We consider an absence to be
temporary if--
(1) You intend to return;
(2) The facts support your intention;
(3) It is likely that you will return; and
(4) Your absence does not exceed six months.
(d) Essential person becomes eligible for SSI benefits. If an
essential person becomes eligible for SSI benefits, he or she will no
longer be an essential person beginning with the month that he
[[Page 625]]
or she becomes eligible for the SSI benefits.
Sec. 416.223 What happens if you are a qualified individual.
(a) Increased SSI benefits. We may increase the amount of your SSI
benefits if--
(1) You are a qualified individual; and
(2) You have one or more essential persons in your home.
In subpart D, we explain how these increased benefits are calculated.
(b) Income and resource limits. If you are a qualified individual,
we consider the income and resources of an essential person in your home
to be yours. You are eligible for increased SSI benefits if--
(1) Your resources which are counted do not exceed the limit for SSI
eligibility purposes (see subpart L); and
(2) Your income which is counted for SSI eligibility purposes (see
subpart K) does not exceed the sum of--
(i) The SSI Federal benefit rate (see subpart D); and
(ii) The proper number of essential person increments (for the value
of an essential person increment see subpart D). One essential person
increment is added to the SSI Federal benefit rate for each essential
person in your home.
(c) Excluding the income and resources of an essential person. (1)
While an essential person increment increases your SSI Federal benefit
rate, that person's income which we consider to be yours may actually
result in a lower monthly payment to you. We will discuss this with you
and explain how an essential person affects your benefit. If you choose
to do so, you may ask us in writing to determine your eligibility
without your essential person or, if you have more than one essential
person, without one or more of your essential persons. We will then
figure the amount of your SSI benefits without counting as your own
income and resources of the essential persons that you specify and we
will end the essential person increment for those essential persons. You
should consider this carefully because once you make the request, you
cannot withdraw it. We will make the change beginning with the month
following the month that you make the request.
(2) We will not include the income and resources of the essential
person if the person's income or resources would cause you to lose your
eligibility. The loss of the essential person increment will be
permanent.
Sec. 416.250 Experimental, pilot, and demonstration projects in the SSI program.
(a) Authority and purpose. Section 1110(b) of the Act authorizes the
Secretary to develop and conduct experimental, pilot, and demonstration
projects to promote the objectives or improve the administration of the
SSI program. These projects will test the advantages of altering certain
requirements, conditions, or limitations for recipients and test
different administrative methods that apply to title XVI applicants and
recipients.
(b) Altering benefit requirements, limitations or conditions.
Notwithstanding any other provision of this part, the Secretary is
authorized to waive any of the requirements, limitations or conditions
established under title XVI of the Act and impose additional
requirements, limitations or conditions for the purpose of conducting
experimental, pilot, or demonstration projects. The projects will alter
the provisions that currently apply to applicants and recipients to test
their effect on the program. If, as a result of participation in a
project under this section, a project participant becomes ineligible for
Medicaid benefits, the Secretary shall make arrangements to extend
Medicaid coverage to such participant and shall reimburse the States for
any additional expenses incurred due to such continued participation.
(c) Applicability and scope--(1) Participants and nonparticipants.
If you are selected to participate in an experimental, pilot, or
demonstration project, we may temporarily set aside one or more current
requirements, limitations or conditions of eligibility and apply
alternative provisions to you. We may also modify current methods of
administering title XVI as part of a project and apply alternative
procedures or policies to you. The alternative provisions or methods of
administration used in the projects will not substantially reduce your
total income
[[Page 626]]
or resources as a result of your participation or disadvantage you in
comparison to current provisions, policies, or procedures. If you are
not selected to participate in the experimental, or pilot, or
demonstration projects (or if you are placed in a control group which is
not subject to the alternative requirements, limitations, or conditions)
we will continue to apply the current requirements, limitations or
conditions of eligibility to you.
(2) Alternative provisions or methods of administration. The
alternative requirements, limitations or conditions that apply to you in
an experimental, pilot, or demonstration project may include any of the
factors needed for aged, blind, or disabled persons to be eligible for
SSI benefits. Experiments that we conduct will include, to the extent
feasible, applicants and recipients who are under age 18 as well as
adults and will include projects to ascertain the feasibility of
treating drug addicts and alcoholics.
(d) Selection of participants. Participation in the SSI project will
be on a voluntary basis. The voluntary written consent necessary in
order to participate in any experimental, pilot, or demonstration
project may be revoked by the participant at any time.
(e) Duration of experimental, pilot, and demonstration projects. A
notice describing each experimental, pilot, or demonstration project
will be published in the Federal Register before each project is placed
in operation. Each experimental, pilot and demonstration project will
have a termination date (up to 10 years from the start of the project).
[48 FR 7576, Feb. 23, 1983, as amended at 52 FR 37605, Oct. 8, 1987]
Special Provisions for People Who Work Despite a Disabling Impairment
Sec. 416.260 General.
The regulations in Secs. 416.260 through 416.269 describe the rules
for determining eligibility for special SSI cash benefits and for
special SSI eligibility status for an individual who works despite a
disabling impairment. Under these rules an individual who works despite
a disabling impairment may qualify for special SSI cash benefits and in
most cases for Medicaid benefits when his or her gross earned income
exceeds the applicable dollar amount which ordinarily represents SGA
described in Sec. 416.974(b)(2). The calculation of this gross earned
income amount, however, is not to be considered an actual SGA
determination. Also, for purposes of determining eligibility or
continuing eligibility for Medicaid benefits, a blind or disabled
individual (no longer eligible for regular SSI benefits or for special
SSI cash benefits) who, except for earnings, would otherwise be eligible
for SSI cash benefits may be eligible for a special SSI eligibility
status under which he or she is considered to be a blind or disabled
individual receiving SSI benefits. We explain the rules for eligibility
for special SSI cash benefits in Secs. 416.261 and 416.262. We explain
the rules for the special SSI eligibility status in Secs. 416.264
through 416.269.
[59 FR 41403, Aug. 12, 1994]
Sec. 416.261 What are special SSI cash benefits and when are they payable.
Special SSI cash benefits are benefits that we may pay you in lieu
of regular SSI benefits because your gross earned income in a month of
initial eligibility for regular SSI benefits exceeds the amount
ordinarily considered to represent SGA under Sec. 416.974(b)(2). You
must meet the eligibility requirements in Sec. 416.262 in order to
receive special SSI cash benefits. Special SSI cash benefits are not
payable for any month in which your countable income exceeds the limits
established for the SSI program (see subpart K of this part). If you are
eligible for special SSI cash benefits, we consider you to be a disabled
individual receiving SSI benefits for purposes of eligibility for
Medicaid. We compute the amount of special SSI cash benefits according
to the rules in subpart D of this part. If your State makes
supplementary payments which we administer under a Federal-State
agreement, and if your State elects to supplement the special SSI cash
benefits, the rules in subpart T of this part will apply to these
payments.
[47 FR 15324, Apr. 9, 1982, as amended at 50 FR 46763, Nov. 13, 1985; 59
FR 41403, Aug. 12, 1994]
[[Page 627]]
Sec. 416.262 Eligibility requirements for special SSI cash benefits.
You are eligible for special SSI cash benefits if you meet the
following requirements--
(a) You were eligible for a regular SSI benefit or a federally
administered State supplementary payment (see Sec. 416.2001) in a month
before the month for which we are determining your eligibility for
special SSI cash benefits as long as that month was not in a prior
period of eligibility which has terminated according to Secs. 416.1331
through 416.1335;
(b) In the month for which we are making the determination, your
gross earned income exceeds the amount ordinarily considered to
represent SGA under Sec. 416.974(b)(2);
(c) You continue to have a disabling impairment;
(d) If your disability is based on a determination that drug
addiction or alcoholism is a contributing factor material to the
determination of disability as described in Sec. 416.935, you have not
yet received SSI cash benefits, special SSI cash benefits, or special
SSI eligibility status for a total of 36 months, or Social Security
benefit payments when treatment was available for a total of 36 months;
and
(e) You meet all the nondisability requirements for eligibility for
SSI benefits (see Sec. 416.202).
We will follow the rules in this subpart in determining your eligibility
for special SSI cash benefits.
[47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 60
FR 8149, Feb. 10, 1995]
Sec. 416.263 No additional application needed.
We do not require you to apply for special cash benefits nor is it
necessary for you to apply to have the special SSI eligibility status
determined. We will make these determinations automatically.
[47 FR 15324, Apr. 9, 1982]
Sec. 416.264 When does the special SSI eligibility status apply.
The special SSI eligibility status applies for the purposes of
establishing or maintaining your eligibility for Medicaid. For these
purposes we continue to consider you to be a blind or disabled
individual receiving benefits even though you are in fact no longer
receiving regular SSI benefits or special SSI cash benefits. You must
meet the eligibility requirements in Sec. 416.265 in order to qualify
for the special SSI eligibility status. Special SSI eligibility status
also applies for purposes of reacquiring status as eligible for regular
SSI benefits or special SSI cash benefits.
[59 FR 41404, Aug. 12, 1994]
Sec. 416.265 Requirements for the special SSI eligibility status.
In order to be eligible for the special SSI eligibility status, you
must have been eligible to receive a regular SSI benefit or a federally
administered State supplementary payment (see Sec. 416.2001) in a month
before the month for which we are making the special SSI eligibility
status determination. The month you were eligible for a regular SSI
benefit or a federally administered State supplementary payment may not
be in a prior period of eligibility which has been terminated according
to Secs. 416.1331 through 416.1335. For periods prior to May 1, 1991,
you must be under age 65. Also, we must establish that:
(a) You are blind or you continue to have a disabling impairment
which, if drug addiction or alcoholism is a contributing factor material
to the determination of disability as described in Sec. 416.935, has not
resulted in your receiving SSI cash benefits, special SSI cash benefits,
or special SSI eligibility status for a total of 36 months, or Social
Security benefit payments when treatment was available for a total of 36
months;
(b) Except for your earnings, you meet all the nondisability
requirements for eligibility for SSI benefits (see Sec. 416.202);
(c) The termination of your eligibility for Medicaid would seriously
inhibit your ability to continue working (see Sec. 416.268); and
(d) Your earnings after the exclusions in Sec. 416.1112(c) (6), (8),
and (9) are not sufficient to allow you to provide yourself with a
reasonable equivalent of the
[[Page 628]]
benefits (SSI benefits, federally administered State supplementary
payments, Medicaid, and publicly-funded attendant care services,
including personal care assistance under Sec. 416.269(d)) which would be
available to you if you did not have those earnings (see Sec. 416.269).
[47 FR 15324, Apr. 9, 1982, as amended at 59 FR 41404, Aug. 12, 1994; 59
FR 49291, Sept. 27, 1994; 60 FR 8149, Feb. 10, 1995]
Sec. 416.266 Continuation of SSI status for Medicaid
If we stop your benefits because of your earnings and you are
potentially eligible for the special SSI eligibility status you will
continue to be considered an SSI recipient for purposes of eligibility
for Medicaid during the time it takes us to determine whether the
special eligibility status applies to you.
[47 FR 15324, Apr. 9, 1982]
Sec. 416.267 General.
We determine whether the special SSI eligibility status applies to
you by verifying that you continue to be blind or have a disabling
impairment by applying the rules in subpart I of this part, and by
following the rules in this subpart to determine whether you meet the
requirements in Sec. 416.265(b). If you do not meet these requirements
we determine that the special eligibility status does not apply. If you
meet these requirements, then we apply special rules to determine if you
meet the requirements of Sec. 416.265(c) and (d). If for the period
being evaluated, you meet all of the requirements in Sec. 416.265 we
determine that the special status applies to you.
[47 FR 15324, Apr. 9, 1982]
Sec. 416.268 What is done to determine if you must have Medicaid in order to work.
For us to determine that you need Medicaid benefits in order to
continue to work, you must establish:
(a) That you are currently using or have received services which
were paid for by Medicaid during the period which began 12 months before
our first contact with you to discuss this use; or
(b) That you expect to use these services within the next 12 months;
or
(c) That you would need Medicaid to pay for unexpected medical
expenses in the next 12 months.
[59 FR 41404, Aug. 12, 1994]
Sec. 416.269 What is done to determine whether your earnings are too low to provide comparable benefits and services you would receive in the absence of those earnings.
(a) What we determine. We must determine whether your earnings are
too low to provide you with benefits and services comparable to the
benefits and services you would receive if you did not have those
earnings (see Sec. 416.265(d)).
(b) How the determination is made. In determining whether your
earnings are too low to provide you with benefits and services
comparable to the benefits and services you would receive if you did not
have those earnings, we compare your anticipated gross earnings (or a
combination of anticipated and actual gross earnings, as appropriate)
for the 12-month period beginning with the month for which your special
SSI eligibility status is being determined to a threshold amount for
your State of residence. This threshold amount consists of the sum for a
12-month period of two items, as follows:
(1) The amount of gross earnings including amounts excluded under
Sec. 416.1112(c) (4), (5) and (7) that would reduce to zero the Federal
SSI benefit and the optional State supplementary payment for an
individual with no other income living in his or her own household in
the State where you reside. This amount will vary from State to State
depending on the amount of the State supplementary payment; and
(2) The average expenditures for Medicaid benefits for disabled and
blind SSI cash recipients, including recipients of federally
administered State supplementary payments only, in your State of
residence.
(c) How the eligibility requirements are met. (1) You meet the
requirements in Sec. 416.265(d) if the comparison shows that your gross
earnings are equal to or less than the
[[Page 629]]
applicable threshold amount for your State, as determined under
paragraphs (b) (1) and (2) of this section. However, if the comparison
shows that these earnings exceed the applicable threshold amount for
your State, we will establish (and use in a second comparison) an
individualized threshold taking into account the total amount of:
(i) The amount determined under paragraph (b)(1) of this section
that would reduce to zero the Federal SSI benefit and State
supplementary payment for your actual living arrangement;
(ii) The average Medicaid expenditures for your State of residence
under paragraph (b)(2) of this section or, if higher, your actual
medical expenditures in the appropriate 12-month period;
(iii) Any amounts excluded from your income as impairment-related
work expenses (see Sec. 416.1112(c)(6)), work expenses of the blind (see
Sec. 416.1112(c)(8)), and income used or set aside for use under an
approved plan for achieving self support (see Sec. 416.1112(c)(9)); and
(iv) the value of any publicly-funded attendant care services as
described in paragraph (d) of this section (including personal care
assistance).
(2) If you have already completed the 12-month period for which we
are determining your eligibility, we will consider only the expenditures
made in that period.
(d) Attendant care services. Expenditures for attendant care
services (including personal care assistance) which would be available
to you in the absence of earnings that make you ineligible for SSI cash
benefits will be considered in the individualized threshold (as
described in paragraph (c)(1) of this section) if we establish that they
are:
(1) Provided by a paid attendant;
(2) Needed to assist with work-related and/or personal functions;
and
(3) Paid from Federal, State, or local funds.
(e) Annual update of information. The threshold amounts used in
determinations of sufficiency of earnings will be based on information
and data updated no less frequently than annually.
[59 FR 41404, Aug. 12, 1994; 59 FR 49291, Sept. 27, 1994]
Subpart C--Filing of Applications
Sec. 416.301 Introduction.
This subpart contains the rules for filing a claim for supplemental
security income (SSI) benefits. It tells you what an application is, who
may sign it, who must file one to be eligible for benefits, the period
of time it is in effect, and how it may be withdrawn. It also tells you
when a written statement or an oral inquiry may be considered to
establish an application filing date.
Sec. 416.302 Definitions.
For the purpose of this subpart--
Benefits means any payments made under the SSI program. SSI benefits
also include any federally administered State supplementary payments.
Claimant means the person who files an application for himself or
herself or the person on whose behalf an application is filed.
We or us means the Social Security Administration (SSA).
You or your means the person who applies for benefits, the person
for whom an application is filed or anyone who may consider applying for
benefits.
Sec. 416.305 You must file an application to receive supplemental security income benefits.
(a) General rule. In addition to meeting other requirements, you
must file an application to become eligible to receive benefits. If you
believe you may be eligible, you should file an application as soon as
possible. Filing an application will--
(1) Permit us to make a formal determination whether or not you are
eligible to receive benefits;
(2) Assure that you receive benefits for any months you are
eligible; and
(3) Give you the right to appeal if you disagree with the
determination.
(b) Exceptions. You need not file a new application if--
[[Page 630]]
(1) You have been receiving benefits as an eligible spouse and are
no longer living with your husband or wife;
(2) You have been receiving benefits as an eligible spouse of an
eligible individual who has died;
(3) You have been receiving benefits because you are disabled or
blind and you are 65 years old before the date we determine that you are
no longer blind or disabled.
(4) A redetermination of your eligibility is being made and it is
found that you were not eligible for benefits during any part of a
period for which we are making a redetermination but you currently meet
the requirements for eligibility;
(5) You are notified that your payments of SSI benefits will be
stopped because you are no longer eligible and you again meet the
requirements for eligibility before your appeal rights are exhausted.
[45 FR 48120, July 18, 1980, as amended at 60 FR 16374, Mar. 30, 1995]
Applications
Sec. 416.310 What makes an application a claim for benefits.
An application will be considered a claim for benefits, if the
following requirements are met:
(a) An application form prescribed by us must be filled out.
(b) It must be filed at a social security office, at another Federal
or State office we have designated to receive applications for us, or
with a person we have authorized to receive applications for us. See
Sec. 416.325.
(c) The claimant or someone who may sign an application for the
claimant must sign the application. See Secs. 416.315 and 416.320.
(d) The claimant must be alive at the time the application is filed.
See Secs. 416.340, 416.345, and 416.351 for exceptions.
[45 FR 48120, July 18, 1980, as amended at 59 FR 44926, Aug. 31, 1994]
Sec. 416.315 Who may sign an application.
We will determine who may sign an application according to the
following rules:
(a) If you are 18 years old or over, mentally competent, and
physically able, you must sign your own application. If you are 16 years
old or older and under age 18, you may sign the application if you are
mentally competent, have no court appointed representative, and are not
in the care of any other person or institution.
(b) If the claimant is under age 18, or is mentally incompetent, or
is physically unable to sign the application, a court appointed
representative or a person who is responsible for the care of the
claimant, including a relative, may sign the application. If the
claimant is in the care of an institution, the manager or principal
officer of the institution may sign the application.
(c) To prevent a claimant from losing benefits because of a delay in
filing an application when there is a good reason why the claimant
cannot sign an application, we may accept an application signed by
someone other than a person described in this section.
Example: Mr. Smith comes to a Social Security office to file an
application for SSI disability benefits for Mr. Jones. Mr. Jones, who
lives alone, just suffered a heart attack and is in the hospital. He
asked Mr. Smith, whose only relationship is that of a neighbor and
friend, to file the application for him. We will accept an application
signed by Mr. Smith since it would not be possible to have Mr. Jones
sign and file the application at this time. SSI benefits are payable
starting with the day an application is filed or the date all other
requirements for eligibility are met, whichever is later. If Mr. Smith
could not sign an application for Mr. Jones, a loss of benefits would
result if it is later determined that Mr. Jones is in fact disabled.
[45 FR 48120, July 18, 1980, as amended at 51 FR 13492, Apr. 21, 1986]
Sec. 416.320 Evidence of authority to sign an application for another.
(a) A person who signs an application for someone else will be
required to provide evidence of his or her authority to sign the
application for the person claiming benefits under the following rules:
(1) If the person who signs is a court appointed representative, he
or she must submit a certificate issued by the court showing authority
to act for the claimant.
(2) If the person who signs is not a court appointed representative,
he or
[[Page 631]]
she must submit a statement describing his or her relationship to the
claimant. The statement must also describe the extent to which the
person is responsible for the care of the claimant. This latter
information will not be requested if the application is signed by a
parent for a child with whom he or she is living. If the person signing
is the manager or principal officer of an institution he or she should
show his or her title.
(b) We may, at any time, require additional evidence to establish
the authority of a person to sign an application for someone else.
[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986]
Sec. 416.325 When an application is considered filed.
(a) General rule. We consider an application for SSI benefits filed
on the day it is received by an employee at any social security office,
by someone at another Federal or State office designated to receive
applications for us, or by a person we have authorized to receive
applications for us.
(b) Exceptions. (1) When we receive an application that is mailed,
we will use the date shown by the United States postmark as the filing
date if using the date the application is received will result in a loss
of benefits. If the postmark is unreadable or there is no postmark, we
will use the date the application is signed (if dated) or 5 days before
the day we receive the signed application, whichever date is later.
(2) We consider an application to be filed on the date of the filing
of a written statement or the making of an oral inquiry under the
conditions in Secs. 416.340, 416.345 and 416.350.
(3) We will establish a ``deemed'' filing date of an application in
a case of misinformation under the conditions described in Sec. 416.351.
The filing date of the application will be a date determined under
Sec. 416.351(b).
[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986;
59 FR 44926, Aug. 31, 1994]
Effective Filing Period of Application
Sec. 416.330 Filing before the first month you meet the requirements for eligibility.
If you file an application for SSI benefits before the first month
you meet all the other requirements for eligibility, the application
will remain in effect until we make a final determination on your
application unless there is a hearing decision on your application. If
there is a hearing decision, your application will remain in effect
until the hearing decision is issued.
(a) If you meet all the requirements for eligibility while your
application is in effect, we will pay you benefits from the first month
that you meet all the requirements. The amount of such benefits is based
on the number of days you meet all eligibility requirements beginning
with the first day you meet all of the requirements through the end of
the month.
(b) If you first meet all the requirements for eligibility after the
period for which your application was in effect, you must file a new
application for benefits. In this case, we will pay you benefits only
from the first month that you meet all the requirements based on the new
application. The amount of such benefits is calculated as in
Sec. 416.330(a) above.
[51 FR 13493, Apr. 21, 1986]
Sec. 416.335 Filing in or after the month you meet the requirements for eligibility.
When you file an application in the month that you meet all the
other requirements for eligibility, your application is good for payment
as of the first day in the month that you meet all eligibility
requirements. If you file an application after the month you first meet
all the other requirements for eligibility, you cannot be paid for any
months before the month you filed an application. See Secs. 416.340,
416.345 and 416.350 on how a written statement or an oral inquiry made
before the filing of the application form may affect the filing date of
the application. The amount of SSI benefits you are paid in
[[Page 632]]
the first month that you meet all eligibility requirements is based on
the number of days you meet all such requirements, starting with the
first day on which you meet all eligibility requirements through the end
of the month.
[51 FR 13493, Apr. 21, 1986]
Filing Date Based Upon a Written Statement or Oral Inquiry
Sec. 416.340 Use of date of written statement as application filing date.
We will use the date a written statement, such as a letter, an SSA
questionnaire or some other writing, is received at a social security
office, at another Federal or State office designated by us, or by a
person we have authorized to receive applications for us as the filing
date of an application for benefits, only if the use of that date will
result in your eligibility for additional benefits. If the written
statement is mailed, we will use the date the statement was mailed to us
as shown by a United States postmark. If the postmark is unreadable or
there is no postmark, we will use the date the statement is signed (if
dated) or 5 days before the day we receive the written statement,
whichever date is later, as the filing date of an application for
benefits. In order for us to use your written statement to protect your
filing date, the following requirements must be met:
(a) The written statement shows an intent to claim benefits for
yourself or for another person.
(b) You, your spouse or a person who may sign an application for you
signs the statement.
(c) An application form signed by you or by a person who may sign an
application for you is filed with us within 60 days after the date of a
notice we will send telling of the need to file an application. The
notice will say that we will make an initial determination of
eligibility for SSI benefits if an application form is filed within 60
days after the date of the notice. (We will send the notice to the
claimant, or where he or she is a minor or incompetent, to the person
who gave us the written statement.)
(d)(1) The claimant is alive when the application is filed on a
prescribed form, or
(2) If the claimant dies after the written statement is filed, the
deceased claimant's surviving spouse or parent(s) who could be paid the
claimant's benefits under Sec. 416.542(b), or someone on behalf of the
surviving spouse or parent(s) files an application form. If we learn
that the claimant has died before the notice is sent or within 60 days
after the notice but before an application form is filed, we will send a
notice to such a survivor. The notice will say that we will make an
initial determination of eligibility for SSI benefits only if an
application form is filed on behalf of the deceased within 60 days after
the date of the notice to the survivor.
[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986;
58 FR 52912, Oct. 13, 1993]
Sec. 416.345 Use of date of oral inquiry as application filing date.
We will use the date of an oral inquiry about SSI benefits as the
filing date of an application for benefits only if the use of that date
will result in your eligibility for additional benefits and the
following requirements are met:
(a) The inquiry asks about the claimant's eligibility for SSI
benefits.
(b) The inquiry is made by the claimant, the claimant's spouse, or a
person who may sign an application on the claimant's behalf as described
in Sec. 416.315.
(c) The inquiry, whether in person or by telephone, is directed to
an office or an official described in Sec. 416.310(b).
(d) The claimant or a person on his or her behalf as described in
Sec. 416.315 files an application on a prescribed form within 60 days
after the date of the notice we will send telling of the need to file an
application. The notice will say that we will make an initial
determination of eligibility for SSI benefits if an application form is
filed within 60 days after the date of the notice. (We will send the
notice to the claimant or, where he or she is a minor or incompetent, to
the person who made the inquiry.)
[[Page 633]]
(e)(1) The claimant is alive when the application is filed on a
prescribed form, or
(2) If the claimant dies after the oral inquiry is made, the
deceased claimant's surviving spouse or parent(s) who could be paid the
claimant's benefits under Sec. 416.542(b), or someone on behalf of the
surviving spouse or parent(s) files an application form. If we learn
that the claimant has died before the notice is sent or within 60 days
after the notice but before an application form is filed, we will send a
notice to such a survivor. The notice will say that we will make an
initial determination of eligibility for SSI benefits only if an
application form is filed on behalf of the deceased within 60 days after
the date of the notice to the survivor.
[45 FR 48120, July 18, 1980, as amended at 51 FR 13493, Apr. 21, 1986;
58 FR 52912, Oct. 13, 1993]
Sec. 416.350 Treating a title II application as an oral inquiry about SSI benefits.
(a) When a person applies for benefits under title II (retirement,
survivors, or disability benefits) we will explain the requirements for
receiving SSI benefits and give the person a chance to file an
application for them if--
(1) The person is within 2 months of age 65 or older or it looks as
if the person might qualify as a blind or disabled person, and
(2) It is not clear that the person's title II benefits would
prevent him or her from receiving SSI or any State supplementary
benefits handled by the Social Security Administration.
(b) If the person applying for title II benefits does not file an
application for SSI on a prescribed form when SSI is explained to him or
her, we will treat his or her filing of an application for title II
benefits as an oral inquiry about SSI, and the date of the title II
application form may be used to establish the SSI application date if
the requirements of Sec. 416.345(d) and (e) are met.
Deemed Filing Date Based on Misinformation
Sec. 416.351 Deemed filing date in a case of misinformation.
(a) General. You may have considered applying for SSI benefits for
yourself or for another person, and you may have contacted us in
writing, by telephone or in person to inquire about filing an
application for these benefits. It is possible that in responding to
your inquiry, we may have given you misinformation about your
eligibility for such benefits, or the eligibility of the person on whose
behalf you were considering applying for benefits, which caused you not
to file an application at that time. If this happened, and later an
application for such benefits is filed with us, we may establish an
earlier filing date under this section.
Example 1: Ms. Jones calls a Social Security office to inquire about
filing an application for SSI benefits. During her conversation with an
SSA employee, she tells the employee about her resources. The SSA
employee tells Ms. Jones that because her countable resources are above
the allowable limit, she would be ineligible for SSI benefits. The
employee fails to consider certain resource exclusions under the SSI
program which would have reduced Ms. Jones' countable resources below
the allowable limit, making her eligible for benefits. Because Ms. Jones
thought that she would be ineligible, she decides not to file an
application for SSI benefits. Ms. Jones later reads about resource
exclusions under the SSI program. She recontacts the Social Security
office to file an SSI application, and alleges that she had been
previously misinformed about her eligibility for SSI benefits. She files
an application for SSI benefits, provides the information required under
paragraph (f) of this section to show that an SSA employee provided
misinformation, and requests a deemed filing date based upon her receipt
of misinformation.
Example 2: Mr. Adams resides in a State which provides State
supplementary payments that are administered by SSA under the SSI
program. He telephones a Social Security office and tells an SSA
employee that he does not have enough income to live on and wants to
file for SSI benefits. Mr. Adams states that his only income is his
[[Page 634]]
monthly Social Security benefit check. The SSA employee checks Mr.
Adams' Social Security record and advises him that he is ineligible for
SSI benefits based on the amount of his monthly Social Security benefit.
The employee does not consider whether Mr. Adams would be eligible for
State supplementary payments. Because Mr. Adams was told that he would
not be eligible for benefits under the SSI program, he does not file an
application. The employee does not make a record of Mr. Adams' oral
inquiry or take any other action. A year later, Mr. Adams speaks to a
neighbor who receives the same Social Security benefit amount that Mr.
Adams does, but also receives payments under the SSI program. Thinking
the law may have changed, Mr. Adams recontacts a Social Security office
and learns from an SSA employee that he would be eligible for State
supplementary payments under the SSI program and that he could have
received these payments earlier had he filed an application. Mr. Adams
explains that he did not file an application earlier because he was told
by an SSA employee that he was not eligible for SSI benefits. Mr. Adams
files an application for the benefits, provides the information required
under paragraph (f) of this section to show that an SSA employee
provided misinformation, and requests a deemed filing date based on the
misinformation provided to him earlier.
(b) Deemed filing date of an application based on misinformation.
Subject to the requirements and conditions in paragraphs (c) through (g)
of this section, we may establish a deemed filing date of an application
for SSI benefits under the following provisions.
(1)(i) If we determine that you failed to apply for SSI benefits for
yourself because we gave you misinformation about your eligibility for
such benefits, we will deem an application for such benefits to have
been filed with us on the later of--
(A) The date on which the misinformation was provided to you; or
(B) The date on which you met all of the requirements for
eligibility for such benefits, other than the requirement of filing an
application.
(ii) Before we may establish a deemed filing date of an application
for benefits for you under paragraph (b)(1)(i) of this section, you or a
person described in Sec. 416.315 must file an application for such
benefits. If you die before an application for the benefits is filed
with us, we will consider establishing a deemed filing date of an
application for such benefits only if a person who would be qualified
under Sec. 416.542(b) to receive any benefits due you, or someone on his
or her behalf, files an application for the benefits.
(2)(i) If you had authority under Sec. 416.315 to sign an
application for benefits for another person, and we determine that you
failed to apply for SSI benefits for that person because we gave you
misinformation about that person's eligibility for such benefits, we
will deem an application for such benefits to have been filed with us on
the later of--
(A) The date on which the misinformation was provided to you; or
(B) The date on which the person met all of the requirements for
eligibility for such benefits, other than the requirement of filing an
application.
(ii) Before we may establish a deemed filing date of an application
for benefits for the person under paragraph (b)(2)(i) of this section,
you, such person, or another person described in Sec. 416.315 must file
an application for such benefits. If the person referred to in paragraph
(b)(2)(i) of this section dies before an application for the benefits is
filed with us, we will consider establishing a deemed filing date of an
application for such benefits only if a person who would be qualified
under Sec. 416.542(b) to receive any benefits due the deceased person,
or someone on his behalf, files an application for the benefits.
(c) Requirements concerning the misinformation. We apply the
following requirements for purposes of paragraph (b) of this section.
(1) The misinformation must have been provided to you by one of our
employees while he or she was acting in his or her official capacity as
our employee. For purposes of this section, an employee includes an
officer of SSA.
(2) Misinformation is information which we consider to be incorrect,
misleading, or incomplete in view of the facts which you gave to the
employee, or of which the employee was aware or should have been aware,
regarding your particular circumstances, or the particular circumstances
of the person referred to in paragraph (b)(2)(i) of this section. In
addition, for us to find that the information you received was
incomplete, the employee must have failed to provide you with the
appropriate, additional information which he
[[Page 635]]
or she would be required to provide in carrying out his or her official
duties.
(3) The misinformation may have been provided to you orally or in
writing.
(4) The misinformation must have been provided to you in response to
a specific request by you to us for information about your eligibility
for benefits or the eligibility for benefits of the person referred to
in paragraph (b)(2)(i) of this section for which you were considering
filing an application.
(d) Evidence that misinformation was provided. We will consider the
following evidence in making a determination under paragraph (b) of this
section.
(1) Preferred evidence. Preferred evidence is written evidence which
relates directly to your inquiry about your eligibility for benefits or
the eligibility of another person and which shows that we gave you
misinformation which caused you not to file an application. Preferred
evidence includes, but is not limited to, the following--
(i) A notice, letter, or other document which was issued by us and
addressed to you; or
(ii) Our record of your telephone call, letter, or in-person
contact.
(2) Other evidence. In the absence of preferred evidence, we will
consider other evidence, including your statements about the alleged
misinformation, to determine whether we gave you misinformation which
caused you not to file an application. We will not find that we gave you
misinformation, however, based solely on your statements. Other evidence
which you provide or which we obtain must support your statements.
Evidence which we will consider includes, but is not limited to, the
following--
(i) Your statements about the alleged misinformation, including
statements about--
(A) The date and time of the alleged contact(s);
(B) How the contact was made, e.g., by telephone or in person;
(C) The reason(s) the contact was made;
(D) Who gave the misinformation; and
(E) The questions you asked and the facts you gave us, and the
questions we asked and the information we gave you at the time of the
contact;
(ii) Statements from others who were present when you were given the
alleged misinformation, e.g., a neighbor who accompanied you to our
office;
(iii) If you can identify the employee or the employee can recall
your inquiry about benefits--
(A) Statements from the employee concerning the alleged contact,
including statements about the questions you asked, the facts you gave,
the questions the employee asked, and the information provided to you at
the time of the alleged contact; and
(B) Our assessment of the likelihood that the employee provided the
alleged misinformation;
(iv) An evaluation of the credibility and the validity of your
allegations in conjunction with other relevant information; and
(v) Any other information regarding your alleged contact.
(e) Information which does not constitute satisfactory proof that
misinformation was given. Certain kinds of information will not be
considered satisfactory proof that we gave you misinformation which
caused you not to file an application. Examples of such information
include--
(1) General informational pamphlets that we issue to provide basic
program information;
(2) The SSI Benefit Estimate Letter that is based on an individual's
reported and projected income and is an estimate which can be requested
at any time;
(3) General information which we review or prepare but which is
disseminated by the media, e.g., radio, television, magazines, and
newspapers; and
(4) Information provided by other governmental agencies, e.g., the
Department of Veterans Affairs, the Department of Defense, State
unemployment agencies, and State and local governments.
(f) Claim for benefits based on misinformation. You may make a claim
for benefits based on misinformation at any time. Your claim must
contain information that will enable us to determine if we did provide
misinformation to you about your eligibility for SSI benefits, or the
eligibility of a person
[[Page 636]]
on whose behalf you were considering applying for benefits, which caused
you not to file an application for the benefits. Specifically, your
claim must be in writing and it must explain what information was
provided; how, when, and where it was provided and by whom; and why the
information caused you not to file an application. If you give us this
information, we will make a determination on such a claim for benefits
if all of the following conditions are also met.
(1) An application for the benefits described in paragraph (b)(1)(i)
or (b)(2)(i) of this section is filed with us by someone described in
paragraph (b)(1)(ii) or (b)(2)(ii) of this section, as appropriate. The
application must be filed after the alleged misinformation was provided.
This application may be--
(i) An application on which we have made a previous final
determination or decision awarding the benefits, but only if the
claimant continues to be eligible for benefits (or again could be
eligible for benefits) based on that application;
(ii) An application on which we have made a previous final
determination or decision denying the benefits, but only if such
determination or decision is reopened under Sec. 416.1488; or
(iii) A new application on which we have not made a final
determination or decision.
(2) The establishment of a deemed filing date of an application for
benefits based on misinformation could result in the claimant becoming
eligible for benefits or for additional benefits.
(3) We have not made a previous final determination or decision to
which you were a party on a claim for benefits based on alleged
misinformation involving the same facts and issues. This provision does
not apply, however, if the final determination or decision may be
reopened under Sec. 416.1488.
(g) Effective date. This section applies only to misinformation
which we provided on or after December 19, 1989. In addition, this
section is effective only for benefits payable for months after December
1989.
[59 FR 44926, Aug. 31, 1994]
Withdrawal of Application
Sec. 416.355 Withdrawal of an application.
(a) Request for withdrawal filed before we make a determination. If
you make a request to withdraw your application before we make a
determination on your claim, we will approve the request if the
following requirements are met:
(1) You or a person who may sign an application for you signs a
written request to withdraw the application and files it at a place
described in Sec. 416.325.
(2) You are alive when the request is filed.
(b) Request for withdrawal filed after a determination is made. If
you make a request to withdraw your application after we make a
determination on your claim, we will approve the request if the
following requirements are met:
(1) The conditions in paragraph (a) of this section are met.
(2) Every other person who may lose benefits because of the
withdrawal consents in writing (anyone who could sign an application for
that person may give the consent).
(3) All benefits already paid based on the application are repaid or
we are satisfied that they will be repaid.
(c) Effect of withdrawal. If we approve your request to withdraw an
application, we will treat the application as though you never filed it.
If we disapprove your request for withdrawal, we will treat the
application as though you never requested the withdrawal.
Sec. 416.360 Cancellation of a request to withdraw.
You may cancel your request to withdraw your application and your
application will still be good if the following requirements are met:
(a) You or a person who may sign an application for you signs a
written request for cancellation and files it at a place described in
Sec. 416.325.
(b) You are alive at the time the request for cancellation is filed.
(c) For a cancellation request received after we have approved the
withdrawal, the cancellation request is filed no later than 60 days
after the date of the notice of approval of the withdrawal request.
[[Page 637]]
Subpart D--Amount of Benefits
Sec. 416.401 Scope of subpart.
This subpart D sets forth basic guidelines for establishing the
amount of monthly benefits payable to an eligible individual or couple
(as defined in Sec. 416.120(c)(5)). This subpart does not contain
provisions with respect to establishing the amount of State
supplementary payments payable in accordance with an agreement entered
into between a State and the Administration under the provisions of
subpart T of this part. Provisions with respect to determination and
payment of State supplementary payments under such agreements will be
administered by the Administration in accordance with the terms set
forth in such agreements.
[39 FR 23053, June 26, 1974]
Sec. 416.405 Cost-of-living adjustments in benefits.
Whenever benefit amounts under title II of the Act (part 404 of this
chapter) are increased by any percentage effective with any month as a
result of a determination made under Section 215(i) of the Act, each of
the dollar amounts in effect for such month under Secs. 416.410,
416.412, and 416.413, as specified in such sections or as previously
increased under this section or under any provision of the Act, will be
increased. We will increase the unrounded yearly SSI benefit amount by
the same percentage by which the title II benefits are being increased
based on the Consumer Price Index, or, if greater, the percentage they
would be increased if the rise in the Consumer Price Index were
currently the basis for the title II increase. (See Secs. 404.270-
404.277 for an explanation of how the title II cost-of-living adjustment
is computed.) If the increased annual SSI benefit amount is not a
multiple of $12, it will be rounded to the next lower multiple of $12.
[51 FR 12606, Apr. 21, 1986; 51 FR 16016, Apr. 30, 1986]
Sec. 416.410 Amount of benefits; eligible individual.
The benefit under this part for an eligible individual (including
the eligible individual receiving benefits payable under the
Sec. 416.212 provisions) who does not have an eligible spouse, who is
not subject to either benefit suspension under Sec. 416.1325 or benefit
reduction under Sec. 416.414, and who is not a qualified individual (as
defined in Sec. 416.221) shall be payable at the rate of $5,640 per year
($470 per month) effective for the period beginning January 1, 1996.
This rate is the result of a 2.6 percent cost-of-living adjustment (see
Sec. 416.405) to the December 1995 rate. For the period January 1,
through December 31, 1995, the rate payable, as increased by the 2.8
percent cost-of-living adjustment, was $5,496 per year ($458 per month).
For the period January 1, through December 31, 1994, the rate payable,
as increased by the 2.6 percent cost-of-living adjustment, was $5,352
per year ($446 per month). The monthly rate is reduced by the amount of
the individual's income which is not excluded pursuant to subpart K of
this part.
[61 FR 10278, Mar. 13, 1996]
Effective Date Note: At 61 FR 10278, Mar. 13, 1996, Sec. 416.410 was
revised, effective May 13, 1996. For the convenience of the reader, the
superseded text is set forth below.
Sec. 416.410 Amounts of benefits; eligible individual.
The benefit under this part for an eligible individual who does not
have an eligible spouse, who is not in a certain kind of institution
(see Sec. 416.211), and who is not a qualified individual (as defined in
Sec. 416.221), shall be payable at the rate of $4,032 per year ($336 per
month) after rounding, effective for the period beginning January 1,
1986. This rate is the result of a 3.1 percent cost-of-living adjustment
(see Sec. 416.405) to the December 1985 rate. For the period January 1,
1985 through December 31, 1985, the rate payable, as increased by the
3.5 percent cost-of-living adjustment, was $3900 ($325 per month). For
the period January 1, 1984 through December 31, 1984, the rate payable,
as increased by the 3.5 percent cost-of-living adjustment, was $3,768
per year ($314 per month). For the period of July 1, 1983, through
December 31, 1983, the rate payable was $3,651.60 per year ($304.30 per
month), as provided by the Social Security Amendments of 1983 (Pub. L.
98-21, section 401). For the period July 1, 1982, through
[[Page 638]]
June 30, 1983 the rate, as increased by the 7.4 percent cost-of-living
adjustment, was $3,411.60 yearly ($284.30 monthly). The monthly rate is
reduced by the amount of the individual's income which is not excluded
pursuant to subpart K of this part.
[51 FR 12606, Apr. 21, 1986]
Sec. 416.412 Amount of benefits; eligible couple.
The benefit under this part for an eligible couple (including
couples where one or both members of the couple are receiving benefits
payable under the Sec. 416.212 provisions), neither of whom is subject
to suspension of benefits based on Sec. 416.1325 or reduction of
benefits based on Sec. 416.414 nor is a qualified individual (as defined
in Sec. 416.221) shall be payable at the rate of $8,460 per year ($705
per month), effective for the period beginning January 1, 1996. This
rate is the result of a 2.6 percent cost-of-living adjustment (see
Sec. 416.405) to the December 1995 rate. For the period January 1,
through December 31, 1995, the rate payable, as increased by the 2.8
percent cost-of-living adjustment, was $8,224 per year ($687 per month).
For the period January 1, through December 31, 1994, the rate payable,
as increased by the 2.6 percent cost-of-living adjustment, was $8,028
per year ($669 per month). The monthly rate is reduced by the amount of
the couple's income which is not excluded pursuant to subpart K of this
part.
[61 FR 10278, Mar. 13, 1996]
Effective Date Note: At 61 FR 10278, Mar. 13, 1996, Sec. 416.412 was
revised, effective May 13, 1996. For the convenience of the reader, the
superseded text is set forth below.
Sec. 416.412 Amount of benefits; eligible couple.
The benefit under this part for an eligible couple, neither of whom
is temporarily residing in a medical care facility as described in
Sec. 416.1149(c)(1) nor is a qualified individual (as defined in
Sec. 416.211), shall be payable at the following rate:
------------------------------------------------------------------------
Percentage
Effective date increase Rate per year Rate per month
------------------------------------------------------------------------
07/82............ 7.4 $5,116.80 $426.40
07/83............ 3.5 5,476.80 456.40
01/84............ 3.5 5,664.00 472.00
01/85............ 3.5 5,856.00 488.00
01/86............ 3.1 6,048.00 504.00
01/87............ 1.3 6,120.00 510.00
01/88............ 4.2 6,384.00 532.00
01/89............ 4.0 6,636.00 553.00
01/90............ 4.7 6,948.00 579.00
01/91............ 5.4 7,320.00 610.00
01/92............ 3.7 7,596.00 633.00
01/93............ 3.0 7,824.00 652.00
01/94............ 2.6 8,028.00 669.00
01/95............ 2.8 8,244.00 687.00
------------------------------------------------------------------------
The monthly rate is reduced by the amount of the couple's income which
is not excluded pursuant to subpart K of this part.
[60 FR 16374, Mar. 30, 1995]
Sec. 416.413 Amount of benefits; qualified individual.
The benefit under this part for a qualified individual (defined in
Sec. 416.221) is payable at the rate for an eligible individual or
eligible couple plus an increment for each essential
[[Page 639]]
person (defined in Sec. 416.222) in the household, reduced by the amount
of countable income of the eligible individual or eligible couple as
explained in Sec. 416.420. A qualified individual will receive an
increment of $2,820 per year ($235 per month), effective for the period
beginning January 1, 1996. This rate is the result of the 2.6 percent
cost-of-living adjustment (see Sec. 416.405) to the December 1995 rate,
and is for each essential person (as defined in Sec. 416.222) living in
the household of a qualified individual. (See Sec. 416.532.) For the
period January 1, through December 31, 1995, the rate payable, as
increased by the 2.8 percent cost-of-living adjustment, was $2,748 per
year ($229 per month). For the period January 1, through December 31,
1994, the rate payable, as increased by the 2.6 percent cost-of-living
adjustment, was $2,676 per year ($223 per month). The total benefit
rate, including the increment, is reduced by the amount of the
individual's or couple's income that is not excluded pursuant to subpart
K of this part.
[61 FR 10278, Mar. 13, 1996]
Effective Date Note: At 61 FR 10278, Mar. 13, 1996, Sec. 416.413 was
revised, effective May 13, 1996. For the convenience of the reader, the
superseded text is set forth below.
Sec. 416.413 Amount of benefits; qualified individual.
The benefit under this part for a qualified individual (defined in
Sec. 416.221) is payable at the rate for an eligible individual or
eligible couple plus an increment for each essential person (defined in
Sec. 416.222) in the household, reduced by the amount of countable
income of the eligible individual or eligible couple as explained in
Sec. 416.420. A qualified individual will receive an increment of $2,016
per year ($168 per month) after rounding, effective for the period
beginning January 1, 1986. This rate is the result of a 3.1 percent
cost-of-living adjustment (see Sec. 416.405) to the December 1985 rate,
and is for each essential person (as defined in Sec. 416.222) living in
the household of a qualified individual. (See Sec. 416.532.) For the
period January 1, 1985 through December 31, 1985, the rate payable, as
increased by the 3.5 percent cost-of-living adjustment, was $1,956 ($163
per month). For the period January 1, 1984 through December 31, 1984,
the rate payable, as increased by the 3.5 percent cost-of-living
adjustment, was $1,884 per year ($157 per month). For the period July 1,
1983, through December 31, 1983, the rate was $1,830 per year ($152.50
per month), as provided by the Social Security Amendments of 1983 (Pub.
L. 98-21, section 401). For the period July 1, 1982, through June 30,
1983, the rate, as increased by the 7.4 percent cost-of-living
adjustment, was $1,710 yearly ($142.50 monthly). The total benefit rate,
including the increment, is reduced by the amount of the individual's or
couple's income that is not excluded pursuant to subpart K of this part.
[51 FR 12606, Apr. 21, 1986]
Sec. 416.414 Amount of benefits; eligible individual or eligible couple in a medical care facility.
(a) General rule. Except where the Sec. 416.212 provisions provide
for payment of benefits at the rates specified under Secs. 416.410 and
416.412, reduced SSI benefits are payable to persons and couples who are
in medical care facilities where more than 50 percent of the cost of
their care is paid by a State plan under title XIX of the Social
Security Act (Medicaid). This reduced SSI benefit rate also applies to
persons who are in medical care facilities where more than 50 percent of
the cost would have been paid by an approved Medicaid State plan but for
the application of section 1917(c) of the Social Security Act due to a
transfer of assets for less than fair market value. Persons and couples
to whom these reduced benefits apply are--
(1) Those who are otherwise eligible and who are in the medical care
facility throughout a month (By throughout a month we mean that you are
in the medical care facility as of the beginning of the month and stay
the entire month. If you are in a medical care facility you will be
considered to have continuously been staying there if you are
transferred from one medical care facility to another or if you are
temporarily absent for a period of not more than 14 consecutive days.);
and
(2) Those who reside for part of a month in a public institution and
for the rest of the month are in a public or private medical care
facility where Medicaid pays or would have paid (but for the application
of section 1917(c) of the Act) more than 50 percent of the cost of their
care.
(b) The benefit rates are--(1) Eligible individual. For months after
June 1988, the benefit rate for an eligible individual with no eligible
spouse is $30 per month. The benefit payment is figured by subtracting
the eligible individual's countable income (see subpart K) from the
benefit rate as explained in Sec. 416.420.
(2) Eligible couple both of whom are temporarily absent from home in
medical care facilities as described in Sec. 416.1149(c)(1). For months
after June 1988, the benefit rate for a couple is $60 a month. The
benefit payment is figured by subtracting the couple's countable income
(see subpart K) from the benefit rate as explained in Sec. 416.420.
(3) Eligible couple with one spouse who is temporarily absent from
home as described in Sec. 416.1149(c)(1). The couple's benefit rate
equals:
(i) For months after June 1988, $30 per month for the spouse in the
medical care facility; plus
(ii) The benefit rate for an eligible individual (see Sec. 416.410)
for the spouse who is not in the medical care facility. The benefit
payment for each spouse is figured by subtracting each individual's own
countable income in the appropriate month (see Sec. 416.420) from his or
her portion of the benefit rate shown in paragraphs (b)(3)(i) and (ii).
(c) Definition. For purposes of this section a medical care facility
means a hospital (see section 1861(e) of the Act), a skilled nursing
facility (see section 1861(j) of the Act) or an intermediate
[[Page 640]]
care facility (see section 1905(c) of the Act).
[47 FR 3106, Jan. 22, 1982, as amended at 50 FR 48571, Nov. 26, 1985; 50
FR 51514, Dec. 18, 1985; 54 FR 19164, May 4, 1989; 58 FR 64894, Dec. 10,
1993; 60 FR 16374, Mar. 30, 1995; 61 FR 10278, Mar. 13, 1996]
Effective Date Note: At 61 FR 10278, Mar. 13, 1996, in Sec. 416.414,
paragraph (a) introductory text was revised, effective May 13, 1996. For
the convenience of the reader, the superseded text is set forth below.
Sec. 416.414 Amount of benefits; eligible individual or eligible couple
in a medical care facility.
(a) General rule. There is a reduced SSI benefit rate for persons
who are in medical care facilities where more than 50 percent of the
cost of their care is paid under a State plan approved under title XIX
of the Social Security Act (Medicaid). This reduced SSI benefit rate
also applies to persons who are in medical care facilities where more
than 50 percent of the cost of care would have been paid under an
approved Medicaid State plan but for the application of section 1917(c)
of the Act due to a transfer of assets for less than fair market value.
Persons to whom this benefit rate applies are--
* * * * *
Sec. 416.415 Amount of benefits; eligible individual is disabled child
under age 18.
(a) If you are a disabled child under age 18 and meet the conditions
in Sec. 416.1165(i) for waiver of deeming, your parents' income will not
be deemed to you and your benefit rate will be $30 a month.
(b) If you are a disabled child under age 18 and do not meet the
conditions in Sec. 416.1165(i) only because your parents' income is not
high enough to make you ineligible for SSI but deeming of your parents'
income would result in an SSI benefit less than the amount payable if
you received benefits as a child under Sec. 416.1165(i), your benefit
will be the amount payable if you received benefits as a child under
Sec. 416.1165(i).
[60 FR 361, Jan. 4, 1995]
Sec. 416.420 Determination of benefits; general.
Benefits shall be determined for each month. The amount of the
monthly payment will be computed by reducing the benefit rate (see
Secs. 416.410, 416.412, 416.413, and 416.414) by the amount of countable
income as figured under the rules in subpart K of this part. The
appropriate month's countable income to be used to determine how much
your benefit payment will be for the current month (the month for which
a benefit is payable) will be determined as follows:
(a) General rule. We use the amount of your countable income in the
second month prior to the current month to determine how much your
benefit amount will be for the current month. However, if you have been
receiving an SSI benefit and receiving a social security insurance
benefit and the latter is increased on the basis of the cost-of-living
adjustment or because your benefit is recomputed, we will compute the
amount of your SSI benefit for January, the month of an SSI benefit
increase by including in your income the amount by which your social
security benefit in January exceeds the amount of your social security
benefit in November. Similarly, we will compute the amount of your SSI
benefit for February by including in your income the amount by which
your social security benefit in February exceeds the amount of your
social security benefit in December.
Example 1. Mrs. X's benefit amount is being determined for September
(the current month). Mrs. X's countable income in July is used to
determine the benefit amount for September.
Example 2. Mr. Y's SSI benefit amount is being determined for
January (the current month). Mr. Y has social security income of $100 in
November, $100 in December, and $105 in January. We find the amount by
which his social security income in January exceeds his social security
income in November ($5) and add that to his income in November to
determine the SSI benefit amount for January.
(b) Exceptions to the general rule--(1) First month of eligibility
or eligibility after a month of ineligibility. We use your countable
income in the current month to determine your benefit amount for the
first month you are eligible for SSI benefits or for the first month you
become eligible for SSI benefits after at least a month of
ineligibility. Your payment for such month will be prorated according to
the number of days in the month that you are
[[Page 641]]
eligible beginning with the date of your application or the date on
which you attain (or reattain) eligibility, whichever is later.
Example: Mrs. Y applies for SSI benefits in September. We use Mrs.
Y's countable income in September to determine the amount of her benefit
for September. The same would be true if Mrs. Y had been ineligible for
SSI benefits in August and again became eligible for such benefits in
September.
(2) Second month of initial eligibility or eligibility after a month
of ineligibility. We use your countable income in the first month prior
to the current month to determine how much your benefit amount will be
for the current month when the current month is the second month of
initial eligibility or the second month following at least a month of
ineligibility. However, if you have been receiving both an SSI benefit
and a social security insurance benefit and the latter is increased on
the basis of the cost-of-living adjustment or because your benefit is
recomputed, we will compute the amount of your SSI benefit for January,
the month of an SSI benefit increase, by including in your income the
amount by which your social security benefit in January exceeds the
amount of your social security benefit in December.
Example: Mrs. Y was initially eligible for SSI benefits in
September. Her benefit amount for October will be based on her countable
income in September (first prior month).
(3) Third month of initial eligibility or eligibility after a month
of ineligibility. We use your countable income according to the rule set
out in paragraph (a) of this section to determine how much your benefit
amount will be for the third month of initial eligibility or the third
month after at least a month of ineligibility.
Example: Mrs. Y was initially eligible for SSI benefits in
September. Her benefit amount for November will be based on her
countable income in September (second prior month).
(4) Income derived from certain assistance payments. We use your
income in the current month from the programs listed below to determine
your benefit amount for that same month. The assistance programs are as
follows:
(i) Aid to Families with Dependent Children under title IV-A of the
Social Security Act (the Act);
(ii) Foster Care under title IV-E of the Act;
(iii) Refugee Cash Assistance pursuant to section 412(e) of the
Immigration and Nationality Act;
(iv) Cuban and Haitian Entrant Assistance pursuant to section 501(a)
of Pub. L. 96-422; and
(v) Bureau of Indian Affairs general assistance and child welfare
assistance pursuant to 42 Stat. 208 as amended.
(c) Payment of benefits. See subpart E of this part for the rules on
payments and the minimum monthly benefit (as explained in Sec. 416.503).
[50 FR 48571, Nov. 26, 1985; 50 FR 51514, Dec. 18, 1985, as amended at
54 FR 31657, Aug. 1, 1989]
Sec. 416.421 Determination of benefits; computation of prorated benefits.
(a) In the month you are first eligible for benefits, your benefit
will be prorated according to the number of days in the month that you
are eligible beginning with the date of application or the date on which
you meet all eligibility requirements, whichever is later. In the month
that you reacquire eligibility after a month or more of ineligibility
(see Sec. 416.1321(b)), your benefit will be prorated according to the
number of days in the month that you are eligible beginning with the
date on which you meet all eligibility requirements.
(b) In determining the amount of your benefit for a month in which
benefits are to be prorated, we first compute the amount of the benefit
that you would receive for the month as if proration did not apply. We
then determine the date on which you meet all factors of eligibility.
(The income limits must be met based on the entire month and the
resource limit must be as of the first day of the month.) We then count
the number of days in the month beginning with the day on which you
first meet all factors of eligibility through the end of the month. We
then multiply the amount of your unprorated benefit for the month by the
number of days for which you are eligible for benefits and divide that
figure by the number of days in
[[Page 642]]
the month for which your benefit is being determined. The result is the
amount of the benefit that you are due for the month in which benefits
are to be prorated.
Example. Mr. X applies for SSI on April 16, 1984. He has no income.
He first meets all factors of eligibility on April 16, 1984. His Federal
benefit rate is $314 per month. Mr. X's unprorated benefit for April is
$314. The number of days from when he first meets all factors of
eligibility (including that day) through the end of the month is 15. The
unprorated benefit ($314) multiplied by the number of days for which he
is eligible for benefits (15) is $4710. That amount divided by the
number of days in April (30) is $157. This is the amount that Mr. X is
due for the month of April.
[51 FR 13493, Apr. 14, 1986]
Sec. 416.426 Change in status involving an individual; ineligibility occurs.
Whenever benefits are suspended or terminated for an individual
because of ineligibility, no benefit is payable for that month.
[50 FR 48571, Nov. 26, 1985]
Sec. 416.428 Eligible individual without an eligible spouse has an essential person in his home.
When an eligible individual without an eligible spouse has an
essential person (as defined in Sec. 416.222) in his home, the amount by
which his rate of payment is increased is determined in accordance with
Secs. 416.531 and 416.532. The essential person's income is deemed to be
that of the eligible individual, and the provisions of Secs. 416.401
through 416.426 will apply in determining the benefit of such eligible
individual.
[39 FR 23053, June 26, 1974, as amended at 51 FR 10616, Mar. 28, 1986]
Sec. 416.430 Eligible individual with eligible spouse; essential person(s) present.
(a) When an eligible individual with an eligible spouse has an
essential person (Sec. 416.222) living in his or her home, or when both
such persons each has an essential person, the increase in the rate of
payment is determined in accordance with Secs. 416.413 and 416.532. The
income of the essential person(s) is included in the income of the
couple and the payment due will be equally divided between each member
of the eligible couple.
(b) When one member of an eligible couple is temporarily absent in
accordance with Sec. 416.1149(c)(1) and Sec. 416.222(c) and either one
or both individuals has an essential person, add the essential person
increment to the benefit rate for the member of the couple who is
actually residing with the essential person and include the income of
the essential person in that member's income. See Sec. 416.414(b)(3).
[60 FR 16375, Mar. 30, 1995]
Sec. 416.432 Change in status involving a couple; eligibility continues.
When there is a change in status which involves the formation or
dissolution of an eligible couple (for example, marriage, divorce), a
redetermination of the benefit amount shall be made for the months
subsequent to the month of such formation or dissolution of the couple
in accordance with the following rules:
(a) When there is a dissolution of an eligible couple and each
member of the couple becomes an eligible individual, the benefit amount
for each person shall be determined individually for each month
beginning with the first month after the month in which the dissolution
occurs. This shall be done by determining the applicable benefit rate
for an eligible individual with no eligible spouse according to
Secs. 416.410 or 416.413 and 416.414 and applying Sec. 416.420(a). See
Sec. 416.1147a for the applicable income rules when in-kind support and
maintenance is involved.
(b) When two eligible individuals become an eligible couple, the
benefit amount will be determined for the couple beginning with the
first month following the month of the change. This shall be done by
determining which benefit rate to use for an eligible couple according
to Secs. 416.412 or 416.413 and 416.414 and applying the requirements in
Sec. 416.420(a).
[60 FR 16375, Mar. 30, 1995]
Sec. 416.435 Change in status involving a couple; ineligibility occurs.
Whenever benefits are suspended or terminated for both members of a
couple because of ineligibility, no benefits
[[Page 643]]
are payable for that month. However, when benefits are suspended or
terminated for one member of a couple because of ineligibility for a
month, the member who remains eligible assumes the eligibility status of
an eligible individual without an eligible spouse for such month and the
benefit rate and payment amount will be determined as an eligible
individual for the month.
[50 FR 48572, Nov. 26, 1985]
Subpart E--Payment of Benefits, Overpayments, and Underpayments
Sec. 416.501 Payment of benefits: General.
Payment of SSI benefits will be made for the month of initial
eligibility and each subsequent month provided all requirements for
eligibility (see Sec. 416.202) and payment (see Sec. 416.420) are met.
In the month the individual first meets all eligibility requirements and
the month in which an individual re-establishes eligibility after at
least a month of ineligibility, benefits are paid for such a month
beginning with the date in the month on which the individual meets all
eligibility requirements. In some months, while the factors of
eligibility based on the current month may be established, it is
possible to receive no payment for that month if the factors of
eligibility for payment are not met. Payment of benefits may not be made
for any period that precedes the date on which an application is filed
or, if later, the date all conditions for eligibility and payment are
met. It is possible for a couple to become eligible in the same month
but as of different dates and receive different payment amounts for that
month if they file their applications on different dates or if they meet
the necessary requirements (for example, age) on different dates.
[50 FR 48572, Nov. 26, 1985]
Sec. 416.502 Manner of payment.
For the month an individual first meets all eligibility requirements
or reestablishes eligibility after a month of ineligibility, an SSI
payment will be made on or after the day of the month on which the
individual becomes eligible or reeligible to receive benefits. In all
other months, a payment will be made on the first day of each month and
represents payment for that month. If the first day of the month falls
on a Saturday, Sunday, or legal holiday, payments will be made on the
first day preceding such day which is not a Saturday, Sunday, or legal
holiday. Unless otherwise indicated, the monthly amount for an eligible
couple will be divided equally and paid separately to each individual.
Section 416.520 explains emergency advance payments.
[55 FR 4422, Feb. 8, 1990]
Sec. 416.503 Minimum monthly benefit amount.
If you receive an SSI benefit that does not include a State
supplement the minimum monthly SSI benefit amount payable is $1. When an
SSI benefit amount of less than $1 is payable, the benefit amount will
be increased to $1. If you receive an SSI benefit that does include a
State supplement and the SSI benefit amount is less than $1 but when
added to the State supplement exceeds $1, the SSI benefit amount will
not be increased to $1. Rather, we pay the actual amount of the SSI
benefit plus the State supplement.
[50 FR 48572, Nov. 26, 1985]
Sec. 416.520 Emergency advance payments.
(a) General. Before we make a determination on an application, we
may pay a one-time emergency advance payment to an individual who is
presumptively eligible for SSI benefits and who has a financial
emergency. The amount of this payment cannot exceed the Federal benefit
rate (see Secs. 416.410 through 416.414) plus the State supplementary
payment, if any (see Sec. 416.2020), which apply for the month in which
payment is made. Emergency advance payment is defined in paragraph
[[Page 644]]
(b)(1) of this section. The actual payment amount is computed as
explained in paragraph (c) of this section. An emergency advance payment
is an advance of benefits expected to be due that is recoverable as
explained in paragraphs (d) and (e) of this section.
(b) Definition of terms. For purposes of this subpart--
(1) Emergency advance payment means a direct, expedited payment by a
Social Security Administration district or branch office to an
individual or spouse who is initially applying (see paragraph (b)(3) of
this section) and has not been determined eligible, who is presumptively
eligible (see paragraph (b)(4) of this section), and who has a financial
emergency (see paragraph (b)(2) of this section).
(2) Financial emergency is the financial status of an individual who
has insufficient income or resources to meet an immediate threat to
health or safety, such as the lack of food, clothing, shelter, or
medical care.
(3) Initially applying means the filing of an application (see
Sec. 416.310) which requires an initial determination of eligibility,
such as the first application for SSI benefits or an application filed
subsequent to a prior denial or termination of a prior period of
eligibility for payment. An individual or spouse who previously received
an emergency advance payment in a prior period of eligibility which
terminated may again receive such a payment if he or she reapplies for
SSI and meets the other conditions for an emergency advance payment
under this section.
(4) Presumptively eligible is the status of an individual or spouse
who presents strong evidence of the likelihood of meeting the income and
resources tests of eligibility (see subparts K and L of this part),
categorical eligibility (age, disability, or blindness), and technical
eligibility (United States residency and citizenship or alien status--
see subpart P).
(c) Computation of payment amount. To compute the emergency advance
payment amount, the maximum amount described in paragraph (a) of this
section is compared to both the expected benefit payable for the month
the payment is made (see paragraph (c)(1) of this section) and the
amount the applicant requested to meet the emergency. The actual payment
amount is no more than the least of these three amounts.
(1) In computing the emergency advance payment amount, we apply the
monthly income counting and proration rules apppropriate for the month
in which the advance is paid, as explained in Secs. 416.420 and 416.421.
(2) For a couple, we separately compute each member's emergency
advance payment amount.
(d) Recovery of emergency advance payment where eligibility is
established. The amount of an emergency advance payment is deducted from
payment(s) certified to the United States Treasury when the individual
or spouse is determined to be eligible. (See paragraph (e) of this
section if the individual or spouse is determined to be ineligible.)
(e) Disposition of emergency advance payments where eligibility is
not established. If a presumptively eligible individual (or spouse) or
couple is determined to be ineligible, the emergency advance payment
constitutes a recoverable overpayment. (See the exception in
Sec. 416.537(b)(1) when payment is made on the basis of presumptive
disability or presumptive blindness.)
[55 FR 4422, Feb. 8, 1990; 55 FR 7411, Mar. 1, 1990]
Sec. 416.525 Reimbursement to States for interim assistance payments.
Notwithstanding Sec. 416.542, the Social Security Administration
may, in accordance with the provisions of subpart S of this part,
withhold supplemental security income benefits due with respect to an
individual and may pay to a State (or political subdivision thereof, if
agreed to by the Social Security Administration and the State) from the
benefits withheld, an amount sufficient to reimburse the State (or
political subdivision) for interim assistance furnished on behalf of the
individual.
[41 FR 20872, May 21, 1976]
Sec. 416.532 Method of payment when the essential person resides with more than one eligible person.
(a) When an essential person lives with an eligible individual and
an eligible spouse, the State may report that the person is essential to
one or both
[[Page 645]]
members of the couple. In either event, the income and resources of the
essential person will be considered to be available to the family unit.
The payment increment attributable to the essential person will be added
to the rate of payment for the couple, the countable income subtracted,
and the resulting total benefit divided equally between the eligible
individual and the eligible spouse.
(b) Where the essential person lives with two eligible individuals
(as opposed to an eligible individual and eligible spouse), one of whom
has been designated the qualified individual, the income and resources
of the essential person will be considered to be available only to the
qualified individual (as defined in Sec. 416.221) and any increase in
payment will be made to such qualified individual.
(c) In those instances where the State has designated the essential
person as essential to two or more eligible individuals so that both are
qualified individuals, the payment increment attributable to the
essential person must be shared equally, and the income and resources of
the essential person divided and counted equally against each qualified
individual.
(d) When an essential person lives with an eligible individual and
an eligible spouse (or two or more eligible individuals) only one of
whom is the qualified individual, essential person status is not
automatically retained upon the death of the qualified individual or
upon the separation from the qualified individual. A review of the State
records established on or before December 31, 1973, will provide the
basis for a determination as to whether the remaining eligible
individual or eligible spouse meets the definition of qualified
individual. Payment in consideration of the essential person will be
dependent on whether the essential person continues to live with a
qualified individual. If the essential person does reside with a
qualified individual, status as an essential person is retained.
[39 FR 33796, Sept. 20, 1974, as amended at 50 FR 48572, Nov. 26, 1985;
51 FR 10616, Mar. 28, 1986; 60 FR 16375, Mar. 30, 1995]
Sec. 416.533 Transfer or assignment of benefits.
Except as provided in Sec. 416.525 and subpart S of this part, the
Social Security Administration will not certify payment of supplemental
security income benefits to a transferee or assignee of a person
eligible for such benefits under the Act or of a person qualified for
payment under Sec. 416.542. The Social Security Administration shall not
certify payment of supplemental security income benefits to any person
claiming such payment by virtue of an execution, levy, attachment,
garnishment, or other legal process or by virtue of any bankruptcy or
insolvency proceeding against or affecting the person eligible for
benefits under the Act.
[41 FR 20873, May 21, 1976, as amended at 58 FR 52912, Oct. 13, 1993]
Sec. 416.535 Underpayments and overpayments.
(a) General. When an individual receives SSI benefits of less than
the correct amount, adjustment is effected as described in Secs. 416.542
and 416.543. When an individual receives more than the correct amount of
SSI benefits, adjustment is effected as described in Sec. 416.570.
Refund of overpayments is discussed in Sec. 416.560 and waiver of
recovery of overpayments is discussed in Secs. 416.550 through 416.555.
(b) Additional rules for individuals whose drug addiction or
alcoholism is a contributing factor material to the determination of
disability. When an individual whose drug addiction or alcoholism is a
contributing factor material to the determination of disability, as
described in Sec. 416.935, receives less than the correct amount of SSI
benefits, adjustment is effected as described in Secs. 416.542 and
416.543 and the additional rule described in Sec. 416.544 applies.
(c) [Reserved]
(d) Additional rules for eligible aliens and for their sponsors.
When an individual who is an alien is overpaid SSI benefits during the
3-year period in which deeming from a sponsor applies (see
Sec. 416.1160(a)(3)), the sponsor and the alien may be jointly and
individually liable for repayment of the overpayment. The sponsor is
liable for the overpayment if he or she failed to report correct
information that affected
[[Page 646]]
the alien's eligibility or payment amount. This means information about
the income and resources of the sponsor and, if they live together, of
the sponsor's spouse. However, the sponsor is not liable for repayment
if the sponsor was without fault or had good cause for failing to report
correctly. A special rule that applies to adjustment of other benefits
due the alien and the sponsor to recover an overpayment is described in
Sec. 416.570(b).
(e) Sponsor without fault or good cause exists for failure to
report. Without fault or good cause will be found to exist if the
failure to report was not willful. To establish willful failure, the
evidence must show that the sponsor knowingly failed to supply pertinent
information regarding his or her income and resources.
[52 FR 8881, Mar. 20, 1987, as amended at 60 FR 8149, Feb. 10, 1995]
Sec. 416.536 Underpayments--defined.
An underpayment can occur only with respect to a period for which a
recipient filed an application, if required, for benefits and met all
conditions of eligibility for benefits. An underpayment, including any
amounts of State supplementary payments which are due and administered
by the Social Security Administration, is:
(a) Nonpayment, where payment was due but was not made; or
(b) Payment of less than the amount due. For purposes of this
section, payment has been made when certified by the Social Security
Administration to the Department of the Treasury, except that payment
has not been made where payment has not been received by the designated
payee, or where payment was returned.
[58 FR 52912, Oct. 13, 1993]
Sec. 416.537 Overpayments--defined.
(a) Overpayments. As used in this subpart, the term overpayment
means payment of more than the amount due for any period, including any
amounts of State supplementary payments which are due and administered
by the Social Security Administration. For purposes of this section,
payment has been made when certified by the Social Security
Administration to the Department of the Treasury, except that payment
has not been made where payment has not been received by the designated
payee, or where payment was returned. When a payment of more than the
amount due is made by direct deposit to a financial institution to or on
behalf of an individual who has died, and the financial institution
credits the payment to a joint account of the deceased individual and
another person who is the surviving spouse of the deceased individual
and was eligible for a payment under title XVI of the Act (including any
State supplementation payment paid by the Secretary) as an eligible
spouse (or as either member of an eligible couple) for the month in
which the deceased individual died, the amount of the payment in excess
of the correct amount will be an overpayment to the surviving spouse.
(b) Actions which are not overpayments--(1) Presumptive disability
and presumptive blindness. Any payment made for any month, including an
advance payment of benefits under Sec. 416.520, is not an overpayment to
the extent it meets the criteria for payment under Sec. 416.931.
Payments made on the basis of presumptive disability or presumptive
blindness will not be considered overpayments where ineligibility is
determined because the individual or eligible spouse is not disabled or
blind. However, where it is determined that all or a portion of the
presumptive payments made are incorrect for reasons other than
disability or blindness, these incorrect payments are considered
overpayments (as defined in paragraph (a) of this section). Overpayments
may occur, for example, when the person who received payments on the
basis of presumptive disability or presumptive blindness is determined
to be ineligible for all or any part of the payments because of excess
resources or is determined to have received excess payment for those
months based on an incorrect estimate of income.
(2) Penalty. The imposition of a penalty pursuant to Sec. 416.724 is
not an adjustment of an overpayment and is imposed only against any
amount due the penalized recipient, or, after death, any amount due the
deceased which
[[Page 647]]
otherwise would be paid to a survivor as defined in Sec. 416.542.
[40 FR 47763, Oct. 10, 1975, as amended at 43 FR 17354, Apr. 24, 1978;
50 FR 48572, Nov. 26, 1985; 55 FR 7313, Mar. 1, 1990; 58 FR 52912, Oct.
13, 1993]
Sec. 416.538 Amount of underpayment or overpayment.
(a) General. The amount of an underpayment or overpayment is the
difference between the amount paid to a recipient and the amount of
payment actually due such recipient for a given period. An underpayment
or overpayment period begins with the first month for which there is a
difference between the amount paid and the amount actually due for that
month. The period ends with the month the initial determination of
overpayment or underpayment is made. With respect to the period
established, there can be no underpayment to a recipient or his or her
eligible spouse if more than the correct amount payable under title XVI
of the Act has been paid, whether or not adjustment or recovery of any
overpayment for that period to the recipient or his or her eligible
spouse has been waived under the provisions of Secs. 416.550 through
416.556. A subsequent initial determination of overpayment will require
no change with respect to a prior determination of overpayment or to the
period relating to such determination to the extent that the basis of
the prior overpayment remains the same.
(b) Limited delay in payment of underpaid amount to recipient or
eligible surviving spouse. Where an apparent overpayment has been
detected but determination of the overpayment has not been made (see
Sec. 416.558(a)), a determination of an underpayment and payment of an
underpaid amount which is otherwise due cannot be delayed to a recipient
or eligible surviving spouse unless a determination with respect to the
apparent overpayment can be made before the close of the month following
the month in which the underpaid amount was discovered.
(c) Delay in payment of underpaid amount to ineligible individual or
survivor. A determination of an underpayment and payment of an underpaid
amount which is otherwise due an individual who is no longer eligible
for SSI or is payable to a survivor pursuant to Sec. 416.542(b) will be
delayed for the resolution of all overpayments, incorrect payments,
adjustments, and penalties.
(d) Reduction of underpaid amount. Any underpayment amount otherwise
payable to a survivor on account of a deceased recipient is reduced by
the amount of any outstanding penalty imposed against the benefits
payable to such deceased recipient or survivor under section 1631(e) of
the Act (see Sec. 416.537(b)(2)).
[58 FR 52912, Oct. 13, 1993]
Sec. 416.542 Underpayments--to whom underpaid amount is payable.
(a) Underpaid recipient alive--underpayment payable. (1) If an
underpaid recipient is alive, the amount of any underpayment due him or
her will be paid to him or her in a separate payment or by increasing
the amount of his or her monthly payment.
(2) If an underpaid recipient whose drug addiction or alcoholism is
a contributing factor material to the determination of disability (as
described in Sec. 416.935) is alive, the amount of any underpayment due
the recipient will be paid through his or her representative payee in
installment payments. No underpayment may be paid directly to the
recipient. If the recipient dies before we have paid all benefits due
through his or her representative payee, we will follow the rules which
apply to underpayments for the payment of any remaining amounts due to
any eligible survivor of a deceased recipient as described in paragraph
(b) of this section.
(b) Underpaid recipient deceased--underpaid amount payable to
survivor. (1) If a recipient dies before we have paid all benefits due
or before the recipient endorses the check for the correct payment, we
may pay the amount due to the deceased recipient's surviving eligible
spouse or to his or her surviving spouse who was living with the
underpaid recipient within the meaning of section 202(i) of the Act (see
Sec. 404.347) in the month he or she died or within 6 months immediately
preceding the month of death.
(2) If the deceased underpaid recipient was a disabled or blind
child when the
[[Page 648]]
underpayment occurred, the underpaid amount may be paid to the natural
or adoptive parent(s) of the underpaid recipient who lived with the
underpaid recipient in the month he or she died or within the 6 months
preceding death. We consider the underpaid recipient to have been living
with the natural or adoptive parent(s) in the period if the underpaid
recipient satisfies the ``living with'' criteria we use when applying
Sec. 416.1165 or would have satisfied the criteria had his or her death
not precluded the application of such criteria throughout a month.
(3) If the deceased individual was living with his or her spouse
within the meaning of section 202(i) of the Act in the month of death or
within 6 months immediately preceding the month of death, and was also
living with his or her natural or adoptive parent(s) in the month of
death or within 6 months preceding the month of death, we will pay the
parent(s) any SSI underpayment due the deceased individual for months he
or she was a blind or disabled child and we will pay the spouse any SSI
underpayment due the deceased individual for months he or she no longer
met the definition of ``child'' as set forth at Sec. 416.1856. If no
parent(s) can be paid in such cases due to death or other reason, then
we will pay the SSI underpayment due the deceased individual for months
he or she was a blind or disabled child to the spouse.
(4) No benefits may be paid to the estate of any underpaid
recipient, the estate of the surviving spouse, the estate of a parent,
or to any survivor other than those listed in paragraph (b)(1) through
(3) of this section. Payment of an underpaid amount to an ineligible
spouse or surviving parent(s) may only be made for benefits payable for
months after May 1986. Payment to surviving parent(s) may be made only
for months of eligibility during which the deceased underpaid recipient
was a child. We will not pay benefits to a survivor other than the
eligible spouse who requests payment of an underpaid amount more than 24
months after the month of the individual's death.
(c) Underpaid recipient's death caused by an intentional act. No
benefits due the deceased individual may be paid to a survivor found
guilty by a court of competent jurisdiction of intentionally causing the
underpaid recipient's death.
[40 FR 47763, Oct. 10, 1975, as amended at 58 FR 52913, Oct. 13, 1993;
60 FR 8149, Feb. 10, 1995]
Sec. 416.543 Underpayments--applied to reduce overpayments.
We apply any underpayment due an individual to reduce any
overpayment to that individual that we determine to exist (see
Sec. 416.558) for a different period, unless we have waived recovery of
the overpayment under the provisions of Secs. 416.550 through 416.556.
Similarly, when an underpaid recipient dies, we first apply any amounts
due the deceased recipient that would be payable to a survivor under
Sec. 416.542(b) against any overpayment to the survivor unless we have
waived recovery of such overpayment under the provisions of
Secs. 416.550 through 416.556.
Example: A disabled child, eligible for payments under title XVI,
and his parent, also an eligible individual receiving payments under
title XVI, were living together. The disabled child dies at a time when
he was underpaid $100. The deceased child's underpaid benefit is payable
to the surviving parent. However, since the parent must repay an SSI
overpayment of $225 on his own record, the $100 underpayment will be
applied to reduce the parent's own overpayment to $125.
[58 FR 52913, Oct. 13, 1993]
Sec. 416.544 Paying benefits in installments: Drug addiction or
alcoholism.
(a) General. For disabled recipients who receive benefit payments
through a representative payee because drug addiction or alcoholism is a
contributing factor material to the determination of disability, certain
amounts due the recipient for a past period will be paid in
installments. The amounts subject to payment in installments include:
(1) Benefits due but unpaid which accrued prior to the month payment
was effectuated;
(2) Benefits due but unpaid which accrued during a period of
suspension for which the recipient was subsequently determined to have
been eligible; and
(3) Any adjustment to benefits which results in an accrual of unpaid
benefits.
[[Page 649]]
(b) Installment formula. Except as provided in paragraph (c) of this
section, the amount of the installment payment in any month is limited
so that the sum of (1) the amount due for a past period (and payable
under paragraph (a) of this section) paid in such month and (2) the
amount of any current benefit due cannot exceed twice the Federal
Benefit Rate plus any federally-administered State supplementation
payable to an eligible individual for the preceding month.
(c) Exception to installment limitation. An exception to the
installment payment limitation in paragraph (b) of this section can be
granted for the first month in which a recipient accrues benefit amounts
subject to payment in installments if the recipient has unpaid housing
expenses which result in a high risk of homelessness for the recipient.
In that case, the benefit payment may be increased by the amount of the
unpaid housing expenses so long as that increase does not exceed the
amount of benefits which accrued during the most recent period of
nonpayment. We consider a person to be at risk of homelessness if
continued nonpayment of the outstanding housing expenses is likely to
result in the person losing his or her place to live or if past
nonpayment of housing expenses has resulted in the person having no
appropriate personal place to live. In determining whether this
exception applies, we will ask for evidence of outstanding housing
expenses that shows that the person is likely to lose or has already
lost his or her place to live. For purposes of this section,
homelessness is the state of not being under the control of any public
institution and having no appropriate personal place to live. Housing
expenses include charges for all items required to maintain shelter (for
example, mortgage payments, rent, heating fuel, and electricity).
(d) Payment through a representative payee. If the recipient does
not have a representative payee, payment of amounts subject to
installments cannot be made until a representative payee is selected.
(e) Underpaid recipient no longer eligible. In the case of a
recipient who is no longer currently eligible for monthly payments, but
to whom amounts defined in paragraph (a) of this section are still
owing, we will continue to make installment payments of such benefits
through a representative payee.
(f) Recipient currently not receiving SSI benefits because of
suspension for noncompliance with treatment. If a recipient is currently
not receiving SSI benefits because his or her benefits have been
suspended for noncompliance with treatment (as defined in Sec. 416.936),
the payment of amounts under paragraph (a) of this section will stop
until the recipient has demonstrated compliance with treatment as
described in Sec. 416.1326 and will again commence with the first month
the recipient begins to receive benefits.
(g) Underpaid recipient deceased. Upon the death of a recipient, any
remaining unpaid amounts as defined in paragraph (a) of this section
will be treated as underpayments in accordance with Sec. 416.542(b).
[60 FR 8150, Feb. 10, 1995]
Sec. 416.550 Waiver of adjustment or recovery--when applicable.
Waiver of adjustment or recovery of an overpayment of SSI benefits
may be granted when (EXCEPTION: This section does not apply to a sponsor
of an alien):
(a) The overpaid individual was without fault in connection with an
overpayment, and
(b) Adjustment or recovery of such overpayment would either:
(1) Defeat the purpose of title XVI, or
(2) Be against equity and good conscience, or
(3) Impede efficient or effective administration of title XVI due to
the small amount involved.
[52 FR 8882, Mar. 20, 1987, as amended at 53 FR 16543, May 10, 1988]
Sec. 416.551 Waiver of adjustment or recovery--effect of.
Waiver of adjustment or recovery of an overpayment from the overpaid
person himself (or, after his death, from his estate) frees him and his
eligible spouse from the obligation to repay the amount of the
overpayment covered by the waiver. Waiver of adjustment or recovery of
an overpayment from anyone
[[Page 650]]
other than the overpaid person himself or his estate (e.g., a surviving
eligible spouse) does not preclude adjustment or recovery against the
overpaid person or his estate.
Example: The recipient was overpaid $390. It was found that the
overpaid recipient was eligible for waiver of adjustment or recovery of
$260 of that amount, and such action was taken. Only $130 of the
overpayment remained to be recovered by adjustment, refund, or the like.
[40 FR 47763, Oct. 10, 1975]
Sec. 416.552 Waiver of adjustment or recovery--without fault.
Without fault relates only to the situation of the individual
seeking relief from adjustment or recovery of an overpayment. The
overpaid individual (and any other individual from whom the Social
Security Administration seeks to recover the overpayment) is not
relieved of liability and is not without fault solely because the Social
Security Administration may have been at fault in making the
overpayment. In determining whether an individual is without fault, the
fault of the overpaid person and the fault of the individual seeking
relief under the waiver provision are considered. Whether an individual
is without fault depends on all the pertinent circumstances surrounding
the overpayment in the particular case. The Social Security
Administration considers the individual's understanding of the reporting
requirements, the agreement to report events affecting payments,
knowledge of the occurrence of events that should have been reported,
efforts to comply with the reporting requirements, opportunities to
comply with the reporting requirements, understanding of the obligation
to return checks which were not due, and ability to comply with the
reporting requirements (e.g., age, comprehension, memory, physical and
mental condition). In determining whether an individual is without fault
based on a consideration of these factors, the Social Security
Administration will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) the individual may have. Although the finding depends
on all of the circumstances in the particular case, an individual will
be found to have been at fault in connection with an overpayment when an
incorrect payment resulted from one of the following:
(a) Failure to furnish information which the individual knew or
should have known was material;
(b) An incorrect statement made by the individual which he knew or
should have known was incorrect (this includes the individual's
furnishing his opinion or conclusion when he was asked for facts), or
(c) The individual did not return a payment which he knew or could
have been expected to know was incorrect.
[40 FR 47763, Oct. 10, 1975, as amended at 59 FR 1636, Jan. 12, 1994]
Sec. 416.553 Waiver of adjustment or recovery--defeat the purpose of the supplemental security income program.
We will waive adjustment or recovery of an overpayment when an
individual on whose behalf waiver is being considered is without fault
(as defined in Sec. 416.552) and adjustment or recovery of the
overpayment would defeat the purpose of the supplemental security income
program.
(a) General rule. We consider adjustment or recovery of an
overpayment to defeat the purpose of the supplemental security income
(SSI) program if the individual's income and resources are needed for
ordinary and necessary living expenses under the criteria set out in
Sec. 404.508(a) of this chapter
(b) Alternative criteria for individuals currently eligible for SSI
benefits. We consider an individual or couple currently eligible for SSI
benefits to have met the test in paragraph (a) of this section if the
individual's or couple's current monthly income (that is, the income
upon which the individual's or couple's eligibility for the current
month is determined) does not exceed--
(1) The applicable Federal monthly benefit rate for the month in
which the determination of waiver is made (see subpart D of this part);
plus
(2) The $20 monthly general income exclusion described in
Secs. 416.1112(c)(3) and 416.1124(c)(10); plus
(3) The monthly earned income exclusion described in
Sec. 416.1112(c)(4); plus
[[Page 651]]
(4) The applicable State supplementary payment, if any (see subpart
T of this part) for the month in which determination of waiver is made.
For those SSI recipients whose income exceeds these criteria, we follow
the general rule in paragraph (a) of this section.
[45 FR 72649, Nov. 3, 1980, as amended at 50 FR 48573, Nov. 26, 1985]
Sec. 416.554 Waiver of adjustment or recovery--against equity and good conscience.
We will waive adjustment or recovery of an overpayment when an
individual on whose behalf waiver is being considered is without fault
(as defined in Sec. 416.552) and adjustment or recovery would be against
equity and good conscience. Adjustment or recovery is considered to be
against equity and good conscience if an individual changed his or her
position for the worse or relinquished a valuable right because of
reliance upon a notice that payment would be made or because of the
incorrect payment itself. In addition, adjustment or recovery is
considered to be against equity and good conscience for an individual
who is a member of an eligible couple that is legally separated and/or
living apart for that part of an overpayment not received, but subject
to recovery under Sec. 416.570.
Example 1: Upon being notified that he was eligible for supplemental
security income payments, an individual signed a lease on an apartment
renting for $15 a month more than the room he had previously occupied.
It was subsequently found that eligibility for the payment should not
have been established. In such a case, recovery would be considered
``against equity and good conscience.''
Example 2: An individual fails to take advantage of a private or
organization charity, relying instead on the award of supplemental
security income payments to support himself. It was subsequently found
that the money was improperly paid. Recovery would be considered
``against equity and good conscience.''
Example 3: Mr. and Mrs. Smith--members of an eligible couple--
separate in July. Later in July, Mr. Smith receives earned income
resulting in an overpayment to both. Mrs. Smith is found to be without
fault in causing the overpayment. Recovery from Mrs. Smith of Mr.
Smith's part of the couple's overpayment is waived as being against
equity and good conscience. Whether recovery of Mr. Smith's portion of
the couple's overpayment can be waived will be evaluated separately.
[60 FR 16375, Mar. 30, 1995]
Sec. 416.555 Waiver of adjustment or recovery--impede administration.
Waiver of adjustment or recovery is proper when the overpaid person
on whose behalf waiver is being considered is without fault, as defined
in Sec. 416.552, and adjustment or recovery would impede efficient or
effective administration of title XVI due to the small amount involved.
The amount of overpayment determined to meet such criteria is measured
by the current average administrative cost of handling such overpayment
case through such adjustment or recovery processes. In determining
whether the criterion is met, the overpaid person's financial
circumstances are not considered.
[40 FR 47764, Oct. 10, 1975]
Sec. 416.556 Waiver of adjustment or recovery--countable resources in excess of the limits prescribed in Sec. 416.1205 by $50 or less.
(a) If any overpayment with respect to an individual (or an
individual and his or her spouse if any) is attributable solely to the
ownership or possession by the individual (and spouse if any) of
countable resources having a value which exceeds the applicable dollar
figure specified in Sec. 416.1205 by an amount of $50.00 or less,
including those resources deemed to an individual in accordance with
Sec. 416.1202, such individual (and spouse if any) shall be deemed to
have been without fault in connection with the overpayment, and waiver
of adjustment or recovery will be made, unless the failure to report the
value of the excess resources correctly and in a timely manner was
willful and knowing.
(b) Failure to report the excess resources correctly and in a timely
manner will be considered to be willful and knowing and the individual
will be found to be at fault when the evidence clearly shows the
individual (and spouse if any) was fully aware of the requirements of
the law and of the excess resources and chose to conceal these
resources. When an individual incurred a similar overpayment in the past
and received an explanation and
[[Page 652]]
instructions at the time of the previous overpayment, we will generally
find the individual to be at fault. However, in determining whether the
individual is at fault, we will consider all aspects of the current and
prior overpayment situations, and where we determine the individual is
not at fault, we will waive adjustment or recovery of the subsequent
overpayment. In making any determination or decision under this section
concerning whether an individual is at fault, including a determination
or decision of whether the failure to report the excess resources
correctly and in a timely manner was willful and knowing, we will take
into account any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language)
of the individual (and spouse if any).
[53 FR 16544, May 10, 1988, as amended at 59 FR 1636, Jan. 12, 1994]
Sec. 416.558 Notice relating to overpayments and underpayments.
(a) Notice of overpayment and underpayment determination. Whenever a
determination concerning the amount paid and payable for any period is
made and it is found that, with respect to any month in the period, more
or less than the correct amount was paid, written notice of the correct
and incorrect amounts for each such month in the period will be sent to
the individual against whom adjustment or recovery of the overpayment as
defined in Sec. 416.537(a) may be effected or to whom the underpayment
as defined in Secs. 416.536 and any amounts subject to installment
payments as defined in Sec. 416.544 would be payable, notwithstanding
the fact that part or all of the underpayment must be withheld in
accordance with Sec. 416.543. When notifying an individual of a
determination of overpayment, the Social Security Administration will,
in the notice, also advise the individual that adjustment or recovery is
required, as set forth in Sec. 416.571, except under certain specified
conditions, and of his or her right to request waiver of adjustment or
recovery of the overpayment under the provisions of Sec. 416.550.
(b) Notice of waiver determination. Written notice of an initial
determination of waiver shall be given the individual in accordance with
Sec. 416.1404 unless the individual was not given notice of the
overpayment in accordance with paragraph (a) of this section.
(c) Notice relating to installment payments to individuals whose
drug addiction or alcoholism is a contributing factor material to the
determination of disability. Whenever a determination is made concerning
the amount of any benefits due for a period that must be paid in
installments, the written notice will also explain the amount of the
installment payment and when an increased initial installment payment
may be made (as described in Sec. 416.544). This written notice will be
sent to the individual and his or her representative payee.
[40 FR 47764, Oct. 10, 1975, as amended at 55 FR 33668, Aug. 17, 1990;
60 FR 8150, Feb. 10, 1995]
Sec. 416.560 Recovery--refund.
An overpayment may be refunded by the overpaid recipient or by
anyone on his or her behalf. Refund should be made in every case where
the overpaid individual is not currently eligible for SSI benefits. If
the individual is currently eligible for SSI benefits and has not
refunded the overpayment, adjustment as set forth in Sec. 416.570 will
be proposed.
[55 FR 33669, Aug. 17, 1990]
Sec. 416.570 Adjustment--general rule.
Where a recipient has been overpaid, the overpayment has not been
refunded, and waiver of adjustment or recovery is not applicable, any
payment due the overpaid recipient or his or her eligible spouse (or
recovery from the estate of either or both when either or both die
before adjustment is completed) is adjusted for recovery of the
overpayment. Adjustment will generally be accomplished by withholding
each month the amount set forth in Sec. 416.571 from the benefit payable
to the individual except that, when the overpayment results from the
disposition of resources as provided by Secs. 416.1240(b) and 416.1244,
the overpayment will be recovered by withholding any payments due the
overpaid recipient or his or her eligible spouse before any further
payment is made. Absent a specific request from the person from
[[Page 653]]
whom recovery is sought, no overpayment made under title II or XVIII of
the Act shall be recovered by adjusting SSI benefits, and absent a
specific request, no overpayment of SSI benefits shall be adjusted
against benefits payable under title II of the Act. In no case shall an
overpayment of SSI benefits be adjusted against title XVIII benefits.
[55 FR 33669, Aug. 17, 1990; 55 FR 42148, Oct. 17, 1990]
Sec. 416.571 10-percent limitation of recoupment rate--overpayment.
Any adjustment or recovery of an overpayment for an individual in
current payment status is limited in amount in any month to the lesser
of (1) the amount of the individual's benefit payment for that month or
(2) an amount equal to 10 percent of the individual's total income
(countable income plus SSI and State supplementary payments) for that
month. The countable income used is the countable income used in
determining the SSI and State supplementary payments for that month
under Sec. 416.420. When the overpaid individual is notified of the
proposed SSI and/or federally administered State supplementary
overpayment adjustment or recovery, the individual will be given the
opportunity to request that such adjustment or recovery be made at a
higher or lower rate than that proposed. If a lower rate is requested, a
rate of withholding that is appropriate to the financial condition of
the overpaid individual will be set after an evaluation of all the
pertinent facts. An appropriate rate is one that will not deprive the
individual of income required for ordinary and necessary living
expenses. This will include an evaluation of the individual's income,
resources, and other financial obligations. The 10-percent limitation
does not apply where it is determined that the overpayment occurred
because of fraud, willful misrepresentation, or concealment of material
information committed by the individual or his or her spouse.
Concealment of material information means an intentional, knowing, and
purposeful delay in making or failure to make a report that will affect
payment amount and/or eligibility. It does not include a mere omission
on the part of the recipient; it is an affirmative act to conceal. The
10-percent limitation does not apply to the recovery of overpayments
incurred under agreements to dispose of resources pursuant to
Sec. 416.1240. In addition, the 10-percent limitation does not apply to
the reduction of any future SSI benefits as a consequence of the misuse
of funds set aside in accordance with Sec. 416.1231(b) to meet burial
expenses. Adjustment or recovery will be suspended if the recipient is
subject to a reduced benefit rate under Sec. 416.414 because of residing
in a medical facility in which Medicaid is paying a substantial portion
of the recipient's cost of care.
[55 FR 33669, Aug. 17, 1990]
Subpart F--Representative Payment
Sec. 416.601 Introduction.
(a) Explanation of representative payment. This subpart explains the
principles and procedures that we follow in determining whether to make
representative payment and in selecting a representative payee. It also
explains the responsibilities that a representative payee has concerning
the use of the funds he or she receives on behalf of a beneficiary. A
representative payee may be either a person or an organization selected
by us to receive benefits on behalf of a beneficiary. A representative
payee will be selected if we believe that the interest of a beneficiary
will be served by representative payment rather than direct payment of
benefits. Generally, we appoint a representative payee if we have
determined that the beneficiary is not able to manage or direct the
management of benefit payments in his or her own interest.
(b) Policy used to determine whether to make representative payment.
(1) Our policy is that every beneficiary has the right to manage his or
her own benefits. However, some beneficiaries due to a mental or
physical condition or
[[Page 654]]
due to their youth may be unable to do so. Under these circumstances, we
may determine that the interests of the beneficiary would be better
served if we certified benefit payments to another person as a
representative payee. However, we must select a representative payee for
an individual who is eligible for benefits solely on the basis of
disability if drug addiction or alcoholism is a contributing factor
material to the determination of disability.
(2) If we determine that representative payment is in the interest
of a beneficiary, we will appoint a representative payee. We may appoint
a representative payee even if the beneficiary is a legally competent
individual. If the beneficiary is a legally incompetent individual, we
may appoint the legal guardian or some other person as a representative
payee.
(3) If payment is being made directly to a beneficiary and a
question arises concerning his or her ability to manage or direct the
management of benefit payments, we will, if the beneficiary is 18 years
old or older and has not been adjudged legally incompetent, continue to
pay the beneficiary until we make a determination about his or her
ability to manage or direct the management of benefit payments and the
selection of a representative payee.
[47 FR 30475, July 14, 1982, as amended at 60 FR 8150, Feb. 10, 1995]
Sec. 416.610 When payment will be made to a representative payee.
(a) We pay benefits to a representative payee on behalf of a
beneficiary 18 years old or older when it appears to us that this method
of payment will be in the interest of the beneficiary. We do this if we
have information that the beneficiary is--
(1) Legally incompetent or mentally incapable of managing benefit
payments; or
(2) Physically incapable of managing or directing the management of
his or her benefit payments; or
(3) Eligible for benefits solely on the basis of disability and drug
addiction or alcoholism is a contributing factor material to the
determination of disability.
(b) Generally, if a beneficiary is under age 18, we will pay
benefits to a representative payee. However, in certain situations, we
will make direct payments to a beneficiary under age 18 who shows the
ability to manage the benefits. For example, we make direct payment to a
beneficiary under age 18 if the beneficiary is--
(1) A parent and files for himself or herself and/or his or her
child and he or she has experience in handling his or her own finances;
or
(2) Capable of using the benefits to provide for his or her current
needs and no qualified payee is available; or
(3) Within 7 months of attaining age 18 and is initially filing an
application for benefits.
[47 FR 30475, July 14, 1982, as amended at 54 FR 35483, Aug. 28, 1989;
60 FR 8150, Feb. 10, 1995]
Sec. 416.615 Information considered in determining whether to make
representative payment.
In determining whether to make representative payment we consider
the following information:
(a) Court determinations. If we learn that a beneficiary has been
found to be legally incompetent, a certified copy of the court's
determination will be the basis of our determination to make
representative payment.
(b) Medical evidence. When available, we will use medical evidence
to determine if a beneficiary is capable of managing or directing the
management of benefit payments. For example, a statement by a physician
or other medical professional based upon his or her recent examination
of the beneficiary and his or her knowledge of the beneficiary's present
condition will be used in our determination, if it includes information
concerning the nature of the beneficiary's illness, the beneficiary's
chances for recovery and the opinion of the physician or other medical
professional as to whether the beneficiary is able to manage or direct
the management of benefit payments.
(c) Other evidence. We will also consider any statements of
relatives, friends and other people in a position to know and observe
the beneficiary, which contain information helpful to us in deciding
whether the beneficiary is able to manage or direct the management of
benefit payments.
[[Page 655]]
Sec. 416.620 Information considered in selecting a representative payee.
In selecting a payee we try to select the person, agency,
organization or institution that will best serve the interest of the
beneficiary. In making our selection we consider--
(a) The relationship of the person to the beneficiary;
(b) The amount of interest that the person shows in the beneficiary;
(c) Any legal authority the person, agency, organization or
institution has to act on behalf of the beneficiary;
(d) Whether the potential payee has custody of the beneficiary; and
(e) Whether the potential payee is in a position to know of and look
after the needs of the beneficiary.
Sec. 416.621 Order of preference in selecting a representative payee.
As a guide in selecting a representative payee, categories of
preferred payees have been established. These preferences are flexible.
Our primary concern is to select the payee who will best serve the
beneficiary's interests. The preferences are:
(a) For beneficiaries 18 years old or older our preference is--
(1) A legal guardian, spouse (or other relative) who has custody of
the beneficiary or who demonstrates strong concern for the personal
welfare of the beneficiary;
(2) A friend who has custody of the beneficiary or demonstrates
strong concern for the personal welfare of the beneficiary;
(3) A public or nonprofit agency or institution having custody of
the beneficiary;
(4) A private institution operated for profit and licensed under
State law, which has custody of the beneficiary; and
(5) Persons other than above who are qualified to carry out the
responsibilities of a payee and who are able and willing to serve as a
payee for the beneficiary; e.g., members of community groups or
organizations who volunteer to serve as payee for a beneficiary.
(b) For beneficiaries under age 18, our preference is--
(1) A natural or adoptive parent who has custody of the beneficiary,
or a guardian;
(2) A natural or adoptive parent who does not have custody of the
beneficiary, but is contributing toward the beneficiary's support and is
demonstrating strong concern for the beneficiary's well being;
(3) A natural or adoptive parent who does not have custody of the
beneficiary and is not contributing toward his or her support but is
demonstrating strong concern for the beneficiary's well being;
(4) A relative or stepparent who has custody of the beneficiary;
(5) A relative who does not have custody of the beneficiary but is
contributing toward the beneficiary's support and is demonstrating
concern for the beneficiary's well being;
(6) A relative or close friend who does not have custody of the
beneficiary but is demonstrating concern for the beneficiary's well
being; and
(7) An authorized social agency or custodial institution.
Sec. 416.625 Information to be submitted by a representative payee.
(a) Before we select a representative payee, the payee applicant
must give us information showing his or her relationship to the
beneficiary and his or her responsibility for the care of the
beneficiary.
(b) Anytime after we have selected a payee, we may ask the payee to
give us information showing a continuing relationship to the beneficiary
and a continuing responsibility for the care of the beneficiary. If the
payee does not give us the requested information within a reasonable
period of time, we may stop paying the payee unless we determine that
the payee had a good reason for not complying with our request, and we
receive the information requested.
Sec. 416.630 Advance notice of the determination to make representative payment.
(a) Generally, whenever we intend to make representative payment and
to name a payee, we notify the beneficiary or the individual acting on
his or her behalf, of our proposed actions. In this notice we tell the
person that we plan to name a representative payee and who that payee
will be. We also
[[Page 656]]
ask the person to contact us if he or she objects to either proposed
action. If he or she objects to either proposed action, the person may--
(1) Review the evidence upon which the proposed actions will be
based; and
(2) Submit any additional evidence regarding the proposed actions.
(b) If the person objects to the proposed actions, we will review
our proposed determinations and consider any additional information
given to us. We will then issue our determinations. If the person is
dissatisfied with either determination, he or she may request a
reconsideration.
(c) If the person does not object to the proposed actions, we will
issue our determinations. If the person is dissatisfied with either
determination, he or she may request a reconsideration.
Sec. 416.635 Responsibilities of a representative payee.
A representative payee has a responsibility to--
(a) Use the payments he or she receives only for the use and benefit
of the beneficiary in a manner and for the purposes he or she
determines, under the guidelines in this subpart, to be in the best
interests of the beneficiary;
(b) Notify us of any event that will affect the amount of benefits
the beneficiary receives or the right of the beneficiary to receive
benefits (See subpart G of this part concerning these reporting
requirements);
(c) Submit to us, upon our request, a written report accounting for
the benefits received; and
(d) Notify us of any change in his or her circumstances that would
affect performance of the payee responsibilities.
Sec. 416.640 Use of benefit payments.
(a) Current maintenance. We will consider that payments we certify
to a representive payee have been used for the use and benefit of the
beneficiary if they are used for the beneficiary's current maintenance.
Current maintenance includes costs incurred in obtaining food, shelter,
clothing, medical care and personal comfort items.
Example: A Supplemental Security Income beneficiary is entitled to a
monthly benefit of $264. The beneficiary's son, who is the
representative payee, disburses the benefits in the following manner:
Rent and Utilities............................................... $166
Medical.......................................................... 20
Food............................................................. 60
Clothing......................................................... 10
Miscellaneous.................................................... 8
The above expenditures would represent proper disbursements on
behalf of the beneficiary.
(b) Institution not receiving Medicaid funds on beneficiary's
behalf. If a beneficiary is receiving care in a Federal, State, or
private institution because of mental or physical incapacity, current
maintenance will include the customary charges for the care and services
provided by an institution, expenditures for those items which will aid
in the beneficiary's recovery or release from the institution, and
nominal expenses for personal needs (e.g., personal hygiene items,
snacks, candy) which will improve the beneficiary's condition. Except as
provided under Sec. 416.212, there is no restriction in using SSI
benefits for a beneficiary's current maintenance in an institution. Any
payments remaining from SSI benefits may be used for a temporary period
to maintain the beneficiary's residence outside of the institution
unless a physician has certified that the beneficiary is not likely to
return home.
Example: A hospitalized disabled beneficiary is entitled to a
monthly benefit of $264. The beneficiary, who resides in a boarding
home, has resided there for over 6 years. It is doubtful that the
beneficiary will leave the boarding home in the near future. The
boarding home charges $215 per month for the beneficiary's room and
board.
The beneficiary's representative payee pays the boarding home $215
(assuming an unsuccessful effort was made to negotiate a lower rate
during the beneficiary's absence) and uses the balance to purchase
miscellaneous personal items for the beneficiary. There are no benefits
remaining which can be conserved on behalf of the beneficiary. The
payee's use of the benefits is consistent with our guidelines.
(c) Institution receiving Medicaid funds on beneficiary's behalf.
Except in the case of a beneficiary receiving benefits payable under
Sec. 416.212, if a beneficiary resides throughout a month in an
institution that receives more than 50 percent of the cost of care on
behalf of the
[[Page 657]]
beneficiary from Medicaid, any payments due shall be used only for the
personal needs of the beneficiary and not for other items of current
maintenance.
Example: A disabled beneficiary resides in a hospital. The
superintendent of the hospital receives $30 per month as the
beneficiary's payee. The benefit payment is disbursed in the following
manner, which would be consistent with our guidelines:
Miscellaneous canteen items........................................ $10
Clothing........................................................... 15
Conserved for future needs of the beneficiary...................... 5
(d) Claims of creditors. A payee may not be required to use benefit
payments to satisfy a debt of the beneficiary, if the debt arose prior
to the first month for which payments are certified to a payee. If the
debt arose prior to this time, a payee may satisfy it only if the
current and reasonably foreseeable needs of the beneficiary are met.
Example: A disabled beneficiary was determined to be eligible for a
monthly benefit payment of $208 effective April 1981. The benefits were
certified to the beneficiary's brother who was appointed as the
representative payee. The payee conserved $27 of the benefits received.
In June 1981 the payee received a bill from a doctor who had treated the
beneficiary in February and March 1981. The bill was for $175.
After reviewing the beneficiary's current needs and resources, the
payee decided not to use any of the benefits to pay the doctor's bill.
(Approximately $180 a month is required for the beneficiary's current
monthly living expenses--rent, utilities, food, and insurance--and the
beneficiary will need new shoes and a coat within the next few months.)
Based upon the above, the payee's decision not to pay the doctor's
bill is consistent with our guidelines.
[47 FR 30475, July 14, 1982, as amended at 61 FR 10278, Mar. 13, 1996]
Effective Date Note: At 61 FR 10278, Mar. 13, 1996, in Sec. 416.640
paragraphs (b) and (c) were revised, effective May 13, 1996. For the
convenience of the reader, the superseded text is set forth below.
Sec. 416.640 Use of benefit payments.
* * * * *
(b) Institution not receiving Medicaid funds on beneficiary's
behalf. If a beneficiary is receiving care in a Federal, State or
private institution because of mental or physical incapacity, current
maintenance includes the customary charges for care and services
provided by the institution, and expenditures for those items which will
aid in the beneficiary's recovery or release from the institution or
expenses for personal needs which will improve the beneficiary's
conditions while in the institution. Any payments remaining may be used
for a temporary period to maintain the beneficiary's residence outside
of the institution unless a physician has certified that the beneficiary
is not likely to return home.
Example: A disabled beneficiary is entitled to a monthly benefit of
$264. The beneficiary, who resides in a boarding home, has resided there
for over six years. It is doubtful that the beneficiary will leave the
boarding home in the near future. The boarding home charges $215 per
month for the beneficiary's room and board.
The beneficiary's payee pays the boarding home $215 and uses the
balance to purchase miscellaneous personal items for the beneficiary.
There are no benefits remaining which can be conserved on behalf of the
beneficiary. The payee's use of the benefits is consistent with our
guidelines.
(c) Institution receiving Medicaid funds on beneficiary's behalf. If
a beneficiary is in an institution throughout a month and the
institution receives Medicaid funds on behalf of the beneficiary, any
payments due shall be used only for the personal needs of the
beneficiary, and not for current maintenance.
Example: A disabled beneficiary resides in a psychiatric hospital.
The superintendent of the hospital receives $25 per month as the
beneficiary's payee. The benefit payment is disbursed in the following
manner which would be consistent with our guidelines:
Miscellaneous canteen items......................................... $9
Clothing............................................................ 11
Conserved for future needs of the beneficiary....................... 5
* * * * *
Sec. 416.640a Compensation for qualified organizations serving as representative payees.
(a) General. A community-based, nonprofit social service agency
which meets the requirements set out in paragraph (b) of this section
may request our authorization to collect a monthly fee from a
beneficiary for providing representative payee services.
(b) Organizations that may request compensation. We will authorize
an organization to collect a fee if all the following requirements are
met.
[[Page 658]]
(1) It is community-based, i.e., serves or represents one or more
neighborhoods, city or county locales and is located within its service
area.
(2) It is a nonprofit social service organization founded for
religious, charitable or social welfare purposes and is tax exempt under
section 501(c) of the Internal Revenue Code.
(3) It is bonded or licensed in the State in which it serves as
representative payee.
(4) It regularly provides representative payee services concurrently
to at least five beneficiaries. An organization which has received our
authorization to collect a fee for representative payee services, but is
temporarily not a payee for at least five beneficiaries, may request our
approval to continue to collect fees.
(5) It was in existence on October 1, 1988.
(6) It is not a creditor of the beneficiary. See paragraph (c) of
this section for exceptions to this requirement.
(c) Creditor relationship. If an organization has a creditor
relationship with a beneficiary we may, on a case-by-case basis,
authorize the organization to collect a fee for payee services
notwithstanding this relationship. To provide this authorization, we
will review all of the evidence submitted by the organization and
authorize collection of a fee when:
(1) The services provided by the organization help to meet the
current needs of the beneficiary; and
(2) The amount the organization charges the beneficiary for these
services is commensurate with the beneficiary's ability to pay.
(d) Authorization process. (1) An organization must request in
writing and receive an authorization from us before it may collect a
fee.
(2) An organization seeking authorization to collect a fee must also
give us evidence to show that it is qualified, pursuant to paragraphs
(b) and (c) of this section, to collect a fee.
(3) If the evidence provided to us by the organization shows that
the requirements of this section are met, we will notify the
organization in writing that it is authorized to collect a fee. If we
need more evidence, or if we are not able to authorize the collection of
a fee, we will also notify the organization in writing that we have not
authorized the collection of a fee.
(e) Revocation, cancellation and expiration of the authorization.
(1) We will revoke an authorization to collect a fee if we have evidence
which establishes that an organization no longer meets the requirements
of this section. We will issue a written notice to the organization
explaining the reason(s) for the revocation.
(2) An organization may cancel its authorization at any time upon
written notice to us.
(f) Notices. The written notice we will send to an organization
authorizing the collection of a fee will contain an effective date for
the collection of a fee pursuant to paragraphs (b) and (c) of this
section. The effective date will be no earlier than the month in which
the organization asked for authorization to collect a fee. The notice
will be applicable to all beneficiaries for whom the organization was
payee at the time of our authorization and all beneficiaries for whom
the organization becomes payee while the authorization is in effect.
(g) Limitation on fees. (1) An organization authorized to collect a
fee pursuant to this section may collect from a beneficiary a monthly
fee for expenses (including overhead) it has incurred in providing payee
services to a beneficiary if the fee does not exceed the lesser of--
(i) 10 percent of the beneficiary's monthly benefit payments; or
(ii) $25.00 per month.
(2) Any agreement providing for a fee in excess of the amount
permitted under paragraph (g)(1) of this section shall be void and
treated as misuse of benefits by the organization of the individual's
benefits under Sec. 416.641.
(3) A fee may be collected for any month during which the
organization--
(i) Provides representative payee services;
(ii) Receives a benefit payment for the beneficiary; and
(iii) Is authorized to receive a fee for representative payee
services.
(4) Fees for services may not be taken from any funds conserved for
the beneficiary by a payee in accordance with Sec. 416.645.
[[Page 659]]
(5) Generally, an organization may not collect a fee for months in
which it does not receive a benefit payment. However, an organization
will be allowed to collect a fee for months in which it did not receive
a payment if we later issue payments for these months and the
organization:
(i) Received our approval to collect a fee for the months for which
payment is made;
(ii) Provided payee services in the months for which payment is
made; and
(iii) Was the payee when the retroactive payment was paid by us.
(6) An authorized organization may not collect a fee for the
expenses it incurred in providing representative payee services if these
expenses are paid from another source.
(7) An authorized organization may collect a fee for representative
payee services from the entire monthly benefit amount received,
including any payment of a federally-administered State supplementary
payment under subpart T of this part.
(8) In the case of an institutionalized beneficiary a fee may not be
withheld from benefits which must be set aside for the beneficiary's
personal needs in accordance with Sec. 416.640(c).
[57 FR 23057, June 1, 1992; 57 FR 27091, June 17, 1992]
Sec. 416.641 Liability for misuse of benefit payments.
Our obligation to the beneficiary is completely discharged when we
make a correct payment to a representative payee on behalf of the
beneficiary. The payee personally, and not SSA, may be liable if the
payee misuses the beneficiary's benefits.
Sec. 416.645 Conservation and investment of benefit payments.
(a) General. If payments are not needed for the beneficiary's
current maintenance or reasonably foreseeable needs, they shall be
conserved or invested on behalf of the beneficiary. Conserved funds
should be invested in accordance with the rules followed by trustees.
Any investment must show clearly that the payee holds the property in
trust for the beneficiary.
Example: A State institution for mentally retarded children, which
is receiving Medicaid funds, is representative payee for several
beneficiaries. The checks the payee receives are deposited into one
account which shows that the benefits are held in trust for the
beneficiaries. The institution has supporting records which show the
share each individual has in the account. Funds from this account are
disbursed fairly quickly after receipt for the personal needs of the
beneficiaries. However, not all those funds were disbursed for this
purpose. As a result, several of the beneficiaries have significant
accumulated resources in this account. For those beneficiaries whose
benefits have accumulated over $150, the funds should be deposited in an
interest-bearing account or invested relatively free of risk on behalf
of the beneficiaries.
(b) Preferred investments. Preferred investments for excess funds
are U.S. Savings Bonds and deposits in an interest or dividend paying
account in a bank, trust company, credit union, or savings and loan
association which is insured under either Federal or State law. The
account must be in a form which shows clearly that the representative
payee has only a fiduciary and not a personal interest in the funds. If
the payee is the legally appointed guardian or fiduciary of the
beneficiary, the account may be established to indicate this
relationship. If the payee is not the legally appointed guardian or
fiduciary, the accounts may be established as follows:
(1) For U.S. Savings Bonds--
------------ (Name of beneficiary) ------ (Social Security Number),
for whom ------------ (Name of payee) is representative payee for
Supplemental Security Income benefits;
(2) For interest or dividend paying accounts--
------------ (Name of beneficiary) by ------------ (Name of payee),
representative payee.
(c) Interest and dividend payments. The interest and dividends which
result from an investment are the property of the beneficiary and may
not be considered to be the property of the payee.
Sec. 416.650 When a new representative payee will be selected.
When we learn that the interests of the beneficiary are not served
by continuing payment to the present payee or that the present payee is
no longer
[[Page 660]]
able to carry out the payee responsibilities, we try to find a new
payee. We will select a new payee if we find a preferred payee or if the
present payee--
(a) Has not used the benefit payments on the beneficiary's behalf in
accordance with the guidelines in this subpart;
(b) Has not carried out the other responsibilities described in this
subpart;
(c) Dies;
(d) No longer wishes to be payee;
(e) Is unable to manage the benefit payments; or
(f) Fails to cooperate, within a reasonable time, in providing
evidence, accounting, or other information which we request.
Sec. 416.655 When representative payment will be stopped.
If a beneficiary receiving representative payment shows us that he
or she is mentally and physically able to manage or direct the
management of benefit payments, we will make direct payment. Information
which the beneficiary may give us to support his or her request for
direct payment include the following--
(a) A physician's statement regarding the beneficiary's condition,
or a statement by a medical officer of the institution where the
beneficiary is or was confined, showing that the beneficiary is able to
manage or direct the management of his or her funds; or
(b) A certified copy of a court order restoring the beneficiary's
rights in a case where a beneficiary was adjudged legally incompetent;
or
(c) Other evidence which establishes the beneficiary's ability to
manage or direct the management of benefits.
Sec. 416.660 Transfer of accumulated benefit payments.
A representative payee who has conserved or invested benefit
payments shall transfer these funds, and the interest earned from the
invested funds, to either a successor payee, or to us, as we will
specify. If the funds and the earned interest are returned to us, we
will recertify them to a successor representative payee or to the
beneficiary.
Sec. 416.665 Accounting for benefit payments.
A representative payee is accountable for the use of benefits. We
may require periodic written reports from representative payees. We may
also, in certain situations, verify how a representative payee used the
funds. A representative payee should keep records of what was done with
the benefit payments in order to make accounting reports. We may ask the
following questions--
(a) The amount of benefit payments on hand at the beginning of the
accounting period;
(b) How the benefit payments were used;
(c) How much of the benefit payments were saved and how the savings
were invested;
(d) Where the beneficiary lived during the accounting period; and
(e) The amount of the beneficiary's income from other sources during
the accounting period. We ask for information about other funds to
enable us to evaluate the use of benefit payments.
Subpart G--Reports Required
Sec. 416.701 Scope of subpart.
(a) Report provisions. The Social Security Administration, to
achieve efficient administration of the Supplemental Security Income
(SSI) program for the Aged, Blind, and Disabled, requires that you (or
your representative) must report certain events to us. It is important
for us to know about these events because they may affect your continued
eligibility for SSI benefits or the amount of your benefits. This
subpart tells you what events you must report; what your reports must
include; and when reports are due. The rules regarding reports are in
Secs. 416.704 through 416.714.
[[Page 661]]
(b) Penalty deductions. If you fail to make a required report when
it is due, you may suffer a penalty. This subpart describes the
penalties; discusses when we may impose them; and explains that we will
not impose a penalty if you have good cause for failing to report
timely. The rules regarding penalties are in Secs. 416.722 through
416.732.
Sec. 416.702 Definitions.
For purposes of this subpart--
Essential person means someone whose presence was believed to be
necessary for your welfare under the State program that preceded the SSI
program. (See Secs. 416.241 through 416.249.)
Parent means a natural parent, an adoptive parent, or the spouse of
a natural or adoptive parent.
Representative payee means an individual, an agency, or an
institution selected by us to receive and manage SSI benefits on your
behalf. (See subpart F of this part for details describing when a
representative payee is selected and a representative payee's
responsibilities.)
Residence in the United States means that your permanent home is in
the United States.
United States or U.S. means the 50 States, the District of Columbia,
and the Northern Mariana Islands.
We, Us, or Our means the Social Security Administration.
You or Your means an applicant, an eligible individual, an eligible
spouse, or an eligible child.
Report Provisions
Sec. 416.704 Who must make reports.
(a) You are responsible for making required reports to us if you
are--
(1) An eligible individual (see Sec. 416.120(c)(13));
(2) An eligible spouse (see Sec. 416.120(c)(14));
(3) An eligible child (see Secs. 416.120(c)(13) and 416.1856); or
(4) An applicant awaiting a final determination upon an application.
(b) If you have a representative payee, and you have not been
legally adjudged incompetent, either you or your representative payee
must make the required reports.
(c) If you have a representative payee and you have been legally
adjudged incompetent, you are not responsible for making reports to us;
however, your representative payee is responsible for making required
reports to us.
[46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 28, 1986]
Sec. 416.708 What you must report.
This section describes the events that you must report to us. They
are--
(a) A change of address. You must report to us any change in your
mailing address and any change in the address where you live.
(b) A change in living arrangements. You must report to us any
change in the make-up of your household: That is, any person who comes
to live in your household and any person who moves out of your
household.
(c) A change in income. You must report to us any increase or
decrease in your income, and any increase or decrease in the income of--
(1) Your ineligible spouse who lives with you;
(2) Your essential person;
(3) Your parent, if you are an eligible child and your parent lives
with you; or
(4) An ineligible child who lives with you.
However, you need not report an increase in your Social Security
benefits if the increase is only a cost-of-living adjustment. (For a
complete discussion of what we consider income, see subpart K. See
subpart M, Sec. 416.1323 regarding suspension because of excess income.)
(d) A change in resources. You must report to us any resources you
receive or part with, and any resources received or parted with by--
(1) Your ineligible spouse who lives with you;
(2) Your essential person; or
(3) Your parent, if you are an eligible child and your parent lives
with you. (For a complete discussion of what we consider a resource, see
subpart L. See subpart M, Sec. 416.1324 regarding suspension because of
excess resources.)
(e) Eligibility for other benefits. You must report to us your
eligibility for benefits other than SSI benefits. See
[[Page 662]]
Sec. Sec. 416.210 and 416.1330 regarding your responsibility to apply
for any other benefits for which you may be eligible.
(f) Certain deaths. (1) If you are an eligible individual, you must
report the death of your eligible spouse, the death of your ineligible
spouse who was living with you, and the death of any other person who
was living with you.
(2) If you are an eligible spouse, you must report the death of your
spouse, and the death of any other person who was living with you.
(3) If you are an eligible child, you must report the death of a
parent who was living with you, and the death of any other person who
was living with you.
(4) If you are a representative payee, you must report the death of
an eligible individual, eligible spouse, or eligible child whom you
represent; and the death of any other person who was living in the
household of the individual you represent.
(5) If you have a representative payee, you must report the death of
your representative payee.
(g) A change in marital status. You must report to us--
(1) Your marriage, your divorce, or the annulment of your marriage;
(2) The marriage, divorce, or annulment of marriage of your parent
who lives with you, if you are an eligible child;
(3) The marriage of an ineligible child who lives with you, if you
are an eligible child; and
(4) The marriage of an ineligible child who lives with you if you
are an eligible individual living with an ineligible spouse.
(h) Medical improvements. If you are eligible for SSI benefits
because of disability or blindness, you must report any improvement in
your medical condition to us.
(i) Refusal to accept vocational rehabilitation services. If we have
referred you for vocational rehabilitation services and you refuse to
accept these services, you must report your refusal to us.
(j) Refusal to accept treatment for drug addiction or alcoholism;
discontinuance of treatment. If you have been medically determined to be
a drug addict or an alcoholic, and you refuse to accept treatment for
drug addiction or alcoholism at an approved facility or institution, or
if you discontinue treatment, you must report your refusal or
discontinuance to us.
(k) Admission to or discharge from a medical facility, public
institution, or private institution. You must report to us your
admission to or discharge from--
(1) A hospital;
(2) A skilled nursing facility;
(3) An intermediate care facility; or
(4) A public institution (defined in Sec. 416.201); or
(5) A private institution. Private institution means an institution
as defined in Sec. 416.201 which is not administered by or the
responsibility of a governmental unit.
(l) A change in school attendance. You must report to us--
(1) A change in your school attendance if you are an eligible child;
(2) A change in school attendance of an ineligible child who is at
least age 18 but less than 21 and who lives with you if you are an
eligible child; and
(3) A change in school attendance of an ineligible child who is at
least age 18 but less than 21 and who lives with you if you are an
eligible individual living with an ineligible spouse.
(m) A termination of residence in the U.S. You must report to us if
you leave the United States voluntarily with the intention of abandoning
your residence in the United States or you leave the United States
involuntarily (for example, you are deported).
(n) Leaving the U.S. temporarily. You must report to us if you leave
the United States for 30 or more consecutive days or for a full calendar
month (without the intention of abandoning your residence in the U.S.).
[46 FR 5873, Jan. 21, 1981, as amended at 51 FR 10616, Mar. 14, 1986]
Sec. 416.710 What reports must include.
When you make a report you must tell us--
(a) The name and social security number under which benefits are
paid;
(b) The name of the person about whom you are reporting;
(c) The event you are reporting and the date it happened; and
(d) Your name.
[[Page 663]]
Sec. 416.712 Form of the report.
You may make a report in any of the ways described in this section.
(a) Written reports. You may write a report on your own paper or on
a printed form supplied by us. You may mail a written report or bring it
to one of our offices.
(b) Oral reports. You may report to us by telephone, or you may come
to one of our offices and tell one of our employees what you are
reporting.
(c) Other forms. You may use any other suitable method of
reporting--for example, a telegram or a cable.
Sec. 416.714 When reports are due.
(a) A reportable event happens. You should report to us as soon as
an event listed in Sec. 416.708 happens. If you do not report within 10
days after the close of the month in which the event happens, your
report will be late. We may impose a penalty deduction from your
benefits for a late report (see Secs. 416.722 through 416.732).
(b) We request a report. We may request a report from you if we need
information to determine continuing eligibility or the correct amount of
your SSI benefit payments. If you do not report within 30 days of our
written request, we may determine that you are ineligible to receive SSI
benefits. We will suspend your benefits effective with the month
following the month in which we determine that you are ineligible to
receive SSI benefits because of your failure to give us necessary
information.
[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]
Penalty Deductions
Sec. 416.722 Circumstances under which we make a penalty deduction.
A penalty deduction is made from your benefits if--
(a) You fail to make a required report on time (see Secs. 416.708
and 416.714);
(b) We must reduce, suspend, or terminate your benefits because of
the event you have not reported;
(c) You received and accepted an SSI benefit for the penalty period
(see Secs. 416.724 through 416.728 for penalty period definitions); and
(d) You do not have good cause for not reporting on time (see
Sec. 416.732).
Sec. 416.724 Amounts of penalty deductions.
(a) Amounts deducted. If we find that we must impose a penalty
deduction, you will lose from your SSI benefits a total amount of--
(1) $25 for a report overdue in the first penalty period;
(2) $50 for a report overdue in the second penalty period; and
(3) $100 for a report overdue in the third (or any following)
penalty period.
(b) Limit on number of penalties. Even though more than one required
report is overdue from you at the end of a penalty period, we will limit
the number of penalty deductions imposed to one penalty deduction for
any one penalty period.
Sec. 416.726 Penalty period: First failure to report.
(a) First penalty period. The first penalty period begins on the
first day of the month you apply for SSI benefits and ends on the day we
first learn that you should have made a required report, but did not do
so within 10 days after the close of the month in which the event
happened. There may be more than one required report overdue at the end
of the first penalty period, but we will impose no more than one penalty
deduction for the period.
(b) Extension of first penalty period. If you have good cause for
not making a report on time (see Sec. 416.732), we will extend the first
penalty period to the day when we learn that you should have made
another required report, but did not do so within 10 days after the
close of the month in which the event happened. There may be more than
one required report overdue at the end of the extended first penalty
period, but we will impose no more than one penalty deduction for the
extended period.
[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]
Sec. 416.728 Penalty period: Second failure to report.
(a) Second penalty period. The second penalty period begins on the
day after the first penalty period ends. The second penalty period ends
on the day we
[[Page 664]]
first learn that you should have made a required report, but did not do
so within 10 days after the close of the month in which the event
happened. (The event may have happened during the first penalty period,
with the reporting due date in the second penalty period. The due date
and the failure to report on time are the important factors in
establishing a penalty period.) There may be more than one required
report overdue at the end of the second penalty period, but we will
impose no more than one penalty deduction for the period.
(b) Extension of second penalty period. If you have good cause for
not making a report on time (see Sec. 416.732), we will extend the
second penalty period to the day when we learn that you should have made
another required report, but did not do so within 10 days after the
close of the month in which the event happened. There may be more than
one required report overdue at the end of the extended second penalty
period, but we will impose no more than one penalty deduction for the
extended period.
[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]
Sec. 416.730 Penalty period: Three or more failures to report.
(a) Third (or a following) penalty period. A third (or a following)
penalty period begins the day after the last penalty period ends. This
penalty period ends on the day we first learn that you should have made
a required report during the penalty period, but did not do so within 10
days after the close of the month in which the event happened. (The
event may have happened during an earlier penalty period, with the
reporting due date in the third (or a following) penalty period. The due
date and the failure to report on time are the important factors in
establishing a penalty period.) There may be more than one required
report overdue at the end of a penalty period, but we will impose no
more than one penalty deduction for any one penalty period.
(b) Extension of third (or a following) penalty period. Just as with
the first and second penalty periods, if you have good cause for not
making a report on time during the third (or a following) penalty period
(see Sec. 416.732), we will extend the penalty period to the day when we
learn that you should have made another required report, but did not do
so within 10 days after the close of the month in which the event
happened. There may be more than one required report overdue at the end
of an extended penalty period, but we will impose no more than one
penalty deduction for any one extended penalty period.
[46 FR 5873, Jan. 21, 1981, as amended at 50 FR 48573, Nov. 26, 1985]
Sec. 416.732 No penalty deduction if you have good cause for failure to report timely.
(a) We will find that you have good cause for failure to report
timely and we will not impose a penalty deduction, if--
(1) You are ``without fault'' as defined in Sec. 416.552; or
(2) Your failure or delay in reporting is not willful. ``Not
willful'' means that--
(i) You did not have full knowledge of the existence of your
obligation to make a required report; or
(ii) You did not intentionally, knowingly, and purposely fail to
make a required report.
However, in either case we may require that you refund an overpayment
caused by your failure to report. See subpart E of this part for waiver
of recovery of overpayments.
(b) In determining whether you have good cause for failure to report
timely, we will take into account any physical, mental, educational, or
linguistic limitations (including any lack of facility with the English
language) you may have.
[59 FR 1636, Jan. 12, 1994]
Subpart H--Determination of Age
Sec. 416.801 Evidence as to age--when required.
An applicant for benefits under title XVI of the Act shall file
supporting evidence showing the date of his birth if his age is a
condition of eligibility for benefits or is otherwise relevant to the
payment of benefits pursuant to such title XVI. Such evidence may also
be required by the Administration as to the age of any other individual
when such other individual's age is relevant to the determination of the
applicant's eligibility or benefit amount. In the absence of evidence to
the contrary, if the applicant alleges that he is at least 68 years of
age and submits any documentary evidence at least 3 years old which
supports his allegation, no further evidence of his age is required. In
the absence of evidence to the contrary, if a State required reasonably
acceptable evidence of age and provides a statement as to an applicant's
age, no further evidence of his age is required unless a statistically
valid quality control sample has shown that a State's determination of
age procedures do not yield an acceptable low rate of error.
Sec. 416.802 Type of evidence to be submitted.
Where an individual is required to submit evidence of date of birth
as indicated in Sec. 416.801, he shall submit a public record of birth
or a religious record of birth or baptism established or recorded before
his fifth birthday, if available. Where no such document recorded or
established before age 5 is available the individual shall submit as
evidence of age another document or documents which may serve as the
basis for a determination of the individual's date of birth provided
such evidence is corroborated by other evidence or by information in the
records of the Administration.
Sec. 416.803 Evaluation of evidence.
Generally, the highest probative value will be accorded to a public
record of birth or a religious record of birth or baptism established or
recorded before age 5. Where such record is not available, and other
documents are submitted as evidence of age, in determining their
probative value, consideration will be given to when such other
documents were established or recorded, and the circumstances attending
their establishment or recordation. Among the documents which may be
submitted for such purpose are: school record, census record, Bible or
other family record, church record of baptism or confirmation in youth
or early adult life, insurance policy, marriage record, employment
record, labor union record, fraternal organization record, military
record, voting record, vaccination record, delayed birth certificate,
birth certificate of child of applicant, physician's or midwife's record
of birth, immigration record, naturalization record, or passport.
Sec. 416.804 Certified copy in lieu of original.
In lieu of the original of any record, except a Bible or other
family record, there may be submitted as evidence of age a copy of such
record or a statement as to the date of birth shown by such record,
which has been duly certified (see Sec. 404.701(g) of this chapter).
Sec. 416.805 When additional evidence may be required.
If the evidence submitted is not convincing, additional evidence may
be required.
Sec. 416.806 Expedited adjudication based on documentary evidence of
age.
Where documentary evidence of age recorded at least 3 years before
the application is filed, which reasonably supports an aged applicant's
allegation as to his age, is submitted, payment of benefits may be
initiated even though additional evidence of age may be required by
Secs. 416.801 through 416.805. The applicant will be advised that
additional evidence is required and that, if it is subsequently
established that the prior finding of age is incorrect, the applicant
will be liable for refund of any overpayment he has received. If any of
the evidence initially submitted tends to show that the age of the
applicant or such other person does not correspond with the alleged age,
no benefits will be paid until the evidence required by Secs. 416.801
through 416.805 is submitted.
[[Page 666]]
Subpart I--Determining Disability and Blindness
Sec. 416.901 Scope of subpart.
In order for you to become entitled to any benefits based upon
disability or blindness you must be disabled or blind as defined in
title XVI of the Social Security Act. This subpart explains how we
determine whether you are disabled or blind. We have organized the rules
in the following way.
(a) We define general terms, then discuss who makes our disability
or blindness determinations and state that disability and blindness
determinations made under other programs are not binding on our
determinations.
(b) We explain the term disability and note some of the major
factors that are considered in determining whether you are disabled in
Secs. 416.905 through 416.910.
(c) Sections 416.912 through 416.918 contain our rules on evidence.
We explain your responsibilities for submitting evidence of your
impairment, state what we consider to be acceptable sources of medical
evidence, and describe what information should be included in medical
reports.
(d) Our general rules on evaluating disability for adults filing new
applications are stated in Secs. 416.920 through 416.923. We describe
the steps that we go through and the order in which they are considered.
(e) Our general rules on evaluating disability for children filing
new applications are stated in Secs. 416.924 through 416.924e.
(f) Our rules on medical considerations are found in Secs. 416.925
through 416.930. We explain in these rules--
(1) The purpose and use of the Listing of Impairments found in
appendix 1 of subpart P of part 404 of this chapter;
(2) What we mean by the term medical equivalence and how we
determine medical equivalence;
(3) The effect of a conclusion by your physician that you are
disabled;
(4) What we mean by symptoms, signs, and laboratory findings;
(5) How we evaluate pain and other symptoms; and
(6) The effect on your benefits if you fail to follow treatment that
is expected to restore your ability to work, and how we apply the rule.
(g) In Secs. 416.931 through 416.934 we explain that we may make
payments on the basis of presumptive disability or presumptive
blindness.
(h) In Secs. 416.935 through 416.939 we explain the rules which
apply in cases of drug addiction and alcoholism.
(i) In Secs. 416.945 through 416.946 we explain what we mean by the
term residual functional capacity, state when an assessment of residual
functional capacity is required, and who may make it.
(j) Our rules on vocational considerations are found in
Secs. 416.960 through 416.969a. We explain when vocational factors must
be considered along with the medical evidence, discuss the role of
residual functional capacity in evaluating your ability to work, discuss
the vocational factors of age, education, and work experience, describe
what we mean by work which exists in the national economy, discuss the
amount of exertion and the type of skill required for work, describe how
the Guidelines in appendix 2 of subpart P of part 404 of this chapter
apply to claims under part 416, and explain when, for purposes of
applying the Guidelines in appendix 2, we consider the limitations or
restrictions imposed by your impairment(s) and related symptoms to be
exertional, nonexertional, or a combination of both.
(k) Our rules on substantial gainful activity are found in
Secs. 416.971 through 416.974. These explain what we mean by substantial
gainful activity and how we evaluate your work activity.
(l) In Secs. 416.981 through 416.985 we discuss blindness.
(m) Our rules on when disability or blindness continues and stops
are contained in Secs. 416.986 and 416.988 through
[[Page 667]]
416.998. We explain what your responsibilities are in telling us of any
events that may cause a change in your disability or blindness status,
when you may have a trial work period, and when we will review to see if
you are still disabled. We also explain how we consider the issue of
medical improvement (and the exceptions to medical improvement) in
determining whether you are still disabled.
[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50136, Dec. 6, 1985; 56
FR 5553, Feb. 11, 1991; 56 FR 57944, Nov. 14, 1991]
Sec. 416.902 General definitions and terms for this subpart.
As used in this subpart--
Adult means a person who is age 18 or older.
Child means a person who has not attained age 18.
Medical sources refers to treating sources, sources of record, and
consultative examiners for us. See Sec. 416.913.
Secretary means the Secretary of Health and Human Services.
Source of record means a hospital, clinic or other source that has
provided you with medical treatment or evaluation, as well as a
physician or psychologist who has treated or evaluated you but does not
have or did not have an ongoing treatment relationship with you.
State agency means that agency of a State which has been designated
by the State to carry out the disability or blindness determination
function.
Treating source means your own physician or psychologist who has
provided you with medical treatment or evaluation and who has or has had
an ongoing treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with a physician or
psychologist when the medical evidence establishes that you see or have
seen the physician or psychologist with a frequency consistent with
accepted medical practice for the type of treatment and evaluation
required for your medical condition(s). We may consider a physician or
psychologist who has treated you only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the nature
and frequency of the treatment is typical for your condition(s). We will
not consider a physician or psychologist to be your treating physician
if your relationship with the physician or psychologist is not based on
your need for treatment, but solely on your need to obtain a report in
support of your claim for benefits. In such a case, we will consider the
physician or psychologist to be a consulting physician or psychologist.
We or us refers to either the Social Security Administration or the
State agency making the disability or blindness determination.
You refers to the person who has applied for or is receiving
benefits based on disability or blindness.
[56 FR 36962, Aug. 1, 1991, as amended at 58 FR 47577, Sept. 9, 1993]
Determinations
Sec. 416.903 Who makes disability and blindness determinations.
(a) State agencies. State agencies make disability and blindness
determinations for the Secretary for most persons living in the State.
State agencies make these disability and blindness determinations under
regulations containing performance standards and other administrative
requirements relating to the disability and blindness determination
function. States have the option of turning the function over to the
Federal Government if they no longer want to make disability
determinations. Also, the Secretary may take the function away from any
State which has substantially failed to make disability and blindness
determinations in accordance with these regulations. Subpart J of this
part contains the rules the States must follow in making disability and
blindness determinations.
(b) Social Security Administration. The Social Security
Administration will make disability and blindness determinations for the
Secretary for--
(1) Any person living in a State which is not making for the
Secretary any disability and blindness determinations or which is not
making those determinations for the class of claimants to which that
person belongs; and
(2) Any person living outside the United States.
[[Page 668]]
(c) What determinations are authorized. The Secretary has authorized
the State agencies and the Social Security Administration to make
determinations about--
(1) Whether you are disabled or blind;
(2) The date your disability or blindness began; and
(3) The date your disability or blindness stopped.
(d) Review of State agency determinations. On review of a State
agency determination or redetermination of disability or blindness we
may find that--
(1) You are, or are not, disabled or blind, regardless of what the
State agency found;
(2) Your disability or blindness began earlier or later than the
date found by the State agency; and
(3) Your disability or blindness stopped earlier or later than the
date found by the State agency.
(e) Initial determinations for mental impairments. An initial
determination by a State agency or the Social Security Administration
that you are not disabled (or a Social Security Administration review of
a State agency's initial determination), in any case where there is
evidence which indicates the existence of a mental impairment, will be
made only after every reasonable effort has been made to ensure that a
qualified psychiatrist or psychologist has completed the medical portion
of the case review and any applicable residual functional capacity
assessment. (See Sec. 416.1016 for the qualifications we consider
necessary for a psychologist to be a psychological consultant and
Sec. 416.1017 for what we consider reasonable effort.) If the services
of qualified psychiatrists or psychologists cannot be obtained because
of impediments at the State level, the Secretary may contract directly
for the services. In a case where there is evidence of mental and
nonmental impairments and a qualified psychologist serves as a
psychological consultant, the psychologist will evaluate only the mental
impairment, and a physician will evaluate the nonmental impairment. The
overall determination of impairment severity in combined mental and
nonmental impairment cases will be made by a medical consultant other
than a qualified psychologist unless the mental impairment alone would
justify a finding of disability.
(f) Determinations for childhood impairments. In making a
determination under title XVI with respect to the disability of a child
to whom paragraph (e) of this section does not apply, we will make
reasonable efforts to ensure that a qualified pediatrician or other
individual who specializes in a field of medicine appropriate to the
child's impairment(s) evaluates the case of the child.
[46 FR 29211, May 29, 1981, as amended at 52 FR 33927, Sept. 9, 1987; 58
FR 47577, Sept. 9, 1993]
Sec. 416.903a Program integrity.
We will not use in our program any individual or entity, except to
provide existing medical evidence, who is currently excluded, suspended,
or otherwise barred from participation in the Medicare or Medicaid
programs, or any other Federal or Federally-assisted program; whose
license to provide health care services is currently revoked or
suspended by any State licensing authority pursuant to adequate due
process procedures for reasons bearing on professional competence,
professional conduct, or financial integrity; or who until a final
determination is made has surrendered such a license while formal
disciplinary proceedings involving professional conduct are pending. By
individual or entity we mean a medical or psychological consultant,
consultative examination provider, or diagnostic test facility. Also see
Secs. 416.919 and 416.919g(b).
[56 FR 36963, Aug. 1, 1991]
Sec. 416.904 Determinations by other organizations and agencies.
A decision by any nongovernmental agency or any other governmental
agency about whether you are disabled or blind is based on its rules and
is not our decision about whether you are disabled or blind. We must
make a disability or blindness determination based on social security
law. Therefore, a determination made by another agency that you are
disabled or blind is not binding on us.
[[Page 669]]
Definition of Disability
Sec. 416.905 Basic definition of disability for adults.
(a) The law 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. To meet this definition, you must have a
severe impairment, which makes you unable to do your previous work or
any other substantial gainful activity which exists in the national
economy. To determine whether you are able to do any other work, we
consider your residual functional capacity and your age, education, and
work experience (see Sec. 416.920).
(b) There are different rules for determining disability for
individuals who are statutorily blind. We discuss these in Secs. 416.981
through 416.985.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991]
Sec. 416.906 Basic definition of disability for children.
If you are under age 18, we will consider you disabled if you are
suffering from any medically determinable physical or mental impairment
which compares in severity to an impairment that would make an adult (a
person over age 18) disabled. We discuss our rules for determining
disability in children in Secs. 416.924, and 416.924a through 416.924e.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991]
Sec. 416.907 Disability under a State plan.
You will also be considered disabled for payment of supplemental
security income benefits if--
(a) You were found to be permanently and totally disabled as defined
under a State plan approved under title XIV or XVI of the Social
Security Act, as in effect for October 1972;
(b) You received aid under the State plan because of your disability
for the month of December 1973 and for at least one month before July
1973; and
(c) You continue to be disabled as defined under the State plan.
Sec. 416.908 What is needed to show an impairment.
If you are not doing substantial gainful activity, we always look
first at your physical or mental impairment(s) to determine whether you
are disabled or blind. Your impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your
statement of symptoms (see Sec. 416.927). (See Sec. 416.928 for further
information about what we mean by symptoms, signs, and laboratory
findings.)
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 36963, Aug. 1, 1991]
Sec. 416.909 How long the impairment must last.
Unless your impairment is expected to result in death, it must have
lasted or must be expected to last for a continuous period of at least
12 months. We call this the duration requirement.
Sec. 416.910 Meaning of substantial gainful activity.
Substantial gainful activity means work that--
(a) Involves doing significant and productive physical or mental
duties; and
(b) Is done (or intended) for pay or profit.
(See Sec. 416.972 for further details about what we mean by substantial
gainful activity.)
Sec. 416.911 Definition of disabling impairment.
A disabling impairment is an impairment (or combination of
impairments) which, of itself, is so severe that it meets or equals a
set of criteria in the Listing of Impairments in appendix 1 of subpart P
of part 404 of this chapter or which, when considered with your age,
education and work experience, would result in a finding that you are
disabled under Sec. 416.994. In determining
[[Page 670]]
whether you have a disabling impairment, earnings are not considered.
[50 FR 50137, Dec. 6, 1985]
Evidence
Sec. 416.912 Evidence of your impairment.
(a) General. In general, you have to prove to us that you are blind
or disabled. Therefore, you must bring to our attention everything that
shows that you are blind or disabled. This means that you must furnish
medical and other evidence that we can use to reach conclusions about
your medical impairment(s) and, if material to the determination of
whether you are blind or disabled, its effect on your ability to work on
a sustained basis. We will consider only impairment(s) you say you have
or about which we receive evidence.
(b) What we mean by ``evidence.'' Evidence is anything you or anyone
else submits to us or that we obtain that relates to your claim. This
includes, but is not limited to:
(1) Objective medical evidence, that is, medical signs and
laboratory findings as defined in Sec. 416.928 (b) and (c);
(2) Other evidence from medical sources, such as medical history,
opinions, and statements about treatment you have received;
(3) Statements you or others make about your impairment(s), your
restrictions, your daily activities, your efforts to work, or any other
relevant statements you make to medical sources during the course of
examination or treatment, or to us during interviews, on applications,
in letters, and in testimony in our administrative proceedings;
(4) Information from other sources, as described in Sec. 416.913(e);
(5) Decisions by any governmental or nongovernmental agency about
whether you are disabled or blind; and
(6) At the administrative law judge and Appeals Council levels,
certain findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, and opinions
expressed by medical advisors based on their review of the evidence in
your case record. See Sec. 416.927(f) (2) and (3).
(c) Your responsibility. You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the time you
say that you are disabled. If we ask you, you must also provide evidence
about:
(1) Your age;
(2) Your education and training;
(3) Your work experience;
(4) Your daily activities both before and after the date you say
that you became disabled;
(5) Your efforts to work; and
(6) Any other factors showing how your impairment(s) affects your
ability to work. In Secs. 416.960 through 416.969, we discuss in more
detail the evidence we need when we consider vocational factors.
(d) Our responsibility. Before we make a determination that you are
not disabled, we will develop your complete medical history for at least
the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier
period is necessary or unless you say that your disability began less
than 12 months before you filed your application. We will make every
reasonable effort to help you get medical reports from your own medical
sources when you give us permission to request the reports.
(1) ``Every reasonable effort'' means that we will make an initial
request for evidence from your medical source and, at any time between
10 and 20 calendar days after the initial request, if the evidence has
not been received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The medical source
will have a minimum of 10 calendar days from the date of our followup
request to reply, unless our experience with that source indicates that
a longer period is advisable in a particular case.
(2) By ``complete medical history,'' we mean the records of your
medical source(s) covering at least the 12 months preceding the month in
which you file your application. If you say that your disability began
less than 12 months before you filed your application, we will develop
your complete
[[Page 671]]
medical history beginning with the month you say your disability began
unless we have reason to believe that your disability began earlier.
(e) Recontacting medical sources. When the evidence we receive from
your treating physician or psychologist or other medical source is
inadequate for us to determine whether you are disabled, we will need
additional information to reach a determination or a decision. To obtain
the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist
or other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your medical
source contains a conflict or ambiguity that must be resolved, the
report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. We may do this by requesting copies of your
medical source's records, a new report, or a more detailed report from
your medical source, including your treating source, or by telephoning
your medical source. In every instance where medical evidence is
obtained over the telephone, the telephone report will be sent to the
source for review, signature and return.
(2) We may not seek additional evidence or clarification from a
medical source when we know from past experience that the source either
cannot or will not provide the necessary findings.
(f) Need for consultative examination. If the information we need is
not readily available from the records of your medical treatment source,
or we are unable to seek clarification from your medical source, we will
ask you to attend one or more consultative examinations at our expense.
See Secs. 416.917 through 416.919t for the rules governing the
consultative examination process. Generally, we will not request a
consultative examination until we have made every reasonable effort to
obtain evidence from your own medical sources. However, in some
instances, such as when a source is known to be unable to provide
certain tests or procedures or is known to be nonproductive or
uncooperative, we may order a consultative examination while awaiting
receipt of medical source evidence. We will not evaluate this evidence
until we have made every reasonable effort to obtain evidence from your
medical sources.
[56 FR 36963, Aug. 1, 1991]
Sec. 416.913 Medical evidence of your impairment.
(a) Acceptable sources. We need reports about your impairments from
acceptable medical sources. Acceptable medical sources are--
(1) Licensed physicians;
(2) Licensed osteopaths;
(3) Licensed or certified psychologists;
(4) Licensed optometrists for the measurement of visual acuity and
visual fields (see paragraph (f) of this section for the evidence needed
for statutory blindness); and
(5) Persons authorized to send us a copy or summary of the medical
records of a hospital, clinic, sanitorium, medical institution, or
health care facility. Generally, the copy or summary should be certified
as accurate by the custodian or by any authorized employee of the Social
Security Administration, Veterans' Administration, or State agency.
However, we will not return an uncertified copy or summary for
certification unless there is some question about the document.
(6) A report of an interdisciplinary team that contains the
evaluation and signature of an acceptable medical source is also
considered acceptable medical evidence.
(b) Medical reports. Medical reports should include--
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental
status examinations);
(3) Laboratory findings (such as blood pressure, X-rays);
(4) Diagnosis (statement of disease or injury based on its signs and
symptoms);
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your
impairment(s) based on the medical source's findings on the factors
under paragraphs (b)(1)
[[Page 672]]
through (b)(5) of this section (except in statutory blindness claims).
Although we will request a medical source statement about what you can
still do despite your impairment(s), the lack of the medical source
statement will not make the report incomplete. See Sec. 416.927.
(c) Statements about what you can still do. Statements about what
you can still do (based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section) should describe,
but are not limited to, the kinds of physical and mental capabilities
listed below. See Secs. 416.927 and 416.945(c).
(1) The medical source's opinion about your ability, despite your
impairment(s), to do work-related activities such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking, and
traveling; and
(2) In cases of mental impairment(s), the medical source's opinion
about your ability to understand, to carry out and remember
instructions, and to respond appropriately to supervision, coworkers,
and work pressures in a work setting.
(3) If you are a child, the medical source's opinion about your
physical or mental abilities to function independently, appropriately,
and effectively in an age-appropriate manner, as described in
Sec. 416.924d.
(d) Completeness. The medical evidence, including the clinical and
laboratory findings, must be complete and detailed enough to allow us to
make a determination about whether you are disabled or blind. It must
allow us to determine--
(1) The nature and limiting effects of your impairment(s) for any
period in question;
(2) The probable duration of your impairment; and
(3) Your residual functional capacity to do work-related physical
and mental activities.
(e) Information from other sources. Information from other sources
may also help us to understand how your impairment(s) affects your
ability to work or, if you are a child, your ability to function
independently, appropriately, and effectively in an age-appropriate
manner. Other sources may include, and are not limited to--
(1) Public and private social welfare agencies and social workers;
(2) Observations by people who know you (for example, spouses,
parents and other caregivers, siblings, other relatives, friends or
neighbors, clergy);
(3) Other practitioners (for example, nurse practitioners and
physicians' assistants, naturopaths, and chiropractors);
(4) Therapists (for example, physical, occupational, or speech and
language therapists); and
(5) Educational agencies and personnel (for example, school
teachers, school psychologists who are not acceptable medical sources
under paragraph (a), school counselors, preschools, early intervention
teams, developmental centers, and daycare centers).
(f) Evidence we need to establish statutory blindness. If you are
applying for benefits on the basis of statutory blindness, we will
require an examination by a physician skilled in diseases of the eye or
by an optometrist, whichever you may select.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 5553, Feb. 11, 1991; 56
FR 36964, Aug. 1, 1991; 58 FR 47577, Sept. 9, 1993]
Sec. 416.914 When we will purchase existing evidence.
We need specific medical evidence to determine whether you are
disabled or blind. We will pay for the medical evidence we request, if
there is a charge. We will also be responsible for the cost of medical
evidence we ask you to get.
Sec. 416.915 Where and how to submit evidence.
You may give us evidence about your impairment at any of our offices
or at the office of any State agency authorized to make disability or
blindness determinations. You may also give evidence to one of our
employees authorized to accept evidence at another place. For more
information about this, see subpart C of this part.
Sec. 416.916 If you fail to submit medical and other evidence.
You (and if you are a child, your parent, guardian, relative, or
other person
[[Page 673]]
acting on your behalf) must co-operate in furnishing us with, or in
helping us to obtain or identify, available medical or other evidence
about your impairment(s). When you fail to cooperate with us in
obtaining evidence, we will have to make a decision based on information
available in your case. We will not excuse you from giving us evidence
because you have religious or personal reasons against medical
examinations, tests, or treatment.
[58 FR 47577, Sept. 9, 1993]
Sec. 416.917 Consultative examination at our expense.
If your medical sources cannot or will not give us sufficient
medical evidence about your impairment for us to determine whether you
are disabled or blind, we may ask you to have one or more physical or
mental examinations or tests. We will pay for these examinations.
However, we will not pay for any medical examination arranged by you or
your representative without our advance approval. If we arrange for the
examination or test, we will give you reasonable notice of the date,
time, and place the examination or test will be given, and the name of
the person or facility who will do it. We will also give the examiner
any necessary background information about your condition.
[56 FR 36964, Aug. 1, 1991]
Sec. 416.918 If you do not appear at a consultative examination.
(a) General. If you are applying for benefits and do not have a good
reason for failing or refusing to take part in a consultative
examination or test which we arrange for you to get information we need
to determine your disability or blindness, we may find that you are not
disabled or blind. If you are already receiving benefits and do not have
a good reason for failing or refusing to take part in a consultative
examination or test which we arranged for you, we may determine that
your disability or blindness has stopped because of your failure or
refusal. Therefore, if you have any reason why you cannot go for the
scheduled appointment, you should tell us about this as soon as possible
before the examination date. If you have a good reason, we will schedule
another examination. We will consider your physical, mental,
educational, and linguistic limitations (including any lack of facility
with the English language) when determining if you have a good reason
for failing to attend a consultative examination.
(b) Examples of good reasons for failure to appear. Some examples of
what we consider good reasons for not going to a scheduled examination
include--
(1) Illness on the date of the scheduled examination or test;
(2) Not receiving timely notice of the scheduled examination or
test, or receiving no notice at all;
(3) Being furnished incorrect or incomplete information, or being
given incorrect information about the physician involved or the time or
place of the examination or test, or;
(4) Having had death or serious illness occur in your immediate
family.
(c) Objections by your physician. If any of your treating physicians
tell you that you should not take the examination or test, you should
tell us at once. In many cases, we may be able to get the information we
need in another way. Your physician may agree to another type of
examination for the same purpose.
[45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994]
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
Sec. 416.919 The consultative examination.
A consultative examination is a physical or mental examination or
test purchased for you at our request and expense from a treating
physician or psychologist, another source of record, or an independent
source, including a pediatrician when appropriate. The decision to
purchase a consultative examination will be made on an individual case
basis in accordance with the provisions of Sec. 416.919a through
Sec. 416.919f. Selection of the source for the examination will be
consistent with the provisions of Sec. 416.903a and Secs. 416.919g
[[Page 674]]
through 416.919j. The rules and procedures for requesting consultative
examinations set forth in Secs. 416.919a and 416.919b are applicable at
the reconsideration and hearing levels of review, as well as the initial
level of determination.
[56 FR 36964, Aug. 1, 1991]
Sec. 416.919a When we will purchase a consultative examination and how we will use it.
(a)(1) General. The decision to purchase a consultative examination
for you will be made after we have given full consideration to whether
the additional information needed (e.g., clinical findings, laboratory
tests, diagnosis, and prognosis) is readily available from the records
of your medical sources. See Sec. 416.912 for the procedures we will
follow to obtain evidence from your medical sources. Before purchasing a
consultative examination, we will consider not only existing medical
reports, but also the disability interview form containing your
allegations as well as other pertinent evidence in your file.
(2) When we purchase a consultative examination, we will use the
report from the consultative examination to try to resolve a conflict or
ambiguity if one exists. We will also use a consultative examination to
secure needed medical evidence the file does not contain such as
clinical findings, laboratory tests, a diagnosis or prognosis necessary
for decision.
(b) Situations requiring a consultative examination. A consultative
examination may be purchased when the evidence as a whole, both medical
and nonmedical, is not sufficient to support a decision on your claim.
Other situations, including but not limited to the situations listed
below, will normally require a consultative examination:
(1) The additional evidence needed is not contained in the records
of your medical sources;
(2) The evidence that may have been available from your treating or
other medical sources cannot be obtained for reasons beyond your
control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is
not available from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the
evidence must be resolved, and we are unable to do so by recontacting
your medical source; or
(5) There is an indication of a change in your condition that is
likely to affect your ability to work, but the current severity of your
impairment is not established.
[56 FR 36964, Aug. 1, 1991]
Sec. 416.919b When we will not purchase a consultative examination.
We will not purchase a consultative examination in situations
including, but not limited to, the following situations:
(a) When any issues about your actual performance of substantial
gainful activity have not been resolved;
(b) When you do not meet all of the nondisability requirements.
[56 FR 36965, Aug. 1, 1991]
Standards for the Type of Referral and for Report Content
Sec. 416.919f Type of purchased examinations.
We will purchase only the specific examinations and tests we need to
make a determination in your claim. For example, we will not authorize a
comprehensive medical examination when the only evidence we need is a
special test, such as an X-ray, blood studies, or an electrocardiogram.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919g Who we will select to perform a consultative examination.
(a) We will purchase a consultative examination only from a
qualified medical source. The medical source may be your own physician
or psychologist, or another source. If you are a child, the medical
source we choose may be a pediatrician. For a more complete list of
medical sources, see Sec. 416.913(a).
(b) By ``qualified,'' we mean that the medical source must be
currently licensed in the State and have the training and experience to
perform the type of examination or test we will request;
[[Page 675]]
the medical source must not be barred from participation in our programs
under the provisions of Sec. 416.903a. The medical source must also have
the equipment required to provide an adequate assessment and record of
the existence and level of severity of your alleged impairments.
(c) The physician or psychologist we choose may use support staff to
help perform the consultative examination. Any such support staff (e.g.,
X-ray technician, nurse) must meet appropriate licensing or
certification requirements of the State. See Sec. 416.903a.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919h Your treating physician or psychologist.
When in our judgment your treating physician or psychologist is
qualified, equipped, and willing to perform the additional examination
or tests for the fee schedule payment, and generally furnishes complete
and timely reports, your treating physician or psychologist will be the
preferred source to do the purchased examination. Even if only a
supplemental test is required, your treating physician or psychologist
is ordinarily the preferred source.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919i Other sources for consultative examinations.
We will use a source other than your treating physician or
psychologist for a purchased examination or test in situations
including, but not limited to, the following situations:
(a) Your treating physician or psychologist prefers not to perform
such an examination or does not have the equipment to provide the
specific data needed;
(b) There are conflicts or inconsistencies in your file which cannot
be resolved by going back to your treating physician or psychologist;
(c) You prefer a source other than your treating physician or
psychologist and have a good reason for your preference;
(d) We know from prior experience that your treating physician or
psychologist may not be a productive source, e.g., he or she has
consistently failed to provide complete or timely reports.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919j Objections to the designated physician or psychologist.
You or your representative may object to your being examined by a
designated physician or psychologist. If there is a good reason for the
objection, we will schedule the examination with another physician or
psychologist. A good reason may be that the consultative examination
physician or psychologist had previously represented an interest adverse
to you. For example, the physician or psychologist may have represented
your employer in a workers' compensation case or may have been involved
in an insurance claim or legal action adverse to you. Other things we
will consider include: the presence of a language barrier, the
physician's or psychologist's office location (e.g., 2nd floor, no
elevator), travel restrictions, and whether the physician or
psychologist had examined you in connection with a previous disability
determination or decision that was unfavorable to you. If your objection
is because a physician or psychologist allegedly ``lacks objectivity''
in general, but not in relation to you personally, we will review the
allegations. See Sec. 416.919s. To avoid a delay in processing your
claim, the consultative examination in your case will be changed to
another physician or psychologist while a review is being conducted. We
will handle any objection to use of the substitute physician or
psychologist in the same manner. However, if we had previously conducted
such a review and found that the reports of the consultative physician
or psychologist in question conformed to our guidelines, we will not
change your examination.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919k Purchase of medical examinations, laboratory tests, and other services.
We may purchase medical examinations, including psychiatric and
psychological examinations, X-rays and laboratory tests (including
specialized
[[Page 676]]
tests such as pulmonary function studies, electrocardiograms, stress
tests, etc.) from a licensed physician or psychologist, hospital or
clinic.
(a) The rate of payment to be used for purchasing medical or public
services necessary to make determinations of disability may not exceed
the highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See Secs. 416.1024 and 416.1026.
(b) If a physician's bill, or a request for payment for a
physician's services, includes a charge for a laboratory test for which
payment may be made under this part, the amount payable with respect to
the test shall be determined as follows:
(1) If the bill or request for payment indicates that the test was
personally performed or supervised by the physician who submitted the
bill (or for whose services the request for payment was made) or by
another physician with whom that physician shares his or her practice,
the payment will be based on the physician's usual and customary charge
for the test or the rates of payment which the State uses for purchasing
such services, whichever is the lesser amount.
(2) If the bill or request for payment indicates that the test was
performed by an independent laboratory, the amount of reimbursement will
not exceed the billed cost of the independent laboratory or the rate of
payment which the State uses for purchasing such services, whichever is
the lesser amount. A nominal payment may be made to the physician for
collecting, handling and shipping a specimen to the laboratory if the
physician bills for such a service. The total reimbursement may not
exceed the rate of payment which the State uses for purchasing such
services.
(c) The State will assure that it can support the rate of payment it
uses. The State shall also be responsible for monitoring and overseeing
the rate of payment it uses to ensure compliance with paragraphs (a) and
(b) of this section.
[56 FR 36965, Aug. 1, 1991]
Sec. 416.919m Diagnostic tests or procedures.
We will request the results of any diagnostic tests or procedures
that have been performed as part of a workup by your treating physician
or psychologist or other medical source and will use the results to help
us evaluate impairment severity or prognosis. However, we will not order
diagnostic tests or procedures that involve significant risk to you,
such as myelograms, arteriograms, or cardiac catheterizations for the
evaluation of disability under the Supplemental Security Income program.
Also, a State agency medical consultant must approve the ordering of any
diagnostic test or procedure when there is a chance it may involve
significant risk. The responsibility for deciding whether to perform the
examination rests with the consultative examining physician or
psychologist.
[56 FR 36966, Aug. 1, 1991]
Sec. 416.919n Informing the examining physician or psychologist of examination scheduling, report content, and signature requirements.
The physicians or psychologists who perform consultative
examinations will have a good understanding of our disability programs
and their evidentiary requirements. They will be made fully aware of
their responsibilities and obligations regarding confidentiality as
described in Sec. 401.105(e). We will fully inform consulting physicians
or psychologists at the time we first contact them, and at subsequent
appropriate intervals, of the following obligations:
(a) In scheduling full consultative examinations, sufficient time
should be allowed to permit the examining physician or psychologist to
take a case history and perform the examination, including any needed
tests. The following minimum scheduling intervals (i.e., time set aside
for the individual, not the actual duration of the consultative
examination) should be used.
(1) Comprehensive general medical examination--at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination--at
least 20 minutes;
(3) Comprehensive psychiatric examination--at least 40 minutes;
[[Page 677]]
(4) Psychological examination--at least 60 minutes (Additional time
may be required depending on types of psychological tests administered);
and
(5) All others--at least 30 minutes, or in accordance with accepted
medical practices.
We recognize that actual practice will dictate that some examinations
may require longer scheduling intervals depending on the circumstances
in a particular situation. We also recognize that these minimum
intervals may have to be adjusted to allow for those claimants that do
not attend their scheduled examination. The purpose of these minimum
scheduling timeframes is to ensure that such examinations are complete
and that sufficient time is made available to obtain the information
needed to make an accurate determination in your case. State agencies
will monitor the scheduling of examinations (through their normal
consultative examination oversight activities) to ensure that any
overscheduling is avoided, as overscheduling may lead to examinations
that are not thorough.
(b) Report content. The reported results of your medical history,
examination, requested laboratory findings, discussions and conclusions
must conform to accepted professional standards and practices in the
medical field for a complete and competent examination. The facts in a
particular case and the information and findings already reported in the
medical and other evidence of record will dictate the extent of detail
needed in the consultative examination report for that case. Thus, the
detail and format for reporting the results of a purchased examination
will vary depending upon the type of examination or testing requested.
The reporting of information will differ from one type of examination to
another when the requested examination relates to the performance of
tests such as ventilatory function tests, treadmill exercise tests, or
audiological tests. The medical report must be complete enough to help
us determine the nature, severity, and duration of the impairment, and
residual functional capacity. The report should reflect your statements
of your symptoms, not simply the physician's or psychologist's
statements or conclusions. The examining physician's or psychologist's
report of the consultative examination should include the objective
medical facts as well as observations and opinions.
(c) Elements of a complete consultative examination. A complete
consultative examination is one which involves all the elements of a
standard examination in the applicable medical specialty. When the
report of a complete consultative examination is involved, the report
should include the following elements:
(1) Your major or chief complaint(s);
(2) A detailed description, within the area of specialty of the
examination, of the history of your major complaint(s);
(3) A description, and disposition, of pertinent ``positive'' and
``negative'' detailed findings based on the history, examination and
laboratory tests related to the major complaint(s), and any other
abnormalities or lack thereof reported or found during examination or
laboratory testing;
(4) The results of laboratory and other tests (e.g., X-rays)
performed according to the requirements stated in the Listing of
Impairments (see Appendix 1 of Subpart P of Part 404 of this Chapter);
(5) The diagnosis and prognosis for your impairment(s);
(6) A statement about what you can still do despite your
impairment(s), unless the claim is based on statutory blindness. This
statement should describe the opinion of the consultative physician or
psychologist about your ability, despite your impairment(s), to do work-
related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking, and traveling; and, in
cases of mental impairment(s), the opinion of the consultative physician
or psychologist about your ability to understand, to carry out and
remember instructions, and to respond appropriately to supervision,
coworkers and work pressures in a work setting; and
(7) In addition, the consultative physician or psychologist will
consider, and provide some explanation or comment on, your major
complaint(s) and any other abnormalities found during the history and
examination or reported from the laboratory tests. The
[[Page 678]]
history, examination, evaluation of laboratory test results, and the
conclusions will represent the information provided by the physician or
psychologist who signs the report.
(d) When a complete consultative examination is not required. When
the evidence we need does not require a complete consultative
examination (for example, we need only a specific laboratory test result
to complete the record), we may not require a report containing all of
the elements in paragraph (c).
(e) Signature requirements. All consultative examination reports
will be personally reviewed and signed by the physician or psychologist
who actually performed the examination. This attests to the fact that
the physician or psychologist doing the examination or testing is solely
responsible for the report contents and for the conclusions,
explanations or comments provided with respect to the history,
examination and evaluation of laboratory test results. The signature of
the examining physician or psychologist on a report annotated ``not
proofed'' or ``dictated but not read'' is not acceptable. A rubber stamp
signature of a physician or psychologist or the physician's or
psychologist's signature entered by any other person is not acceptable.
[56 FR 36966, Aug. 1, 1991]
Sec. 416.919o When a properly signed consultative examination report has not been received.
If a consultative examination report is received unsigned or
improperly signed we will take the following action.
(a) When we will make determinations and decisions without a
properly signed report. We will make a determination or decision in the
circumstances specified in paragraphs (a)(1) and (a)(2) of this section
without waiting for a properly signed consultative examination report.
After we have made the determination or decision, we will obtain a
properly signed report and include it in the file unless the physician
or psychologist who performed the original consultative examination has
died.
(1) Continuous period of disability allowance with an onset date as
alleged or earlier than alleged; or
(2) Continuance of disability.
(b) When we will not make determinations and decisions without a
properly signed report. We will not use an unsigned or improperly signed
consultative examination report to make the determinations or decisions
specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this
section. When we need a properly signed consultative examination report
to make these determinations or decisions, we must obtain such a report.
If the signature of the physician or psychologist who performed the
original examination cannot be obtained because the physician or
psychologist is out of the country for an extended period of time, on an
extended vacation, seriously ill, deceased, or for any other reason, the
consultative examination will be rescheduled with another physician or
psychologist.
(1) Denial; or
(2) Cessation; or
(3) Allowance of disability which has ended; or
(4) Allowance with an onset date later than the filing date.
[56 FR 36967, Aug. 1, 1991]
Sec. 416.919p Reviewing reports of consultative examinations.
(a) We will review the report of the consultative examination to
determine whether the specific information requested has been furnished.
We will consider the following factors in reviewing the report:
(1) Whether the report provides evidence which serves as an adequate
basis for decisionmaking in terms of the impairment it assesses;
(2) Whether the report is internally consistent; Whether all the
diseases, impairments and complaints described in the history are
adequately assessed and reported in the clinical findings; Whether the
conclusions correlate the findings from your medical history, clinical
examination and laboratory tests and explain all abnormalities;
(3) Whether the report is consistent with the other information
available to us within the specialty of the examination requested;
Whether the report fails to mention an important or relevant complaint
within that specialty that is noted in other evidence in the
[[Page 679]]
file (e.g., your blindness in one eye, amputations, pain, alcoholism,
depression);
(4) Whether this is an adequate report of examination as compared to
standards set out in the course of a medical education; and
(5) Whether the report is properly signed.
(b) If the report is inadequate or incomplete, we will contact the
examining consultative physician or psychologist, give an explanation of
our evidentiary needs, and ask that the physician or psychologist
furnish the missing information or prepare a revised report.
(c) With your permission, or where the examination discloses new
diagnostic information or test results that reveal potentially life-
threatening situations, we will refer the consultative examination
report to your treating physician or psychologist. When we refer the
consultative examination report to your treating physician or
psychologist without your permission, we will notify you that we have
done so.
(d) We will perform ongoing special management studies on the
quality of consultative examinations purchased from major medical
sources and the appropriateness of the examinations authorized.
(e) We will take steps to ensure that consultative examinations are
scheduled only with medical sources who have access to the equipment
required to provide an adequate assessment and record of the existence
and level of severity of your alleged impairments.
[56 FR 36967, Aug. 1, 1991]
Sec. 416.919q Conflict of interest.
All implications of possible conflict of interest between medical or
psychological consultants and their medical or psychological practices
will be avoided. Such consultants are not only those physicians and
psychologists who work for us directly but are also those who do review
and adjudication work in the State agencies. Physicians and
psychologists who work for us directly as employees or under contract
will not work concurrently for a State agency. Physicians and
psychologists who do review work for us will not perform consultative
examinations for us without our prior approval. In such situations, the
physician or psychologist will disassociate himself or herself from
further involvement in the case and will not participate in the
evaluation, decision, or appeal actions. In addition, neither they, nor
any member of their families, will acquire or maintain, either directly
or indirectly, any financial interest in a medical partnership,
corporation, or similar relationship in which consultative examinations
are provided. Sometimes physicians and psychologists who do review work
for us will have prior knowledge of a case; for example, when the
claimant was a patient. Where this is so, the physician or psychologist
will not participate in the review or determination of the case. This
does not preclude the physician or psychologist from submitting medical
evidence based on treatment or examination of the claimant.
[56 FR 36967, Aug. 1, 1991]
Authorizing and Monitoring the Referral Process
Sec. 416.919s Authorizing and monitoring the consultative examination.
(a) Day-to-day responsibility for the consultative examination
process rests with the State agencies that make disability
determinations for us.
(b) The State agency will maintain a good working relationship with
the medical community in order to recruit sufficient numbers of
physicians and other providers of medical services to ensure ready
availability of consultative examination providers.
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
(d) Each State agency will be responsible for comprehensive
oversight management of its consultative examination program, with
special emphasis on key providers.
(e) A key consultative examination provider is a provider that meets
at least one of the following conditions:
(1) Any consultative examination provider with an estimated annual
billing to the Social Security and Supplemental Security Income programs
of at least $100,000; or
[[Page 680]]
(2) Any consultative examination provider with a practice of
medicine, osteopathy, or psychology directed primarily towards
evaluation examinations rather than the treatment of patients; or
(3) Any consultative examination provider that does not meet the
above criteria, but is one of the top five consultative examination
providers in the State by dollar volume, as evidenced by prior year
data.
(f) State agencies have flexibility in managing their consultative
examination programs, but at a minimum will provide:
(1) An ongoing active recruitment program for consultative
examination providers;
(2) A process for orientation, training, and review of new
consultative examination providers, with respect to SSA's program
requirements involving consultative examination report content and not
with respect to medical techniques;
(3) Procedures for control of scheduling consultative examinations;
(4) Procedures to ensure that close attention is given to specific
evaluation issues involved in each case;
(5) Procedures to ensure that only required examinations and tests
are authorized in accordance with the standards set forth in this
subpart;
(6) Procedures for providing medical or supervisory approval for the
authorization or purchase of consultative examinations and for
additional tests or studies requested by consulting physicians and
psychologists. This includes physician approval for the ordering of any
diagnostic test or procedure where the question of significant risk to
the claimant/beneficiary might be raised. See Sec. 416.919m.
(7) procedures for the ongoing review of consultative examination
results to ensure compliance with written guidelines;
(8) Procedures to encourage active participation by physicians and
psychologists in the consultative examination oversight program;
(9) Procedures for handling complaints;
(10) Procedures for evaluating claimant reactions to key providers;
and
(11) A program of systematic, onsite reviews of key providers that
will include annual onsite reviews of such providers when claimants are
present for examinations. This provision does not contemplate that such
reviews will involve participation in the actual examinations but,
rather, offer an opportunity to talk with claimants at the provider's
site before and after the examination and to review the provider's
overall operation.
(g) The State agencies will cooperate with us when we conduct
monitoring activities in connection with their oversight management of
their consultative examination programs.
[56 FR 36967, Aug. 1, 1991]
Procedures To Monitor the Consultative Examination
Sec. 416.919t Consultative examination oversight.
(a) We will ensure that referrals for consultative examinations and
purchases of consultative examinations are made in accordance with our
policies. We will also monitor both the referral processes and the
product of the consultative examinations obtained. This monitoring may
include reviews by independent medical specialists under direct contract
with SSA.
(b) Through our regional offices, we will undertake periodic
comprehensive reviews of each State agency to evaluate each State's
management of the consultative examination process. The review will
involve visits to key providers, with State staff participating,
including a program physician when the visit will deal with medical
techniques or judgment, or factors that go to the core of medical
professionalism.
(c) We will also perform ongoing special management studies of the
quality of consultative examinations purchased from key providers and
other sources and the appropriateness of the examinations authorized.
[56 FR 36968, Aug. 1, 1991]
Evaluation of Disability
Sec. 416.920 Evaluation of disability of adults, in general.
(a) Steps in evaluating disability. We consider all evidence in your
case
[[Page 681]]
record when we make a determination or decision whether you are
disabled. When you file a claim for Supplemental Security Income
disability benefits and are age 18 or older, we use the following
evaluation process. If you are doing substantial gainful activity, we
will determine that you are not disabled. If you are not doing
substantial gainful activity, we will first consider the effect of your
physical or mental impairment; if you have more than one impairment, we
will also consider the combined effect of your impairments. Your
impairment(s) must be severe and meet the duration requirement before we
can find you to be disabled. We follow a set order to determine whether
you are disabled. We review any current work activity, the severity of
your impairment(s), your residual functional capacity, your past work,
and your age, education, and work experience. If we can find that you
are disabled or not disabled at any point in the review, we do not
review your claim further. Once you have been found eligible for
Supplemental Security Income benefits based on disability, we follow a
somewhat different order of evaluation to determine whether your
eligibility continues, as explained in Sec. 416.994(f)(6).
(b) If you are working. If you are working and the work you are
doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition or your age, education,
and work experience.
(c) You must have a severe impairment. If you do not have any
impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not
disabled. We will not consider your age, education, and work experience.
(d) When your impairment(s) meets or equals a listed impairment in
appendix 1. If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience.
(e) Your impairment(s) must prevent you from doing past relevant
work. If we cannot make a decision based on your current work activity
or on medical facts alone, and you have a severe impairment(s), we then
review your residual functional capacity and the physical and mental
demands of the work you have done in the past. If you can still do this
kind of work, we will find that you are not disabled.
(f) Your impairment(s) must prevent you from doing other work. (1)
If you cannot do any work you have done in the past because you have a
severe impairment(s), we will consider your residual functional capacity
and your age, education, and past work experience to see if you can do
other work. If you cannot, we will find you disabled.
(2) If you have only a marginal education, and long work experience
(i.e., 35 years or more) where you only did arduous unskilled physical
labor, and you can no longer do this kind of work, we use a different
rule (see Sec. 416.962).
[50 FR 8728, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR
5554, Feb. 11, 1991; 56 FR 36968, Aug. 1, 1991]
Sec. 416.920a Evaluation of mental impairments.
(a) General. The steps outlined in Sec. 416.920 apply to the
evaluation of physical and mental impairments. In addition, in
evaluating the severity of mental impairments for adults (persons age 18
and over) and in persons under age 18 when part A of the Listing of
Impairments is used, a special procedure must be followed by us at each
level of administrative review. Following this procedure will assist us
in:
(1) Identifying additional evidence necessary for the determination
of impairment severity;
(2) Considering and evaluating aspects of the mental disorder(s)
relevant to your ability to work; and
(3) Organizing and presenting the findings in a clear, concise, and
consistent manner.
(b) Use of the procedure to record pertinent findings and rate the
degree of functional loss. (1) This procedure requires us to record the
pertinent signs, symptoms, findings, functional limitations, and effects
of treatment contained in your case record. This will assist us in
determining if a mental impairment(s) exists. Whether or not a mental
impairment(s) exists is decided in the
[[Page 682]]
same way the question of a physical impairment is decided, i.e., the
evidence must be carefully reviewed and conclusions supported by it. The
mental status examination and psychiatric history will ordinarily
provide the needed information. (See Sec. 416.908 for further
information about what is needed to show an impairment.)
(2) If we determine that a mental impairment(s) exists, this
procedure then requires us to indicate whether certain medical findings
which have been found especially relevant to the ability to work are
present or absent.
(3) The procedure then requires us to rate the degree of functional
loss resulting from the impairment(s). Four areas of function considered
by us as essential to work have been identified, and the degree of
functional loss in those areas must be rated on a scale that ranges from
no limitation to a level of severity which is incompatible with the
ability to perform those work-related functions. For the first two areas
(activities of daily living and social functioning), the rating of
limitation must be done based upon the following five point scale: None,
slight, moderate, marked, and extreme. For the third area
(concentration, persistence or pace) the following five point scale must
be used: Never, seldom, often, frequent, and constant. For the fourth
area (deterioration or decompensation in work or work-like settings),
the following four point scale must be used: Never, once or twice,
repeated (three or more), and continual. The last two points for each of
these scales represents a degree of limitation which is incompatible
with the ability to perform the work-related function.
(c) Use of the procedure to evaluate mental impairments. Following
the rating of the degree of functional loss resulting from the
impairment, we must then determine the severity of the mental
impairment(s).
(1) If the four areas considered by us as essential to work have
been rated to indicate a degree of limitation as ``none'' or ``slight''
in the first and second areas, ``never'' or ``seldom'' in the third
area, and ``never'' in the fourth area, we can generally conclude that
the impairment is not severe, unless the evidence otherwise indicates
there is significant limitation of your mental ability to do basic work
activities (see Sec. 416.921).
(2) If your mental impairment(s) is severe, we must then determine
if it meets or equals a listed mental disorder. This is done by
comparing our prior conclusions based on this procedure (i.e., the
presence of certain medical findings considered by us as especially
relevant to your ability to work and our rating of functional loss
resulting from the mental impairment(s)) against the paragraph A and B
criteria of the appropriate listed mental disorder(s). If we determine
that paragraph C criteria will be used in lieu of paragraph B criteria
(see listings 12.03 and 12.06), we will, by following this procedure,
indicate on the document whether the evidence is sufficient to establish
the presence or absence of the criteria. (See paragraph (d) of this
section).
(3) If you have a severe impairment(s) but the impairment(s) neither
meets nor equals the listings, we must then do a residual functional
capacity assessment, unless you are claiming benefits as a disabled
child.
(4) At all adjudicative levels we must, in each case, incorporate
the pertinent findings and conclusions based on this procedure in our
decision rationale. Our rationale must show the significant history,
including examination, laboratory findings, and functional limitations
that we considered in reaching conclusions about the severity of the
mental impairment(s).
(d) Preparation of the document. A standard document outlining the
steps of this procedure must be completed by us in each case at the
initial, reconsideration, administrative law judge hearing, and Appeals
Council levels (when the Appeals Council issues a decision).
(1) At the initial and reconsideration levels the standard document
must be completed and signed by our medical consultant. At the
administrative law judge hearing level, several options are available:
(i) The administrative law judge may complete the document without
the assistance of a medical advisor;
(ii) The administrative law judge may call a medical advisor for
assistance in preparing the document; or
[[Page 683]]
(iii) Where new evidence is received that is not merely cumulative
of evidence already in your case file or where the issue of a mental
impairment arises for the first time at the administrative law judge
hearing level, the administrative law judge may decide to remand the
case to the State agency for completion of the document and a new
determination. Remand may also be made in situations where the services
of a medical advisor are determined necessary but unavailable to the
administrative law judge. In such circumstances, however, a remand may
ordinarily be made only once.
(2) For all cases involving mental disorders at the administrative
law judge hearing or Appeals Council levels, the standard document will
be appended to the decision.
(Approved by the Office of Management and Budget under control number
0960-0413)
[50 FR 35070, Aug. 28, 1985, as amended at 55 FR 51236, Dec. 12, 1990]
Sec. 416.921 What we mean by a not severe impairment(s) in an adult.
(a) Non-severe impairment(s). An impairment or combination of
impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work activities,
we mean the abilities and aptitudes necessary to do most jobs. Examples
of these include--
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.
[50 FR 8729, Mar. 5, 1985, as amended at 56 FR 5554, Feb. 11, 1991]
Sec. 416.922 When you have two or more unrelated impairments--initial claims.
(a) Unrelated severe impairments. We cannot combine two or more
unrelated severe impairments to meet the 12-month duration test. If you
have a severe impairment(s) and then develop another unrelated severe
impairment(s) but neither one is expected to last for 12 months, we
cannot find you disabled, even though the two impairments in combination
last for 12 months.
(b) Concurrent impairments. If you have two or more concurrent
impairments which, when considered in combination, are severe, we must
also determine whether the combined effect of your impairments can be
expected to continue to be severe for 12 months. If one or more of your
impairments improves or is expected to improve within 12 months, so that
the combined effect of your remaining impairments is no longer severe,
we will find that you do not meet the 12-month duration test.
[50 FR 8729, Mar. 5, 1985]
Sec. 416.923 Multiple impairments.
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled (see Secs. 416.920 and 416.924).
[50 FR 8729, Mar. 5, 1985, as amended at 56 FR 5554, Feb. 11, 1991]
Sec. 416.924 How we determine disability for children.
(a) Definition of comparable severity. If you are a child, we will
find you disabled if you are not engaging in substantial gainful
activity and you have an impairment or combination of impairments that
is of comparable severity to
[[Page 684]]
an impairment or combination of impairments that would disable an adult
and which meets the duration requirement (see Sec. 416.909). By the term
comparable severity, we mean that your physical or mental impairment(s)
so limits your ability to function independently, appropriately, and
effectively in an age-appropriate manner that your impairment(s) and the
limitations resulting from it are comparable to those which would
disable an adult. Specifically, your impairment(s) must substantially
reduce your ability to--
(1) Grow, develop, or mature physically, mentally, or emotionally
and, thus, to attain developmental milestones (see Sec. 416.924b(b)(2))
at an age-appropriate rate; or
(2) Grow, develop, or mature physically, mentally, or emotionally
and, thus, to engage in age-appropriate activities of daily living (see
Sec. 416.924b(b)(3)) in self-care, play and recreation, school and
academics, community activities, vocational settings, peer
relationships, or family life; or
(3) Acquire the skills needed to assume roles reasonably expected of
adults (see Sec. 416.924b(b)(4)).
(b) Steps in evaluating disability. We consider all evidence in your
case record when we make a determination or decision whether you are
disabled. If you allege more than one impairment, we will evaluate all
the impairments for which we have evidence. Thus, we will consider the
combined effects of all your impairments upon your overall health and
ability to function. We will also evaluate any limitations in your
ability to function that result from your symptoms, including pain (see
Sec. 416.929). When you file a claim, we use the evaluation process set
forth in (c) through (f) of this section. We follow a set order to
determine whether you are disabled. If you are doing substantial gainful
activity, we will determine that you are not disabled and not review
your claim further. If you are not doing substantial gainful activity,
we will consider your physical or mental impairment(s) first to see if
you have an impairment or combination of impairments that is severe. If
your impairment(s) is not severe, we will determine that you are not
disabled and not review your claim further. If your impairment(s) is
severe, we will review your claim further to see if you have an
impairment(s) that meets or equals in severity any impairment that is
listed in appendix 1 of subpart P of part 404 of this chapter, in which
case we will find you disabled. If you do not have such an
impairment(s), we will do an individualized functional assessment and
determine whether you are disabled. Once you have been found eligible
for disability benefits, we follow a somewhat different procedure to
determine whether your eligibility continues, as explained in
Sec. 416.994a.
(c) If you are working. If you are working and the work you are
doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition or age, education, or work
experience. (For our rules on how we decide whether you are engaging in
substantial gainful activity, see Secs. 416.971 through 416.976.)
(d) You must have a severe impairment(s). If your impairment is a
slight abnormality or a combination of slight abnormalities that causes
no more than minimal limitation in your ability to function
independently, appropriately, and effectively in an age-appropriate
manner, we will find that you do not have a severe impairment and are,
therefore, not disabled.
(e) When your impairment(s) meets or equals a listed impairment in
appendix 1. The Listing of Impairments in appendix 1 of subpart P of
part 404 of this chapter is set at a level of severity that precludes
any gainful activity or that is comparable in severity to an impairment
that would preclude an adult from engaging in any gainful activity.
Therefore, if you have an impairment(s) which meets the duration
requirement and is listed in appendix 1, or is equal to a listed
impairment, we will find you disabled. We will not deny your claim on
the basis of a finding that your impairment(s) does not meet the
requirements for any listed impairment or is not equal in severity to
any of the impairments listed in appendix 1. We explain our rules for
deciding whether an impairment meets a listing in Sec. 416.925. Our
rules for how
[[Page 685]]
we decide whether an impairment(s) equals a listing are set forth in
Sec. 416.926a.
(f) Your impairment(s) must be of comparable severity to an
impairment(s) that would disable an adult. When we determine that your
impairment(s) is severe, but that it does not meet or equal in severity
any listed impairment, we will assess the impact of your impairment(s)
on your overall ability to function independently, appropriately, and
effectively in an age-appropriate manner. We will use this
individualized functional assessment to decide whether you have an
impairment(s) of comparable severity to an impairment(s) that would
prevent an adult from engaging in substantial gainful activity and,
thus, to determine whether or not you are disabled. We will use the
individualized functional assessment in the following manner:
(1) If:
(i) Our evaluation of all the evidence in your claim shows that your
impairment(s) substantially reduces your physical or mental ability to
function independently, appropriately, and effectively in an age-
appropriate manner, and
(ii) Your impairment(s) meets the duration requirement, we will find
you disabled.
(2) If we find that your impairment(s) does not substantially reduce
your physical or mental ability to function independently,
appropriately, and effectively in an age-appropriate manner, or if your
impairment(s) does not meet the duration requirement, we will find that
you are not disabled.
(g) Basic considerations. When we determine whether you are
disabled, we will consider all relevant evidence in your case record.
This may include medical evidence, school records, information from
people who know you and can provide evidence about your functioning--
such as your parents, caregivers, and teachers--and other evidence that
can help us assess your functioning on a longitudinal basis.
(1) Medical evidence of your impairment(s) must describe symptoms,
signs, or laboratory findings. The medical evidence may include formal
testing that provides information about your development or functioning
in terms of percentiles, percentages, standard deviations, or chronology
(such as months of delay). Whenever possible, a medical source's
findings should reflect consideration of information from your parents
or other people who know you, as well as the medical source's findings
and observations on examination; any discrepancies between formal test
results and your customary behavior and daily activities should be duly
noted and resolved.
(2) Your functional limitations may also be observed and reported by
others. Parents (or other caregivers), and other family members may
provide important evidence on how well you are functioning on a day-to-
day basis. Educational and other intervention programs may be important
sources of evidence about your functioning, and will often have
documentary evidence in the form of evaluation instruments and other
evidence from a variety of disciplines.
[58 FR 47577, Sept. 9, 1993]
Sec. 416.924a Age as a factor of evaluation in childhood disability.
(a) General. In this regulation, we explain how we consider age when
we decide whether you are disabled. Your age may or may not be a factor
in our determination whether your impairment(s) meets or equals a
listing, depending on the listing we use for comparison. However, your
age is always an important factor when we decide whether your
impairment(s) is severe (see Sec. 416.924(d)) or whether you are
disabled based on an individualized functional assessment (see
Sec. 416.924(f)). Except in the case of certain premature infants, as
described in paragraph (c) of this section, age means chronological age.
(1) When we determine whether you have an impairment or combination
of impairments that is severe, we will always consider the significance
of your impairment(s) in relation to your age.
(2) The Listing of Impairments in appendix 1 of subpart P of part
404 of this chapter contains examples of impairments that we consider of
such significance that they prevent a child from
[[Page 686]]
functioning independently, appropriately, and effectively in an age-
appropriate manner. Therefore, we will usually decide whether your
impairment meets a listing without giving special consideration to your
age. However, several listings are divided into age categories. If the
listing appropriate for evaluating your impairment includes such age
categories, we will evaluate your impairment under the criteria for your
age when we decide whether your impairment meets that listing.
(3) When we compare an unlisted impairment or combination of
impairments with a listed impairment to determine whether you have an
impairment(s) which equals a listing, the way in which we consider your
age will depend on the listing we use for comparison. We will use the
same principles for considering your age as in paragraph (a)(2) of this
section; that is, we will consider your age only if we are comparing
your impairment(s) to a listing that includes specific age categories.
(4) When we determine whether you have an impairment(s) which,
though not meeting or equaling the listings, is of comparable severity
to an impairment that would disable an adult, we will always consider
the significance of your impairment(s) in relation to your age. We will
consider the functions, behaviors, and activities that are appropriate
to your age, and will evaluate the effect of your impairment(s), either
alone or in conjunction with other relevant factors, on your ability to
perform these functions, behaviors, and activities. (We explain how we
do this individualized functional assessment in Secs. 416.924d and
416.924e.)
(5) In any disability determination, we will consider your age and
whether it affects your ability to be tested. Even when your
impairment(s) is not amenable to formal testing because of your age, we
will consider all evidence that will help us decide whether you are
disabled.
(b) Age categories. When we determine whether you are functioning
independently, appropriately, and effectively in an age-appropriate
manner, we will consider your age in the following categories:
(1) Newborn and young infants (birth to attainment of age 1).
(2) Older infants and toddlers (age 1 to attainment of age 3).
(3) Children (age 3 to attainment of age 18), considered according
to the following subcategories:
(i) Preschool children (age 3 to attainment of age 6).
(ii) School-age children (age 6 to attainment of age 12).
(iii) Young adolescents (age 12 to attainment of age 16), and
(iv) Older adolescents (age 16 to attainment of age 18).
(c) Correcting chronological age of premature infants. We generally
use chronological age (that is, a child's age based on birth date) when
we decide whether, or the extent to which, a physical or mental
impairment(s) affects a child's ability to function independently,
appropriately, and effectively in an age-appropriate manner. However, if
you were born prematurely, we may consider you to be younger than your
chronological age. When we evaluate the development or linear growth of
a child born prematurely, we may use a ``corrected'' chronological age;
that is, the chronological age adjusted by a period of gestational
prematurity. We consider an infant born at less than 37 weeks' gestation
to be born prematurely.
(1) We apply a corrected chronological age in these situations--
(i) When we evaluate developmental delay in premature children until
the child's prematurity is no longer a relevant factor; generally no
later than about chronological age 2 (see paragraph (c)(2) of this
section);
(ii) When we evaluate an impairment of linear growth, such as under
the listings in Sec. 100.00 in appendix 1 of subpart P of part 404 of
this chapter, until the child is 12 months old. In this situation, we
refer to neonatal growth charts which have been developed to evaluate
growth in premature infants (see paragraph (c)(2) of this section).
(2) We compute a corrected chronological age as follows--(i) If you
have not attained age 1, we will correct your chronological age. We
compute the corrected chronological age by subtracting the number of
weeks of
[[Page 687]]
prematurity (i.e., the difference between 40 weeks of full-term
gestation and the number of actual weeks of gestation) from your
chronological age. The result is your corrected chronological age.
(ii) If you are over age 1, have a developmental delay, and
prematurity is still a relevant factor in your case (generally, no later
than about chronological age 2), we will decide whether to correct your
chronological age. Our decision will be based on our judgment and all
the facts of your case. If we decide to correct your chronological age,
we may correct it by subtracting the full number of weeks of prematurity
or a lesser number of weeks. We will also decide not to correct your
chronological age if we can determine from the evidence that your
developmental delay is the result of your medically determinable
impairment(s) and is not attributable to your prematurity.
(3) Notwithstanding the provisions in paragraph (c)(1) of this
section, we will not compute a corrected chronological age if the
medical evidence shows that your treating source or other medical source
has already taken your prematurity into consideration in his or her
assessment of your development. Also, we will not compute a corrected
chronological age when we find you disabled using the examples of
functional equivalence based on low birth weight in Sec. 416.926a(d) (8)
or (9).
(d) Age and the impact of severe impairments on younger children and
older adolescents. Although a child may become disabled at any age,
impairments of similar severity may have different effects on children
of different ages. The following guidelines apply to determinations of
disability for children of different ages, especially very young
children and children approaching adulthood.
(1) We recognize that how a particular child adapts to an
impairment(s) depends on many factors (e.g., the nature and severity of
the impairment(s), the child's temperament, the quality of adult
intervention, and the child's age at onset of the impairment(s)). By
adapting to an impairment, we mean the child's ability to learn those
skills, habits, or behaviors which allow the child to compensate for the
impairment(s) and, thus, to function in an age-appropriate manner as
well as possible despite the impairment(s). Therefore, our disability
determination will consider how you are adapting to your impairment(s)
and the extent to which you are able to function independently,
appropriately, and effectively in an age-appropriate manner as set forth
in this section and Secs. 416.924 and 416.924c through 416.924e.
(2) When we decide whether you are disabled, we will generally
consider the factor of age in a manner opposite from that described in
the rules for determining whether an adult has the ability to adjust to
other work (see Secs. 416.920(f) and 416.963). Thus, we consider that
the older a child is, the more he or she is like a younger adult; we
consider an older adolescent (i.e., a child aged 16 to 18) to be most
like a ``younger person'' (i.e., a person in the age category 18 to 45
(see Sec. 416.963(b)), and younger children to be most like older adults
in terms of the significance of their impairments.
(3) Although various kinds of growth and development occur
throughout childhood and adolescence, the earliest years, from birth to
approximately attainment of age 6, are characterized by complex and
rapid changes; for example, learning to walk, talk, and care for basic
physical and emotional needs.
(i) The development of fundamental skills is a cumulative process
founded upon skills acquired at each stage of a child's life. A child's
ability to acquire or perform these skills ultimately determines his or
her ability to master learning tasks in school and more complex physical
activities and, eventually, affects the ability to work. Therefore,
deficits of function resulting from impairments that occur before the
attainment of age 6 may have a potentially greater, more limiting effect
on a child's overall growth and development than impairments that occur
later in life; and such deficits are increasingly significant with
decreasing age.
(ii) Furthermore, the mastery of skills in early childhood is a
highly interactive and interdependent process within a child. This
interdependence is especially true of development in certain areas;
e.g., cognitive skill deficits
[[Page 688]]
may affect communication, and social and emotional deficits may affect
cognitive and communicative development. This interdependent process
also requires proper functioning in areas that may not be obviously
relevant to the acquisition of the skill. For example, physical mobility
is affected by how well a child sees; therefore, visual impairment,
especially in a young child, can affect the way a child acquires certain
motor skills even though the child does not have a specific motor
impairment. Similarly, emotional bonding to parents can be affected by
how well a child hears. Therefore, the impact of such seemingly isolated
impairments can have implications for the overall development of the
youngest children.
(4) As children approach adulthood--that is, by about age 16--the
functional abilities, skills, and behaviors that are age-appropriate for
them are those that are also age-appropriate for 18-year-olds, i.e.,
those that are needed to assume roles reasonably expected of adults.
Older adolescents generally also share with the youngest adults the same
abilities to adapt to work-related activities despite a severe
impairment(s).
(i) By the age of adolescence, children have developed basic
physical and mental skills and behaviors, so that impairments occurring
in adolescence may not have the cumulative interactive effects on
functioning that impairments occurring in infancy and early childhood
do. (However, as set forth in paragraph (d)(1) of this section, we also
recognize that young and older adolescents may experience a variety of
impairments with different effects on their ability to function in an
age-appropriate manner. For instance, a child born with a degenerative
disorder may experience a worsening of its effects as he or she grows
older so that functioning is more limited for the older child than it is
for a younger child with the same illness or disorder.)
(ii) Inasmuch as age-appropriate functioning for an older adolescent
is also that of an 18-year-old young adult, the disability determination
for an older adolescent must be consistent with the disability
determination we would make for an 18-year-old person having the same
functional limitations.
[58 FR 47578, Sept. 9, 1993]
Sec. 416.924b Functioning in children.
(a) General. When we evaluate your functioning, we will consider all
of your mental and physical limitations that result from your
impairment(s). We will evaluate the extent to which you can engage in
age-appropriate activities in an independent, appropriate, and effective
manner and, when applicable, whether you can do these things on a
sustained basis appropriate to your age.
(b) Terms used to describe functioning--(1) Age-appropriate
activities. As used in these regulations, the term age-appropriate
activities is a comprehensive term that refers to what a child is
expected to be able to do given his or her age. A child's activities may
be described in terms of the achievement of ``developmental
milestones,'' ``activities of daily living,'' or other such terms.
Information about a child's activities creates a profile of how the
child is functioning, i.e., what a child does, and thus what he or she
is able to do. This makes possible a comparison between the child's
profile and the activities that are age-appropriate for that child.
(2) Developmental milestones. The term developmental milestones
refers to a child's expected principal developmental achievements at
particular points in time. Ordinarily, failures to achieve developmental
milestones are the most important indicators of impaired functioning
from birth until the attainment of age 3, although they may be used to
evaluate older children, especially preschool children.
(3) Activities of daily living. The term activities of daily living
refers to those activities of children that involve continuity of
purpose and action, and goal or task orientation; that is, the practical
implementation of skills mastered at earlier ages. Ordinarily,
activities of daily living are the most important indicators of
functional limitations in children aged 3 to attainment of age 16,
although they may be used to evaluate children younger than age 3.
(4) Work-related activities. The term work-related activities refers
to those physical and mental activities that are
[[Page 689]]
associated with, or related to, activities in the workplace, as
manifested in a person's activities in age-appropriate contexts, such as
school, work, vocational programs, and organized activities. Ordinarily,
inability to perform work-related activities is the most important
indicator of impaired functioning in older adolescents, aged 16 to
attainment of age 18.
(5) Domains and behaviors. The terms developmental domains,
functional domains, and behaviors, which we use when we perform an
individualized functional assessment, refer to broad areas of
functioning that can be identified in infancy and traced throughout a
child's growth and maturation into adulthood. The domains describe the
child's major spheres of activity--i.e., physical, cognitive,
communicative, social/ emotional, and personal/behavioral. In addition,
there are certain areas of behavior that are applicable to specific age
categories (i.e., responsiveness to stimuli; concentration, persistence,
and pace). The domains and behaviors we use in these regulations are
intended to encompass and reflect all the things that a child may do at
any particular age, and are, therefore, intended to include all of a
child's functioning. All the effects of a child's impairment(s) on daily
functioning will be considered within these domains and behaviors. The
presence of pain or other symptoms can adversely affect functioning in
the domains or behaviors. In these regulations, the term developmental
domains is generally used when we discuss the functioning of younger
children, i.e., from birth to age 3; the term functional domains is
generally used when we discuss older children and adolescents, i.e.,
from age 3 to age 18. (See Sec. 416.924d for descriptions of the various
domains and behaviors as they pertain to the different age categories.)
[58 FR 47580, Sept. 9, 1993]
Sec. 416.924c Other factors we will consider.
(a) General. When we evaluate how you are able to function, we will
consider all factors that are relevant to the evaluation of the effects
of your impairment(s) on your functioning, such as the effects of your
medications, the setting in which you live, your need for assistive
devices, and your functioning in school. Therefore, when we assess the
effect of your impairment(s) on your functioning, we will consider all
evidence from medical and nonmedical sources--such as your parents,
teachers, and other people who know you--that can help us to understand
how your impairment(s) affects your ability to function, and help us to
assess your functioning within the domains and behaviors (see
Sec. 416.924b(b)(5)). Some of the factors we will consider include, but
are not limited to, the factors in paragraphs (b) through (g) of this
section.
(b) Chronic illness. If you have a chronic impairment(s) that is
characterized by episodes of exacerbation (worsening) or remission
(improvement), we will consider the frequency and severity of your
episodes of exacerbation and your periods of remission as factors in our
determination of your overall ability to function. For instance, if you
require repeated hospitalizations or frequent outpatient care with
supportive therapy for a chronic impairment(s), we will consider this
need for treatment in our determination. When we determine whether you
can function independently, appropriately, and effectively in an age-
appropriate manner, we will consider how the level of treatment you need
for your chronic illness affects your functioning. We will consider
whether the length and frequency of your hospitalizations or episodes of
exacerbation significantly interfere with your overall functioning on a
longitudinal basis, or whether your outpatient care (because of its
frequency, effects on your functioning, or both) significantly
interferes with your activities of daily living.
(c) Effects of medication. We will consider the effects of
medication on your symptoms, signs, and laboratory findings, including
your ability to function. Although medications may control the most
obvious manifestations of your condition(s), they may or may not affect
the functional limitations imposed by your impairment(s). If your
symptoms or signs are reduced by medications, we will consider whether
you have any functional limitations
[[Page 690]]
which may nevertheless persist, even if there is apparent improvement
from the medications. We will also consider whether your medications
create any side effects which cause or contribute to your functional
limitations.
(d) Effects of structured or highly supportive settings. Children
with severe impairments may spend much of their time in structured or
highly supportive settings. A structured or highly supportive setting
may be your own home, in which family members make extraordinary
adjustments to accommodate your impairment(s); or your classroom at
school, whether a regular class in which you are accommodated or a
special classroom; or a residential facility or school where you live
for a period of time. Children with chronic impairments also commonly
have their lives structured in such a way as to minimize stress and
reduce their symptoms or signs, and may be relatively free of obvious
symptoms or signs of impairment; others may continue to have persistent
pain, fatigue, decreased energy, or other symptoms or signs, though at a
lesser level of severity. Such children may be more impaired in their
overall ability to function in an age-appropriate manner than their
symptoms and signs would indicate. Therefore, if your symptoms or signs
are controlled or reduced by the environment in which you live, we will
consider your ability to function independently, appropriately, and
effectively in an age-appropriate manner outside of this highly
structured setting.
(e) Adaptations. We will consider the nature and extent of any other
adaptations that are made for you in order to enable you to function.
Such adaptations may include assistive devices, appliances, or
technology. Some adaptations may enable you to function normally, or
almost normally (e.g., eyeglasses, hearing aids). Others may increase
your ability to function, even though you may still have limitations in
your ability to function in an age-appropriate manner (e.g., ankle-foot
orthoses, hand or foot splints, and specially adapted or custom-made
tools, utensils, or devices for self-care activities such as bathing,
feeding, toileting, and dressing). When we evaluate your overall ability
to function with an adaptation, we will consider the degree to which the
adaptation enables you to function independently, appropriately, and
effectively in an age-appropriate manner.
(f) Time spent in therapy. You may need frequent and ongoing therapy
from one or more kinds of health care professionals in order to maintain
or improve your functional status. Therapy may include occupational,
physical, or speech and language therapy, special nursing services,
psychotherapy, or psychosocial counseling. Frequent and continuous
therapy, although intended to improve your functioning, may also
interfere significantly with your opportunities to engage in, and
sustain, age-appropriate activities. If you receive such therapy at
school during a normal school day, it may or may not interfere
significantly with your doing age-appropriate activities. If you must
frequently interrupt your activities at school or at home for therapy,
these interruptions may interfere with your development and age-
appropriate functioning. When we determine whether you can function
independently, appropriately, and effectively in an age-appropriate
manner, we will consider the frequency of any multidisciplinary therapy
that you must have, how long you have needed the therapy or will need
the therapy, and the extent to which it interferes with your age-
appropriate functioning.
(g) School attendance. (1) School records and information from
people at school who know you or who have examined you, such as teachers
and school psychologists, psychiatrists, or therapists, may be important
sources of information about your impairment(s) and its effect on your
ability to function. If you attend school, we will consider this
evidence when it is relevant and available to us.
(2) The fact that you are able to attend school will not, in itself,
be an indication that you are not disabled. We will consider the
circumstances of your school attendance, such as your ability to
function independently, appropriately, and effectively in a regular
classroom setting in an age-appropriate manner. Likewise, the fact that
you are in a special education classroom setting, or that you are not in
[[Page 691]]
such a setting, will not in itself establish your actual limitations or
abilities. We will consider the fact of such placement or lack of
placement in the context of the remainder of the evidence in your case
record.
(3) However, if you are unable to attend school on a regular basis
because of your impairment(s), we will consider this when we determine
whether you are able to function independently, appropriately, and
effectively in an age-appropriate manner.
(h) Treatment and intervention, in general. With adequate treatment
or intervention, some children not only have their symptoms and signs
reduced, but also return to or achieve a level of functioning that is
consistent with the norms for their age. We will, therefore, evaluate
the effects of your treatment or intervention to determine the actual
outcome of the treatment or intervention in your particular case.
[58 FR 47581, Sept. 9, 1993]
Sec. 416.924d Individualized functional assessment for children.
(a) General. If your impairment(s) is severe, but does not meet or
equal in severity any of the listings in appendix 1 of subpart P of part
404 of this chapter, we will do an individualized functional assessment
to determine whether you have an impairment or combination of
impairments which would nevertheless be of comparable severity to an
impairment(s) that would disable an adult. When we assess your
functioning, we will consider all information in your case record that
can help us determine the impact of your impairment(s) on your physical
and mental functioning. We will consider the nature of your
impairment(s), your age, your ability to be tested given your age, your
ability to perform age-appropriate daily activities, and other relevant
factors. (See Secs. 416.924a through 416.924c.) We will assess the
extent to which you are able to function independently, appropriately,
and effectively in an age-appropriate manner despite your impairment(s),
and use this assessment to determine whether you are disabled.
(b) Responsibility for individualized functional assessment. In
cases where the State agency or other designee of the Secretary makes
the initial or reconsideration disability determination, a State agency
staff medical or psychological consultant or other designee of the
Secretary (see Sec. 416.1016) has the overall responsibility for the
individualized functional assessment. This assessment is based on all of
the evidence we have, from all sources, including any statements
regarding what you can still do that have been provided by treating or
examining physicians, consultative physicians, or any other medical or
psychological consultant designated by the Secretary. For cases in the
disability hearing process, the responsibility for the individualized
functional assessment rests with either the disability hearing officer
or, if the disability hearing officer's reconsidered determination is
changed under Sec. 416.1418, with the Associate Commissioner for
Disability or his or her delegate. For cases at the Administrative Law
Judge hearing or Appeals Council level, the responsibility for the
individualized functional assessment rests with the Administrative Law
Judge or Appeals Council.
(c) Domains of development or functioning. The following are the
domains of development or functioning, or specific behaviors, that may
be addressed in an individualized functional assessment:
(1) Cognition;
(2) Communication;
(3) Motor abilities;
(4) Social abilities;
(5) Responsiveness to stimuli (in children from birth to the
attainment of age 1);
(6) Personal/behavioral patterns (in children from age 1 to the
attainment of age 18); and
(7) Concentration, persistence, and pace in task completion (in
children from age 3 to the attainment of age 18).
(d) How we use the domains. (1) When we do an individualized
functional assessment, we will consider the extent of your impairment-
related limitations in the domains or behaviors affected by your
impairment(s), and how well you are able to do age-appropriate
activities despite your limitations. We will also consider how your
impairment(s) in one domain affects your development or functioning in
other domains.
[[Page 692]]
(2) We will consider whether any help or intervention that you need
from others to enable you to do any particular activity is appropriate
to your age.
(3) The guidelines in paragraphs (e) through (j) of this section
describe, in terms of the age categories outlined in Sec. 416.924a(b),
the domains of development or functioning and the behaviors used in
doing an individualized functional assessment, and the general kinds of
age-related activities that may be affected by your impairment(s). (See
Sec. 416.924a(a)(5) for guidelines on age and a child's ability to be
tested, and Sec. 416.924e for guidelines for determining disability
using an individualized functional assessment.)
(e) Newborns and young infants (birth to attainment of age 1).
Children in this age group are evaluated in an individualized functional
assessment in terms of four developmental domains and an area of
behavior important to newborns and young infants.
(1) Cognitive development, e.g., your ability to begin to organize
and regulate how you feel and the ways you react to your environment;
(2) Communicative development (includes speech and language), e.g.,
your ability to communicate spontaneously and with intention through
visual, motor, and vocal exchanges;
(3) Motor development (includes gross and fine motor skills), e.g.,
your ability to explore your environment by moving your body, and your
ability to manipulate your environment by using your hands;
(4) Social development, e.g., your ability to form patterns of self-
regulation, to form and maintain intimate relationships with your
primary caregivers, and to exchange a variety of age-appropriate
emotional cues and begin to organize intentional behavior;
(5) Responsiveness to stimuli, i.e., your ability to respond
appropriately to stimulation, e.g., visual, auditory, and tactile.
(f) Older infants and toddlers (age 1 to attainment of age 3).
Children in this age group are evaluated in an individualized functional
assessment in terms of five developmental domains.
(1) Cognitive development, e.g., your ability to understand by
responding to increasingly complex requests, instructions or questions,
by referring to yourself and things around you by pointing and
eventually by naming, and by copying things or imitating actions shown
to you by others, and by knowing what you want, as illustrated, for
example, by searching for a toy or asking for a special food;
(2) Communicative development (includes speech and language), e.g.,
your ability to communicate your wishes or needs by using gestures or
pretend play, and by understanding, imitating, and using an increasing
number of intelligible words, and eventually forming two-to-four word
sentences in spontaneous, interactive conversation;
(3) Motor development (includes gross and fine motor skills), e.g.,
your ability to move in your environment using your body with steadily
increasing dexterity and independence from support by others, and your
ability to use your hands to do something that you want or get something
that you need;
(4) Social development, e.g., your ability to express normal
dependence upon, and intimacy with, your primary caregivers, as well as
increasing independence from them, to initiate and respond to a variety
of age-appropriate emotional cues, and to regulate and organize emotions
and behaviors;
(5) Personal/behavioral development, e.g., your ability to help
yourself and to cooperate with others in taking care of your personal
needs, in adapting to your environment, in responding to limits, and in
learning new skills.
(g) Preschool children (age 3 to attainment of age 6). Children in
this age group are evaluated in an individualized functional assessment
in terms of five developmental domains and an area of behavior important
to preschool children.
(1) Cognitive development, e.g., your ability to understand, to
reason and to solve problems, and to use acquired knowledge and
concepts;
(2) Communicative development (includes speech and language), e.g.,
your ability to communicate by telling, requesting, predicting, and
relating information, by following and giving directions, by describing
actions and functions, and by expressing your needs, feelings, and
preferences in a
[[Page 693]]
spontaneous, interactive, and increasingly intelligible manner, using
simple sentences in grammatical form;
(3) Motor development (includes gross and fine motor skills), e.g.,
your ability to move and use your arms and legs in increasingly more
intricate and coordinated activity, and your ability to use your hands
with increasing coordination to manipulate small objects during play.
(4) Social development, e.g., your ability to initiate age-
appropriate social exchanges and to respond to your social environment
through appropriate and increasingly complex interpersonal behaviors,
such as showing affection, sharing, cooperating, helping, and relating
to other children as individuals or as a group;
(5) Personal/behavioral development, e.g., your ability to help
yourself and to cooperate with others in taking care of your personal
needs, in adapting to your environment, in responding to limits, and in
learning new skills;
(6) Concentration, persistence, and pace, e.g., your ability to
engage in an activity, such as dressing or playing, and to sustain the
activity for a period of time and at a pace appropriate to your age.
(h) School-age children (age 6 to attainment of age 12). Children in
this age group are evaluated in an individualized functional assessment
in terms of five functional domains and an area of behavior important to
school-age children.
(1) Cognitive function, e.g., your ability to progress in learning
the skills involved in reading, writing, and mathematics;
(2) Communicative function (includes speech and language), e.g.,
your ability to communicate pragmatically (i.e., to meet your needs) and
conversationally (i.e., to exchange information and ideas with peers and
family or with groups such as your school classes) in a spontaneous,
interactive, sustained, and intelligible manner;
(3) Motor function (includes gross and fine motor skills), e.g.,
your ability to engage in the physical activities involved in play and
physical education, appropriate to your age;
(4) Social function, e.g., your ability to play alone, or with
another child, or in a group; to initiate and develop friendships, to
respond to your social environments through appropriate and increasingly
complex interpersonal behaviors, such as empathizing with others and
tolerating differences; and to relate appropriately to individuals and
groups (e.g., siblings, parents or caregivers, peers, teachers, school
classes, neighborhood groups);
(5) Personal/behavioral function, e.g., your ability to help
yourself and to cooperate with others in taking care of your personal
needs and safety; to respond appropriately to authority and school
rules; to manifest a sense of responsibility for yourself and respect
for others; to adapt to your environment; and to learn new skills;
(6) Concentration, persistence, and pace, e.g., your ability to
engage in an activity, such as playing or reading, and to sustain the
activity for a period of time and at a pace appropriate to your age.
(i) Young adolescents (age 12 to attainment of age 16). Children in
this age group are evaluated in an individualized functional assessment
in terms of five functional domains and an area of behavior important to
young adolescents.
(1) Cognitive function, e.g., your ability to progress in applying
the skills involved in reading, writing, and mathematics; your
conceptual growth, reasoning and problem-solving abilities;
(2) Communicative function (includes speech and language), e.g.,
your ability to communicate pragmatically (i.e., to meet your needs) and
to converse spontaneously and interactively, expressing complex thoughts
with increasing vocabulary in all communication environments (e.g.,
home, classroom, playground, extra-curricular activities, job) and with
all communication partners (e.g., parents or caregivers, siblings,
peers, school classes, teachers, other authority figures);
(3) Motor function (includes gross and fine motor skills), e.g.,
your ability to engage in the physical activities involved in physical
education, sports, and social events appropriate to your age;
(4) Social function, e.g., your ability to initiate and develop
friendships, to relate appropriately to individual peers
[[Page 694]]
and adults and to peer and adult groups, and to reconcile conflicts
between yourself and peers or family members or other adults outside
your family;
(5) Personal/behavioral function, e.g., your ability to help
yourself in taking care of your personal needs and safety, to respond
appropriately to authority and school rules, to manifest a sense of
responsibility for yourself and respect for others; to adapt to your
environment; and to learn new skills;
(6) Concentration, persistence, and pace, e.g., your ability to
engage in an activity, such as studying or practicing a sport, and to
sustain the activity for a period of time and at a pace appropriate to
your age.
(j) Older adolescents (age 16 to attainment of age 18). (1)
Descriptive information about your activities of daily living will tell
us about the nature and age-appropriateness of your activities with
respect to your cognitive functioning, communicative functioning, motor
functioning, social functioning, personal/behavioral functioning, and
your concentration, persistence, and pace in school or work-related
activities. (See Sec. 416.924d(i) (1) through (6) for a description of
these domains and behaviors.)
(2) As you approach adulthood (i.e., beginning at about age 16), we
will consider some of your school activities as evidence of your ability
to function in a job setting. For example, we will consider your ability
to understand, carry out, and remember simple instructions and work-like
procedures in the classroom as evidence of your ability to do these
things in a job. We will consider your ability to communicate
spontaneously, interactively, and age-appropriately in the classroom as
evidence of your ability to do this in a job. We will consider your
ability to maintain attention for extended periods of time and to
sustain an ordinary daily routine without special supervision as
evidence of your ability to do these things in a job. We will consider
your ability to deal with authority figures and to follow directions in
school, responding appropriately to correction or criticism, as evidence
of your ability to deal with supervision on a job. We will consider your
ability to interact with peers in school, school-related activities, and
other age-appropriate environments as evidence of your ability to relate
to co-workers in a job. We will consider your ability to regulate your
mood and behavior in various school settings as evidence of your ability
to deal with change in a work setting. We will consider your ability to
engage in physical activities both in and out of school as evidence of
your ability to perform the physical demands of work. We will also
consider whether you have acquired any skills from specific vocational
education and whether you have pursued any part-time or stay-in-school
employment.
(3) If you are working or have worked, we will evaluate such things
as: The physical activities in which you are engaged on the job; the
regularity and punctuality of your attendance; your ability to follow
directions and deal with supervisors; and your ability to work
independently and to deal with others in your job.
[58 FR 47582, Sept. 9, 1993]
Sec. 416.924e Guidelines for determining disability using the individualized functional assessment.
(a) General. The guidelines in this section are provided as a
framework for deciding whether a child who has a severe impairment(s)
that does not meet or equal the listings nevertheless has an
impairment(s) that is of comparable severity to one that would disable
an adult, and is, therefore, disabled. The guidelines illustrate a level
of impairment severity that is generally, though not invariably,
sufficient to establish comparable severity; i.e., to establish that
there is an impairment or combination of impairments that substantially
reduces your ability to function independently, appropriately, and
effectively in an age-appropriate manner. The examples in this section
are only guidelines to illustrate severity and are not all-inclusive
rules. The determination of your claim is based on all relevant evidence
in the case record, using the principles and guidance in Secs. 416.924
through 416.924d on a case-by-case basis.
(b) How we describe functional limitations. The terms used in this
section to describe functional severity of both
[[Page 695]]
physical and mental impairments employ as a frame of reference the
terminology and definitions in the childhood mental listings in 112.00
of the Listing of Impairments in appendix 1 to subpart P of part 404 of
this chapter. Hence, the examples of ``moderate'' and other limitations
are derived from a comparison with the ``marked'' levels of functional
limitation in the listings. As in those listings, ``marked'' and
``moderate'' are not the number of activities or functions which are
restricted, but the overall degree of restriction or combination of
restrictions in a domain or behavior. A marked or moderate limitation
may arise when several activities or functions in a domain or behavior
are impaired, or even when only one is impaired.
(1) If you are a younger child, from birth to the attainment of age
3, your functional limitations will generally be described in the
examples in terms of a developmental delay, or the fraction or
percentage of your chronological age that represents the levels of your
functioning; e.g., three-fourths of chronological age. If you are
functioning in one of the domains or behaviors described for your age in
Sec. 416.924d at more than one-half, but not more than two-thirds, of
your chronological age, you are said to have a marked impairment in that
domain or behavior. If you are functioning in one of the domains or
behaviors described for your age in Sec. 416.924d at more than two-
thirds, but not more than three-fourths of your chronological age, we
describe your impairment in that domain or behavior as moderate.
(2) If you are an older child or young adolescent, from age 3 to the
attainment of age 16, your impairment(s) will generally be described in
the examples in terms of specific kinds of age-appropriate activities,
functional abilities, or abnormal behaviors. Although it is sometimes
appropriate to evaluate severity in this age group in the same terms as
are used in paragraph (b)(1) of this section, which describes moderate
limitation of functioning in terms of a level that is more than two-
thirds but not more than three-fourths of a child's chronological age,
the older a child becomes, the less precise are the means of determining
this kind of profile. The spectrum of limitations that may constitute
``moderate'' impairment in this age group ranges from limitations that
may be close to the ``marked'' level in severity to limitations that may
be close to the ``mild'' level and, thus, considerably less limiting.
Use of the examples as guides in the evaluation of older children and
young adolescents, therefore, requires careful evaluation and judgment
in each individual case, taking into account the child's age (as
explained in Sec. 416.924a) and all other relevant factors described in
Secs. 416.924 through 416.924d.
(3) If you are an older adolescent, aged 16 to the attainment of age
18, functional limitations are generally evaluated in terms of physical
and mental activities that are the same as, or similar to, activities of
young adults. Hence, the guidance and examples in paragraph (d) of this
section focus on physical abilities (exertional and nonexertional) and
mental abilities associated with work activities, as described in
Secs. 416.921, 416.945, 416.967, 416.968, and 416.969a. However,
assessment of an older adolescent's abilities and limitations is to be
made in an age-appropriate context, as demonstrated by performance in
school, work, and other relevant settings.
(c) How we evaluate children from birth to attainment of age 16--(1)
Young children (birth to attainment of age 3). If you are a newborn or
young infant (birth to the attainment of age 1), we evaluate the
severity of your impairment(s) with respect to four developmental
domains (cognitive, communicative, motor, and social development) and
your responsiveness to stimuli. If you are an older infant or toddler
(age 1 to the attainment of age 3), we evaluate the severity of your
impairment(s) with respect to five developmental domains (cognitive,
communicative, motor, social, and personal/behavioral development). (See
Sec. 416.924d(e) and (f) for descriptions of the domains and behaviors
appropriate to each age group.) Our evaluation of severity is based on
comparison with the descriptors of functional severity in Listings
112.02-112.12 for childhood mental disorders: If you achieve development
of only one-half or less of your chronological age in a single domain,
or of only two-thirds
[[Page 696]]
or less of your chronological age in two domains, your limitations are
at listing-level severity. Examples of when we will generally find
comparable severity (as defined in paragraph (a) of this section) and,
thus, find you disabled include the following situations described in
paragraphs (c)(1) (i) through (ii) of this section. However, the
guidance provided by these examples for evaluating young children is not
intended to be a standard by which all cases must be judged. Each case
must be evaluated on its own merits using the principles and guidelines
of all the regulations addressing childhood disability.
(i) You are functioning in one domain (e.g., motor development) at a
level that is more than one-half, but not more than two-thirds of the
normal age-appropriate level for a child your age and you are
functioning in another domain (e.g., communicative) at a level that is
more than two-thirds but not more than three-fourths of the normal age-
appropriate level for a child your age; or
(ii) You are functioning in three domains (e.g., cognitive, motor,
and social development) at a level that is more than two-thirds, but not
more than three-fourths of the normal age-appropriate level for a child
your age.
(2) Older children and young adolescents, age 3 to attainment of age
16. If you are in this age group, we evaluate the severity of your
impairment(s) with respect to five functional domains (cognitive,
communicative, motor, social, and personal/behavioral function), and
your concentration, persistence, and pace in the completion of age-
appropriate tasks. (See Sec. 416.924d(g) through (i) for descriptions of
the domains and behaviors appropriate to this age group.) The level of
severity illustrating the term ``moderate,'' and the overall level of
disability at less than the listing level, are based on comparison with
the listing-level requirement for marked impairment in two domains, as
described in 112.00C of the Listing of Impairments in appendix 1 of
subpart P of part 404 of this chapter. In the case of preschoolers (age
3 to the attainment of age 6), it may be appropriate to evaluate the
level of severity in terms of developmental age, as in younger children.
Examples of when we will generally find comparable severity (as defined
in paragraph (a) of this section) and, thus, find you disabled include
the following situations described in paragraphs (c)(2) (i) through (ii)
of this section. However, the guidance provided by these examples for
evaluating older children and young adolescents is not intended to be a
standard by which all cases must be judged. Each case must be evaluated
on its own merits using the principles and guidelines of all the
regulations addressing childhood disability.
(i) You are functioning at the marked level in one domain or
behavior (e.g., in the domain of social functioning, you are generally
unable to maintain age-appropriate relationships with peers and adults,
with frequent serious conflicts with your family, classmates, and
teachers; or in the domain of motor functioning, your range of motion in
your elbows, wrists, and fingers is limited by less than 50 percent and
you have difficulty writing, typing, picking up and handling small
objects, carrying, reaching, and engaging in physical activities which
rely heavily on the use of the upper extremities), and you are
functioning at the moderate level in another domain or behavior (e.g.,
in the domain of personal/behavioral functioning, you are frequently
unable to perform self-care activities independently); or
(ii) You are functioning at the moderate level in three areas (e.g.,
in the domain of cognitive functioning, you have a valid full scale IQ
of 74; in the domain of social functioning you have limited age-
appropriate relationships with peers and adults, with occasional serious
conflicts with family, classmates, teachers, and others; and with
respect to the behavior of concentration, persistence and pace, you are
frequently unable to complete age-appropriate complex tasks, and
occasionally unable to perform simple age-appropriate tasks adequately).
(d) How we evaluate older adolescents, from age 16 to attainment of
age 18--(1) General. As we explain in Sec. 416.924d(j), children aged 16
to 18 are closely approaching adulthood and can be evaluated in terms
that are the same as, or
[[Page 697]]
similar to, those used for the evaluation of the youngest adults.
Children in this age range who do not have impairment-related
limitations are ordinarily expected to be able to do the kinds of
physical and mental activities expected of individuals who are at least
18 years old.
(i) The discussions in this section are predicated on the foregoing
principles. They describe limitations of physical and mental functions
that are associated with, or related to, functions in the workplace, as
demonstrated by a child's performance of age-appropriate activities in
age-appropriate context, such as school, part-time or full-time work,
vocational programs, and organized activities. (See also
Sec. 416.924d(j).)
(ii) As in the examples for younger children, the guidance for
evaluating older adolescents is not intended to be a standard by which
all cases must be judged. Each case must be evaluated on its own merits
using the principles and guidelines of all of the regulations addressing
childhood disability.
(2) Mental functions. Based on the profile of your activities and
functioning in the relevant domains and behavior of cognition,
communication, social functioning, personal/behavioral functioning, and
your concentration, persistence, and pace in age-appropriate activities,
we will consider your mental capacities to perform on a sustained basis
(i.e., 8 hours a day, 5 days a week) the general kinds of mental
activities that we evaluate for adults. We will consider such things as
your ability to understand, carry out, and remember simple instructions;
to maintain attention for extended periods of time; to use judgment; to
make simple decisions; to take necessary safety precautions; to respond
appropriately to supervision and peers (e.g., by being able to accept
instructions and criticism, by not requiring special supervision, and by
not being unduly distracted by your peers or unduly distracting to them
in a school or work setting); and dealing with changes in your routine
school or work setting. (See also, Sec. 416.924d(j).)
(3) Physical functions. Based on the profile of your activities in
the relevant domain of motor functioning, and your concentration,
persistence, and pace in age-appropriate activities, we will consider
your physical capacity to perform on a sustained basis (i.e., 8 hours a
day, 5 days a week) the types and ranges of exertional and nonexertional
activities that we evaluate for adults; e.g., sitting, standing,
walking, lifting, carrying, pushing, pulling, reaching, handling,
manipulating, seeing, hearing, and speaking. (See also,
Sec. 416.924d(j).)
(4) Evaluation. If an individualized functional assessment shows
that you experience a substantial loss or deficit of capacity to perform
the age-appropriate mental or physical activities described, we will
find that your impairment(s) seriously interferes with your ability to
function independently, appropriately, and effectively in an age-
appropriate manner, and that it has substantially reduced your ability
to acquire the skills needed to assume roles reasonably expected of
adults. Therefore, we will conclude that you have an impairment(s) that
is comparable in severity to an impairment that would disable an adult,
and that you are disabled.
(i) The term ``substantial loss or deficit'' is not a precise
number, percentage, or quantitative measure.
(ii) Substantial loss or deficit means that you are unable to meet
the basic physical demands of at least sedentary work (as defined in
Sec. 416.967(a)); or you are unable to meet the basic mental demands of
at least unskilled work (as defined in Sec. 416.968(a)); or that you
have an impairment(s) that would severely limit the potential
occupational base of a person age 18 through 45 and that would justify a
finding of inability to perform other work even for a person with
favorable age, education, and work experience (see Secs. 416.969,
416.969a, and appendix 2 to subpart P of part 404 of this chapter).
[58 FR 47584, Sept. 9, 1993]
[[Page 698]]
Medical Considerations
Sec. 416.925 Listing of Impairments in Appendix 1 of Subpart P of Part 404 of this chapter.
(a) Purpose of the Listing of Impairments. The Listing of
Impairments describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any
gainful activity. Most of the listed impairments are permanent or
expected to result in death, or a specific statement of duration is
made. For all others, the evidence must show that the impairment has
lasted or is expected to last for a continuous period of at least 12
months.
(b) Adult and childhood diseases. The Listing of Impairments
consists of two parts:
(1) Part A contains medical criteria that apply to adult persons age
18 and over. The medical criteria in part A may also be applied in
evaluating impairments in persons under age 18 if the disease processes
have a similar effect on adults and younger persons.
(2) Part B contains additional medical criteria that apply only to
the evaluation of impairments of persons under age 18. Certain criteria
in part A do not give appropriate consideration to the particular
effects of the disease processes in childhood; i.e., when the disease
process is generally found only in children or when the disease process
differs in its effect on children than on adults. Additional criteria
are included in part B, and the impairment categories are, to the extent
possible, numbered to maintain a relationship with their counterparts in
part A. In evaluating disability for a person under age 18, part B will
be used first. If the medical criteria in part B do not apply, then the
medical criteria in part A will be used.
(c) How to use the Listing of Impairments. Each section of the
Listing of Impairments has a general introduction containing definitions
of key concepts used in that section. Certain specific medical findings,
some of which are required in establishing a diagnosis or in confirming
the existence of an impairment for the purpose of this Listing, are also
given in the narrative introduction. If the medical findings needed to
support a diagnosis are not given in the introduction or elsewhere in
the listing, the diagnosis must still be established on the basis of
medically acceptable clinical and laboratory diagnostic techniques.
Following the introduction in each section, the required level of
severity of impairment is shown under ``Category of Impairments'' by one
or more sets of medical findings. The medical findings consist of
symptoms, signs, and laboratory findings.
(d) Diagnoses of impairments. We will not consider your impairment
to be one listed in appendix 1 of subpart P of part 404 of this chapter
solely because it has the diagnosis of a listed impairment. It must also
have the findings shown in the Listing for that impairment.
(e) Addiction to alcohol or drugs. If you have a condition diagnosed
as addiction to alcohol or drugs, this will not, by itself, be a basis
for determining whether you are, or are not, disabled. As with any other
medical condition, we will decide whether you are disabled based on
symptoms, signs, and laboratory findings.
(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.
[45 FR 55621, Aug. 20, 1980, as amended at 56 FR 57944, Nov. 14, 1991]
Sec. 416.926 Medical equivalence for adults.
(a) How medical equivalence is determined. We will decide that your
impairment(s) is medically equivalent to a listed impairment in appendix
1 of subpart P of part 404 of this chapter if the medical findings are
at least equal in severity and duration to the listed
[[Page 699]]
findings. We will compare the symptoms, signs, and laboratory findings
about your impairment(s), as shown in the medical evidence we have about
your claim, with the medical criteria shown with the listed impairment.
If your impairment is not listed, we will consider the listed impairment
most like your impairment to decide whether your impairment is medically
equal. If you have more than one impairment, and none of them meets or
equals a listed impairment, we will review the symptoms, signs, and
laboratory findings about your impairments to determine whether the
combination of your impairments is medically equal to any listed
impairment.
(b) Medical equivalence must be based on medical findings. We will
always base our decision about whether your impairment(s) is medically
equal to a listed impairment on medical evidence only. Any medical
findings in the evidence must be supported by medically acceptable
clinical and laboratory diagnostic techniques. We will also consider the
medical opinion given by one or more medical or psychological
consultants designated by the Secretary in deciding medical equivalence.
(See Sec. 416.1016.)
(c) Who is a designated medical or psychological consultant. A
medical or psychological consultant designated by the Secretary includes
any medical or psychological consultant employed or engaged to make
medical judgments by the Social Security Administration, the Railroad
Retirement Board, or a State agency authorized to make disability
determinations. A medical consultant must be a physician. A
psychological consultant used in cases where there is evidence of a
mental impairment must be a qualified psychologist. (See Sec. 416.1016
for the qualifications we consider necessary for a psychologist to be a
consultant.)
[45 FR 55621, Aug. 20, 1980, as amended at 52 FR 33928, Sept. 9, 1987;
56 FR 5561, Feb. 11, 1991]
Sec. 416.926a Equivalence for children.
(a) General. If you are a child and you do not have an impairment
that meets the requirements of a listing, we will determine whether you
have an impairment or combination of impairments that is equivalent in
severity to any listed impairment in appendix 1 of subpart P of part
404, as set forth in this section. While all possible impairments are
not addressed within the Listing of Impairments, within the listed
impairments are all the physical and mental functional limitations,
i.e., what a child cannot do as a result of an impairment, that are
considered severe enough to prevent a child from functioning
independently, appropriately, and effectively in an age-appropriate
manner. We will compare the symptoms, signs, and laboratory findings
about your impairment(s), including, where appropriate, any functional
limitations that result from your medically determinable impairment(s),
with the corresponding criteria shown for any listed impairment. When we
make an equivalence decision, we will consider all relevant evidence in
your case record.
(b) How we determine the equivalence of impairments for children.
Equivalence can be found in three ways:
(1) If you have an impairment that is described in the Listing of
Impairments in appendix 1 of subpart P of part 404, but:
(i) You do not exhibit one or more of the medical findings specified
in the particular listing, or
(ii) You exhibit all of the medical findings, but one or more of the
findings is not as severe as specified in the listing,
we will nevertheless find that your impairment is equivalent to that
listing if you have other medical findings related to your impairment
that are at least of equal medical significance.
(2) If you have an impairment that is not described in the Listing
of Impairments in appendix 1, or you have a combination of impairments,
no one of which meets or is equivalent to a listing, we will compare
your medical findings with those for closely analogous listed
impairments. If the findings associated with your impairment(s) are at
least of equal medical significance to those of a listed impairment, we
will find that your impairment(s) is equivalent to the analogous
listing.
[[Page 700]]
(3) If we cannot find equivalence under either of the foregoing
provisions, we will assess the overall functional limitations that
result from your impairment(s), i.e., what you cannot do because of your
impairment(s). If you have more than one impairment, we will consider
the combined effects of all your impairments on your overall
functioning. We will compare the functional limitations(s) resulting
from your impairment(s) with the functional consequences of any listed
impairment which includes the same functional limitations; the listing
we choose for comparison need not be medically related to your
impairment(s). If the functional limitation(s) resulting from your
impairment(s) is the same as the disabling functional consequences of a
listed impairment, we will find that your impairment(s) is equivalent to
that listed impairment. When we make a determination or decision using
this rule, the primary focus will be on the disabling consequences of
your impairment(s), as long as there is a direct, medically determinable
cause for these consequences.
(c) Responsibility for determining equivalence. In cases where the
State agency or other designee of the Secretary makes the initial or
reconsideration disability determination, a State agency staff medical
or psychological consultant or other designee of the Secretary (see
Sec. 416.1016) has the overall responsibility for determining
equivalence. For cases in the disability hearing process, the
responsibility for determining equivalence rests with either the
disability hearing officer or, if the disability hearing officer's
reconsidered determination is changed under Sec. 416.1418, with the
Associate Commissioner for Disability or his or her delegate. For cases
at the Administrative Law Judge or Appeals Council level, the
responsibility for deciding equivalence rests with the Administrative
Law Judge or Appeals Council.
(d) Examples of impairments of children that are functionally
equivalent to the listings. The following are some examples of
consequences of impairments that are functionally equivalent to listed
impairments. The consequences of each child's impairment(s) must be
assessed to determine whether they are functionally equivalent to those
of a listed impairment. Findings of equivalence based on the disabling
functional consequences of a child's impairment(s) should not be limited
to the examples below, because these examples do not describe all the
possible effects of impairments that might be found to be equivalent to
a listed impairment. As with any disabling impairment, the duration
requirement must also be met (see Secs. 416.909 and 416.924(a)).
(1) Documented need for major organ transplant (e.g., heart, liver).
(2) Any condition that is disabling at the time of onset, requiring
a series of staged surgical procedures within 12 months after onset as a
life-saving measure or for salvage or restoration of function, and such
major function is not restored or is not expected to be restored within
12 months after onset of the condition.
(3) Frequent need for a life-sustaining device (e.g., central venous
alimentation catheter), at home or elsewhere.
(4) Marked inability to stand and walk; e.g., ambulation possible
only with obligatory bilateral upper limb assistance.
(5) Any physical impairment(s) or combination of physical and mental
impairments causing marked restriction of age-appropriate activities of
daily living and marked difficulties in maintaining age-appropriate
social functioning.
(6) Any physical impairment(s) or combination of physical and mental
impairments causing complete inability to function independently outside
the area of one's home within age-appropriate norms.
(7) Requirement for 24-hour-a-day supervision for medical or
behavioral reasons.
(8) Infants weighing less than 1200 grams at birth, until attainment
of 1 year of age.
(9) Infants weighing at least 1200 but less than 2000 grams at
birth, and who are small for gestational age, until attainment of 1 year
of age. (Small for gestational age means a birth weight that is at or
more than 2 standard
[[Page 701]]
deviations below the mean or that is below the 3rd growth percentile.)
(10) In an infant who has not attained age 1 year, any physical
impairment(s) or combination of physical and mental impairments that
satisfies the requirements of Listing 112.12.
(11) Major congenital organ dysfunction (e.g., congenital heart
disease) which could be expected to result in death within the first
year of life without surgical correction, and the impairment is expected
to be disabling (because of residual impairment following surgery, or
the recovery time required, or both) until attainment of 1 year of age.
(12) Gastrostomy in a child who has not attained age 3.
[56 FR 5561, Feb. 11, 1991, as amended at 58 FR 47586, Sept. 9, 1993; 58
FR 52367, Oct. 7, 1993]
Sec. 416.927 Evaluating medical opinions about your impairment(s) or disability.
(a) General. (1) You can only be found disabled if you are unable 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 l2 months. See Sec. 4l6.905. Your
impairment must result from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques. See Sec. 416.908.
(2) Evidence that you submit or that we obtain may contain medical
opinions. Medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), includinq your
symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.
(b) How we consider medical opinions. In deciding whether you are
disabled, we will always consider the medical opinions in your case
record together with the rest of the relevant evidence we receive.
(c) Making disability determinations. After we review all of the
evidence relevant to your claim, including medical opinions, we make
findings about what the evidence shows.
(1) If all of the evidence we receive, including all medical
opinion(s), is consistent, and there is sufficient evidence for us to
decide whether you are disabled, we will make our determination or
decision based on that evidence.
(2) If any of the evidence in your case record, including any
medical opinion(s), is inconsistent with other evidence or is internally
inconsistent, we will weigh all of the evidence and see whether we can
decide whether you are disabled based on the evidence we have.
(3) If the evidence is consistent but we do not have sufficient
evidence to decide whether you are disabled, or, if after weighing the
evidence we decide we cannot reach a conclusion about whether you are
disabled, we will try to obtain additional evidence under the provisions
of Secs. 416.912 and 416.919 through 416.919h. We will request
additional existing records, recontact your treating sources or any
other examining sources, ask you to undergo a consultative examination
at our expense, or ask you or others for more information. We will
consider any additional evidence we receive together with the evidence
we already have.
(4) When there are inconsistencies in the evidence that cannot be
resolved, or when despite efforts to obtain additional evidence the
evidence is not complete, we will make a determination or decision based
on the evidence we have.
(d) How we weigh medical opinions. Regardless of its source, we will
evaluate every medical opinion we receive. Unless we give a treating
source's opinion controlling weight under paragraph (d)(2) of this
section, we consider all of the following factors in deciding the weight
we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
opinion of a source who has examined you than to the opinion of a source
who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are likely to
be the medical professionals most able to provide a
[[Page 702]]
detailed, longitudinal picture of your medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's opinion on the
issue(s) of the nature and severity of your impairment(s) is well-
supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the
factors listed below, as well as the factors in paragraphs (d) (3)
through (5) of this section in determining the weight to give the
opinion. We will always give good reasons in our notice of determination
or decision for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the frequency of
examination. Generally, the longer a treating source has treated you and
the more times you have been seen by a treating source, the more weight
we will give to the source's medical opinion. When the treating source
has seen you a number of times and long enough to have obtained a
longitudinal picture of your impairment, we will give the source's
opinion more weight than we would give it if it were from a nontreating
source.
(ii) Nature and extent of the treatment relationship. Generally, the
more knowledge a treating source has about your impairment(s) the more
weight we will give to the source's medical opinion. We will look at the
treatment the source has provided and at the kinds and extent of
examinations and testing the source has performed or ordered from
specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during
your eye examinations, we will consider his or her opinion with respect
to your neck pain, but we will give it less weight than that of another
physician who has treated you for the neck pain. When the treating
source has reasonable knowledge of your impairment(s), we will give the
source's opinion more weight than we would give it if it were from a
nontreating source.
(3) Supportability. The more a medical source presents relevant
evidence to support an opinion, particularly medical signs and
laboratory findings, the more weight we will give that opinion. The
better an explanation a source provides for an opinion, the more weight
we will give that opinion. Furthermore, because nonexamining sources
have no examining or treating relationship with you, the weight we will
give their opinions will depend on the degree to which they provide
supporting explanations for their opinions. We will evaluate the degree
to which these opinions consider all of the pertinent evidence in your
claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with
the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of
a specialist about medical issues related to his or her area of
specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the opinion.
(e) Medical source opinions on issues reserved to the Secretary.
(1) Opinions that you are disabled. We are responsible for making
the determination or decision about whether you meet the statutory
definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source's statement
that you are disabled. A statement by a medical source that you are
``disabled'' or ``unable to work'' does not mean that we will determine
that you are disabled.
(2) Other opinions on issues reserved to the Secretary. We use
medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of
[[Page 703]]
your impairment(s). Although we consider opinions from treating and
examining sources on issues such as whether your impairment(s) meets or
equals the requirements of any impairment(s) in the Listing of
Impairments in Appendix 1 to subpart P of part 404 of this chapter, your
residual functional capacity (see Secs. 416.945 and 416.946), or the
application of vocational factors, the final responsibility for deciding
these issues is reserved to the Secretary. We will not give any special
significance to the source of the opinion on these issues.
(f) Opinions of nonexamining medical and psychological consultants
and other nonexamining physicians and psychologists. We consider all
evidence from nonexamining physicians and psychologists to be opinion
evidence. When we consider the opinions of nonexamining sources on the
nature and severity of your impairments, we apply the rules set forth in
paragraphs (a) through (e) of this section. In addition, the following
rules apply to State agency medical and psychological consultants, and
to medical advisors we consult in connection with administrative law
judge hearings and Appeals Council review.
(1) At the initial and reconsideration steps in the administrative
review process, except in disability hearings, State agency medical and
psychological consultants are members of the teams that make the
determinations of disability. A State agency medical or psychological
consultant will consider the evidence in your case record and make
findings of fact about the medical issues, including, but not limited
to, the existence and severity of your impairment(s), the existence and
severity of your symptoms, whether your impairment(s) meets or equals
the requirements for any impairment listed in Appendix 1 to subpart P of
part 404 of this chapter, and your residual functional capacity. These
administrative findings of fact are based on the evidence in your case
record but are not themselves evidence at these steps.
(2) Administrative law judges are responsible for reviewing the
evidence and making findings of fact and conclusions of law.
Administrative law judges are not bound by any findings made by State
agency medical or psychological consultants. However, these findings are
considered at the hearing level. See Sec. 416.912(b)(6). When
administrative law judges consider these findings, they will evaluate
them using the rules set forth in paragraphs (a) through (e) of this
section. Also, administrative law judges may ask for and consider the
opinions of medical advisors on the nature and severity of your
impairment(s) and whether your impairment(s) equals the requirements of
any listed impairment in appendix 1 to subpart P of part 404 of this
chapter.
(3) When the Appeals Council makes a decision, it will follow the
same rules for considering opinion evidence as administrative law judges
follow.
[56 FR 36968, Aug. 1, 1991]
Sec. 416.928 Symptoms, signs, and laboratory findings.
Medical findings consist of symptoms, signs, and laboratory
findings:
(a) Symptoms are your own description of your physical or mental
impairment. If you are a child under age 18 and are unable to adequately
describe your symptom(s), we will accept as a statement of this
symptom(s) the description given by the person who is most familiar with
you, such as a parent, other relative, or guardian. Your statements (or
those of another person) alone, however, are not enough to establish
that there is a physical or mental impairment.
(b) Signs are anatomical, physiological, or psychological
abnormalities which can be observed, apart from your statements
(symptoms). Signs must be shown by medically acceptable clinical
diagnostic techniques. Psychiatric signs are medically demonstrable
phenomena which indicate specific abnormalities of behavior, affect,
thought, memory, orientation and contact with reality. They must also be
shown by observable facts that can be medically described and evaluated.
(c) Laboratory findings are anatomical, physiological, or
psychological phenomena which can be shown by the use of a medically
acceptable laboratory diagnostic techniques. Some of these diagnostic
techniques include chemical tests, electrophysiological studies
(electrocardiogram, electroencephalogram, etc.),
[[Page 704]]
roentgenological studies (X-rays), and psychological tests.
[45 FR 55621, Aug. 20, 1980, as amended at 58 FR 47586, Sept. 9, 1993]
Sec. 416.929 How we evaluate symptoms, including pain.
(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your symptoms
can reasonably be accepted as consistent with the objective medical
evidence, and other evidence. By objective medical evidence, we mean
medical signs and laboratory findings as defined in Sec. 416.928 (b) and
(c). By other evidence, we mean the kinds of evidence described in
Secs. 416.912(b) (2) through (6) and 416.913 (b) (1), (4), and (5) and
(e). These include statements or reports from you, your treating or
examining physician or psychologist, and others about your medical
history, diagnosis, prescribed treatment, daily activities, efforts to
work, and any other evidence showing how your impairment(s) and any
related symptoms affect your ability to work (or if you are a child, to
function independently, appropriately, and effectively in an age-
appropriate manner). We will consider all of your statements about your
symptoms, such as pain, and any description you, your physician, your
psychologist, or other persons may provide about how the symptoms affect
your activities of daily living and your ability to work (or if you are
a child, to function independently, appropriately, and effectively in an
age-appropriate manner). However, statements about your pain or other
symptoms will not alone establish that you are disabled; there must be
medical signs and laboratory findings which show that you have 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
your pain or other symptoms which may reasonably be accepted as
consistent with the medical signs and laboratory findings), would lead
to a conclusion that you are disabled. In evaluating the intensity and
persistence of your symptoms, including pain, we will consider all of
the available evidence, including your medical history, the medical
signs and laboratory findings and statements about how your symptoms
affect you. (Section 416.927 explains how we consider opinions of your
treating source and other medical opinions on the existence and severity
of your symptoms, such as pain.) We will then determine the extent to
which your 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
your symptoms affect your ability to work (or if you are a child, to
function independently, appropriately, and effectively in an age-
appropriate manner).
(b) Need for medically determinable impairment that could reasonably
be expected to produce your symptoms, such as pain. Your symptoms, such
as pain, fatigue, shortness of breath, weakness, or nervousness, will
not be found to affect your 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 abnormalities
and which could reasonably be expected to produce the pain or other
symptoms alleged. At the initial or reconsideration step in the
administrative review process (except in disability hearings), a State
agency medical or psychological consultant (or other medical or
psychological consultant designated by the Secretary) directly
participates in determining whether your medically determinable
impairment(s) could reasonably be expected to produce your alleged
symptoms. In the disability hearing process, a medical or psychological
consultant may provide an advisory assessment to assist a disability
hearing officer in determining whether your impairment(s) could
`reasonably be expected to produce your alleged symptoms. At the
administrative law judge hearing or Appeals Council level, the
administrative law judge or the Appeals Council
[[Page 705]]
may ask for and consider the opinion of a medical advisor concerning
whether your impairment(s) could reasonably be expected to produce your
alleged symptoms. The finding that your impairment(s) could reasonably
be expected to produce your pain or other symptoms does not involve a
determination as to the intensity, persistence, or functionally limiting
effects of your symptoms. We will develop evidence regarding the
possibility of a medically determinable mental impairment when we have
information to suggest that such an impairment exists, and you allege
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 your symptoms, such
as pain, and determining the extent to which your symptoms limit your
capacity for work or for functioning in an age-appropriate manner--(1)
General. When the medical signs or laboratory findings show that you
have a medically determinable impairment(s) that could reasonably be
expected to produce your symptoms, such as pain, we must then evaluate
the intensity and persistence of your symptoms so that we can determine
how your symptoms limit your capacity for work. In evaluating the
intensity and persistence of your symptoms, we consider all of the
available evidence, including your medical history, the medical signs
and laboratory findings, and statements from you, your treating or
examining physician or psychologist, or other persons about how your
symptoms affect you. We also consider the medical opinions of your
treating source and other medical opinions as explained in Sec. 416.927.
Paragraphs (c)(2) through (c)(4) of this section explain further how we
evaluate the intensity and persistence of your symptoms and how we
determine the extent to which your symptoms limit your capacity for work
(or if you are a child, to function independently, appropriately, and
effectively in an age-appropriate manner), when the medical signs or
laboratory findings show that you have a medically determinable
impairment(s) that could reasonably be expected to produce your
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 us in making reasonable conclusions about the
intensity and persistence of your symptoms and the effect those
symptoms, such as pain, may have on your ability to work. We must always
attempt to obtain objective medical evidence and, when it is obtained,
we will consider it in reaching a conclusion as to whether you are
disabled. However, we will not reject your statements about the
intensity and persistence of your pain or other symptoms or about the
effect your symptoms have on your ability to work (or if you are a
child, to function independently, appropriately, and effectively in an
age-appropriate manner) solely because the available objective medical
evidence does not substantiate your statements.
(3) Consideration of other evidence. Since symptoms sometimes
suggest a greater severity of impairment than can be shown by objective
medical evidence alone, we will carefully consider any other information
you may submit about your symptoms. The information that you, your
treating or examining physician or psychologist, or other persons
provide about your pain or other symptoms (e.g., what may precipitate or
aggravate your symptoms, what medications, treatments or other methods
you use to alleviate them, and how the symptoms may affect your pattern
of daily living) is also an important indicator of the intensity and
persistence of your symptoms. Because symptoms, such as pain, are
subjective and difficult to quantify, any symptom-related functional
limitations and restrictions which you, your 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
[[Page 706]]
(c)(4) of this section in reaching a conclusion as to whether you are
disabled. We will consider all of the evidence presented, including
information about your prior work record, your statements about your
symptoms, evidence submitted by your treating, examining or consulting
physician or psychologist, and observations by our employees and other
persons. If you are a child, we will also consider all of the evidence
presented, including evidence submitted by your treating, examining or
consulting physician or psychologist, information from educational
agencies and personnel, statements from parents and other relatives, and
evidence submitted by social welfare agencies, therapists, and other
practitioners. Section 416.927 explains in detail how we consider and
weigh treating source and other medical opinions about the nature and
severity of your impairment(s) and any related symptoms, such as pain.
Factors relevant to your symptoms, such as pain, which we will consider
include:
(i) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain
or other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication you take or have taken to alleviate your pain or other
symptoms;
(v) Treatment, other than medication, you receive or have received
for relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
(4) How we determine the extent to which symptoms, such as pain,
affect your capacity to perform basic work activities (or to function in
an age-appropriate manner). In determining the extent to which your
symptoms, such as pain, affect your capacity to perform basic work
activities (or if you are a child, to function independently,
appropriately, and effectively in an age-appropriate manner), we
consider all of the available evidence described in paragraphs (c)(1)
through (c)(3) of this section. We will consider your statements about
the intensity, persistence, and limiting effects of your symptoms, and
we will evaluate your statements in relation to the objective medical
evidence and other evidence, in reaching a conclusion as to whether you
are disabled. We will consider whether there are any inconsistencies in
the evidence and the extent to which there are any conflicts between
your statements and the rest of the evidence, including your medical
history, the medical signs and laboratory findings, and statements by
your treating or examining physician or psychologist or other persons
about how your symptoms affect you. Your symptoms, including pain, will
be determined to diminish your capacity for basic work activities (or if
you are a child, age-appropriate activities) to the extent that your
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. We follow a set order of steps to determine whether you are
disabled. If you are not doing substantial gainful activity, we consider
your symptoms, such as pain, to evaluate whether you have a severe
physical or mental impairment(s), and at each of the remaining steps in
the process. Sections 416.920 and 416.920a (for adults) and 416.924 (for
children) explain this process in detail. We also consider your
symptoms, such as pain, at the appropriate steps in our review when we
consider whether your disability continues. The procedure we follow in
reviewing whether your disability continues is explained in Sec. 416.994
(for adults) and Sec. 416.994a (for children).
(1) Need to establish a severe medically determinable impairment(s).
Your symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, are considered in making a determination as to whether your
impairment or combination of impairment(s) is severe. (See
Sec. 416.920(c) for adults and Sec. 416.924(d) for children.)
[[Page 707]]
(2) Decision whether the Listing of Impairments is met. Some listed
impairment(s) include symptoms, such as pain, as criteria. Section
416.925(f) explains how we consider your symptoms when your symptoms are
included as criteria for a listed impairment.
(3) Decision whether the Listing of Impairments is equaled. If your
impairment is not the same as a listed impairment, we must determine
whether your impairment(s) is medically equivalent to a listed
impairment. Sections 416.926 and 416.926a explain how we make this
determination. Under Secs. 416.926(b) and 416.926a(b) (1) and (2), we
will consider equivalence based on medical evidence only. In considering
whether your symptoms, signs, and laboratory findings are medically
equal to the symptoms, signs, and laboratory findings of a listed
impairment, we will look to see whether your symptoms, signs, and
laboratory findings are at least equal in severity to the listed
criteria. However, we will not substitute your allegations of pain or
other symptoms for a missing or deficient sign or laboratory finding to
raise the severity of your impairment(s) to that of a listed impairment.
(If you are a child and we cannot find equivalence based on medical
evidence only, we will consider pain and other symptoms under
Sec. 416.926a(b)(3) in determining whether you have an impairment(s)
that results in overall functional limitations that are the same as the
disabling functional consequences of a listed impairment.) Regardless of
whether you are an adult or a child, if the symptoms, signs, and
laboratory findings of your impairment(s) are equivalent in severity to
those of a listed impairment, we will find you disabled. (If you are a
child and your impairment(s) is equivalent in severity to a listed
impairment under the rules in Sec. 416.926a(b)(3), we also will find you
disabled.) If they are not, we will consider the impact of your symptoms
on your residual functional capacity if you are an adult or, if you are
a child, on your ability to function in an age-appropriate manner. (See
paragraph (d)(4) of this section.)
(4) Impact of symptoms (including pain) on residual functional
capacity or individualized functional assessment. If you have a
medically determinable severe physical or mental impairment(s), but your
impairment(s) does not meet or equal an impairment listed in Appendix 1
of subpart P of part 404 of this chapter, we will consider the impact of
your impairment(s) and any related symptoms, including pain, on your
residual functional capacity, or if you are a child, on your ability to
function independently, appropriately, and effectively in an age-
appropriate manner. (See Secs. 416.945 and 416.924a through 416.924d.)
[56 FR 57944, Nov. 14, 1991]
Sec. 416.930 Need to follow prescribed treatment.
(a) What treatment you must follow.
In order to get benefits, you must follow treatment prescribed by
your physician if this treatment can restore your ability to work.
(b) When you do not follow prescribed treatment. If you do not
follow the prescribed treatment without a good reason, we will not find
you disabled or blind or, if you are already receiving benefits, we will
stop paying you benefits.
(c) Acceptable reasons for failure to follow prescribed treatment.
We will consider your physical, mental, educational, and linguistic
limitations (including any lack of facility with the English language)
when determining if you have an acceptable reason for failure to follow
prescribed treatment. The following are examples of a good reason for
not following treatment:
(1) The specific medical treatment is contrary to the established
teaching and tenets of your religion.
(2) The prescribed treatment would be cataract surgery for one eye
when there is an impairment of the other eye resulting in a severe loss
of vision and is not subject to improvement through treatment.
(3) Surgery was previously performed with unsuccessful results and
the same surgery is again being recommended for the same impairment.
(4) The treatment because of its enormity (e.g. open heart surgery),
unusual nature (e.g., organ transplant), or other reason is very risky
for you; or
[[Page 708]]
(5) The treatment involves amputation of an extremity, or a major
part of an extremity.
[45 FR 55621, Aug. 20, 1980, as amended at 59 FR 1636, Jan. 12, 1994]
Presumptive Disability and Blindness
Sec. 416.931 The meaning of presumptive disability or presumptive blindness.
If you are applying for supplemental security income benefits on the
basis of disability or blindness, we may pay you benefits before we make
a formal finding of whether or not you are disabled or blind. In order
to receive these payments, we must find that you are presumptively
disabled or presumptively blind. You must also meet all other
eligibility requirements for supplemental security income benefits. We
may make these payments to you for a period not longer than 6 months.
These payments will not be considered overpayments if we later find that
you are not disabled or blind.
[45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992]
Sec. 416.932 When presumptive payments begin and end.
We may make payments to you on the basis of presumptive disability
or presumptive blindness before we make a formal determination about
your disability or blindness. The payments can not be made for more than
6 months. They start for a period of not more than 6 months beginning in
the month we make the presumptive disability or presumptive blindness
finding. The payments end the earliest of--
(a) The month in which we make a formal finding on whether or not
you are disabled or blind;
(b) The month for which we make the sixth monthly payment based on
presumptive disability or presumptive blindness to you; or
(c) The month in which you no longer meet one of the other
eligibility requirements (e.g., your income exceeds the limits).
[45 FR 55621, Aug. 20, 1980, as amended at 57 FR 53853, Nov. 13, 1992]
Sec. 416.933 How we make a finding of presumptive disability or presumptive blindness.
We may make a finding of presumptive disability or presumptive
blindness if the evidence available at the time we make the presumptive
disability or presumptive blindness finding reflects a high degree of
probability that you are disabled or blind. In the case of readily
observable impairments (e.g., amputation of extremities, total
blindness), we will find that you are disabled or blind for purposes of
this section without medical or other evidence. For other impairments, a
finding of disability or blindness must be based on medical evidence or
other information that, though not sufficient for a formal determination
of disability or blindness, is sufficient for us to find that there is a
high degree of probability that you are disabled or blind. For example,
for claims involving the human immunodeficiency virus (HIV), the Social
Security Field Office may make a finding of presumptive disability if
your medical source provides us with information that confirms that your
disease manifestations meet the severity of listing-level criteria for
HIV. Of course, regardless of the specific HIV manifestations, the State
agency may make a finding of presumptive disability if the medical
evidence or other information reflects a high degree of probability that
you are disabled.
[58 FR 36063, July 2, 1993]
Sec. 416.934 Impairments which may warrant a finding of presumptive disability or presumptive blindness.
We may make findings of presumptive disability and presumptive
blindness in specific impairment categories without obtaining any
medical evidence. These specific impairment categories are--
(a) Amputation of two limbs;
(b) Amputation of a leg at the hip;
(c) Allegation of total deafness;
(d) Allegation of total blindness;
(e) Allegation of bed confinement or immobility without a
wheelchair, walker, or crutches, due to a longstanding condition,
excluding recent accident and recent surgery;
(f) Allegation of a stroke (cerebral vascular accident) more than 3
months
[[Page 709]]
in the past and continued marked difficulty in walking or using a hand
or arm;
(g) Allegation of cerebral palsy, muscular dystrophy or muscle
atrophy and marked difficulty in walking (e.g., use of braces),
speaking, or coordination of the hands or arms.
(h) Allegation of diabetes with amputation of a foot;
(i) Allegation of Down's syndrome (Mongolism); and
(j) Allegation of severe mental deficiency made by another
individual filing on behalf of a claimant who is at least 7 years of
age. For example, a mother filing for benefits for her child states that
the child attends (or attended) a special school, or special classes in
school, because of mental deficiency or is unable to attend any type of
school (or if beyond school age, was unable to attend), and requires
care and supervision of routine daily activities.
[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 5574, Feb. 11, 1985; 53
FR 3741, Feb. 9, 1988; 56 FR 65684, Dec. 18, 1991]
Drug Addiction and Alcoholism
Sec. 416.935 How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(a) General. If we find that you are disabled and have medical
evidence of your drug addiction or alcoholism, we must determine whether
your drug addiction or alcoholism is a contributing factor material to
the determination of disability, unless we find that you are eligible
for benefits because of your age or blindness.
(b) Process we will follow when we have medical evidence of your
drug addiction or alcoholism. (1) The key factor we will examine in
determining whether drug addiction or alcoholism is a contributing
factor material to the determination of disability is whether we would
still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your
current physical and mental limitations, upon which we based our current
disability determination, would remain if you stopped using drugs or
alcohol and then determine whether any or all of your remaining
limitations would be disabling.
(i) If we determine that your remaining limitations would not be
disabling, we will find that your drug addiction or alcoholism is a
contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling,
you are disabled independent of your drug addiction or alcoholism and we
will find that your drug addiction or alcoholism is not a contributing
factor material to the determination of disability.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.936 Treatment required for individuals whose drug addiction or alcoholism is a contributing factor material to the determination of disability.
(a) If we determine that you are disabled and drug addiction or
alcoholism is a contributing factor material to the determination of
disability, you must avail yourself of appropriate treatment for your
drug addiction or alcoholism at an institution or facility approved by
us when this treatment is available and make progress in your treatment.
Generally, you are not expected to pay for this treatment. You will not
be paid benefits for any month after the month we have notified you in
writing that--
(1) You did not comply with the terms, conditions and requirements
of the treatment which has been made available to you; or
(2) You did not avail yourself of the treatment after you had been
notified that it is available to you.
(b) If your benefits are suspended for failure to comply with
treatment requirements, your benefits can be reinstated in accordance
with the rules in Sec. 416.1326.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.937 What we mean by appropriate treatment.
By appropriate treatment, we mean treatment for drug addiction or
alcoholism that serves the needs of the individual in the least
restrictive setting possible consistent with your treatment plan. These
settings range from
[[Page 710]]
outpatient counseling services through a variety of residential
treatment settings including acute detoxification, short-term intensive
residential treatment, long-term therapeutic residential treatment, and
long-term recovery houses. Appropriate treatment is determined with the
involvement of a State licensed or certified addiction professional on
the basis of a detailed assessment of the individual's presenting
symptomatology, psychosocial profile, and other relevant factors. This
assessment may lead to a determination that more than one treatment
modality is appropriate for the individual. The treatment will be
provided or overseen by an approved institution or facility. This
treatment may include (but is not limited to)--
(a) Medical examination and medical management;
(b) Detoxification;
(c) Medication management to include substitution therapy (e.g.,
methadone);
(d) Psychiatric, psychological, psychosocial, vocational, or other
substance abuse counseling in a residential or outpatient treatment
setting; or
(e) Relapse prevention.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.938 What we mean by approved institutions or facilities.
Institutions or facilities that we may approve include--
(a) An institution or facility that furnishes medically recognized
treatment for drug addiction or alcoholism in conformity with applicable
Federal or State laws and regulations;
(b) An institution or facility used by or licensed by an appropriate
State agency which is authorized to refer persons for treatment of drug
addiction or alcoholism;
(c) State licensed or certified care providers;
(d) Programs accredited by the Commission on Accreditation for
Rehabilitation Facilities (CARF) and/or the Joint Commission for the
Accreditation of Healthcare Organizations (JCAHO) for the treatment of
drug addiction or alcoholism;
(e) Medicare or Medicaid certified care providers; or
(f) Nationally recognized self-help drug addiction or alcoholism
recovery programs (e.g., Alcoholics Anonymous or Narcotics Anonymous)
when participation in these programs is specifically prescribed by a
treatment professional at an institution or facility described in
paragraphs (a) through (e) of this section as part of an individual's
treatment plan.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.939 How we consider whether treatment is available.
Our determination about whether treatment is available to you for
your drug addiction or your alcoholism will depend upon--
(a) The capacity of an approved institution or facility to admit you
for appropriate treatment;
(b) The location of the approved institution or facility, or the
place where treatment, services or resources could be provided to you;
(c) The availability and cost of transportation for you to the place
of treatment;
(d) Your general health, including your ability to travel and
capacity to understand and follow the prescribed treatment;
(e) Your particular condition and circumstances; and
(f) The treatment that is prescribed for your drug addiction or
alcoholism.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.940 Evaluating compliance with the treatment requirements.
(a) General. Generally, we will consider information from the
treatment institution or facility to evaluate your compliance with your
treatment plan. The treatment institution or facility will--
(1) Monitor your attendance at and participation in treatment
sessions;
(2) Provide reports of the results of any clinical testing (such as,
hematological or urinalysis studies for individuals with drug addiction
and hematological studies and breath analysis for individuals with
alcoholism) when such tests are likely to yield important information;
(3) Provide observational reports from the treatment professionals
[[Page 711]]
familiar with your individual case (subject to verification and Federal
confidentiality requirements); or
(4) Provide their assessment or views on your noncompliance with
treatment requirements.
(b) Measuring progress. Generally, we will consider information from
the treatment institution or facility to evaluate your progress in
completing your treatment plan. Examples of milestones for measuring
your progress with the treatment which has been prescribed for your drug
addiction or alcoholism may include (but are not limited to)--
(1) Abstinence from drug or alcohol use (initial progress may
include significant reduction in use);
(2) Consistent attendance at and participation in treatment
sessions;
(3) Improved social functioning and levels of gainful activity;
(4) Participation in vocational rehabilitation activities; or
(5) Avoidance of criminal activity.
[60 FR 8151, Feb. 10, 1995]
Sec. 416.941 Establishment and use of referral and monitoring agencies.
We will contract with one or more agencies in each of the States and
the District of Columbia to provide services to individuals whose
disabilities are based on a determination that drug addiction or
alcoholism is a contributing factor material to the determination of
disability (as described in Sec. 416.935) and to submit information to
us which we will use to make decisions about these individuals'
benefits. These agencies will be known as referral and monitoring
agencies. Their duties and responsibilities include (but are not limited
to)--
(a) Identifying appropriate treatment placements for individuals we
refer to them;
(b) Referring these individuals for treatment;
(c) Monitoring the compliance and progress with the appropriate
treatment of these individuals; and
(d) Promptly reporting to us any individual's failure to comply with
treatment requirements as well as failure to achieve progress through
the treatment.
[60 FR 8152, Feb. 10, 1995]
Residual Functional Capacity
Sec. 416.945 Your residual functional capacity.
(a) General. Your impairment(s), and any related symptoms, such as
pain, may cause physical and mental limitations that affect what you can
do in a work setting. Your residual functional capacity is what you can
still do despite your limitations. If you have more than one impairment,
we will consider all of your impairment(s) of which we are aware. We
will consider your 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 your own) of
limitations that go beyond the symptoms, such as pain, that are
important in the diagnosis and treatment of your medical condition.
Observations by your treating or examining physicians or psychologists,
your family, neighbors, friends, or other persons, of your 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 your medical records to enable
us to decide to what extent your impairment(s) keeps you from performing
particular work activities. This assessment of your remaining capacity
for work is not a decision on whether you are disabled, but is used as
the basis for determining the particular types of work you may be able
to do despite your impairment(s). Then, using the guidelines in
Secs. 416.960 through 416.969a, your vocational background is considered
along with your residual functional capacity in arriving at a disability
determination or decision. In deciding whether your disability continues
or ends, the residual functional capacity assessment may also be used to
determine whether any medical improvement you have
[[Page 712]]
experienced is related to your ability to work as discussed in
Sec. 416.994.
(b) Physical abilities. When we assess your physical abilities, we
first assess the nature and extent of your physical limitations and then
determine your 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 your ability to do past
work and other work.
(c) Mental abilities. When we assess your mental abilities, we first
assess the nature and extent of your mental limitations and restrictions
and then determine your 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, coworkers, and work pressures in a work
setting, may reduce your 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 you have this
type of impairment(s), we consider any resulting limitations and
restrictions which may reduce your ability to do past work and other
work in deciding your residual functional capacity.
(e) Total limiting effects. When you have a severe impairment(s),
but your symptoms, signs, and laboratory findings do not meet or equal
those of a listed impairment in appendix 1 of subpart P of part 404 of
this chapter, we will consider the limiting effects of all your
impairment(s), even those that are not severe, in determining your
residual functional capacity. 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 your impairment(s) and any related symptoms,
we will consider all of the medical and nonmedical evidence, including
the information described in Sec. 416.929(c).
[56 FR 57947, Nov. 14, 1991]
Sec. 416.946 Responsibility for assessing and determining residual functional capacity.
The State agency staff medical or psychological consultants or other
medical or psychological consultants designated by the Secretary are
responsible for ensuring that the State agency makes a decision about
your residual functional capacity. In cases where the State agency makes
the disability determination, a State agency staff medical or
psychological consultant must assess residual functional capacity where
it is required. This assessment is based on all of the evidence we have,
including any statements regarding what you can still do that have been
provided by treating or examining physicians, consultative physicians,
or any other medical or psychological consultant designated by the
Secretary. See Sec. 416.945. For cases in the disability hearing
process, the responsibility for deciding your residual functional
capacity rests with either the disability hearing officer or, if the
disability hearing officer's reconsidered determination is changed under
Sec. 416.918, with the Director of the Office of Disability Hearings or
his or her delegate. For cases at the Administrative Law Judge hearing
or Appeals Council level, the responsibility for deciding your residual
functional capacity rests with the Administrative Law Judge or Appeals
Council.
[56 FR 36970, Aug. 1, 1991]
[[Page 713]]
Vocational Considerations
Sec. 416.960 When your vocational background will be considered.
(a) General. If you are age 18 or older and applying for benefits
based on disability and we cannot decide whether you are disabled on
medical evidence alone, we will consider your residual functional
capacity together with your vocational background.
(b) Past relevant work. We will first compare your residual
functional capacity with the physical and mental demands of the kind of
work you have done in the past. If you still have the residual
functional capacity to do your past relevant work, we will find that you
can still do your past work, and we will determine that you are not
disabled, without considering your vocational factors of age, education,
and work experience.
(c) Other work. If we find that you can no longer do the kind of
work you have done in the past, we will then consider your residual
functional capacity together with your vocational factors of age,
education, and work experience to determine whether you can do other
work. By other work we mean jobs that exist in significant numbers in
the national economy.
[55 FR 11011, Mar. 26, 1990]
Sec. 416.961 Your ability to do work depends upon your residual functional capacity.
If you can do your previous work (your usual work or other
applicable past work), we will determine that you are not disabled.
However, if your residual functional capacity is not enough to enable
you to do any of your previous work, we must still decide if you can do
any other work. To do this, we consider your residual functional
capacity, and your age, education, and work experience. Any work (jobs)
that you can do must exist in significant numbers in the national
economy (either in the region where you live or in several regions of
the country). Sections 416.963 through 416.965 explain how we evaluate
your age, education, and work experience when we are deciding whether or
not you are able to do other work.
Sec. 416.962 If you have done only arduous unskilled physical labor.
If you have only a marginal education and work experience of 35
years or more during which you did arduous unskilled physical labor, and
you are not working and are no longer able to do this kind of work
because of a severe impairment(s), we will consider you unable to do
lighter work, and therefore, disabled. However, if you are working or
have worked despite your impairment(s) (except where the work is
sporadic or is not medically advisable), we will review all the facts in
your case, and we may find that you are not disabled. In addition, we
will consider that you are not disabled if the evidence shows that you
have training or past work experience which enables you to do
substantial gainful activity in another occupation with your impairment,
either on a full-time or a reasonably regular part-time basis.
Example: B is a 60-year-old miner with a fourth grade education who
has a life-long history of arduous physical labor. B says that he is
disabled because of arthritis of the spine, hips, and knees, and other
impairments. Medical evidence shows a combination of impairments and
establishes that these impairments prevent B from performing his usual
work or any other type of arduous physical labor. His vocational
background does not show that he has skills or capabilities needed to do
lighter work which would be readily transferable to another work
setting. Under these circumstances, we will find that B is disabled.
Sec. 416.963 Your age as a vocational factor.
(a) General. Age refers to how old you are (your chronological age)
and the extent to which your age affects your ability to adapt to a new
work situation and to do work in competition with others. However, we do
not determine disability on your age alone. We must also consider your
residual functional capacity, education, and work experience. If you are
unemployed because of your age and you can still do a significant number
of jobs which exist in the national economy, we will find that you are
not disabled. We explain age as a vocational factor in appendix 2 of
subpart P of part 404 of this chapter. However, we will not apply
[[Page 714]]
these age categories mechanically in a borderline situation.
(b) Younger person. If you are under age 50, we generally do not
consider that your age will seriously affect your ability to adapt to a
new work situation. In some circumstances, however, we consider age 45 a
handicap in adapting to a new work setting (see Rule 201.17 in appendix
2 of subpart P of part 404 of this chapter).
(c) Person approaching advanced age. If you are closely approaching
advanced age (50-54), we will consider that your age, along with a
severe impairment and limited work experience, may seriously affect your
ability to adjust to a significant number of jobs in the national
economy.
(d) Person of advanced age. We consider that advanced age (55 or
over) is the point where age significantly affects a person's ability to
do substantial gainful activity. If you are severely impaired and of
advanced age and you cannot do medium work (see Sec. 416.967(c)), you
may not be able to work unless you have skills that can be used in
(transferred to) less demanding jobs which exist in significant numbers
in the national economy. If you are close to retirement age (60-64) and
have a severe impairment, we will not consider you able to adjust to
sedentary or light work unless you have skills which are highly
marketable.
(e) Information about your age. We will usually not ask you to prove
your age. However, if we need to know your exact age to determine
whether you get disability benefits, we will ask you for evidence of
your age.
Sec. 416.964 Your education as a vocational factor.
(a) General. Education is primarily used to mean formal schooling or
other training which contributes to your ability to meet vocational
requirements, for example, reasoning ability, communication skills, and
arithmetical ability. However, if you do not have formal schooling, this
does not necessarily mean that you are uneducated or lack these
abilities. Past work experience and the kinds of responsibilities you
had when you were working may show that you have intellectual abilities,
although you may have little formal education. Your daily activities,
hobbies, or the results of testing may also show that you have
significant intellectual ability that can be used to work.
(b) How we evaluate your education. The importance of your
educational background may depend upon how much time has passed between
the completion of your formal education and the beginning of your
physical or mental impairment(s) and by what you have done with your
education in a work or other setting. Formal education that you
completed many years before your impairment began, or unused skills and
knowledge that were a part of your formal education, may no longer be
useful or meaningful in terms of your ability to work. Therefore, the
numerical grade level that you completed in school may not represent
your actual educational abilities. These may be higher or lower.
However, if there is no other evidence to contradict it, we will use
your numerical grade level to determine your educational abilities. The
term education also includes how well you are able to communicate in
English since this ability is often acquired or improved by education.
In evaluating your educational level, we use the following categories:
(1) Illiteracy. Illiteracy means the inability to read or write. We
consider someone illiterate if the person cannot read or write a simple
message such as instructions or inventory lists even though the person
can sign his or her name. Generally, an illiterate person has had little
or no formal schooling.
(2) Marginal education. Marginal education means ability in
reasoning, arithmetic, and language skills which are needed to do
simple, unskilled types of jobs. We generally consider that formal
schooling at a 6th grade level or less is a marginal education.
(3) Limited education. Limited education means ability in reasoning,
arithmetic, and language skills, but not enough to allow a person with
these educational qualifications to do most of the more complex job
duties needed in semi-skilled or skilled jobs. We generally consider
that a 7th grade through the 11th grade level of formal education is a
limited education.
[[Page 715]]
(4) High school education and above. High school education and above
means abilities in reasoning, arithmetic, and language skills acquired
through formal schooling at a 12th grade level or above. We generally
consider that someone with these educational abilities can do semi-
skilled through skilled work.
(5) Inability to communicate in English. Since the ability to speak,
read and understand English is generally learned or increased at school,
we may consider this an educational factor. Because English is the
dominant language of the country, it may be difficult for someone who
doesn't speak and understand English to do a job, regardless of the
amount of education the person may have in another language. Therefore,
we consider a person's ability to communicate in English when we
evaluate what work, if any, he or she can do. It generally doesn't
matter what other language a person may be fluent in.
(6) Information about your education. We will ask you how long you
attended school and whether you are able to speak, understand, read and
write in English and do at least simple calculations in arithmetic. We
will also consider other information about how much formal or informal
education you may have had through your previous work, community
projects, hobbies, and any other activities which might help you to
work.
Sec. 416.965 Your work experience as a vocational factor.
(a) General. Work experience means skills and abilities you have
acquired through work you have done which show the type of work you may
be expected to do. Work you have already been able to do shows the kind
of work that you may be expected to do. We consider that your work
experience applies when it was done within the last 15 years, lasted
long enough for you to learn to do it, and was substantial gainful
activity. We do not usually consider that work you did 15 years or more
before the time we are deciding whether you are disabled applies. A
gradual change occurs in most jobs so that after 15 years it is no
longer realistic to expect that skills and abilities acquired in a job
done then continue to apply. The 15-year guide is intended to insure
that remote work experience is not currently applied. If you have no
work experience or worked only off-and-on or for brief periods of time
during the 15-year period, we generally consider that these do not
apply. If you have acquired skills through your past work, we consider
you to have these work skills unless you cannot use them in other
skilled or semi-skilled work that you can now do. If you cannot use your
skills in other skilled or semi-skilled work, we will consider your work
background the same as unskilled. However, even if you have no work
experience, we may consider that you are able to do unskilled work
because it requires little or no judgment and can be learned in a short
period of time.
(b) Information about your work. Under certain circumstances, we
will ask you about the work you have done in the past. If you cannot
give us all of the information we need, we will try, with your
permission, to get it from your employer or other person who knows about
your work, such as a member of your family or a co-worker. When we need
to consider your work experience to decide whether you are able to do
work that is different from what you have done in the past, we will ask
you to tell us about all of the jobs you have had in the last 15 years.
You must tell us the dates you worked, all of the duties you did, and
any tools, machinery, and equipment you used. We will need to know about
the amount of walking, standing, sitting, lifting and carrying you did
during the work day, as well as any other physical or mental duties of
your job. If all of your work in the past 15 years has been arduous and
unskilled, and you have very little education, we will ask you to tell
us about all of your work from the time you first began working. This
information could help you to get disability benefits.
Sec. 416.966 Work which exists in the national economy.
(a) General. We consider that work exists in the national economy
when it exists in significant numbers either in the region where you
live or in several
[[Page 716]]
other regions of the country. It does not matter whether--
(1) Work exists in the immediate area in which you live;
(2) A specific job vacancy exists for you; or
(3) You would be hired if you applied for work.
(b) How we determine the existence of work. Work exists in the
national economy when there is a significant number of jobs (in one or
more occupations) having requirements which you are able to meet with
your physical or mental abilities and vocational qualifications.
Isolated jobs that exist only in very limited numbers in relatively few
locations outside of the region where you live are not considered work
which exists in the national economy. We will not deny you disability
benefits on the basis of the existence of these kinds of jobs. If work
that you can do does not exist in the national economy, we will
determine that you are disabled. However, if work that you can do does
exist in the national economy, we will determine that you are not
disabled.
(c) Inability to obtain work. We will determine that you are not
disabled if your residual functional capacity and vocational abilities
make it possible for you to do work which exists in the national
economy, but you remain unemployed because of--
(1) Your inability to get work;
(2) Lack of work in your local area;
(3) The hiring practices of employers;
(4) Technological changes in the industry in which you have worked;
(5) Cyclical economic conditions;
(6) No job openings for you;
(7) You would not actually be hired to do work you could otherwise
do, or;
(8) You do not wish to do a particular type of work.
(d) Administrative notice of job data. When we determine that
unskilled, sedentary, light, and medium jobs exist in the national
economy (in significant numbers either in the region where you live or
in several regions of the country), we will take administrative notice
of reliable job information available from various governmental and
other publications. For example, we will take notice of--
(1) Dictionary of Occupational Titles, published by the Department
of Labor;
(2) County Business Patterns, published by the Bureau of the
Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses prepared for the Social Security
Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of
Labor Statistics.
(e) Use of vocational experts and other specialists. If the issue
in determining whether you are disabled is whether your work skills can
be used in other work and the specific occupations in which they can be
used, or there is a similarly complex issue, we may use the services of
a vocational expert or other specialist. We will decide whether to use a
vocational expert or other specialist.
Sec. 416.967 Physical exertion requirements.
To determine the physical exertion requirments of work in the
national economy, we classify jobs as sedentary, light, medium, heavy,
and very heavy. These terms have the same meaning as they have in the
Dictionary of Occupational Titles, published by the Department of Labor.
In making disability determinations under this subpart, we use the
following definitions:
(a) Sedentary work. Sedentary work involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other
sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to 10
pounds. Even though the weight lifted may be very little, a job is in
this category when it requires a good deal of walking or standing, or
when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To
[[Page 717]]
be considered capable of performing a full or wide range of light work,
you must have the ability to do substantially all of these activities.
If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as
loss of fine dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing
up to 25 pounds. If someone can do medium work, we determine that he or
she can also do sedentary and light work.
(d) Heavy work. Heavy work involves lifting no more than 100 pounds
at a time with frequent lifting or carrying of objects weighing up to 50
pounds. If someone can do heavy work, we determine that he or she can
also do medium, light, and sedentary work.
(e) Very heavy work. Very heavy work involves lifting objects
weighing more than 100 pounds at a time with frequent lifting or
carrying of objects weighing 50 pounds or more. If someone can do very
heavy work, we determine that he or she can also do heavy, medium,
light, and sedentary work.
Sec. 416.968 Skill requirements.
In order to evaluate your skills and to help determine the existence
in the national economy of work you are able to do, occupations are
classified as unskilled, semi-skilled, and skilled. In classifying these
occupations, we use materials published by the Department of Labor. When
we make disability determinations under this subpart, we use the
following definitions:
(a) Unskilled work. Unskilled work is work which needs little or no
judgment to do simple duties that can be learned on the job in a short
period of time. The job may or may not require considerable strength.
For example, we consider jobs unskilled if the primary work duties are
handling, feeding and offbearing (that is, placing or removing materials
from machines which are automatic or operated by others), or machine
tending, and a person can usually learn to do the job in 30 days, and
little specific vocational preparation and judgment are needed. A person
does not gain work skills by doing unskilled jobs.
(b) Semi-skilled work. Semi-skilled work is work which needs some
skills but does not require doing the more complex work duties. Semi-
skilled jobs may require alertness and close attention to watching
machine processes; or inspecting, testing or otherwise looking for
irregularities; or tending or guarding equipment, property, materials,
or persons against loss, damage or injury; or other types of activities
which are similarly less complex than skilled work, but more complex
than unskilled work. A job may be classified as semi-skilled where
coordination and dexterity are necessary, as when hands or feet must be
moved quickly to do repetitive tasks.
(c) Skilled work. Skilled work requires qualifications in which a
person uses judgment to determine the machine and manual operations to
be performed in order to obtain the proper form, quality, or quantity of
material to be produced. Skilled work may require laying out work,
estimating quality, determining the suitability and needed quantities of
materials, making precise measurements, reading blueprints or other
specifications, or making necessary computations or mechanical
adjustments to control or regulate the work. Other skilled jobs may
require dealing with people, facts, or figures or abstract ideas at a
high level of complexity.
(d) Skills that can be used in other work (transferability)--(1)
What we mean by transferable skills. We consider you to have skills that
can be used in other jobs, when the skilled or semi-skilled work
activities you did in past work can be used to meet the requirements of
skilled or semi-skilled work activities of other jobs or kinds of work.
This depends largely on the similarity of occupationally significant
work activities among different jobs.
(2) How we determine skills that can be transferred to other jobs.
Transferability is most probable and meaningful among jobs in which--
(i) The same or a lesser degree of skill is required;
(ii) The same or similar tools and machines are used; and
[[Page 718]]
(iii) The same or similar raw materials, products, processes, or
services are involved.
(3) Degrees of transferability. There are degrees of transferability
of skills ranging from very close similarities to remote and incidental
similarities among jobs. A complete similarity of all three factors is
not necessary for transferability. However, when skills are so
specialized or have been acquired in such an isolated vocational setting
(like many jobs in mining, agriculture, or fishing) that they are not
readily usable in other industries, jobs, and work settings, we consider
that they are not transferable.
Sec. 416.969 Listing of Medical-Vocational Guidelines in Appendix 2 of Subpart P of Part 404 of this chapter.
The Dictionary of Occupational Titles includes information about
jobs (classified by their exertional and skill requirements) that exist
in the national economy. Appendix 2 provides rules using this data
reflecting major functional and vocational patterns. We apply these
rules in cases where a person is not doing substantial gainful activity
and is prevented by a severe medically determinable impairment from
doing vocationally relevant past work. The rules in appendix 2 do not
cover all possible variations of factors. Also, as we explain in
Sec. 200.00 of appendix 2, we do not apply these rules if one of the
findings of fact about the person's vocational factors and residual
functional capacity is not the same as the corresponding criterion of a
rule. In these instances, we give full consideration to all relevant
facts in accordance with the definitions and discussions under
vocational considerations. However, if the findings of fact made about
all factors are the same as the rule, we use that rule to decide whether
a person is disabled.
Sec. 416.969a Exertional and nonexertional limitations.
(a) General. Your impairment(s) and related symptoms, such as pain,
may cause limitations of function or restrictions which limit your
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 your 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 416.967 and 416.969 explain how we use 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 your 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 416.920(f)
and 416.994(b)(5)(viii) explain that if you can no longer do your past
relevant work because of a severe medically determinable impairment(s),
we must determine whether your impairment(s), when considered along with
your age, education, and work experience, prevents you from doing any
other work which exists in the national economy in order to decide
whether you are disabled (Sec. 416.920(f)) or continue to be disabled
(Sec. 416.994(b)(5)(viii)). Paragraphs (b), (c), and (d) of this section
explain how we apply the medical-vocational guidelines in appendix 2 of
subpart P of part 404 of this chapter in making this determination,
depending on whether the limitations or restrictions imposed by your
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 your impairment(s) and related symptoms, such as pain, affect
only your ability to meet the strength demands of jobs (sitting,
standing, walking, lifting, carrying, pushing, and pulling), we consider
that you have only exertional limitations. When your impairment(s) and
related symptoms only impose
[[Page 719]]
exertional limitations and your specific vocational profile is listed in
a rule contained in Appendix 2, we will directly apply that rule to
decide whether you are disabled.
(c) Nonexertional limitations. (1) When the limitations and
restrictions imposed by your impairment(s) and related symptoms, such as
pain, affect only your ability to meet the demands of jobs other than
the strength demands, we consider that you have only nonexertional
limitations or restrictions. Some examples of nonexertional limitations
or restrictions include the following:
(i) You have difficulty functioning because you are nervous,
anxious, or depressed;
(ii) You have difficulty maintaining attention or concentrating;
(iii) You have difficulty understanding or remembering detailed
instructions;
(iv) You have difficulty in seeing or hearing;
(v) You have difficulty tolerating some physical feature(s) of
certain work settings, e.g., you cannot tolerate dust or fumes; or
(vi) You have difficulty performing the manipulative or postural
functions of some work such as reaching, handling, stooping, climbing,
crawling, or crouching.
(2) If your impairment(s) and related symptoms, such as pain, only
affect your 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.
(d) Combined exertional and nonexertional limitations. When the
limitations and restrictions imposed by your impairment(s) and related
symptoms, such as pain, affect your ability to meet both the strength
and demands of jobs other than the strength demands, we consider that
you have a combination of exertional and nonexertional limitations or
restrictions. If your impairment(s) and related symptoms, such as pain,
affect your ability to meet both the strength and demands of jobs other
than the strength demands, we will not directly apply the rules in
appendix 2 unless there is a rule that directs a conclusion that you are
disabled based upon your strength limitations; otherwise the rules
provide a framework to guide our decision.
[56 FR 57947, Nov. 14, 1991]
Substantial Gainful Activity
Sec. 416.971 General.
The work that you have done during any period in which you believe
you are disabled may show that you are able to do work at the
substantial gainful activity level. If you are able to engage in
substantial gainful activity, we will find that you are not disabled.
(We explain the rules for persons who are statutorily blind in
Sec. 416.984.) Even if the work you have done was not substantial
gainful activity, it may show that you are able to do more work than you
actually did. We will consider all of the medical and vocational
evidence in your file to decide whether or not you have the ability to
engage in substantial gainful activity.
Sec. 416.972 What we mean by substantial gainful activity.
Substantial gainful activity is work activity that is both
substantial and gainful:
(a) Substantial work activity. Substantial work activity is work
activity that involves doing significant physical or mental activities.
Your work may be substantial even if it is done on a part-time basis or
if you do less, get paid less, or have less responsibility than when you
worked before.
(b) Gainful work activity. Gainful work activity is work activity
that you do for pay or profit. Work activity is gainful if it is the
kind of work usually done for pay or profit, whether or not a profit is
realized.
(c) Some other activities. Generally, we do not consider activities
like taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs to be substantial
gainful activity.
[[Page 720]]
Sec. 416.973 General information about work activity.
(a) The nature of your work. If your duties require use of your
experience, skills, supervision and responsibilities, or contribute
substantially to the operation of a business, this tends to show that
you have the ability to work at the substantial gainful activity level.
(b) How well you perform. We consider how well you do your work when
we determine whether or not you are doing substantial gainful activity.
If you do your work satisfactorily, this may show that you are working
at the substantial gainful activity level. If you are unable, because of
your impairments, to do ordinary or simple tasks satisfactorily without
more supervision or assistance than is usually given other people doing
similar work, this may show that you are not working at the substantial
gainful activity level. If you are doing work that involves minimal
duties that make little or no demands on you and that are of little or
no use to your employer, or to the operation of a business if you are
self-employed, this does not show that you are working at the
substantial gainful activity level.
(c) If your work is done under special conditions. Even though the
work you are doing takes into account your impairment, such as work done
in a sheltered workshop or as a patient in a hospital, it may still show
that you have the necessary skills and ability to work at the
substantial gainful activity level.
(d) If you are self-employed. Supervisory, managerial, advisory or
other significant personal services that you perform as a self-employed
individual may show that you are able to do substantial gainful
activity.
(e) Time spent in work. While the time you spend in work is
important, we will not decide whether or not you are doing substantial
gainful activity only on that basis. We will still evaluate the work to
decide whether it is substantial and gainful regardless of whether you
spend more time or less time at the job than workers who are not
impaired and who are doing similar work as a regular means of their
livelihood.
(f) Possible effect on income and resource levels. Your earnings,
including earnings from work done during a trial work period, will be
considered under the income and resource provisions in subparts K and L
of this part to determine whether or not your earnings cause you to
exceed the limitations on income or resources under the Supplemental
Security Income Program.
Sec. 416.974 Evaluation guides if you are an employee.
(a) General. We use several guides to decide whether the work you
have done shows that you are able to do substantial gainful activity.
(1) Your earnings may show you have done substantial gainful
activity. The amount of your earnings from work you have done may show
that you engaged in substantial gainful activity. Generally, if you
worked for substantial earnings, this will show that you are able to do
substantial gainful activity. On the other hand, the fact that your
earnings are not substantial will not necessarily show that you are not
able to do substantial gainful activity. We will generally consider work
that you are forced to stop after a short time because of your
impairment as an unsuccessful work attempt and your earnings from that
work will not show that you are able to do substantial gainful activity.
(2) We consider only the amounts you earn. We do not consider any
income not directly related to your productivity when we decide whether
you have done substantial gainful activity. If your earnings are being
subsidized, the amount of the subsidy is not counted when we determine
whether or not your work is substantial gainful activity. Thus, where
work is done under special conditions, we only consider the part of your
pay which you actually ``earn''. For example, where a handicapped person
does simple tasks under close and continuous supervision, we would not
determine that the person worked at the substantial gainful activity
level only on the basis of the amount of pay. An employer may set a
specific amount as a subsidy after figuring the reasonable value of the
employee's services. If your work is subsidized and your employer does
not set the amount of the subsidy or does not adequately explain how the
subsidy
[[Page 721]]
was figured, we will investigate to see how much your work is worth.
(3) If you are working in a sheltered or special environment. If you
are working in a sheltered workshop, you may or may not be earning the
amounts you are being paid. The fact that the sheltered workshop or
similar facility is operating at a loss or is receiving some charitable
contributions or governmental aid does not establish that you are not
earning all you are being paid. Since persons in military service being
treated for severe impairments usually continue to receive full pay, we
evaluate work activity in a therapy program or while on limited duty by
comparing it with similar work in the civilian work force or on the
basis of reasonable worth of the work, rather than on the actual amount
of the earnings.
(b) Earnings guidelines. (1) General. If you are an employee, we
first consider the criteria in paragraph (a) of this section, and
Sec. 416.976, and then the guides in paragraphs (b)(2), (3), (4), (5),
and (6) of this section.
(2) Earnings that will ordinarily show that you have engaged in
substantial gainful activity. We will consider that your earnings from
your work activities as an employee show that you have engaged in
substantial gainful activity if--
(i) Your earnings averaged more than $200 a month in calendar years
prior to 1976;
(ii) Your earnings averaged more than $230 a month in calendar year
1976;
(iii) Your earnings averaged more than $240 a month in calendar year
1977;
(iv) Your earnings averaged more than $260 a month in calendar year
1978;
(v) Your earnings averaged more than $280 a month in calendar year
1979;
(vi) Your earnings averaged more than $300 a month in calendar years
after 1979 and before 1990; or
(vii) Your earnings averaged more than $500 a month in calendar
years after 1989.
(3) Earnings that will ordinarily show that you have not engaged in
substantial gainful activity. We will generally consider that the
earnings from your work as an employee will show that you have not
engaged in substantial gainful activity if--
(i) Your earnings averaged less than $130 a month in calendar years
before 1976;
(ii) Your earnings averaged less than $150 a month in calendar year
1976;
(iii) Your earnings averaged less than $160 a month in calendar year
1977;
(iv) Your earnings averaged less than $170 a month in calendar year
1978;
(v) Your earnings averaged less than $180 a month in calendar year
1979;
(vi) Your earnings averaged less than $190 a month in calendar years
after 1979 and before 1990; or
(vii) Your earnings averaged less than $300 a month in calendar
years after 1989.
(4) If you work in a sheltered workshop. If you are working in a
sheltered workshop or a comparable facility especially set up for
severely impaired persons, your earnings and activities will ordinarily
establish that you have not done substantial gainful activity if--
(i) Your average earnings are not greater than $200 a month in
calendar years prior to 1976;
(ii) Your average earnings are not greater than $230 a month in
calendar year 1976;
(iii) Your average earnings are not greater than $240 a month in
calendar year 1977;
(iv) Your average earnings are not greater than $260 a month in
calendar year 1978;
(v) Your average earnings are not greater than $280 a month in
calendar year 1979;
(vi) Your average earnings are not greater than $300 a month in
calendar years after 1979 and before 1990; or
(vii) Your average earnings are not greater than $500 a month in
calendar years after 1989.
(5) If there is evidence showing that you may have done substantial
gainful activity. If there is evidence showing that you may have done
substantial gainful activity, we will apply the critera in paragraph
(b)(6) of this section regarding comparability and value of services.
(6) Earnings that are not high or low enough to show whether you
engaged in substantial gainful activity. If your
[[Page 722]]
earnings, on the average, are between the amounts shown in paragraphs
(b)(2) and (3) of this section, we will generally consider other
information in addition to your earnings, such as whether--
(i) Your work is comparable to that of unimpaired people in your
community who are doing the same or similar occupations as their means
of livelihood, taking into account the time, energy, skill, and
responsibility involved in the work, or
(ii) Your work, although significantly less than that done by
unimpaired people, is clearly worth the amounts shown in paragraph
(b)(2) of this section, according to pay scales in your community.
[46 FR 4871, Jan. 19, 1981, as amended at 48 FR 21939, May 16, 1983; 49
FR 22274, May 29, 1984; 54 FR 53605, Dec. 29, 1989]
Sec. 416.975 Evaluation guides if you are self-employed.
(a) If you are a self employed person. We will consider your
activities and their value to your business to decide whether you have
engaged in substantial gainful activity if you are self-employed. We
will not consider your income alone since the amount of income you
actually receive may depend upon a number of different factors like
capital investment, profit sharing agreements, etc. We will generally
consider work that you are forced to stop after a short time because of
your impairment as an unsuccessful work attempt and your income from
that work will not show that you are able to do substantial gainful
activity. We will evaluate your work activity on the value to the
business of your services regardless of whether you receive an immediate
income for your services. We consider that you have engaged in
substantial gainful activity if--
(1) Your work activity, in terms of factors such as hours, skills,
energy output, efficiency, duties, and responsibilities, is comparable
to that of unimpaired individuals in your community who are in the same
or similar businesses as their means of livelihood;
(2) Your work activity, although not comparable to that of
unimpaired individuals, is clearly worth the amount shown in
Sec. 416.974(b)(2) when considered in terms of its value to the
business, or when compared to the salary that an owner would pay to an
employee to do the work you are doing; or
(3) You render services that are significant to the operation of the
business and receive a substantial income from the business.
(b) What we mean by significant services. (1) If you are not a farm
landlord and you operate a business entirely by yourself, any services
that you render are significant to the business. If your business
involves the services of more than one person, we will consider you to
be rendering significant services if you contribute more than half the
total time required for the management of the business, or you render
management services for more than 45 hours a month regardless of the
total management time required by the business.
(2) If you are a farm landlord, that is, you rent farm land to
another, we will consider you to be rendering significant services if
you materially participate in the production or the management of the
production of the things raised on the rented farm. (See Sec. 404.1082
of this chapter for an explanation of ``material participation''.) If
you were given social security earnings credits because you materially
participated in the activities of the farm and you continue these same
activities, we will consider you to be rendering significant services.
(c) What we mean by substantial income. After your normal business
expenses are deducted from your gross income to determine net income, we
will deduct the reasonable value of any unpaid help, any soil bank
payments that were included as farm income, and impairment-related work
expenses described in Sec. 416.976 that have not been deducted in
determining your net earnings from self-employment. We will consider the
resulting amount of income from the business to be substantial if--
(1) It averages more than the amounts described in
Sec. 416.974(b)(2); or
(2) It averages less than the amounts described in
Sec. 416.974(b)(2) but the livelihood which you get from the business is
either comparable to what it was before you became severely impaired or
[[Page 723]]
is comparable to that of unimpaired self-employed persons in your
community who are in the same or similar business as their means of
livelihood.
[46 FR 4872, Jan. 19, 1981, as amended at 48 FR 21940, May 16, 1983; 49
FR 22274, May 29, 1984]
Sec. 416.976 Impairment-related work expenses.
(a) General. When we figure your earnings in deciding if you have
done substantial gainful activity, and in determining your countable
earned income (see Sec. 416.1112(c)(5)), we will subtract the reasonable
costs to you of certain items and services which, because of your
impairment(s), you need and use to enable you to work. The costs are
deductible even though you also need or use the items and services to
carry out daily living functions unrelated to your work. Paragraph (b)
of this section explains the conditions for deducting work expenses.
Paragraph (c) of this section describes the expenses we will deduct.
Paragraph (d) of this section explains when expenses may be deducted.
Paragraph (e) of this section describes how expenses may be allocated.
Paragraph (f) of this section explains the limitations on deducting
expenses. Paragraph (g) of this section explains our verification
procedures.
(b) Conditions for deducting impairment-related work expenses. We
will deduct impairment-related work expenses if--
(1) You are otherwise disabled as defined in Secs. 416.905 through
416.907;
(2) The severity of your impairment(s) requires you to purchase (or
rent) certain items and services in order to work;
(3) You pay the cost of the item or service. No deduction will be
allowed to the extent that payment has been or will be made by another
source. No deduction will be allowed to the extent that you have been,
could be, or will be reimbursed for such cost by any other source (such
as through a private insurance plan, Medicare or Medicaid, or other plan
or agency). For example, if you purchase crutches for $80 but you were,
could be, or will be reimbursed $64 by some agency, plan, or program, we
will deduct only $16;
(4) You pay for the item or service in accordance with paragraph (d)
of this section; and
(5) Your payment is in cash (including checks or other forms of
money). Payment in kind is not deductible.
(c) What expenses may be deducted--(1) Payments for attendant care
services. (i) If because of your impairment(s) you need assistance in
traveling to and from work, or while at work you need assistance with
personal functions (e.g., eating, toileting) or with work-related
functions (e.g., reading, communicating), the payments you make for
those services may be deducted.
(ii) If because of your impairment(s) you need assistance with
personal functions (e.g., dressing, administering medications) at home
in preparation for going to and assistance in returning from work, the
payments you make for those services may be deducted.
(iii)(A) We will deduct payments you make to a family member for
attendant care services only if such person, in order to perform the
services, suffers an economic loss by terminating his or her employment
or by reducing the number of hours he or she worked.
(B) We consider a family member to be anyone who is related to you
by blood, marriage or adoption, whether or not that person lives with
you.
(iv) If only part of your payment to a person is for services that
come under the provisions of paragraph (c)(1) of this section, we will
only deduct that part of the payment which is attributable to those
services. For example, an attendant gets you ready for work and helps
you in returning from work, which takes about 2 hours a day. The rest of
his or her 8 hour day is spent cleaning your house and doing your
laundry, etc. We would only deduct one-fourth of the attendant's daily
wages as an impairment-related work expense.
(2) Payments for medical devices. If your impairment(s) requires
that you utilize medical devices in order to work, the payments you make
for those devices may be deducted. As used in this subparagraph, medical
devices include durable medical equipment which can withstand repeated
use, is customarily used for medical purposes, and is generally not
useful to a person
[[Page 724]]
in the absence of an illness or injury. Examples of durable medical
equipment are wheelchairs, hemodialysis equipment, canes, crutches,
inhalators and pacemakers.
(3) Payments for prosthetic devices. If your impairment(s) requires
that you utilize a prosthetic device in order to work, the payments you
make for that device may be deducted. A prosthetic device is that which
replaces an internal body organ or external body part. Examples of
prosthetic devices are artificial replacements of arms, legs and other
parts of the body.
(4) Payments for equipment--(i) Work-related equipment. If your
impairment(s) requires that you utilize special equipment in order to do
your job, the payments you make for that equipment may be deducted.
Examples of work-related equipment are one-hand typewriters,
telecommunication devices for the deaf and tools specifically designed
to accommodate a person's impairment(s).
(ii) Residential modifications. If your impairment(s) requires that
you make modifications to your residence, the location of your place of
work will determine if the cost of these modifications will be deducted.
If you are employed away from home, only the cost of changes made
outside of your home to permit you to get to your means of
transportation (e.g., the installation of an exterior ramp for a wheel-
chair confined person or special exterior railings or pathways for
someone who requires crutches) will be deducted. Costs relating to
modifications of the inside of your home will not be deducted. If you
work at home, the costs of modifying the inside of your home in order to
create a working space to accommodate your impairment(s) will be
deducted to the extent that the changes pertain specifically to the
space in which you work. Examples of such changes are the enlargement of
a doorway leading into the work space or modification of the work space
to accommodate problems in dexterity. However, if you are self-employed
at home, any cost deducted as a business expense cannot be deducted as
an impairment-related work expense.
(iii) Nonmedical appliances and equipment. Expenses for appliances
and equipment which you do not ordinarily use for medical purposes are
generally not deductible. Examples of these items are portable room
heaters, air conditioners, humidifiers, dehumidifiers, and electric air
cleaners. However, expenses for such items may be deductible when
unusual circumstances clearly establish an impairment-related and
medically verified need for such an item because it is essential for the
control of your disabling condition, thus enabling you to work. To be
considered essential, the item must be of such a nature that if it were
not available to you there would be an immediate adverse impact on your
ability to function in your work activity. In this situation, the
expense is deductible whether the item is used at home or in the working
place. An example would be the need for an electric air cleaner by an
individual with severe respiratory disease who cannot function in a non-
purified air environment. An item such as an exercycle is not deductible
if used for general physical fitness. If it is prescribed and used as
necessary treatment of your impairment and necessary to enable you to
work, we will deduct payments you make toward its cost.
(5) Payments for drugs and medical services. (i) If you must use
drugs or medical services (including diagnostic procedures) to control
your impairment(s), the payments you make for them may be deducted. The
drugs or services must be prescribed (or utilized) to reduce or
eliminate symptoms of your impairment(s) or to slow down its
progression. The diagnostic procedures must be performed to ascertain
how the impairment(s) is progressing or to determine what type of
treatment should be provided for the impairment(s).
(ii) Examples of deductible drugs and medical services are
anticonvulsant drugs to control epilepsy or anticonvulsant blood level
monitoring; antidepressant medication for mental disorders; medication
used to allay the side effects of certain treatments; radiation
treatment or chemotherapy for cancer patients; corrective surgery for
spinal disorders; electroencephalograms and brain scans related to a
disabling epileptic
[[Page 725]]
condition; tests to determine the efficacy of medication on a diabetic
condition; and immunosuppressive medications that kidney transplant
patients regularly take to protect against graft rejection.
(iii) We will only deduct the costs of drugs or services that are
directly related to your impairment(s). Examples of non-deductible items
are routine annual physical examinations, optician services (unrelated
to a disabling visual impairment) and dental examinations.
(6) Payments for similar items and services--(i) General. If you are
required to utilize items and services not specified in paragraph (c)(1)
through (5) of this section but which are directly related to your
impairment(s) and which you need to work, their costs are deductible.
Examples of such items and services are medical supplies and services
not discussed above, and transportation.
(ii) Medical supplies and services not described above. We will
deduct payments you make for expendable medical supplies, such as
incontinence pads, catheters, bandages, elastic stockings, face masks,
irrigating kits, and disposable sheets and bags. We will also deduct
payments you make for physical therapy which you require because of your
impairment(s) and which you need in order to work.
(iii) Payments for transportation costs. We will deduct
transportation costs in these situations:
(A) Your impairment(s) requires that in order to get to work you
need a vehicle that has structural or operational modifications. The
modifications must be critical to your operation or use of the vehicle
and directly related to your impairment(s). We will deduct the costs of
the modifications, but not the cost of the vehicle. We will also deduct
a mileage allowance for the trip to and from work. The allowance will be
based on data compiled by the Federal Highway Administration relating to
vehicle operating costs.
(B) Your impairment(s) requires you to use driver assistance,
taxicabs or other hired vehicles in order to work. We will deduct
amounts paid to the driver and, if your own vehicle is used, we will
also deduct a mileage allowance, as provided in paragraph (c)(6)(iii)(A)
of this section, for the trip to and from work.
(C) Your impairment(s) prevents your taking available public
transportation to and from work and you must drive your (unmodified)
vehicle to work. If we can verify through your physician or other
sources that the need to drive is caused by your impairment(s) (and not
due to the unavailability of public transportation), we will deduct a
mileage allowance as provided in paragraph (c)(6)(iii)(A) of this
section, for the trip to and from work.
(7) Payments for installing, maintaining, and repairing deductible
items. If the device, equipment, appliance, etc., that you utilize
qualifies as a deductible item as described in paragraphs (c)(2), (3),
(4), and (6) of this section, the costs directly related to installing,
maintaining and repairing these items are also deductible. (The costs
which are associated with modifications to a vehicle are deductible.
Except for a mileage allowance, as provided for in paragraph (c)(6)(iii)
of this section, the costs which are associated with the vehicle itself
are not deductible.)
(d) When expenses may be deducted--(1) Effective date. To be
deductible an expense must be incurred after November 30, 1980. An
expense may be considered incurred after that date if it is paid
thereafter even though pursuant to a contract or other arrangement
entered into before December 1, 1980.
(2) Payments for services. For the purpose of determining SGA, a
payment you make for services may be deducted if the services are
received while you are working and the payment is made in a month you
are working. We consider you to be working even though you must leave
work temporarily to receive the services. For the purpose of determining
your SSI monthly payment amount, a payment you make for services may be
deducted if the payment is made in the month your earned income is
received and the earned income is for work done in the month you
received the services. If you begin working and make a payment before
the month earned income is received, the payment is also deductible. If
you make a payment after you stop working, and the payment is made in
the
[[Page 726]]
month you received earned income for work done in the month you received
the services, the payment is also deductible.
(3) Payment for items. For the purpose of determining SGA, a payment
you make toward the cost of a deductible item (regardless of when it is
acquired) may be deducted if payment is made in a month you are working.
For the purpose of determining your SSI monthly payment amount, a
payment you make toward the cost of a deductible item (regardless of
when it is acquired) may be deducted if the payment is made in the month
your earned income is received and the earned income is for work done in
the month you used the item. If you begin working and make a payment
before the month earned income is received, the payment is also
deductible. If you make a payment after you stop working, and the
payment is made in the month you received earned income for work done in
the month you used the item, the payment is also deductible. See
paragraph (e)(4) of this section when purchases are made in anticipation
of work.
(e) How expenses are allocated--(1) Recurring expenses. You may pay
for services on a regular periodic basis, or you may purchase an item on
credit and pay for it in regular periodic installments or you may rent
an item. If so, each payment you make for the services and each payment
you make toward the purchase or rental (including interest) is
deductible as described in paragraph (d) of this section.
Example. B starts work in October 1981 at which time she purchases a
medical device at a cost of $4,800 plus interest charges of $720. Her
monthly payments begin in October. She earns and receives $400 a month.
The term of the installment contract is 48 months. No downpayment is
made. The monthly allowable deduction for the item would be $115 ($5520
divided by 48) for each month of work (for SGA purposes) and for each
month earned income is received (for SSI payment purposes) during the 48
months.
(2) Nonrecurring expenses. Part or all of your expenses may not be
recurring. For example, you may make a one-time payment in full for an
item or service or make a downpayment. For the purpose of determining
SGA, if you are working when you make the payment we will either deduct
the entire amount in the month you pay it or allocate the amount over a
12 consecutive month period beginning with the month of payment,
whichever you select. For the purpose of determining your SSI monthly
payment amount, if you are working in the month you make the payment and
the payment is made in a month earned income is received, we will either
deduct the entire amount in that month, or we will allocate the amount
over a 12 consecutive month period, beginning with that month, whichever
you select. If you begin working and do not receive earned income in the
month you make the payment, we will either deduct or begin allocating
the payment amount in the first month you do receive earned income. If
you make a payment for services or items after you stopped working, we
will deduct the payment if it was made in the month you received earned
income for work done in the month you received the services or used the
item.
Example. A begins working in October 1981 and earns and receives
$525 a month. In the same month he purchases and pays for a deductible
item at a cost of $250. In this situation we could allow a $250
deduction for both SGA and SSI payment purposes for October 1981,
reducing A's earnings below the SGA level for that month.
If A's earnings had been $15 above the SGA earnings amount, A
probably would select the option of projecting the $250 payment over the
12-month period, October 1981-September 1982, giving A an allowable
deduction of $20.83 a month for each month of work (for SGA purposes)
and for each month earned income is received (for SSI payment purposes)
during that period. This deduction would reduce A's earnings below the
SGA level for 12 months.
(3) Allocating downpayments. If you make a downpayment we will, if
you choose, make a separate calculation for the downpayment in order to
provide for uniform monthly deductions. In these situations we will
determine the total payment that you will make over a 12 consecutive
month period beginning with the month of the downpayment and allocate
that amount over the 12 months. Beginning with the 13th month, the
regular monthly payment will be deductible. This allocation process will
be for a shorter period if your regular monthly payments will
[[Page 727]]
extend over a period of less than 12 months.
Example 1. C starts working in October 1981, at which time he
purchases special equipment at a cost of $4,800, paying $1,200 down. The
balance of $3,600, plus interest of $540, is to be repaid in 36
installments of $115 a month beginning November 1981. C earns and
receives $500 a month. He chooses to have the downpayment allocated. In
this situation we would allow a deduction of $205.42 a month for each
month of work (for SGA purposes) and for each month earned income is
received (for SSI payment purposes) during the period October 1981
through September 1982. After September 1982, the deduction amount would
be the regular monthly payment of $115 for each month of work (for SGA
purposes) and for each month earned income is received (for SSI payment
purposes) during the remaining installment period.
Explanation:
Downpayment in 10/81.......................... $1,200
Monthly payments 11/81 through 09/82.......... 1,265
------------
12) 2,465 =$205.42.
Example 2. D, while working, buys a deductible item in July 1981,
paying $1,450 down. (D earns and receives $500 a month.) However, his
first monthly payment of $125 is not due until September 1981. D chooses
to have the downpayment allocated. In this situation we would allow a
deduction of $225 a month for each month of work (for SGA purposes) and
for each month earned income is received (for SSI payment purposes)
during the period July 1981 through June 1982. After June 1982, the
deduction amount would be the regular monthly payment of $125 for each
month of work (for SGA purposes) and for each month earned income is
received (for SSI payment purposes).
Explanation:
Downpayment in 07/81.......................... $1,450
Monthly payments 09/81 through 06/82.......... 1,250
------------
12) 2,700 =225.
(4) Payments made in anticipation of work. A payment toward the cost
of a deductible item that you made in any of the 11 months preceding the
month you started working will be taken into account in determining your
impairment-related work expenses. When an item is paid for in full
during the 11 months preceding the month you started working the payment
will be allocated over the 12-consecutive month period beginning with
the month of the payment. However, the only portion of the payment which
may be deductible is the portion allocated to the month work begins and
the following months. For example, if an item is purchased 3 months
before the month work began and is paid for with a one-time payment of
$600, the deductible amount would be $450 ($600 divided by 12,
multiplied by 9). Installment payments (including a downpayment) that
you made for a particular item during the 11 months preceding the month
you started working will be totaled and considered to have been made in
the month of your first payment for that item within this 11 month
period. The sum of these payments will be allocated over the 12-
consecutive month period beginning with the month of your first payment
(but never earlier than 11 months before the month work began). However,
the only portion of the total which may be deductible is the portion
allocated to the month work begins and the following months. For
example, if an item is purchased 3 months before the month work began
and is paid for in 3 monthly installments of $200 each, the total
payment of $600 will be considered to have been made in the month of the
first payment, that is, 3 months before the month work began. The
deductible amount would be $450 ($600 divided by 12, multiplied by 9).
The amount, as determined by these formulas, will then be considered to
have been paid in the first month of work for the purpose of determining
SGA and in the first month earned income is received for the purpose of
determining the SSI monthly payment amount. For the purpose of
determining SGA, we will deduct either the entire amount in the first
month of work or allocate it over a 12 consecutive month period
beginning with the first month of work, whichever you select. In the
above examples, the individual would have the choice of having the
entire $450 deducted in the first month of work or of having $37.50 a
month ($450 divided by 12) deducted for each month that he works over a
12-consecutive month period, beginning with the first month of work. For
the purpose of determining the SSI payment amount, we will either deduct
the entire amount in the first month earned income is received or
allocate it over a 12-consecutive month period beginning
[[Page 728]]
with the first month earned income is received, whichever you select. In
the above examples, the individual would have the choice of having the
entire $450 deducted in the first month earned income is received or of
having $37.50 a month ($450 divided by 12) deducted for each month he
receives earned income (for work) over a 12-consecutive month period,
beginning with the first month earned income is received. To be
deductible the payments must be for durable items such as medical
devices, prostheses, work-related equipment, residential modifications,
nonmedical appliances and vehicle modifications. Payments for services
and expendable items such as drugs, oxygen, diagnostic procedures,
medical supplies and vehicle operating costs are not deductible for
purposes of this paragraph.
(f) Limits on deductions. (1) We will deduct the actual amounts you
pay toward your impairment-related work expenses unless the amounts are
unreasonable. With respect to durable medical equipment, prosthetic
devices, medical services, and similar medically related items and
services, we will apply the prevailing charges under Medicare (part B of
title XVIII, Health Insurance for the Aged and Disabled) to the extent
that this information is readily available. Where the Medicare guides
are used, we will consider the amount that you pay to be reasonable if
it is no more than the prevailing charge for the same item or service
under the Medicare guidelines. If the amount you actually pay is more
than the prevailing charge for the same item under the Medicare
guidelines, we will deduct from your earnings the amount you paid to the
extent you establish that the amount is consistent with the standard or
normal charge for the same or similar item or service in your community.
For items and services that are not listed in the Medicare guidelines,
and for items and services that are listed in the Medicare guidelines
but for which such guides cannot be used because the information is not
readily available, we will consider the amount you pay to be reasonable
if it does not exceed the standard or normal charge for the same or
similar item(s) or service(s) in your community.
(2) Impairment-related work expenses are not deducted in computing
your earnings for purposes of determining whether your work was
``services'' as described in Sec. 416.992(b).
(3) The decision as to whether you performed substantial gainful
activity in a case involving impairment-related work expenses for items
or services necessary for you to work generally will be based upon your
``earnings'' and not on the value of ``services'' you rendered. (See
Secs. 416.974(b)(6) (i) and (ii), and 416.975(a)). This is not
necessarily so, however, if you are in a position to control or
manipulate your earnings.
(4) The amount of the expenses to be deducted must be determined in
a uniform manner in both the disability insurance and SSI programs. The
amount of deductions must, therefore, be the same for determinations as
to substantial gainful activity under both programs. The deductions that
apply in determining the SSI payment amounts, though determined in the
same manner as for SGA determinations, are applied so that they
correspond to the timing of the receipt of the earned income to be
excluded.
(5) No deduction will be allowed to the extent that any other source
has paid or will pay for an item or service. No deduction will be
allowed to the extent that you have been, could be, or will be,
reimbursed for payments you made. (See paragraph (b)(3) of this
section.)
(6) The provisions described in the foregoing paragraphs of this
section are effective with respect to expenses incurred on and after
December 1, 1980, although expenses incurred after November 1980 as a
result of contractual or other arrangements entered into before December
1980, are deductible. For months before December 1980 we will deduct
impairment-related work expenses from your earnings only to the extent
they exceeded the normal work-related expenses you would have had if you
did not have your impairment(s). We will not deduct expenses, however,
for those things which you needed even when you were not working.
(g) Verification. We will verify your need for items or services for
which deductions are claimed, and the amount of the charges for those
items or
[[Page 729]]
services. You will also be asked to provide proof that you paid for the
items or services.
[48 FR 21940, May 16, 1983]
Blindness
Sec. 416.981 Meaning of blindness as defined in the law.
We will consider you blind under the law for payment of supplemental
security income benefits if we determine that you are statutorily blind.
Statutory blindness is central visual acuity of 20/200 or less in the
better eye with the use of a correcting lens. An eye which has a
limitation in the field of vision so that the widest diameter of the
visual field subtends an angle no greater than 20 degrees is considered
to have a central visual acuity of 20/200 or less.
Sec. 416.982 Blindness under a State plan.
We shall also consider you blind for the purposes of payment of
supplemental security income benefits if--
(a) You were found to be blind as defined under a State plan
approved under title X or title XVI of the Social Security Act, as in
effect for October 1972;
(b) You received aid under the State plan because of your blindness
for the month of December 1973; and
(c) You continue to be blind as defined under the State plan.
Sec. 416.983 How we evaluate statutory blindness.
We will find that you are blind if you are statutorily blind within
the meaning of Sec. 416.981. For us to find that you are statutorily
blind, it is not necessary--
(a) That your blindness meet the duration requirement; or
(b) That you be unable to do any substantial gainful activity.
Sec. 416.984 If you are statutorily blind and still working.
There is no requirement that you be unable to work in order for us
to find that you are blind. However, if you are working, your earnings
will be considered under the income and resources rules in subparts K
and L of this part. This means that if your income or resources exceed
the limitations, you will not be eligible for benefits, even though you
are blind.
Sec. 416.985 How we evaluate other visual impairments.
If you are not blind as defined in the law, we will evaluate a
visual impairment the same as we evaluate other impairments in
determining disability. Although you will not qualify for benefits on
the basis of blindness, you may still be eligible for benefits if we
find that you are disabled as defined in Secs. 416.905 through 416.907.
Sec. 416.986 Why and when we will find that you are no longer entitled to benefits based on statutory blindness.
(a) If your vision does not meet the definition of blindness. If you
become entitled to payments as a statutorily blind person and your
statutory blindness ends, your eligibility for payments generally will
end 2 months after your blindness ends. We will find that your statutory
blindness has ended beginning with the earliest of the following
months--
(1) The month your vision, based on current medical evidence, does
not meet the definition of blindness and you were disabled only for a
specified period of time in the past;
(2) The month your vision based on current medical evidence, does
not meet the definition of blindness, but not earlier than the month in
which we mail you a notice saying that the information we have shows
that you are not now blind; or
(3) The first month in which you fail to follow prescribed treatment
that can restore your ability to work (see Sec. 416.930).
(b) If you were found blind as defined in a State plan. If you
become eligible for payments because you were blind as defined in a
State plan, we will find that your blindness has ended beginning with
the first month in which your vision, as shown by medical or other
evidence, does not meet the criteria of the appropriate State plan or
the first month in which your vision does not meet the definition of
statutory blindness (Sec. 416.981), whichever is later, and in neither
event earlier than the month in which we mail you a
[[Page 730]]
notice saying that we have determined that you are not now blind under a
State plan or not now statutorily blind, as appropriate.
(c) If you do not cooperate with us. If you are asked to give us
medical or other evidence or to go for a physical or mental examination
by a certain date, we will find that your blindness ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you have
good cause for failure to cooperate. In addition, Sec. 416.918 discusses
how we determine whether you have good cause for failing to attend a
consultative examination. The month in which your blindness ends will be
the month in which you fail to do what we asked.
(d) Before we stop your payments. Before we stop payment of your
benefits we will give you a chance to give us your reasons why we should
not stop payment. Subpart M of this part describes your rights and the
procedures we will follow.
[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51
FR 7603, Feb. 28, 1986; 59 FR 1636, Jan. 12, 1994]
Continuing or Stopping Disability or Blindness
Sec. 416.988 Your responsibility to tell us of events that may change your disability or blindness status.
If you are entitled to payments because you are disabled or blind,
you should promptly tell us if--
(a) Your condition improves;
(b) Your return to work;
(c) You increase the amount of your work; or
(d) Your earnings increase.
Sec. 416.989 We may conduct a review to find out whether you continue to be disabled.
After we find that you are disabled, we must evaluate your
impairment(s) from time to time to determine if you are still eligible
for payments based on disability. We call this evaluation a continuing
disability review. We may begin a continuing disability review for any
number of reasons including your failure to follow the provisions of the
Social Security Act or these regulations. When we begin such a review,
we will notify you that we are reviewing your eligibility for payments,
why we are reviewing your eligibility, that in medical reviews the
medical improvement review standard will apply, that our review could
result in the termination of your payments, and that you have the right
to submit medical and other evidence for our consideration during the
continuing disability review. In doing a medical review, we will develop
a complete medical history of at least the preceding 12 months in any
case in which a determination is made that you are no longer under a
disability. If this review shows that we should stop your payments, we
will notify you in writing and give you an opportunity to appeal. In
Sec. 416.990 we describe those events that may prompt us to review
whether you continue to be disabled.
[51 FR 16826, May 7, 1986]
Sec. 416.989a We may conduct a review to find out whether you continue to be blind.
After we find that you are blind, we must evaluate your
impairment(s) from time to time to determine if you are still eligible
for payments based on blindness. We call this evaluation a continuing
disability review. We may begin a continuing disability review for any
number of reasons including your failure to follow the provisions of the
Social Security Act or these regulations. When we begin such a review,
we will notify you that we are reviewing your eligibility for payments,
why we are reviewing your eligibility, that our review could result in
the termination of your payments, and that you have the right to submit
medical and other evidence for our consideration during the continuing
disability review. In doing a medical review, we will develop a complete
medical history of at least the preceding 12 months in any case in which
a determination is made that you are no longer blind. If this review
shows that we should stop your payments, we will notify you in writing
and give you an opportunity to appeal. In Sec. 416.990 we describe those
events
[[Page 731]]
that may prompt us to review whether you continue to be blind.
[51 FR 16826, May 7, 1986]
Sec. 416.990 When and how often we will conduct a continuing disability review.
(a) General. We conduct continuing disability reviews to determine
whether or not you continue to meet the disability or blindness
requirements of the law. Payment ends if the medical or other evidence
shows that you are not disabled or blind as determined under the
standards set out in section 1614(a) of the Social Security Act if you
receive benefits based on disability or Sec. 416.986 of this subpart if
you receive benefits based on blindness.
(b) When we will conduct a continuing disability review. A
continuing disability review will be started if--
(1) You have been scheduled for a medical improvement expected diary
review;
(2) You have been scheduled for a periodic review (medical
improvement possible or medical improvement not expected) in accordance
with the provisions of paragraph (d) of this section;
(3) We need a current medical or other report to see if your
disability continues. (This could happen when, for example, an advance
in medical technology, such as improved treatment for Alzheimer's
disease, or a change in vocational therapy or technology raises a
disability issue);
(4) You return to work and successfully complete a period of trial
work;
(5) Substantial earnings are reported to your wage record;
(6) You tell us that you have recovered from your disability or that
you have returned to work;
(7) Your State Vocational Rehabilitation Agency tells us that--
(i) The services have been completed; or
(ii) You are now working; or
(iii) You are able to work;
(8) Someone in a position to know of your physical or mental
condition tells us that you are not disabled or blind, that you are not
following prescribed treatment, that you have returned to work, or that
you are failing to follow the provisions of the Social Security Act or
these regulations, and it appears that the report could be substantially
correct;
(9) Evidence we receive raises a question as to whether your
disability or blindness continues; or
(10) You have been scheduled for a vocational reexamination diary
review.
(c) Definitions. As used in this section--
Medical improvement expected diary--refers to a case which is
scheduled for review at a later date because the individual's
impairment(s) is expected to improve. Generally, the diary period is set
for not less than 6 months or for not more than 18 months. Examples of
cases likely to be scheduled for medical improvement expected diary are
fractures and cases in which corrective surgery is planned and recovery
can be anticipated.
Permanent impairment--medical improvement not expected--refers to a
case in which any medical improvement in a person's impairment(s) is not
expected. This means an extremely severe condition determined on the
basis of our experience in administering the disability programs to be
at least static, but more likely to be progressively disabling either by
itself or by reason of impairment complications, and unlikely to improve
so as to permit the individual to engage in substantial gainful
activity. The interaction of the individual's age, impairment
consequences and the lack of recent attachment to the labor market may
also be considered in determining whether an impairment is permanent.
Improvement which is considered temporary under
Sec. 416.994(b)(2)(iv)(D) or Sec. 416.994(c)(2)(iv), as appropriate,
will not be considered in deciding if an impairment is permanent.
Examples of permanent impairments taken from the list contained in our
other written guidelines which are available for public review are as
follows and are not intended to be all inclusive:
(1) Parkinsonian Syndrome which has reached the level of severity
necessary to meet the Listing in appendix 1 of subpart P or part 404 of
this chapter.
(2) Amyotrophic Lateral Sclerosis which has reached the level of
severity necessary to meet the Listing in
[[Page 732]]
appendix 1 of subpart P of part 404 of this chapter.
(3) Diffuse pulmonary fibrosis in an individual age 55 or over which
has reached the level of severity necessary to meet the Listing in
appendix 1 of subpart P of part 404 of this chapter.
(4) Amputation of leg at hip.
Nonpermanent impairment--refers to a case in which any medical
improvement in the person's impairment(s) is possible. This means an
impairment for which improvement cannot be predicted based on current
experience and the facts of the particular case but which is not at the
level of severity of an impairment that is considered permanent.
Examples of nonpermanent impairments are: Regional enteritis,
hyperthyroidism, and chronic ulcerative colitis.
Vocational reexamination diary--refers to a case which is scheduled
for review at a later date because the individual is undergoing
vocational therapy, training or an educational program which may improve
his or her ability to work so that the disability or blindness
requirement of the law is no longer met. Generally, the diary period
will be set for the length of the training, therapy, or program of
education.
(d) Frequency of review. If your impairment is expected to improve,
generally we will review your continuing eligibility for payments based
on disability or blindness at intervals from 6 months to 18 months
following our most recent decision. Our notice to you about the review
of your case will tell you more precisely when the review will be
conducted. If your disability is not considered permanent but is such
that any medical improvement in your impairment(s) cannot be accurately
predicted, we will review your continuing eligibility for payments at
least once every 3 years. If your disability is considered permanent, we
will review your continuing eligibility for payments no less frequently
than once every 7 years but no more frequently than once every 5 years.
Regardless of your classification we will conduct an immediate
continuing disability review if a question of continuing disability is
raised pursuant to paragraph (b) of this section.
(e) Change in classification of impairment. If the evidence
developed during a continuing disability review demonstrates that your
impairment has improved, is expected to improve, or has worsened since
the last review, we may reclassify your impairment to reflect this
change in severity. A change in the classification of your impairment
will change the frequency with which we will review your case. We may
also reclassify certain impairments because of improved tests,
treatment, and other technical advances concerning those impairments.
(f) Review after administrative appeal. If you were found eligible
to receive or to continue to receive, payments on the basis of a
decision by an administrative law judge, the Appeals Council or a
Federal court, we will not conduct a continuing disability review
earlier than 3 years after that decision unless your case should be
scheduled for a medical improvement expected or vocational reexamination
diary review or a question of continuing disability is raised pursuant
to paragraph (b) of this section.
(g) Waiver of timeframes. All cases involving a nonpermanent
impairment will be reviewed by us at least once every 3 years unless we,
after consultation with the State agency, determine that the requirement
should be waived to ensure that only the appropriate number of cases are
reviewed. The appropriate number of cases to be reviewed is to be based
on such considerations as the backlog of pending reviews, the projected
number of new applications, and projected staffing levels. Such waiver
shall be given only after good faith effort on the part of the State to
meet staffing requirements and to process the reviews on a timely basis.
Availability of independent medical resources may also be a factor. A
waiver in this context refers to our administrative discretion to
determine the appropriate number of cases to be reviewed on a State by
State basis. Therefore, your continuing disability review may be delayed
longer than 3 years following our original decision or other review
under certain circumstances. Such a delay would be based on our need to
ensure that backlogs, reviews required to be
[[Page 733]]
performed by the Social Security Disability Benefits Reform Act (Pub. L.
98-460), and new disability claims workloads are accomplished within
available medical and other resources in the State agency and that such
reviews are done carefully and accurately.
[51 FR 16826, May 7, 1986]
Sec. 416.991 If your medical recovery was expected and you returned to work.
If your impairment was expected to improve and you returned to full-
time work with no significant medical limitations and acknowledge that
medical improvement has occurred, we may find that your disability ended
in the month you returned to work. Unless there is evidence showing that
your disability has not ended, we will use the medical and other
evidence already in your file and the fact that you returned to full-
time work without significant limitations to determine that you are no
longer disabled. (If your impairment is not expected to improve, we will
not ordinarily review your claim until the end of the trial work period,
as described in Sec. 416.992).
Example: Evidence obtained during the processing of your claim
showed that you had an impairment that was expected to improve about 18
months after your disability began. We, therefore, told you that your
claim would be reviewed again at that time. However, before the time
arrived for your scheduled medical re-examination, you told us that you
had returned to work and your impairment had improved. We reviewed your
claim immediately and found that, in the 16th month after your
disability began, you returned to full-time work without any significant
medical restrictions. Therefore, we would find that your disability
ended in the first month you returned to full-time work.
[50 FR 50137, Dec. 6, 1985]
Sec. 416.992 The trial work period.
(a) Definition of the trial work period. The trial work period is a
period during which you may test your ability to work and still be
considered disabled. It begins and ends as described in paragraph (e) of
this section. During this period, you may perform services (see
paragraph (b) of this section) in as many as 9 months, but these months
do not have to be consecutive. We will not consider those services as
showing that your disability has ended until you have performed services
in at least 9 months. However, during this trial work period we will
evaluate your earnings under the income and resources rules in subparts
K and L of this part. This means that if your income or resources exceed
the limitations, you will not be eligible for payments even though you
have not worked a full 9 months. (See paragraph (e) of this section.)
After the trial work period has ended we will consider the work you did
during the trial work period in determining whether your disability
ended at any time after the trial work period.
(b) What we mean by services. When used in this section, services
means any activity, even though it is not substantial gainful activity,
which is done by a person in employment or self-employment for pay or
profit, or is the kind normally done for pay or profit. If you are an
employee, we will consider your work to be services if in any calendar
year after 1978 you earn more than $75 a month ($50 a month is the
figure for earnings in any calendar year before 1979). If you are self-
employed, we will consider your activities services if in any calendar
year after 1978 your net earnings are more than $75 a month ($50 a month
is the figure for earning in any calendar year before 1979), or you work
more than 15 hours a month in the business. We generally do not consider
work to be services when it is done without remuneration or merely as
therapy or training, or when it is work usually done in a daily routine
around the house or in self-care.
(c) Limitations on the number of trial work periods. You may have
only one trial work period during a period of entitlement to cash
payments.
(d) When the trial work period begins and ends. The trial work
period begins with the month in which you become entitled to benefits.
It cannot begin before the month in which you file your application for
benefits. It ends with the close of whichever of the following calendar
months is the earlier:
(1) The 9th month (whether or not the months have been consecutive)
in which you have performed services; or
(2) The month in which new evidence, other than evidence relating to
any
[[Page 734]]
work you did during the trial work period, shows that you are not
disabled, even though you have not worked a full 9 months. We may find
that your disability has ended at any time during the trial work period
if the medical or other evidence shows that you are no longer disabled
(see Sec. 416.994).
(e) If you fail to meet other eligibility factors. We will count the
services you do while disabled towards your period of trial work even
though you may be ineligible for payments for other reasons. The months
in which you are eligible for payments will be evaluated for trial work
purposes upon reestablishment of your eligibility for payments under
this part as though your eligibility had not been interrupted.
[45 FR 55621, Aug. 20, 1980, as amended at 50 FR 50137, Dec. 6, 1985; 51
FR 16015, Apr. 30, 1986]
Sec. 416.992a The reentitlement period.
(a) General. The reentitlement period is an additional period after
9 months of trial work during which you may continue to test you ability
to work if you have a disabling impairment.
Generally, you will not be paid benefits for any month, after the third
month, in this period in which you do substantial gainful activity
unless you qualify for the special benefits explained in Sec. 416.261.
You will be paid benefits for months in which you do not do substantial
gainful activity and you meet all the other eligibility requirements.
(See Sec. 416.1331.) If your benefits are stopped because you do
substantial gainful activity they may be started again without a new
application and a new determination of disability if you discontinue
doing substantial gainful activity during this period. In determining,
for reentitlement benefit purposes, whether you do SGA in a month during
the reentitlement period we only consider your work in or earnings for
that month; we do not consider the average amount of your work or
earnings over a period of months.
(b) When the reentitlement period begins and ends. The reentitlement
period begins with the first month following completion of 9 months of
trial work but cannot begin earlier than December 1, 1980. It ends with
whichever is earlier--
(1) The month before the first month in which your impairment is
determined to no longer exist or not to be disabling; or
(2) The last day of the 15th month following the end of your trial
work period. (See Sec. 416.1331 for when your benefits end.)
[49 FR 22274, May 29, 1984]
Sec. 416.993 Medical evidence in continuing disability review cases.
(a) General. If you are entitled to benefits because you are
disabled, we will have your case file with the supporting medical
evidence previously used to establish or continue your entitlement.
Generally, therefore, the medical evidence we will need for a continuing
disability review will be that required to make a current determination
or decision as to whether you are still disabled, as defined under the
medical improvement review standard. See Secs. 416.979 and 416.994.
(b) Obtaining evidence from your medical sources. You must provide
us with reports from your physician, psychologist, or others who have
treated or evaluated you, as well as any other evidence that will help
us determine if you are still disabled. See Sec. 416.912. You must have
a good reason for not giving us this information or we may find that
your disability has ended. See Sec. 416.994(e)(2). lf we ask you, you
must contact your medical sources to help us get the medical reports. We
will make every reasonable effort to help you in getting medical reports
when you give us permission to request them from your physician,
psychologist, or other medical sources. See Sec. 416.912(d)(1)
concerning what we mean by every reasonable effort. In some instances,
such as when a source is known to be unable to provide certain tests or
procedures or is known to be nonproductive or uncooperative, we may
order a consultative examination while awaiting receipt of medical
source evidence. Before deciding that your disability has ended, we will
develop a complete medical history covering at least the 12 months
preceding the date you sign a report about your
[[Page 735]]
continuing disability status. See Sec. 416.912(c).
(c) When we will purchase a consultative examination. A consultative
examination may be purchased when we need additional evidence to
determine whether or not your disability continues. As a result, we may
ask you, upon our request and reasonable notice, to undergo consultative
examinations and tests to help us determine if you are still disabled.
See Sec. 416.917. We will decide whether or not to purchase a
consultative examination in accordance with the standards in
Secs. 416.919a through 416.919b.
[56 FR 36970, Aug. 1, 1991]
Sec. 416.994 How we will determine whether your disability continues or
ends.
(a) General. There is a statutory requirement that, if you are
entitled to disability benefits, your continued entitlement to such
benefits must be reviewed periodically. Our rules for deciding whether
your disability continues are set forth in paragraph (b) of this
section. Additional rules apply if you were found disabled under a State
plan, as set forth in paragraph (c) of this section.
(b) Disabled persons age 18 or over (adults). If you are entitled to
disability benefits as a disabled person age 18 or over (adult) there
are a number of factors we consider in deciding whether your disability
continues. We must determine if there has been any medical improvement
in your impairment(s) and, if so, whether this medical improvement is
related to your ability to work. If your impairment(s) has not so
medically improved, we must consider whether one or more of the
exceptions to medical improvement applies. If medical improvement
related to your ability to work has not occurred and no exception
applies, your benefits will continue. Even where medical improvement
related to your ability to work has occurred or an exception applies, in
most cases, (see paragraph (b)(4) of this section for exceptions) we
must also show that you are currently able to engage in substantial
gainful activity before we can find that you are no longer disabled.
(1) Terms and definitions. There are several terms and definitions
which are important to know in order to understand how we review whether
your disability continues.
(i) Medical improvement. Medical improvement is any decrease in the
medical severity of your impairment(s) which was present at the time of
the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease
in medical severity must be based on changes (improvement) in the
symptoms, signs and/or laboratory findings associated with your
impairment(s) (see Sec. 416.928).
Example 1: You were awarded disability benefits due to a herniated
nucleus pulposus. At the time of our prior decision granting you
benefits you had had a laminectomy. Postoperatively, a myelogram still
shows evidence of a persistent deficit in your lumbar spine. You had
pain in your back, and pain and a burning sensation in your right foot
and leg. There were no muscle weakness or neurological changes and a
modest decrease in motion in your back and leg. When we reviewed your
claim your treating physician reported that he had seen you regularly
every 2 to 3 months for the past 2 years. No further myelograms had been
done, complaints of pain in the back and right leg continued especially
on sitting or standing for more than a short period of time. Your doctor
further reported a moderately decreased range of motion in your back and
right leg, but again no muscle atrophy or neurological changes were
reported. Medical improvement has not occurred because there has been no
decrease in the severity of your back impairment as shown by changes in
symptoms, signs or laboratory findings.
Example 2: You were awarded disability benefits due to rheumatoid
arthritis. At the time, laboratory findings were positive for this
condition. Your doctor reported persistent swelling and tenderness of
your fingers and wrists and that you complained of joint pain. Current
medical evidence shows that while laboratory tests are still positive
for rheumatoid arthritis, your impairment has responded favorably to
therapy so that for the last year your fingers and wrists have not been
significantly swollen or painful. Medical improvement has occurred
because there has been a decrease in the severity of your impairment as
documented by the current symptoms and signs reported by your physician.
Although your impairment is subject to temporary remissions and
exacerbations, the improvement that has occurred has been sustained long
enough to permit a finding of medical improvement. We would
[[Page 736]]
then determine if this medical improvement is related to your ability to
work.
(ii) Medical improvement not related to ability to do work. Medical
improvement is not related to your ability to work if there has been a
decrease in the severity of the impairment(s) as defined in paragraph
(b)(1)(i) of this section, present at the time of the most recent
favorable medical decision, but no increase in your functional capacity
to do basic work activities as defined in paragraph (b)(1)(iv) of this
section. If there has been any medical improvement in your
impairment(s), but it is not related to your ability to do work and none
of the exceptions applies, your benefits will be continued.
Example: You are 65 inches tall and weighed 246 pounds at the time
your disability was established. You had venous insufficiency and
persistent edema in your legs. At the time, your ability to do basic
work activities was affected because you were able to sit for 6 hours,
but were able to stand or walk only occasionally. At the time of our
continuing disability review, you had undergone a vein stripping
operation. You now weigh 220 pounds and have intermittent edema. You are
still able to sit for 6 hours at a time and to stand or work only
occasionally although you report less discomfort on walking. Medical
improvement has occurred because there has been a decrease in the
severity of the existing impairment as shown by your weight loss and the
improvement in your edema. This medical improvement is not related to
your ability to work, however, because your functional capacity to do
basic work activities (i.e., the ability to sit, stand and walk) has not
increased.
(iii) Medical improvement that is related to ability to do work.
Medical improvement is related to your ability to work if there has been
a decrease in the severity, as defined in paragraph (b)(1)(i) of this
section, of the impairment(s) present at the time of the most recent
favorable medical decision and an increase in your functional capacity
to do basic work activities as discussed in paragraph (b)(1)(iv) of this
section. A determination that medical improvement related to your
ability to do work has occurred does not, necessarily, mean that your
disability will be found to have ended unless it is also shown that you
are currently able to engage in substantial gainful activity as
discussed in paragraph (b)(1)(v) of this section.
Example 1: You have a back impairment and had a laminectomy to
relieve the nerve root impingement and weakness in your left leg. At the
time of our prior decision, basic work activities were affected because
you were able to stand less than 6 hours, and sit no more than \1/2\
hour at a time. You had a successful fusion operation on your back about
1 year before our review of your entitlement. At the time of our review,
the weakness in your leg has decreased. Your functional capacity to
perform basic work activities now is unimpaired because you now have no
limitation on your ability to sit, walk, or stand. Medical improvement
has occurred because there has been a decrease in the severity of your
impairment as demonstrated by the decreased weakness in your leg. This
medical improvement is related to your ability to work because there has
also been an increase in your functional capacity to perform basic work
activities (or residual functional capacity) as shown by the absence of
limitation on your ability to sit, walk, or stand. Whether or not your
disability is found to have ended, however, will depend on our
determination as to whether you can currently engage in substantial
gainful activity.
Example 2: You were injured in an automobile accident receiving a
compound fracture to your right femur and a fractured pelvis. When you
applied for disability benefits 10 months after the accident your doctor
reported that neither fracture had yet achieved solid union based on his
clinical examination. X-rays supported this finding. Your doctor
estimated that solid union and a subsequent return to full weight
bearing would not occur for at least 3 more months. At the time of our
review 6 months later, solid union had occurred and you had been
returned to weight-bearing for over a month. Your doctor reported this
and the fact that your prior fractures no longer placed any limitation
on your ability to walk, stand, lift, etc., and, that in fact, you could
return to fulltime work if you so desired.
Medical improvement has occurred because there has been a decrease
in the severity of your impairments as shown by X-ray and clinical
evidence of solid union and your return to full weight-bearing. This
medical improvement is related to your ability to work because you no
longer meet the same listed impairment in appendix 1 of subpart P of
part 404 of this chapter (see paragraph (b)(2)(iii)(A) of this section).
In fact, you no longer have an impairment which is severe (see
Sec. 416.921) and your disability will be found to have ended.
(iv) Functional capacity to do basic work activities. Under the law,
disability is defined, in part, as the inability to do any substantial
gainful activity by reason of any medically
[[Page 737]]
determinable physical or mental impairment(s). In determining whether
you are disabled under the law, we must measure, therefore, how and to
what extent your impairment(s) has affected your ability to do work. We
do this by looking at how your functional capacity for doing basic work
activities has been affected. Basic work activities means the abilities
and aptitudes necessary to do most jobs. Included are exertional
abilities such as walking, standing, pushing, pulling, reaching and
carrying, and nonexertional abilities and aptitudes such as seeing,
hearing, speaking, remembering, using judgment, dealing with changes and
dealing with both supervisors and fellow workers. A person who has no
impairment(s) would be able to do all basic work activities at normal
levels; he or she would have an unlimited functional capacity to do
basic work activities. Depending on its nature and severity, an
impairment will result in some limitation to the functional capacity to
do one or more of these basic work activities. Diabetes, for example,
can result in circulatory problems which could limit the length of time
a person could stand or walk and damage to his or her eyes as well, so
that the person also had limited vision. What a person can still do
despite an impairment, is called his or her residual functional
capacity. How the residual functional capacity is assessed is discussed
in more detail in Sec. 416.945. Unless an impairment is so severe that
it is deemed to prevent you from doing substantial gainful activity (see
Secs. 416.925 and 416.926) it is this residual functional capacity that
is used to determine whether you can still do your past work or, in
conjunction with your age, education and work experience, any other
work.
(A) A decrease in the severity of an impairment as measured by
changes (improvement) in symptoms, signs or laboratory findings can, if
great enough, result in an increase in the functional capacity to do
work activities. Vascular surgery (e.g., femoropopliteal bypass) may
sometimes reduce the severity of the circulatory complications of
diabetes so that better circulation results and the person can stand or
walk for longer periods. When new evidence showing a change in symptoms,
signs and laboratory findings establishes that both medical improvement
has occurred and your functional capacity to perform basic work
activities, or residual functional capacity, has increased, we say that
medical improvement which is related to your ability to do work has
occurred. A residual functional capacity assessment is also used to
determine whether you can engage in substantial gainful activity and,
thus, whether you continue to be disabled (see paragraph (b)(1)(vi) of
this section).
(B) Many impairment-related factors must be considered in assessing
your functional capacity for basic work activities. Age is one key
factor. Medical literature shows that there is a gradual decrease in
organ function with age; that major losses and deficits become
irreversible over time and that maximum exercise performance diminishes
with age. Other changes related to sustained periods of inactivity and
the aging process include muscle atrophy, degenerative joint changes,
decrease in range of motion, and changes in the cardiac and respiratory
systems which limit the exertional range.
(C) Studies have also shown that the longer an individual is away
from the workplace and is inactive, the more difficult it becomes to
return to ongoing gainful employment. In addition, a gradual change
occurs in most jobs so that after about 15 years, it is no longer
realistic to expect that skills and abilities acquired in these jobs
will continue to apply to the current workplace. Thus, if you are age 50
or over and have been receiving disability benefits for a considerable
period of time, we will consider this factor along with your age in
assessing your residual functional capacity. This will ensure that the
disadvantages resulting from inactivity and the aging process during a
long period of disability will be considered. In some instances where
available evidence does not resolve what you can or cannot do on a
sustained basis, we will provide special work evaluations or other
appropriate testing.
(v) Ability to engage in substantial gainful activity. In most
instances, we must show that you are able to engage
[[Page 738]]
in substantial gainful activity before your benefits are stopped. When
doing this, we will consider all your current impairments not just that
impairment(s) present at the time of the most recent favorable
determination. If we cannot determine that you are still disabled based
on medical consideration alone (as discussed in Secs. 416.925 and
416.926), we will use the new symptoms, signs and laboratory findings to
make an objective assessment of your functional capacity to do basic
work activities or residual functional capacity and we will consider
your vocational factors. See Secs. 416.945 through 416.969.
(vi) Evidence and basis for our decision. Our decisions under this
section will be made on a neutral basis without any initial inference as
to the presence or absence of disability being drawn from the fact that
you have previously been determined to be disabled. We will consider all
evidence you submit, as well as all evidence we obtain from your
treating physician(s) and other medical or nonmedical sources. What
constitutes ``evidence'' and our procedures for obtaining it are set out
in Secs. 416.912 through 416.918. Our determination regarding whether
your disability continues will be made on the basis of the weight of the
evidence.
(vii) Point of comparison. For purpose of determining whether
medical improvement has occurred, we will compare the current medical
severity of that impairment(s) which was present at the time of the most
recent favorable medical decision that you were disabled or continued to
be disabled to the medical severity of that impairment(s) at that time.
If medical improvement has occurred, we will compare your current
functional capacity to do basic work activities (i.e., your residual
functional capacity) based on the previously existing impairments with
your prior residual functional capacity in order to determine whether
the medical improvement is related to your ability to do work. The most
recent favorable medical decision is the latest decision involving a
consideration of the medical evidence and the issue of whether you were
disabled or continued to be disabled which became final.
(2) Determining medical improvement and its relationship to your
abilities to do work. Paragraphs (b)(1)(i) through (b)(1)(iii) of this
section discuss what we mean by medical improvement, medical improvement
not related to your ability to work, and medical improvement that is
related to your ability to work. How we will arrive at the decision that
medical improvement has occurred and its relationship to the ability to
do work, is discussed below.
(i) Medical improvement. Medical improvement is any decrease in the
medical severity of impairment(s) present at the time of the most recent
favorable medical decision that you were disabled or continued to be
disabled and is determined by a comparison of prior and current medical
evidence which must show that there have been changes (improvement) in
the symptoms, signs or laboratory findings associated with that
impairment(s).
(ii) Determining if medical improvement is related to ability to
work. If there is a decrease in medical severity as shown by the
symptoms, signs and laboratory findings, we then must determine if it is
related to your ability to do work. In paragraph (b)(1)(iv) of this
section, we explain the relationship between medical severity and
limitation on functional capacity to do basic work activities (or
residual functional capacity) and how changes in medical severity can
affect your residual functional capacity. In determining whether medical
improvement that has occurred is related to your ability to do work, we
will assess your residual functional capacity (in accordance with
paragraph (b)(1)(iv) of this section) based on the current severity of
the impairment(s) which was present at your last favorable medical
decision.
(iii) Your new residual functional capacity will then be compared to
your residual functional capacity at the time of our most recent
favorable medical decision. Unless an increase in the current residual
functional capacity is based on actual changes in the signs, symptoms,
or laboratory findings any medical improvement that has occurred will
not be considered to be related to your ability to do work.
(iv) Following are some additional factors and considerations which
we
[[Page 739]]
will apply in making these determinations.
(A) Previous impairment met or equaled listings. If our most recent
favorable decision was based on the fact that your impairment(s) at the
time met or equaled the severity contemplated by the Listing of
Impairments in appendix 1 of subpart P of part 404 of this chapter, an
assessment of your residual functional capacity would not have been
made. If medical improvement has occurred and the severity of the prior
impairment(s) no longer meets or equals the same listing section used to
make our most recent favorable decision, we will find that the medical
improvement was related to your ability to work. Appendix 1 of subpart P
of part 404 of this chapter describes impairments which, if severe
enough, affect a person's ability to work. If the appendix level
severity is met or equaled the individual is deemed, in the absence of
evidence to the contrary, to be unable to engage in gainful activity. If
there has been medical improvement to the degree that the requirement of
the listing section is no longer met or equaled, then the medical
improvement is related to your ability to work. We must, of course, also
establish that you can currently engage in substantial gainful activity
before finding that your disability has ended.
(B) Prior residual functional capacity assessment made. The residual
functional capacity assessment used in making the most recent favorable
medical decision will be compared to the residual functional capacity
assessment based on current evidence in order to determine if your
functional capacity for basic work activities has increased. There will
be no attempt made to reassess the prior residual functional capacity.
(C) Prior residual functional capacity assessment should have been
made, but was not. If the most recent favorable medical decision should
have contained an assessment of your residual functional capacity (i.e.,
your impairments did not meet or equal the level of severity
contemplated by the Listing of Impairments in appendix 1 of subpart P of
part 404 of this chapter) but does not, either because this assessment
is missing from your file or because it was not done, we will
reconstruct the residual functional capacity. This reconstructed
residual functional capacity will accurately and objectively assess your
functional capacity to do basic work activities. We will assign the
maximum functional capacity consistent with a decision of allowance.
Example: You were previously found to be disabled on the basis that
``while your impairment did not meet or equal a listing, it did prevent
you from doing your past or any other work.'' The prior adjudicator did
not, however, include a residual functional capacity assessment in the
rationale of this decision and a review of the prior evidence does not
show that such an assessment was ever made. If a decrease in medical
severity, i.e., medical improvement, has occurred, the residual
functional capacity based on the current level of severity of your
impairment will have to be compared with your residual functional
capacity based on its prior severity in order to determine if the
medical improvement is related to your ability to do work. In order to
make this comparison, we will review the prior evidence and make an
objective assessment of your residual functional capacity at the time of
our most recent favorable medical determination, based on the symptoms,
signs and laboratory findings as they then existed.
(D) Impairment subject to temporary remission. In some cases the
evidence shows that an individual's impairments are subject to temporary
remission. In assessing whether medical improvement has occurred in
persons with this type of impairment, we will be careful to consider the
longitudinal history of the impairment, including the occurrence of
prior remission, and prospects for future worsenings. Improvement in
such impairments that is only temporary will not warrant a finding of
medical improvement.
(E) Prior file cannot be located. If the prior file cannot be
located, we will first determine whether you are able to now engage in
substantial gainful activity based on all your current impairments. (In
this way, we will be able to determine that your disability continues at
the earliest point without addressing the often lengthy process of
reconstructing prior evidence.) If you cannot engage in substantial
gainful activity currently, your benefits will continue unless one of
the second group of exceptions applies (see
[[Page 740]]
paragraph (b)(4) of this section). If you are able to engage in
substantial gainful activity, we will determine whether an attempt
should be made to reconstruct those portions of the missing file that
were relevant to our most recent favorable medical decision (e.g., work
history, medical evidence from treating sources and the results of
consultative examinations). This determination will consider the
potential availability of old records in light of their age, whether the
source of the evidence is still in operation , and whether
reconstruction efforts will yield a complete record of the basis for the
most recent favorable medical decision. If relevant parts of the prior
record are not reconstructed either because it is determined not to
attempt reconstruction or because such efforts fail, medical improvement
cannot be found. The documentation of your current impairments will
provide a basis for any future reviews. If the missing file is later
found, it may serve as a basis for reopening any decision under this
section in accordance with Sec. 416.988.
(3) First group of exceptions to medical improvement. The law
provides for certain limited situations when your disability can be
found to have ended even though medical improvement has not occurred, if
you can engage in substantial gainful activity. These exceptions to
medical improvement are intended to provide a way of finding that a
person is no longer disabled in those limited situations where, even
though there has been no decrease in severity of the impairment(s),
evidence shows that the person should no longer be considered disabled
or never should have been considered disabled. If one of these
exceptions applies, we must also show that, taking all your current
impairment(s) into account, not just those that existed at the time of
our most recent favorable medical decision, you are now able to engage
in substantial gainful activity before your disability can be found to
have ended. As part of the review process, you will be asked about any
medical or vocational therapy you received or are receiving. Your
answers and the evidence gathered as a result as well as all other
evidence, will serve as the basis for the finding that an exception
applies.
(i) Substantial evidence shows that you are the beneficiary of
advances in medical or vocational therapy or technology (related to your
ability to work). Advances in medical or vocational therapy or
technology are improvements in treatment or rehabilitative methods which
have increased your ability to do basic work activities. We will apply
this exception when substantial evidence shows that you have been the
beneficiary of services which reflect these advances and they have
favorably affected the severity of your impairment or your ability to do
basic work activities. This decision will be based on new medical
evidence and a new residual functional capacity assessment. (See
Sec. 416.945.) This exception does not apply if you are eligible to
receive special Supplemental Security Income cash benefits as explained
in Sec. 416.261. In many instances, an advanced medical therapy or
technology will result in a decrease in severity as shown by symptoms,
signs and laboratory findings which will meet the definition of medical
improvement. This exception will, therefore, see very limited
application.
(ii) Substantial evidence shows that you have undergone vocational
therapy (related to your ability to work). Vocational therapy (related
to your ability to work) may include, but is not limited to, additional
education, training, or work experience that improves your ability to
meet the vocational requirements of more jobs. This decision will be
based on substantial evidence which includes new medical evidence and a
new residual functional capacity assessment. (See Sec. 416.945.) This
exception does not apply if you are eligible to receive special
Supplemental Security Income cash benefits as explained in Sec. 416.261.
If, at the time of our review, you have not completed vocational therapy
which could affect the continuance of your disability, we will review
your claim upon completion of the therapy.
Example 1: You were found to be disabled because the limitations
imposed on you by your impairment allowed you to only do work that was
at a sedentary level of exertion. Your prior work experience was work
that required a medium level of exertion. Your age and education at the
time would
[[Page 741]]
not have qualified you for work that was below this medium level of
exertion. You enrolled in and completed a specialized training course
which qualifies you for a job in data processing as a computer
programmer in the period since you were awarded benefits. On review of
your claim, current evidence shows that there is no medical improvement
and that you can still do only sedentary work. As the work of a computer
programmer is sedentary in nature, you are now able to engage in
substantial gainful activity when your new skills are considered.
Example 2: You were previously entitled to benefits because the
medical evidence and assessment of your residual functional capacity
showed you could only do light work. Your prior work was considered to
be heavy in nature and your age, education and the nature of your prior
work qualified you for work which was no less than medium in exertion.
The current evidence and residual functional capacity show there has
been no medical improvement and that you can still do only light work.
Since you were originally entitled to benefits, your vocational
rehabilitation agency enrolled you in and you successfully completed a
trade school course so that you are now qualified to do small appliance
repair. This work is light in nature, so when your new skills are
considered, you are now able to engage in substantial gainful activity
even though there has been no change in your residual functional
capacity.
(iii) Substantial evidence shows that based on new or improved
diagnostic or evaluative techniques your impairment(s) is not as
disabling as it was considered to be at the time of the most recent
favorable decision. Changing methodologies and advances in medical and
other diagnostic or evaluative techniques have given, and will continue
to give, rise to improved methods for measuring and documenting the
effect of various impairments on the ability to do work. Where, by such
new or improved methods, substantial evidence shows that your
impairment(s) is not as severe as was determined at the time of our most
recent favorable medical decision, such evidence may serve as a basis
for finding that you are no longer disabled, if you can currently engage
in substantial gainful activity. In order to be used under this
exception, however, the new or improved techniques must have become
generally available after the date of our most recent favorable medical
decision.
(A) How we will determine which methods are new or improved
techniques and when they become generally available. New or improved
diagnostic techniques or evaluations will come to our attention by
several methods. In reviewing cases, we often become aware of new
techniques when their results are presented as evidence. Such techniques
and evaluations are also discussed and acknowledged in medical
literature by medical professional groups and other governmental
entities. Through these sources, we develop listings of new techniques
and when they become generally available. For example, we will consult
the Health Care Financing Administration for its experience regarding
when a technique is recognized for payment under Medicare and when they
began paying for the technique.
(B) How you will know which methods are new or improved techniques
and when they become generally available. We will let you know which
methods we consider to be new or improved techniques and when they
become available through two vehicles.
(1) Some of the future changes in the Listing of Impairments in
appendix 1 of subpart P of part 404 of this chapter will be based on new
or improved diagnostic or evaluation techniques. Such listings changes
will clearly state this fact as they are published as Notices of
Proposed Rulemaking and the new or improved techniques will be
considered generally available as of the date of the final publication
of that particular listing in the Federal Register.
(2) A cumulative list since 1970 of new or approved diagnostic
techniques or evaluations, how they changed the evaluation of the
applicable impairment and the month and year they became generally
available, will be published in the Notices section of the Federal
Register. Included will be any changes in the Listing of Impairments
published in the Code of Federal Regulations since 1970 which are
reflective of new or improved techniques. No cases will be processed
under this exception until this cumulative listing is so published.
Subsequent changes to the list will be published periodically. The
period will be determined by the volume of changes needed.
Example: The electrocardiographic exercise test has replaced the
Master's 2-step test as a measurement of heart function since the
[[Page 742]]
time of your last favorable medical decision. Current evidence could
show that your condition, which was previously evaluated based on the
Master's 2-step test, is not now as disabling as was previously thought.
If, taking all your current impairments into account, you are now able
to engage in substantial gainful activity, this exception would be used
to find that you are no longer disabled even if medical improvement has
not occurred.
(iv) Substantial evidence demonstrates that any prior disability
decision was in error. We will apply the exception to medical
improvement based on error if substantial evidence (which may be
evidence on the record at the time any prior determination of the
entitlement to benefits based on disability was made, or newly obtained
evidence which relates to that determination) demonstrates that a prior
determination was in error. A prior determination will be found in error
only if:
(A) Substantial evidence shows on its face that the decision in
question should not have been made (e.g., the evidence in your file such
as pulmonary function study values was misread or an adjudicative
standard such as a listing in appendix 1 of subpart P of part 404 of
this chapter or a medical/vocational rule in appendix 2 of subpart P of
part 404 of this chapter was misapplied).
Example 1: You were granted benefits when it was determined that
your epilepsy met Listing 11.02. This listing calls for a finding of
major motor seizures more frequently than once a month as documented by
electroencephalogram evidence and by a detailed description of a typical
seizure pattern. A history of either diurnal episodes or nocturnal
episodes with residuals interfering with daily activities is also
required. On review, it is found that a history of the frequency of your
seizures showed that they occurred only once or twice a year. The prior
decision would be found to be in error, and whether you were still
considered to be disabled would be based on whether you could currently
engage in substantial gainful activity.
Example 2: Your prior award of benefits was based on vocational rule
201.12 in appendix 2 of subpart P of part 404 of this chapter. This rule
applies to a person age 50-54 who has at least a high school education,
whose previous work was entirely at a semiskilled level, and who can do
only sedentary work. On review, it is found that at the time of the
prior determination you were actually only age 46 and vocational rule
201.21 should have been used. This rule would have called for a denial
of your claim and the prior decision is found to have been in error.
Continuation of your disability would depend on a finding of your
current ability to engage in substantial gainful activity.
(B) At the time of the prior evaluation, required and material
evidence of the severity of your impairment(s) was missing. That
evidence becomes available upon review, and substantial evidence
demonstrates that had such evidence been present at the time of the
prior determination, disability would not have been found.
Example: You were found disabled on the basis of chronic obstructive
pulmonary disease. The severity of your impairment was documented
primarily by pulmonary function testing results. The evidence showed
that you could do only light work. Spirometric tracings of this testing,
although required, were not obtained, however. On review, the original
report is resubmitted by the consultative examining physician along with
the corresponding spirometric tracings. A review of the tracings shows
that the test was invalid. Current pulmonary function testing supported
by spirometric tracings reveals that your impairment does not limit your
ability to perform basic work activities in any way. Error is found
based on the fact that required, material evidence which was originally
missing now becomes available and shows that if it had been available at
the time of the prior determination, disability would not have been
found.
(C) Substantial evidence which is new evidence which relates to the
prior determination (of allowance or continuance) refutes the
conclusions that were based upon the prior evidence (e.g., a tumor
thought to be malignant was later shown to have actually been benign).
Substantial evidence must show that had the new evidence, (which relates
to the prior determination) been considered at the time of the prior
decision, the claim would not have been allowed or continued. A
substitution of current judgment for that used in the prior favorable
decision will not be the basis for applying this exception.
Example: You were previously found entitled to benefits on the basis
of diabetes mellitus which the prior adjudicator believed was equivalent
to the level of severity contemplated in the Listing of Impairments. The
prior record shows that you had ``brittle'' diabetes for which you were
taking insulin. Your urine was 3+ for sugar, and you alleged occasional
hypoglycemic attacks
[[Page 743]]
caused by exertion. On review, symptoms, signs and laboratory findings
are unchanged. The current adjudicator feels, however, that your
impairment clearly does not equal the severity contemplated by the
listings. Error cannot be found because it would represent a
substitution of current judgment for that of the prior adjudicator that
your impairment equaled a listing.
(D) The exception for error will not be applied retroactively under
the conditions set out above unless the conditions for reopening the
prior decision (see Secs. 416.1488 through 416.1489) are met.
(v) You are currently engaging in substantial gainful activity. If
you are currently engaging in substantial gainful activity before we
determine whether you are no longer disabled because of your work
activity, we will consider whether you are entitled to a trial work
period as set out in Sec. 416.992. We will find that your disability has
ended in the month in which you demonstrated your ability to engage in
substantial gainful activity (following completion of a trial work
period, where it applies). This exception does not apply if you are
eligible to receive special Supplemental Security Income cash benefits
as explained in Sec. 416.261. This exception also does not apply in
determining whether you continue to have a disabling impairment(s)
(Sec. 416.911) for purposes of deciding your eligibility for a
reentitlement period (Sec. 416.992a).
(4) Second group of exceptions to medical improvement. In addition
to the first group of exceptions to medical improvement, the following
exceptions may result in a determination that you are no longer
disabled. In these situations the decision will be made without a
determination that you have medically improved or can engage in
substantial gainful activity.
(i) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 416.1488. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(ii) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical or
other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you have
good cause for failure to cooperate. In addition, Sec. 416.918 discusses
how we determine whether you have good cause for failing to attend a
consultative examination. The month in which your disability ends will
be the first month in which you failed to do what we asked.
(iii) We are unable to find you. If there is a question about
whether you continue to be disabled and we are unable to find you to
resolve the question, we will suspend your payments. The month your
payments are suspended will be the first month in which the question
arose and we could not find you.
(iv) You fail to follow prescribed treatment which would be expected
to restore your ability to engage in substantial gainful activity. If
treatment has been prescribed for you which would be expected to restore
your ability to work, you must follow that treatment in order to be paid
benefits. If you are not following that treatment and you do not have
good cause for failing to follow that treatment, we will find that your
disability has ended (see Sec. 416.930(c)). The month your disability
ends will be the first month in which you failed to follow the
prescribed treatment.
(5) Evaluation steps. To assure that disability reviews are carried
out in a uniform manner, that a decision of continuing disability can be
made in the most expeditious and administratively efficent way, and that
any decisions to stop disability benefits are made objectively,
neutrally and are fully documented, we will follow specific steps in
reviewing the question of whether your disability continues. Our review
may cease and benefits may be continued at any point if we determine
[[Page 744]]
there is sufficient evidence to find that you are still unable to engage
in substantial gainful activity. The steps are:
(i) Are you engaging in substantial gainful activity? If you are
(and any applicable trial work period has been completed), we will find
disability to have ended (see paragraph (b)(3)(v) of this section).
(ii) If you are not, do you have an impairment or combination of
impairments which meets or equals the severity of an impairment listed
in appendix 1 of subpart P of part 404 of this chapter? If you do, your
disability will be found to continue.
(iii) If you do not, has there been medical improvement as defined
in paragraph (b)(1)(i) of this section? If there has been medical
improvement as shown by a decrease in medical severity, see step (iv).
If there has been no decrease in medical severity, there has been no
medical improvement. (See step (v).)
(iv) If there has been medical improvement, we must determine
whether it is related to your ability to do work in accordance with
paragraphs (b)(1)(i) through (b)(1)(iv) of this section; i.e., whether
or not there has been an increase in the residual functional capacity
based on the impairment(s) that was present at the time of the most
recent favorable medical determination. If medical improvement is not
related to your ability to work, see step (v). If medical improvement is
related to your ability to do work, see step (vi).
(v) If we found at step (iii) that there has been no medical
improvement or if we found at step (iv) that the medical improvement is
not related to your ability to work, we consider whether any of the
exceptions in paragraphs (b)(3) and (b)(4) of this section apply. If
none of them apply, your disability will be found to continue. If one of
the first group of exceptions to medical improvement applies, see step
(vi). If an exception from the second group of exceptions to medical
improvement applies, your disability will be found to have ended. The
second group of exceptions to medical improvement may be considered at
any point in this process.
(vi) If medical improvement is shown to be related to your ability
to do work or if one of the first group of exceptions to medical
improvement applies, we will determine whether all your current
impairments (in combination) are severe (see Sec. 416.921). This
determination will consider all your current impairments and the impact
of the combination of these impairments on your ability to function. If
the residual functional capacity assessment in step (iv) above shows
significant limitaton of your ability to do basic work activities, see
step (vii). When the evidence shows that all your current impairments in
combination do not significantly limit your physical or mental abilities
to do basic work activities, these impairments will not be considered
severe in nature. If so, you will no longer be considered to be
disabled.
(vii) If your impairment(s) is severe, we will assess your current
ability to engage in substantial gainful activity in accordance with
Sec. 416.961. That is we will assess your residual functional capacity
based on all your current impairments and consider whether you can still
do work you have done in the past. If you can do such work, disability
will be found to have ended.
(viii) If you are not able to do work you have done in the past, we
will consider one final step. Given the residual functional capacity
assessment and considering your age, education and past work experience,
can you do other work? If you can, disability will be found to have
ended. If you cannot, disability will be found to continue.
(6) The month in which we will find you are no longer disabled. If
the evidence shows that you are no longer disabled, we will find that
your disability ended in the following month--
(i) For purposes of Sec. 416.1331 (under which benefits can be paid
for the month in which disability ends and the two following months) the
earliest of the following months--
(A) The month the evidence shows that you are no longer disabled
under the rules set out in this section, and you were disabled only for
a specified period of time in the past;
(B) The month the evidence shows that you are no longer disabled
under the rules set out in this section, but not earlier than the month
in which we mail you a notice saying that the
[[Page 745]]
information we have shows that you are not disabled;
(C) The month in which you return to full-time work, with no
significant medical restrictions and acknowledge that medical
improvement has occurred, and we expected your impairment(s) to improve
(see Sec. 416.991);
(D) The first month following completion of your trial work period
for which it is determined that you have demonstrated the ability to do
substantial gainful activity;
(E) The first month in which you fail without good cause to follow
prescribed treatment, when the rule set out in paragraph (b)(4)(iv) of
this section applies;
(F) The first month in which you were told by your physician that
you could return to work provided there is no substantial conflict
between your physkcian's and your statements regarding your awareness of
your capacity for work and the earlier date is supported by substantial
evidence; or
(G) The first month in which you failed without good cause to do
what we asked, when the rule set out in paragraph (b)(4)(ii) of this
section applies.
(ii) For all other purposes, the month preceding the termination
month. The termination month, as that term is used in this paragraph, is
the first month after the 15-month reentitlement period (described in
Sec. 416.992a, in which you engage in or are determined able to engage
in substantial gainful activity or, if earlier, the first month after a
trial work period in which your impairment is determined, based on
medical or other evidence, to no longer exist or not be a disabling
impairment as described in Sec. 416.911.
(7) Before we stop your benefits. If we find you are no longer
disabled, before we stop your benefits, we will give you a chance to
explain why we should not do so. Subparts M and N of this part describe
your rights and the procedures we will follow.
(c) Persons who were found disabled under a State plan. If you
became entitled to benefits because you were found to be disabled under
a State plan, we will first evaluate your impairment(s) under the rules
explained in paragraph (b) of this section. We will apply the same steps
as described in paragraph (b) of this section to the last decision
granting or affirming entitlement to benefits under the State plan. If
we are not able to find that your disability continues on the basis of
these rules, we will then evaluate your impairment(s) under the
appropriate State plan. If we are not able to find that your disability
continues under these State plan criteria, we will find that your
disability ends. Disability will be found to end the month the evidence
shows that you are no longer disabled under the criteria in paragraph
(b) of this section (or appropriate State plan criteria), subject to the
rules set out in paragraph (b)(6) of this section.
[50 FR 50137, Dec. 6, 1985; 51 FR 7063, Feb. 28, 1986; 51 FR 16015, Apr.
30, 1986, as amended at 52 FR 44971, Nov. 24, 1987; 56 FR 5562, Feb. 11,
1991; 59 FR 1636, Jan. 12, 1994]
Sec. 416.994a How we will determine whether your disability continues or ends, disabled children.
(a) Evaluation of continuing disability, in general. There is a
statutory requirement that, if you are eligible for disability benefits
as a disabled child, your continued eligibility for such benefits must
be reviewed periodically. There are a number of factors we consider when
we decide whether your disability continues.
(1) If your current impairment(s) does not meet or equal any current
listing, we determine whether there has been any medical improvement in
your impairment(s) that is ``related to the ability to work,'' i.e.,
your ability to function independently, appropriately, and effectively
in an age-appropriate manner. (We define the term ``medical
improvement'' in paragraph (c). We define the term ``related to the
ability to work'' as it applies to children in paragraph (d).) If there
has not been any medical improvement in your impairment(s), or if the
medical improvement is not related to the ability to work, we will
generally find that your disability continues; there are exceptions to
this general rule, which we describe in paragraphs (f) and (g). If there
has been medical improvement related to the ability to work, or when
certain exceptions apply, we will
[[Page 746]]
determine whether you are currently disabled under the rules in
Secs. 416.924 through 416.924e. Even where medical improvement related
to your ability to work or an exception applies, in most cases, we will
find that your disability has ended only if we also find that you are
not currently disabled.
(2) Our determinations and decisions under this section will be made
on a neutral basis, without any initial inference as to the presence or
absence of disability being drawn from the fact that you have been
previously found disabled. We will consider all evidence you submit, as
well as all evidence we obtain from your treating physician(s) and other
medical and nonmedical sources. What constitutes ``evidence'' and our
procedures for obtaining it are set out in Secs. 416.912 through
416.918. Our determination regarding whether your disability continues
will be made on the basis of the weight of the evidence.
(b) Sequence of evaluation. To assure that disability reviews are
carried out in a uniform manner, that decisions of continuing disability
can be made in the most expeditious and administratively efficient way,
and that any decisions to stop disability benefits are made objectively,
neutrally, and are fully documented, we follow specific steps in
determining whether your disability continues. If we can make a
favorable determination or decision at any point in the sequence, we do
not review further. The steps are:
(1) Do you have an impairment(s) that meets or equals the severity
of any impairment listed in appendix 1 of subpart P of part 404 of this
chapter? If you have an impairment that meets a current listing, or an
impairment or combination of impairments that is of equivalent severity
to a current listing, we will find that your disability continues. For
our rules on how we determine whether impairments meet or are equivalent
to listings, see Secs. 416.925 and 416.926a.
(2) Has there been medical improvement in your condition(s)? If you
do not have an impairment(s) that meets or is equivalent to any current
listing we will determine whether there has been medical improvement in
your impairment(s) since our most recent favorable determination or
decision. (The term medical improvement is defined in paragraph (c).) If
there has been medical improvement, as shown by a decrease in the
medical severity of your impairment(s), we will proceed to the next
step. If there has been no decrease in the medical severity of your
impairment(s), we will find that your disability continues, unless one
of the exceptions to medical improvement described in (f) or (g)
applies.
(i) If one of the first group of exceptions to medical improvement
applies, we will proceed to step 4.
(ii) If one of the second group of exceptions to medical improvement
applies, we may find that your disability has ended.
(3) If there has been medical improvement, is it related to the
ability to work? If there has been medical improvement in your
impairment(s), we will determine whether your medical improvement is
related to the ability to work, as defined for children in (d). If it
is, we will proceed to the next step. If the medical improvement of your
impairment(s) is not related to the ability to work, we will find that
your disability continues, unless one of the exceptions to medical
improvement described in (f) or (g) applies.
(i) If one of the first group of exceptions to medical improvement
applies, we will proceed to the next step.
(ii) If one of the second group of exceptions to medical improvement
applies, we may find that your disability has ended.
(4) Do you have a severe impairment or combination of impairments?
If there has been medical improvement in your impairment(s) related to
the ability to work, or if one of the first group of exceptions applies,
we will determine whether your current impairment(s) is severe, as
defined in Sec. 416.924(d). If your impairment(s) is not severe, we will
find that your disability has ended. If your impairment(s) is severe, we
will proceed to the last step.
(5) Are you currently disabled? In connection with our determination
that there has been medical improvement in your impairment(s) related to
the ability to work, or if one of the first group of exceptions applies,
and you have a severe impairment or combination of impairments, we will
do an individualized functional assessment of the
[[Page 747]]
impact of your impairment(s) on your overall ability to function
independently, appropriately, and effectively in an age-appropriate
manner. (See Secs. 416.924d and 416.924e.) We will use this
individualized functional assessment to decide whether you are currently
disabled; that is, whether you have an impairment(s) of comparable
severity to an impairment that would prevent an adult from engaging in
substantial gainful activity. We will apply the rules and guidelines
governing the last step of the childhood sequential evaluation process
for initial claims in Sec. Sec. 416.924 through 416.924e. If you are
currently disabled, your eligibility will continue. If you are not
currently disabled, your eligibility for disability benefits will end.
(c) What we mean by medical improvement. Medical improvement is any
decrease in the medical severity of your impairment(s) which was present
at the time of the most recent favorable decision that you were disabled
or continued to be disabled. A determination that there has been a
decrease in medical severity must be based on changes (improvement) in
the symptoms, signs, or laboratory findings associated with your
impairment(s).
(1) The most recent favorable decision is the latest final
determination or decision involving a consideration of the medical
evidence and whether you were disabled or continued to be disabled.
(2) The terms symptoms, signs, and laboratory findings are defined
in Sec. 416.928. For children, our definitions of the terms symptoms,
signs, and laboratory findings may include any abnormalities of physical
and mental functioning that we used in making our most recent favorable
decision.
(3) Some impairments are subject to temporary remissions, which can
give the appearance of medical improvement when in fact there has been
none. If you have the kind of impairment that is subject to temporary
remissions, we will be careful to consider the longitudinal history of
the impairment, including the occurrence of prior remissions and
prospects for future worsenings, when we decide whether there has been
medical improvement. Improvements that are only temporary will not
warrant a finding of medical improvement.
(4) If we find that there has been improvement in your symptoms,
signs, or laboratory findings, we will find that medical improvement has
occurred and proceed to determine whether the medical improvement is
related to your ability to work.
(d) What we mean by medical improvement related to the ability to
work. For a child, we say that medical improvement is related to the
ability to work when there has been an increase in the ability to
function independently, appropriately, and effectively in an age-
appropriate manner. Hence, if your impairment(s) has medically improved
as defined in (c), but your ability to function in an age-appropriate
manner has not increased, we will find that your medical improvement is
not related to your ability to work. A determination that there has been
medical improvement related to your ability to work does not necessarily
mean that we will find that your disability has ended. We must also show
that you are not currently disabled using rules governing severity and
the last step of the childhood sequential evaluation process for initial
claims in Sec. Sec. 416.924 through 416.924e. We determine whether
medical improvement is related to the ability to work as follows:
(1) Previous decision based on a finding that your impairment(s) met
or equaled a listing. (i) We do not consider whether your impairment(s)
has medically improved until we have decided that you do not have an
impairment(s) that meets or equals a current listing. If our most recent
favorable decision was based on a finding that your impairment(s) met or
equaled in severity a listing that is in our current Listing of
Impairments and your impairment(s) no longer meets or equals that
listing, we will find at this step that your medical improvement was
related to your ability to work. We will do an individualized functional
assessment and proceed to determine whether you are currently disabled
or whether one of the exceptions applies, as set forth in paragraph
(b)(5) of this section.
(ii) If our most recent favorable decision was based on a finding
that your
[[Page 748]]
impairment(s) met or equaled a listing that is no longer in the Listing
of Impairments or that has since been revised, we will consider whether
your impairment(s) continues to meet or equal that prior listing at this
step. If your impairment(s) continues to meet or equal the prior
listing, we will find that your disability continues, even though your
impairment(s) does not meet or equal any current listing. If your
impairment does not meet or equal the prior listing, we will find that
your medical improvement was related to your ability to work. We will do
an individualized functional assessment and proceed to determine whether
you are currently disabled or whether one of the exceptions applies, as
set forth in paragraph (b)(5) of this section.
(2) Previous decision based on an individualized functional
assessment. If our most recent favorable decision was based on an
individualized functional assessment, we will do a new individualized
functional assessment based on the previously existing impairments.
However, the new individualized functional assessment will take into
consideration any current medical findings or functional limitations
related to the previously existing impairments, and will be based on
those functions that are appropriate to your current age.
(i) We will use this assessment to determine whether there has been
an increase in your ability to function in an age-appropriate manner
since our most recent favorable decision by comparing our current
assessment with the assessment we made at the time of the most recent
favorable decision.
(ii) We will not generally do a new individualized functional
assessment for the time of the most recent favorable decision; we will
use the assessment we made at the time of the last decision. However, if
the most recent favorable decision was based on an individualized
functional assessment and we do not have that assessment (for example,
because it is missing from your file), we will have to reconstruct the
assessment. We will do this by assuming that you had the maximum
functional abilities consistent with a decision of allowance or
continuance at the time of the most recent favorable decision.
(iii) If there has been improvement in your age-appropriate
functioning, we will find that your medical improvement is related to
the ability to work, and proceed to determine whether you are currently
disabled or whether one of the exceptions applies, as set forth in
paragraph (b)(5) of this section.
(e) Prior file cannot be located. If we cannot locate your prior
file, we will first determine whether you are currently disabled under
the sequence set forth in Sec. 416.924. (In this way, we will determine
that your benefits continue at the earliest time without reconstructing
prior evidence.) If so, your benefits will continue unless one of the
second group of exceptions applies (see paragraph (g) of this section).
If not, we will determine whether an attempt should be made to
reconstruct those portions of the missing file that were relevant to our
most recent favorable decision (e.g., school records, medical evidence
from treating sources, and the results of consultative examinations).
This determination will consider the potential availability of old
records in light of their age, whether the source of the evidence is
still in operation, and whether reconstruction efforts will yield a
complete record of the basis for the most recent favorable decision. If
relevant parts of the prior record are not reconstructed, either because
we decide not to attempt reconstruction or because our efforts failed,
we will not find that you have medically improved. The documentation of
your current impairment(s) will provide a basis for any future reviews.
If the missing file is later found, it may serve as a basis for
reopening any determination or decision under this section, in
accordance with Sec. 416.1488.
(f) First group of exceptions to medical improvement. The law
provides certain limited situations when your disability can be found to
have ended even though medical improvement has not occurred, if your
impairment(s) is no longer of comparable severity to any impairment(s)
that would make an adult disabled. These exceptions to medical
improvement are intended to provide a way of finding that a person is no
longer disabled in those limited situations where, even though there has
been no decrease in severity of the
[[Page 749]]
impairment(s), evidence shows that the person should no longer be
considered disabled or never should have been considered disabled. If
one of these exceptions applies, we must also show that your
impairment(s) is now no longer of comparable severity to any
impairment(s) that would disable an adult before we can find you are no
longer disabled, taking all your current impairments into account, not
just those that existed at the time of our most recent favorable
decision. As part of the review process, you will be asked about any
medical or vocational therapy you received or are receiving. Your
answers and the evidence gathered as a result, as well as all other
evidence, will serve as the basis for the finding that an exception
applies.
(1) Substantial evidence shows that you are the beneficiary of
advances in medical or vocational therapy or technology (related to your
ability to work). Advances in medical or vocational therapy or
technology are improvements in treatment or rehabilitative methods which
have reduced the severity of your impairment(s). We will apply this
exception when substantial evidence shows that you have been the
beneficiary of services which reflect these advances and they have
favorably affected the severity of your impairment or your ability to
function in an age-appropriate manner. This decision will be based on
substantial evidence which includes new medical evidence and a new
individualized functional assessment. (See Secs. 416.924d and 416.924e.)
This exception does not apply if you are eligible to receive special
Supplemental Security Income cash benefits, as explained in
Sec. 416.261. In many instances, an advanced medical therapy or
technology will result in a decrease in severity as shown by symptoms,
signs, and laboratory findings which will meet the definition of medical
improvement. This exception should, therefore, have limited application.
(2) Substantial evidence shows that you have undergone vocational
therapy (related to your ability to work). Vocational therapy (related
to your ability to work) may include, but is not limited to, education,
training, or work experience that improves your ability to meet the
vocational requirements of jobs. This decision will be based on
substantial evidence which includes new medical evidence and a new
individualized functional assessment. (See Secs. 416.924d and 416.924e.)
This exception does not apply if you are eligible to receive special
Supplemental Security Income cash benefits, as explained in
Sec. 416.261. If at the time of our review, you have not completed
vocational therapy which could affect the continuance of your
disability, we will review your claim upon completion of the therapy.
(3) Substantial evidence shows that, based on new or improved
diagnostic or evaluative techniques, your impairment(s) is not as
disabling as it was considered to be at the time of the most recent
favorable decision. Changing methodologies and advances in medical and
other diagnostic or evaluative techniques have given rise to, and will
continue to give rise to, improved methods for determining the causes of
(i.e., diagnosing) and measuring and documenting the effects of various
impairments on children and their functioning. Where, by such new or
improved methods, substantial evidence shows that your impairment(s) is
not as severe as was determined at the time of our most recent favorable
decision, such evidence may serve as a basis for a finding that you are
no longer disabled, provided that you do not currently have an
impairment(s) that is of comparable severity to an impairment(s) that
would disable an adult. In order to be used under this exception,
however, the new or improved techniques must have become generally
available after the date of our most recent favorable decision.
(i) How we will determine which methods are new or improved
techniques and when they become generally available. New or improved
diagnostic techniques or evaluations will come to our attention by
several methods. In reviewing cases, we often become aware of new
techniques when their results are presented as evidence. Such techniques
and evaluations are also discussed and acknowledged in medical
literature by medical professional groups and other governmental
entities. Through these sources, we develop listings of new techniques
and when they become generally available. For example, we will
[[Page 750]]
consult the Health Care Financing Administration for its experience
regarding when a technique is recognized for payment under Medicare and
when they began paying for the technique.
(ii) How you will know which methods are new or improved techniques
and when they become generally available. We will let you know which
methods we consider to be new or improved techniques and when they
become available through two vehicles.
(A) Some of the future changes in the Listing of Impairments in
appendix 1 of subpart P of part 404 of this chapter will be based on new
or improved diagnostic or evaluative techniques. Such listings changes
will clearly state this fact as they are published as Notices of
Proposed Rulemaking and the new or improved technique will be considered
generally available as of the date of the final publication of that
particular listing in the Federal Register.
(B) From time to time, we will publish in the Federal Register
cumulative lists of new or approved diagnostic techniques or evaluations
that have been in use since 1970, how they changed the evaluation of the
applicable impairment and the month and year they became generally
available. We will include any changes in the Listing of Impairments
published in the Code of Federal Regulations since 1970 that are
reflective of new or improved techniques. We will not process any cases
under this exception using a new or improved diagnostic technique that
we have not included in a published notice until we have published an
updated cumulative list. The period between publications will be
determined by the volume of changes needed.
(4) Substantial evidence demonstrates that any prior disability
decision was in error. We will apply the exception to medical
improvement based on error if substantial evidence (which may be
evidence on the record at the time any prior determination or decision
of the entitlement to benefits based on disability was made, or newly
obtained evidence which relates to that determination or decision)
demonstrates that a prior determination or decision (of allowance or
continuance) was in error. A prior determination or decision will be
found in error only if:
(i) Substantial evidence shows on its face that the determination or
decision in question should not have been made (e.g., the evidence in
your file, such as pulmonary function study values, was misread, or an
adjudicative standard, such as a listing in appendix 1 of subpart P of
part 404 of this chapter, was misapplied).
(ii) At the time of the prior evaluation, required and material
evidence of the severity of your impairment(s) was missing. That
evidence becomes available upon review, and substantial evidence
demonstrates that, had such evidence been present at the time of the
prior determination or decision, disability would not have been found.
(iii) New substantial evidence that relates to the prior
determination or decision refutes the conclusions that were based upon
the prior evidence at the time of that determination or decision (e.g.,
a tumor thought to be malignant was later shown to have actually been
benign). Substantial evidence must show that, had the new evidence
(which relates to the prior determination or decision) been considered
at the time of the prior determination or decision, the claim would not
have been allowed or continued. A substitution of current judgment for
that used in the prior favorable determination or decision will not be
the basis for applying this exception.
(iv) The exception for error will not be applied retroactively under
the conditions set out above unless the conditions for reopening the
prior decision (see Secs. 416.1488 and 416.1489) are met.
(g) Second group of exceptions to medical improvement. In addition
to the first group of exceptions to medical improvement, the following
exceptions may result in a determination or decision that you are no
longer disabled. In these situations, the determination or decision will
be made without a finding that you have demonstrated medical improvement
related to the ability to work or that you are currently not disabled
under the rules in Secs. 416.924 through 416.924e. There is no set point
in the continuing disability review sequence described in paragraph (b)
of this section at which we must consider
[[Page 751]]
these exceptions; exceptions in the second group may be considered at
any point in the process.
(1) A prior determination or decision was fraudulently obtained. If
we find that any prior favorable determination or decision was obtained
by fraud, we may find that you are not disabled. In addition, we may
reopen your claim under the rules in Sec. 416.1488. In determining
whether a prior favorable determination or decision was fraudulently
obtained, we will take into account any physical, mental, educational,
or linguistic limitations (including any lack of facility with the
English language) which you may have had at the time.
(2) You do not cooperate with us. If there is a question about
whether you continue to be disabled and we ask you to give us medical or
other evidence or to go for a physical or mental examination by a
certain date, we will find that your disability has ended if you fail,
without good cause, to do what we ask. Section 416.1411 explains the
factors we consider and how we will determine generally whether you have
good cause for failure to cooperate. In addition, Sec. 416.918 discusses
how we determine whether you have good cause for failing to attend a
consultative examination. The month in which your disability ends will
be the first month in which you failed to do what we asked.
(3) We are unable to find you. If there is a question about whether
you continue to be disabled and we are unable to find you to resolve the
question, we will suspend your payments. The month your payments are
suspended will be the first month in which the question arose and we
could not find you.
(4) You fail to follow prescribed treatment which would be expected
to restore your ability to function independently, appropriately, and
effectively in an age-appropriate manner. If treatment has been
prescribed for you which would be expected to restore your ability to
function independently, appropriately, and effectively in an age-
appropriate manner, you must follow that treatment in order to be paid
benefits. If you are not following that treatment and you do not have
good cause for failing to follow that treatment, we will find that your
disability has ended (see Sec. 416.930(c)). The month your disability
ends will be the first month in which you failed to follow the
prescribed treatment.
(h) The month in which we will find you are no longer disabled. If
the evidence shows that you are no longer disabled, we will find that
your disability ended in the following month--
(1) The month the evidence shows that you are no longer disabled
under the rules set out in this section, and you were disabled only for
a specified period of time in the past;
(2) The month the evidence shows that you are no longer disabled
under the rules set out in this section, but not earlier than the month
in which we mail you a notice saying that the information we have shows
that you are not disabled;
(3) The month in which you return to, or begin, full-time work with
no significant medical restrictions, and acknowledge that medical
improvement has occurred, and we expected your impairment(s) to improve
(see Sec. 416.991);
(4) The first month in which you fail without good cause to follow
prescribed treatment, when the rule set out in paragraph (g)(4) of this
section applies;
(5) The first month in which you were told by your physician that
you could return to age-appropriate activities, provided there is no
substantial conflict between your physician's and your statements
regarding your awareness of your capacity, and the earlier date is
supported by substantial evidence; or
(6) The first month in which you failed without good cause to do
what we asked, when the rule set out in paragraph (g)(2) of this section
applies.
(i) Before we stop your benefits. If we find you are no longer
disabled, before we stop your benefits, we will give you a chance to
explain why we should not do so. Subparts M and N of this part describe
your rights and the procedures we will follow.
[56 FR 5562, Feb. 11, 1991; 56 FR 13266, 13365, Apr. 1, 1991, as amended
at 58 FR 47586, Sept. 9, 1993; 59 FR 1637, Jan. 12, 1994]
[[Page 752]]
Sec. 416.995 If we make a determination that your physical or mental impairment(s) has ceased, did not exist or is no longer disabling (Medical Cessation Determination).
If we make a determination that the physical or mental impairment(s)
on the basis of which disability or blindness benefits were payable has
ceased, did not exist or is no longer disabling (a medical cessation
determination), your benefits will stop. You will receive a written
notice explaining this determination and the month your benefits will
stop. The written notice will also explain your right to appeal if you
disagree with our determination and your right to request that your
disability or blindness benefits be continued under Sec. 416.996. The
continued benefit provisions of this section do not apply to an initial
determination on an application for disability or blindness benefits or
to a determination that you were disabled or blind only for a specified
period of time.
[53 FR 29023, Aug. 2, 1988]
Sec. 416.996 Continued disability or blindness benefits pending appeal of a medical cessation determination.
(a) General. If we determine that you are not eligible for
disability or blindness benefits because the physical or mental
impairment(s) on the basis of which such benefits were payable is found
to have ceased, not to have existed, or to no longer be disabling, and
you appeal that determination, you may choose to have your disability or
blindness benefits, including special cash benefits or special SSI
eligibility status under Secs. 416.261 and 416.264, continued pending
reconsideration and/or a hearing before an administrative law judge on
the disability/blindness cessation determination. If you appeal a
medical cessation under both title II and title XVI (a concurrent case),
the title II claim will be handled in accordance with title II
regulations while the title XVI claim will be handled in accordance with
the title XVI regulations.
(1) Benefits may be continued under this section only if the
determination that your physical or mental impairment(s) has ceased, has
never existed, or is no longer disabling is made after October 1984.
(2) Continued benefits under this section will stop effective with
the earlier of: (i) The month before the month in which an
administrative law judge's hearing decision finds that your physical or
mental impairment(s) has ceased, has never existed, or is no longer
disabling or the month before the month of a new administrative law
judge decision (or final action is taken by the Appeals Council on the
administrative law judge's recommended decision) if your case was sent
back to an administrative law judge for further action; or (ii) the
month before the month in which no timely request for reconsideration or
administrative law judge hearing is pending after notification of our
initial or reconsideration cessation determination. These benefits may
be stopped or adjusted because of certain events (such as, change in
income or resources or your living arrangements) which may occur while
you are receiving these continued benefits, in accordance with
Sec. 416.1336(b).
(b) Statement of choice. If you or another party (see
Sec. 416.1432(a)) request reconsideration under Sec. 416.1409 or a
hearing before an administrative law judge in accordance with
Sec. 416.1433 on our determination that your physical or mental
impairment(s) has ceased, has never existed, or is no longer disabling,
or if your case is sent back (remanded) to an administrative law judge
for further action, we will explain your right to receive continued
benefits and ask you to complete a statement indicating that you wish to
have benefits continued pending the outcome of the reconsideration or
administrative law judge hearing. If you request reconsideration and/or
hearing but you do not want to receive continued benefits, we will ask
you to complete a statement declining continued benefits indicating that
you do not want to have your benefits continued during the appeal. A
separate election must be made at each level of appeal.
(c) What you must do to receive continued benefits pending notice of
our reconsideration determination. (1) If you want to receive continued
benefits pending the outcome of your request for reconsideration, you
must request
[[Page 753]]
reconsideration and continuation of benefits no later than 10 days after
the date you receive the notice of our initial determination that your
physical or mental impairment(s) has ceased, has never existed, or is no
longer disabling. Reconsideration must be requested as provided in
Sec. 416.1409, and you must request continued benefits using a statement
in accordance with paragraph (b) of this section.
(2) If you fail to request reconsideration and continued benefits
within the 10-day period required by paragraph (c)(1) of this section,
but later ask that we continue your benefits pending a reconsidered
determination, we will use the rules in Sec. 416.1411 to determine
whether good cause exists for your failing to request benefit
continuation within 10 days after receipt of the notice of the initial
cessation determination. If you request continued benefits after the 10-
day period, we will consider the request to be timely and will pay
continued benefits only if good cause for delay is established.
(d) What you must do to receive continued benefits pending an
administrative law judge's decision. (1) To receive continued benefits
pending an administrative law judge's decision on our reconsideration
determination, you must request a hearing and continuation of benefits
no later than 10 days after the date you receive the notice of our
reconsideration determination that your physical or mental impairment(s)
has ceased, has never existed, or is no longer disabling. A hearing must
be requested as provided in Sec. 416.1433, and you must request
continued benefits using a statement in accordance with paragraph (b) of
this section.
(2) If you fail to request a hearing and continued benefits within
the 10-day period required under paragraph (d)(1) of this section, but
you later ask that we continue your benefits pending an administrative
law judge's decision, we will use the rules as provided in Sec. 416.1411
to determine whether good cause exists for your failing to request
benefit continuation within 10 days after receipt of the reconsideration
determination. If you request continued benefits after the 10-day
period, we will consider the delayed request to be timely and will pay
continued benefits only if good cause for delay is established.
(e) What you must do when your case is remanded to an administrative
law judge. If we send back (remand) your case to an administrative law
judge for further action under the rules provided in Sec. 416.1477, and
the administrative law judge's decision or dismissal order issued on
your medical cessation appeal is vacated and is no longer in effect, you
may be eligible for continued benefits pending a new decision by the
administrative law judge or final action by the Appeals Council on the
administrative law judge's recommended decision.
(1) When your case is remanded to an administrative law judge, and
you have elected to receive continued benefits, we will contact you to
update our file to verify that you continue to meet the nonmedical
requirements to receive benefits based on disability or blindness. To
determine your correct payment amount, we will ask you to provide
information about events such as changes in living arrangements, income,
or resources since our last contact with you. If you have returned to
work, we will request additional information about this work activity.
Unless your earnings cause your income to be too much to receive
benefits, your continued benefits will be paid while your appeal of the
medical cessation of your disability/blindness is still pending, unless
you have completed a trial work period and are engaging in substantial
gainful activity. If you have completed a trial work period and
previously received continued benefits you may still be eligible for
special cash benefits under Sec. 416.261 or special SSI eligibility
status under Sec. 416.264. (Effective July 1, 1987, a title XVI
individual is no longer subject to a trial work period or cessation
based on engaging in substantial gainful activity in order to be
eligible for special benefits under Sec. 416.261 or special status under
Sec. 416.264.) If we determine that you no longer meet a requirement to
receive benefits, we will send you a written notice. The written notice
will explain why your continued benefits will not be reinstated or will
be for an amount less than you received before the prior administrative
law judge's
[[Page 754]]
decision. The notice will also explain your right to reconsideration
under Sec. 416.1407, if you disagree. If you request a reconsideration,
you will have the chance to explain why you believe your benefits should
be reinstated or should be at a higher amount. If the final decision on
your appeal of your medical cessation is a favorable one, we will send
you a written notice in which we will advise you of any right to
reentitlement to benefits including special benefits under Sec. 416.261
or special status under Sec. 416.264. If you disagree with our
determination on your appeal, you will have the right to appeal this
decision.
(2) After we verify that you meet all the nonmedical requirements to
receive benefits as stated in paragraph (e)(1) of this section, and if
you previously elected to receive continued benefits pending the
administrative law judge's decision, we will start continued benefits
again. We will send you a notice telling you this. You do not have to
complete a request to have these same benefits continued through the
month before the month the new decision or order of dismissal is issued
by the administrative law judge or through the month before the month
the Appeals Council takes final action on the administrative law judge's
recommended decision. These continued benefits will begin again with the
first month of nonpayment based on the prior administrative law judge
hearing decision or dismissal order. Our notice explaining continued
benefits will also tell you to report to us any changes or events that
affect your receipt of benefits.
(3) When your case is remanded to an administrative law judge, and
if you did not previously elect to have benefits continued pending an
administrative law judge decision, we will send you a notice telling you
that if you want to change that election, you must request to do so no
later than 10 days after you receive our notice. If you do make this new
election, and after we verify that you meet all the nonmedical
requirements as explained in paragraph (e)(1) of this section, benefits
will begin with the month of the Appeals Council remand order and will
continue as stated in paragraph (e)(2) of this section.
(4) If a court orders that your case be sent back to us (remanded)
and your case is sent to an administrative law judge for further action
under the rules provided in Sec. 416.1483, the administrative law
judge's decision or dismissal order on your medical cessation appeal is
vacated and is no longer in effect. You may be eligible for continued
benefits pending a new decision by the administrative law judge or final
action by the Appeals Council on the administrative law judge's
recommended decision. In these court-remanded cases reaching the
administrative law judge, we will follow the same rules provided in
paragraph (e) (1), (2), and (3) of this section.
(f) What if your benefits are suspended, reduced or terminated for
other reasons. If we determine that your payments should be reduced,
suspended or terminated for reasons not connected with your medical
condition (see subpart M of Regulations No. 16) benefits may be
continued under the procedure described in Sec. 416.1336.
(g) Responsibility to pay back continued benefits. (1) If the final
decision of the Secretary affirms the determination that you are not
entitled to benefits, you will be asked to pay back any continued
benefits you receive. However, you will have the right to ask that you
not be required to pay back the benefits as described in the overpayment
recovery and waiver provisions of subpart E of this part.
(2) Waiver of recovery of an overpayment resulting from continued
benefits to you may be considered as long as the cessation determination
was appealed in good faith. We will assume that your appeal was made in
good faith and, therefore, you have the right to waiver consideration
unless you fail to cooperate in connection with the appeal, e.g., if you
fail (without good reason) to give us medical or other evidence we
request, or to go for a physical or mental examination when requested,
in connection with the appeal. In determining whether you have good
cause for failure to cooperate and, thus, whether an appeal was made in
good faith, we will take into account any physical, mental, educational,
or
[[Page 755]]
linguistic limitations (including any lack of facility with the English
language) you may have which may have caused your failure to cooperate.
[53 FR 29023, Aug. 2, 1988; 53 FR 39015, Oct. 4, 1988, as amended at 59
FR 1637, Jan. 12, 1994]
Sec. 416.998 If you become disabled by another impairment(s).
If a new severe impairment(s) begins in or before the month in which
your last impairment(s) ends, we will find that your disability is
continuing. The new impairment(s) need not be expected to last 12 months
or to result in death, but it must be severe enough to keep you from
doing substantial gainful activity, or severe enough so that you are
still disabled under Sec. 416.994.
[50 FR 50147, Dec. 6, 1985; 51 FR 16015, Apr. 30, 1986]
Subpart J--Determinations of Disability
Sec. 416.1001 Purpose and scope.
This subpart describes the standards of performance and
administrative requirements and procedures for States making
determinations of disability for the Secretary under title XVI of the
Act. It also establishes the Secretary's responsibilities in carrying
out the disability determination function.
(a) Sections 416.1001 through 416.1003 describe the purpose of the
regulations and the meaning of terms frequently used in the regulations.
They also briefly set forth the responsibilities of the Secretary and
the States covered in detail in other sections.
(b) Sections 416.1010 through 416.1018 describe the Secretary's and
the State's responsibilities in performing the disability determination
function.
(c) Sections 416.1020 through 416.1033 describe the administrative
responsibilities and requirements of the States. The corresponding role
of the Secretary is also set out.
(d) Sections 416.1040 through 416.1050 describe the performance
accuracy and processing time standards for measuring State agency
performance.
(e) Sections 416.1060 through 416.1061 describe when and what kind
of assistance the Secretary will provide State agencies to help them
improve performance.
(f) Sections 416.1070 through 416.1075 describe the level of
performance below which the Secretary will consider a State agency to be
substantially failing to make disability determinations consistent with
the regulations and other written guidelines and the resulting action
the Secretary will take.
(g) Sections 416.1080 through 416.1083 describe the rules for
resolving disputes concerning fiscal issues and providing hearings when
we propose to find that a State is in substantial failure.
(h) Sections 416.1090 through 416.1094 describe when and what action
the Secretary will take and what action the State will be expected to
take if the Secretary assumes the disability determination function from
a State agency.
Sec. 416.1002 Definitions.
For purposes of this subpart:
Act means the Social Security Act, as amended.
Class or classes of cases means the categories into which disability
claims are divided according to their characteristics.
Determination of disability or disability determination means one or
more of the following decisions:
(a) Whether or not a person is under a disability;
(b) The date a person's disability began; or
(c) The date a person's disability ended.
Disability means disability or blindness as defined in sections
1614(a)(2) and (3) of the Act.
Disability determination function means making determinations as to
disability or blindness and carrying out related administrative and
other responsibilities.
Disability program means the Federal program for providing
supplemental security income benefits for the blind
[[Page 756]]
and disabled under title XVI of the Act, as amended.
Initial means the first level of disability or blindness
adjudication.
Other written guidelines means written issuances such as Social
Security Rulings and memoranda by the Commissioner of Social Security,
the Deputy Commissioner for Programs, or the Associate Commissioner for
Disability and the procedures, guides, and operating instructions in the
Disability Insurance sections of the Program Operations Manual System
that are instructive, interpretive, clarifying, and/or administrative
and not designated as advisory or discretionary. The purpose of
including the foregoing material in the definition is to assure uniform
national application of program standards and service delivery to the
public.
Regulations means regulations in this subpart issued under sections
1102, 1631(c) and 1633(a) of the Act, unless otherwise indicated.
Secretary means the Secretary of the Department of Health and Human
Services or the Secretary's delegate.
State means any of the 50 States of the United States and the
District of Columbia. It includes the State agency.
State agency means that agency of a State which has been designated
by the State to carry out the disability determination function.
We, us, and our refers to the Social Security Administration (SSA)
or the Secretary, as appropriate.
[46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991]
Sec. 416.1003 Basic responsibilities for us and the State.
(a) General. We will work with the State to provide and maintain an
effective system for processing claims of those who apply for and who
are receiving benefits under the disability program. We will provide
program standards, leadership, and oversight. We do not intend to become
involved in the State's ongoing management of the program except as is
necessary and in accordance with these regulations. The State will
comply with our regulations and other written guidelines.
(b) Our responsibilities. We will:
(1) Periodically review the regulations and other written guidelines
to determine whether they insure effective and uniform administration of
the disability program. To the extent feasible, we will consult with and
take into consideration the experience of the States in issuing
regulations and guidelines necessary to insure effective and uniform
administration of the disability program;
(2) Provide training materials or in some instances conduct or
specify training (see Sec. 416.1022);
(3) Provide funds to the State agency for the necessary cost of
performing the disability determination function (see Sec. 416.1026);
(4) Monitor and evaluate the performance of the State agency under
the established standards (see Secs. 416.1044 and 416.1045); and
(5) Maintain liaison with the medical profession nationally and with
national organizations and agencies whose interests or activities may
affect the disability program.
(c) Responsibilities of the State. The State will:
(1) Provide management needed to insure that the State agency
carries out the disability determination function so that disability
determinations are made accurately and promptly;
(2) Provide an organizational structure, adequate facilities,
qualified personnel, medical consultant services, and a quality
assurance function (Secs. 416.1020 through 416.1024);
(3) Furnish reports and records relating to the administration of
the disability program (Sec. 416.1025);
(4) Submit budgets (Sec. 416.1026);
(5) Cooperate with audits (Sec. 416.1027);
(6) Insure that all applicants for and recipients of disability
benefits are treated equally and courteously;
(7) Be responsible for property used for disability program purposes
(Sec. 416.1028);
(8) Take part in the research and demonstration projects
(Sec. 416.1029);
(9) Coordinate with other agencies (Sec. 416.1030);
(10) Safeguard the records created by the State in performing the
disability determination function (Sec. 416.1031);
(11) Comply with other provisions of the Federal law and regulations
that
[[Page 757]]
apply to the State in performing the disability determination function;
(12) Comply with other written guidelines (Sec. 416.1033);
(13) Maintain liaison with the medical profession and organizations
that may facilitate performing the disability determination function;
and
(14) Assist us in other ways that we determine may promote the
objectives of effective and uniform administration.
Responsibilities for Performing the Disability Determination Function
Sec. 416.1010 How a State notifies us that it wishes to perform the disability determination function.
(a) Deemed notice. Any State that has in effect as of June 1, 1981,
an agreement with us to make disability determinations will be deemed to
have given us notice that it wishes to perform the disability
determination function, in lieu of continuing the agreement in effect
after June 1, 1981.
(b) Written notice. After June 1, 1981, a State not making
disability determinations that wishes to perform the disability
determination function under these regulations must notify us in
writing. The notice must be from an official authorized to act for the
State for this purpose. The State will provide an opinion from the
State's Attorney General verifying the authority of the official who
sent the notice to act for the State.
Sec. 416.1011 How we notify a State whether it may perform the disability determination function.
(a) If a State notifies us in writing that it wishes to perform the
disability determination function, we will notify the State in writing
whether or not it may perform the function. The State will begin
performing the disability determination function beginning with the
month we and the State agree upon.
(b) If we have previously found that a State agency has
substantially failed to make disability determinations in accordance
with the law or these regulations and other written guidelines or if the
State has previously notified us in writing that it does not wish to
make disability determinations, the notice will advise the State whether
the State agency may again make the disability determinations and, if
so, the date and the conditions under which the State may again make
them.
Sec. 416.1013 Disability determinations the State makes.
(a) General rule. A State agency will make determinations of
disability with respect to all persons in the State except those
individuals whose cases are in a class specifically excluded by our
written guidelines. A determination of disability made by the State is
the determination of the Secretary, except as described in
Sec. 416.903(d)(1).
(b) New classes of cases. Where any new class or classes of cases
arise requiring determinations of disability, we will determine the
conditions under which a State may choose not to make the disability
determinations. We will provide the State with the necessary funding to
do the additional work.
(c) Temporary transfer of classes of cases. We will make disability
determinations for classes of cases temporarily transferred to us by the
State agency if the State agency asks us to do so and we agree. The
State agency will make written arrangements with us which will specify
the period of time and the class or classes of cases we will do.
Sec. 416.1014 Responsibilities for obtaining evidence to make disability determinations.
(a) The State agency will secure from the claimant, or other
sources, any evidence it needs to make a disability determination.
(b) We will secure from the claimant or other special arrangement
sources, any evidence we can obtain as adequately and more readily than
the State agency. We will furnish the evidence to the State agency for
use in making a disability determination
(c) At our request, the State agency will obtain and furnish medical
or other evidence and provide assistance as may be necessary for us to
carry out our responsibility for making disability determinations in
those classes of cases described in the written guidelines for which the
State agency does not make the determination.
[[Page 758]]
Sec. 416.1015 Making disability determinations.
(a) When making a disability determination, the State agency will
apply subpart I, part 416, of our regulations.
(b) The State agency will make disability determinations based only
on the medical and nonmedical evidence in its files.
(c) Disability determinations will be made by either:
(1) A State agency medical or psychological consultant and a State
agency disability examiner;
(2) A State agency disability examiner alone when there is no
medical evidence to be evaluated (i.e., no medical evidence exists or we
are unable, despite making every reasonable effort, to obtain any
medical evidence that may exist) and the individual fails or refuses,
without a good reason, to attend a consultative examination (see
Sec. 416.918); or
(3) A State agency disability hearing officer.
See Sec. 416.1016 for the definition of medical or psychological
consultant and Sec. 416.1415 for the definition of disability hearing
officer. The State agency disability examiner and disability hearing
officer must be qualified to interpret and evaluate medical reports and
other evidence relating to the claimant's physical or mental impairments
and as necessary to determine the capacities of the claimant to perform
substantial gainful activity. See Sec. 416.972 for what we mean by
substantial gainful activity.
(d) An initial determination by the State agency that an individual
is not disabled, in any case where there is evidence which indicates the
existence of a mental impairment, will be made only after every
reasonable effort has been made to ensure that a qualified psychiatrist
or psychologist has completed the medical portion of the case review and
any applicable residual functional capacity assessment. (See
Sec. 416.1016 for the qualifications we consider necessary for a
psychologist to be a psychological consultant and Sec. 416.1017 for what
we mean by reasonable effort.) If the services of qualified
psychiatrists or psychologists cannot be obtained because of impediments
at the State level, the Secretary may contract directly for the
services. In a case where there is evidence of mental and nonmental
impairments and a qualified psychologist serves as a psychological
consultant, the psychologist will evaluate only the mental impairment,
and a physician will evaluate the nonmental impairment. The overall
determination of impairment severity in combined mental and nonmental
impairment cases will be made by a medical consultant and not a
psychological consultant unless the mental impairment alone would
justify a finding of disability.
(e) In making a determination under title XVI with respect to the
disability of a child to whom paragraph (d) of this section does not
apply, we will make reasonable efforts to ensure that a qualified
pediatrician or other individual who specializes in a field of medicine
appropriate to the child's impairment(s) evaluates the case of the
child.
(f) The State agency will certify each determination of disability
to us on forms we provide.
(g) The State agency will furnish us with all the evidence it
considered in making its determination.
(h) The State agency will not be responsible for defending in court
any determination made, or any procedure for making determinations,
under these regulations.
[52 FR 23928, Sept. 9, 1987, as amended at 56 FR 11021, Mar. 14, 1991;
58 FR 47587, Sept. 9, 1993; 61 FR 11136, Mar. 19, 1996]
Effective Date Note: At 61 FR 11136, Mar. 19, 1996, Sec. 416.1015
was amended by removing the ``or'' at the end of paragraph (c)(1), by
redesignating paragraph (c)(2) as paragraph (c)(3), and by adding a new
paragraph (c)(2), effective April 18, 1996.
Sec. 416.1016 Medical or psychological consultant.
A medical consultant must be a physician. A psychological consultant
used in cases where there is evidence of a mental impairment must be a
qualified psychologist. For disability program purposes, a psychologist
will not be considered qualified unless he or she:
(a) Is licensed or certified as a psychologist at the independent
practice
[[Page 759]]
level of psychology by the State in which he or she practices; and
(b) (1) Possesses a doctorate degree in psychology from a program in
clinical psychology of an educational institution accredited by an
organization recognized by the Council on Post-Secondary Accreditation;
or
(2) Is listed in a national register of health service providers in
psychology which the Secretary of Health and Human Services deems
appropriate; and
(c) Possesses 2 years of supervised clinical experience as a
psychologist in health service, at least 1 year of which is post masters
degree.
[52 FR 23928, Sept. 9, 1987]
Sec. 416.1017 Reasonable efforts to obtain review by a qualified psychiatrist or psychologist.
(a) The State agency must determine if additional qualified
psychiatrists and psychologists are needed to make the necessary reviews
(see Sec. 416.1015(d)). Where it does not have sufficient resources to
make the necessary reviews, the State agency must attempt to obtain the
resources needed. If the State agency is unable to obtain additional
psychiatrists and psychologists because of low salary rates or fee
schedules it should attempt to raise the State agency's levels of
compensation to meet the prevailing rates for psychiatrists' and
psychologists' services. If these efforts are unsuccessful, the State
agency will seek assistance from us. We will assist the State agency as
necessary. We will also monitor the State agency's efforts and where the
State agency is unable to obtain the necessary services, we will make
every reasonable effort to provide the services using Federal resources.
(b) Federal resources may include the use of Federal contracts for
the services of qualified psychiatrists and psychologists to review
mental impairment cases. Where Federal resources are required to perform
these reviews, which are a basic State agency responsibility, and where
appropriate, the State agency's budget will be reduced accordingly.
(c) Where every reasonable effort is made to obtain the services of
a qualified psychiatrist or psychologist to review a mental impairment
case, but the professional services are not obtained, a physician who is
not a psychiatrist will review the mental impairment case. For these
purposes, every reasonable effort to ensure that a qualified
psychiatrist or psychologist review mental impairment cases will be
considered to have been made only after efforts by both State and
Federal agencies as set forth in paragraphs (a) and (b) of this section
are made.
[52 FR 23928, Sept. 9, 1987]
Sec. 416.1018 Notifying claimant of the disability determination.
The State agency will prepare denial notices in accordance with
subpart N of this part whenever it makes a disability determination
which is wholly or partly unfavorable to the claimant.
Administrative Responsibilities and Requirements
Sec. 416.1020 General administrative requirements.
(a) The State will provide the organizational structure, qualified
personnel, medical consultant services, and a quality assurance function
sufficient to ensure that disability determinations are made accurately
and promptly. We may impose specific administrative requirements in
these areas and in those under ``Administrative Responsibilities and
Requirements'' in order to establish uniform, national administrative
practices or to correct the areas of deficiencies which may later cause
the State to be substantially failing to comply with our regulations or
other written guidelines. We will notify the State, in writing, of the
administrative requirements being imposed and of any administrative
deficiencies it is required to correct. We will allow the State 90 days
from the date of this notice to make appropriate corrections. Once
corrected, we will monitor the State's administrative practices for 180
days. If the State does not meet the requirements or correct all of the
deficiencies, or, if some of the deficiencies recur, we may initiate
procedures to determine if the State is substantially failing to follow
our regulations or other written guidelines.
[[Page 760]]
(b) The State is responsible for making accurate and prompt
disability determinations.
[46 FR 29211, May 29, 1981, as amended at 56 FR 11021, Mar. 14, 1991; 56
FR 13365, Apr. 1, 1991]
Sec. 416.1021 Personnel.
(a) Equal Employment Opportunity. The State will comply with all
applicable Federal statutes, executive orders and regulations concerned
with equal employment opportunities.
(b) Selection, tenure, and compensation. The State agency will,
except as may be inconsistent with paragraph (a) of this section, adhere
to applicable State approved personnel standards in the selection,
tenure, and compensation of any individual employed in the disability
program.
(c) Travel. The State will make personnel available to attend
meetings or workshops as may be sponsored or approved by us for
furthering the purposes of the disability program.
(d) Restrictions. Subject to appropriate Federal funding, the State
will, to the best of its ability, facilitate the processing of
disability claims by avoiding personnel freezes, restrictions against
overtime work, or curtailment of facilities or activities.
Sec. 416.1022 Training.
The State will insure that all employees have an acceptable level of
competence. We will provide training and other instructional materials
to facilitate basic and advanced technical proficiency of disability
staff in order to insure uniformity and effectiveness in the
administration of the disability program. We will conduct or specify
training, as appropriate but only if:
(a) A State agency's performance approaches unacceptable levels or
(b) The material required for the training is complex or the
capacity of the State to deliver the training is in doubt and uniformity
of the training is essential.
Sec. 416.1023 Facilities.
(a) Space, equipment, supplies, and other services. Subject to
appropriate Federal funding, the State will provide adequate space,
equipment, supplies, and other services to facilitate making accurate
and prompt disability determinations.
(b) Location of facilities. Subject to appropriate Federal funding,
the State will determine the location where the disability determination
function is to be performed so that disability determinations are made
accurately and promptly.
(c) Access. The State will permit us access to the premises where
the disability determination function is performed and also where it is
managed for the purposes of inspecting and obtaining information about
the work and activities required by our regulations and assuring
compliance with pertinent Federal statutes and regulations. Access
includes personal onsite visits and other means, such as
telecommunications, of contacting the State agency to obtain information
about its functions. We will contact the State agency and give
reasonable prior notice of the times and purposes of any visits.
[46 FR 29211, May 29, 1981, as amended at 56 FR 11022, Mar. 14, 1991]
Sec. 416.1024 Medical and other purchased services.
The State will determine the rates of payment to be used for
purchasing medical or other services necessary to make determinations of
disability. The rates may not exceed the highest rate paid by Federal or
other agencies in the State for the same or similar type of service. The
State will maintain documentation to support the rates of payment it
uses.
Sec. 416.1025 Records and reports.
(a) The State will establish and maintain the records and furnish
the schedules, financial, cost, and other reports relating to the
administration of the disability programs as we may require.
(b) The State will permit us and the Comptroller General of the
United States (including duly authorized representatives) access to and
the right to examine records relating to the work which the State
performs under these regulations. These records will be retained by the
State for the periods of time specified for retention of records
[[Page 761]]
in the Federal Procurement Regulations (41 CFR parts 1-20).