[Federal Register Volume 61, Number 54 (Tuesday, March 19, 1996)]
[Rules and Regulations]
[Pages 11133-11136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6375]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Regulations Nos. 4 and 16]
RIN 0960-AD88
Signature Requirements for State Agency Medical and Psychological
Consultants in Disability Determinations
AGENCY: Social Security Administration (SSA).
ACTION: Final rules.
-----------------------------------------------------------------------
SUMMARY: We are revising the requirements of the Social Security and
Supplemental Security Income (SSI) regulations regarding the
certifications required on the disability determination forms used by
State agencies to certify determinations of disability. Present
regulations require that, unless the disability determination is made
by a State agency disability hearing officer, disability determinations
made by a State agency will be made by a State agency medical or
psychological consultant and a State agency disability examiner. This
includes determinations made on technical, non-medical, rather than
medical, grounds. We are revising our rules to remove the requirement
that a medical or psychological consultant sign the disability
determination forms used by the State agency to certify each
determination, when there is no medical evidence to be evaluated. In
such cases, the disability examiner may make the determination alone.
EFFECTIVE DATE: April 18, 1996.
FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,
Division of Regulations and Rulings, Social Security Administration,
6401 Security Boulevard, Baltimore, Maryland 21235, (410) 965-6243.
SUPPLEMENTARY INFORMATION:
Background
The Social Security Act (the Act) provides, in title II, for the
payment of disability insurance benefits to individuals insured under
the Act. Title II also provides for the payment of child's insurance
benefits based on disability and widow's and widower's insurance
benefits for disabled widows, widowers, and surviving divorced spouses
of insured individuals. In addition, the Act provides, in title XVI,
for SSI payments to persons who are aged, blind, or disabled and who
have limited income and resources. For adults under both the title II
and title XVI programs and for persons claiming child's insurance
benefits based on disability under the title II program,
[[Page 11134]]
``disability'' means the inability to engage in any substantial gainful
activity by reason of any medically determinable impairment which has
lasted or can be expected to last for a continuous period of not less
than 12 months or result in death. For an individual under age 18
claiming SSI benefits based on disability, ``disability'' means that
the individual's impairment(s) is of comparable severity to one that
would disable an adult (i.e., the impairment(s) substantially reduces
the individual's ability to function independently, appropriately, and
effectively in an age-appropriate manner such that the individual's
impairment(s) and resulting limitations are comparable to those that
would disable an adult). The individual's impairment(s) must also meet
the statutory duration requirement.
Sections 221 and 1633(a) of the Act and Secs. 404.1503 and 416.903
of our regulations provide that State agencies make disability and
blindness determinations for the Commissioner of Social Security for
most persons living in the State. Sections 404.1615(c) and 416.1015(c)
of the regulations provide that disability determinations will be made
by either: (1) a State agency medical or psychological consultant and a
State agency disability examiner or (2) a State agency disability
hearing officer. In addition, a single decisionmaker may make the
determination of disability for purposes of the tests we are conducting
under the authority of the final rules we published on April 24, 1995,
``Testing Modifications to the Disability Determination Procedures,''
(60 FR 20023). (To be codified at 20 CFR 404.906 and 416.1406). These
final rules do not affect the procedures we are following for the
purposes of those tests.
Sections 404.1615(e) and 416.1015(f) of the regulations require the
State agency to certify each determination of disability to the Social
Security Administration (SSA) on forms provided by SSA. The term
``determination of disability'' is defined in Secs. 404.1602 and
416.1002 of the regulations to mean one or more of the following
decisions: whether or not a person is under a disability; the date a
person's disability began; or the date a person's disability ended.
When a disability determination is made jointly by a State agency
medical or psychological consultant and a State agency disability
examiner, the medical or psychological consultant is responsible for
the medical portion of the determination, and the disability examiner
is responsible for the remainder of the determination. Under our
current procedures for these cases, both the disability examiner and
the medical or psychological consultant must certify the determination
on forms which we provide as required in the regulations.
In some instances the requirement for the medical or psychological
consultant's certification is unnecessary because the determination is
made on technical, non-medical, grounds alone, without consideration of
any medical evidence. Many medical and psychological consultants who
work with the State agencies do so on a part-time basis and are not
always available to sign disability determination forms. This can
result in delays of cases that are otherwise complete because no
medical evaluation or expertise is necessary.
This happens, for example, when an individual who has no history of
medical treatment or examination--and, hence, no existing medical
records that we can obtain--refuses to attend a consultative
examination purchased at our expense. In such a case, the State agency
makes its determination on technical, non-medical, rather than medical,
grounds. It denies such a claim because, without the individual's
cooperation, the evidence needed to determine whether the individual is
disabled cannot be obtained. Nevertheless, our current rules require
that a medical or psychological consultant sign the standard disability
determination form in such a case, even though there is no medical
evidence and no medical findings that can be made.
Change Made by This Rule
We are addressing the above issue by revising Secs. 404.1615 and
416.1015 of the regulations to provide, in a new paragraph (c)(2), that
a State agency disability examiner alone may make the disability
determination when there is no medical evidence to be evaluated, such
as when there is no existing medical evidence and the individual
refuses to attend a consultative examination. We are redesignating
current paragraph (c)(2), which provides that a State agency disability
hearing officer may also make disability determinations, as paragraph
(c)(3).
Public Comments
On October 26, 1994, we published these revisions in a Notice of
Proposed Rulemaking (NPRM) in the Federal Register (59 FR 53769). We
invited interested persons, organizations, and groups to submit their
comments on the NPRM within 60 days.
We received letters from four State agencies, three legal
advocates, and a vocational rehabilitation council. Five commenters
indicated support for the rule, two opposed it, and one provided
comments without indicating either support or opposition.
Comment: One commenter requested that we broaden the provision to
state that the medical or psychological consultant's signature is not
required on the disability determination form if the consultant has
furnished a written medical severity assessment.
Response: We are currently considering alternatives to our
procedures for documenting medical or psychological consultant
participation in the disability determination. In February 1994, we
provided temporary procedures for State agencies to document medical or
psychological consultant participation in certain cases with the
consultant's signature on a document other than the disability
determination form. We are also considering ways to expand this
procedure to other cases. We do not believe that a regulatory change
beyond the changes made by these final rules is appropriate at this
time.
Comment: Another commenter recommended that we broaden the
provision to include cases in which there is some medical evidence, but
the substantive conclusion of whether an individual is disabled appears
obvious. The commenter also suggested including cases involving only
medical evidence from outside the period at issue in the case, and
cases that include some medical evidence but are still denied based on
failure to attend a consultative examination.
Response: This kind of expansion would not be consistent with the
scope or intent of this rule. We believe that the presence of medical
evidence in connection with a claim for benefits is sufficient reason
to require the special expertise of a medical or psychological
consultant, even if the outcome seems ``obvious'' or the evidence seems
immaterial to a lay person. Therefore, we did not make these changes.
Comment: Three commenters expressed concern about the scope and
meaning of the proposed provisions. All three were concerned that cases
with insufficient medical evidence will be denied on a technical basis;
i.e., without the participation of a medical or psychological
consultant. Two of these commenters requested clarification of the
phrase ``no medical evidence.'' Two stated that existing regulations
(Secs. 404.1516, 404.1518, 416.916, and 416.918) require a medical
evaluation of the case when an individual fails or refuses to attend a
consultative examination. They said that the decision should,
therefore, be made
[[Page 11135]]
with the participation of a medical or psychological consultant.
Response: We have changed the proposed rules to clarify what we
mean by ``no medical evidence.'' The final rules do not apply if the
file contains some medical evidence, even if such evidence is
insufficient to make a determination or contains no findings to support
a determination that the claimant is disabled. In such a case, the
medical or psychological consultant and disability examiner must make
the determination as a team.
We disagree with the commenters who stated that existing
regulations require a medical evaluation of the case when an individual
fails or refuses to attend a consultative examination. Our current
regulations (Secs. 404.1518 and 416.918) state only that if a claimant
does ``not have a good reason for failing or refusing to take part in a
consultative examination * * *, we may find that you are not disabled *
* * .'' This provision does not require a medical evaluation of such a
case, and we believe that it would be futile to attempt to make such an
evaluation in the absence of any medical evidence. Although we do not
necessarily agree that Secs. 404.1516 and 416.916 apply to this
situation, they do not prescribe any specific kind of case evaluation
(i.e., a medical evaluation). They merely provide that we will ``make a
decision based on information available in your case.''
Comment: The same commenters were concerned that disability
examiners will not make adequate attempts to obtain medical evidence.
Two of these commenters stated that only a physician should decide
whether the case is unsupported by medical evidence. One observed that
the rule does not define ``medical evidence,'' and another stated that
a physician should be involved in deciding what is or is not medical
evidence.
Response: These new rules do not alter the existing statutory and
regulatory requirement that, before we make a determination that an
individual is not disabled, we develop a complete medical history for
at least the 12 months preceding the month in which the application is
filed, unless there is reason to believe that development of an earlier
period is necessary or unless the claimant states that his or her
disability began less than 12 months before the application is filed.
These rules also do not alter the existing requirement that we make
every reasonable effort to obtain medical evidence from the
individual's own medical sources, as provided for in sections
223(d)(5)(B) and 1614(a)(3)(G) of the Act and Secs. 404.1512(d) and
416.912(d) of our regulations. We have revised these final rules to
emphasize that we will continue to do so.
Our existing regulations, Secs. 404.1513 and 416.913, set forth the
requirements for the contents of medical evidence and reports, and
these rules do not change those requirements. We do not agree that a
physician's expertise is required to determine whether evidence is
``medical evidence'', or to evaluate non-medical evidence.
Comment: Two commenters requested a more definitive identification
of the circumstances that justify the provision.
Response: We have clarified the circumstances under which the final
rules apply. They apply whenever there is no medical evidence to be
evaluated and the claimant fails or refuses, without a good reason, to
attend a consultative examination. The final versions of
Secs. 404.1615(c)(2) and 416.1015(c)(2) make this clear.
Comment: A number of commenters observed that mental illness or
other factors may be the basis for an individual's failure to
cooperate.
Response: Existing regulations include provisions on good cause for
failure to attend a consultative examination. Regulations
Secs. 404.1518 and 416.918 require us to consider an individual's
physical, mental, educational and linguistic limitations when
determining whether he or she has a good reason for failing to attend a
consultative examination. Nevertheless, in the final rules we have
clarified that they apply only if the individual fails or refuses to
attend a consultative examination without a good reason, and have
provided a cross-reference to Secs. 404.1518 and 416.918.
Except for these clarifications, several minor, non-substantive
technical changes, and corrections to authority citations, we are
adopting the proposed rules as final rules.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these final rules do not meet the criteria for a
significant regulatory action under Executive Order 12866. Therefore,
they are not subject to OMB review.
Regulatory Flexibility Act
We certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
affect individuals' eligibility for program benefits under the Social
Security Act. Therefore, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
These regulations will impose no additional reporting or
recordkeeping requirements necessitating clearance by OMB.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security-Disability Insurance; and 96.006, Supplemental Security
Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Death benefits,
Disability benefits, Old-Age, Survivors and Disability Insurance,
Reporting and recordkeeping requirements, Social security.
20 CFR Part 416
Administrative practice and procedure, Aged, Blind, Disability
benefits, Public assistance programs, Supplemental Security Income
(SSI), Reporting and recordkeeping requirements.
Dated: March 8, 1996.
Shirley S. Chater,
Commissioner of Social Security.
For the reasons set out in the preamble, subpart Q of part 404 and
subpart J of part 416 of chapter III of title 20 of the Code of Federal
Regulations are amended as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-- )
Subpart Q--[Amended]
1. The authority citation for subpart Q of part 404 continues to
read as follows:
Authority: Secs. 205(a), 221, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).
2. Section 404.1615 is amended by removing the ``or'' at the end of
paragraph (c)(1), by adding a semicolon after paragraph (c)(1), by
redesignating paragraph (c)(2) as paragraph (c)(3), and by adding a new
paragraph (c)(2) to read as follows:
Sec. 404.1615 Making disability determinations.
* * * * *
(c) * * *
(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
[[Page 11136]]
that may exist) and the individual fails or refuses, without a good
reason, to attend a consultative examination (see Sec. 404.1518); or
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart J--[Amended]
3. The authority citation for subpart J continues to read as
follows:
Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).
4. Section 416.1015 is 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) to read as follows:
Sec. 416.1015 Making disability determinations.
* * * * *
(c) * * *
(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
* * * * *
[FR Doc. 96-6375 Filed 3-18-96; 8:45 am]
BILLING CODE 4190-29-P