Federal Register, Volume 74 Issue 232 (Friday, December 4, 2009)

[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.

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.

[[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