[Federal Register Volume 69, Number 80 (Monday, April 26, 2004)]
[Notices]
[Pages 22578-22580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-9337]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 04-1(9)]


Howard on behalf of Wolff v. Barnhart; Applicability of the 
Statutory Requirement for Pediatrician Review in Childhood Disability 
Cases to the Hearings and Appeals Levels of the Administrative Review 
Process--Title XVI of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 04-
1(9).

EFFECTIVE DATE: April 26, 2004.

FOR FURTHER INFORMATION CONTACT: Wanda D. Mason, Office of Acquiescence 
and Litigation Coordination, Social Security Administration, 6401 
Security Boulevard, Baltimore, MD 21235-6401, (410) 966-5044, or TTY 
(800) 966-5609.

SUPPLEMENTARY INFORMATION: We are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).

[[Page 22579]]

    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling to decisions made 
at the Administrative Law Judge and Appeals Council levels of our 
administrative review process concerning the disability or continuing 
disability of individuals under age 18 under title XVI of the Act. If 
we made a decision about your disability between August 29, 2003, the 
date of the Court of Appeals' decision, and (Insert Federal Register 
publication date), the effective date of this Social Security 
Acquiescence Ruling, you may request application of the Social Security 
Acquiescence Ruling to the prior decision. You must demonstrate, 
pursuant to 20 CFR 416.1485(b)(2), that application of the Ruling could 
change our prior decision in your case.
    Additionally, when we received this precedential Court of Appeals' 
decision and determined that a Social Security Acquiescence Ruling 
might be required, we began to identify those claims that were pending 
before us within the circuit that might be subject to readjudication if 
an Acquiescence Ruling were subsequently issued. Because we have 
determined that an Acquiescence Ruling is required and are publishing 
this Social Security Acquiescence Ruling, we will send a notice to 
those individuals whose claims we have identified. The notice will 
provide information about the Acquiescence Ruling and how to request 
readjudication under the Ruling. It is not necessary for an individual 
to receive a notice in order to request application of this Social 
Security Acquiescence Ruling to the prior decision on his or her claim 
as provided in 20 CFR 416.1485(b)(2), discussed above.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided in 20 CFR 416.1485(e). If we decide to relitigate 
the issue covered by this Social Security Acquiescence Ruling as 
provided by 20 CFR 416.1485(c), we will publish a notice in the Federal 
Register stating that we will apply our interpretation of the Act or 
regulations involved and explaining why we have decided to relitigate 
the issue.
(Catalog of Federal Domestic Assistance, Program No. 96.006-- 
Supplemental Security Income.)

    Dated: March 22, 2004.
Jo Anne B. Barnhart,
Commissioner of Social Security.

Acquiescence Ruling 04-1(9)

    Howard on behalf of Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 
2003)--Applicability of the Statutory Requirement for Pediatrician 
Review in Childhood Disability Cases to the Hearings and Appeals Levels 
of the Administrative Review Process--Title XVI of the Social Security 
Act.
    Issue: Whether the provisions of section 1614(a)(3)(I) of the 
Social Security Act apply to Administrative Law Judge(ALJ) and 
Administrative Appeals Judge(AAJ) decisions.
    Statute/Regulation/Ruling Citation: Sections 1614(a)(3)(C), 
1614(a)(3)(I) and 1633(a) of the Social Security Act (42 U.S.C. 
1382c(a)(3)(C), 1382c(a)(3)(I), and 1383b(a)); 20 CFR 416.903, 
416.1400, 416.1401, 416.1402, 416.1407, 416.1015, 416.1016 and 
416.1429.
    Circuit: Ninth (Alaska, Arizona, California, Guam, Hawaii, Idaho, 
Montana, Nevada, Northern Mariana Islands, Oregon, Washington).
    Howard on behalf of Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 
2003).
    Applicability of Ruling: This Ruling applies only to the 
Administrative Law Judge (ALJ) and Appeals Council levels of the 
administrative review process in 20 CFR 416.1400.
    Description of Case: Sherry Howard, the maternal aunt and legal 
guardian of Sarah Wolff, applied for Supplemental Security Income (SSI) 
payments based on disability on behalf of her niece, in 1996, when 
Sarah was 3 years old. Sarah was found disabled due to secondary 
borderline IQ and developmental delays under the version of the law in 
effect at that time.
    Effective August 22, 1996, section 211 of Public Law 104-193, The 
Personal Responsibility and Work Opportunity Act of 1996, amended 
section 1614(a)(3)(C) of the Act, 42 U.S.C. 1382c(a)(3)(C) and 
established a new standard for determining SSI benefits for children 
under the age of 18.\1\ Under the new law, certain children previously 
granted SSI benefits were required to have their eligibility for SSI 
payments redetermined in accordance with the provisions of the new law. 
Sarah's eligibility was redetermined under the new law and she was 
found ineligible for benefits effective in November 1997.
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    \1\ This law changed the standard governing childhood claims 
under title XVI of the Social Security Act. An individual under the 
age of 18 will be found disabled under title XVI of the Act if he or 
she has a ``medically determinable physical or mental impairment, 
which results in marked and severe functional limitations, and 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.'' Section 1614(a)(3)(c)(i) of the Act, 42 U.S.C. 
1382c(a)(3)(c)(I).
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    In 1999, an ALJ conducted a hearing. Prior to and again during the 
ALJ hearing, Ms. Howard requested that a medical expert specializing in 
pediatrics be called to testify regarding Sarah's impairments. The ALJ 
denied the requests, explaining that the record was sufficiently well-
developed and that a medical expert was not needed. At the hearing, 
both Ms. Howard and Sarah testified. The ALJ found, after independently 
reviewing the medical records and listening to the testimony, that 
Sarah's impairments did not meet or equal any of the criteria contained 
in the Listing of Impairments and that, she was no longer disabled. The 
Appeals Council denied the request for review of the ALJ's decision.
    Ms. Howard appealed to the United States District Court for the 
District of Arizona, where she argued that the ALJ engaged in a 
selective evaluation of the evidence and failed to consider the 
combined effects of Sarah's impairments. Additionally, Ms. Howard 
asserted that the ALJ committed a legal error by not making a 
reasonable effort to ensure a qualified pediatrician or other 
individual who specializes in a field of medicine appropriate to 
Sarah's disability evaluated Sarah's case, under section 1614(a)(3)(I) 
of the Act, 42 U.S.C. 1382c(a)(3)(I). The district court found that the 
ALJ did not selectively analyze the evidence and that the ALJ did not 
err in refusing to call an expert witness in order to evaluate the 
case. On appeal to the United States Court of Appeals for the Ninth 
Circuit, Ms. Howard argued that the ALJ considered Sarah's impairments 
in isolation and failed to consider the combined effects of her 
impairments. Ms. Howard also argued that the ALJ denied her request and 
made no effort to have a qualified pediatrician or other individual who 
specialized in a field of medicine appropriate to Sarah's disability 
evaluate her case before deciding that Sarah was no longer disabled.
    Holding: The Ninth Circuit held that, although the ALJ's decision 
was supported by substantial evidence, the ALJ committed a legal error 
by not complying with the mandate of section 1614(a)(3)(I) of the Act, 
42 U.S.C. 1382c(a)(3)(I). Section 1614(a)(3)(I) states, in part, that 
in making ``any determination'' under title XVI of the Act ``with 
respect to the disability of an individual who has not attained the age

[[Page 22580]]

of 18,'' the Commissioner ``shall make reasonable efforts to ensure 
that a qualified pediatrician or other individual who specializes in a 
field of medicine appropriate to the disability of the 
individual***evaluates the case'' of the individual. The Court of 
Appeals interpreted this to mean that an ALJ is required to make 
reasonable efforts to obtain a case evaluation, based on the record in 
its entirety, from a pediatrician or other appropriate specialist, 
rather than simply evaluating the evidence in the case record on his or 
her own. The Court of Appeals noted that, despite the various reports 
from doctors and specialists offering their medical opinions in Sarah's 
case, the ALJ did not have her case evaluated as a whole. The court 
also stated that ``[i]t may be that the ALJ achieved substantial 
compliance with the statute, in that the state agency doctors ***who 
did evaluate Sarah's case may be appropriate qualified specialists; 
however, we cannot make that determination on the record. In addition, 
the ALJ did not consider these evaluations in making his decision.''

Statement As To How Howard Differs From SSA's Interpretation of the 
Social Security Act

    Our regulations make clear that section 1614(a)(3)(I) of the Act, 
42 U.S.C. 1382c(a)(3)(I), applies only to determinations made by a 
State agency and not to decisions made by ALJs or AAJs (when the 
Appeals Council makes a decision). The words ``determination'' and 
``decision'' are terms of art in our program, defined in our 
regulations at 20 C.F.R. 416.1401. This regulation explains that the 
word ``determination'' means the initial determination or reconsidered 
determination, while the term ``decision'' means the decision made by 
the ALJ or the Appeals Council. Our regulations that implement section 
1614(a)(3)(I) of the Act maintain this distinction, providing that the 
requirement for review by a pediatrician or other appropriate 
specialist in childhood SSI cases applies only to cases decided by 
State agencies at the initial and reconsideration levels of the 
administrative review process. See 20 C.F.R. 416.903(f) and 
416.1015(e).\2\
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    \2\ This interpretation is supported by the statute. Section 221 
of the Act, 42 U.S.C. 421, entitled ``Disability Determinations'' 
specifies in section 221(a), 42 U.S.C. 421(a) that ``the 
determination of whether or not [an individual] is under a 
disability * * * shall be made by a State agency * * *.'' Section 
221(h) of the Act, 42 U.S.C. 421(h) requires the Commissioner to 
``make every reasonable effort'' to ensure that a qualified 
psychiatrist or psychologist has completed the medical portion of 
the case review before a State agency makes ``[a]n initial 
determination * * * that an individual is not under a disability, in 
any case where there is evidence which indicates the existence of a 
mental impairment * * *.'' Section 221 is incorporated by reference 
in section 1633(a) of the Act, 42 U.S.C. 1383b(a). Section 
1614(a)(3)(I) also refers to section 221(h).
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    The Ninth Circuit interpreted the statutory provision more broadly 
than we do, by applying it to cases decided by an ALJ or AAJ (when the 
Appeals Council makes a decision).

Explanation of How SSA Will Apply the Howard Decision Within the 
Circuit

    This Ruling applies only to title XVI childhood disability cases in 
which the claimant resided in Alaska, Arizona, California, Guam, 
Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon or 
Washington at the time of the ALJ or Appeals Council decision. This 
Ruling applies only to the Administrative Law Judge and Appeal Council 
levels of the administrative review process.
    For cases that are subject to this Ruling, ALJs and AAJs (when the 
Appeals Council makes a decision) must make reasonable efforts to 
ensure that a qualified pediatrician or other individual who 
specializes in a field of medicine appropriate to the disability of the 
individual (as identified by the ALJ or AAJ) evaluates the case of the 
individual. To satisfy this requirement, the ALJ or AAJ may rely on 
case evaluation made by a State agency medical or psychological 
consultant that is already in the record, or the ALJ or AAJ may rely on 
the testimony of a medical expert. When the ALJ relies on the case 
evaluation made by a State agency medical or psychological consultant, 
the record must include the evidence of the qualifications of the State 
agency medical or psychological consultant. In any case, the ALJ or AAJ 
must ensure that the decision explains how the State agency medical or 
psychological consultant's evaluation was considered. (See also 20 
C.F.R. 416.927(f) and Social Security Ruling 96-6p, ``Titles II and 
XVI: Consideration of Administrative Findings of Fact by State Agency 
Medical and Psychological Consultants and Other Program Physicians and 
Psychologists at the Administrative Law Judge and Appeals Council 
Levels of Administrative Review; Medical Equivalence.'' 61 FR 34466 
(1996)).
[FR Doc. 04-9337 Filed 4-23-04; 8:45 am]
BILLING CODE 4191-02-S