[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Proposed Rules]
[Pages 63688-63694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28993]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405, 416, and 422

[Docket No. SSA-2008-0015]
RIN 0960-AG80


Reestablishing Uniform National Disability Adjudication 
Provisions

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to eliminate the remaining portions of part 405 of 
our rules, which we now use for initial disability claims in our Boston 
region. We propose to use the same rules for disability claims in the 
Boston region that we use for disability adjudications in the rest of 
the country, including those rules that apply to the administrative law 
judge (ALJ) and Appeals Council (AC) levels of our administrative 
review process in parts 404 and 416 of our rules.

DATES: To be sure that we consider your comments, we must receive them 
no later than February 2, 2010.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2008-0015 so 
that we may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number 
SSA-2008-0015. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations, Social 
Security Administration, 137 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Dean Landis, Social Security 
Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-0520 for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Background

    On March 31, 2006, we published final rules in the Federal Register 
that implemented a number of changes in the process for handling 
initial disability claims. 71 FR 16424. We referred to those 
regulations, found primarily in 20 CFR part 405, collectively as the 
Disability Service Improvement process, or DSI. We intended DSI to 
improve the way we handle initial disability claims. DSI added rules 
that implemented a Quick Disability Determination (QDD) process at the 
initial step of our disability determination process. It also replaced 
the reconsideration step of the administrative review process with 
review by a Federal Reviewing Official (FedRO), established a Medical 
and Vocational Expert System, commonly known as the Office of Medical 
and Vocational Expertise (OMVE), and made changes to some of the 
procedures in our hearings process. DSI also eliminated the final step 
in our administrative review process for initial disability claims, 
under which a claimant could request review by the Appeals Council. We 
replaced the Appeals Council with the Decision Review Board (DRB). The 
DRB, which is composed of selected ALJs and administrative appeals 
judges (AAJs), reviews certain decisions made by ALJs before those 
decisions become final. If the DRB does not review an ALJ's decision, 
the ALJ's decision becomes our final decision. On August 1, 2006, we 
implemented the DSI rules in our Boston region, which consists of the 
States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont. We planned to implement them in our remaining 
regions over a period of years.
    As part of our efforts to improve our administrative review 
process, we have continually monitored the DSI process and made 
appropriate changes when necessary. For example, we published final 
rules on September 6, 2007, that implemented the QDD process 
nationally. 72 FR 51173. In other final rules, we suspended new claims 
processing through the Office of the Federal Reviewing Official 
(OFedRO) and the OMVE as of March 23, 2008, so that we could reallocate 
those resources to reduce the backlog at the hearing level. 73 FR 2411, 
corrected at 73 FR 10381. In November 2008, the OFedRO issued a 
decision on the last of the claims it had accepted for review. Thus, in 
accordance with our final rules, subpart C of part 405 is no longer in 
effect, and the States in the Boston region have returned to the 
process they were following before August 2006, whether that process 
was reconsideration of an initial determination under Sec. Sec.  
404.907 and 416.1407 or the testing procedures found in Sec. Sec.  
404.906 and 416.1406. 73 FR at 2412.
    In addition, on October 29, 2007, we published a notice of proposed 
rulemaking (NPRM) that would have implemented nationally a number of 
changes to the hearings and appeals processes. 72 FR 61218. We made 
those proposals against the backdrop of increasing workloads, 
lengthening hearing backlogs, and diminishing resources. While we 
continue to believe that many of the provisions contained in the 
October 29, 2007, NPRM would have both protected claimants' rights and 
made the disability process more

[[Page 63689]]

efficient, we are reevaluating a number of the provisions in those 
proposed rules in light of the many comments we received.
    In this NPRM, we are proposing to eliminate the DRB and restore in 
the Boston region the same rules and procedures at the ALJ hearing and 
Appeals Council levels that we follow in the rest of the country. With 
the other changes we have already made to the DSI process, we would no 
longer need the DSI rules in part 405 if these proposed rules become 
final. These proposed rules would not affect our Prototype and Single 
Decision Maker demonstration projects, and we will not discuss them in 
this NPRM.

Explanation of Proposed Changes

Proposed Changes to the Hearings and Appeals Levels of the 
Administrative Review Process

    After adopting QDD nationwide and eliminating the FedRO and OMVE 
processes, the remaining portions of DSI primarily involve procedures 
at the ALJ hearing and DRB levels. We propose to eliminate these 
remaining portions of the DSI process, which we currently use only in 
the Boston region, and apply the same ALJ and Appeals Council rules in 
parts 404 and 416 that we use in the rest of the country. We are 
proposing the ALJ hearing level changes in order to ensure that all 
hearings use the same process for administrative efficiency.
    Under the DSI rules, if you file your initial disability claim in 
the Boston region, we will use the DSI procedures even if you later 
move to a State in another region. Conversely, if you file your initial 
disability claim in a State outside the Boston region, we will continue 
to use our non-DSI rules, even if you later move to a State within the 
Boston region. 20 CFR part 405, subpart A, Appendix 1. Currently in DSI 
cases in which the claimant leaves the Boston region and 
videoconferencing is not possible, ALJs from the Boston region must 
travel to the non-DSI regions to hear the cases. This process is 
inefficient and increases the ALJ workload burden, not just on the ALJs 
who must travel to hear the DSI cases, but on other ODAR employees who 
are needed to support the process, and on those claimants whose cases 
may be delayed. We believe it would be better to return the Boston 
region to the same hearings process we use in the rest of the country, 
improving both the consistency and efficiency of the process. We invite 
public comment on our proposal to apply in the Boston region the same 
ALJ and Appeals Council rules that we use in the rest of the country.
    We also propose to eliminate the DRB provisions in the DSI process. 
Under these proposed rules, we would restore a claimant's right to 
request administrative review of an ALJ's decision in claims in the 
Boston region. We believe that we could better use our resources by 
eliminating the DRB.
    The DRB's workload has grown quickly and has become overwhelming. 
Originally, we intended to limit DRB review to cases selected using an 
automated predictive model that would identify the most error-prone 
cases. However, we have not been able to implement this model and do 
not expect to be able to do so in the foreseeable future. Without this 
tool, the DRB cannot focus on only selected cases, severely limiting 
its ability to function as we intended and requiring significantly more 
resources than we had anticipated.
    As a result, the DRB's workload has had a disproportionate impact 
on the resources of the Appeals Council. Before we implemented DSI, 
requests for review from the Boston region represented a small fraction 
of the Appeals Council's total requests for review. The increased need 
for resources devoted to the DRB diverts Appeals Council staff from 
other key workloads.
    As we continue to work down our disability hearings backlog, the 
number of ALJ adjudications nationwide has increased, leading to both 
an increased DRB workload in the Boston region and an increased number 
of requests for review by the Appeals Council in other areas of the 
country.
    The DRB also affects our resources at the hearing level and our 
ability to reduce the hearing backlog. Those ALJs working full-time on 
the DRB are unavailable to hold hearings. We will need to assign even 
more ALJs to the DRB's workload as the number of DRB receipts rises. 
Consequently, the continued use of the DRB adversely affects our 
ability to reduce the hearings backlog. We invite public comment on our 
proposal to remove the DRB provisions from our regulations.

Proposal To Remove Part 405

    If we make final the proposed changes to the hearings and appeals 
levels of our process, we would no longer need part 405 of our rules. 
The proposed changes to the ALJ hearing and DRB provisions would remove 
subparts D and E of part 405 and related sections in subpart A. We have 
already published final rules that either remove other aspects of the 
DSI process or extend them nationally.
    As we stated above, under the final rules we published in March 
2008 suspending the FedRO program, subpart C of part 405 is no longer 
in effect. We have also terminated the OMVE initiative described in the 
DSI rules. Our rules state that, absent a decision by the Commissioner 
of Social Security to extend the sunset date, the OMVE provisions would 
no longer be effective the day after a FedRO issues a decision on the 
last of the claims accepted for FedRO review. Section 405.10(d).
    We propose to remove all remaining DSI rules and use the same rules 
for adjudication in the Boston region as we use in the rest of the 
country. Most remaining provisions of the DSI regulations are general 
provisions that are also addressed in parts 404 and 416 of our rules. 
These remaining provisions also include definitions of various terms in 
the DSI program, extension of the deadline to request review of our 
action, disqualification of disability adjudicators, discrimination 
complaints, initial determinations, judicial review, reopening and 
revision of determinations and decisions, expedited appeals in 
Constitutional claims, and payment of certain travel expenses. We also 
invite public comment on our proposal to eliminate all remaining DSI 
provisions.

Conforming Changes

    We also propose a number of conforming changes to sections in parts 
404, 416, and 422 to reflect this proposed removal of the DSI rules.

Clarity of These Proposed Rules

    Executive Order 12866 requires each agency to write all rules in 
plain language. In addition to your substantive comments on these 
proposed rules, we invite your comments on how to make them easier to 
understand. For example:
     Have we organized the material to suit your needs?
     Are the requirements in the rules clearly stated?
     Do the rules contain technical language or jargon that is 
not clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rules easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists or 
diagrams?
     What else could we do to make the rules easier to 
understand?

[[Page 63690]]

When Will We Start To Use These Rules?

    We will not use these rules until we evaluate the public comments, 
determine whether to issue them as final rules, and issue final rules 
in the Federal Register. If we publish final rules, we will explain in 
the preamble how we will apply them, and summarize and respond to the 
significant public comments. Until the effective date of any final 
rules, we will continue to use our current rules.
    We will apply any final rules based on these proposed rules to all 
new disability claims in the Boston region. We will also apply the 
final rules to any disability claims in the Boston region that are 
pending in our administrative review process on or after the effective 
date of the final rules, including cases that are pending on remand 
from the Federal courts.
    If we adopt these rules as proposed, we would no longer require the 
claimant to submit evidence at least 5 business days before the date of 
the scheduled hearing (or to show good cause if submitted later). On 
the effective date of these final rules, we will accept evidence 
consistent with the provisions of parts 404 and 416.
    Under the current DSI rules, we notify claimants at least 75 days 
before the date of the scheduled hearing. If we adopt these rules as 
proposed, we would hold any previously-scheduled hearings on the date 
provided in the notice.
    On the effective date of the final rules, we plan to transfer any 
cases pending before the DRB to the Appeals Council. We will treat any 
decisions referred to the DRB for review as if the claimant had 
requested Appeals Council review of the hearing decision. For cases in 
which the claimant requested that the DRB review a dismissal by an ALJ, 
we will treat the pending request as a request for Appeals Council 
review of the ALJ's dismissal. We will transfer any cases remanded by a 
Federal court that had been assigned to the DRB to the Appeals Council.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this proposed rule is subject to OMB review because 
it meets the criteria for a significant regulatory action under 
Executive Order 12866.

Regulatory Flexibility Act

    We certify that this proposed rule, if published in final, will not 
have a significant economic impact on a substantial number of small 
entities because it affects only individuals. Therefore, a regulatory 
flexibility analysis as provided in the Regulatory Flexibility Act, as 
amended, is not required.

Paperwork Reduction Act

    These proposed rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure; Blind; Disability benefits; 
Old-Age, Survivors, and Disability Insurance; Reporting and 
recordkeeping requirements; Social Security.

20 CFR Part 405

    Administrative practice and procedure; Blind, Disability benefits; 
Old-Age, Survivors, and Disability Insurance; Public assistance 
programs; Reporting and recordkeeping requirements; Social Security; 
Supplemental Security Income (SSI).

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability 
benefits, Public Assistance programs; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

20 CFR Part 422

    Administrative practice and procedure; Organization and functions 
(Government agencies); Reporting and recordkeeping requirements; Social 
Security.

    Dated: August 28, 2009.
Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble and under sec. 702(a)(5) of 
the Social Security Act (42 U.S.C. 902(a)(5)), we propose to amend 
subparts J, P, and Q of part 404, remove and reserve part 405, and 
amend subparts I, J, and N of part 416 and subparts B and C of part 422 
of chapter III of title 20 Code of Federal Regulations as set forth 
below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart J-[Amended]

    1. The authority citation for subpart J of part 404 continues to 
read as follows:

    Authority:  Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Public Law 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Public Law 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Public Law 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).


Sec.  404.906  [Amended]

    2. Amend Sec.  404.906 by removing the fourth sentence of paragraph 
(b)(4).


Sec.  404.930  [Amended]

    3. Amend Sec.  404.930 by removing paragraph (c).

Subpart P--[Amended]

    4. The authority citation for subpart P of part 404 continues to 
read as follows:

    Authority:  Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) 
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Public Law 104-193, 
110 Stat. 2105, 2189; sec. 202, Public Law 108-203, 118 Stat. 509 
(42 U.S.C. 902 note).

    5. Amend Sec.  404.1502 by revising the definition of nonexamining 
source to read as follows:


Sec.  404.1502  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  404.1527.
* * * * *
    6. Amend Sec.  404.1512 by revising paragraph (b)(6) to read as 
follows:


Sec.  404.1512  Evidence.

* * * * *
    (b) * * *
    (6) At the administrative law judge and Appeals Council levels, 
findings, other than the ultimate determination about whether you are 
disabled, made by State agency medical or

[[Page 63691]]

psychological consultants and other program physicians or 
psychologists, and opinions based on their review of the evidence in 
your case record expressed by medical experts that we consult. See 
Sec. Sec.  404.1527(f)(2)-(3).
* * * * *
    7. Amend Sec.  404.1513 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  404.1513  Medical and other evidence of your impairment(s).

* * * * *
    (c) * * * At the administrative law judge and Appeals Council 
levels, we will consider residual functional capacity assessments made 
by State agency medical and psychological consultants, and other 
program physicians and psychologists to be ``statements about what you 
can still do'' made by nonexamining physicians and psychologists based 
on their review of the evidence in the case record. * * *
* * * * *
    8. Amend Sec.  404.1519k by revising paragraph (a) to read as 
follows:


Sec.  404.1519k  Purchase of medical examinations, laboratory tests, 
and other services.

* * * * *
    (a) The rate of payment to be used for purchasing medical or other 
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 Sec. Sec.  404.1624 and 
404.1626 of this part.
* * * * *
    9. Amend Sec.  404.1519m by revising the third sentence to read as 
follows:


Sec.  404.1519m  Diagnostic tests or procedures.

    * * * 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. * * *
    10. Amend Sec.  404.1519s by revising paragraph (c) to read as 
follows:


Sec.  404.1519s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *
    11. Amend Sec.  404.1520a by revising the third sentence and 
removing the fourth sentence of paragraph (d)(2), and revising 
paragraph (e) to read as follows:


Sec.  404.1520a  Evaluation of mental impairments.

* * * * *
    (d) * * *
    (2) * * * We will record the presence or absence of the criteria 
and the rating of the degree of functional limitation on a standard 
document at the initial and reconsideration levels of the 
administrative review process, or in the decision at the administrative 
law judge hearing and Appeals Council levels (in cases in which the 
Appeals Council issues a decision). * * *
* * * * *
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record how we applied the technique. At 
the administrative law judge hearing and Appeals Council levels (in 
cases in which the Appeals Council issues a decision), we will document 
application of the technique in the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. The State agency 
disability examiner may assist in preparing the standard document. 
However, our medical or psychological consultant must review and sign 
the document to attest that it is complete and that he or she is 
responsible for its content, including the findings of fact and any 
discussion of supporting evidence. When a disability hearing officer 
makes a reconsideration determination, the determination must document 
application of the technique, incorporating the disability hearing 
officer's pertinent findings and conclusions based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, the written decision must incorporate the pertinent findings 
and conclusions based on the technique. The decision must show the 
significant history, including examination and laboratory findings, and 
the functional limitations that were considered in reaching a 
conclusion about the severity of the mental impairment(s). The decision 
must include a specific finding as to the degree of limitation in each 
of the functional areas described in paragraph (c) of this section.
    (3) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec.  404.941, for completion of the standard document. If, after 
reviewing the case file and completing the standard document, the State 
agency or Federal component concludes that a determination favorable to 
you is warranted, it will process the case using the rules found in 
Sec.  404.941(d) or (e). If, after reviewing the case file and 
completing the standard document, the State agency or Federal component 
concludes that a determination favorable to you is not warranted, it 
will send the completed standard document and the case to the 
administrative law judge for further proceedings and a decision.
    12. Amend Sec.  404.1526 by revising the first sentence of 
paragraph (d) to read as follows:


Sec.  404.1526  Medical equivalence.

* * * * *
    (d) * * * A medical or psychological consultant designated by the 
Commissioner 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. * * *
* * * * *
    13. Amend Sec.  404.1527 by revising the first sentence of 
paragraph (f)(1) and removing paragraph (f)(4), to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, 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 this subpart, and your residual functional 
capacity. * * *
* * * * *
    14. Amend Sec.  404.1529 by revising the third and fifth sentences 
of paragraph (b) to read as follows:


Sec.  404.1529  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  404.914 through 404.918 of this chapter), a 
State agency medical or psychological consultant, or a medical

[[Page 63692]]

or psychological consultant designated by the Commissioner, directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * * At the administrative law judge hearing or Appeals 
Council level of the administrative review process, the adjudicator(s) 
may ask for and consider the opinion of a medical or psychological 
expert concerning whether your impairment(s) could reasonably be 
expected to produce your alleged symptoms. * * *
* * * * *
    15. Amend Sec.  404.1546 by revising paragraph (a) and removing 
paragraph (d), to read as follows:


Sec.  404.1546  Responsibility for assessing your residual functional 
capacity.

    (a) * * * When a State agency makes the disability determination, a 
State agency medical or psychological consultant(s) is responsible for 
assessing your residual functional capacity.
* * * * *

Subpart Q--[Amended]

    16. 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)).


Sec.  404.1601  [Amended]

    17. Amend Sec.  404.1601 by removing the third sentence of the 
introductory text before paragraph (a).


Sec.  404.1616  [Amended]

    18. Amend Sec.  404.1616 by removing the third sentence of 
paragraph (b), and removing paragraph (e)(4).
    19. Amend Sec.  404.1624 by revising the first sentence to read as 
follows:


Sec.  404.1624  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. * * *

PART 405--[REMOVED AND RESERVED]

    20. Remove and reserve part 405, consisting of Sec. Sec.  405.1 
through 405.901.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--[Amended]

    21. The authority citation for subpart I of part 416 continues to 
read as follows:

    Authority:  Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383(b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Public 
Law 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 
423 note, 1382h note).

    22. Amend Sec.  416.902 by revising the definition of nonexamining 
source to read as follows:


Sec.  416.902  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  416.927.
* * * * *
    23. Amend Sec.  416.912 by revising paragraph (b)(6) to read as 
follows:


Sec.  416.912  Evidence.

* * * * *
    (b) * * *
    (6) At the administrative law judge and Appeals Council levels, 
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 based on their 
review of the evidence in your case record expressed by medical experts 
that we consult. See Sec. Sec.  416.927(f)(2)-(3).
* * * * *
    24. Amend Sec.  416.913 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  416.913  Medical and other evidence of your impairment(s).

* * * * *
    (c) * * * At the administrative law judge and Appeals Council 
levels, we will consider residual functional capacity assessments made 
by State agency medical and psychological consultants and other program 
physicians and psychologists to be ``statements about what you can 
still do'' made by nonexamining physicians and psychologists based on 
their review of the evidence in the case record. * * *
* * * * *
    25. Amend Sec.  416.919k by revising paragraph (a) to read as 
follows:


Sec.  416.919k  Purchase of medical examinations, laboratory tests, and 
other services.

* * * * *
    (a) The rate of payment to be used for purchasing medical or other 
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 Sec. Sec.  416.1024 and 
416.1026.
* * * * *
    26. Amend Sec.  416.919m by revising the third sentence to read as 
follows:


Sec.  416.919m  Diagnostic tests or procedures.

    * * * 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. * * *
    27. Amend Sec.  416.919s by revising paragraph (c) to read as 
follows:


Sec.  416.919s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *
    28. Amend Sec.  416.920a by revising the third sentence and 
removing the fourth sentence of paragraph (d)(2) and revising paragraph 
(e) to read as follows:


Sec.  416.920a  Evaluation of mental impairments.

* * * * *
    (d) * * *
    (2) * * * We will record the presence or absence of the criteria 
and the rating of the degree of functional limitation on a standard 
document at the initial and reconsideration levels of the 
administrative review process, or in the decision at the administrative 
law judge hearing and Appeals Council levels (in cases in which the 
Appeals Council issues a decision). * * *
* * * * *
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record

[[Page 63693]]

how we applied the technique. At the administrative law judge hearing 
and Appeals Council levels (in cases in which the Appeals Council 
issues a decision), we will document application of the technique in 
the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. The State agency 
disability examiner may assist in preparing the standard document. 
However, our medical or psychological consultant must review and sign 
the document to attest that it is complete and that he or she is 
responsible for its content, including the findings of fact and any 
discussion of supporting evidence. When a disability hearing officer 
makes a reconsideration determination, the determination must document 
application of the technique, incorporating the disability hearing 
officer's pertinent findings and conclusions based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, the written decision must incorporate the pertinent findings 
and conclusions based on the technique. The decision must show the 
significant history, including examination and laboratory findings, and 
the functional limitations that were considered in reaching a 
conclusion about the severity of the mental impairment(s). The decision 
must include a specific finding as to the degree of limitation in each 
of the functional areas described in paragraph (c) of this section.
    (3) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec.  416.1441, for completion of the standard document. If, after 
reviewing the case file and completing the standard document, the State 
agency or Federal component concludes that a determination favorable to 
you is warranted, it will process the case using the rules found in 
Sec.  416.1441(d) or (e). If, after reviewing the case file and 
completing the standard document, the State agency or Federal component 
concludes that a determination favorable to you is not warranted, it 
will send the completed standard document and the case to the 
administrative law judge for further proceedings and a decision.
    29. Amend Sec.  416.924 by revising paragraph (g) to read as 
follows:


Sec.  416.924  How we determine disability for children.

* * * * *
    (g) * * * When we make an initial or reconsidered determination 
whether you are disabled under this section or whether your disability 
continues under Sec.  416.994a (except when a disability hearing 
officer makes the reconsideration determination), we will complete a 
standard form, Form SSA-538, Childhood Disability Evaluation Form. The 
form outlines the steps of the sequential evaluation process for 
individuals who have not attained age 18. The State agency medical or 
psychological consultant (see Sec.  416.1016 of this part) or other 
designee of the Commissioner has overall responsibility for the content 
of the form and must sign the form to attest that it is complete and 
that he or she is responsible for its content, including the findings 
of fact and any discussion of supporting evidence. Disability hearing 
officers, administrative law judges, and the administrative appeals 
judges on the Appeals Council (when the Appeals Council makes a 
decision) will not complete the form but will indicate their findings 
at each step of the sequential evaluation process in their 
determinations or decisions.
    30. Amend Sec.  416.926 by revising the first sentence of paragraph 
(d) and revising paragraph (e) to read as follows:


Sec.  416.926  Medical equivalence for adults and children.

* * * * *
    (d) * * * A medical or psychological consultant designated by the 
Commissioner 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. * * *
    (e) Responsibility for determining medical equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec.  416.1016 of this part) has the overall 
responsibility for determining medical equivalence. For cases in the 
disability hearing process or otherwise decided by a disability hearing 
officer, the responsibility for determining medical equivalence rests 
with either the disability hearing officer or, if the disability 
hearing officer's reconsideration determination is changed under Sec.  
416.1418, with the Associate Commissioner for Disability Programs or 
his or her delegate. For cases at the administrative law judge or 
Appeals Council level, the responsibility for deciding medical 
equivalence rests with the administrative law judge or Appeals Council.
    31. Amend Sec.  416.926a by revising paragraph (n) to read as 
follows:


Sec.  416.926a  Functional equivalence for children.

* * * * *
    (n) Responsibility for determining functional equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec.  416.1016 of this part) has the overall 
responsibility for determining functional equivalence. For cases in the 
disability hearing process or otherwise decided by a disability hearing 
officer, the responsibility for determining functional equivalence 
rests with either the disability hearing officer or, if the disability 
hearing officer's reconsideration determination is changed under Sec.  
416.1418, with the Associate Commissioner for Disability Programs or 
his or her delegate. For cases at the administrative law judge or 
Appeals Council level, the responsibility for deciding functional 
equivalence rests with the administrative law judge or Appeals Council.
    32. Amend Sec.  416.927 by revising the first sentence of paragraph 
(f)(1) and removing paragraph (f)(4), to read as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, 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. * * *
* * * * *
    33. Amend Sec.  416.929 by revising the third and fifth sentences 
of paragraph (b) to read as follows:

[[Page 63694]]

Sec.  416.929  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  416.1414 through 416.1418 of this part), a 
State agency medical or psychological consultant, or a medical or 
psychological consultant designated by the Commissioner, directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * * At the administrative law judge hearing or Appeals 
Council level of the administrative review process, the adjudicator(s) 
may ask for and consider the opinion of a medical or psychological 
expert concerning whether your impairment(s) could reasonably be 
expected to produce your alleged symptoms. * * *
* * * * *
    34. Amend Sec.  416.946 by revising paragraph (a) and removing 
paragraph (d), to read as follows:


Sec.  416.946  Responsibility for assessing your residual functional 
capacity.

    (a) * * * When a State agency makes the disability determination, a 
State agency medical or psychological consultant(s) is responsible for 
assessing your residual functional capacity.
* * * * *

Subpart J--[Amended]

    35. The authority citation for subpart J of part 416 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).


Sec.  416.1001  [Amended]

    36. Amend Sec.  416.1001 by removing the third sentence of the 
introductory text before paragraph (a).


Sec.  416.1016  [Amended]

    37. Amend Sec.  416.1016 by removing the third sentence of 
paragraph (b) and removing paragraph (e)(4).
    38. Amend Sec.  416.1024 by revising the first sentence to read as 
follows:


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. * * *

Subpart N--[Amended]

    39. The authority citation for subpart N of part 416 continues to 
read as follows:

    Authority:  Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, 
Public Law 108-203, 118 Stat. 509 (42 U.S.C. 902 note).


Sec.  416.1406  [Amended]

    40. Amend Sec.  416.1406 by removing the fourth sentence of 
paragraph (b)(4).


Sec.  416.1430  [Amended]

    41. Amend Sec.  416.1430 by removing paragraph (c).

PART 422--ORGANIZATION AND PROCEDURES

Subpart B--[Amended]

    42. The authority citation for subpart B of part 422 continues to 
read as follows:

    Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the 
Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and 
1320b-13), and sec. 7213(a)(1)(A) of Public Law 108-458.

    43. Amend Sec.  422.130 by revising the first sentence of paragraph 
(b) and the second sentence of paragraph (c) to read as follows:


Sec.  422.130  Claim procedure.

* * * * *
    (b) * * * An individual who files an application for monthly 
benefits, the establishment of a period of disability, a lump-sum death 
payment, or entitlement to hospital insurance benefits or supplementary 
medical insurance benefits, either on his own behalf or on behalf of 
another, must establish by satisfactory evidence the material 
allegations in his application, except as to earnings shown in the 
Social Security Administration's records (see subpart H of part 404 of 
this chapter for evidence requirements in nondisability cases and 
subpart P of part 404 of this chapter for evidence requirements in 
disability cases). * * *
    (c) * * * Section 404.1503 of this chapter has a discussion of the 
respective roles of State agencies and the Administration in the making 
of disability determinations and information regarding initial 
determinations as to entitlement or termination of entitlement in 
disability claims. * * *
    44. Revise Sec.  422.140 to read as follows:


Sec.  422.140  Reconsideration of initial determination.

    If you are dissatisfied with an initial determination with respect 
to entitlement to monthly benefits, a lump-sum death payment, a period 
of disability, a revision of an earnings record, with respect to any 
other right under title II of the Social Security Act, or with respect 
to entitlement to hospital insurance benefits or supplementary medical 
insurance benefits, you may request that we reconsider the initial 
determination. The information in Sec.  404.1503 of this chapter as to 
the respective roles of State agencies and the Social Security 
Administration in making disability determinations is also generally 
applicable to the reconsideration of initial determinations involving 
disability. However, in cases in which a disability hearing as 
described in Sec. Sec.  404.914 through 404.918 and Sec. Sec.  416.1414 
through 416.1418 of this chapter is available, the reconsidered 
determination may be issued by a disability hearing officer or the 
Associate Commissioner for Disability Programs or his or her delegate. 
After the initial determination has been reconsidered, we will mail you 
written notice and inform you of your right to a hearing before an 
administrative law judge (see Sec.  422.201).

Subpart C--[Amended]

    45. Revise the heading of subpart C of part 422 to read as follows:

Subpart C--Procedures of the Office of Disability Adjudication and 
Review.

    46. The authority citation for subpart C of part 422 continues to 
read as follows:

    Authority: Secs. 205, 221, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).

    47. Amend Sec.  422.201 by revising the first sentence and removing 
the third sentence of the introductory text before paragraph (a) to 
read as follows:


Sec.  422.201  Material included in this subpart.

    This subpart describes in general the procedures relating to 
hearings before an administrative law judge of the Office of Disability 
Adjudication and Review, review by the Appeals Council of the hearing 
decision or dismissal, and court review in cases decided under the 
procedures in parts 404, 408, 410, and 416 of this chapter. * * *
* * * * *
[FR Doc. E9-28993 Filed 12-3-09; 8:45 am]
BILLING CODE 4191-02-P