[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9821-9827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4283]


=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2008-0041]
RIN 0960-AG87


Disability Determinations by State Agency Disability Examiners

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: We propose to amend our rules to permit disability examiners 
in the State agencies to make fully favorable determinations in certain 
claims for disability benefits under titles II and XVI of the Social 
Security Act (Act) without the approval of a medical or psychological 
consultant. The proposed changes would apply on a temporary basis only 
to claims we consider under our rules for Quick Disability 
Determinations (QDD) or under our compassionate allowance initiative.

DATES: To be sure that we consider your comments, we must receive them 
no later than April 5, 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-2008-0041 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 this method for submitting your 
comments. Visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function of the webpage to find 
docket number SSA-2008-0041, then submit your comment. Once you submit 
your comment, the system will issue you a tracking number to confirm 
your submission. You will not be able to view your comment immediately 
as we must manually post each comment. It may take up to a week for 
your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to the Office of Regulations, Social 
Security Administration, 137 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, MD 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: Nancy Schoenberg, Office of 
Compassionate Allowances and Disability Outreach, Social Security 
Administration, 4692 Annex, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 966-9408, 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.

What Do Our Current Rules Provide?

    Under our current rules, a State agency disability examiner and a 
State agency medical or psychological consultant generally work 
together to make disability determinations at the first two levels of 
the administrative review process for adjudicating disability claims 
under titles II and XVI of the Act.\1\ The members of the team are 
jointly responsible for the determination.\2\ A State agency disability 
examiner can make the disability determination alone only when there is 
no medical evidence to evaluate and the claimant fails or refuses, 
without a good reason, to go to a consultative examination.\3\
---------------------------------------------------------------------------

    \1\ Sections 404.900 and 416.1400.
    \2\ Sections 404.1615(c)(1) and 416.1015(c)(1).
    \3\ Sections 404.1615(c)(2) and 416.1015(c)(2). In some States, 
we are testing a modification to the disability determination 
procedures that allows State agency disability examiners called 
``single decisionmakers'' (SDM) to make both favorable and 
unfavorable determinations alone in some cases; that is, without 
working in a team with a medical or psychological consultant. 
Sections 404.906(b)(2) and 416.1406(b)(2). We expect to continue 
that testing even if we adopt these proposed rules as final rules. 
However, if we adopt these proposed rules as final rules, the 
changes would apply in all States, including SDM States. They would 
allow SDMs and other disability examiners to make fully favorable 
determinations alone in QDD and compassionate allowance claims.
---------------------------------------------------------------------------

    Although we evaluate all disability claims using the same criteria, 
we have developed two methods for expediting certain claims where there 
is a high probability that we will find the claimant disabled. In the 
QDD process, we use a computer-based predictive model to analyze 
specific elements of data in electronic claim files. The predictive 
model identifies claims in which there is a high potential that the 
claimant is disabled and in which we can quickly and easily obtain 
evidence supporting the claimant's allegations.\4\ In the compassionate 
allowance initiative, we use a list of conditions to quickly identify 
diseases and other medical conditions that invariably qualify under the 
Listing of Impairments

[[Page 9822]]

(``listings'') in our regulations \5\ based on minimal, but sufficient, 
objective medical information.\6\
---------------------------------------------------------------------------

    \4\ Sections 404.1619 and 416.1019. Our data demonstrate that 
the model is working as we intend. See, for example, ``Good 
Practices in Social Security: The Quick Disability Determination 
(QDD) and Compassionate Allowances (CAL) Initiatives: A case of the 
Social Security Administration,'' International Social Security 
Association (ISSA), 2009, available at: http://www.issa.int/aiss/Observatory/Good-Practices/The-Quick-Disability-Determination-QDD-and-Compassionate-Allowances-CAL-Initiatives. In that paper, we 
reported to ISSA that the processing time for QDD allowances is 
about 12 days.
    \5\ 20 CFR part 404, subpart P, appendix 1, which also applies 
to title XVI per Sec.  416.925.
    \6\ See generally http://www.socialsecurity.gov/compassionateallowances/. In October 2008, we issued an initial list 
of 50 conditions that we consider for compassionate allowance. See 
http://www.socialsecurity.gov/compassionateallowances/conditions.htm. We created this list based on input from a variety 
of sources, including the public. See, e.g., 72 FR 41649 (2007), 73 
FR 10715 (2008), and 73 FR 66563 (2008). We plan to obtain more 
public input in order to determine whether and how to expand the 
list over time.
---------------------------------------------------------------------------

What Changes Are We Proposing, and Why?

    We propose to redesignate current Sec. Sec.  404.1615(c)(3) and 
416.1015(c)(3) as (c)(4) and to add new paragraph (c)(3) to allow 
disability examiners to make fully favorable determinations under our 
QDD rules or under our compassionate allowance initiative without the 
approval of a medical or psychological consultant. This proposal is 
consistent with our goal to allow cases that should be allowed as 
quickly as possible.\7\ It would also help us to process cases more 
efficiently because it would give State agency medical and 
psychological consultants more time to work on those complex cases for 
which we need their expertise.
---------------------------------------------------------------------------

    \7\ See Social Security Administration Strategic Plan 2008-2013, 
Strategic Goal 2, http://www.ssa.gov/asp/StrategicGoal2.pdf.
---------------------------------------------------------------------------

    This proposal is a change from our prior position. When we 
published final rules extending the QDD process to all States,\8\ we 
declined to adopt a comment to allow disability examiners to make 
determinations without a medical or psychological consultant's 
involvement.\9\ However, we now have about 2 years of experience using 
the QDD process nationally, and even longer experience in our Boston 
region. In light of our experience adjudicating QDD and compassionate 
allowance cases and our quality assurance reviews of determinations 
made in States that use single decisionmakers (SDMs), we believe it is 
appropriate to allow disability examiners to make some fully favorable 
determinations without a medical or psychological consultation. Our 
quality assurance reviews for the past 2 fiscal years show that the 
accuracy rates in the States that use SDMs is comparable to, if not 
higher than, the accuracy rates in those States that do not use SDMs. 
Moreover, many of the determinations included in our quality assurance 
reviews are more complex than QDD and compassionate allowance 
determinations.
---------------------------------------------------------------------------

    \8\ 72 FR 51173.
    \9\ Id. at 51175.
---------------------------------------------------------------------------

    For these reasons, we expect that the accuracy rate of QDD and 
compassionate allowance determinations made by State agency disability 
examiners would be comparable to the accuracy rate of the 
determinations now made by a team. We also have other measures in place 
that will provide us with information about the quality of QDD and 
compassionate allowance determinations, including quality assurance 
reviews. Therefore, we would be monitoring determinations made by State 
agency disability examiners. If we proceed with final rules, we plan to 
include a ``sunset date''--a date after which the final rules would no 
longer be effective--of three years after the final rules become 
effective, subject to further extensions. The sunset date would apply 
only to the final rules on determinations by State agency disability 
examiners on QDD and compassionate allowance cases.
    State agency disability examiners who make fully favorable 
determinations under these proposed rules would still have the option 
of consulting with State agency medical and psychological consultants 
when they deem it necessary. We would also require State agency 
disability examiners to consult with State agency medical or 
psychological consultants before they make a fully favorable 
determination based on medical equivalence to a listing at step 3 or 
based on a finding of inability to do other work at step 5 of our 
sequential evaluation process.\10\ Our current rules require 
adjudicators to consider the opinion of one or more medical or 
psychological consultants when they determine whether an impairment(s) 
medically equals a listing at step 3.\11\ Further, in order to make a 
fully favorable determination at step 5, adjudicators must first 
determine that a claimant does not have an impairment(s) that meets or 
medically equals a listing; therefore, they will have had to consult 
with a medical or psychological consultant to determine that there were 
no impairments that medically equaled a listing.\12\ Regardless of 
whether the State agency disability examiner chooses to consult with a 
State agency medical or psychological consultant or is required to do 
so, the disability examiner would be solely responsible for the 
determination under the proposed rules.
---------------------------------------------------------------------------

    \10\ Sections 404.1520 and 416.920. Fully favorable 
determinations based on medical equivalence or at step 5 are only a 
relatively small fraction of the QDD and compassionate allowance 
determinations we have made so far.
    \11\ Sections 404.1526(c) and 416.926(c).
    \12\ Sections 404.1520(a)(4) and 416.920(a)(4).
---------------------------------------------------------------------------

    We would not apply these proposed changes to claims for 
supplemental security income payments under title XVI for individuals 
under age 18. The Social Security Act requires us to make reasonable 
efforts to ensure that a qualified pediatrician or other individual who 
specializes in a field of medicine appropriate to the child's 
impairment(s) evaluates the child's case.\13\ We interpret this 
statutory requirement to mean that a medical or psychological 
consultant must participate as part of a team in all State agency 
determinations of childhood disability under title XVI, including fully 
favorable determinations.
---------------------------------------------------------------------------

    \13\ Section 1614(a)(3)(I) of the Act and Sec. Sec.  416.903(f) 
and 416.1015(e) of our regulations.
---------------------------------------------------------------------------

What Other Changes Are We Proposing?

    The change we are proposing would apply only to claims adjudicated 
under the QDD process or the compassionate allowance initiative. Our 
current regulations explain the QDD process, but not the compassionate 
allowance initiative. Therefore, we propose to add a short definition 
of compassionate allowance in Sec. Sec.  404.1602 and 416.1002, the 
sections of subpart Q of part 404 and subpart J of part 416 that 
provide definitions of terms.
    We also propose a number of conforming changes throughout subparts 
P and Q of part 404 and subparts I and J of part 416 of our regulations 
to reflect the provisions in proposed new Sec. Sec.  404.1615(c)(3) and 
416.1015(c)(3). For example, we propose revisions to Sec. Sec.  
404.1546 and 416.946 to recognize that it would be possible in some 
cases for a State agency disability examiner to be responsible for 
assessing a claimant's residual functional capacity. We also propose 
revisions to Sec. Sec.  404.1512, 404.1527, 416.912, and 416.927 to 
account for situations in which State agency disability examiners would 
weigh State agency medical or psychological consultant input as opinion 
evidence; these rules are similar to rules we already have for 
administrative law judges and the Appeals Council (when the Appeals 
Council makes a decision). We show all of the proposed changes in the 
proposed rules section following this preamble.
    While the QDD process applies only to the initial level of the 
administrative review process under Sec. Sec.  404.1602 and 416.1002 of 
our regulations, these proposed rules include provisions that apply to 
both the initial and reconsideration levels. We have two

[[Page 9823]]

major reasons for including references to the reconsideration level:
     The compassionate allowance initiative is not limited to 
the initial level of administrative review; and,
     Any claimant who is dissatisfied with our determination--
even a determination that is fully favorable--may request a 
reconsideration.\14\
---------------------------------------------------------------------------

    \14\ Sections 404.907 and 416.1407.
---------------------------------------------------------------------------

    Finally, we are proposing minor editorial changes to several rules 
to recognize that State agency medical consultants are not always 
physicians. These changes would conform these rules to the provisions 
of Sec. Sec.  404.1616 and 416.1016 of our current rules. We also would 
correct a grammatical error in Sec. Sec.  404.1619(b)(2) and 
416.1019(b)(2) and make other minor editorial changes throughout the 
proposed 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 
isn't 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?

What Is Our Authority To Make Rules and Set Procedures for Determining 
Whether a Person is Disabled Under the Statutory Definition?

    Under the Act, we have full power and authority to make rules and 
regulations and to establish necessary and appropriate procedures to 
carry out the provisions of the Act. Sections 205(a), 702(a)(5), and 
1631(d)(1). In addition, we have the power to promulgate regulations 
that establish the procedures State agencies must follow when 
performing the disability determination function for us. Sections 
221(a)(2) and 1633.

When Will We Start To Use These Rules?

    We will not use these rules until we evaluate public comments and 
publish final rules in the Federal Register. All final rules we issue 
include an effective date. We will continue to use our current rules 
until that date. If we publish final rules, we will include a summary 
of the significant comments we received, along with responses and an 
explanation of how we will apply the new rules.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, they 
were subject to OMB review.
    The Office of the Chief Actuary provided two estimates of the 
effects of the proposed rule change, due to uncertainty over the extent 
to which the predictive models underlying the QDD process and the 
compassionate allowance initiative are expanded. The first estimate 
assumes the percent of cases designated QDD or compassionate allowance 
remains at the recent level (3.8%). The second estimate assumes that we 
will adjudicate 6% of all cases under the QDD or compassionate 
allowance models by the end of FY 2012. The following table presents 
the year-by-year estimates of the effect of the proposed change on 
OASDI benefit payments and Federal SSI payments for the fiscal year 
period 2010-19 under these two sets of assumptions. All estimates are 
based on the assumptions underlying the President's FY 2010 Budget, 
assuming the proposed changes become effective July 1, 2010. The 
estimates reflect projected costs should the changes be extended 
through 2019.

 Table 1--Estimated Increases in OASDI Benefits and Federal SSI Payments
 Retain QDD and Compassionate Allowance at 3.8% of All Initial Receipts
                              [In millions]
------------------------------------------------------------------------
                 Fiscal year                    OASDI     SSI     Total
------------------------------------------------------------------------
2010.........................................        *        *        *
2011.........................................        *        *        *
2012.........................................       $1        *       $1
2013.........................................        1        *        1
2014.........................................        1        *        1
2015.........................................        1        *        1
2016.........................................        1        *        1
2017.........................................        1        *        1
2018.........................................        1        *        2
2019.........................................        2        *        2
 
    nsTotals                                  .......  .......  .......
    2010-14..................................        2        *        3
    2010-19..................................        9        1       10
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
  than $500,000. (Totals may not equal the sum of components due to
  rounding.)


 Table 2--Estimated Increases in OASDI Benefits and Federal SSI Payments
  Expand QDD and Compassionate Allowance to 6% of All Initial Receipts
                              [In millions]
------------------------------------------------------------------------
                 Fiscal year                    OASDI     SSI     Total
------------------------------------------------------------------------
2011.........................................        *        *        *
2011.........................................        *        *       $1
2012.........................................       $1        *        1
2013.........................................        2        *        2
2014.........................................        2        *        2
2015.........................................        2        *        3
2016.........................................        3        *        3
2017.........................................        3        *        3
2018.........................................        3        *        4
2019.........................................        4       $1        4
 
    nsTotals                                  .......  .......  .......
    2010-14..................................        5        1        6
    2010-19..................................       20        3       23
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
  than $500,000. (Totals may not equal the sum of components due to
  rounding.).

Regulatory Flexibility Act

    We certify that these proposed rules, if published in final, would 
not have a significant economic impact on a substantial number of small 
entities as they affect only States and individuals. Therefore, a 
regulatory flexibility analysis as provided in the Regulatory 
Flexibility Act, as amended, is not required.

Paperwork Reduction Act

    This rule does not create any new, or affect any existing, 
collections and, therefore, does not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program No 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income.)

[[Page 9824]]

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 416

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

    Dated: November 10, 2009.
Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 
subparts P and Q of part 404 and subparts I and J of part 416 of 
chapter III of title 20 of the Code of Federal Regulations as set forth 
below:

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

Subpart P--[Amended]

    1. 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), Pub. L. 104-193, 110 
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).

    2. Amend Sec.  404.1512 by removing the word ``and'' from the end 
of paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8) 
and revising newly redesignated paragraph (b)(8), and adding new 
paragraphs (b)(6) and (b)(7) to read as follows:


Sec.  404.1512  Evidence.

* * * * *
    (b) * * *
    (6) At the initial level of the administrative review process, when 
a State agency disability examiner makes the initial determination 
alone (see Sec.  404.1615(c)(3)), opinions provided by State agency 
medical and psychological consultants based on their review of the 
evidence in your case record (see Sec.  404.1527(f)(1)(ii));
    (7) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  404.1615(c)(3)), findings, other than 
the ultimate determination about whether you are disabled, made by 
State agency medical or psychological consultants and other program 
physicians, psychologists, or other medical specialists at the initial 
level of the administrative review process, and other opinions they 
provide based on their review of the evidence in your case record at 
the initial and reconsideration levels (see Sec.  404.1527(f)(1)(iii)); 
and
    (8) At the administrative law judge and Appeals Council levels 
(including the administrative law judge and Decision Review Board 
levels in claims adjudicated under the procedures in part 405 of this 
chapter), 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, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record. See Sec.  404.1527(f)(2)-(3).
* * * * *
    3. Amend Sec.  404.1527 by revising paragraphs (f)(1), and 
(f)(2)(i) and (f)(2)(ii) 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 (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) may make 
the determination of disability together with a State agency disability 
examiner or provide one or more medical opinions to a State agency 
disability examiner when the disability examiner makes the initial or 
reconsideration determination alone (see Sec.  404.1615(c)). The 
following rules apply:
    (i) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  404.1615(c)(1), he or she 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 medically equals the 
requirements for any impairment listed in appendix 1 to this subpart, 
and your residual functional capacity. These administrative findings of 
fact are based on the evidence in your case but are not in themselves 
evidence at the level of the administrative review process at which 
they are made.
    (ii) When a State agency disability examiner makes the initial 
determination alone as provided in Sec.  404.1615(c)(3), he or she may 
obtain the opinion of a State agency medical or psychological 
consultant about one or more of the medical issues listed in paragraph 
(f)(1)(i) of this section. In these cases, the State agency disability 
examiner will consider the opinion of the State agency medical or 
psychological consultant as opinion evidence and weigh this evidence 
using the relevant factors in paragraphs (a) through (e) of this 
section.
    (iii) When a State agency disability examiner makes a 
reconsideration determination alone as provided in Sec.  
404.1615(c)(3), he or she will consider findings made by a State agency 
medical or psychological consultant at the initial level of the 
administrative review process and any opinions provided by such 
consultants at the initial and reconsideration levels as opinion 
evidence and weigh this evidence using the relevant factors in 
paragraphs (a) through (e) of this section.
    (2) * * *
    (i) Administrative law judges are not bound by any findings made by 
State agency medical or psychological consultants, or other program 
physicians or psychologists. State agency medical and psychological 
consultants and other program physicians, psychologists, and other 
medical specialists are highly qualified physicians, psychologists, and 
other medical specialists who are also experts in Social Security 
disability evaluation. Therefore, administrative law judges must 
consider findings and other opinions of State agency medical and 
psychological consultants and other program physicians, psychologists, 
and other medical specialists as opinion evidence, except for the 
ultimate determination about whether you are disabled (see Sec.  
404.1512(b)(8)).
    (ii) When an administrative law judge considers findings of a State 
agency medical or psychological consultant or other program physician, 
psychologist, or other medical specialist, the administrative law judge 
will evaluate the findings using relevant factors in paragraphs (a) 
through (e) of this section, such as the consultant's medical specialty 
and expertise in our rules, the supporting evidence in the case record, 
supporting explanations the medical or psychological consultant 
provides, and any other factors relevant to the weighing of the 
opinions. Unless a treating source's opinion is given controlling 
weight, the administrative law judge must explain in the decision the 
weight given to the opinions of a

[[Page 9825]]

State agency medical or psychological consultant or other program 
physician, psychologist, or other medical specialist, as the 
administrative law judge must do for any opinions from treating 
sources, nontreating sources, and other nonexamining sources who do not 
work for us.
* * * * *
    4. Amend Sec.  404.1529 by revising the third sentence 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 and in fully 
favorable determinations made by State agency disability examiners 
alone under Sec.  404.1615(c)(3)), a State agency medical or 
psychological consultant or other medical or psychological consultant 
designated by the Commissioner (or a medical or psychological expert 
(as defined in Sec.  405.5 of this chapter) in claims adjudicated under 
the procedures in part 405 of this chapter) directly participates in 
determining whether your medically determinable impairment(s) could 
reasonably be expected to produce your alleged symptoms. * * *
* * * * *
    5. Revise Sec.  404.1546(a) to read as follows:


Sec.  404.1546  Responsibility for assessing your residual functional 
capacity.

    (a) Responsibility for assessing residual functional capacity at 
the State agency. When a State agency medical or psychological 
consultant and a State agency disability examiner make the disability 
determination as provided in Sec.  404.1615(c)(1), a State agency 
medical or psychological consultant(s) (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) is 
responsible for assessing your residual functional capacity. When a 
State agency disability examiner makes a disability determination alone 
as provided in Sec.  404.1615(c)(3), the disability examiner is 
responsible for assessing your residual functional capacity.
* * * * *

Subpart Q--[Amended]

    6. 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)).

    7. Amend Sec.  404.1602 by adding the definition ``Compassionate 
allowance'' in alphabetical order to read as follows:


Sec.  404.1602  Definitions.

* * * * *
    Compassionate allowance means a determination or decision we make 
under a process that identifies for expedited handling claims that 
involve impairments that invariably qualify under the Listing of 
Impairments in appendix 1 to subpart P based on minimal, but 
sufficient, objective medical evidence.
* * * * *
    8. Amend Sec.  404.1615 by revising paragraph (c) introductory 
text, removing the word ``or'' at the end of paragraph (c)(2), 
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new 
paragraph (c)(3) to read as follows:


Sec.  404.1615  Making disability determinations.

* * * * *
    (c) Disability determinations will be made by:
* * * * *
    (3) A State agency disability examiner alone if the claim is 
adjudicated under the quick disability determination process (see Sec.  
404.1619) or as a compassionate allowance (see Sec.  404.1602), and the 
initial or reconsidered determination is fully favorable to you. This 
paragraph will no longer be effective on [INSERT DATE THREE YEARS AFTER 
EFFECTIVE DATE OF FINAL RULES] unless we terminate it earlier or extend 
it beyond that date by notice of a final rule in the Federal Register; 
or
* * * * *
    9. Amend Sec.  404.1619 by revising paragraphs (b) introductory 
text, (b)(1), (b)(2), and (c) to read as follows:


Sec.  404.1619  Quick disability determination process.

* * * * *
    (b) If we refer a claim to the State agency for a quick disability 
determination, a designated quick disability determination examiner 
must do all of the following:
    (1) Subject to the provisions in paragraph (c) of this section, 
make the disability determination after consulting with a State agency 
medical or psychological consultant if the State agency disability 
examiner determines consultation is appropriate or if consultation is 
required under Sec.  404.1526(c). The State agency may certify the 
disability determination forms to us without the signature of the 
medical or psychological consultant.
    (2) Make the quick disability determination based only on the 
medical and nonmedical evidence in the file.
* * * * *
    (c) If the quick disability determination examiner cannot make a 
determination that is fully favorable to the individual, or if there is 
an unresolved disagreement between the disability examiner and the 
medical or psychological consultant (except when a disability examiner 
makes the determination alone under Sec.  404.1615(c)(3)), the State 
agency will adjudicate the claim using the regularly applicable 
procedures in this subpart.

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

Subpart I--[Amended]

    10. 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 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).

    11. Amend Sec.  416.912 by removing the word ``and'' from the end 
of paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8) 
and revising newly redesignated paragraph (b)(8), and adding new 
paragraphs (b)(6) and (b)(7) to read as follows:


Sec.  416.912  Evidence.

* * * * *
    (b) * * *
    (6) At the initial level of the administrative review process, when 
a State agency disability examiner makes the initial determination 
alone (see Sec.  416.1015(c)(3)), opinions provided by State agency 
medical and psychological consultants based on their review of the 
evidence in your case record (see Sec.  416.927(f)(1)(ii));
    (7) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  416.1015(c)(3)), findings, other than 
the ultimate determination about whether you are disabled, made by 
State agency medical or psychological consultants and other program 
physicians, psychologists, or other medical specialists at the initial 
level of

[[Page 9826]]

the administrative review process, and other opinions they provide 
based on their review of the evidence in your case record at the 
initial and reconsideration levels (see Sec.  416.927(f)(1)(iii)); and
    (8) At the administrative law judge and Appeals Council levels 
(including the administrative law judge and Decision Review Board 
levels in claims adjudicated under the procedures in part 405 of this 
chapter), 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, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record. See Sec.  416.927(f)(2)-(3).
* * * * *
    12. Amend Sec.  416.927 by revising paragraphs (f)(1), (f)(2)(i) 
and (f)(2)(ii) 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 (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) may make 
the determination of disability together with a State agency disability 
examiner or provide one or more medical opinions to a State agency 
disability examiner when the disability examiner makes the initial or 
reconsideration determination alone (see Sec.  416.1015(c)). The 
following rules apply:
    (i) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  416.1015(c)(1), he or she 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 medically equals the 
requirements for any impairment listed in appendix 1 to subpart P of 
part 404 of this chapter, and your residual functional capacity. These 
administrative findings of fact are based on the evidence in your case 
but are not in themselves evidence at the level of the administrative 
review process at which they are made.
    (ii) When a State agency disability examiner makes the initial 
determination alone as provided in Sec.  416.1015(c)(3), he or she may 
obtain the opinion of a State agency medical or psychological 
consultant about one or more of the medical issues listed in paragraph 
(f)(1)(i) of this section. In these cases, the State agency disability 
examiner will consider the opinion of the State agency medical or 
psychological consultant as opinion evidence and weigh this evidence 
using the relevant factors in paragraphs (a) through (e) of this 
section.
    (iii) When a State agency disability examiner makes a 
reconsideration determination alone as provided in Sec.  
416.1015(c)(3), he or she will consider findings made by a State agency 
medical or psychological consultant at the initial level of the 
administrative review process and any opinions provided by such 
consultants at the initial and reconsideration levels as opinion 
evidence and weigh this evidence using the relevant factors in 
paragraphs (a) through (e) of this section.
    (2) * * *
    (i) Administrative law judges are not bound by any findings made by 
State agency medical or psychological consultants, or other program 
physicians or psychologists. State agency medical and psychological 
consultants and other program physicians, psychologists, and other 
medical specialists are highly qualified physicians, psychologists, and 
other medical specialists who are also experts in Social Security 
disability evaluation. Therefore, administrative law judges must 
consider findings and other opinions of State agency medical and 
psychological consultants and other program physicians, psychologists, 
and other medical specialists as opinion evidence, except for the 
ultimate determination about whether you are disabled (see Sec.  
416.912(b)(8)).
    (ii) When an administrative law judge considers findings of a State 
agency medical or psychological consultant or other program physician, 
psychologist, or other medical specialist, the administrative law judge 
will evaluate the findings using relevant factors in paragraphs (a) 
through (e) of this section, such as the consultant's medical specialty 
and expertise in our rules, the supporting evidence in the case record, 
supporting explanations the medical or psychological consultant 
provides, and any other factors relevant to the weighing of the 
opinions. Unless a treating source's opinion is given controlling 
weight, the administrative law judge must explain in the decision the 
weight given to the opinions of a State agency medical or psychological 
consultant or other program physician, psychologist, or other medical 
specialist, as the administrative law judge must do for any opinions 
from treating sources, nontreating sources, and other nonexamining 
sources who do not work for us.
* * * * *
    13. Amend Sec.  416.929 by revising the third sentence of paragraph 
(b) to read as follows:


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 and in fully 
favorable determinations made by State agency disability examiners 
alone under Sec.  416.1015(c)(3)), a State agency medical or 
psychological consultant or other medical or psychological consultant 
designated by the Commissioner (or a medical or psychological expert 
(as defined in Sec.  405.5 of this chapter) in claims adjudicated under 
the procedures in part 405 of this chapter) directly participates in 
determining whether your medically determinable impairment(s) could 
reasonably be expected to produce your alleged symptoms. * * *
* * * * *
    14. Revise Sec.  416.946(a) to read as follows:


Sec.  416.946  Responsibility for assessing your residual functional 
capacity.

    (a) Responsibility for assessing residual functional capacity at 
the State agency. When a State agency medical or psychological 
consultant and a State agency disability examiner make the disability 
determination as provided in Sec.  416.1015(c)(1), a State agency 
medical or psychological consultant(s) (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) is 
responsible for assessing your residual functional capacity. When a 
State agency disability examiner makes a disability determination alone 
as provided in Sec.  416.1015(c)(3), the disability examiner is 
responsible for assessing your residual functional capacity.
* * * * *

Subpart J--[Amended]

    15. 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).


[[Page 9827]]


    16. Amend Sec.  416.1002 by adding a definition of ``Compassionate 
allowance'' in alphabetical order to read as follows:


Sec.  416.1002  Definitions.

* * * * *
    Compassionate allowance means a determination or decision we make 
under a process that identifies for expedited handling claims that 
involve impairments that invariably qualify under the Listing of 
Impairments in appendix 1 to subpart P of part 404 of this chapter 
based on minimal, but sufficient, objective medical evidence.
* * * * *
    17. Amend Sec.  416.1015 by revising paragraph (c) introductory 
text, removing the word ``or'' at the end of paragraph (c)(2), 
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new 
paragraph (c)(3) to read as follows:


Sec.  416.1015  Making disability determinations.

* * * * *
    (c) Disability determinations will be made by:
* * * * *
    (3) A State agency disability examiner alone if you are not a child 
(a person who has not attained age 18), and the claim is adjudicated 
under the quick disability determination process (see Sec.  416.1019) 
or as a compassionate allowance (see Sec.  416.1002), and the initial 
or reconsidered determination is fully favorable to you. This paragraph 
will no longer be effective on [INSERT DATE THREE YEARS AFTER EFFECTIVE 
DATE OF FINAL RULES] unless we terminate it earlier or extend it beyond 
that date by notice of a final rule in the Federal Register; or
* * * * *
    18. Amend Sec.  416.1019 by revising paragraphs (b) introductory 
text, (b)(1), (b)(2), and (c) to read as follows:


Sec.  416.1019  Quick disability determination process.

* * * * *
    (b) If we refer a claim to the State agency for a quick disability 
determination, a designated quick disability determination examiner 
must do all of the following:
    (1) Subject to the provisions in paragraph (c) of this section, 
make the disability determination after consulting with a State agency 
medical or psychological consultant if the State agency disability 
examiner determines consultation is appropriate or if consultation is 
required under Sec.  416.926(c). The State agency may certify the 
disability determination forms to us without the signature of the 
medical or psychological consultant.
    (2) Make the quick disability determination based only on the 
medical and nonmedical evidence in the file.
* * * * *
    (c) If the quick disability determination examiner cannot make a 
determination that is fully favorable to the individual, or if there is 
an unresolved disagreement between the disability examiner and the 
medical or psychological consultant (except when a disability examiner 
makes the determination alone under Sec.  416.1015(c)(3)), the State 
agency will adjudicate the claim using the regularly applicable 
procedures in this subpart.

[FR Doc. 2010-4283 Filed 3-3-10; 8:45 am]
BILLING CODE 4191-02-P