[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Rules and Regulations]
[Pages 24802-24812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10486]


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

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405, 416, and 422

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


Eliminating the Decision Review Board

AGENCY: Social Security Administration.

ACTION: Final rules.

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

SUMMARY: We are eliminating the Decision Review Board (DRB) portions of 
part 405 of our rules, which we currently use as the final step in our 
administrative review process for adjudicating initial disability 
claims in our Boston region. As of the effective date of this 
regulation, we will replace the DRB step with review by the Appeals 
Council. The Appeals Council will follow most of the rules in parts 404 
and 416 that we use in the rest of the country to adjudicate disability 
claims at the Appeals Council level, with some differences needed to 
accommodate the rules that govern administrative law judge (ALJ) 
hearings in the Boston region. We will also authorize attorney advisors 
in the Boston region to conduct certain prehearing proceedings and make 
fully favorable decisions as they do in the rest of the country. We are 
making these changes to improve service to claimants and to increase 
consistency in our program rules.

DATES: These final rules are effective June 13, 2011.

FOR FURTHER INFORMATION CONTACT: Paul Kryglik, Social Security 
Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 965-3735 for information about these rules. 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:

Background

    On March 31, 2006, we published final rules in the Federal Register 
that implemented a number of changes in our process for handling 
initial disability claims.\1\ We referred to those regulations 
collectively as the Disability Service Improvement process (DSI). We 
intended DSI to improve the way we handle initial disability claims. 
DSI added rules that implemented a Quick Disability Determination (QDD) 
process at the initial level of our administrative review process. It 
also replaced the reconsideration step of the administrative review 
process with review by a Federal Reviewing Official (FedRO), 
established the Office of Medical and Vocational Expertise (OMVE), and 
made changes to some of the procedures in our ALJ hearing-level 
process. DSI also eliminated review by the Appeals Council, the final 
step in our administrative review process. We replaced the Appeals 
Council with the DRB, which reviewed certain ALJ decisions before those 
decisions became final. On August 1, 2006, we implemented the DSI rules 
in our Boston region, which consists of the States of Connecticut, 
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. At that 
time, we planned to implement the DSI rules in our remaining regions 
over a period of several years.
---------------------------------------------------------------------------

    \1\ 71 FR 16424. Many of the changes are found in 20 CFR part 
405.
---------------------------------------------------------------------------

    We have continually monitored the DSI process and made appropriate 
changes when necessary. For example, we published final rules on 
September 6, 2007, that implemented the QDD process nationally.\2\ In 
other final rules, we suspended new claims processing through the 
Office of the Federal Reviewing Official (OFedRO) and the OMVE under 
subpart C of part 405 on March 23, 2008, so that we could reallocate 
those resources to reduce the backlog at the ALJ hearing level.\3\ In 
November 2008, the OFedRO issued a decision on the last of the claims 
it had accepted for review.\4\ Thus, in accordance with our March 2008 
final rules, the States in the Boston region returned to some of the 
processes they followed before August 2006, including using either the 
process for reconsideration of an initial determination in 20 CFR 
404.907 and 416.1407 or the testing procedures in 20 CFR 404.906 and 
416.1406.
---------------------------------------------------------------------------

    \2\ 72 FR 51173.
    \3\ 73 FR 2411 (Jan. 15, 2008), corrected at 73 FR 10381 (Feb. 
27, 2008).
    \4\ 73 FR at 2412.
---------------------------------------------------------------------------

    On December 4, 2009, we published a notice of proposed rulemaking 
(NPRM), Reestablishing Uniform National Disability Adjudication 
Provisions, which proposed to eliminate DSI and return the Boston 
region to the rules in parts 404 and 416 that we use to adjudicate 
disability claims in the rest of the country.\5\ We are adopting some 
of our proposed revisions in these final rules.
---------------------------------------------------------------------------

    \5\ 74 FR 63688.
---------------------------------------------------------------------------

Explanation of Changes

    In these final rules, we are eliminating the DRB and restoring the 
Boston region to most of the same rules and procedures at the Appeals 
Council level under parts 404 and 416 that we currently follow in the 
rest of the country. We will continue to use our rules about hearings 
before ALJs under part 405 in the Boston region, including our rules 
that provide 75-day notice of a hearing and require a claimant to 
submit all evidence 5 days prior to his or her hearing unless he or she 
shows good cause. We are eliminating the existing rules that require 
claimants to ask an ALJ to vacate the ALJ's dismissal of a hearing 
request. Instead, under our new rules, claimants may appeal an ALJ's 
dismissal of a hearing request

[[Page 24803]]

directly to the Appeals Council, as is our current practice in the rest 
of the country.
    Although we closed a claimant's official record once an ALJ issued 
his or her decision under the DSI rules,\6\ the ALJ could consider new 
evidence submitted afterwards under certain conditions.\7\ The DRB 
could also consider new evidence under certain conditions. In these 
final rules, we are eliminating the rule that allowed an ALJ to 
consider new evidence and adding final section 405.401, which restricts 
the conditions under which the Appeals Council can accept new evidence 
in DSI claims. If a claimant appeals an ALJ's dismissal of a hearing 
request, the Appeals Council will consider additional evidence about 
the dismissal and decide whether it provides a basis for granting 
review, as also described in final section 405.401.
---------------------------------------------------------------------------

    \6\ Current 20 CFR 405.360.
    \7\ Current 20 CFR 405.373.
---------------------------------------------------------------------------

    With the other changes that we have already made to the DSI 
process, we no longer need many of the DSI rules in part 405 and are 
removing references to the FedRO from our rules. These final rules do 
not affect our Disability Prototype and Single Decisionmaker 
demonstration projects.
    The DRB has not functioned as we originally intended; its workload 
has grown quickly and become overwhelming. We had intended to use an 
automated predictive model to select the most error-prone cases for DRB 
review. However, because we were unable to implement this predictive 
model, the DRB processed 100% of the unfavorable and partially 
favorable decisions, requiring significantly more resources than we had 
anticipated.
    The DRB is composed of selected ALJs and administrative appeals 
judges from the Appeals Council. As members of the DRB, they were 
unavailable for their regular work, and our efforts to reduce the 
hearing backlog suffered. Before we implemented DSI, requests for 
review from the Boston region represented a small fraction of the 
Appeals Council's total requests for review. Because the DRB processed 
100% of the unfavorable and partially favorable cases, there were more 
cases to review. At the same time, we had an increased number of 
requests for review by the Appeals Council in other areas of the 
country as we continued to work down our disability hearings backlog 
and increased the number of ALJ adjudications nationwide. In fiscal 
year (FY) 2010, the Appeals Council received 20% more requests for 
review than in FY 2009, up from 106,965 in FY 2009 to 128,703 in FY 
2010.
    The DRB's workload also reduced needed resources at the ALJ hearing 
level, as those ALJs who worked full-time on the DRB were unavailable 
to hold hearings. If we continued the DRB, we would need to assign even 
more ALJs to the DRB's workload as the number of DRB receipts rose due 
to our hearings backlog reduction plan. Consequently, the continued use 
of the DRB adversely affected our ability to reduce the hearings 
backlog.
    We also are adding a new section 405.342 to allow attorney advisors 
to conduct prehearing proceedings and issue fully favorable decisions 
on cases that arise in the Boston region in the same manner as they do 
in the rest of the country. In our proposed rules, we proposed to 
follow in the Boston region the same hearings-level procedures we use 
in the rest of the country, including the rules that apply to our 
attorney advisor program. Even though these final rules do not adopt 
for the Boston region all of the hearings-level procedures we use in 
the rest of the country, we are adding this rule to help us reduce the 
backlog of cases awaiting a hearing.

Conforming Changes

    We are making a number of conforming changes to sections in parts 
404, 405, 416, and 422 to reflect this removal of the DRB rules. Some 
sections in these final rules differ from the language we proposed in 
the December 4, 2009 NPRM because these final rules retain the part 405 
rules about the ALJ hearing level and include changes made after that 
date by our final rules ``Disability Determinations by State Agency 
Disability Examiners,'' which we published in the Federal Register on 
October 13, 2010.\8\ We have already published final rules in parts 404 
and 416 that either removed some aspects of the DSI process or extended 
them nationally.\9\ With the changes to the DSI process in this final 
rule, we are making a number of conforming changes consistent with the 
2010 final rules.
---------------------------------------------------------------------------

    \8\ 75 FR 62676.
    \9\ As stated above, under the final rules we published in March 
2008 that ended the FedRO and OMVE initiatives, subpart C of part 
405 is no longer in effect. See 20 CFR 405.10(d).
---------------------------------------------------------------------------

Technical Change

    We also are making a technical change to the heading of 20 CFR 
416.926(e). The former heading was ``Responsibility for determining 
medical equivalence.'' We are changing the heading to ``Who is 
responsible for determining medical equivalence?'' This change will 
make the heading consistent with its counterpart in 20 CFR 404.1526(e) 
and the format of headings in surrounding sections.

Public Comments

    We published an NPRM in the Federal Register on December 4, 2009, 
and we gave the public 60 days to comment on it.\10\ The comment period 
closed on February 2, 2010. We received comments from six individuals 
and organizations. The comments are available for public viewing at 
http://www.regulations.gov. The commenters supported most of the 
proposed changes but were concerned about three issues, which we 
discuss below. We carefully considered the comments. 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.
---------------------------------------------------------------------------

    \10\ 74 FR 63688.
---------------------------------------------------------------------------

    Comment: Several of the commenters wanted attorney advisors in our 
Office of Disability Adjudication and Review to be able to conduct 
prehearing proceedings and issue fully favorable decisions in the 
Boston region as they do in the rest of the country.\11\ These 
commenters noted that we precluded attorney advisors from deciding DSI 
cases.
---------------------------------------------------------------------------

    \11\ See 20 CFR 404.942 and 416.1442.
---------------------------------------------------------------------------

    Response: We are adopting this comment. As the commenters correctly 
noted, the attorney advisor program is available only to disability 
claims processed under parts 404 and 416 of our rules, and it does not 
apply to claims processed under the DSI rules in part 405.\12\ We agree 
with the commenters that we should extend the attorney advisor 
prehearing process to claims processed in the Boston region as we 
continue our efforts to reduce the number of disability claims that are 
awaiting a hearing. Therefore, beginning on the effective date of these 
final rules, we will allow attorney advisors to conduct prehearing 
proceedings and issue fully favorable decisions on cases that arise in 
the Boston region in the same manner as they do in the rest of the 
country. We are adding this authority in new section 405.342.
---------------------------------------------------------------------------

    \12\ 73 FR 11349, 11350 (March 3, 2008).
---------------------------------------------------------------------------

    Comment: Most of the commenters asked us to extend DSI's 75-day 
advance notice of a hearing rule in 20 CFR 405.315 to our national 
rules in 20 CFR 404.938 and 416.1438, which require 20 days advance 
notice.

[[Page 24804]]

    Response: We are not adopting this comment. The rules we proposed 
on December 4, 2009 addressed only rule changes related to our proposal 
to eliminate the remaining DSI rules in part 405 of our rules. The 
commenters' suggestion would make a substantive change to our rules in 
parts 404 and 416, which is beyond the scope of this rulemaking. We 
issued for public comment a separate NPRM that proposed to make several 
substantive changes to our rules in parts 404 and 416, including the 
change the commenters recommended, on October 29, 2007.\13\ We will 
consider the commenters' suggestion in the context of that rulemaking 
proceeding.
---------------------------------------------------------------------------

    \13\ 72 FR 61218.
---------------------------------------------------------------------------

    Comment: All of the commenters expressed concern about our plan to 
transfer cases pending at the DRB to the Appeals Council on the 
effective date of these final rules. The commenters believed that 
claimants whose cases we would transfer would be disadvantaged because 
they would have to wait longer for the Appeals Council to take action 
than DSI's 90-day limit for DRB review. Some commenters believed that 
this proposed procedure would be especially problematic in cases that 
involve partially favorable decisions. Under DSI, the DRB reviews those 
decisions before we effectuate them, while in non-DSI States, we first 
effectuate a partially favorable decision before we send it to the 
Appeals Council to consider the claimant's request for review. Some of 
the commenters suggested that we handle pending DRB cases as we handled 
cases pending review by a FedRO when we suspended FedRO case reviews in 
2008. In that situation, we stopped sending new cases for FedRO review 
but kept the rules for such review in place until a FedRO issued a 
decision on the last pending case.
    Response: We understand the commenters' concerns about longer 
processing times at the Appeals Council. To help allay concerns about 
processing times at the Appeals Council, we will put the transferred 
cases at the front of the Appeals Council queue. We believe that this 
approach will result in the best use of our resources and will result 
in the best service to claimants.
    We decided not to use a process similar to the one we used for 
FedRO cases because the rapid growth in the DRB's workload, the 
unanticipated need for adjudicative resources, and the impact on other 
workloads both at the ALJ hearing level and at the Appeals Council are 
adversely affecting our ability to serve the public. Transferring all 
pending DRB cases to the Appeals Council on the effective date of these 
rules will help us use our resources more effectively and provide the 
best service to claimants.
    We will process partially favorable ALJ decisions transferred to 
the Appeals Council under these final rules in the following manner. 
The Appeals Council will send partially favorable ALJ decisions that it 
receives from the DRB to a processing component, and we will effectuate 
these decisions in the same manner that we do for cases that arise in 
other parts of the country. In addition, the Appeals Council will 
notify those claimants whose claims we have transferred that we have 
deemed that they have filed a request for Appeals Council review of the 
ALJ's decision. That notice will inform the claimants that they have a 
right to file a written request for withdrawal of the deemed request 
for review. If the Appeals Council grants review of a partially 
favorable ALJ decision, it will review the entire record and may 
affirm, modify, or reverse the ALJ's decision.

When will we start to use these rules?

    We will start to use these final rules on the effective date stated 
above. Until then, we will continue to use our current rules.
    On the effective date of these final rules, we will transfer all 
cases pending before the DRB to the Appeals Council and treat these 
cases as if the claimant had requested Appeals Council review of the 
hearing decision. The Appeals Council will notify each of these 
claimants that we have deemed that he or she has filed a request for 
Appeals Council review of the ALJ's decision and that he or she has the 
right to file a written request for withdrawal of the deemed request 
for Appeals Council review. For cases in which a claimant has appealed 
a dismissal by an ALJ under the procedures in part 405, we will treat 
the pending request as a request for Appeals Council review of the 
ALJ's dismissal. We will transfer to the Appeals Council any cases 
remanded by a Federal court that we assigned to the DRB. We will 
immediately begin effectuating partially favorable decisions when we 
forward them for Appeals Council review.

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 135653

    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, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed them.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These final rules contain reporting requirements in the regulation 
sections listed below. For some sections in these rules, we previously 
accounted for the public reporting burdens in the Information 
Collection Requests for the various forms the public uses to submit the 
information to us. Consequently, we are not reporting those sections 
below. The sections below pose new public reporting burdens not covered 
by an existing OMB-approved form, and we provide burden estimates for 
them.

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                 Description of      Number of     Frequency of     burden per       Estimated
  Regulation Section 20 CFR     public reporting    respondents      response        response      annual burden
                                  requirement       (annually)                       (minutes)        (hours)
----------------------------------------------------------------------------------------------------------------
405.1(b)(5), 405.372(b)......  If applicants                 833               1              30             417
                                have pursued
                                their claims
                                through all
                                levels of the
                                administrative
                                process and are
                                dissatisfied
                                with SSA's final
                                decision, they
                                (or parties
                                acting on their
                                behalf) may
                                request judicial
                                review by filing
                                an action in
                                Federal district
                                court within the
                                stated time
                                period.

[[Page 24805]]

 
405.1(c)(2)..................  Applicants                  5,310               1              10             885
                                appealing SSA's
                                decisions must
                                provide evidence
                                to support their
                                claims.
405.20.......................  If one wants an             5,310               1              10             885
                                extension past
                                the deadline to
                                request
                                administrative
                                or judicial
                                review, one must
                                establish there
                                is good cause
                                for missing the
                                deadline.
405.372(c)...................  If applicants               5,310               1              10             885
                                want to submit
                                additional
                                evidence to the
                                Appeals Council,
                                the Council will
                                only consider it
                                if it meets
                                certain criteria.
405.505......................  If one files for              833               1              30             417
                                an extension of
                                time to file a
                                civil action,
                                one must file
                                that request
                                with the Appeals
                                Council.
                              ----------------------------------------------------------------------------------
    Total....................  .................          17,596  ..............  ..............           3,489
----------------------------------------------------------------------------------------------------------------

    We are also seeking comment on our information collections in our 
current rule sections listed below. We are updating the public 
reporting burdens for the information collection requirements under OMB 
control number 0960-0710. The following are updated burden estimates:

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                 Description of      Number of     Frequency of     burden per       Estimated
  Regulation section 20 CFR     public reporting    respondents      response        response      annual burden
                                  requirement       (annually)                       (minutes)        (hours)
----------------------------------------------------------------------------------------------------------------
404.961, 416.1461, 405.330,    An individual may          12,220               1              20           4,073
 and 405.366.                   request a pre-
                                hearing or post-
                                hearing
                                conference.
404.950, 416.1450, and         An individual has           1,040               1              20             347
 405.332.                       the right to
                                present evidence
                                at a hearing,
                                including the
                                subpoena process.
404.949 and 416.1449.........  An individual (or           2,868               1              60           2,868
                                designated
                                representative)
                                may appear
                                before an
                                administrative
                                law judge to
                                present an oral
                                or written
                                statement of a
                                case.
405.334......................  An individual (or              20               1              60              20
                                designated
                                representative)
                                may, at any time
                                before the
                                hearing begins,
                                submit a pre-
                                hearing
                                statement with
                                an explanation
                                of the alleged
                                disability.
404.957, 416.1457, and         Explain the                21,041               1              10           3,507
 405.380.                       conditions under
                                which an
                                administrative
                                law judge may
                                dismiss a
                                request for
                                hearing.
405.381......................  Outlines the                   37               1              30              19
                                contents of the
                                notice of
                                dismissal and
                                the procedures
                                for requesting
                                Appeals Council
                                review of the
                                dismissal
                                decision.
405.401......................  Explains                    5,310               1              10             885
                                procedures for
                                requesting
                                review of a
                                hearing decision
                                or a dismissal
                                of a hearing
                                request and the
                                conditions under
                                which the
                                Appeals Council
                                will consider
                                new evidence.
404.982 & 416.1482...........  Pertains to the             1,687               1              30             844
                                extension of
                                time for filing
                                an action in a
                                Federal district
                                court.
404.987 & 404.988 and          Outlines the               12,425               1              30           6,213
 416.1487 & 416.1488 and        conditions under
 405.601.                       which we may
                                reopen a final
                                decision or
                                determination.
                              ----------------------------------------------------------------------------------
    Totals...................  .................          56,648  ..............  ..............          18,776
----------------------------------------------------------------------------------------------------------------

    We submitted an Information Collection Request for clearance to 
OMB. We are soliciting comments on the burden estimate; the need for 
the information; its practical utility; ways to enhance its quality, 
utility, and clarity; and ways to minimize the burden on respondents, 
including the use of automated techniques or other forms of information 
technology. If you would like to submit comments, please send them to 
the following locations:

Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, E-mail address: [email protected].
Social Security Administration, Attn: Reports Clearance Officer, 1333 
Annex, 6401 Security Blvd, Baltimore, MD 21235-0001, Fax Number: 410-
965-6400, E-mail: [email protected].

    You can submit comments until July 5, 2011, which is 60 days after 
the publication of these rules. However, your comments will be most 
useful if you send them to us by June 2, 2011, which is 30 days after 
publication. To receive a copy of the OMB clearance package, contact 
the SSA Reports Clearance Officer using any of the above contact 
methods. We prefer to receive comments by e-mail or fax.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social

[[Page 24806]]

Security--Retirement Insurance; 96.004, Social Security--Survivors 
Insurance; and 96.006, Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 405

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

20 CFR Part 416

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

20 CFR Part 422

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

    Dated: April 26, 2011.
Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we amend subparts J, P, 
and Q of part 404, part 405, subparts I, J, and N of part 416, and 
subparts B and C of part 422 of chapter III of title 20 Code of Federal 
Regulations as set forth below:

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

Subpart J--[Amended]

0
1. The authority citation for subpart J of part 404 is revised to read 
as follows:

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


0
2. Amend Sec.  404.906 by removing the third and fourth sentences of 
paragraph (b)(4).

0
3. Amend Sec.  404.930 by removing paragraph (c).

Subpart P--[Amended]

0
4. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority:  Secs. 202, 205(a)-(b), and (d)-(h), 216(i), 221(a), 
(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
5. Amend Sec.  404.1502 by revising the definition of ``nonexamining 
source'' to read as follows:


Sec.  404.1502  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  404.1527.
* * * * *

0
6. Amend Sec.  404.1512 by revising paragraph (b)(8) to read as 
follows:


Sec.  404.1512  Evidence.

* * * * *
    (b) * * *
    (8) At the administrative law judge and Appeals Council levels, 
findings, other than the ultimate determination about whether you are 
disabled, made by State agency medical or psychological consultants and 
other program physicians or psychologists, 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
7. Amend Sec.  404.1513 by revising the first sentence of paragraph (c) 
to read as follows:


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

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

0
8. Amend Sec.  404.1519k by revising paragraph (a) to read as follows:


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

* * * * *
    (a) The rate of payment for purchasing medical or other services 
necessary to make determinations of disability may not exceed the 
highest rate paid by Federal or public agencies in the State for the 
same or similar types of service. See Sec. Sec.  404.1624 and 404.1626 
of this part.
* * * * *

0
9. Amend Sec.  404.1519m by revising the third sentence to read as 
follows:


Sec.  404.1519m  Diagnostic tests or procedures.

    * * * A State agency medical consultant must approve the ordering 
of any diagnostic test or procedure when there is a chance it may 
involve significant risk. * * *

0
10. Amend Sec.  404.1519s by revising paragraph (c) to read as follows:


Sec.  404.1519s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *

0
11. Amend Sec.  404.1520a by revising the third sentence and removing 
the fourth sentence of paragraph (d)(2), and revising paragraphs (e) 
introductory text, (e)(1), (e)(4), and (e)(5) to read as follows:


Sec.  404.1520a  Evaluation of mental impairments.

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

[[Page 24807]]

how we applied the technique. At the administrative law judge hearing 
and Appeals Council levels (in cases in which the Appeals Council 
issues a decision), we will document application of the technique in 
the decision. 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) of this part, the State 
agency medical or psychological consultant 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 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.
* * * * *
    (4) At the administrative law judge hearing and Appeals Council 
levels, the written decision must incorporate the pertinent findings 
and conclusions based on the technique. The decision must show the 
significant history, including examination and laboratory findings, and 
the functional limitations that were considered in reaching a 
conclusion about the severity of the mental impairment(s). The decision 
must include a specific finding as to the degree of limitation in each 
of the functional areas described in paragraph (c) of this section.
    (5) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec.  404.941 of this part, for completion of the standard document. 
If, after reviewing the case file and completing the standard document, 
the State agency or Federal component concludes that a determination 
favorable to you is warranted, it will process the case using the rules 
found in Sec.  404.941(d) or (e) of this part. If, after reviewing the 
case file and completing the standard document, the State agency or 
Federal component concludes that a determination favorable to you is 
not warranted, it will send the completed standard document and the 
case to the administrative law judge for further proceedings and a 
decision.

0
12. Amend Sec.  404.1526 by revising the first sentence of paragraph 
(d) and paragraph (e) to read as follows:


Sec.  404.1526  Medical equivalence.

* * * * *
    (d) Who is a designated medical or psychological consultant? A 
medical or psychological consultant designated by the Commissioner 
includes any medical or psychological consultant employed or engaged to 
make medical judgments by the Social Security Administration, the 
Railroad Retirement Board, or a State agency authorized to make 
disability determinations. * * *
    (e) Who is responsible for determining medical equivalence? In 
cases where the State agency or other designee of the Commissioner 
makes the initial or reconsideration disability determination, a State 
agency medical or psychological consultant or other designee of the 
Commissioner (see Sec.  404.1616 of this part) has the overall 
responsibility for determining medical equivalence. For cases in the 
disability hearing process or otherwise decided by a disability hearing 
officer, the responsibility for determining medical equivalence rests 
with either the disability hearing officer or, if the disability 
hearing officer's reconsideration determination is changed under Sec.  
404.918 of this part, with the Associate Commissioner for Disability 
Programs or his or her delegate. For cases at the administrative law 
judge or Appeals Council level, the responsibility for deciding medical 
equivalence rests with the administrative law judge or Appeals Council.

0
13. Amend Sec.  404.1527 by revising the first sentence of paragraph 
(f)(1) and removing paragraph (f)(4), to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant 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) of this part). * * *
* * * * *

0
14. Amend Sec.  404.1529 by revising the third and fifth sentences of 
paragraph (b) to read as follows:


Sec.  404.1529  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  404.914 through 404.918 of this part and in 
fully favorable determinations made by State agency disability 
examiners alone under Sec.  404.1615(c)(3) of this part), a State 
agency medical or psychological consultant or other medical or 
psychological consultant designated by the Commissioner directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * * At the administrative law judge hearing or Appeals 
Council level of the administrative review process, the adjudicator(s) 
may ask for and consider the opinion of a medical or psychological 
expert concerning whether your impairment(s) could reasonably be 
expected to produce your alleged symptoms. * * *
* * * * *

0
15. Amend Sec.  404.1546 by revising the first sentence of paragraph 
(a) and paragraph (c), and removing paragraph (d), 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) of this part, a State 
agency medical or psychological consultant(s) is responsible for 
assessing your residual functional capacity. * * *
* * * * *
    (c) Responsibility for assessing residual functional capacity at 
the administrative law judge hearing or Appeals Council level. If your 
case is at the administrative law judge hearing level or at the Appeals 
Council review level, the administrative law judge or the 
administrative appeals judge at the Appeals Council (when the Appeals 
Council makes a decision) is responsible for assessing your residual 
functional capacity.

Subpart Q--[Amended]

0
16. The authority citation for subpart Q of part 404 continues to read 
as follows:

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

[[Page 24808]]


0
17. Amend Sec.  404.1601 by removing the third sentence of the 
introductory text.

0
18. Amend Sec.  404.1616 by removing the third sentence of paragraph 
(b), and removing paragraph (e)(4).

0
19. Amend Sec.  404.1624 by revising the first sentence to read as 
follows:


Sec.  404.1624  Medical and other purchased services.

    The State will determine the rates of payment for purchasing 
medical or other services necessary to make determinations of 
disability. * * *

PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL 
DISABILITY CLAIMS

0
20. The authority citation for part 405 continues to read as follows:

    Authority:  Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).

Subpart A--[Amended]

0
21. Amend Sec.  405.1 by adding a third sentence to paragraph (b)(1) 
and revising paragraphs (b)(2), (b)(3), (b)(4), (b)(5), the first 
sentence of (c)(2), and (c)(3) to read as follows:


Sec.  405.1  Introduction.

* * * * *
    (b) * * *
    (1) * * * We use the procedures in part 404 subpart J of this 
chapter, part 416 subpart N of this chapter, or both, for your initial 
determination.
    (2) Reconsideration. If you are dissatisfied with the initial 
determination, you may ask us to reconsider it. We use the procedures 
in part 404 subpart J of this chapter, part 416 subpart N of this 
chapter, or both, for your reconsideration determination. You must 
follow the procedure in Sec. Sec.  404.909 or 416.1409 of this chapter 
to request reconsideration.
    (3) Hearing before an administrative law judge. If you are 
dissatisfied with the reconsidered determination, you may request a 
hearing before an administrative law judge. The administrative law 
judge will use the procedures in subpart D of this part.
    (4) Appeals Council review. If you or any other party to the 
hearing is dissatisfied with the administrative law judge's decision or 
with the administrative law judge's dismissal of a hearing request, you 
may request that the Appeals Council review that action. The Appeals 
Council also may initiate review on its own motion. The Appeals Council 
will use the procedures in subparts E through G of this part for its 
review.
    (5) Federal court review. If you have pursued your claim through 
all levels of our administrative process and are dissatisfied with our 
final decision, you may request judicial review by filing an action in 
Federal district court.
    (c) * * *
    (2) Evidence considered and right to representation. Subject to 
Sec. Sec.  405.331 and 405.430, you may present and we will consider 
information in support of your claim. * * *
    (3) Evidentiary standards applied. When we make a determination or 
decision on your disability claim, we will apply a preponderance of the 
evidence standard, except that the Appeals Council will review findings 
of fact under the substantial evidence standard.
* * * * *

0
22. Revise Sec.  405.5 to read as follows:


Sec.  405.5  Definitions.

    As used in this part:
    Act means the Social Security Act, as amended.
    Administrative law judge means an administrative law judge 
appointed pursuant to the provisions of 5 U.S.C. 3105 who is employed 
by the Social Security Administration.
    Commissioner means the Commissioner of Social Security, or his or 
her designee.
    Date you receive notice means five days after the date on the 
notice, unless you show us that you did not receive it within the five-
day period.
    Day means calendar day, unless otherwise indicated.
    Decision means the decision made by an administrative law judge, 
attorney advisor, or the Appeals Council.
    Disability claim or claim means:
    (1) An application for benefits that is based on whether you are 
disabled under title II of the Act, or
    (2) An application for supplemental security income payments that 
is based on whether you are disabled or blind under title XVI of the 
Act.
    (3) For purposes of this part, the terms ``disability claim'' or 
``claim'' do not include a continuing disability review or age-18 
redetermination.
    Document includes books, records, correspondence, papers, as well 
as forms of electronic media such as video tapes, CDs, and DVDs.
    Evidence means evidence as defined under Sec. Sec.  404.1512 and 
416.912 of this chapter.
    Preponderance of the evidence means such relevant evidence that as 
a whole shows that the existence of the fact to be proven is more 
likely than not.
    Substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.
    Vacate means to set aside a previous action.
    We, us, or our refers to the Social Security Administration.
    You or your refers to the person who has filed a disability claim 
and, where appropriate, his or her authorized representative.

0
23. Remove and reserve Sec.  405.10.

0
24. Amend Sec.  405.20 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  405.20  Good cause for extending deadlines.

    (a) If you want us to extend the deadline to request administrative 
or judicial review, you must establish that there is good cause for 
missing the deadline. * * *
* * * * *

Subparts B and C-- [Removed and Reserved]

0
25. Remove and reserve subparts B and C.

Subpart D--[Amended]

0
26. Amend Sec.  405.301 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  405.301  Hearing before an administrative law judge--general.

    (a) This subpart explains what to do if you are dissatisfied with a 
reconsidered determination or an initial determination subject to a 
hearing by an administrative law judge under the procedures in this 
part as a result of Sec.  404.906(b)(4) or Sec.  416.1406(b)(4) of this 
chapter. * * *
* * * * *

0
27. Revise Sec.  405.305 to read as follows:


Sec.  405.305  Availability of a hearing before an administrative law 
judge.

    You may request a hearing before an administrative law judge if you 
are dissatisfied with the reconsidered determination on your disability 
claim or an initial determination subject to a hearing by an 
administrative law judge under the procedures in this part as a result 
of Sec. Sec.  404.906(b)(4) or 416.1406(b)(4) of this chapter.

0
28. Amend Sec.  405.310 by revising paragraph (a)(3) and the first 
sentence of paragraph (b) to read as follows:

[[Page 24809]]

Sec.  405.310  How to request a hearing before an administrative law 
judge.

    (a) Written request. * * *
    (3) The specific reasons you disagree with the previous 
determination,
* * * * *
    (b) Time limit for filing request. An administrative law judge will 
conduct a hearing if you request one in writing no later than 60 days 
after the date you receive notice of the reconsidered determination or 
an initial determination subject to a hearing by an administrative law 
judge under the procedures in this part as a result of Sec.  
404.906(b)(4) or Sec.  416.1406(b)(4) of this chapter (or within the 
extended time period if we extend the time as provided in paragraph (d) 
of this section). * * *
* * * * *

0
29. Amend Sec.  405.320 by removing the last sentence of paragraph (b).

0
30. Add Sec.  405.342 to read as follows:


Sec.  405.342  Prehearing proceedings and decisions by attorney 
advisors.

    After a hearing is requested but before it is held, an attorney 
advisor may conduct prehearing proceedings as set out in Sec. Sec.  
404.942(c) or 416.1442(c) of this chapter. If, after the completion of 
these proceedings, we can make a decision that is fully favorable to 
you and all other parties based on the preponderance of the evidence, 
an attorney advisor, instead of an administrative law judge, may issue 
the decision. We use the procedures Sec. Sec.  404.942 or 416.1442 of 
this chapter when we conduct prehearing proceedings or issue decisions 
under this section.

0
31. Amend Sec.  405.360 by revising the last sentence to read as 
follows:


Sec.  405.360  Official record.

    * * * Subject to Sec.  405.401(c), the official record closes once 
the administrative law judge issues his or her decision regardless of 
whether it becomes our final decision.

0
32. Amend Sec.  405.365 by revising paragraph (a)(2) to read as 
follows:


Sec.  405.365  Consolidated hearing before an administrative law judge.

    (a) * * *
    (2) If the administrative law judge consolidates the claims, he or 
she will decide both claims, even if we have not yet made an initial 
determination or a reconsidered determination on the other claim.
* * * * *

0
33. Amend Sec.  405.370 by removing the third sentence of paragraph (a) 
and revising the third sentence of paragraph (b) to read as follows:


Sec.  405.370  Decisions by the administrative law judge.

* * * * *
    (b) * * * Within five days after the hearing, if there are no 
subsequent changes to the analysis in the oral decision, we will send 
you a written decision that incorporates such oral decision by 
reference. * * *

0
34. Amend Sec.  405.371 by revising the second and third sentences to 
read as follows:


Sec.  405.371  Notice of the decision of an administrative law judge.

    * * * The notice accompanying the decision will explain your right 
to representation. It also will explain your right to request review of 
the decision by the Appeals Council.

0
35. Revise Sec.  405.372 to read as follows:


Sec.  405.372  Effect of an administrative law judge's decision.

    The decision of the administrative law judge is binding on all 
parties to the hearing unless--
    (a) You or another party requests a review of the decision by the 
Appeals Council within the stated time period, and the Appeals Council 
reviews your case;
    (b) You or another party requests a review of the decision by the 
Appeals Council within the stated time period, the Appeals Council 
denies your request for review, you seek judicial review of your case 
by filing an action in a Federal district court, and the Federal court 
reverses the decision or remands it for further administrative action;
    (c) An administrative law judge or the Appeals Council revises the 
decision under Sec.  405.601 of this part;
    (d) You use the expedited appeals process described in Sec. Sec.  
404.923 through 404.928 or 416.1423 through 416.1428 of this chapter;
    (e) The ALJ decided the case after a Federal court remanded your 
case to us, and the Appeals Council follows the procedures in 
Sec. Sec.  404.984 or 416.1484 of this chapter to assume jurisdiction 
of your case; or
    (f) The Appeals Council reviews the claim on its own motion.

0
36. Remove and reserve Sec.  405.373.

0
37. Amend Sec.  405.381 by revising the second and third sentences to 
read as follows:


Sec.  405.381  Notice of dismissal of a request for a hearing before an 
administrative law judge.

    * * * The notice will tell you that you may ask the Appeals Council 
to review the dismissal and will explain your right to representation. 
Your request for review by the Appeals Council must be in writing and 
must be filed within 60 days after the date that you receive notice of 
the dismissal.

0
38. Remove and reserve Sec.  405.382.

0
39. Revise Sec.  405.383 to read as follows:


Sec.  405.383  Effect of dismissal of a request for a hearing before an 
administrative law judge.

    The administrative law judge's dismissal of a request for a hearing 
is binding and not subject to further review, unless an administrative 
law judge or the Appeals Council vacates it.

Subpart E--[Amended]

0
40. Revise the heading of subpart E of part 405 to read as follows:

Subpart E--Appeals Council Review

0
41. Revise Sec.  405.401 to read as follows:


Sec.  405.401  Appeals Council review.

    (a) If you (or any other party) are dissatisfied with the hearing 
decision or with the dismissal of a hearing request under this part, 
you may request that the Appeals Council review that action. The 
Appeals Council may also initiate review on its own motion. Except as 
specifically provided in this subpart, we will follow our rules for 
Appeals Council review in Sec. Sec.  404.966 through 404.984 and 
416.1466 through 416.1484 of this chapter.
    (b) If you seek Appeals Council review, you must file your request 
within the time period and in accordance with the procedures in 
Sec. Sec.  404.968 and 416.1468 of this chapter. The Appeals Council 
will consider additional evidence only in accordance with paragraph (c) 
of this section.
    (c) If you submit additional evidence, the Appeals Council will 
consider the additional evidence only where it relates to the period on 
or before the date of the hearing decision, and only if you show that 
there is a reasonable probability that the evidence, alone or when 
considered with the other evidence of record, would change the outcome 
of the decision, and
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from submitting the evidence earlier; 
or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from submitting the evidence earlier.

[[Page 24810]]


0
42. Remove and reserve Sec. Sec.  405.405, 405.410, 405.415, 405.420, 
405.425, and 405.427.
0
43. Revise Sec.  405.430 to read as follows:


Sec.  405.430  Record before the Appeals Council.

    Subject to Sec.  405.401(c), the record is closed as of the date of 
the administrative law judge's decision, and the Appeals Council will 
base its action on the same evidence that was before the administrative 
law judge.

0
44. Remove and reserve Sec. Sec.  405.440, 405.445, and 405.450.

Subpart F--[Amended]

0
45. Amend Sec.  405.505 by revising the third sentence to read as 
follows:


Sec.  405.505  Extension of time to file a civil action.

    * * * You must file your request with the Appeals Council. * * *

0
46. Revise Sec.  405.510 to read as follows:


Sec.  405.510  Claims remanded by a Federal court.

    When a Federal court remands a claim decided under this part for 
further agency consideration, the Appeals Council may make a decision 
based upon the evidence in the record, or it may remand the claim to an 
administrative law judge. If the Appeals Council remands a claim to an 
administrative law judge, the Appeals Council will send you a notice of 
remand.

Subpart H -- [Removed and Reserved]

0
47. Remove and reserve subpart H.

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

Subpart I--[Amended]

0
48. 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).

0
49. Amend Sec.  416.902 by revising the definition of ``nonexamining 
source'' to read as follows:


Sec.  416.902  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  416.927.
* * * * *

0
50. Amend Sec.  416.912 by revising paragraph (b)(8) to read as 
follows:


Sec.  416.912  Evidence.

* * * * *
    (b) * * *
    (8) At the administrative law judge and Appeals Council levels, 
findings, other than the ultimate determination about whether you are 
disabled, made by State agency medical or psychological consultants and 
other program physicians or psychologists, 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
51. Amend Sec.  416.913 by revising the first sentence of paragraph (c) 
to read as follows:


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

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

0
52. Amend Sec.  416.919k by revising paragraph (a) to read as follows:


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

* * * * *
    (a) The rate of payment for purchasing medical or other services 
necessary to make determinations of disability may not exceed the 
highest rate paid by Federal or public agencies in the State for the 
same or similar types of service. See Sec. Sec.  416.1024 and 416.1026 
of this part.
* * * * *

0
53. Amend Sec.  416.919m by revising the third sentence to read as 
follows:


Sec.  416.919m  Diagnostic tests or procedures.

    * * * A State agency medical consultant must approve the ordering 
of any diagnostic test or procedure when there is a chance it may 
involve significant risk. * * *

0
54. Amend Sec.  416.919s by revising paragraph (c) to read as follows:


Sec.  416.919s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *

0
55. Amend Sec.  416.920a by revising the third sentence and removing 
the fourth sentence of paragraph (d)(2) and revising paragraphs (e) 
introductory text, (e)(1), (e)(4), and (e)(5) to read as follows:


Sec.  416.920a  Evaluation of mental impairments.

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

[[Page 24811]]

responsibility for assessing medical severity. A State agency 
disability examiner may assist in preparing the standard document. 
However, our medical or psychological consultant must review and sign 
the document to attest that it is complete and that he or she is 
responsible for its content, including the findings of fact and any 
discussion of supporting evidence.
* * * * *
    (4) At the administrative law judge hearing and Appeals Council 
levels, the written decision must incorporate the pertinent findings 
and conclusions based on the technique. The decision must show the 
significant history, including examination and laboratory findings, and 
the functional limitations that were considered in reaching a 
conclusion about the severity of the mental impairment(s). The decision 
must include a specific finding as to the degree of limitation in each 
of the functional areas described in paragraph (c) of this section.
    (5) If the administrative law judge requires the services of a 
medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec.  416.1441 of this part, for completion of the standard 
document. If, after reviewing the case file and completing the standard 
document, the State agency or Federal component concludes that a 
determination favorable to you is warranted, it will process the case 
using the rules found in Sec.  416.1441(d) or (e) of this part. If, 
after reviewing the case file and completing the standard document, the 
State agency or Federal component concludes that a determination 
favorable to you is not warranted, it will send the completed standard 
document and the case to the administrative law judge for further 
proceedings and a decision.

0
56. Amend Sec.  416.924 by revising paragraph (g) to read as follows:


Sec.  416.924  How we determine disability for children.

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

0
57. Amend Sec.  416.926 by revising the first sentence of paragraph (d) 
and revising paragraph (e) to read as follows:


Sec.  416.926  Medical equivalence for adults and children.

* * * * *
    (d) Who is a designated medical or psychological consultant? A 
medical or psychological consultant designated by the Commissioner 
includes any medical or psychological consultant employed or engaged to 
make medical judgments by the Social Security Administration, the 
Railroad Retirement Board, or a State agency authorized to make 
disability determinations. * * *
    (e) Who is responsible for determining medical equivalence? In 
cases where the State agency or other designee of the Commissioner 
makes the initial or reconsideration disability determination, a State 
agency medical or psychological consultant or other designee of the 
Commissioner (see Sec.  416.1016 of this part) has the overall 
responsibility for determining medical equivalence. For cases in the 
disability hearing process or otherwise decided by a disability hearing 
officer, the responsibility for determining medical equivalence rests 
with either the disability hearing officer or, if the disability 
hearing officer's reconsideration determination is changed under Sec.  
416.1418 of this part, with the Associate Commissioner for Disability 
Programs or his or her delegate. For cases at the administrative law 
judge or Appeals Council level, the responsibility for deciding medical 
equivalence rests with the administrative law judge or Appeals Council.

0
58. Amend Sec.  416.926a by revising paragraph (n) to read as follows:


Sec.  416.926a  Functional equivalence for children.

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

0
59. Amend Sec.  416.927 by revising the first sentence of paragraph 
(f)(1) and removing paragraph (f)(4), to read as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant 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) of this part). * * *
* * * * *

0
60. Amend Sec.  416.929 by revising the third and fifth sentences 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 of this part and in 
fully favorable determinations made by State agency disability 
examiners alone under Sec.  416.1015(c)(3) of this part), a State 
agency medical or psychological consultant or other medical or 
psychological consultant designated by the Commissioner directly 
participates in determining whether your medically determinable 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * * At the

[[Page 24812]]

administrative law judge hearing or Appeals Council level of the 
administrative review process, the adjudicator(s) may ask for and 
consider the opinion of a medical or psychological expert concerning 
whether your impairment(s) could reasonably be expected to produce your 
alleged symptoms. * * *
* * * * *

0
61. Amend Sec.  416.946 by revising the first sentence in paragraph (a) 
and paragraph (c), and removing paragraph (d), 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) of this part, a State 
agency medical or psychological consultant(s) is responsible for 
assessing your residual functional capacity. * * *
* * * * *
    (c) Responsibility for assessing residual functional capacity at 
the administrative law judge hearing or Appeals Council level. If your 
case is at the administrative law judge hearing level or at the Appeals 
Council review level, the administrative law judge or the 
administrative appeals judge at the Appeals Council (when the Appeals 
Council makes a decision) is responsible for assessing your residual 
functional capacity.

Subpart J--[Amended]

0
62. 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
63. Amend Sec.  416.1001 by removing the third sentence of the 
introductory text.

0
64. Amend Sec.  416.1016 by removing the third sentence of paragraph 
(b) and removing paragraph (e)(4).

0
65. Amend Sec.  416.1024 by revising the first sentence to read as 
follows:


Sec.  416.1024  Medical and other purchased services.

    The State will determine the rates of payment for purchasing 
medical or other services necessary to make determinations of 
disability. * * *

Subpart N--[Amended]

0
66. The authority citation for subpart N of part 416 continues to read 
as follows:

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


0
67. Amend Sec.  416.1406 by removing the third and fourth sentences of 
paragraph (b)(4).

0
68. Amend Sec.  416.1430 by removing paragraph (c).

PART 422--ORGANIZATION AND PROCEDURES

Subpart B--[Amended]

0
69. The authority citation for subpart B of part 422 continues to read 
as follows:

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

0
70. Amend Sec.  422.130 by revising the first sentence of paragraph (b) 
and the second sentence of paragraph (c) to read as follows:


Sec.  422.130  Claim procedure.

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

0
71. Revise Sec.  422.140 to read as follows:


Sec.  422.140  Reconsideration of initial determination.

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

Subpart C--[Amended]

0
72. Revise the heading of subpart C of part 422 to read as follows:

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

0
73. The authority citation for subpart C of part 422 continues to read 
as follows:

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


0
74. Amend Sec.  422.201 by revising the first and third sentences of 
the introductory text to read as follows:


Sec.  422.201  Material included in this subpart.

    This subpart describes in general the procedures relating to 
hearings before an administrative law judge of the Office of Disability 
Adjudication and Review, review by the Appeals Council of the hearing 
decision or dismissal, and court review in cases decided under the 
procedures in parts 404, 405, 408, 410, and 416 of this chapter. * * * 
Procedures related to hearings before an administrative law judge, 
review by the Appeals Council, or court review in claims adjudicated 
under the procedures in part 405 of this chapter are explained in 
subparts D, E, and F of part 405 of this chapter. * * *
* * * * *
[FR Doc. 2011-10486 Filed 5-2-11; 8:45 am]
BILLING CODE 4191-02-P