[Federal Register Volume 75, Number 197 (Wednesday, October 13, 2010)]
[Rules and Regulations]
[Pages 62676-62684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25502]
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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: Final rules.
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SUMMARY: We are revising our rules on a temporary basis to permit State
agency disability examiners 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 State agency
medical or psychological consultant. These changes apply only to claims
we consider under our rules for quick disability determinations (QDD)
or under our compassionate allowance initiative.
DATES: These final rules are effective on November 12, 2010.
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.
Our Current Rules
Under our current rules, a State agency disability examiner and a
State agency medical or psychological consultant generally work
together to make a disability determination 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\ Except in prototype
States, a State agency disability examiner may solely make a disability
determination, without consulting a medical consultant, only when there
is no medical evidence to evaluate and the claimant fails or refuses,
without a good reason, to undergo a consultative examination.\3\
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\1\ 20 CFR 404.900 and 416.1400.
\2\ 20 CFR 404.1615(c)(1) and 416.1015(c)(1).
\3\ 20 CFR 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. 20 CFR
404.906(b)(2) and 416.1406(b)(2). We are continuing that testing.
However, the changes in these final rules apply in all States,
including SDM States. They allow SDMs and other disability examiners
to make fully favorable determinations alone in QDD and
compassionate allowance claims.
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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 (``listings'') in our regulations \5\ at step 3
of the sequential evaluation process for initial claims \6\ based on
minimal, but sufficient, objective medical information.\7\
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\4\ 20 CFR 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 under 20 CFR 416.925.
\6\ 20 CFR 404.1520(a)(4)(iii) and (d) and 416.920(a)(4)(iii)
and (d).
\7\ 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, for example, 72 FR 41649
(2007), 73 FR 10715 (2008), and 73 FR 66563 (2008). On March 1,
2010, we added another 38 conditions. See http://www.socialsecurity.gov/compassionateallowances/newconditions.htm. We
plan to obtain more public input to determine whether and how to
expand the list over time.
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[[Page 62677]]
New QDD and Compassionate Allowance Rules
These final rules allow disability examiners to make certain fully
favorable determinations under our QDD rules or under our compassionate
allowance initiative without the approval of a medical or psychological
consultant. This change is consistent with our goal to allow cases that
should be allowed as quickly as possible.\8\ It will also help us to
process cases more efficiently because it will give State agency
medical and psychological consultants more time to work on those
complex cases for which we need their expertise. To accommodate this
change, we are redesignating current 20 CFR 404.1615(c)(3) and
416.1015(c)(3) as (c)(4) and adding new paragraphs 20 CFR
404.1615(c)(3) and 416.1015(c)(3).
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\8\ See Social Security Administration Strategic Plan 2008-2013,
Strategic Goal 2, http://www.ssa.gov/asp/StrategicGoal2.pdf.
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This revision is a change from our prior position. When we
published final rules extending the QDD process to all States,\9\ we
declined to adopt a comment to allow disability examiners to make
determinations without a medical or psychological consultant's
involvement.\10\ However, we now have about 3 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 are 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.
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\9\ 72 FR 51173 (Sept. 6, 2007).
\10\ Id. at 51175.
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For these reasons, we expect that the accuracy rates of QDDs and
compassionate allowance determinations made solely by State agency
disability examiners will be comparable to the accuracy rate of the
determinations now made in consultation with medical examiners. We will
also have measures in place, in addition to quality assurance reviews,
that will provide us with information about the quality of QDDs and
compassionate allowance determinations. Therefore, we will be
monitoring these determinations made by State agency disability
examiners. We are also including a 3-year ``sunset date,'' after which
final sections 404.1615(c)(3) and 416.1015(c)(3) will no longer be
effective, unless we terminate the rules earlier or extend them beyond
that date by notice of a final rule in the Federal Register.
State agency disability examiners who make fully favorable
determinations under these final rules will still have the option of
consulting with State agency medical and psychological consultants when
they deem it necessary. We will continue to require State agency
disability examiners to consult with State agency medical or
psychological consultants before they make a fully favorable
determination based on a claimant's impairment(s) medically equaling
the severity of a listing at step 3.\11\ Further, to make a fully
favorable determination at step 5, adjudicators generally must first
determine that a claimant does not have an impairment(s) that meets or
medically equals a listing. In these cases, they will have also 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 is solely responsible for
the determination.
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\11\ 20 CFR 404.1526(c) and 416.926(c).
\12\ 20 CFR 404.1520(a)(4) and 416.920(a)(4). 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.
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These final rules do not apply to claims for supplemental security
income payments under title XVI for persons under age 18. The Act
requires us to make reasonable efforts to ensure that a qualified
pediatrician or other medical professional who specializes in a field
of medicine appropriate to the child's medical 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.
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\13\ Section 1614(a)(3)(I) of the Act and 20 CFR 416.903(f) and
416.1015(e).
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Other Changes
These final rules 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 are adding a definition of ``compassionate
allowance'' in 20 CFR 404.1602 and 416.1002, the sections of part 404
subpart Q and part 416 subpart J that provide definitions of terms.
We are also making a number of conforming changes to our rules to
reflect our QDD and compassionate allowance rules in final 20 CFR
404.1615(c)(3) and 416.1015(c)(3). For example, we are revising 20 CFR
404.1546 and 416.946 to recognize that it is possible in some cases for
a State agency disability examiner to be responsible for assessing a
claimant's residual functional capacity. We are also revising 20 CFR
404.1512, 404.1527, 416.912, and 416.927 to account for situations in
which State agency disability examiners will weigh State agency medical
or psychological consultant input as opinion evidence. These rules are
similar to our current rules for administrative law judges (ALJs) and
the Appeals Council (when the Appeals Council makes a decision). We are
revising 20 CFR 404.1520a and 416.920a to authorize State agency
disability examiners to evaluate the severity of mental impairment(s),
and to complete the standard document showing how the disability
examiner applied the special technique required by that section, in
cases in which they make fully favorable QDD and compassionate
allowance determinations when claimants have a mental impairment(s).
While we did not propose specific revisions to 20 CFR 404.1520a and
416.920a in the NPRM, these revisions are consistent with our proposal
to allow State agency disability examiners to decide QDD and
compassionate allowance cases without the approval of a medical or
psychological consultant. Because the current QDD model and the current
list of compassionate allowance conditions include mental impairments,
we need to make these revisions to allow State agency disability
examiners to decide those cases alone, as we proposed.
These final rules include revisions to rules that relate to both
the initial and reconsideration levels of the administrative review
process under 20 CFR 404.1602 and 416.1002. We are making these
revisions because:
[[Page 62678]]
(1) Unlike the QDD process, the compassionate allowance initiative is
not limited to the initial level of administrative review; and (2) any
claimant who is dissatisfied with our determination--even a
determination allowing a claimant's claim in full--may request a
reconsideration.\14\
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\14\ 20 CFR 404.907 and 416.1407.
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Finally, we are making minor editorial changes to several rules to
recognize that State agency medical consultants are not always
physicians. These changes will conform these rules to current 20 CFR
404.1616 and 416.1016. We also are correcting a grammatical error in 20
CFR 404.1619(b)(2) and 416.1019(b)(2) and making other minor editorial
changes throughout these final rules.
Relationship of These Rules to Notice of Proposed Rulemaking
``Reestablishing Uniform National Disability Adjudication Provisions''
We published a notice of proposed rulemaking (NPRM)
``Reestablishing Uniform National Disability Adjudication Provisions''
in the Federal Register on December 4, 2009. 74 FR 63688. We proposed
different revisions to several of the regulatory sections revised by
these final rules. The language in these final rules is controlling. We
are still evaluating the comments on the December 4, 2009, NPRM.
Public Comments
We published a NPRM in the Federal Register on March 4, 2010, and
we gave the public 30 days to comment on the NPRM. 75 FR 9821. We
received comments from five persons and organizations during this
period. We carefully read and considered each of them. They are
available for public viewing at http://www.regulations.gov. Because
some of the comments were long, we have condensed, summarized, and
paraphrased them. We have tried to summarize the commenters' views
accurately and to respond to the significant issues raised by the
commenters that were within the scope of these rules.
Comment: Four of the commenters supported our proposed rules, but
one commenter opposed them based on his experience working as a medical
consultant in a State agency. He said that his State agency's attempt
to have disability examiners make determinations without medical
consultant involvement or approval failed and would fail again. The
commenter generally questioned the qualifications of disability
examiners, State agency managers, and quality control personnel. The
commenter said that our ``[p]ilot studies with tight controls and
everybody acting on good behavior'' would not be representative of the
deterioration in quality that he thought would occur over time under
our proposed rules. He preferred that State agency disability examiners
continue to work with State agency medical consultants on all claims to
achieve a balance in quality and resist possible ``corruption of the
[decisionmaking] process.''
Response: We disagree with this comment. We are confident that
disability examiners are competent and able to make these fully
favorable determinations. Our confidence is bolstered by the success of
the pilot. We simply do not agree with the commenter's assessment of
the skills and competence of disability examiners, managers, and
quality control personnel. We believe they are highly-skilled and
capable employees who do a fine job for us.
Moreover, the commenter's personal experience with one State agency
ended almost 20 years ago. His personal experience does not take into
account our more recent experience with the SDM initiatives. Our more
recent experience, which involves the adjudication of tens of thousands
of cases in 20 State agencies, does not show the types of problems
cited by the commenter.
Furthermore, these final rules allow State agency disability
examiners to make only fully favorable QDD and compassionate allowance
determinations. Our procedures for the two initiatives ensure that we
select cases that we are very likely to allow. In fact, we make fully
favorable determinations in the great majority of cases we identify for
QDD and compassionate allowances. Given our program experience using
these initiatives, we believe that we do not need State agency medical
or psychological consultants to approve these determinations and that
the State agencies can better use the services of their medical and
psychological consultants for more complex cases in which we need their
medical expertise.
Moreover, we are confident that we will be able to quickly detect
and correct any quality issues, should they occur, through our quality
assurance reviews. We are also required by statute to review at least
50 percent of all State agency allowances,\15\ and this sample includes
QDD and compassionate allowance determinations. To further ensure that
these final rules do not result in any unforeseen or unintended
consequences, we are including in final sections 404.1615(c)(3) and
416.1015(c)(3) a 3-year sunset date and a provision that allows us to
terminate the new process even sooner if we determine that it would be
appropriate to do so.
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\15\ Sections 221(c)(3) and 1633(e)(2) of the Act.
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Comment: The same commenter also said that our NPRM was
``unbalanced'' because we authorized State agency disability examiners
to make only fully favorable determinations. The commenter asserted
that this restriction indicated that we believed that State agency
disability examiners were more competent to make allowance
determinations than denials and that claimants deserve professional
medical input before being denied benefits. Another commenter thought
our NPRM was too restrictive and asked us to authorize State agency
disability examiners to also make partially favorable determinations,
such as favorable determinations with onset dates later than claimants
allege.
Response: We disagree with the first commenter. We want to make
fully favorable determinations as quickly as possible for claimants who
should receive them. We have determined that State agency disability
examiners are capable of making fully favorable QDD and compassionate
allowance determinations.
The first commenter seems to have also misunderstood the intent of
our proposal. We proposed, and decided to adopt, rules that apply only
to a subset of our allowance determinations, not all allowances. As we
explain above, we have been and are still conducting another project
that authorizes State agency disability examiners to make both more
complex favorable determinations and unfavorable determinations.\16\
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\16\ See footnote 3, above.
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We also did not adopt the second comment to authorize State agency
disability examiners to make partially favorable determinations. These
determinations require findings that a claimant was either disabled at
a later onset date than the claimant alleged or that the claimant had a
``closed'' period of disability and is no longer disabled. Thus, the
same considerations that led us to exclude unfavorable determinations
and continuing disability reviews also apply to partially favorable
determinations. We proposed to authorize State agency disability
examiners to make only what are essentially some of the most obvious
allowance determinations in our
[[Page 62679]]
caseload. At this time, we are not expanding that authority to
partially favorable or unfavorable determinations.
Comment: We received two comments about the sunset date from
commenters who supported the NPRM. One commenter asked why we included
a sunset date and suggested that we make these rules permanent. Another
commenter supported the sunset date in case we find that the process is
not working satisfactorily.
Response: We decided to include a sunset date for these rules
because we believe that we need to evaluate how the rules work in
practice. If we decide based on that evaluation that the process is not
working satisfactorily, the sunset date will allow us to let the
program expire without the need for an additional change to our rules.
The sunset date requires us only to publish a final rule in the Federal
Register to notify the public if we decide to extend the process beyond
the 3-year period or to terminate it before the expiration of that
period. We do not need to publish new regulations or propose changes if
we want the process to end at the expiration of the 3-year period. We
have used sunset dates in some of our other rules, and we have extended
them when we have determined that they are working well. For example,
on July 13, 2009, we extended our rules that allow attorney advisors in
hearing offices to conduct prehearing proceedings, which include
issuing fully favorable decisions at the ALJ hearing level.\17\
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\17\ ``Attorney Advisor Program Sunset Date Extension,'' 74 FR
33327.
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Comment: One commenter disagreed with the statement in our preamble
that said: ``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.'' \18\ The
commenter wanted us to authorize State agency disability examiners to
make fully favorable determinations based on medical equivalence
without needing to first obtain ``approval'' from State agency medical
or psychological consultants. The commenter believed that the
requirement we described would severely restrict disability examiner
authority in QDD and compassionate allowance claims and make the rules
``almost impractical.''
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\18\ 75 FR at 9822.
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Response: We believe the commenter may have misunderstood our
proposed rule. We did not say that State agency disability examiners
would need approval from a State agency medical or psychological
consultant before issuing a fully favorable determination in this
process. We simply explained that State agency disability examiners who
are solely responsible for QDD and compassionate allowance
determinations would be subject to the same rules about determining
medical equivalence as other decisionmakers at other levels of our
administrative review process when we cannot allow a case as a QDD or
compassionate allowance.
Under our longstanding regulations, all adjudicators at all levels
of the administrative review process must consider the opinion of ``one
or more medical or psychological consultants designated by the
Commissioner'' whenever they make a finding that an impairment(s) does
or does not medically equal a listing. 20 CFR 404.1526(c) and
416.926(c).
These requirements apply to State agency disability examiners. At
the initial and reconsideration levels of the administrative review
process, the requirement for medical or psychological consultant input
is normally satisfied because a State agency medical or psychological
consultant is part of a team that makes the determination.
We disagree with the commenter's opinion that requiring State
agency disability examiners to follow the same rule as other
adjudicators would make our proposal impractical. Most claimants who
qualify under the QDD and compassionate allowance initiatives have
impairments that meet listings, and these rules do not require
disability examiners to consult with a medical or psychological
consultant before determining that a claimant's impairment(s) meets a
listing.
Under the new process in these final rules, State agency disability
examiners will be solely responsible for their fully favorable QDD and
compassionate allowance determinations. Nevertheless, if in QDD and
compassionate allowance cases, disability examiners are not able to
find that a claimant's impairment(s) meets the severity of a listed
impairment, they will need to follow the longstanding requirement to
obtain an opinion about medical equivalence from medical or
psychological consultants. Although they must obtain and review such
opinions, State agency disability examiners are not bound to accept
them as binding, and the State agency medical or psychological
consultants will not need to ``approve'' the determinations.
Also, these final rules do not require a State agency disability
examiner to obtain an opinion about residual functional capacity before
making a fully favorable determination. In the NPRM's preamble, we were
explaining only that, to allow a case at step 5 of the sequential
evaluation process, a State agency disability examiner will necessarily
have had to obtain a State agency medical or psychological consultant's
opinion about medical equivalence at step 3.
Authority for These Final Rules
Under the Act, we have full power and authority to make rules and
regulations and to establish necessary or 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.
Regulatory Procedures
Executive Order 12866
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866. Thus, OMB reviewed them.
The Office of the Chief Actuary provided two estimates of the
effects of these final rules, due to uncertainty over the extent to
which the compassionate allowance initiative and the predictive model
underlying the QDD process can be enhanced. 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 fiscal year (FY) 2012. The following table
presents the year-by-year estimates of the effect of these final rules
on OASDI benefit payments and Federal SSI payments for the fiscal year
period 2010-2019 under these two sets of assumptions. All estimates are
based on the assumptions underlying the President's FY 2010 Budget and
assume these final rules are effective July 1, 2010. The estimates
reflect projected costs should the changes be extended through 2019.
[[Page 62680]]
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
Totals: ...... ...... ......
2010-14....................................... 2 * 3
2010-19....................................... 9 1 10
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* 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
------------------------------------------------------------------------
2010............................................ * * *
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
Totals: ...... ...... ......
2010-14....................................... 5 1 6
2010-19....................................... 20 3 23
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* 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 final rules do not have a significant
economic impact on a substantial number of small entities as they
affect only States and individuals. Therefore, the Regulatory
Flexibility Act, as amended, does not require us to make a regulatory
flexibility analysis.
Paperwork Reduction Act
These final rules do not create any new or affect any existing
collections. They do 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)
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).
Michael J. Astrue,
Commissioner of Social Security.
0
For the reasons set out in the preamble, we are amending 20 CFR part
404 subparts P and Q and part 416 subparts I and J as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart P--[Amended]
0
1. The authority citation for subpart P of part 404 is revised to read
as follows:
Authority: Secs. 202, 205(a)-(b), and (d)-(h), 216(i), 221(a),
(i), and (j), 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), (i),
and (j), 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).
0
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 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. Sec. 404.1527(f)(2)-(3).
* * * * *
0
3. Amend Sec. 404.1520a by adding a third sentence to the introductory
text of paragraph (e), revising paragraph (e)(1), redesignating
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5), and
adding new paragraphs (e)(2) and (e)(3) to read as follows:
Sec. 404.1520a Evaluation of mental impairments.
* * * * *
(e) Documenting application of the technique. * * * The following
rules apply:
(1) 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), the State agency medical
or psychological consultant has overall responsibility for assessing
medical severity. At the initial level in claims adjudicated under the
procedures in part 405 of this chapter, a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) has overall
responsibility for assessing medical severity. A State agency
disability examiner may assist in preparing the standard document.
However, our medical or psychological consultant (or the 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)
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.
[[Page 62681]]
(2) When a State agency disability examiner makes the determination
alone as provided in Sec. 404.1615(c)(3), the State agency disability
examiner has overall responsibility for assessing medical severity and
for completing and signing the standard document.
(3) When a disability hearing officer makes a reconsideration
determination as provided in Sec. 404.1615(c)(4), the determination
must document application of the technique, incorporating the
disability hearing officer's pertinent findings and conclusions based
on this technique.
* * * * *
0
4. Amend Sec. 404.1527 by revising paragraph (f)(1), and revising
paragraphs (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 the 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.
* * * * *
0
5. Amend Sec. 404.1529 by removing ``Sec. Sec. 404.1512(b)(2) through
(6)'' in the third sentence of paragraph (a) and adding ``Sec. Sec.
404.1512(b)(2) through (8)'' in its place, and 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. * * *
* * * * *
0
6. 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]
0
7. 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)).
[[Page 62682]]
0
8. Amend Sec. 404.1602 by adding a definition of ``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.
* * * * *
0
9. Amend Sec. 404.1615 by revising the introductory text of paragraph
(c), 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 November 12, 2013 unless we
terminate it earlier or extend it beyond that date by publication of a
final rule in the Federal Register; or
* * * * *
0
10. 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, 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]
0
11. The authority citation for subpart I of part 416 is revised 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).
0
12. 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 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 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. Sec. 416.927(f)(2)-(3).
* * * * *
0
13. Amend Sec. 416.920a by adding a third sentence to the introductory
text of paragraph (e), revising paragraph (e)(1), redesignating
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5), and
adding new paragraphs (e)(2) and (e)(3) to read as follows:
Sec. 416.920a Evaluation of mental impairments.
* * * * *
(e) Documenting application of the technique. * * * The following
rules apply:
(1) 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), the State agency medical
or psychological consultant has overall responsibility for assessing
medical severity. At the initial level in claims adjudicated under the
procedures in part 405 of this chapter, a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) has overall
responsibility for assessing medical severity. A State agency
disability examiner may assist in preparing the standard document.
However, our medical or psychological consultant (or the 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)
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.
(2) When a State agency disability examiner makes the determination
alone as provided in Sec. 416.1015(c)(3), the State agency disability
examiner has overall responsibility for assessing
[[Page 62683]]
medical severity and for completing and signing the standard document.
(3) When a disability hearing officer makes a reconsideration
determination as provided in Sec. 416.1015(c)(4), the determination
must document application of the technique, incorporating the
disability hearing officer's pertinent findings and conclusions based
on this technique.
* * * * *
0
14. Amend Sec. 416.927 by revising paragraph (f)(1), and revising
paragraphs (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 the 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.
* * * * *
0
15. Amend Sec. 416.929 by removing ``Sec. Sec. 416.912(b)(2) through
(6)'' in the third sentence of paragraph (a) and adding ``Sec. Sec.
416.912(b)(2) through (8)'' in its place, and 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. * * *
* * * * *
0
16. 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]
0
17. 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).
0
18. Amend Sec. 416.1002 by adding a definition of ``compassionate
allowance'' in alphabetical order to read as follows:
[[Page 62684]]
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.
* * * * *
0
19. Amend Sec. 416.1015 by revising the introductory text of paragraph
(c), 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 November 12, 2013 unless we terminate it
earlier or extend it beyond that date by publication of a final rule in
the Federal Register; or
* * * * *
0
20. 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, 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. 2010-25502 Filed 10-12-10; 8:45 am]
BILLING CODE 4191-02-P