Federal Register, Volume 82 Issue 11 (Wednesday, January 18, 2017)

[Federal Register Volume 82, Number 11 (Wednesday, January 18, 2017)]
[Rules and Regulations]
[Pages 5844-5884]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00455]

[[Page 5843]]

Vol. 82

Wednesday,

No. 11

January 18, 2017

Part V

Social Security Administration

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20 CFR Parts 404 and 416

Revisions to Rules Regarding the Evaluation of Medical Evidence; Final
Rule

Federal Register / Vol. 82, No. 11 / Wednesday, January 18, 2017 /
Rules and Regulations

[[Page 5844]]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2012-0035]
RIN 0960-AH51

Revisions to Rules Regarding the Evaluation of Medical Evidence

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our medical evidence rules. The revisions
include redefining several key terms related to evidence, revising our
rules about acceptable medical sources (AMS), revising how we consider
and articulate our consideration of medical opinions and prior
administrative medical findings, revising our rules about medical
consultants (MC) and psychological consultants (PC), revising our rules
about treating sources, and reorganizing our evidence regulations for
ease of use. These revisions conform our rules to the requirements of
the Bipartisan Budget Act of 2015 (BBA), reflect changes in the
national healthcare workforce and in the manner that individuals
receive medical care, and emphasize the need for objective medical
evidence in disability and blindness claims. We expect that these
changes will simplify our rules to make them easier to understand and
apply, and allow us to continue to make accurate and consistent
disability determinations and decisions.

DATES: These final rules are effective on March 27, 2017.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability
Policy, Social Security Administration, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401, (410) 597-1632. 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 www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

We are revising and making final the rules regarding the evaluation
of medical evidence that we proposed in a notice of proposed rulemaking
(NPRM) published in the Federal Register on September 9, 2016 (81 FR
62560). In the preamble to the NPRM, we discussed the revisions we
proposed and the bases for the proposals. To the extent that we are
adopting those revisions as we proposed them, we are not repeating that
information here. Interested readers may refer to the preamble to the
NPRM, available at http://www.regulations.gov by searching for document
number SSA-2012-0035-0001.
To help clarify which regulation sections we refer to in this
preamble, we refer to the regulation sections in effect on the date of
publication as the ``current'' regulation sections. We refer to the
regulation sections that we proposed as the ``proposed'' regulation
sections. We refer to the regulation sections that will be in effect as
of the effective date of these final rules as the ``final'' regulation
sections. The current, proposed, and final regulation sections refer to
regulation sections in Title 20 of the Code of Federal Regulations.
Based on our adjudicative experience, legal precedents,\1\
recommendations from the Administrative Conference of the United States
(ACUS), and public comments we received on the NPRM, we are revising
our rules to ensure that they reflect modern healthcare delivery and
are easier to understand and use. We expect that these changes will
help us continue to ensure a high level of accuracy in our
determinations and decisions. We also are revising related rules about
who can be an MC and a PC in conformity with requirements in the BBA.
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\1\ As we explained in the preamble to our NPRM, courts in most
circuits typically remand claims to us for further adjudication when
they find we erred by not giving controlling weight to treating
source opinions; however, the Ninth Circuit uses a ``credit-as-
true'' rule, which sometimes results in it ordering us to award
benefits instead of remanding cases. 81 FR 62560, 62573.
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The following list summarizes the differences in these final rules
from what we proposed in the NPRM:
1. We revised the definitions of ``signs'' and ``laboratory
findings'' to clarify that ``one or more'' signs, ``one or more''
laboratory findings, or both constitute objective medical evidence in
final 404.1502 and 416.902.
2. We revised the proposed regulatory text for AMS optometrists in
final 404.1502 and 416.902 to refer to the scope of practice in the
State in which the optometrist practices.
3. We revised the proposed regulatory text for AMS audiologists in
final 404.1502 and 416.902 to state that licensed audiologists are AMSs
for impairments of hearing loss, auditory processing disorders, and
balance disorders within the licensed scope of practice only.
4. We recognized physician assistants as AMSs for claims filed on
or after March 27, 2017, in final 404.1502 and 416.902.
5. We revised the title and definition of the category of
``evidence from nonmedical sources'' in final 404.1513 and 416.913. We
changed the title from ``statements from nonmedical sources'' as
proposed to ``evidence from nonmedical sources'' for clarity. We
revised the definition for brevity and to explain that we may receive
evidence from nonmedical sources either directly from the nonmedical
source or indirectly, such as from forms and our administrative
records.
6. We clarified that a statement(s) about whether or not an
individual has a severe impairment(s) is a statement on an issue
reserved to the Commissioner in final 404.1520b(c)(3) and
416.920b(c)(3).
7. We revised final 404.1520c(a)-(b) and 416.920c(a)-(b) to clarify
that, while we consider all evidence we receive, we have specific
articulation requirements about how we consider medical opinions and
prior administrative medical findings.
8. For claims filed on or after March 27, 2017, we are revising our
rules to state that our adjudicators will articulate how they consider
medical opinions from all medical sources, regardless of whether or not
the medical source is an AMS, in final 404.1520c and 416.920c.
9. We revised the factors for considering medical opinions and
prior administrative medical findings in final 404.1520c and 416.920c
to both emphasize that there is not an inherent persuasiveness to
evidence from MCs, PCs, or CE sources over an individual's own medical
source(s), and vice versa, and to highlight that we continue to
consider a medical source's longstanding treatment relationship with
the individual.
10. We added regulatory text in final 404.1520c(d) and 416.920c(d)
for claims filed on or after March 27, 2017, that there is no
requirement to articulate how we considered evidence from nonmedical
sources about an individual's functional abilities and limitations
using the rules for considering and articulating our consideration of
medical opinions found in final 404.1520c and 416.920c.
11. We clarified the section headings and introductory text in
final 404.1520c, 404.1527, 416.920c, and 416.927 about the
implementation process.
12. We added regulatory text in final 404.1527(f) and 416.927(f)
for claims filed before March 27, 2017, about how we consider and
articulate our consideration of opinions from medical sources who are
not AMSs, and from nonmedical sources. We are adding our current
policies found in SSR 06-03p, which explains how we consider and when
we articulate our consideration of opinions from medical sources who
are not AMSs and from nonmedical sources

[[Page 5845]]

under our current rules, into the final rules for these claims.
13. We revised the criteria for which audiologists may perform
audiometric testing in sections 2.00B and 102.00B of the Listings \2\
to be consistent with our revision to recognize licensed audiologists
as AMSs. We now state that audiometric testing must be performed by, or
under the direct supervision of, a licensed audiologist or
otolaryngologist.
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\2\ Part 404 Subpart P Appendix 1.
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14. We did not adopt our proposal to recognize independently
practicing psychologists with master's-level education as qualified to
be PCs. Instead, we will continue to follow our current policies about
who is qualified to be a PC, which generally require a doctorate-level
education degree, in final 404.1616 and 416.1016.
15. We made a number of nonsubstantive revisions relating to the
revisions listed above, as part of our effort to reorganize our
regulations for ease of use, to use consistent terminology throughout
our rules, to reflect revisions to regulatory text made by other rules
since publication of the NPRM, and for clarity.
Because of these revisions, these final rules retain only two
programmatic distinctions between AMSs and medical sources who are not
AMSs in our regulations for claims filed on or after March 27, 2017.
First, we need objective medical evidence from an AMS to establish the
existence of a medically determinable impairment(s) at step 2 of the
sequential evaluation process.\3\ Second, in a few instances, we need
specific evidence from an AMS to establish that an individual's
impairment meets a Listing.\4\
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\3\ See 42 U.S.C. 423(d)(3) and 1382c(a)(3)(D).
\4\ See, for example, our rules for xeroderma pigmentosum in
Listings 8.07A and 108.07A.
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Effect on Certain Social Security Rulings (SSR)

We will also rescind the following SSRs that are otherwise
inconsistent with or duplicative of these final rules:
SSR 96-2p: Titles II and XVI: Giving Controlling Weight to
Treating Source Medical Opinions.\5\
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\5\ 61 FR 34490 (July 2, 1996).
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SSR 96-5p: Titles II and XVI: Medical Source Opinions on
Issues Reserved to the Commissioner.\6\
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\6\ 61 FR 34471 (July 2, 1996).
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SSR 96-6p: Titles II and XVI: Consideration of
Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians and
Psychologists at the Administrative Law Judge and Appeals Council
Levels of Administrative Review; Medical Equivalence.\7\
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\7\ 61 FR 34466 (July 2, 1996).
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SSR 06-03p: Titles II and XVI: Considering Opinions and
Other Evidence from Sources Who Are Not ``Acceptable Medical Sources''
in Disability Claims; Considering Decisions on Disability by Other
Governmental and Nongovernmental Agencies.\8\
In addition, because we will rescind SSR 96-6p, we will publish a
new SSR that will discuss certain aspects of how administrative law
judges (ALJ) and the Appeals Council (AC) must obtain evidence
sufficient to make a finding of medical equivalence.

Public Comments

We received 383 comments on the NPRM, which are available for
public viewing at http://www.regulations.gov. These comments were from:
Individual citizens and claimant representatives;
Members of Congress;
Various professional organizations, such as the American
Speech-Language Hearing Association (ASHA), American Psychological
Association Practice Organization, American Academy of Family
Physicians, American Academy of Pediatrics, American Optometric
Association, and the American Association for Justice;
National groups representing claimant representatives,
such as the National Organization of Social Security Claimants'
Representatives, the National Coalition of Social Security and SSI
Advocates, and the National Association of Disability Representatives;
Advocacy groups, such as the Consortium for Citizens with
Disabilities, The Arc, the Community Legal Services of Philadelphia,
and the North Carolina Coalition to End Homelessness; and
Organizations representing our employees and employees of
State agencies, such as the National Council of Disability
Determination Directors, National Association of Disability Examiners,
and the Association of Administrative Law Judges.
While we received several public comments in support of our
proposed rules, we received many public comments that opposed our
proposed revisions and that suggested alternative solutions to the
policy changes we proposed. Among the most common concerns that the
public comments raised were that:
We should recognize additional medical sources as AMSs;
The NPRM appeared to favor evidence from MCs, PCs, and
consultative examination (CE) providers over evidence from an
individual's own medical sources;
We should continue to value or emphasize the individual's
relationship with a treating source, including giving controlling
weight to the medical source statements of treating sources in certain
situations; and
We should provide written analysis about medical opinions
from all of an individual's own medical sources, regardless of whether
the medical source is an AMS.
We carefully considered the comments. We strive to have clear and
fair rules because our adjudicative process is non-adversarial.\9\ To
help maintain the fairness of our rules and our administrative review
process, we have made several revisions in these final rules.
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\9\ Current 404.900(b) and 416.1400(b).
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We discuss below the significant comments we received. 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 the NPRM.

Sections 404.1502 and 416.902--Definitions for This Subpart

Comment: We received several comments about our proposal to
recognize Advanced Practice Registered Nurses (APRN) as acceptable
medical sources (AMS). While most of these commenters supported our
proposal, a few commenters said that APRN qualifications were not
equivalent to those of physicians, who are AMSs. Another commenter
asked us to specify in the regulatory text that APRNs include Nurse
Practitioners (NP) to reduce confusion.
Response: We agree with the comments that supported our proposal to
recognize APRNs as AMSs for purposes of our programs. Although APRNs
are not physicians, including APRNs as AMSs reflects the modern primary
healthcare delivery system, including how healthcare is delivered in
many rural areas.\10\ In addition, the Institute of Medicine
recommended Federal agencies recognize the advanced level of care
provided by APRNs.\11\
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\10\ Agency for Healthcare Research and Quality, available at
http://www.ahrq.gov/research/findings/factsheets/primary/pcwork3/index.html.
\11\ Committee on the Robert Wood Johnson Foundation Initiative
on the Future of Nursing, at the Institute of Medicine; Institute of
Medicine: The Future of Nursing: Leading Change, Advancing Health
(2011), available at http://www.nationalacademies.org/hmd/Reports/2010/The-Future-of-Nursing-Leading-Change-Advancing-Health/Report-Brief-Scope-of-Practice.aspx.

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[[Page 5846]]

Furthermore, State licensure requirements for APRNs are rigorous.
To receive APRN licensure, all States require these medical sources to
be registered nurses and to have earned advanced nursing educational
degrees. In addition, nearly all States require APRNs to obtain and
maintain national certification by a standard advanced nursing
credentialing agency,\12\ and this certification requires extensive
education and training.\13\ Despite minor variability in names and
licensure requirements, a growing number of States are adopting the
Consensus Model for APRN Regulation from the American Association of
Nurse Practitioners, which defines the standards for licensure,
accreditation, certification, education, and practice.\14\
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\12\ In a very few States, the advanced nursing credentialing is
optional. These are: (1) California for Nurse Practitioners, see
Cal.C.Reg. 16.8.1482, available at http://www.rn.ca.gov/pdfs/regulations/bp2834-r.pdf; (2) Indiana for Nurse Practitioners and
Clinical Nurse Specialists, see Indiana's Administrative Code 848
IAC 4-1-4 and -5, available at http://www.in.gov/pla/files/ISBN.2011_EDITION.pdf; (3) New York, see Education Law Article 139
Sec. 6910 for Nurse Practitioners and Clinical Nurse Specialists,
available at http://www.op.nysed.gov/prof/nurse/article139.htm, and
Article 140 Sec. 79-5.2 for Midwives, available at http://www.op.nysed.gov/prof/midwife/part79-5.htm; and 4) Oregon for
Clinical Nurse Specialists, see Oregon Rules 851-054-0040, available
at http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_851/851_054.html.
\13\ See, for example, the American Academy of Nurse
Practitioners Certification Program, available at http://www.aanpcert.org/ptistore/control/certs/qualifications.
\14\ See National Council of State Boards of Nursing Campaign
for Consensus, available at https://www.ncsbn.org/738.htm, and the
Consensus Model for APRN Regulation: Licensure, Accreditation,
Certification & Education, available at http://www.aacn.nche.edu/education-resources/APRNReport.pdf.
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While we appreciate the suggestion to specify in our rules that
APRNs include NPs, we did not adopt it. As we stated in the preamble to
the NPRM,\15\ APRNs include four types of medical sources: Certified
Nurse Midwife, NP, Certified Registered Nurse Anesthetist, and Clinical
Nurse Specialist. Although the majority of States use the APRN title, a
minority of States use other similar titles, such as Advanced Practice
Nurse and Advanced Registered Nurse Practitioner. We will maintain a
current list of State-specific AMS titles in our subregulatory
instructions to help our adjudicators identify the appropriate titles
for APRNs.
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\15\ 81 FR at 62568.
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Comment: Several commenters supported our proposal to include
audiologists as AMSs. One commenter also supported the addition of
audiologists as providers who could perform the otologic examination in
order to establish the medically determinable impairment that causes
hearing loss. Another commenter asked us to recognize that
audiologists' scope of practice includes impairments of balance
disturbance.
Response: We agree with these commenters. We included audiologists
as AMSs and allow use of licensed audiologist-performed otologic
examinations under Listings 2.00 and 102.00 in these final rules.
We also revised the final regulatory text to recognize that
audiologists' scope of practice generally includes evaluation,
examination, and treatment of certain balance impairments that result
from the audio-vestibular system. However, some impairments involving
balance involve several different body systems that are outside the
scope of practice for audiologists, such as those involving muscles,
bones, joints, vision, nerves, heart, and blood vessels. Therefore, we
revised final 404.1502 and 416.902 to state that licensed audiologists
are AMSs for impairments of hearing loss, auditory processing
disorders, and balance disorders within the licensed scope of practice
only.
Comment: Two commenters asked us to recognize audiologists as AMSs
if they did not have State licensure but did have certification from
the American Board of Audiology (ABA) or a Certificate of Clinical
Competence in Audiology (CCC-A) from ASHA.
Response: We did not accept this comment because our existing
practice has been to rely on State professional education and licensure
requirements that are largely consistent with each other when we have
expanded the AMS list.\16\ While we appreciate the background provided
by the commenter, we do not find it contained persuasive rationale
about why we should be able to use evidence from these unlicensed
sources to help establish the existence of hearing loss, auditory
processing disorders, or balance disorders. Moreover, an audiologist
without a valid State license will not qualify as a medical source
under final sections 404.1502(d) and 416.902(i).
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\16\ The only exception has been for speech-language
pathologists who meet certain certification requirements. See
current 404.1513(a)(5) and 416.913(a)(5).
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Comment: The American Optometric Association suggested that we
modify our AMS definition of optometrists to refer to the scope of
practice as authorized by State licensure. By simply stating that
doctors of optometry can serve as an AMS according to their State's
scope of practice laws, we would not need to go through the rulemaking
process to change our regulations if a State chooses to change its
scope of practice laws in the future.
Response: We agree with this comment, and we revised the final
regulatory text about optometrists as AMSs. Specifically, we revised
the proposed regulatory text for AMS optometrists in final 404.1502 and
416.902 to read, ``Licensed optometrist for impairments of visual
disorders, or measurement of visual acuity and visual fields only,
depending on the scope of practice in the State in which the
optometrist practices.''
Comment: We received comments from several commenters, including
the American Association of Physician Assistants, recommending that we
add physician assistants (PA) to the AMS list. These commenters
supported this recommendation by stating that PAs receive extensive
medical education (approximately 27 months), have at least 2,000 hours
of supervised clinical practice, are recognized as primary care
providers, and must pass the Physician Assistant National Certifying
Examination (PANCE).
Response: We are adopting this comment and recognizing PAs as AMSs.
We agree that health care delivery continues to change and that PAs
have an important and growing role as primary and specialty health care
providers in many different health care settings. We agree that PAs
receive extensive medical education, clinical experience, and pass the
rigorous PANCE. Almost all States now require PAs to have at least a
masters-level education, with the master's education level set to
become the universal requirement in the near future.\17\
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\17\ See the Accreditation Standards for Physician Assistant
Education, Fourth Edition, available at: http://www.arc-pa.org/wp-content/uploads/2016/10/Standards-4th-Ed-March-2016.pdf.
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Consistent with our implementation process discussed more fully in
the NPRM and below, we will recognize PAs as AMSs for claims filed on
or after March 27, 2017, as we are doing for APRNs and audiologists.
Comment: We received many other public comments on the criteria we
should use to add AMSs and whether we should add other medical sources,
such as licensed clinical social workers (LCSW), to the AMS list. Most
of these commenters supported recognizing LCSWs as AMSs, and they
suggested we also add a wide variety of other medical sources and
nonmedical sources,

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including licensed marriage and family therapists (LMFT), registered
nurses (RN), licensed professional counselors (LPC), physical
therapists (PT), chiropractors, and even healthcare professionals
without medical licensure.
Response: We value these comments, and we will continue to monitor
licensure requirements for the medical sources the commenters suggested
that we add. At this time, however, we have decided to add only APRNs,
audiologists, and PAs as AMSs. Upon investigation of licensing
requirements for other medical sources, we did not find a similar level
of consistency or rigor in terms of education, training, certification,
and scope of practice.
Many of the comments that asked us to expand the AMS list to these
additional medical sources said we should recognize these medical
sources as AMSs so we could begin to consider their evidence in our
adjudicative process. However, as we stated in the NPRM, we currently
consider all relevant evidence we receive from all medical sources
regardless of AMS status. However, as we noted above, we need objective
medical evidence from an AMS to establish that an individual has a
medically determinable impairment, as required by the Social Security
Act (Act).
Additionally, many comments focused upon the prevalence of these
sources in the healthcare system, particularly for individuals who have
mental impairments, are poor, or are experiencing homelessness.
Comments that did address licensing requirements, training, and
education for these medical sources did not demonstrate that they have
sufficiently consistent and rigorous national licensing requirements
for education, training, certification, and scope of practice that is
equivalent to the current and final list of AMSs.
For RNs, licensure typically can be obtained with education at or
below the bachelor's degree level.\18\ This is contrast to the current
and new AMSs, for whom more rigorous education, training, and
credentialing requirements are necessary.
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\18\ See Bureau of Labor Statistics Occupational Outlook
Handbook: ``Registered Nurses'', available at http://www.bls.gov/ooh/Healthcare/Registered-nurses.htm, and American Nurses
Association, available at http://www.nursingworld.org/EspeciallyForYou/What-is-Nursing/Tools-You-Need/RegisteredNurseLicensing.html.
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For LCSWs, LPCs, LMFTs, PTs, and chiropractors, States
significantly vary on titles, the required hours of experience for
licensure, and the scope of practice, such as clinical and non-clinical
practice. Our current and new AMSs have licensure requirements that are
more nationally consistent, which is essential for us to administer a
national disability program.\19\
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\19\ For example, all physicians, optometrists, and podiatrists
have doctorate degrees.
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As to the comments that asked us to recognize nonmedical sources as
AMSs, our rules require an AMS to be a ``medical source'' as defined in
404.1502 and 416.902. Therefore, we did not adopt those suggestions.
Although we will not recognize the additional suggested medical
sources as AMSs at this time, we will continue to consider evidence
from these medical sources under these final rules when we evaluate the
severity of an individual's impairment(s) and its effect on the
individual.
Comment: One commenter agreed with our proposed definition of
``medical source'' in proposed 404.1502 and 416.902. The commenter said
including licensure and certification requirements as specified by
State or Federal law would help to ensure that medical sources who
provide evidence to us are qualified and practicing lawfully. Another
commenter asked us to recognize an entire medical practice as a medical
source instead of its individual providers because some individuals
receive treatment from multiple medical sources employed by the same
medical practice.
Response: We agree with the first comment, and we are adopting our
proposed definition of ``medical source'' in these final rules.
However, we did not adopt the second comment because a medical source
is an individual, not an entity, under our current rules.\20\ Although
we request evidence from medical practices, an entire practice itself
is not capable of evaluating, examining, or treating an individual's
impairments. A medical practice would not be able to perform a
consultative examination at our request, or provide a medical opinion
about an individual's functional abilities or limitations. Ultimately,
individual medical practitioners and not their employing entities
perform these functions. For these reasons, we did not adopt the
recommendation to recognize an entire medical practice as a medical
source.
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\20\ See, for example, current 404.1513(d) and 416.913(d).
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Comment: Several commenters opposed our proposal to remove the term
``treating source'' from our regulations. One commenter opposed our
proposal to recognize all of the medical sources that an individual
identifies as his or her medical source instead of using the term
``treating source'' for AMSs as defined in our current rules.
Response: While we acknowledge the importance of the relationship
between an individual and his or her own medical sources, we are
adopting our proposed regulatory text in these final rules. As part of
our revisions to align our rules with how individuals now receive
healthcare, it is appropriate to remove the distinction between a
``treating source''--who must be an AMS--and the other medical sources
from whom an individual may choose to receive evaluation, examination,
or treatment. This will allow us to select an individual's own medical
source, regardless of AMS status, to be a preferred source to conduct a
consultative examination (CE) if the medical source meets our other
requirements for CE sources in final 404.1519h and 416.919h.
Comment: One commenter requested that we specify that licensed
mental health care providers who are working within the scope of
practice permitted by law are a type of healthcare worker, and
therefore a medical source. Another commenter was concerned that the
proposed regulatory definition of nonmedical source would cause
confusion when a licensed mental healthcare provider works at a
homeless shelter or social service agency instead of a medical
practice.
Response: We agree that the definition of medical source includes
licensed mental health care providers working within the scope of
practice permitted by law. The definition of medical source in final
404.1502 and 416.902 is sufficiently broad to include licensed mental
health care providers without the need to amend the regulatory
definition. We do not consider the employer of a source to determine
whether a source is a medical source. Instead, we look to whether the
source meets the definition of a medical source. Part of our final
definition of a ``medical source'' is that the source is working within
the licensed scope of his or her practice. Therefore, when an
individual is licensed as a healthcare worker by a State and is working
within the scope of his or her practice under State or Federal law, we
will consider the source to be a medical source.
Comment: Some commenters raised concern about the language in
proposed sections 404.1502 and 416.902 that define ``objective medical
evidence'' as ``signs, laboratory findings, or both.'' The commenters
indicated that the proposed language appeared to state a new
requirement that would make it ``extremely difficult'' to establish the
existence of mental impairments and

[[Page 5848]]

impairments related to migraine headaches. The commenters suggested
that we also consider a person's diagnosis, statement of symptoms, and
medical source opinions to establish the existence of an impairment.
One commenter thought the exclusion of symptoms from ``objective
medical evidence'' conflicted with our recent final rules ``Revised
Medical Criteria for Evaluating Mental Disorders.'' \21\ Those final
rules include references to symptoms of mental impairments in the
introductory text and criteria of the mental disorders listings.
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\21\ 81 FR 66137 (Sept. 26, 2016).
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Response: We understand the commenter's concerns that we should not
disadvantage individuals with mental and headache-related impairments,
and these clarifications of our current policy will not change how we
establish these medically determinable impairments.
The proposed definition of objective medical evidence in proposed
404.1502(f) and 416.902(k) is consistent with our current rules. We
currently define objective medical evidence as signs and laboratory
findings.\22\ To clarify our current policy, we redefine objective
medical evidence as signs, laboratory findings, or both to make clear
that signs alone or laboratory findings alone are objective medical
evidence.
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\22\ Current 404.1512(b)(1)(i) and 416.912(b)(1)(i), as defined
in current 404.1528(b)-(c) and 416.928(b)-(c).
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Our current rules require objective medical evidence consisting of
signs or laboratory findings to establish impairments, including mental
and headache-related impairments.\23\ Current 404.1508 and 416.908
states that ``[a] physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory
findings, not only by your statement of symptoms.'' Thus, even under
our current rules, mental and headache-related impairments must be
established by objective medical evidence. These final rules merely
clarify this current policy.
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\23\ See current 404.1508 and 416.908, as published on August
20, 1980 at 45 FR 55584, pp. 55586 and 55623.
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Another current policy that we are clarifying in the definition of
``signs'' in these final rules is that one or more medically
demonstrable phenomena that indicate specific psychological
abnormalities that can be observed, apart from your statements, such as
abnormalities of behavior, mood, thought, memory, orientation,
development, or perception, can be ``signs'' that establish a medically
determinable impairment. Additionally, psychological test results are
laboratory findings that may establish medically determinable cognitive
impairments.
Once we establish the existence of an impairment, we use evidence
from all sources to determine the severity of the impairment and make
the appropriate findings in the sequential evaluation process, such as
whether an impairment meets the criteria of a Listing. This includes
statements of symptoms, diagnoses, prognoses, and medical opinions.
Our recent final rules ``Revised Medical Criteria for Evaluating
Mental Disorders'' discuss an individual's symptoms in the context of
our assessments of the severity of a mental impairment and whether the
mental impairment satisfies the listing criteria. However, we make
these assessments after we determine that objective medical evidence
establishes the existence of the mental impairment. Under our current
rules, the proposed rules, and these final rules, an individual's
statement of his or her symptoms cannot establish the existence of an
impairment.

Sections 404.1504 and 416.904--Decisions by Other Governmental Agencies
and Nongovernmental Entities

Comment: While a few commenters agreed with our proposal not to
provide analysis about decisions by other governmental agencies and
nongovernmental entities in our decisions and determinations, other
commenters disagreed that those decisions are inherently neither
valuable nor persuasive. Some commenters stated these decisions are
important evidence that we should always discuss because the rules or
purposes of other disability programs are similar to our programs,
while other commenters said we should discuss the decisions because
they may be more or less probative to our decisionmaking due to the
different standards used. Some commenters suggested we provide
additional training to our adjudicators about the standards used by
other governmental agencies and nongovernmental entities. Other
commenters asserted that the Department of Veterans Affairs (VA) 100%
disability ratings and Individual Unemployability (IU) ratings are
highly probative to our decisionmaking by pointing to our own research
showing veterans are substantially more likely to be found disabled
than the general population of applicants. A few commenters said we
should adopt a VA 100% disability rating or have a rebuttable
presumption that someone with a VA disability rating is entitled to
disability under the Act.
Response: While we acknowledge the commenters' concerns, we are
adopting our proposal in these final rules.
As we stated in the notice of proposed rulemaking (NPRM), there are
four reasons why we are not requiring our adjudicators to explain their
consideration of these decisions--(1) the Act's purpose and specific
eligibility requirements for disability and blindness differ
significantly from the purpose and eligibility requirements of other
programs; (2) the other agency or entity's decision may not be in the
record or may not include any explanation of how the decision was made,
or what standards applied in making the decision; (3) our adjudicators
generally do not have a detailed understanding of the rules other
agencies or entities apply to make their decisions; and (4) over time
Federal courts have interpreted and applied our rules and Social
Security Ruling (SSR) 06-03p differently in different
jurisdictions.\24\
---------------------------------------------------------------------------

\24\ 81 FR at 62564-65.
---------------------------------------------------------------------------

Although we are not requiring adjudicators to provide written
analysis about how they consider the decisions from other governmental
agencies and nongovernmental entities, we do agree with the commenters
that underlying evidence that other governmental agencies and
nongovernmental entities use to support their decisions may be
probative of whether an individual is disabled or blind under the Act.
In sections 404.1504 and 416.904 of the proposed rules, we provided
that we would consider in our determination or decision the relevant
supporting evidence underlying the other governmental agency or
nongovernmental entity's decision that we receive as evidence in a
claim. We clarify in final 404.1504 and 416.904 that we will consider
all of the supporting evidence underlying the decision from another
government agency or nongovernmental entity decision that we receive as
evidence in accordance with final 404.1513(a)(1)-(4) and 416.913(a)(1)-
(4).
We are not adopting the suggestion that we should train our
adjudicators on the various standards of other governmental agencies
and nongovernmental entities that make disability or blindness
decisions. Even with increased training, the actual decision reached
under different standards is inherently neither valuable nor persuasive
to determine whether an individual is disabled or blind under the
requirements in the Act, for the

[[Page 5849]]

reasons we discussed in the preamble to the NPRM.\25\
---------------------------------------------------------------------------

\25\ Id.
---------------------------------------------------------------------------

Furthermore, while we did not rely on the research cited in a few
comments to propose these rules, upon review of that research,\26\ we
disagree with the commenters' summary of it. Specifically, our
researchers studied the interaction of our rules and the VA's
disability standards, focusing upon VA 100% disability ratings and IU
ratings. They concluded VA and SSA disability programs serve different
purposes for populations that overlap. While individuals with a VA
rating of 100% or IU have a slightly higher allowance rate under our
programs than members of the general population, nearly one-third are
denied benefits based on our rules for evaluating medical (or medical-
vocational) considerations. This data also supports our conclusion that
these ratings alone are neither inherently valuable nor persuasive in
our disability evaluation because they give us little substantive
information to consider. Fortunately, the VA and the Department of
Defense (DoD) share medical records electronically with us, and our
adjudicators obtain the medical evidence documenting DoD and VA
treatment and evaluations to evaluate these claims.
---------------------------------------------------------------------------

\26\ Social Security Bulletin, Vol. 74, No. 3, 2014, p. 25.
Veterans Who Apply for Social Security Disabled-Worker Benefits
After Receiving a Department of Veterans Affairs Rating of ``Total
Disability'' for Service-Connected Impairments: Characteristics and
Outcomes. (by L. Scott Muller, Nancy Early, and Justin Ronca),
available at https://www.ssa.gov/policy/docs/ssb/v74n3/v74n3p1.pdf.
---------------------------------------------------------------------------

Comment: Two commenters asked whether individuals and their
representatives would need to submit evidence of a disability,
blindness, or employability decision by another governmental agency or
nongovernmental entity to us because our rules would state these
decisions are inherently neither valuable nor persuasive to us.
Response: We appreciate the opportunity to clarify this matter.
Under current and final 404.1512(a) and 416.912(a), an individual must
inform us about or submit all evidence known to him or her that relates
to whether or not he or she is blind or disabled. Similarly, under
current 404.1740(b)(1) and 416.1540(b)(1), an appointed representative
must act with reasonable promptness to help obtain the information or
evidence that the individual must submit under our regulations, and
forward the information or evidence to us for consideration as soon as
practicable. A disability, blindness, or employability decision by
another government agency or nongovernmental entity may not relate to
whether or not an individual is blind or disabled under our rules.
Nevertheless, as explained above, our adjudicators will consider the
relevant supporting evidence underlying the other governmental agency
or nongovernmental entity's decision. When an individual informs us
about another government agency's or nongovernmental entity's decision,
we will identify and consider, or will assist in developing, the
supporting evidence that the other agency or entity used to make its
decision. We may also use that evidence to expedite processing of
claims for Wounded Warriors and for veterans with a 100% disability
compensation rating, as we do under our current procedures.\27\
---------------------------------------------------------------------------

\27\ See Information for Wounded Warriors and Veterans Who Have
a Compensation Rating of 100% Permanent & Total (P&T), available at
https://www.ssa.gov/people/veterans.
---------------------------------------------------------------------------

Sections 404.1512 and 416.912--Responsibility for Evidence

Comment: We received one comment about the regulatory text in
proposed 404.1512(a)(2) and 416.912(a)(2). The commenter asked us to
revise this rule to require our adjudicators to develop evidence from
the time before an individual's date last insured \28\ through the date
of our determination or decision, even when this date last insured
occurs many years earlier. The commenter also suggested that proposed
404.1512(a)(2) and 416.912(a)(2) could be inconsistent with the Act's
requirement in 42 U.S.C. 423(d)(5)(A) that an individual has the burden
to provide us with evidence sufficient to determine that he or she is
under a disability.
---------------------------------------------------------------------------

\28\ In order to be entitled to disability insurance benefits
under title II of the Act, an individual must have, among other
things, enough earnings in employment covered by Social Security to
be insured for disability. See section 223(c)(1) of the Act, 42
U.S.C. 423(c)(1), and current 404.130 and 404.315(a). An
individual's date last insured is the last date the individual is
insured for purposes of establishing a period of disability or
becoming entitled to disability insurance benefits, as determined
under current 404.130.
---------------------------------------------------------------------------

Response: We did not adopt this comment because the regulatory text
in proposed 404.1512(a)(2) and 416.912(a)(2) is identical to the
current text in 404.1513(e) and 416.913(e). We proposed this language
verbatim for proposed 404.1512(a)(2) and 416.912(a)(2) as part of our
effort to reorganize our rules. We did not propose any substantive
revision. An individual does have the burden to prove he or she is
disabled, and this regulatory text is consistent with that requirement
of the Act. Our current policies about how to develop a claim with a
date last insured in the past are found in our subregulatory
instructions.\29\
---------------------------------------------------------------------------

\29\ See POMS DI 25501.320 Date Last Insured (DLI) and the
Established Onset Date (EOD), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0425501320.
---------------------------------------------------------------------------

Comment: A few commenters asked us increase the 10 to 20 calendar
day timeframe for medical sources to respond to our initial request for
evidence in proposed 404.1512(b)(1)(i) and 416.912(b)(1)(i). Some
commenters suggested different periods between 20 to 30 calendar days
as a more reasonable time for medical sources to respond, and they
suggested that a longer timeframe would reduce our costs associated
with for consultative examinations (CE). Another commenter suggested we
include five additional days for mailing time.
Response: While we appreciate these comments, we did not adopt
them. When we develop evidence in a claim, we make every reasonable
effort to get evidence from an individual's own medical sources. Under
our current rules in 404.1512(d)(1) and 416.912(d)(1), this requirement
includes giving medical sources 10 to 20 calendar days to respond to
our initial request for evidence before we make a follow-up attempt.
After the follow-up attempt, our regulations provide for an additional
10 days, for a minimum of at least 20 to 30 days in total. In our
experience, our current rules provide an adequate amount of time to
submit records because most medical sources provide the requested
evidence within this period. Our current rules in 404.1512(e) and
416.912(e) generally require us to wait until after this period to
request a CE, and the final rules in 404.1512(b)(2) and 416.912(b)(2)
retain this requirement.
With the increasing use of electronic health records and electronic
records transfer, we receive an increasing amount of medical evidence
the same day that we request it. We are committed to expanding our
electronic transfer capacity for medical records through ongoing
expansion of the use of Health Information Technology. The expanded use
of Health Information Technology means that we do not have an
administrative need to make the change to the rules that the commenters
suggested.

Sections 404.1513 and 416.913--Categories of Evidence

Comment: One commenter disagreed with our proposal to exclude
``symptoms, diagnosis, and prognosis''

[[Page 5850]]

from the definition of ``medical opinion'' and instead categorize these
as ``other medical evidence.'' The commenter expressed concern that
most medical sources, unless prompted to fill out a functional
questionnaire, do not specifically address functional abilities and
limitations in their notes; rather, medical sources normally include
symptoms, diagnoses, and prognoses. This commenter indicated that as a
result, unrepresented individuals would be disadvantaged because they
may not know to ask medical sources to complete the functional
questionnaires. The commenter also said some medical sources refuse to
fill out such forms or perhaps charge extra for completing the forms,
which is outside the individual's control. This commenter asserted that
without a form or letter from a medical source, we are more likely to
schedule a consultative examination (CE) and to disregard the medical
source's evidence in the hearing decision.
Response: We understand the concerns expressed in these comments;
however, we did not adopt the recommendation to retain ``symptoms,
diagnosis, and prognosis'' in the definition of ``medical opinions.''
Diagnoses and prognoses do not describe how an individual functions. It
is also not appropriate to categorize symptoms as medical opinions
because they are subjective statements made by the individual, not by a
medical source, about his or her condition.
As for the commenter's concerns about the effect of these final
rules on unrepresented individuals, our current practice is consistent
with the Act's requirements that we make every reasonable effort to
obtain evidence from all of an individual's medical sources.\30\ We
make every reasonable effort to develop evidence about an individual's
complete medical history from the individual's own medical sources
prior to evaluating medical evidence obtained from any other source on
a consultative basis, regardless of whether the individual is
represented or not.\31\ Regardless of an individual's financial
situation, diagnoses and prognoses do not describe how an individual
functions and symptoms are subjective statements made by the
individual, not a medical source, about his or her impairments.
---------------------------------------------------------------------------

\30\ 42 U.S.C. 423(d)(5)(B) and 1382c(a)(1)(H)(i).
\31\ See, for example, POMS DI 22505.006 Requesting Evidence--
General, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0422505006.
---------------------------------------------------------------------------

Comment: One commenter supported the clarification in the proposed
rules that all medical sources, not just acceptable medical sources
(AMS), can provide evidence that we will categorize as being evidence
from medical sources.
Response: We appreciate this comment, and we are adopting the
clarification in these final rules.
Comment: A few commenters opposed our proposed category of evidence
that we called ``statements from nonmedical sources'' in proposed
404.1513(a)(4) and 416.913(a)(4) because they wanted us to consider
evidence from unlicensed staff who are part of social service agencies
and public mental health systems separately from evidence from
individuals, family members, and neighbors. Another commenter stated
the proposed rule would threaten the functional assessment by
eliminating the need for the adjudicator to explain how he or she
considers functional evidence, particularly offered by nonmedical
sources. A few commenters asserted this revision would disadvantage
child claimants who have functional evidence from nonmedical sources,
such as educators.
Response: We want to reassure these commenters that this proposal
to use one category of evidence for these nonmedical sources, which we
are adopting in these final rules, will not disadvantage individuals in
our programs. We proposed the single category of evidence, which we
renamed in these final rules as ``evidence from nonmedical sources,''
to reflect that there are no policy differences in how we consider this
type of evidence. We agree that evidence from nonmedical sources who
are part of social service agencies and public mental health systems
may be valuable, and we consider this evidence. However, this evidence
is not inherently more or less valuable than evidence from any other
kind of nonmedical source, such as individuals, family members, and
neighbors.
Sometimes, the individual, family members, and other nonmedical
sources of evidence can provide helpful longitudinal evidence about how
an impairment affects a person's functional abilities and limitations
on a daily basis. In claims for child disability, we often receive
functional evidence from nonmedical sources, such as testimony,
evaluations, and reports from parents, teachers, special education
coordinators, counselors, early intervention team members,
developmental center workers, day care center workers, social workers,
and public and private social welfare agency personnel. Depending on
the unique evidence in each claim, it may be appropriate for an
adjudicator to provide written analysis about how he or she considered
evidence from nonmedical sources, particularly in claims for child
disability.
Because we consider all evidence we receive, we are not adopting
the suggestion to use separate categories of evidence for different
kinds of nonmedical sources or for rules about which nonmedical
sources' evidence is inherently more valuable than others' evidence.
Our adjudicators will continue to assess an individual's ability to
function under these final rules using all evidence we receive from all
sources, including nonmedical sources. Having one category of evidence
instead of two for nonmedical sources will not affect our rules for
assessing an individual's functional abilities.
In response to these and other public comments, both the title and
definition of this category of evidence is different from that which we
proposed. We decided to simplify, shorten, and clarify that this
category of evidence includes any evidence from any nonmedical source
that we receive, and that we may receive it in any manner.
For example, this category of evidence includes data from our
administrative records about an individual's earnings history and
information resulting from data matching with other government agencies
that relates to any issue in a claim, such as birthdates and marriage
history.
We list and define the categories of evidence in final
404.1513(a)(1)-(5) and 416.913(a)(1)-(5). The following chart displays
the categories:

[[Page 5851]]

------------------------------------------------------------------------
Category of evidence Source Summary of definition
------------------------------------------------------------------------
Objective medical evidence.... Medical sources.. Signs, laboratory
findings, or both.
Medical opinion............... Medical sources.. A statement about
what an individual
can still do despite
his or her
impairment(s) and
whether the
individual has one
or more impairment-
related limitations
or restrictions in
one or more
specified abilities.
Other medical evidence........ Medical sources.. All other evidence
from medical sources
that is not
objective medical
evidence or a
medical opinion.
Evidence from nonmedical Nonmedical All evidence from
sources. sources. nonmedical sources.
Prior administrative medical MCs and PCs...... A finding, other than
finding. the ultimate
determination about
whether the
individual is
disabled, about a
medical issue made
by an MC or PC at a
prior administrative
level in the current
claim.
------------------------------------------------------------------------

Sections 404.1519h and 416.9191h--Your Medical Source

Comment: Many commenters supported our proposal to broaden the
preference for consultative examination (CE) sources from ``treating
sources'' to any of an individual's own medical sources who are
otherwise qualified to perform the CE.
Response: We agree with these comments. In order to perform a CE,
an individual's medical source must be qualified, equipped and willing
to perform the examination or tests for the designated payment and send
in timely, complete reports. This aligns with the current requirements
for all CE providers and does not significantly change our current
process. If these standards are met, it is our preference to use an
individual's own medical source to perform a CE.

Sections 404.1520b and 416.920b--How We Consider Evidence

Comment: One commenter opposed proposed 404.1520b(c)(2) and
416.920b(c)(2), under which we would not provide written analysis about
disability examiner findings at subsequent adjudicative levels of
appeal, as we do for prior administrative medical findings.
Response: Because this is our current policy, we did not adopt this
comment. At each level of the administrative process, we conduct a new
review of the evidence whenever we issue a new determination or
decision. While some disability examiners now make some administrative
medical findings at the initial and reconsideration levels under
temporary legal authority, this authority is scheduled to end pursuant
to the Bipartisan Budget Act of 2015 (BBA) section 832.\32\
---------------------------------------------------------------------------

\32\ See Modifications to the Disability Determination
Procedures; Extension of Testing of Some Disability Redesign
Features, 81 FR 58544 (August 25, 2016).
---------------------------------------------------------------------------

Comment: A few commenters suggested that we continue the current
practice of not giving any special significance to opinions on issues
reserved to the Commissioner instead of adopting our proposal in
404.1520b(c)(3) and 416.920b(c)(3) that we not provide any analysis
about how we consider statements on issues reserved to the
Commissioner. These commenters also stated that the final rule should
clarify that adjudicators will consider the context of a medical
source's use of terms in our laws and regulations, such as
``moderate,'' ``marked,'' and ``sedentary.'' One commenter noted that
the diagnostic term ``intellectual disability'' uses the word
``disability'' but is not a statement on an issue reserved to the
Commissioner. These commenters cautioned against adjudicators
dismissing medical opinions as issues reserved for the Commissioner
simply because they use the same terms in our laws and regulations. The
commenters suggested we include an example in our rules. Another
commenter said we should not include ``statements that you are or are
not . . . able to perform regular or continuing work'' as an example of
a statement on an issue reserved to the Commissioner in proposed
404.1520b(c)(3) and 416.920b(c)(3) because it is probative about an
individual's residual functional capacity (RFC).\33\
---------------------------------------------------------------------------

\33\ See current 404.1545 and 416.945.
---------------------------------------------------------------------------

Response: We agree that adjudicators should consider the context of
a source's use of a term in our laws and regulations to determine if it
qualifies as a statement on an issue reserved to the Commissioner or
another kind of evidence, such as a medical opinion. We frequently
receive documents from medical sources that contain different
categories of evidence, such as a treatment note that includes a
laboratory finding, a medical opinion, and a statement on an issue
reserved to the Commissioner. When we receive a document from a medical
source that contains multiple categories of evidence, we will consider
each kind of evidence according to its applicable rules. We will not
consider an entire document to be a statement on an issue to the
Commissioner simply because the document contains a statement on an
issue that is reserved to the Commissioner. However, we are not
revising our rules to add text about considering context or to provide
examples because we intend to further clarify and provide examples, as
appropriate, in our subregulatory instructions.
We are not adopting the suggestion to require adjudicators to
assign weight to a statement on an issue reserved to the Commissioner.
Because we are responsible for making the determination or decision
about whether an individual meets the statutory definition of
disability, these statements are neither valuable nor persuasive for
us. Therefore, our adjudicators will continue to review all evidence
and consider the context of a source's use of terms in our regulations,
but they are not required to articulate how they considered statements
on an issue reserved to the Commissioner.
We are also not revising our rules to omit the phrase ``statements
that you are or are not . . . able to perform regular or continuing
work'' from final 404.1520b(c)(3) and 416.920b(c)(3). We are
responsible for assessing an individual's RFC, including how our
programmatic terms apply to evidence we receive.
Comment: One commenter asked us to state that when an
administrative law judge (ALJ) asks a medical expert about whether an
impairment(s) medically equals an impairment(s) in the Listings, that
is a medical opinion and not a statement on an issue reserved to the
Commissioner.
Response: Because we are not revising this current policy in these
final rules, we are not adopting the comment. When a medical expert, or
any other medical source, opines about whether an individual's
impairment(s) medically equals an impairment(s) in the Listings, we
consider that statement to be a statement on an issue reserved to the
Commissioner under our current policy.

[[Page 5852]]

For example, if we receive a medical report that contains a medical
opinion and a statement on an issue reserved to the Commissioner, we
will articulate how we considered the medical opinion according to its
rules but not articulate how we considered the statement on an issue
reserved to the Commissioner.
In addition, we will issue a new Social Security Ruling that will
discuss certain aspects of how ALJs and the AC must obtain evidence
sufficient to make a finding of medical equivalence.
Comment: One commenter opposed our terminology of a statement on an
issue reserved to the Commissioner because it is ``reserved for the
ALJ, not the Commissioner.''
Response: We did not adopt this comment. Whenever an adjudicator at
any level of our administrative process makes a disability or blindness
determination or decision, he or she is acting pursuant to authority
delegated by the Commissioner.\34\ Our adjudicators do not have
authority independent of the authority given to them pursuant to a
lawful delegation of authority.
---------------------------------------------------------------------------

\34\ See 42 U.S.C. 902(a)(7) and current 404.1503(c) and
416.903(c).
---------------------------------------------------------------------------

Sections 404.1520c and 416.920c--How We Consider and Articulate Medical
Opinions and Prior Administrative Medical Findings for Claims Filed on
or After March 27, 2017

Prior Administrative Medical Findings

Comment: Two commenters had concerns about our policies for
considering prior administrative findings, such as the severity of an
individual's symptoms, failure to follow prescribed treatment, and drug
addiction and alcoholism. The commenters stated that medical evidence
should be provided solely by medical professionals and suggested that
prior administrative medical findings are not made by medical sources.
Response: The three categories of evidence from medical sources and
prior administrative medical findings must be made by medical sources.
Prior administrative medical findings are made by medical sources who
are State or Federal agency medical consultants or psychological
consultants. This is our current policy in current 404.1527(e)(1) and
416.927(e)(1). Our rules in current 404.1527(e)(2) and 416.927(e)(2)
require us to consider and articulate our consideration of prior
administrative medical findings using the same factors we use to
consider medical opinions.
Under section 221(h) of the Act, as amended by the Bipartisan
Budget Act of 2015 (BBA) section 832, we are now required to make
``every reasonable effort'' to ensure that a qualified physician (in
cases involving a physical impairment) or a qualified psychiatrist or
psychologist (in cases involving a mental impairment) has completed the
medical review of the case and any applicable residual functional
capacity (RFC) assessment. In final 404.1520c, 404.1527, 416.920c, and
416.927, we explain in detail how will we consider and articulate our
consideration of prior administrative medical findings.
Comment: One commenter asked us to consider opinions from the
Appeals Council's (AC) Medical Support Staff (MSS) as prior
administrative medical findings.
Response: Although our current policies allow adjudicators at the
hearings and AC levels of review to obtain medical expert evidence,
including MSS opinions at the AC, we did not adopt this comment for two
reasons. First, expert medical opinions obtained at the same level of
adjudication could not be a prior administrative medical finding.
Second, medical expert evidence obtained at the hearings or AC levels
does not amount to our own medical findings; instead, our adjudicators
at these levels are responsible for determining whether an individual
is disabled. They must consider expert medical opinions obtained at the
same level under the standard for evaluating medical opinions.
Comment: A few commenters asked how our rules for considering prior
administrative medical findings would apply to claims we decided
previously, considering the legal principle of res judicata, which
means an issue definitively settled by a prior determination or
decision.
Response: We appreciate this comment, and we have revised the final
rules to address this question. These final rules do not affect our
current policies about res judicata. Prior administrative medical
findings are evidence in the current claim. To help clarify this point,
we have revised the prior administrative medical findings evidence
category's definition in final 404.1513(a)(5) and 416.913(a)(5) to
specify that this is a category of evidence in the current claim.
Comment: One commenter asserted that allowing administrative law
judges (ALJ) to consider prior administrative medical findings means
that individuals at the hearings level do not get a new and independent
review of their claims. Another commenter raised concern that requiring
State agency adjudicators to provide written analysis about the
persuasiveness of the prior administrative medical findings from the
initial level of review appeared to conflict with the principles of
getting a new and independent review.
Response: We did not make any specific changes based on these
comments. A new decision means that adjudicators at subsequent levels
of the administrative review process (i.e., reconsideration, hearing,
and AC) do not need to defer to the findings or conclusions of prior
adjudicators. Instead, they make new findings and conclusions.
Currently, adjudicators at all levels of the administrative review
process consider prior administrative medical findings as part of
conducting a new and independent review when they issue a determination
or decision.\35\ Based on our experience administering our programs, we
have found that our adjudicators reasonably consider prior
administrative medical findings as part of the evidence in the claim
and do not automatically favor or disfavor this evidence simply because
the medical source is a medical consultant (MC) or a psychological
consultant (PC).
---------------------------------------------------------------------------

\35\ See current 20 404.1512(b)(vii), 404.1527(e)(1)(i) and
(iii), 416.912(b)(vii), and 416.927(e)(1)(i) and (iii).
---------------------------------------------------------------------------

Treating Source Rule

Comment: Multiple commenters asked us to retain the current
treating source rule, while some commenters agreed with our proposal to
eliminate it. Those who wanted us to retain the treating source rule
said that evidence from a treating source has special intrinsic value
due to the nature of the medical source's relationship with the
claimant. They also said that the current rules contain an appropriate
inherent hierarchy to give the most weight to treating sources, then to
examining sources like CE sources, and the least weight to nonexamining
sources, such as MCs and PCs. One commenter said without this
hierarchy, our adjudicators would have a more difficult time evaluating
evidence.
One organization that represents claimant representatives noted
that if we do not keep the treating source rule, the treatment
relationship should be a more important factor for consideration of
medical opinions and prior administrative medical findings than the
factors of supportability and consistency. Another commenter disagreed
with our reasons for revising the factors for considering medical
opinions and prior administrative medical findings.

[[Page 5853]]

The commenters who supported changing our rules agreed with our
proposal to consider the supportability and consistency factors as the
most important factors in assessing persuasiveness. These commenters
said that this approach better reflects the actual state of health care
today and allows adjudicators to focus more on the content of the
evidence than on the source.
Response: While we understand the perspectives presented in these
comments, we are not retaining the treating source rule in final
404.1520c and 416.920c for claims filed on or after March 27, 2017.
Since we first adopted the current treating source rule in 1991, the
healthcare delivery system has changed in significant ways that require
us to revise our policies in order to reflect this reality. Many
individuals receive health care from multiple medical sources, such as
from coordinated and managed care organizations, instead of from one
treating AMS.\36\ These individuals less frequently develop a sustained
relationship with one treating physician. Indeed, many of the medical
sources from whom an individual may seek evaluation, examination, or
treatment do not qualify to be ``treating sources'' as defined in
current 404.1502 and 416.902 because they are not AMSs. These final
rules recognize these fundamental changes in healthcare delivery and
revise our rules accordingly.
---------------------------------------------------------------------------

\36\ Kaiser Commission on Medicaid and the Uninsured, Improving
Access to Adult Primary Care in Medicaid: Exploring the Potential
Role of Nurse Practitioners and Physician Assistants, available at
http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8167.pdf;
Administrative Conference of the United States, SSA Disability
Benefits Programs: Assessing the Efficacy of the Treating Physician
Rule, pp. 25-37 (April 3, 2013), available at http://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf.
---------------------------------------------------------------------------

Courts reviewing claims under our current rules have focused more
on whether we sufficiently articulated the weight we gave treating
source opinions, rather than on whether substantial evidence supports
our final decision. As the Administrative Conference of the United
States' (ACUS) Final Report explains, these courts, in reviewing final
agency decisions, are reweighing evidence instead of applying the
substantial evidence standard of review, which is intended to be highly
deferential standard to us.\37\
---------------------------------------------------------------------------

\37\ 81 FR at 62572.
---------------------------------------------------------------------------

In addition, our experience adjudicating claims using the treating
source rule since 1991 has shown us that the two most important factors
for determining the persuasiveness of medical opinions are consistency
and supportability. The extent to which a medical source's opinion is
supported by relevant objective medical evidence and the source's
supporting explanation--supportability--and the extent to which the
opinion is consistent with the evidence from other medical sources and
nonmedical sources in the claim--consistency--are also more objective
measures that will foster the fairness and efficiency in our
administrative process that these rules are designed to ensure. These
same factors also form the foundation of the current treating source
rule, and we believe that it is appropriate to continue to keep these
factors as the most important ones we consider in our evaluation of
medical opinions and prior administrative medical findings. Because we
currently consider all medical opinions and opinions using these
factors, we disagree that considering these factors as the most
important factors will make evaluating evidence more difficult.
Furthermore, to reflect modern healthcare delivery, we will
articulate in our determinations and decisions how we consider medical
opinions from all of an individual's medical sources, not just those
who may qualify as ``treating sources'' as we do under current
404.1527(c)(2) and 416.927(c)(2).
Moreover, these final rules in 404.1520c(c)(3) and 416.920c(c)(3)
retain the relationship between the medical source and the claimant as
one of the factors we consider as we evaluate the persuasiveness of a
medical opinion. These final rules also continue to allow an
adjudicator to consider an individual's own medical source's medical
opinion to be the most persuasive medical opinion if it is both
supported by relevant objective medical evidence and the source's
explanation, and is consistent with other evidence, as described in
final 404.1520c and 416.920c.
Finally, our current rules do not create an automatic hierarchy for
treating sources, examining sources, then nonexamining sources to which
we must mechanically adhere. For example, adjudicators can currently
find a treating source's medical opinion is not well-supported or is
inconsistent with the other evidence and give it little weight, while
also finding a medical opinion from an examining source, such as a
consultative examiner, or nonexamining source, such a medical or
psychological consultant, is supported and consistent and entitled to
great weight. These final rules help eliminate confusion about a
hierarchy of medical sources and instead focus adjudication more on the
persuasiveness of the content of the evidence.
Comment: Instead of ending the treating source rule, some
commenters asked us to reflect modern healthcare delivery by requiring
our adjudicators to provide written analysis about how they consider
medical opinions from any medical source from whom an individual
chooses to receive evaluation, examination, or treatment, regardless of
whether the medical source is an AMS.
Response: We carefully considered these comments, and we are
adopting them. We agree that our rules need to reflect modern
healthcare delivery, and that is a main reason we are ending the
treating source rule. We further agree that our rules should reflect
that individuals' own medical sources may not be AMSs. Therefore, these
final rules state that we will consider and articulate our
consideration of all medical opinions, regardless of AMS status,
consistent with the standard we set forth for AMSs in proposed
404.1520c and 416.920c.
Under proposed sections 404.1520c(b)(4) and 416.920c(b)(4), we said
that we would articulate how we consider the medical opinion(s) from a
medical source who is not an AMS only if we found it to be well-
supported and consistent with the record and more valuable and
persuasive than the medical opinion(s) and prior administrative medical
findings from all of the AMSs in the individual's case record. We are
not adopting proposed 404.1520c(b)(4) and 416.920c(b)(4) in these final
rules in order to ensure that our rules on articulation reflect the
realities of the current healthcare delivery system.
Comment: A few commenters opposed our proposal to end the treating
source rule because they said the proposed rules would create arbitrary
and inconsistent decisionmaking.
Response: We disagree with these comments because these final rules
require our adjudicators to consider all of the factors in final
404.1520c and 416.920c for all medical opinions and, at a minimum, to
articulate how they considered the supportability and consistency
factors for all of a medical source's medical opinions or prior
administrative medical findings.
These final rules improve upon our current rules in several ways.
For example, we will require our adjudicators to articulate how they
consider medical opinions from all medical sources, regardless of AMS
status, to reflect the changing nature of

[[Page 5854]]

healthcare delivery. Therefore, we expect these final rules will
enhance the quality and consistency of our decisionmaking, and they
will provide individuals with a better understanding of our
determinations and decisions.
Comment: Some commenters suggested that instead of changing the
treating source rule, we should provide our adjudicators with
additional training about it, and increase our quality control
measures, so that there are fewer appeals and remands about this issue.
Response: We agree with the comments to provide training and
quality control measures to ensure policy compliance with our rules,
but we are adopting our proposal to end the treating source rule for
claims filed on or after March 27, 2017. The suggestion that we not end
the treating source rule would neither align our policies with the
current state of medical practice, nor would we expect it to result in
substantially fewer appeals and remands about this issue.
To account for the changes in the way healthcare is currently
delivered, we are adopting rules that focus more on the content of
medical opinions and less on weighing treating relationships against
each other. This approach is more consistent with current healthcare
practice.
Additionally, we provide extensive training on our rules, and we
will provide adjudicators with appropriate training on these final
rules. In part because of our extensive training efforts, the work of
our adjudicators is policy compliant and highly accurate. For example,
in fiscal year 2015, the accuracy rate of our initial determinations
was nearly 98 percent, and the overall rate at which the AC has agreed
with hearing decisions has increased in recent years. We are committed
to ensuring our disability adjudicators remain policy compliant;
therefore, we will continue our existing ongoing efforts to train
adjudicators on best practices for applying our policies, including the
policies in these final rules.
Comment: A few commenters said that we should not adopt our
proposed rules because the process of training our adjudicators and
adapting our computer systems to comply with them will be difficult,
time-consuming, and expensive.
Response: We are not adopting this comment. We believe that the
changes we made to our rules will be beneficial to the administration
of our programs because they will make our rules easier to understand
and apply and will allow us to continue to make accurate and consistent
decisions, while acknowledging the changing healthcare landscape. We
agree that providing comprehensive training and updating our software
to reflect the revisions in these final rules are critical, and we are
confident that we will be able to provide the necessary training and
software changes in a timely manner. Among our existing employees are
dedicated teams that provide in-house training and software
enhancements for all of our regulatory revisions. We are currently
training our employees and are updating our systems to be ready for
when these final rules become effective. We will also undertake quality
control monitoring to ensure the training and software updates are
effective and working as we intend.
Comment: One commenter requested that we clarify what
``consistency'' means when considering medical opinions and prior
administrative findings. The commenter also recommended that we
consider the consistency and treatment relationship with the claimant
factors equally. The commenter explained, ``Given the brevity of some
of these treatment relationships, medical sources may reasonably come
to different conclusions about the claimant's impairments and
functioning.''
Response: While we acknowledge that determining the consistency of
medical opinions may be challenging in certain claims, we did not adopt
this suggestion. Our adjudicators now use the consistency factor when
they consider medical opinions and medical findings from MCs and PCs.
Consistent with that approach, proposed and final 404.1520c and
416.920c explain that the more consistent a medical opinion or prior
administrative medical finding is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion or prior administrative medical finding is.
Moreover, our use of the word ``consistent'' in the regulations is
the same as the plain language and common definition of ``consistent.''
This includes consideration of factors such as whether the evidence
conflicts with other evidence from other medical sources and whether it
contains an internal conflict with evidence from the same medical
source. We acknowledge that the symptom severity of some impairments
may fluctuate over time, and we will consider the evidence in the claim
that may reflect on this as part of the consistency factor as well.
Thus, the appropriate level of articulation will necessarily depend on
the unique circumstances of each claim.
The supportability and consistency factors provide a more balanced
and objective framework for considering medical opinions than focusing
upon the factors of consistency and the medical source's relationship
with the individual. A medical opinion without supporting evidence, or
one that is inconsistent with evidence from other sources, will not be
persuasive regardless of who made the medical opinion.
Our final rules provide an appropriate framework to evaluate
situations when multiple medical sources provide medical opinions that
are not consistent. Our adjudicators will consider all of the factors
when they determine how persuasive they find a medical opinion, and
these factors are based on the current factors in our rules.
Comment: One commenter said the proposed rules did not contain
sufficient guidance about when we would explain how we would consider
opinions from sources who are not AMSs in claims with a filing date
before the effective date of these final rules. The commenter expressed
concern that more claims would be remanded if we did not include more
policies from Social Security Ruling (SSR) 06-03p, which we are
rescinding, into these final rules. A few other commenters asked us to
retain the policies in SSR 06-03p about considering and providing
written analysis about opinions from sources who are not AMSs for all
claims.
Response: We agree with this comment, and we revised the final
regulatory text about claims filed both before and after the effective
date of these rules, March 27, 2017, to ensure we have provided clear
and comprehensive guidance to our adjudicators and the public.
Under SSR 06-03p, we consider opinions from medical sources who are
not AMSs and from nonmedical sources using the same factors we use to
evaluate medical opinions from AMSs. We state that an adjudicator
generally should explain the weight given to opinions from these
sources, or otherwise ensure that the discussion of the evidence in the
determination or decision allows an individual or subsequent reviewer
to follow the adjudicator's reasoning, when such opinions may have an
effect on the outcome of the case. In addition, when an adjudicator
determines that an opinion from one of these sources is entitled to
greater weight than a medical opinion from a treating source, the
adjudicator must explain the reasons in the determination or decision
if the determination is less than fully

[[Page 5855]]

favorable under our current rules. In these final rules, we have
included these policies from SSR 06-03p into final 404.1527 and 416.927
for claims filed before March 27, 2017.
In the NPRM,\38\ we did not propose a rule that would have required
our adjudicators to articulate how they considered evidence from
nonmedical sources because these sections only discuss medical
opinions, which come from medical sources. In response to the comment
asking us to include guidance about how we will consider and provide
articulation about how we considered evidence from nonmedical sources,
we have made two changes. First, for claims filed before March 27,
2017, we have added a new paragraph, sections 404.1527(f) and
416.927(f), which explains how we will consider, and articulate our
consideration of, opinions from medical sources who are not AMSs and
from nonmedical sources. Second, we are also including regulatory text
about evidence from nonmedical sources for claims filed on or after
March 27, 2017. For these claims, new sections 404.1520c(d) and
416.920c(d) state that, ``We are not required to articulate how we
considered evidence from nonmedical sources using the requirements in''
sections 404.1520c(a)-(c) and 416.920c(a)-(c) of the rules. This change
clarifies our original intent.
---------------------------------------------------------------------------

\38\ 81 FR at 62583-84 and 62592-93.
---------------------------------------------------------------------------

Specifically, aside from where our regulations elsewhere may
require an adjudicator to articulate how we consider evidence from
nonmedical sources, such as when we evaluate symptoms,\39\ there is no
requirement for us to articulate how we considered evidence from
nonmedical sources about an individual's functional limitations and
abilities using the rules in final 404.1520c and 416.920c.
---------------------------------------------------------------------------

\39\ See current 404.1529 and 416.929.
---------------------------------------------------------------------------

Comment: We received a comment from ACUS asking us to revise the
preamble and our rules to reflect that the ACUS Assembly voted to adopt
two of its principal recommendations from the ACUS Final Report \40\ in
the ACUS Conference Recommendations.\41\ Another commenter asked us to
disregard the ACUS Final Report and ACUS Conference Report because, he
asserted, ACUS is unfamiliar with the realities that individuals face
in daily life.
---------------------------------------------------------------------------

\40\ Administrative Conference of the United States, SSA
Disability Benefits Programs: Assessing the Efficacy of the Treating
Physician Rule (April 3, 2013), available at http://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf.
\41\ Conference Recommendation 2013-1, Improving Consistency in
Social Security Disability Adjudications. 78 FR 41352 (July 10,
2013), also available at https://acus.gov/recommendation/improving-consistency-social-security-disability-adjudications.
---------------------------------------------------------------------------

Response: We value the expertise ACUS provides to help improve
Federal agencies' administrative processes, and specifically in this
rulemaking process,\42\ and we appreciate ACUS' continued interest in
helping us improve the ways we administer our programs. At this time,
we are adopting most of the ACUS Conference Recommendations that relate
to the treating source rule in these final rules.
---------------------------------------------------------------------------

\42\ ACUS is ``an independent federal agency dedicated to
improving the administrative process through consensus-driven
applied research, providing nonpartisan expert advice and
recommendations for improvement of federal agency procedures.''
About the Administrative Conference of the United States (ACUS),
available at http://www.acus.gov/about-administrative-conference-united-states-acus.
---------------------------------------------------------------------------

The first ACUS recommendation encourages us to use ``notice-and-
comment rulemaking to eliminate the controlling weight aspect of the
treating source rule in favor of a more flexible approach based on
specific regulatory factors'' that are in our current rules. This
recommendation also said that our adjudicators should articulate the
bases for the weight given to medical opinions ``in all cases.''
We base the factors we will use to evaluate medical opinions in
these final rules, which are based on notice-and-comment rulemaking, on
the factors in our current rules. In response to ACUS's recommendation
that our adjudicators should articulate the reasons for the weight
given to medical opinions in all cases, we have revised final
404.1520c(b) and 416.920c(b) to state that we will articulate in our
determination or decision how persuasive we find all of the medical
opinions and all of the prior administrative medical findings in an
individual's case record. We also provide specific articulation
requirements for medical opinions from all medical sources, regardless
of whether the medical source is an AMS.
The second ACUS recommendation asked us to both: (1) Recognize
nurse practitioners (NP), physician assistants (PA), and licensed
clinical social workers (LCSW) as AMSs consistent with their respective
State law-based licensure and scope of practice, and (2) issue a policy
statement that clarifies the value and weight to be afforded to
opinions from NPs, PAs, and LCSWs.
As stated above, we are recognizing PAs and ARNPs, which includes
NPs, as AMSs in these final rules. At this time, we are not recognizing
LCSWs as AMSs, for the reasons we discussed previously.
With respect to ACUS's recommendation that we assign an inherent
value to medical opinions from these medical sources, we will explain
how we considered the medical opinions from these medical sources
because we are not adopting our proposal to base the articulation
requirements on whether the medical source is an AMS.
Comment: One commenter asked us to retain the treating source rule
for child claims because pediatricians still have important treating
relationships with child claimants. Another commenter asked us to give
controlling weight to teacher assessments in child claims.
Response: While we are not adopting these comments, we agree that
pediatricians have a valuable role in many child claims. Final sections
404.1520c(c) and 416.920c(c) explain that we will continue to consider
the medical source's area of specialty and a medical source's
relationship with an individual, including a child, as part of our
evaluation of medical opinions. However, a treating pediatrician's
relationship with a child patient is not sufficiently different from a
treating doctor's relationship with an adult patient to warrant having
a separate rule for evaluating medical opinions from treating
pediatricians. Because we are moving away from applying the treating
source rule for all medical sources, we are not expanding the treating
source rule to give controlling weight to nonmedical sources like
teachers.
Comment: One commenter suggested that instead of revising our rules
about treating sources, we make additional efforts to develop evidence
from treating sources, such as sending them functional questionnaires
and asking them for medical opinions.
Response: We did not adopt this comment because our current
practice is consistent with the Act's requirements that we make every
reasonable effort to obtain evidence from all of an individual's
medical sources.\43\
---------------------------------------------------------------------------

\43\ 42 U.S.C. 423(d)(5)(B) and 1382c(a)(1)(H)(i).
---------------------------------------------------------------------------

Comment: One commenter asked us to replace ``consider'' with
``evaluate'' and asserted that ``consider'' is a vague term.
Response: We did not adopt this comment because the use of the term
``consider'' is consistent with our current rules,\44\ and it is easily
distinguishable from the articulation requirements. Adoption of the
term ``evaluate'' could imply a need to provide written analysis, which
is not what we intend. Therefore, we have

[[Page 5856]]

continued to use the term ``consider'' in these final rules.
---------------------------------------------------------------------------

\44\ See, for example, 404.1520b and 416.920b.
---------------------------------------------------------------------------

Comment: One commenter offered an alternative approach to ending
the treating source rule. The alternative approach would continue to
give controlling weight to treating physician opinions in most
circumstances, significantly limit how persuasive we could find a CE
source's opinions, and limit the role of MCs and PCs to identifying
when additional medical evidence is needed to adjudicate a claim.
Response: We are not adopting this suggestion because it is not
consistent with section 221(h) of the Act, as amended by BBA section
832. As we noted earlier in the preamble, under section 221(h) of the
Act, we are now required to make ``every reasonable effort'' to ensure
that a qualified physician (in cases involving a physical impairment)
or a qualified psychiatrist or psychologist (in cases involving a
mental impairment) has completed the medical review of the case and any
applicable residual functional capacity (RFC) assessment, not just
identify when additional medical evidence is needed to adjudicate a
claim.
Furthermore, the suggestion would not bring our rules into
alignment with the modern healthcare delivery. Our rules focus on the
content of the medical opinions in evidence, rather than on the source
of the evidence. The commenter's proposal would require us to adopt the
opinions of either a treating physician or a consultative examiner to
determine if the claimant meets our statutory definition of disability.
This would confer upon these other sources the authority to make the
determination or decision that we are required to make, and would be an
abdication of our statutory responsibility to determine whether the
person meets the statutory definition of disability.
Comment: A few commenters said we should never consider evidence
from our MCs and PCs to be more persuasive than evidence from an
individual's own medical source because MCs and PCs are unqualified and
misrepresent the evidence they review.
Response: We did not adopt this comment because we maintain strict
requirements for who may serve as a qualified MC or PC.\45\ MCs and PCs
have valuable experience in our adjudicative processes, and their
review of all of the evidence we receive provides them with a
comprehensive perspective that other medical sources, including an
individual's own medical sources, may not have.
---------------------------------------------------------------------------

\45\ See current 404.1616 and 416.1016, as revised by final
404.1616 and 416.1016 to accommodate section 221(h) of the Act, as
amended by BBA section 832.
---------------------------------------------------------------------------

Comment: One commenter said we provided no evidence to support the
NPRM's statement that individuals less frequently develop a sustained
relationship with one treating physician now than when they did when we
published the treating source rule in 1991.
Response: In the preamble to the NPRM, we provided a list of
sources of evidence in footnote 119, which refers readers to the ACUS
Final Report.\46\ Examples of sources that ACUS cites in section III.A.
of its Final Report include:
---------------------------------------------------------------------------

\46\ Administrative Conference of the United States, SSA
Disability Benefits Programs: Assessing the Efficacy of the Treating
Physician Rule (April 3, 2013), available at http://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf.
---------------------------------------------------------------------------

Sharyn J. Potter & John B. McKinlay, From a Relationship
to Encounter: An Examination of Longitudinal and Lateral Dimensions in
the Doctor-Patient Relationship, 61 SOC. SCI. & MED. 465, 466-470
(2005). These authors described the ``longitudinal changes to doctor-
patient relationship in latter decades of 20th century as corporatist
model of health care took hold, due largely to `exponential growth of
managed health care in the 1980s and 1990s [that] drastically changed
the roles of both physicians and patients.' '' \47\
---------------------------------------------------------------------------

\47\ Id. at 26, footnote 205.
---------------------------------------------------------------------------

John W. Saultz & Waleed Albedaiwi, Interpersonal
Continuity of Care and Patient Satisfaction: A Critical Review, 2
ANNALS OF FAM. MED. 445, 445 (Sept./Oct. 2004). This article reports
that, ```Changes in the American healthcare system during the past
decade have made it increasingly difficult to establish such long-term
trusting relationships between physicians and patients. Some authors
have questioned whether a personal model of care is feasible, as health
plans increasingly have required provider changes for economic
reasons.' '' \48\
---------------------------------------------------------------------------

\48\ Id. at 26, footnote 206.
---------------------------------------------------------------------------

Paul Nutting et al., Continuity of Primary Care: To Whom
Does it Matter and When?, 1 ANNALS OF FAM. MED. 149, 154 (Nov. 2003)
This article states, `` `The current organizational and financial
restructuring of the health care system creates strong pressures
against continuity with employers changing plans, and plans changing
providers. Forced disruption in continuity of care is common,
particularly for those with a managed care type of insurance.' '' \49\
---------------------------------------------------------------------------

\49\ Id. at 28, footnote 220.
---------------------------------------------------------------------------

There are other similar sources of evidence establishing that
individuals less frequently develop a sustained relationship with one
treating physician now on pages 25-28 of the ACUS Final Report,
including in the footnotes.
Comment: Some commenters opined that increasing complexity in cases
and voluminous files provide insufficient reasons for moving away from
the treating source rule.
Response: The increasing complexity in cases and voluminous files
were not reasons that we provided in support of moving away from the
treating source rule. We are moving away from the treating source rule
to align our policies more closely with the ways that people receive
healthcare today.
Instead, the increasing complexity of cases and voluminous files
were reasons we provided in support of our proposed rules about how we
would articulate our consideration of medical opinions. As explained
elsewhere in this preamble, we received comments raising concern with
certain aspects of the proposed articulation requirements. As a result,
we revised the final rules in several ways, such as to require
adjudicators to articulate how they considered medical opinions from
all medical sources, rather than only from AMSs, in final 404.1520c and
416.920c.
As we explained in the preamble to the NPRM,\50\ it is not
administratively feasible for us to articulate how we considered all of
the factors for all of the medical opinions and prior administrative
medical findings in all claims. As we noted earlier in the preamble,
our goal in these final rules is to continue to ensure that our
adjudicative process is both fair and efficient. We have an obligation
to treat each claimant as an individual and to decide his or her claim
fairly. We also have an obligation to all individuals to provide them
with timely, accurate determinations and decisions.
---------------------------------------------------------------------------

\50\ 81 FR at 62574.
---------------------------------------------------------------------------

Our experience since 1991 using the treating source rule shows that
the articulation requirement in the current rule, which requires
adjudicators to address each opinion, rather than addressing the
opinions on a source-level, does not always foster those two goals.
Accordingly, we believe it is appropriate to revise the articulation
requirement in our current rules. We believe that the changes we have
made from the NPRM address the concerns raised by the commenters, while
still allowing us to ensure that our administrative process is both
fair and efficient.

[[Page 5857]]

Comment: A few commenters disagreed with how we characterized some
of the legal precedents we cited as in the preamble to the NPRM, such
as Black & Decker Disability Plan v. Nord.\51\ These commenters
asserted that Black & Decker reflected positively on the 1991 treating
source rule regulations, and that many courts support the treating
source rule's deferential standard.
---------------------------------------------------------------------------

\51\ 538 U.S. 822 (2003).
---------------------------------------------------------------------------

Response: We included Black & Decker in the preamble to the NPRM
\52\ because the opinion notes that, ``the assumption that the opinions
of a treating physician warrant greater credit than the opinions of
plan consultants may make scant sense when, for example, the
relationship between the claimant and the treating physician has been
of short duration, or when a specialist engaged by the plan has
expertise the treating physician lacks. And if a consultant engaged by
a plan may have an `incentive' to make a finding of `not disabled,' so
a treating physician, in a close case, may favor a finding of
`disabled.' '' \53\
---------------------------------------------------------------------------

\52\ 81 FR 62572.
\53\ 538 U.S. at 832.
---------------------------------------------------------------------------

Although the Black & Decker court was referring to medical
consultants contracted under ERISA plans, the concerns about short
treatment relationships and lack of specialization are equally
applicable in the context of disability adjudication under our rules.
Notably, ACUS agrees with our interpretation of the discussions in
these opinions.\54\ Additionally, setting aside the Court's decision in
Black and Decker, the other rationale we provided in the NPRM for
revising our policy on how we consider treating source and other
medical source opinions remains compelling.
---------------------------------------------------------------------------

\54\ See ACUS Final Report at 43.
---------------------------------------------------------------------------

Comment: Some commenters, including the authors of a law review
article mentioned in section VI.D.5. of the NPRM preamble,\55\
submitted comments stating we had inaccurately presented parts of the
content of that article and their position on the treating physician
rule.
---------------------------------------------------------------------------

\55\ Richard E. Levy & Robert L. Glicksman, Agency-Specific
Precedents, 89 TEX. L. REV. 499, 546 (2011).
---------------------------------------------------------------------------

Response: We appreciate the commenters' concerns and their interest
in our programs and this rulemaking proceeding. We regret the
mischaracterization of the authors' position in their article. We note
that the other rationale discussed in the NPRM and these final rules
remains compelling.

Articulation Requirements

Comment: A few commenters expressed concern with the factors that
we proposed to consider when evaluating medical opinions and prior
administrative medical findings. One commenter indicated that we should
not elevate consistency above the other factors. Another commenter
thought that the consistency factor would automatically make a
longitudinal record subject to being found inconsistent. Other
commenters said we should continue to use our existing factors, or
first consider the factor of a longstanding treatment relationship, to
evaluate the persuasiveness of medical opinions and prior
administrative medical findings. Some commenters were concerned with
our proposal to add ``understanding our policy'' and ``familiarity with
the record'' to our list of factors because they may appear to favor
evidence from our MCs and PCs over an individual's own medical sources.
Response: We agree, in part, with these comments. We are adopting
our proposal to consider supportability and consistency as the two most
important factors when we evaluate the persuasiveness of medical
opinions and prior administrative medical findings. Our experience
adjudicating claims demonstrates that these factors are more objective
measures than the relationship with the claimant factor and are the
same factors we look to as part of the current treating source rule.
While we agree that there is no hierarchy to the remaining factors, we
did not revise our rules to include this language in the regulatory
text. Instead, we agree with the comments that we should revise the
regulatory text to eliminate any appearance that inherently we favor
evidence from MCs or PCs over evidence from an individual's own medical
sources, and vice versa. Therefore, we made several revisions to the
regulatory text in final 404.1520c and 416.920c.
We revised the issues within the ``relationship with the claimant''
factor to read: length of the treatment relationship, examining
relationship, frequency of examinations, purpose of the treatment
relationship, and extent of the treatment relationship. This
underscores our recognition that an individual's own medical source may
have a unique perspective of an individual's impairments based on the
issues listed, such as a long treatment relationship. We will consider
the unique evidence in each claim that tend to support or weaken how
persuasive we find these issues.
Similarly, under both our current rules and the proposed rules, we
may consider a medical source's familiarity with the entire record and
his or her understanding of our policy. In our proposed rules, we
proposed to separately list ``understanding our policy'' and
``familiarity with the record'' as individual factors instead of
examples of ``other factors'' as in the current rules. Some commenters
were concerned that this change favored our MCs and PCs, who often
review all evidence in a claim and are trained in our policies. This
was not our intent, and we proposed to reorganize the factors to
clarify, not change, our policy on this point. Therefore, we agree with
the comments that it would be best to list these issues within ``other
factors.''
We also recognize that new evidence submitted after an MC or PC
provided a prior administrative medical finding may affect how
persuasive that finding is at subsequent levels of adjudication. We are
adding in final 404.1520c(c)(5) and 416.920c(c)(5) that when we
consider a medical source's familiarity with the other evidence in a
claim, we will also consider whether new evidence we receive after the
medical source made his or her medical opinion or prior administrative
medical finding makes the medical opinion or prior administrative
medical finding more or less persuasive.
Additionally, we recognize that evidence from a medical source who
has a longstanding treatment relationship with an individual may
contain some inconsistencies over time due to fluctuations in the
severity of an individual's impairments. Our adjudicators will consider
this possibility as part of evaluation of the consistency factor, as
they do so under our current rules. We will also include this issue
within our training to our adjudicators.
Comment: Some commenters were concerned that, by moving away from
assigning a specific weight to opinions and prior administrative
medical findings, we would add subjectivity into the decisionmaking
process and said we would only require our adjudicators to think about
the evidence but not provide written analysis. Other commenters
suggested that by requiring articulation on only two factors--
supportability and consistency--our decisions would not sufficiently
inform the individual or a reviewing Federal court of the
decisionmaker's reasoning, which would lead to more appeals to and
remands from the courts.
Response: While we understand the concerns in these comments, we
are adopting our proposal to look to the

[[Page 5858]]

persuasiveness of medical opinions and prior administrative medical
findings for claims filed on or after March 27, 2017. Our current
regulations do not specify which weight, other than controlling weight
in a specific situation, we should assign to medical opinions. As a
result, our adjudicators have used a wide variety of terms, such as
significant, great, more, little, and less. The current rules have led
to adjudicative challenges and varying court interpretations, including
a doctrine by some courts that supplants the judgment of our
decisionmakers and credits as true a medical opinion in some cases.
By moving away from assigning a specific weight to medical
opinions, we are clarifying both how we use the terms ``weigh'' and
``weight'' in final 404.1520c(a), 404.1527, 416.920c(a), and 416.927
and also clarifying that adjudicators should focus on how persuasive
they find medical opinions and prior administrative medical findings in
final 404.1520c and 416.920c. Our intent in these rules is to make it
clear that it is never appropriate under our rules to ``credit-as-
true'' any medical opinion.
We are also stating in final 404.1520c(b) and 416.920c(b) what
minimum level of articulation we will provide in our determinations and
decisions to provide sufficient rationale for a reviewing adjudicator
or court. In light of the level of articulation we expect from our
adjudicators, we do not believe that these final rules will result in
an increase in appeals or remands from the courts.
Comment: We received various comments regarding our proposal in
sections 404.1520c(b) and 416.920c(b) about when we would articulate
how we considered medical opinions from medical sources who are not
AMSs. A few commenters supported our proposal. However, several other
commenters, including Members of Congress, expressed concern with the
proposed changes. Some commenters said the changes would result in less
transparency because adjudicators would have ``too much individual
discretion to dismiss key evidence without providing a rationale.''
Other commenters said that our proposed rules would not allow reviewing
courts to determine whether substantial evidence supports our
decisions.
Response: We partially adopted these comments, and we appreciate
the perspective of the commenters who expressed concern with the
proposed rules. We are committed to having a transparent, fair, and
balanced adjudicative process that ensures that every entitled
individual receives the disability benefits or payments and that every
individual understands why he or she is not entitled to benefits. We
agree with the majority of commenters that we should articulate how we
consider medical opinions from any of an individual's own medical
sources, regardless of whether that source is an AMS.
Therefore, we revised final 404.1520c(c) and 416.920c(c) to require
our adjudicators to articulate how they consider medical opinions from
all medical sources, regardless of AMS status. This revision helps
align our rules with current medical practice and recognizes that
individuals may obtain evaluation, examination, or treatment from
medical sources who are not AMSs.
To account for this change, we are not adopting proposed
404.1520c(b)(4) and 416.920c(b)(4) in these final rules, which would
have stated standards about when we would articulate how we considered
medical opinions from medical sources who are not AMSs. We also revised
final 404.1520c(a)-(b) and 416.920c(a)-(b) to clarify that there is a
difference between considering evidence and articulating how we
consider evidence. We consider all evidence we receive, but we have a
reasonable articulation standard for determinations and decisions that
does not require written analysis about how we considered each piece of
evidence.
We expect that the articulation requirements in these final rules
will allow a subsequent reviewer or a reviewing court to trace the path
of an adjudicator's reasoning, and will not impede a reviewer's ability
to review a determination or decision, or a court's ability to review
our final decision.
Comment: One commenter asked for clarification about what we meant
by ``medical source'' in proposed 404.1520c(b)(1) and 416.920c(b)(1),
particularly when an entity provides us with evidence. The commenter
asked if we were referring to the same health care provider, the same
clinic, the same medical group, or the same hospital.
Response: Under both our current and these final rules, only an
individual, not an entity, can be a medical source. When an entity
provides us with evidence from multiple medical sources, we will
evaluate each medical source's evidence separately instead of
considering the evidence as coming from one source.
Comment: One commenter agreed with our proposal to require an
adjudicator to discuss other relevant factors when we find two medical
sources' medical opinion(s) or prior administrative medical finding(s)
equally persuasive. Another comment asserted that the NPRM did not
provide much guidance as to when medical opinions are both equally
well-supported and consistent with the record.
Response: We agree with the first commenter that this requirement
provides an appropriate standard about when an adjudicator has
discretion to discuss the other relevant factors. Because the content
of evidence, including medical opinions and prior administrative
medical findings, varies with each unique claim, it would not be
appropriate to set out a detailed rule for when this situation may
occur. We expect that each adjudicator will use his or her discretion
to determine when this situation occurs.
The final rules include sufficient guidance to adjudicators in
determining when this situation exists. Under final sections
404.1520c(b)(3) and 416.920c(b)(3), the medical opinions or prior
administrative medical findings must be ``both equally well-supported''
under sections 404.1520c(c)(1) or 416.920c(c)(1) ``and consistent with
the record'' under sections 404.1520c(c)(2) or 416.920c(c)(2). In
addition, the opinions or prior administrative medical findings must
not be ``exactly the same.'' Under these circumstances, we will
articulate how we considered the other most persuasive factors in
sections 404.1520c(c)(3)-(c)(5) or 416.920c(c)(3)-(c)(5) for those
medical opinions or prior administrative medical findings in the
determination or decision.
Comment: One commenter thought we would no longer provide rationale
about why we did not adopt a medical opinion from an individual's
doctor. A few commenters believed that the proposed rule would reduce
our articulation burden and would increase inconsistency in how we
evaluate individuals.
Response: While we understand some commenters were concerned about
these issues, these final rules continue the requirement in current
404.1527 and 416.927 to articulate how we consider medical opinions
from an individual's own doctor. In fact, these final rules enhance the
current requirements in several ways, such as requiring articulation
about medical opinions from all of an individual's medical sources,
making consistency and supportability the most important factors, and
clarification of the factors themselves. These improvements will
increase the consistency in how we evaluate claims, and we also expect
them to reduce remands.

[[Page 5859]]

Comment: One commenter asked us to adopt the medical opinions of
highly-specialized doctors without considering the other factors.
Response: After careful consideration, we are not adopting this
comment. The specialization of the medical source who provides a
medical opinion or prior administrative medical finding is one of the
factors we consider when we evaluate how persuasive a medical opinion
or prior administrative medical finding is. Under our current rules in
404.1527(c) and 416.927(c), we consider several factors when we decide
what ``weight'' to give to a medical opinion, and we do not consider
the specialization of the medical source in isolation. Evaluating the
persuasiveness of a medical opinion requires consideration of several
factors and in context of all of the evidence in the claim.
Comment: One commenter asked us to add a factor for considering
medical opinions that would inquire about whether the individual is
indigent, because such individuals cannot afford psychotherapy.
Response: We are not adopting this comment because the factors for
considering medical opinions and prior administrative medical findings
relate to the persuasiveness of the evidence presented, not to the
financial status of the individual. We will consider and explain how we
considered medical opinions of an individual's medical sources
regardless of whether the medical evaluation, examination, or treatment
occurred in a free or low cost health clinic for indigent individuals.
Comment: One commenter asked whether we intended to make two
separate findings about the value and persuasiveness of medical
opinions, or whether we intended to require one finding. The commenter
opposed requiring two separate findings for each medical opinion
because that would increase the articulation burden on our
adjudicators.
Response: We appreciate the question and the opportunity to clarify
that we are not requiring two separate findings. Our adjudicators need
only explain how persuasive they found a medical opinion or prior
administrative medical finding in their determinations or decisions. As
we state in final 404.1520c(b) and 416.920c(b), ``[w]e will articulate
in our determination or decision how persuasive we find all of the
medical opinions and all of the prior administrative medical findings
in your case record.'' There is no requirement that our adjudicators
provide a second analysis about how valuable a medical opinion or prior
administrative medical finding is.
Comment: A few commenters said that our proposed rules about how we
would articulate how we considered medical opinions, and that we would
not articulate our consideration of disability examiner findings,
statements on issues to the Commissioner, and decisions by other
governmental agencies and nongovernmental entities, violated due
process and 42 U.S.C. 405(b), which requires us to include in a
determination or decision that is not fully favorable to an individual,
a statement of the case, in understandable language, setting forth a
discussion of the evidence, and stating the reason(s) upon which we
based the determination or decision. Some of these commenters said
reviewing courts would increase the number of remands because they
would be unable to review our adjudicators' rationale.
Response: Our current rules, the proposed rules, and these final
rules are consistent with and further the goals of 42 U.S.C. 405(b) and
the principles of due process. The statute does not require us to
explain how we consider every piece of evidence we receive. Instead,
section 405(b) requires us to include in a determination that is not
fully favorable to an individual, a statement of the case, in
understandable language, setting forth a discussion of the evidence,
and stating the reason(s) upon which we based the determination or
decision. The intent of the statute was not to impose a burdensome
articulation requirement.\56\ Rather, the intent was to remedy a prior
concern that individuals were receiving notices that their claims for
disability benefits had been denied without any personalized
articulation of the evidence.\57\
---------------------------------------------------------------------------

\56\ See section 305 of the Social Security Disability
Amendments of 1980, Public Law 96-265, 94 Stat. 441, 457. In
amending section 405(b), Congress intended for the required
personalized denial notice to be ``brief, informal, and not
technical,'' H.R. Conf. Rep. 96-944, at 58 (1980), and did not
intend for it to be a voluminous document, S. Rep. 96-408 at 57
(1979).
\57\ See H.R. Conf. Rep. 96-944, at 58 (1980) (noting that under
the law at the time, ``[t]here is no statutory provision setting a
specific amount of information to explain the decision made on a
claim for benefits.''); S. Rep. 96-408 at 56 (1979) (noting that
under the law at the time, ``[n]otices to claimants regarding the
Secretary's decision on their claim for disability benefits provides
little guidance as to the causes for a denial.'')
---------------------------------------------------------------------------

We will articulate how we considered the medical opinions from all
medical sources and prior administrative medical findings in a claim.
This articulation will include the supportability and consistency
factors, which generally includes an assessment of the supporting
objective medical evidence and other medical evidence, and how
consistent the medical opinion or prior administrative medical findings
is with other evidence in the claim. Therefore, the final rules are
consistent with the intent of the statute that we provide a statement
of the case, setting forth a discussion of the evidence, and stating
the reasons upon which we based the determination.
As to the comments that these rules do not provide due process,
these final rules do not violate the Due Process Clause of the Fifth
Amendment to the Constitution. The final rules do not categorize
individuals based on their characteristics or deprive an individual of
a protected property interest. The rules also ensure that our
procedures are fair and provide individuals with appropriate procedural
protections. Nothing in constitutional principles of equal protection
is inconsistent with these final rules.
Comment: We received a few comments raising concern about the
interactions between the proposed rules and some Federal statutes, and
the interactions between the proposed rules and judicial review. A few
commenters said our proposed rules were in conflict with 42 U.S.C.
405(g). One commenter said our proposed rules were in conflict with 42
U.S.C. 404(a). One commenter said our proposed rules violated the Ninth
Circuit's ``credit-as-true doctrine.'' Another commenter said the
treating source rule provides for uniformity between Federal courts and
us and minimizes delays to claimants by limiting unnecessary court
reviews. A few commenters said courts would continue to defer to
evidence from a claimant's own medical sources regardless of the
content of our rules.
Response: We do not agree with these comments. 42 U.S.C. 404(a) and
405(g) do not directly apply to the proposed or final regulatory
sections. 42 U.S.C. 404(a) addresses how we assess underpayments and
overpayments, and nothing in these final rules address these issues.
Similarly, 42 U.S.C. 405(g) addresses procedures for individuals to
appeal their decisions to Federal court, and these final rules do not
affect these rights.
Federal courts are bound to uphold our decisions when they are
supported by substantial evidence and when we have applied the
appropriate legal standards in our decisions. While a court has the
authority to review the validity of our regulations, the fact that some
courts previously have adopted a credit as true rule does not mean that
we are required to adopt such a rule in

[[Page 5860]]

our regulations.\58\ Those courts that have adopted the credit as true
rule have not done so based on any specific requirement of the Act, and
the statute does not mandate that we apply such a rule.
---------------------------------------------------------------------------

\58\ See National Cable and Telecommunications Ass'n v. Brand X
Internet Services, 545 U.S. 967, 982 (2005).
---------------------------------------------------------------------------

In our view, the credit as true rule supplants the legitimate
decisionmaking authority of our adjudicators, who make determinations
or decisions based on authority delegated by the Commissioner. The
credit as true rule is neither required by the Act nor by principles of
due process. It is also inconsistent with the general rule that, when a
court finds an error in an administrative agency's decision, the proper
course of action in all but rare instances is to remand the case to the
agency for further proceedings. Accordingly, we decline to adopt the
credit as true rule here.
We expect that courts will defer to these regulations, which we
adopted through notice and comment rulemaking procedures pursuant to
the Commissioner's exceptionally broad rulemaking authority under the
Act. The rules are essential for our administration of a massive and
complex nationwide disability program where the need for efficiency is
self-evident. The rules are neither arbitrary nor capricious, nor do
they exceed the bounds of reasonableness. Under these circumstances, we
are confident that our rules are valid.\59\
---------------------------------------------------------------------------

\59\ See 5 U.S.C. 553 and E.O. 12866, as supplemented by E.O.
13563.
---------------------------------------------------------------------------

Comment: A few commenters asked us to require MCs and PCs to
identify what medical evidence they reviewed and disclose the amount of
time spent reviewing each claimant's file to enable later
decisionmakers to assess the supportability and consistency factors
more effectively. These commenters also asked us to instruct our
adjudicators to consider the completeness of the record at the time of
review and the time spent reviewing the record when evaluating prior
administrative medical findings.
Response: While we agree that the specific evidence an MC or PC
reviewed is probative, we did not accept this comment because MCs and
PCs are required to evaluate all of the evidence in the claim file at
the time they make their medical findings under our rules. Consistent
with 42 U.S.C. 405(b), our current rules also require that when we make
an initial determination, our written notice will explain in simple and
clear language what we have determined and the reasons for and the
effect of our determination. When we make a determination of disability
that is in whole or in part unfavorable to an individual, our rules
also require our written notice to ``contain in understandable language
a statement of the case setting forth the evidence on which our
determination is based.'' \60\ Adjudicators at subsequent levels of
appeal can also determine what evidence already existed in the claim
file when the MC or PC made his or her medical findings by reviewing
data in the claims folder.
---------------------------------------------------------------------------

\60\ Current 404.904 and 416.1404.
---------------------------------------------------------------------------

We also did not adopt the suggestion to measure and document MC and
PC review time to help subsequent adjudicators consider supportability
and consistency of their adjudicative findings because review time does
not provide information about supporting evidence or consistency of the
evidence.

Sections 404.1521 and 416.921--Establishing That You Have a Medically
Determinable Impairment

Comment: One commenter asked us to align our requirements for
establishing an impairment with the International Classification of
Functioning (ICF) used by the World Health Organization.\61\ The ICF is
a framework for describing and organizing information on functioning
and disability. The commenter suggested that if we were to align our
requirements for establishing an impairment with the ICF, medical
sources who provide evidence to us could use a standardized language
and conceptual basis for the definition and measurement of health and
disability.
---------------------------------------------------------------------------

\61\ See World Health Organization, International Classification
of Functioning, Disability and Health (ICF), http://www.who.int/classifications/icf/en/.
---------------------------------------------------------------------------

Response: While we are always looking for ways to improve how we
adjudicate disability claims, we are not adopting the comment at this
time. It is unclear how the ICF would be helpful in our adjudication of
disability claims because the ICF's definition of disability differs
from the requirements in the Act. The Act defines disability as ``the
inability to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment, which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.'' \62\
---------------------------------------------------------------------------

\62\ 42 U.S.C. 423(d)(1)(A) and 1382c(a)(3)(A).
---------------------------------------------------------------------------

In contrast, the ICF views ``disability and functioning as outcomes
of interactions between health conditions (diseases, disorders and
injuries) and contextual factors.'' \63\ Included in these contextual
factors ``are external environmental factors (for example, social
attitudes, architectural characteristics, legal and social structures,
as well as climate, terrain, and so forth); and internal personal
factors, which include gender, age, coping styles, social background,
education, profession, past and current experience, overall behaviour
pattern, character and other factors that influence how disability is
experienced by the individual.'' \64\ Therefore, an individual could
have a ``disability'' as contemplated by the ICF without meeting the
Act's definition of disability.
---------------------------------------------------------------------------

\63\ World Health Organization, Towards a Common Language for
Functioning, Disability and Health--ICF, p. 10, 2002.
\64\ Id.
---------------------------------------------------------------------------

Sections 404.1522 and 416.922--What We Mean by an Impairment(s) That Is
Not Severe

Comment: One commenter stated that, ``controlling law on the
statutory interpretation of `severe' is that it should have the
`minimalist effect' on the activities of daily living.''
Response: We did not adopt this comment because we proposed to move
the current definition from current 404.1521(a) and 416.921(a) into
proposed 404.1522(a) and 416.922(a) as part of the effort to reorganize
our regulations for ease of use, not to change the current definition.
The definition of ``non-severe'' impairment in our regulations has been
the same since 1985,\65\ and it has been substantially the same since
we first defined the term in 1980.\66\ The U.S. Supreme Court upheld
the regulatory definition in Bowen v. Yuckert.\67\
---------------------------------------------------------------------------

\65\ See 50 FR 8726, 8728 (March 5, 1985).
\66\ See 45 FR 55566, 55588 (August 20, 1980).
\67\ 482 U.S. 137 (1987).
---------------------------------------------------------------------------

Sections 404.1523 and 416.923--Multiple Impairments

Comment: One commenter opposed proposed 404.1523 and 416.923, which
explains how we consider an individual's multiple impairments, because
he said we would not consider all impairments in combination.
Response: We decided to adopt these proposed revisions as part of
our effort to make our rules easier to understand and use. These
sections combine content from current 404.1522, 404.1523, 416.922, and
416.923 without any substantive change in language. These current
sections discuss related issues- our policies for considering claims
involving multiple impairments.

[[Page 5861]]

Under the final rules, as under the current rules, we will consider
the combined effect of all of the individual's impairments without
regard to whether any such impairment, if considered separately, would
be of sufficient severity when we determine whether an individual's
physical or mental impairment or impairments are of a sufficient
medical severity that such impairment or impairments could be the basis
of eligibility. If we do find a medically severe combination of
impairments, we will consider the combined impact of the impairments
throughout the disability determination process. Since our final rules
require us to consider the combined effect of an individual's
impairments, we are adopting the text as proposed in final 404.1523 and
416.923.

Sections 404.1527 and 416.927--Evaluating Opinion Evidence for Claims
Filed Before March 27, 2017

Comment: One commenter suggested that the phrase ``typical for your
condition(s),'' as part of the definition of ``treating source'' in
proposed 404.1527 and 416.927, which will be applied to claims filed
before March 27, 2017, should include the population of indigent
individuals who cannot afford psychotherapy as frequently as those who
can afford to pay for more frequent sessions.
Response: We are not adopting this comment. The definition of
``treating source'' in proposed 404.1527 and 416.927, including the
words ``typical for your condition(s),'' comes from our current
definition of treating source in current 404.1502 and 416.902. We will
continue to apply our current rules for evaluating evidence from a
treating source, including this definition, to claims filed before
March 27, 2017. We moved this definition to proposed 404.1527 and
416.927 to locate together more of the rules that we will use for
claims filed before March 27, 2017.
For claims filed on or after March 27, 2017, the rules for
considering medical opinions will not use the term ``treating source''
or the phrase ``typical for your condition(s).''

Sections 404.1616 and 416.1016--Medical Consultants and Psychological
Consultants

Comment: Several commenters opposed our proposal to recognize
master's level psychologists licensed for independent practice as
psychological consultants (PC) in proposed 404.1616 and 416.1016. These
commenters said we should continue to follow our current rules in
404.1616(e) and 416.1016(e) because they recognize the most qualified
licensed psychologists, who are doctorate-level clinical psychologists,
to be PCs. These commenters said we should maintain a higher level of
qualifications for a psychologist to be a PC than we require a
psychologist to be an acceptable medical source (AMS).
Response: We agree with these commenters and are not adopting our
proposal to revise the qualifications to be a PC in these final rules.
Instead, we will continue to follow our current requirements about who
can be a PC in final 404.1616 and 416.1016.
Our rules only authorize us to recognize a psychologist to be a PC
if he or she: (1) Is licensed or certified as a psychologist at the
independent practice level of psychology by the State in which he or
she practices; and (2)(i) Possesses a doctorate degree in psychology
from a program in clinical psychology of an educational institution
accredited by an organization recognized by the Council on Post-
Secondary Accreditation; or (ii) Is listed in a national register of
health service providers in psychology which we deem appropriate; and
(3) Possesses 2 years of supervised clinical experience as a
psychologist in health service, at least 1 year of which is post-
masters degree.
Comment: One commenter said our proposed use of the term ``every
reasonable effort,'' relating to a medical consultant (MC) or PC
completing the medical portion of the case review and any applicable
RFC assessment, in proposed 404.1616, 404.1617, 416.1016, and 416.1017,
was too broad.
Response: We did not adopt this comment because the term ``every
reasonable effort'' as used in the NPRM and in the final rules is not
new. In fact, it has appeared in section 221(h) of the Act since 1984,
and Congress retained the phrase when it amended section 221(h) through
the Bipartisan Budget Act of 2015 (BBA) section 832 in 2015. We have
adopted the proposed procedural rules we will use to make ``every
reasonable effort'' to have qualified physicians, psychologists, and
psychiatrists review claims to final rules 404.1617 and 416.1017.
Comment: Some commenters opposed our proposal to limit MCs to only
licensed physicians. The commenters stated that speech-language
pathologists were uniquely qualified to assess the level of functional
impairment and ability related to communication disorders. One of these
commenters asked us to require that speech-language pathologists review
all claims related to communication disorders at the initial and
reconsideration levels as medical advisors.
Response: We agree that speech-language pathologists are highly
qualified to assess level of functional impairment and ability related
to communication disorders; therefore, we have retained them as AMSs.
However, section 221(h) of the Act, as amended by BBA section 832,
states that we must make every reasonable effort to ensure that a
qualified physician (in cases involving a physical impairment) or a
qualified psychologist or psychiatrist (in cases involving a mental
impairment) completes the medical portion of the case review. A speech-
language pathologist is not a ``qualified physician'' and therefore
section 221(h) of the Act does not authorize us to recognize them as
MCs or PCs.
To help retain the expertise of non-physician AMSs like speech-
language pathologists, we created the role of a medical advisor in our
subregulatory instructions.\68\ These medical sources can review the
evidence in the claim and provide case analysis that the adjudicative
team will consider as evidence from a medical source in accordance with
final 404.1513(a), 404.1520b, 404.1520c, 404.1527, 416.913(a),
416.920b, 416.920c, and 416.927, as appropriate. However, we are not
adopting the suggestion to require Speech-Language Pathologist medical
advisor input in every claim involving communication disorders at this
time. The adjudicative team will use its professional judgment to
determine whether to consult with a medical advisor(s) and how to
consider medical advisor input on any case.
---------------------------------------------------------------------------

\68\ See POMS DI 24501.001 The Disability Determination Services
(DDS) Disability Examiner (DE), Medical Consultant (MC), and
Psychological Consultant (PC) Team, and the Role of the Medical
Advisor (MA), available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501001.
---------------------------------------------------------------------------

Comment: One commenter asked us to revise our rules to state that
an MC who is a pediatrician must evaluate any child claim involving a
physical impairment and cited section 1614(a)(3)(I) of the Act, which
mandates that we make reasonable efforts to have a qualified
pediatrician or other appropriate specialist evaluate a child's case.
Another commenter asked us to allow licensed physicians such as
development/behavioral pediatricians, child neurologists, and some
primary care providers to act as PCs in a child claim involving a
mental impairment because there is a shortage of child psychologists
and psychiatrists. Another commenter opposed our rules that authorize
psychiatrists to review physical impairments.
Response: While we appreciate the commenters' concerns, we did not
adopt

[[Page 5862]]

them because our current rules are already sufficient and consistent
with the Act. Consistent with the Act's requirements in section
1614(a)(3)(I), our current rules already state that we will make
reasonable efforts to ensure that a qualified pediatrician or other
individual who specializes in a field of medicine appropriate to the
child's impairment(s) evaluates the case of the child.\69\ The Act does
not require us to have only a pediatrician be an MC in child claims
involving a physical impairment(s).
---------------------------------------------------------------------------

\69\ Current 416.903(f).
---------------------------------------------------------------------------

Section 221(h) of the Act, as amended by BBA section 832, states
that when there is evidence indicating the existence of a mental
impairment in a claim, we may not make an initial determination until
we have made every reasonable effort to ensure that a qualified
psychiatrist or psychologist has completed the medical portion of the
case review and any applicable residual functional capacity (RFC)
assessment. If we make every reasonable effort to obtain the services
of a licensed psychiatrist or qualified psychologist to review a claim
involving a mental impairment, but the professional services are not
obtained, a physician who is not a psychiatrist will review the mental
impairment claim.\70\
---------------------------------------------------------------------------

\70\ Current 404.1617(c) and 416.1017(c).
---------------------------------------------------------------------------

Historically, we have not regulated which specialty of MC or PC
must review cases involving specific impairments because each
Disability Determination Service (DDS) has unique staffing
considerations. Due to the continually changing nature of the medical
profession, any future guidance we may issue about which medical
specialties may review claims involving specific impairments would be
best placed in our subregulatory instructions.
Comment: A few commenters wanted us to recognize optometrists and
podiatrists as MCs. They said that BBA section 832's requirement that a
licensed physician review claims involving physical impairments still
authorized us to have optometrists and podiatrists as MCs.
Response: We recognize the specialized expertise that these medical
sources can bring to claims, which is why we authorized them to be MCs
prior to BBA section 832's effective date. However, neither
optometrists nor podiatrists are qualified physicians, as is required
by section 221(h) of the Act, as amended by BBA section 832. To retain
access to their expertise, we created the medical advisor role in our
subregulatory instructions so that DDSs may continue to request their
expert analysis on claims.

Other Comments

Comment: Several commenters opposed the proposed policy changes in
the NPRM that were inconsistent with the following Social Security
Rulings (SSR): 96-2p, 96-5p, and 96-6p. Therefore, those commenters
opposed rescinding the same SSRs.
Response: We explained in detail above and (as appropriate) in the
preamble to our proposed rules, our reasons for adopting the policies
in these final rules. Because the policies we are adopting in these
final rules are inconsistent with those SSRs, we are rescinding them.
Comment: Some commenters disagreed with our proposed implementation
process. These commenters said it would be difficult for adjudicators
to follow different rules based on the filing date of the claim. One
commenter said all claims should follow the new policies on the
effective date, or in the alternative, fewer of the current policies
should apply to claims filed before the effective date. The commenter
also said that we should apply the proposed new policies about
decisions from other governmental agencies and nongovernmental entities
and about statements on issues reserved to the Commissioner to all
claims.
Response: We carefully considered these comments and decided to
implement these final rules consistent with our proposed implementation
process. We are aware that individuals who filed claims before the
effective date of these final rules may have requested evidence,
including medical opinions from ``treating sources,'' based on our
current policies. We are also cognizant that some of our existing rules
may have engendered reliance interests that we need to consider. We
proposed to implement some of these rules differently from our usual
practice in recognition of these factors, which we believe still apply.
However, to help adjudicators identify which rules they should follow,
we revised the titles and introductory text in final 404.1520c,
404.1527, 416.920c, and 416.927.
Comment: A commenter stated that some of the changes proposed in
the NPRM were not evidence-based or supported by ``current data.'' The
commenter also raised concern about the speed and accuracy of
disability determinations that we would make under the proposed rules,
although the commenter did not specify which policies were of concern.
Response: We appreciate and agree with the commenter's desire for
evidence-based policies, and for efficient, fair, and policy-compliant
disability determinations. We have explained at length in the preamble
the reasons and the support for the policy changes. The primary reason
that we are updating our rules is to reflect the current ways in which
people receive medical treatment. As we implement these final rules, we
will continue our current internal procedures for monitoring the
quality and quantity of determinations to ensure that adjudicators
continue to apply our rules timely and accurately.
Comment: One commenter asserted that we are required to include an
analysis under the Regulatory Flexibility Act because the proposals
would have a significant economic impact on a substantial number of
small entities, such as law firms and non-profit organizations.
Response: We did not adopt this comment because we are only
required to perform a Regulatory Flexibility Act analysis if small
entities will be subject to the proposed rule. The comment did not
explain how these final rules may have a significant economic impact on
a substantial number of small entities. ``Congress `did not intend to
require that every agency consider every indirect effect that any
regulation might have on small businesses in any stratum of the
national economy.'' \71\ Only individuals may receive disability or
blindness benefits under titles II and XVI of the Act. An individual
who applies for disability or blindness benefits may enter into an
agreement with an individual representative to help him or her with the
claim, which may include a fee for services provided.\72\ However, our
current regulations do not recognize any entities as
representatives.\73\ Therefore, as authorized by the Regulatory
Flexibility Act,\74\ we correctly certified below that these final
rules will not have a significant economic impact on a substantial
number of small entities because they affect individuals only.
---------------------------------------------------------------------------

\71\ Cement Kiln Recycling Coalition v. Environmental Protection
Agency, 255 F.3d 855, 869 (D.C. Cir. 2001) (quoting Mid-Texas
Electrical Cooperative, Inc. v. Federal Energy Regulatory
Commission, 773 F.3d 327, 343 (D.C. Cir. 1985)).
\72\ See current 404.1720 and 416.1520.
\73\ See current 404.1705 and 416.1505.
\74\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

Comment: Several commenters stated that the proposed rules would
not make our decisions more accurate or decrease the time it takes for
us to adjudicate a claim. These commenters also asserted that the
proposed rules would create more appeals and delays.

[[Page 5863]]

Response: We disagree that these rules will make our decisions less
accurate or will increase the time it takes for us to adjudicate a
claim. These final rules clarify some existing policies and revise
others for increased transparency and balance. As we discussed at
length above, we expect that the changes we are adopting in these final
rules will further the fair and timely administration of our programs.
We have made a number of changes to the proposed rules to address
concerns raised by commenters about aspects of the proposed rules, and
to enhance our goal of ensuring that we adjudicate claims fairly,
accurately, and in a timely manner.

Executive Order 12866, as Supplemented by Executive Order 13563

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 these final rules.

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 individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

These final rules do not create any new or affect any existing
collections and, therefore, do not require OMB approval under the
Paperwork Reduction Act.

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

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).

Carolyn W. Colvin,
Acting Commissioner of Social Security.

For the reasons set out in the preamble, we are amending part 404
subparts J, P, and Q, and part 416 subparts I, J, and N as set forth
below:

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

Subpart J--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions

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

Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, 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. In Sec. 404.906(b)(2), revise the fourth sentence to read as
follows:

Sec. 404.906 Testing modifications to the disability determination
procedures.

* * * * *
(b) * * *
(2) * * * However, before an initial determination is made in any
case where there is evidence which indicates the existence of a mental
impairment, the decisionmaker will make every reasonable effort to
ensure that a qualified psychiatrist or psychologist has completed the
medical portion of the case review and any applicable residual
functional capacity assessment pursuant to our existing procedures (see
Sec. 404.1617). * * *
* * * * *

0
3. In Sec. 404.942, revise paragraph (f)(1) to read as follows:

Sec. 404.942 Prehearing proceedings and decisions by attorney
advisors.

* * * * *
(f) * * *
(1) Authorize an attorney advisor to exercise the functions
performed by an administrative law judge under Sec. Sec. 404.1513a,
404.1520a, 404.1526, and 404.1546.
* * * * *

Subpart P--Determining Disability and Blindness

0
4. 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) and
(h)-(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) and (h)-(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. Revise Sec. 404.1502 to read as follows:

Sec. 404.1502 Definitions for this subpart.

As used in the subpart--
Acceptable medical source means a medical source who is a:
(1) Licensed physician (medical or osteopathic doctor);
(2) Licensed psychologist, which includes:
(i) A licensed or certified psychologist at the independent
practice level; or
(ii) A licensed or certified school psychologist, or other licensed
or certified individual with another title who performs the same
function as a school psychologist in a school setting, for impairments
of intellectual disability, learning disabilities, and borderline
intellectual functioning only;
(3) Licensed optometrist for impairments of visual disorders, or
measurement of visual acuity and visual fields only, depending on the
scope of practice in the State in which the optometrist practices;
(4) Licensed podiatrist for impairments of the foot, or foot and
ankle only, depending on whether the State in which the podiatrist
practices permits the practice of podiatry on the foot only, or the
foot and ankle;
(5) Qualified speech-language pathologist for speech or language
impairments only. For this source, qualified means that the speech-
language pathologist must be licensed by the State professional
licensing agency, or be fully certified by the State education agency
in the State in which he or she practices, or hold a Certificate of
Clinical Competence in Speech-Language Pathology from the American
Speech-Language-Hearing Association;
(6) Licensed audiologist for impairments of hearing loss, auditory
processing disorders, and balance disorders within the licensed scope
of practice only (with respect to claims filed (see Sec. 404.614) on
or after March 27, 2017);
(7) Licensed Advanced Practice Registered Nurse, or other licensed
advanced practice nurse with another title, for impairments within his
or her licensed scope of practice (only with respect to claims filed
(see Sec. 404.614) on or after March 27, 2017); or
(8) Licensed Physician Assistant for impairments within his or her
licensed

[[Page 5864]]

scope of practice (only with respect to claims filed (see Sec.
404.614) on or after March 27, 2017).
Commissioner means the Commissioner of Social Security or his or
her authorized designee.
Laboratory findings means one or more anatomical, physiological, or
psychological phenomena that can be shown by the use of medically
acceptable laboratory diagnostic techniques. Diagnostic techniques
include chemical tests (such as blood tests), electrophysiological
studies (such as electrocardiograms and electroencephalograms), medical
imaging (such as X-rays), and psychological tests.
Medical source means an individual who is licensed as a healthcare
worker by a State and working within the scope of practice permitted
under State or Federal law, or an individual who is certified by a
State as a speech-language pathologist or a school psychologist and
acting within the scope of practice permitted under State or Federal
law.
Nonmedical source means a source of evidence who is not a medical
source. This includes, but is not limited to:
(1) You;
(2) Educational personnel (for example, school teachers,
counselors, early intervention team members, developmental center
workers, and daycare center workers);
(3) Public and private social welfare agency personnel; and
(4) Family members, caregivers, friends, neighbors, employers, and
clergy.
Objective medical evidence means signs, laboratory findings, or
both.
Signs means one or more anatomical, physiological, or psychological
abnormalities that can be observed, apart from your statements
(symptoms). Signs must be shown by medically acceptable clinical
diagnostic techniques. Psychiatric signs are medically demonstrable
phenomena that indicate specific psychological abnormalities, e.g.,
abnormalities of behavior, mood, thought, memory, orientation,
development, or perception, and must also be shown by observable facts
that can be medically described and evaluated.
State agency means an agency of a State designated by that State to
carry out the disability or blindness determination function.
Symptoms means your own description of your physical or mental
impairment.
We or us means, as appropriate, either the Social Security
Administration or the State agency making the disability or blindness
determination.
You or your means, as appropriate, the person who applies for
benefits or for a period of disability, the person for whom an
application is filed, or the person who is receiving benefits based on
disability or blindness.

Sec. 404.1503 [Amended]

0
6. In Sec. 404.1503, remove paragraph (e).

0
7. Revise Sec. 404.1504 to read as follows:

Sec. 404.1504 Decisions by other governmental agencies and
nongovernmental entities.

Other governmental agencies and nongovernmental entities--such as
the Department of Veterans Affairs, the Department of Defense, the
Department of Labor, the Office of Personnel Management, State
agencies, and private insurers-- make disability, blindness,
employability, Medicaid, workers' compensation, and other benefits
decisions for their own programs using their own rules. Because a
decision by any other governmental agency or a nongovernmental entity
about whether you are disabled, blind, employable, or entitled to any
benefits is based on its rules, it is not binding on us and is not our
decision about whether you are disabled or blind under our rules.
Therefore, in claims filed (see Sec. 404.614) on or after March 27,
2017, we will not provide any analysis in our determination or decision
about a decision made by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind,
employable, or entitled to any benefits. However, we will consider all
of the supporting evidence underlying the other governmental agency or
nongovernmental entity's decision that we receive as evidence in your
claim in accordance with Sec. 404.1513(a)(1) through(4).

Sec. 404.1508 [Removed and reserved]

0
8. Remove and reserve Sec. 404.1508.

0
9. Revise Sec. 404.1512 to read as follows:

Sec. 404.1512 Responsibility for evidence.

(a) Your responsibility.
(1) General. In general, you have to prove to us that you are blind
or disabled. You must inform us about or submit all evidence known to
you that relates to whether or not you are blind or disabled (see Sec.
404.1513). This duty is ongoing and requires you to disclose any
additional related evidence about which you become aware. This duty
applies at each level of the administrative review process, including
the Appeals Council level if the evidence relates to the period on or
before the date of the administrative law judge hearing decision. We
will consider only impairment(s) you say you have or about which we
receive evidence. When you submit evidence received from another
source, you must submit that evidence in its entirety, unless you
previously submitted the same evidence to us or we instruct you
otherwise. If we ask you, you must inform us about:
(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say
that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your
ability to work. In Sec. Sec. 404.1560 through 404.1569, we discuss in
more detail the evidence we need when we consider vocational factors.
(2) Completeness. The evidence in your case record must be complete
and detailed enough to allow us to make a determination or decision
about whether you are disabled or blind. It must allow us to
determine--
(i) The nature and severity of your impairment(s) for any period in
question;
(ii) Whether the duration requirement described in Sec. 404.1509
is met; and
(iii) Your residual functional capacity to do work-related physical
and mental activities, when the evaluation steps described in Sec.
404.1520(e) or (f)(1) apply.
(b) Our responsibility.
(1) Development. Before we make a determination that you are not
disabled, we will develop your complete medical history for at least
the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier
period is necessary or unless you say that your disability began less
than 12 months before you filed your application. We will make every
reasonable effort to help you get medical evidence from your own
medical sources and entities that maintain your medical sources'
evidence when you give us permission to request the reports.
(i) Every reasonable effort means that we will make an initial
request for evidence from your medical source or entity that maintains
your medical source's evidence, and, at any time between 10 and 20
calendar days after the initial request, if the evidence has not been
received, we will make one

[[Page 5865]]

follow-up request to obtain the medical evidence necessary to make a
determination. The medical source or entity that maintains your medical
source's evidence will have a minimum of 10 calendar days from the date
of our follow-up request to reply, unless our experience with that
source indicates that a longer period is advisable in a particular
case.
(ii) Complete medical history means the records of your medical
source(s) covering at least the 12 months preceding the month in which
you file your application. If you say that your disability began less
than 12 months before you filed your application, we will develop your
complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began
earlier. If applicable, we will develop your complete medical history
for the 12-month period prior to the month you were last insured for
disability insurance benefits (see Sec. 404.130), the month ending the
7-year period you may have to establish your disability and you are
applying for widow's or widower's benefits based on disability (see
Sec. 404.335(c)(1)), or the month you attain age 22 and you are
applying for child's benefits based on disability (see Sec. 404.350).
(2) Obtaining a consultative examination. We may ask you to attend
one or more consultative examinations at our expense. See Sec. Sec.
404.1517 through 404.1519t for the rules governing the consultative
examination process. Generally, we will not request a consultative
examination until we have made every reasonable effort to obtain
evidence from your own medical sources. We may order a consultative
examination while awaiting receipt of medical source evidence in some
instances, such as when we know a source is not productive, is
uncooperative, or is unable to provide certain tests or procedures. We
will not evaluate this evidence until we have made every reasonable
effort to obtain evidence from your medical sources.
(3) Other work. In order to determine under Sec. 404.1520(g) that
you are able to adjust to other work, we must provide evidence about
the existence of work in the national economy that you can do (see
Sec. Sec. 404.1560 through 404.1569a), given your residual functional
capacity (which we have already assessed, as described in Sec.
404.1520(e)), age, education, and work experience.

0
10. Revise Sec. 404.1513 to read as follows:

Sec. 404.1513 Categories of evidence.

(a) What we mean by evidence. Subject to the provisions of
paragraph (b), evidence is anything you or anyone else submits to us or
that we obtain that relates to your claim. We consider evidence under
Sec. Sec. 404.1520b, 404.1520c (or under Sec. 404.1527 for claims
filed (see Sec. 404.614) before March 27, 2017). We evaluate evidence
we receive according to the rules pertaining to the relevant category
of evidence. The categories of evidence are:
(1) Objective medical evidence. Objective medical evidence is
medical signs, laboratory findings, or both, as defined in Sec.
404.1502(f).
(2) Medical opinion. A medical opinion is a statement from a
medical source about what you can still do despite your impairment(s)
and whether you have one or more impairment-related limitations or
restrictions in the following abilities:
(i) Your ability to perform physical demands of work activities,
such as sitting, standing, walking, lifting, carrying, pushing,
pulling, or other physical functions (including manipulative or
postural functions, such as reaching, handling, stooping, or
crouching);
(ii) Your ability to perform mental demands of work activities,
such as understanding; remembering; maintaining concentration,
persistence, or pace; carrying out instructions; or responding
appropriately to supervision, co-workers, or work pressures in a work
setting;
(iii) Your ability to perform other demands of work, such as
seeing, hearing, or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as
temperature extremes or fumes. (For claims filed (see Sec. 404.614)
before March 27, 2017, see Sec. 404.1527(a) for the definition of
medical opinion.)
(3) Other medical evidence. Other medical evidence is evidence from
a medical source that is not objective medical evidence or a medical
opinion, including judgments about the nature and severity of your
impairments, your medical history, clinical findings, diagnosis,
treatment prescribed with response, or prognosis. (For claims filed
(see Sec. 404.614) before March 27, 2017, other medical evidence does
not include a diagnosis, prognosis, or a statement that reflects a
judgment(s) about the nature and severity of your impairment(s)).
(4) Evidence from nonmedical sources. Evidence from nonmedical
sources is any information or statement(s) from a nonmedical source
(including you) about any issue in your claim. We may receive evidence
from nonmedical sources either directly from the nonmedical source or
indirectly, such as from forms we receive and our administrative
records.
(5) Prior administrative medical finding. A prior administrative
medical finding is a finding, other than the ultimate determination
about whether you are disabled, about a medical issue made by our
Federal and State agency medical and psychological consultants at a
prior level of review (see Sec. 404.900) in your current claim based
on their review of the evidence in your case record, such as:
(i) The existence and severity of your impairment(s);
(ii) The existence and severity of your symptoms;
(iii) Statements about whether your impairment(s) meets or
medically equals any listing in the Listing of Impairments in Part 404,
Subpart P, Appendix 1;
(iv) Your residual functional capacity;
(v) Whether your impairment(s) meets the duration requirement; and
(vi) How failure to follow prescribed treatment (see Sec.
404.1530) and drug addiction and alcoholism (see Sec. 404.1535) relate
to your claim.
(b) Exceptions for privileged communications.
(1) The privileged communications listed in paragraphs (b)(1)(i)
and (b)(1)(ii) of this section are not evidence, and we will neither
consider nor provide any analysis about them in your determination or
decision. This exception for privileged communications applies equally
whether your representative is an attorney or a non-attorney.
(i) Oral or written communications between you and your
representative that are subject to the attorney-client privilege,
unless you voluntarily disclose the communication to us.
(ii) Your representative's analysis of your claim, unless he or she
voluntarily discloses it to us. This analysis means information that is
subject to the attorney work product doctrine, but it does not include
medical evidence, medical opinions, or any other factual matter that we
may consider in determining whether or not you are entitled to benefits
(see paragraph (b)(2) of this section).
(2) The attorney-client privilege generally protects confidential
communications between an attorney and his or her client that are
related to providing or obtaining legal advice. The attorney work
product doctrine generally protects an attorney's analyses, theories,
mental impressions, and notes. In the context of your

[[Page 5866]]

disability claim, neither the attorney-client privilege nor the
attorney work product doctrine allow you to withhold factual
information, medical opinions, or other medical evidence that we may
consider in determining whether or not you are entitled to benefits.
For example, if you tell your representative about the medical sources
you have seen, your representative cannot refuse to disclose the
identity of those medical sources to us based on the attorney-client
privilege. As another example, if your representative asks a medical
source to complete an opinion form related to your impairment(s),
symptoms, or limitations, your representative cannot withhold the
completed opinion form from us based on the attorney work product
doctrine. The attorney work product doctrine would not protect the
source's opinions on the completed form, regardless of whether or not
your representative used the form in his or her analysis of your claim
or made handwritten notes on the face of the report.

0
11. Add Sec. 404.1513a to read as follows:

Sec. 404.1513a Evidence from our Federal or State agency medical or
psychological consultants.

The following rules apply to our Federal or State agency medical or
psychological consultants that we consult in connection with
administrative law judge hearings and Appeals Council reviews:
(a) 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
medical evidence 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:
(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), he or she will consider
the evidence in your case record and make administrative findings 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 medical
findings 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. See Sec. 404.1513(a)(5).
(2) When a State agency disability examiner makes the initial
determination alone as provided in Sec. 404.1615(c)(3), he or she may
obtain medical evidence from a State agency medical or psychological
consultant about one or more of the medical issues listed in paragraph
(a)(1) of this section. In these cases, the State agency disability
examiner will consider the medical evidence of the State agency medical
or psychological consultant under Sec. Sec. 404.1520b, 404.1520c, and
404.1527.
(3) When a State agency disability examiner makes a reconsideration
determination alone as provided in Sec. 404.1615(c)(3), he or she will
consider prior administrative medical findings made by a State agency
medical or psychological consultant at the initial level of the
administrative review process, and any medical evidence provided by
such consultants at the initial and reconsideration levels, about one
or more of the medical issues listed in paragraph (a)(1)(i) of this
section under Sec. Sec. 404.1520b, 404.1520c, and 404.1527.
(b) Administrative law judges are responsible for reviewing the
evidence and making administrative findings of fact and conclusions of
law. They will consider prior administrative medical findings and
medical evidence from our Federal or State agency medical or
psychological consultants as follows:
(1) Administrative law judges are not required to adopt any prior
administrative medical findings, but they must consider this evidence
according to Sec. Sec. 404.1520b, 404.1520c, and 404.1527, as
appropriate, because our Federal or State agency medical or
psychological consultants are highly qualified and experts in Social
Security disability evaluation.
(2) Administrative law judges may also ask for medical evidence
from expert medical sources. Administrative law judges will consider
this evidence under Sec. Sec. 404.1520b, 404.1520c, and 404.1527, as
appropriate.
(c) When the Appeals Council makes a decision, it will consider
prior administrative medical findings according to the same rules for
considering prior administrative medical findings as administrative law
judges follow under paragraph (b) of this section.

0
12. Revise Sec. 404.1518 (c) to read as follows:

Sec. 404.1518 If you do not appear at a consultative examination.

* * * * *
(c) Objections by your medical source(s). If any of your medical
sources tell you that you should not take the examination or test, you
should tell us at once. In many cases, we may be able to get the
information we need in another way. Your medical source(s) may agree to
another type of examination for the same purpose.

0
13. Revise Sec. 404.1519g (a) to read as follows:

Sec. 404.1519g Who we will select to perform a consultative
examination.

(a) We will purchase a consultative examination only from a
qualified medical source. The medical source may be your own medical
source or another medical source. If you are a child, the medical
source we choose may be a pediatrician.
* * * * *

0
14. Revise Sec. 404.1519h to read as follows:

Sec. 404.1519h Your medical source.

When, in our judgment, your medical source is qualified, equipped,
and willing to perform the additional examination or test(s) for the
fee schedule payment, and generally furnishes complete and timely
reports, your medical source will be the preferred source for the
purchased examination or test(s).

0
15. Revise Sec. 404.1519i to read as follows:

Sec. 404.1519i Other sources for consultative examinations.

We will use a different medical source than your medical source for
a purchased examination or test in situations including, but not
limited to, the following:
(a) Your medical source prefers not to perform such an examination
or does not have the equipment to provide the specific data needed;
(b) There are conflicts or inconsistencies in your file that cannot
be resolved by going back to your medical source;
(c) You prefer a source other than your medical source and have a
good reason for your preference;
(d) We know from prior experience that your medical source may not
be a productive source, such as when he or she has consistently failed
to provide complete or timely reports; or
(e) Your medical source is not a qualified medical source as
defined in Sec. 404.1519g.

0
16. Revise Sec. 404.1519n(c)(6) to read as follows:

[[Page 5867]]

Sec. 404.1519n Informing the medical source of examination
scheduling, report content, and signature requirements.

* * * * *
(c) * * *
(6) A medical opinion. Although we will ordinarily request a
medical opinion as part of the consultative examination process, the
absence of a medical opinion in a consultative examination report will
not make the report incomplete. See Sec. 404.1513(a)(3); and
* * * * *

0
17. In Sec. 404.1520a, revise the second sentence of paragraph (b)(1)
and paragraph (d)(1) to read as follows:

Sec. 404.1520a Evaluation of mental impairments.

* * * * *
(b) * * *
(1) * * * See Sec. 404.1521 for more information about what is
needed to show a medically determinable impairment. * * *
* * * * *
(d) * * *
(1) If we rate the degrees of your limitation as ``none'' or
``mild,'' we will generally conclude that your impairment(s) is not
severe, unless the evidence otherwise indicates that there is more than
a minimal limitation in your ability to do basic work activities (see
Sec. 404.1522).
* * * * *

0
18. Revise Sec. 404.1520b to read as follows:

Sec. 404.1520b How we consider evidence.

After we review all of the evidence relevant to your claim, we make
findings about what the evidence shows.
(a) Complete and consistent evidence. If all of the evidence we
receive, including all medical opinion(s), is consistent and there is
sufficient evidence for us to determine whether you are disabled, we
will make our determination or decision based on that evidence.
(b) Incomplete or inconsistent evidence. In some situations, we may
not be able to make our determination or decision because the evidence
in your case record is insufficient or inconsistent. We consider
evidence to be insufficient when it does not contain all the
information we need to make our determination or decision. We consider
evidence to be inconsistent when it conflicts with other evidence,
contains an internal conflict, is ambiguous, or when the medical
evidence does not appear to be based on medically acceptable clinical
or laboratory diagnostic techniques. If the evidence in your case
record is insufficient or inconsistent, we may need to take the
additional actions in paragraphs (b)(1) through (4) of this section.
(1) If any of the evidence in your case record, including any
medical opinion(s) and prior administrative medical findings, is
inconsistent, we will consider the relevant evidence and see if we can
determine whether you are disabled based on the evidence we have.
(2) If the evidence is consistent but we have insufficient evidence
to determine whether you are disabled, or if after considering the
evidence we determine we cannot reach a conclusion about whether you
are disabled, we will determine the best way to resolve the
inconsistency or insufficiency. The action(s) we take will depend on
the nature of the inconsistency or insufficiency. We will try to
resolve the inconsistency or insufficiency by taking any one or more of
the actions listed in paragraphs (b)(2)(i) through (b)(2)(iv) of this
section. We might not take all of the actions listed below. We will
consider any additional evidence we receive together with the evidence
we already have.
(i) We may recontact your medical source. We may choose not to seek
additional evidence or clarification from a medical source if we know
from experience that the source either cannot or will not provide the
necessary evidence. If we obtain medical evidence over the telephone,
we will send the telephone report to the source for review, signature,
and return;
(ii) We may request additional existing evidence;
(iii) We may ask you to undergo a consultative examination at our
expense (see Sec. Sec. 404.1517 through 404.1519t); or
(iv) We may ask you or others for more information.
(3) When there are inconsistencies in the evidence that we cannot
resolve or when, despite efforts to obtain additional evidence, the
evidence is insufficient to determine whether you are disabled, we will
make a determination or decision based on the evidence we have.
(c) Evidence that is inherently neither valuable nor persuasive.
Paragraphs (c)(1) through (c)(3) apply in claims filed (see Sec.
404.614) on or after March 27, 2017. Because the evidence listed in
paragraphs (c)(1) through (c)(3) of this section is inherently neither
valuable nor persuasive to the issue of whether you are disabled or
blind under the Act, we will not provide any analysis about how we
considered such evidence in our determination or decision, even under
Sec. 404.1520c:
(1) Decisions by other governmental agencies and nongovernmental
entities. See Sec. 404.1504.
(2) Disability examiner findings. Findings made by a State agency
disability examiner made at a previous level of adjudication about a
medical issue, vocational issue, or the ultimate determination about
whether you are disabled.
(3) Statements on issues reserved to the Commissioner. The
statements listed in paragraphs (c)(3)(i) through (c)(3)(viii) of this
section would direct our determination or decision that you are or are
not disabled or blind within the meaning of the Act, but we are
responsible for making the determination or decision about whether you
are disabled or blind:
(i) Statements that you are or are not disabled, blind, able to
work, or able to perform regular or continuing work;
(ii) Statements about whether or not you have a severe
impairment(s);
(iii) Statements about whether or not your impairment(s) meets the
duration requirement (see Sec. 404.1509);
(iv) Statements about whether or not your impairment(s) meets or
medically equals any listing in the Listing of Impairments in Part 404,
Subpart P, Appendix 1;
(v) Statements about what your residual functional capacity is
using our programmatic terms about the functional exertional levels in
Part 404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions
about your functional abilities and limitations (see Sec. 404.1545);
(vi) Statements about whether or not your residual functional
capacity prevents you from doing past relevant work (see Sec.
404.1560);
(vii) Statements that you do or do not meet the requirements of a
medical-vocational rule in Part 404, Subpart P, Appendix 2; and
(viii) Statements about whether or not your disability continues or
ends when we conduct a continuing disability review (see Sec.
404.1594).

0
19. Add Sec. 404.1520c to read as follows:

Sec. 404.1520c How we consider and articulate medical opinions and
prior administrative medical findings for claims filed on or after
March 27, 2017.

For claims filed (see Sec. 404.614) on or after March 27, 2017,
the rules in this section apply. For claims filed before March 27,
2017, the rules in Sec. 404.1527 apply.
(a) How we consider medical opinions and prior administrative
medical findings. We will not defer or give any specific evidentiary
weight, including

[[Page 5868]]

controlling weight, to any medical opinion(s) or prior administrative
medical finding(s), including those from your medical sources. When a
medical source provides one or more medical opinions or prior
administrative medical findings, we will consider those medical
opinions or prior administrative medical findings from that medical
source together using the factors listed in paragraphs (c)(1) through
(c)(5) of this section, as appropriate. The most important factors we
consider when we evaluate the persuasiveness of medical opinions and
prior administrative medical findings are supportability (paragraph
(c)(1) of this section) and consistency (paragraph (c)(2) of this
section). We will articulate how we considered the medical opinions and
prior administrative medical findings in your claim according to
paragraph (b) of this section.
(b) How we articulate our consideration of medical opinions and
prior administrative medical findings. We will articulate in our
determination or decision how persuasive we find all of the medical
opinions and all of the prior administrative medical findings in your
case record. Our articulation requirements are as follows:
(1) Source-level articulation. Because many claims have voluminous
case records containing many types of evidence from different sources,
it is not administratively feasible for us to articulate in each
determination or decision how we considered all of the factors for all
of the medical opinions and prior administrative medical findings in
your case record. Instead, when a medical source provides multiple
medical opinion(s) or prior administrative medical finding(s), we will
articulate how we considered the medical opinions or prior
administrative medical findings from that medical source together in a
single analysis using the factors listed in paragraphs (c)(1) through
(c)(5) of this section, as appropriate. We are not required to
articulate how we considered each medical opinion or prior
administrative medical finding from one medical source individually.
(2) Most important factors. The factors of supportability
(paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of
this section) are the most important factors we consider when we
determine how persuasive we find a medical source's medical opinions or
prior administrative medical findings to be. Therefore, we will explain
how we considered the supportability and consistency factors for a
medical source's medical opinions or prior administrative medical
findings in your determination or decision. We may, but are not
required to, explain how we considered the factors in paragraphs (c)(3)
through (c)(5) of this section, as appropriate, when we articulate how
we consider medical opinions and prior administrative medical findings
in your case record.
(3) Equally persuasive medical opinions or prior administrative
medical findings about the same issue. When we find that two or more
medical opinions or prior administrative medical findings about the
same issue are both equally well-supported (paragraph (c)(1) of this
section) and consistent with the record (paragraph (c)(2) of this
section) but are not exactly the same, we will articulate how we
considered the other most persuasive factors in paragraphs (c)(3)
through (c)(5) of this section for those medical opinions or prior
administrative medical findings in your determination or decision.
(c) Factors. We will consider the following factors when we
consider the medical opinion(s) and prior administrative medical
finding(s) in your case:
(1) Supportability. The more relevant the objective medical
evidence and supporting explanations presented by a medical source are
to support his or her medical opinion(s) or prior administrative
medical finding(s), the more persuasive the medical opinions or prior
administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.
(3) Relationship with the claimant. This factor combines
consideration of the issues in paragraphs (c)(3)(i) through (v) of this
section.
(i) Length of the treatment relationship. The length of time a
medical source has treated you may help demonstrate whether the medical
source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with
the medical source may help demonstrate whether the medical source has
a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for
treatment you received from the medical source may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or ordered
from specialists or independent laboratories may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better
understanding of your impairment(s) if he or she examines you than if
the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative
medical finding of a medical source who has received advanced education
and training to become a specialist may be more persuasive about
medical issues related to his or her area of specialty than the medical
opinion or prior administrative medical finding of a medical source who
is not a specialist in the relevant area of specialty.
(5) Other factors. We will consider other factors that tend to
support or contradict a medical opinion or prior administrative medical
finding. This includes, but is not limited to, evidence showing a
medical source has familiarity with the other evidence in the claim or
an understanding of our disability program's policies and evidentiary
requirements. When we consider a medical source's familiarity with the
other evidence in a claim, we will also consider whether new evidence
we receive after the medical source made his or her medical opinion or
prior administrative medical finding makes the medical opinion or prior
administrative medical finding more or less persuasive.
(d) Evidence from nonmedical sources. We are not required to
articulate how we considered evidence from nonmedical sources using the
requirements in paragraphs (a)-(c) in this section.

0
20. Revise Sec. 404.1521 to read as follows:

Sec. 404.1521 Establishing that you have a medically determinable
impairment(s).

If you are not doing substantial gainful activity, we will then
determine whether you have a medically determinable physical or mental
impairment(s) (see Sec. 404.1520(a)(4)(ii)). Your impairment(s) must
result from anatomical, physiological, or psychological abnormalities
that can be shown by medically acceptable clinical and laboratory
diagnostic techniques. Therefore, a physical or mental impairment must
be established by objective medical evidence from an

[[Page 5869]]

acceptable medical source. We will not use your statement of symptoms,
a diagnosis, or a medical opinion to establish the existence of an
impairment(s). After we establish that you have a medically
determinable impairment(s), then we determine whether your
impairment(s) is severe.

0
21. Revise Sec. 404.1522 to read as follows:

Sec. 404.1522 What we mean by an impairment(s) that is not severe.

(a) Non-severe impairment(s). An impairment or combination of
impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work
activities, we mean the abilities and aptitudes necessary to do most
jobs. Examples of these include--
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.

0
22. Revise Sec. 404.1523 to read as follows:

Sec. 404.1523 Multiple impairments.

(a) Unrelated severe impairments. We cannot combine two or more
unrelated severe impairments to meet the 12-month duration test. If you
have a severe impairment(s) and then develop another unrelated severe
impairment(s) but neither one is expected to last for 12 months, we
cannot find you disabled, even though the two impairments in
combination last for 12 months.
(b) Concurrent impairments. If you have two or more concurrent
impairments that, when considered in combination, are severe, we must
determine whether the combined effect of your impairments can be
expected to continue to be severe for 12 months. If one or more of your
impairments improves or is expected to improve within 12 months, so
that the combined effect of your remaining impairments is no longer
severe, we will find that you do not meet the 12-month duration test.
(c) Combined effect. In determining whether your physical or mental
impairment or impairments are of a sufficient medical severity that
such impairment or impairments could be the basis of eligibility under
the law, we will consider the combined effect of all of your
impairments without regard to whether any such impairment, if
considered separately, would be of sufficient severity. If we do find a
medically severe combination of impairments, we will consider the
combined impact of the impairments throughout the disability
determination process. If we do not find that you have a medically
severe combination of impairments, we will determine that you are not
disabled (see Sec. 404.1520).

0
23. In Sec. 404.1525, revise the last sentence in paragraph (c)(2) to
read as follow

Sec. 404.1525 Listing of Impairments in appendix 1.

* * * * *
(c) * * *
(2) * * * Even if we do not include specific criteria for
establishing a diagnosis or confirming the existence of your
impairment, you must still show that you have a severe medically
determinable impairment(s), as defined in Sec. 404.1521.
* * * * *

0
24. In Sec. 404.1526, revise paragraphs (d) and (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. See Sec. 404.1616 of this part for the
necessary qualifications for medical consultants and psychological
consultants and the limitations on what medical consultants who are not
physicians can evaluate.
(e) Who is responsible for determining medical equivalence?
(1) 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.
(2) 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 Policy or his or her delegate.
(3) 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
25. Revise Sec. 404.1527 to read as follows:

Sec. 404.1527 Evaluating opinion evidence for claims filed before
March 27, 2017.

For claims filed (see Sec. 404.614) before March 27, 2017, the
rules in this section apply. For claims filed on or after March 27,
2017, the rules in Sec. 404.1520c apply.
(a) Definitions.
(1) Medical opinions. Medical opinions are statements from
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.
(2) Treating source. Treating source means your own acceptable
medical source who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you. Generally, we will consider that you have an
ongoing treatment relationship with an acceptable medical source when
the medical evidence establishes that you see, or have seen, the source
with a frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for your medical condition(s).
We may consider an acceptable medical source who has treated or
evaluated you only a few times or only after long intervals (e.g.,
twice a year) to be your treating source if the nature and frequency of
the treatment or evaluation is typical for your condition(s). We will
not consider an acceptable medical source to be your treating source if
your relationship with the source is not based on your medical need for
treatment or evaluation, but solely on your need to obtain a report in
support of your claim for disability. In such a case, we will consider
the acceptable medical source to be a nontreating source.
(b) How we consider medical opinions. In determining whether you
are disabled, we will always consider the medical opinions in your case
record together with the rest of the relevant evidence we receive. See
Sec. 404.1520b.
(c) How we weigh medical opinions. Regardless of its source, we
will

[[Page 5870]]

evaluate every medical opinion we receive. Unless we give a treating
source's medical opinion controlling weight under paragraph (c)(2) of
this section, we consider all of the following factors in deciding the
weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
medical opinion of a source who has examined you than to the medical
opinion of a medical source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
medical opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's medical opinion
on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. When we do not give the treating source's medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i)
and (c)(2)(ii) of this section, as well as the factors in paragraphs
(c)(3) through (c)(6) of this section in determining the weight to give
the medical opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's
medical opinion.
(i) Length of the treatment relationship and the frequency of
examination. Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more
weight we will give to the source's medical opinion. When the treating
source has seen you a number of times and long enough to have obtained
a longitudinal picture of your impairment, we will give the medical
source's medical opinion more weight than we would give it if it were
from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally,
the more knowledge a treating source has about your impairment(s) the
more weight we will give to the source's medical opinion. We will look
at the treatment the source has provided and at the kinds and extent of
examinations and testing the source has performed or ordered from
specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during
your eye examinations, we will consider his or her medical opinion with
respect to your neck pain, but we will give it less weight than that of
another physician who has treated you for the neck pain. When the
treating source has reasonable knowledge of your impairment(s), we will
give the source's medical opinion more weight than we would give it if
it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion.
The better an explanation a source provides for a medical opinion, the
more weight we will give that medical opinion. Furthermore, because
nonexamining sources have no examining or treating relationship with
you, the weight we will give their medical opinions will depend on the
degree to which they provide supporting explanations for their medical
opinions. We will evaluate the degree to which these medical opinions
consider all of the pertinent evidence in your claim, including medical
opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent a medical opinion
is with the record as a whole, the more weight we will give to that
medical opinion.
(5) Specialization. We generally give more weight to the medical
opinion of a specialist about medical issues related to his or her area
of specialty than to the medical opinion of a source who is not a
specialist.
(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the medical opinion. For example, the amount of
understanding of our disability programs and their evidentiary
requirements that a medical source has, regardless of the source of
that understanding, and the extent to which a medical source is
familiar with the other information in your case record are relevant
factors that we will consider in deciding the weight to give to a
medical opinion.
(d) Medical source opinions on issues reserved to the Commissioner.
Opinions on some issues, such as the examples that follow, are not
medical opinions, as described in paragraph (a)(1) of this section, but
are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case; i.e.,
that would direct the determination or decision of disability.
(1) Opinions that you are disabled. We are responsible for making
the determination or decision about whether you meet the statutory
definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source's statement
that you are disabled. A statement by a medical source that you are
``disabled'' or ``unable to work'' does not mean that we will determine
that you are disabled.
(2) Other opinions on issues reserved to the Commissioner. We use
medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s).
Although we consider opinions from medical sources on issues such as
whether your impairment(s) meets or equals the requirements of any
impairment(s) in the Listing of Impairments in appendix 1 to this
subpart, your residual functional capacity (see Sec. Sec. 404.1545 and
404.1546), or the application of vocational factors, the final
responsibility for deciding these issues is reserved to the
Commissioner.
(3) We will not give any special significance to the source of an
opinion on issues reserved to the Commissioner described in paragraphs
(d)(1) and (d)(2) of this section.
(e) Evidence from our Federal or State agency medical or
psychological consultants. The rules in Sec. 404.1513a apply except
that when an administrative law judge gives controlling weight to a
treating source's medical opinion, the administrative law judge is not
required to explain in the decision the weight he or she gave to the
prior administrative medical findings in the claim.
(f) Opinions from medical sources who are not acceptable medical
sources and from nonmedical sources.
(1) Consideration. Opinions from medical sources who are not
acceptable medical sources and from nonmedical sources may reflect the
source's judgment about some of the same issues addressed in medical
opinions from acceptable medical sources. Although we will consider
these opinions using the same factors as listed in paragraph (c)(1)
through (c)(6) in this section, not every factor for weighing opinion
evidence will apply in every case because the evaluation of an opinion
from a medical source who is not an acceptable medical source or from a
nonmedical source depends on the

[[Page 5871]]

particular facts in each case. Depending on the particular facts in a
case, and after applying the factors for weighing opinion evidence, an
opinion from a medical source who is not an acceptable medical source
or from a nonmedical source may outweigh the medical opinion of an
acceptable medical source, including the medical opinion of a treating
source. For example, it may be appropriate to give more weight to the
opinion of a medical source who is not an ``acceptable medical source''
if he or she has seen the individual more often than the treating
source, has provided better supporting evidence and a better
explanation for the opinion, and the opinion is more consistent with
the evidence as a whole.
(2) Articulation. The adjudicator generally should explain the
weight given to opinions from these sources or otherwise ensure that
the discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of the
case. In addition, when an adjudicator determines that an opinion from
such a source is entitled to greater weight than a medical opinion from
a treating source, the adjudicator must explain the reasons in the
notice of decision in hearing cases and in the notice of determination
(that is, in the personalized disability notice) at the initial and
reconsideration levels, if the determination is less than fully
favorable.

Sec. 404.1528 [Removed and Reserved]

0
26. Remove and reserve Sec. 404.1528.

0
27. In Sec. 404.1529, revise paragraph (a), the second and third
sentences of paragraph (c)(1), the introductory text of paragraph
(c)(3), and the third sentence of paragraph (c)(4) to read as follows:

Sec. 404.1529 How we evaluate symptoms, including pain.

(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence. We will consider all of your
statements about your symptoms, such as pain, and any description your
medical sources or nonmedical sources may provide about how the
symptoms affect your activities of daily living and your ability to
work. However, statements about your pain or other symptoms will not
alone establish that you are disabled. There must be objective medical
evidence from an acceptable medical source that shows you have a
medical impairment(s) which could reasonably be expected to produce the
pain or other symptoms alleged and that, when considered with all of
the other evidence (including statements about the intensity and
persistence of your pain or other symptoms which may reasonably be
accepted as consistent with the medical signs and laboratory findings),
would lead to a conclusion that you are disabled. In evaluating the
intensity and persistence of your symptoms, including pain, we will
consider all of the available evidence, including your medical history,
the medical signs and laboratory findings, and statements about how
your symptoms affect you. We will then determine the extent to which
your alleged functional limitations and restrictions due to pain or
other symptoms can reasonably be accepted as consistent with the
medical signs and laboratory findings and other evidence to decide how
your symptoms affect your ability to work.
* * * * *
(c) * * *
(1) * * * In evaluating the intensity and persistence of your
symptoms, we consider all of the available evidence from your medical
sources and nonmedical sources about how your symptoms affect you. We
also consider the medical opinions as explained in Sec. 404.1520c. * *
*
* * * * *
(3) Consideration of other evidence. Because symptoms sometimes
suggest a greater severity of impairment than can be shown by objective
medical evidence alone, we will carefully consider any other
information you may submit about your symptoms. The information that
your medical sources or nonmedical sources provide about your pain or
other symptoms (e.g., what may precipitate or aggravate your symptoms,
what medications, treatments or other methods you use to alleviate
them, and how the symptoms may affect your pattern of daily living) is
also an important indicator of the intensity and persistence of your
symptoms. Because symptoms, such as pain, are subjective and difficult
to quantify, any symptom-related functional limitations and
restrictions that your medical sources or nonmedical sources report,
which can reasonably be accepted as consistent with the objective
medical evidence and other evidence, will be taken into account as
explained in paragraph (c)(4) of this section in reaching a conclusion
as to whether you are disabled. We will consider all of the evidence
presented, including information about your prior work record, your
statements about your symptoms, evidence submitted by your medical
sources, and observations by our employees and other persons. Section
404.1520c explains in detail how we consider medical opinions and prior
administrative medical findings about the nature and severity of your
impairment(s) and any related symptoms, such as pain. Factors relevant
to your symptoms, such as pain, which we will consider include:
* * * * *
(4) * * * We will consider whether there are any inconsistencies in
the evidence and the extent to which there are any conflicts between
your statements and the rest of the evidence, including your history,
the signs and laboratory findings, and statements by your medical
sources or other persons about how your symptoms affect you. * * *
* * * * *

0
28. Revise Sec. 404.1530(a) to read as follows:

Sec. 404.1530 Need to follow prescribed treatment.

(a) What treatment you must follow. In order to get benefits, you
must follow treatment prescribed by your medical source(s) if this
treatment is expected to restore your ability to work.
* * * * *

0
29. Amend Sec. 404.1579 by revising the second sentence of paragraph
(b)(1) and the second sentence of paragraph (b)(4) to read as follows:

Sec. 404.1579 How we will determine whether your disability continues
or ends.

* * * * *
(b) * * *
(1) * * * A determination that there has been a decrease in medical
severity must be based on improvement in the symptoms, signs, and/or
laboratory findings associated with your impairment(s). * * *
* * * * *
(4) * * * We will consider all evidence you submit and that we
obtain from your medical sources and nonmedical sources. * * *
* * * * *

0
30. Amend Sec. 404.1594 by revising the second sentence of paragraph
(b)(1), the sixth sentence in Example 1, the second sentence of
paragraph (b)(6), and the fourth sentence of paragraph (c)(3)(v) to
read as follows:

Sec. 404.1594 How we will determine whether your disability continues
or ends.

* * * * *
(b) * * *
(1) * * * A determination that there has been a decrease in medical
severity

[[Page 5872]]

must be based on improvement in the symptoms, signs, and/or laboratory
findings associated with your impairment(s).

Example 1: * * * When we reviewed your claim, your medical
source, who has treated you, reported that he or she had seen you
regularly every 2 to 3 months for the past 2 years. * * *
* * * * *
(6) * * * We will consider all evidence you submit and that we
obtain from your medical sources and nonmedical sources. * * *
* * * * *
(c) * * *
(3) * * *
(v) * * * If you are able to engage in substantial gainful
activity, we will determine whether an attempt should be made to
reconstruct those portions of the missing file that were relevant to
our most recent favorable medical decision (e.g., work history, medical
evidence, and the results of consultative examinations). * * *
* * * * *

0
31. Amend Appendix 1 to subpart P of part 404as follows:
0
a. Revise the second, third, and fourth sentences of 2.00B.1.a;
0
b. Revise 2.00B.1.b;
0
c. Revise 2.00B.1.c;
0
d. Revise the fourth sentence of 7.00H;
0
e. Revise the second sentence of 8.00C.3;
0
f. Revise the first sentence 8.00E.3.a;
0
g. Revise 12.00C.1;
0
h. Revise the fourth sentence of 14.00H;
0
i. Revise the second, third, and fourth sentences of 102.00B.1.a;
0
j. Revise 102.00B.1.b;
0
k. Revise 102.00B.1.c;
0
l. Revise the fourth sentence of 107.00G;
0
m. Revise the second sentence of 108.00C.3.;
0
n. Revise the first sentence 108.00E.3.a;
0
o. Revise 112.00.C.1;
0
p. Revise the fourth sentence of 114.00H.
The revisions read as follows:

Appendix 1 to Subpart P of Part 404--

2.00 * * *
B. * * *
1. * * *
a. * * * We generally require both an otologic examination and
audiometric testing to establish that you have a medically
determinable impairment that causes your hearing loss. You should
have this audiometric testing within 2 months of the otologic
examination. Once we have evidence that you have a medically
determinable impairment, we can use the results of later audiometric
testing to assess the severity of your hearing loss without another
otologic examination. * * *
b. The otologic examination must be performed by a licensed
physician (medical or osteopathic doctor) or audiologist. It must
include your medical history, your description of how your hearing
loss affects you, and the physician's or audiologist's description
of the appearance of the external ears (pinnae and external ear
canals), evaluation of the tympanic membranes, and assessment of any
middle ear abnormalities.
c. Audiometric testing must be performed by, or under the direct
supervision of, a licensed audiologist or an otolaryngologist.
* * * * *
7.00 * * *
H. * * * (See sections 404.1521, 404.1529, 416.921, and 416.929
of this chapter.) * * *
* * * * *
8.00 * * *
C. * * *
3. * * * We assess the impact of symptoms as explained in
Sec. Sec. 404.1521, 404.1529, 416.921, and 416.929 of this chapter.
* * *
* * * * *
E. * * *
3. * * *
a. General. We need documentation from an acceptable medical
source to establish that you have a medically determinable
impairment.* * *
12.00 * * *
C. * * *
1. General. We need objective medical evidence from an
acceptable medical source to establish that you have a medically
determinable mental disorder. We also need evidence to assess the
severity of your mental disorder and its effects on your ability to
function in a work setting. We will determine the extent and kinds
of evidence we need from medical and nonmedical sources based on the
individual facts about your disorder. For additional evidence
requirements for intellectual disorder (12.05), see 12.00H. For our
basic rules on evidence, see Sec. Sec. 404.1512, 404.1513,
404.1520b, 416.912, 416.913, and 416.920b of this chapter. For our
rules on evaluating medical opinions, see Sec. Sec. 404.1520c,
404.1527, 416.920c, and 416.927 of this chapter. For our rules on
evidence about your symptoms, see Sec. Sec. 404.1529 and 416.929 of
this chapter.
* * * * *
14.00 * * *
H. * * * See Sec. Sec. 404.1521, 404.1529, 416.921, and
416.929. * * *
* * * * *
102.00 * * *
B. * * *
1. * * *
a. * * * We generally require both an otologic examination and
audiometric testing to establish that you have a medically
determinable impairment that causes your hearing loss. You should
have this audiometric testing within 2 months of the otologic
examination. Once we have evidence that you have a medically
determinable impairment, we can use the results of later audiometric
testing to assess the severity of your hearing loss without another
otologic examination. * * *
b. The otologic examination must be performed by a licensed
physician (medical or osteopathic doctor) or audiologist. It must
include your medical history, your description of how your hearing
loss affects you, and the physician's or audiologist's description
of the appearance of the external ears (pinnae and external ear
canals), evaluation of the tympanic membranes, and assessment of any
middle ear abnormalities.
c. Audiometric testing must be performed by, or under the direct
supervision of, a licensed audiologist or an otolaryngologist.
* * * * *
107.00 * * *
G. * * * (See sections 416.921 and 416.929 of this chapter.) * *
*
* * * * *
108.00. * * *
C. * * *
3. * * * We assess the impact of symptoms as explained in
Sec. Sec. 416.921 and 416.929 of this chapter.
* * * * *
E. * * *
3. * * *
a. General. We need documentation from an acceptable medical
source to establish that you have a medically determinable
impairment.* * *
* * * * *
112.00 * * *
C. * * *
1. General. We need objective medical evidence from an
acceptable medical source to establish that you have a medically
determinable mental disorder. We also need evidence to assess the
severity of your mental disorder and its effects on your ability to
function age-appropriately. We will determine the extent and kinds
of evidence we need from medical and nonmedical sources based on the
individual facts about your disorder. For additional evidence
requirements for intellectual disorder (112.05), see 112.00H. For
our basic rules on evidence, see Sec. Sec. 416.912, 416.913, and
416.920b of this chapter. For our rules on evaluating medical
opinions, see Sec. Sec. 416.1520c and 416.927 of this chapter. For
our rules on evidence about your symptoms, see Sec. 416.929 of this
chapter.
* * * * *
114.00 * * *
H. * * * See Sec. Sec. 416.921 and 416.929. * * *
* * * * *

Subpart Q--Determinations of Disability

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

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

Sec. 404.1615 [Amended]

0
33. In Sec. 404.1615, remove paragraph (d) and redesignate paragraphs
(e) through (g) as paragraphs (d) through (f).

[[Page 5873]]

0
34. Revise Sec. 404.1616 to read as follows:

Sec. 404.1616 Medical consultants and psychological consultants.

(a) What is a medical consultant? A medical consultant is a member
of a team that makes disability determinations in a State agency (see
Sec. 404.1615), or who is a member of a team that makes disability
determinations for us when we make disability determinations ourselves.
The medical consultant completes the medical portion of the case review
and any applicable residual functional capacity assessment about all
physical impairment(s) in a claim.
(b) What qualifications must a medical consultant have? A medical
consultant is a licensed physician, as defined in Sec. 404.1502(a)(1).
(c) What is a psychological consultant? A psychological consultant
is a member of a team that makes disability determinations in a State
agency (see Sec. 404.1615), or who is a member of a team that makes
disability determinations for us when we make disability determinations
ourselves. The psychological consultant completes the medical portion
of the case review and any applicable residual functional capacity
assessment about all mental impairment(s) in a claim. When we are
unable to obtain the services of a qualified psychiatrist or
psychologist despite making every reasonable effort (see Sec.
404.1617) in a claim involving a mental impairment(s), a medical
consultant will evaluate the mental impairment(s).
(d) What qualifications must a psychological consultant have? A
psychological consultant can be either a licensed psychiatrist or
psychologist. We will only consider a psychologist qualified to be a
psychological consultant if he or she:
(1) Is licensed or certified as a psychologist at the independent
practice level of psychology by the State in which he or she practices;
and
(2)(i) Possesses a doctorate degree in psychology from a program in
clinical psychology of an educational institution accredited by an
organization recognized by the Council on Post-Secondary Accreditation;
or
(ii) Is listed in a national register of health service providers
in psychology which the Commissioner of Social Security deems
appropriate; and
(3) Possesses 2 years of supervised clinical experience as a
psychologist in health service, at least 1 year of which is post-
masters degree.
(e) Cases involving both physical and mental impairments. In a case
where there is evidence of both physical and mental impairments, the
medical consultant will evaluate the physical impairments in accordance
with paragraph (a) of this section, and the psychological consultant
will evaluate the mental impairment(s) in accordance with paragraph (c)
of this section.

0
35. In Sec. 404.1617, revise the section heading and paragraph (a) to
read as follows:

Sec. 404.1617 Reasonable efforts to obtain review by a physician,
psychiatrist, and psychologist.

(a) When the evidence of record indicates the existence of a
physical impairment, the State agency must make every reasonable effort
to ensure that a medical consultant completes the medical portion of
the case review and any applicable residual functional capacity
assessment. When the evidence of record indicates the existence of a
mental impairment, the State agency must make every reasonable effort
to ensure that a psychological consultant completes the medical portion
of the case review and any applicable residual functional capacity
assessment. The State agency must determine if additional physicians,
psychiatrists, and psychologists are needed to make the necessary
reviews. When it does not have sufficient resources to make the
necessary reviews, the State agency must attempt to obtain the
resources needed. If the State agency is unable to obtain additional
physicians, psychiatrists, and psychologists because of low salary
rates or fee schedules, it should attempt to raise the State agency's
levels of compensation to meet the prevailing rates for these services.
If these efforts are unsuccessful, the State agency will seek
assistance from us. We will assist the State agency as necessary. We
will also monitor the State agency's efforts and where the State agency
is unable to obtain the necessary services, we will make every
reasonable effort to provide the services using Federal resources.
* * * * *

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

Subpart I--Determining Disability and Blindness

0
36. 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
37. Revise Sec. 416.902 to read as follows:

Sec. 416.902 Definitions for this subpart.

As used in the subpart--
(a) Acceptable medical source means a medical source who is a:
(1) Licensed physician (medical or osteopathic doctor);
(2) Licensed psychologist, which includes:
(i) A licensed or certified psychologist at the independent
practice level; or
(ii) A licensed or certified school psychologist, or other licensed
or certified individual with another title who performs the same
function as a school psychologist in a school setting, for impairments
of intellectual disability, learning disabilities, and borderline
intellectual functioning only;
(3) Licensed optometrist for impairments of visual disorders, or
measurement of visual acuity and visual fields only, depending on the
scope of practice in the State in which the optometrist practices;
(4) Licensed podiatrist for impairments of the foot, or foot and
ankle only, depending on whether the State in which the podiatrist
practices permits the practice of podiatry on the foot only, or the
foot and ankle;
(5) Qualified speech-language pathologist for speech or language
impairments only. For this source, qualified means that the speech-
language pathologist must be licensed by the State professional
licensing agency, or be fully certified by the State education agency
in the State in which he or she practices, or hold a Certificate of
Clinical Competence in Speech-Language Pathology from the American
Speech-Language-Hearing Association;
(6) Licensed audiologist for impairments of for impairments of
hearing loss, auditory processing disorders, and balance disorders
within the licensed scope of practice only (with respect to claims
filed (see Sec. 416.325) on or after March 27, 2017);
(7) Licensed Advanced Practice Registered Nurse, or other licensed
advanced practice nurse with another title, for impairments within his
or her licensed scope of practice (only with respect to claims filed
(see Sec. 416.325) on or after March 27, 2017); or
(8) Licensed Physician Assistant for impairments within his or her
licensed scope of practice (only with respect to claims filed (see
Sec. 416.325) on or after March 27, 2017).
(b) Adult means a person who is age 18 or older.

[[Page 5874]]

(c) Child means a person who has not attained age 18.
(d) Commissioner means the Commissioner of Social Security or his
or her authorized designee.
(e) Disability redetermination means a redetermination of your
eligibility based on disability using the rules for new applicants
appropriate to your age, except the rules pertaining to performance of
substantial gainful activity. For individuals who are working and for
whom a disability redetermination is required, we will apply the rules
in Sec. Sec. 416.260 through 416.269. In conducting a disability
redetermination, we will not use the rules for determining whether
disability continues set forth in Sec. 416.994 or Sec. 416.994a. (See
Sec. 416.987.)
(f) Impairment(s) means a medically determinable physical or mental
impairment or a combination of medically determinable physical or
mental impairments.
(g) Laboratory findings means one or more anatomical,
physiological, or psychological phenomena that can be shown by the use
of medically acceptable laboratory diagnostic techniques. Diagnostic
techniques include chemical tests (such as blood tests),
electrophysiological studies (such as electrocardiograms and
electroencephalograms), medical imaging (such as X-rays), and
psychological tests.
(h) Marked and severe functional limitations, when used as a
phrase, means the standard of disability in the Social Security Act for
children claiming SSI benefits based on disability. It is a level of
severity that meets, medically equals, or functionally equals the
listings. (See Sec. Sec. 416.906, 416.924, and 416.926a.) The words
``marked'' and ``severe'' are also separate terms used throughout this
subpart to describe measures of functional limitations; the term
``marked'' is also used in the listings. (See Sec. Sec. 416.924 and
416.926a.) The meaning of the words ``marked'' and ``severe'' when used
as part of the phrase marked and severe functional limitations is not
the same as the meaning of the separate terms ``marked'' and ``severe''
used elsewhere in 404 and 416. (See Sec. Sec. 416.924(c) and
416.926a(e).)
(i) Medical source means an individual who is licensed as a
healthcare worker by a State and working within the scope of practice
permitted under State or Federal law, or an individual who is certified
by a State as a speech-language pathologist or a school psychologist
and acting within the scope of practice permitted under State or
Federal law.
(j) Nonmedical source means a source of evidence who is not a
medical source. This includes, but is not limited to:
(1) You;
(2) Educational personnel (for example, school teachers,
counselors, early intervention team members, developmental center
workers, and daycare center workers);
(3) Public and private social welfare agency personnel; and
(4) Family members, caregivers, friends, neighbors, employers, and
clergy.
(k) Objective medical evidence means signs, laboratory findings, or
both.
(l) Signs means one or more anatomical, physiological, or
psychological abnormalities that can be observed, apart from your
statements (symptoms). Signs must be shown by medically acceptable
clinical diagnostic techniques. Psychiatric signs are medically
demonstrable phenomena that indicate specific psychological
abnormalities, e.g., abnormalities of behavior, mood, thought, memory,
orientation, development, or perception and must also be shown by
observable facts that can be medically described and evaluated.
(m) State agency means an agency of a State designated by that
State to carry out the disability or blindness determination function.
(n) Symptoms means your own description of your physical or mental
impairment.
(o) The listings means the Listing of Impairments in appendix 1 of
subpart P of part 404 of this chapter. When we refer to an
impairment(s) that ``meets, medically equals, or functionally equals
the listings,'' we mean that the impairment(s) meets or medically
equals the severity of any listing in appendix 1 of subpart P of part
404 of this chapter, as explained in Sec. Sec. 416.925 and 416.926, or
that it functionally equals the severity of the listings, as explained
in Sec. 416.926a.
(p) We or us means, as appropriate, either the Social Security
Administration or the State agency making the disability or blindness
determination.
(q) You, your, me, my and I mean, as appropriate, the person who
applies for benefits, the person for whom an application is filed, or
the person who is receiving benefits based on disability or blindness.

0
38. In Sec. 416.903, remove paragraph (e), redesignate paragraph (f)
as paragraph (e), and revise the newly redesignated paragraph (e) to
read as follows:

Sec. 416.903 Who makes disability and blindness determinations.

* * * * *
(e) Determinations for childhood impairments. In making a
determination under title XVI with respect to the disability of a
child, we will make reasonable efforts to ensure that a qualified
pediatrician or other individual who specializes in a field of medicine
appropriate to the child's impairment(s) evaluates the case of the
child.

0
39. Revise Sec. 416.904 to read as follows:

Sec. 416.904 Decisions by other governmental agencies and
nongovernmental ties.

Other governmental agencies and nongovernmental entities--such as
the Department of Veterans Affairs, the Department of Defense, the
Department of Labor, the Office of Personnel Management, State
agencies, and private insurers--make disability, blindness,
employability, Medicaid, workers' compensation, and other benefits
decisions for their own programs using their own rules. Because a
decision by any other governmental agency or a nongovernmental entity
about whether you are disabled, blind, employable, or entitled to any
benefits is based on its rules, it is not binding on us and is not our
decision about whether you are disabled or blind under our rules.
Therefore, in claims filed (see Sec. 416.325) on or after March 27,
2017, we will not provide any analysis in our determination or decision
about a decision made by any other governmental agency or a
nongovernmental entity about whether you are disabled, blind,
employable, or entitled to any benefits. However, we will consider all
of the supporting evidence underlying the other governmental agency or
nongovernmental entity's decision that we receive as evidence in your
claim in accordance with Sec. 416.913(a)(1) through (4).

Sec. 416.908 [Removed and reserved].

0
40. Remove and reserve Sec. 416.908.

0
41. Revise Sec. 416.912 to read as follows:

Sec. 416.912 Responsibility for evidence.

[[Page 5875]]

which you become aware. This duty applies at each level of the
administrative review process, including the Appeals Council level if
the evidence relates to the period on or before the date of the
administrative law judge hearing decision. We will consider only
impairment(s) you say you have or about which we receive evidence. When
you submit evidence received from another source, you must submit that
evidence in its entirety, unless you previously submitted the same
evidence to us or we instruct you otherwise. If we ask you, you must
inform us about:
(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say
that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your
ability to work, or, if you are a child, your functioning. In
Sec. Sec. 416.960 through 416.969, we discuss in more detail the
evidence we need when we consider vocational factors.
(2) Completeness. The evidence in your case record must be complete
and detailed enough to allow us to make a determination or decision
about whether you are disabled or blind. It must allow us to
determine--
(i) The nature and severity of your impairment(s) for any period in
question;
(ii) Whether the duration requirement described in Sec. 416.909 is
met; and
(iii) Your residual functional capacity to do work-related physical
and mental activities, when the evaluation steps described in
Sec. Sec. 416.920(e) or (f)(1) apply, or, if you are a child, how you
typically function compared to children your age who do not have
impairments.
(3) Statutory blindness. If you are applying for benefits on the
basis of statutory blindness, we will require an examination by a
physician skilled in diseases of the eye or by an optometrist,
whichever you may select.
(b) Our responsibility.
(1) Development. Before we make a determination that you are not
disabled, we will develop your complete medical history for at least
the 12 months preceding the month in which you file your application
unless there is a reason to believe that development of an earlier
period is necessary or unless you say that your disability began less
than 12 months before you filed your application. We will make every
reasonable effort to help you get medical evidence from your own
medical sources and entities that maintain your medical sources'
evidence when you give us permission to request the reports.
(i) Every reasonable effort means that we will make an initial
request for evidence from your medical source or entity that maintains
your medical source's evidence, and, at any time between 10 and 20
calendar days after the initial request, if the evidence has not been
received, we will make one follow-up request to obtain the medical
evidence necessary to make a determination. The medical source or
entity that maintains your medical source's evidence will have a
minimum of 10 calendar days from the date of our follow-up request to
reply, unless our experience with that source indicates that a longer
period is advisable in a particular case.
(ii) Complete medical history means the records of your medical
source(s) covering at least the 12 months preceding the month in which
you file your application. If you say that your disability began less
than 12 months before you filed your application, we will develop your
complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began
earlier.
(2) Obtaining a consultative examination. We may ask you to attend
one or more consultative examinations at our expense. See Sec. Sec.
416.917 through 416.919t for the rules governing the consultative
examination process. Generally, we will not request a consultative
examination until we have made every reasonable effort to obtain
evidence from your own medical sources. We may order a consultative
examination while awaiting receipt of medical source evidence in some
instances, such as when we know a source is not productive, is
uncooperative, or is unable to provide certain tests or procedures. We
will not evaluate this evidence until we have made every reasonable
effort to obtain evidence from your medical sources.
(3) Other work. In order to determine under Sec. 416.920(g) that
you are able to adjust to other work, we must provide evidence about
the existence of work in the national economy that you can do (see
Sec. Sec. 416.960 through 416.969a), given your residual functional
capacity (which we have already assessed, as described in Sec.
416.920(e)), age, education, and work experience.

0
42. Revise Sec. 416.913 to read as follows:

Sec. 416.913 Categories of evidence.

[[Page 5876]]

(F) Health and physical well-being (see Sec. 416.926a(l)).
(3) Other medical evidence. Other medical evidence is evidence from
a medical source that is not objective medical evidence or a medical
opinion, including judgments about the nature and severity of your
impairments, your medical history, clinical findings, diagnosis,
treatment prescribed with response, or prognosis. (For claims filed
(see Sec. 416.325) before March 27, 2017, other medical evidence does
not include a diagnosis, prognosis, or a statement that reflects a
judgment(s) about the nature and severity of your impairment(s)).
(4) Evidence from nonmedical sources. Evidence from nonmedical
sources is any information or statement(s) from a nonmedical source
(including you) about any issue in your claim. We may receive evidence
from nonmedical sources either directly from the nonmedical source or
indirectly, such as from forms we receive and our administrative
records.
(5) Prior administrative medical finding. A prior administrative
medical finding is a finding, other than the ultimate determination
about whether you are disabled, about a medical issue made by our
Federal and State agency medical and psychological consultants at a
prior level of review (see Sec. 416.1400) in your current claim based
on their review of the evidence in your case record, such as:
(i) The existence and severity of your impairment(s);
(ii) The existence and severity of your symptoms;
(iii) Statements about whether your impairment(s) meets or
medically equals any listing in the Listing of Impairments in Part 404,
Subpart P, Appendix 1;
(iv) If you are a child, statements about whether your
impairment(s) functionally equals the listings in Part 404, Subpart P,
Appendix 1;
(v) If you are an adult, your residual functional capacity;
(vi) Whether your impairment(s) meets the duration requirement; and
(vii) How failure to follow prescribed treatment (see Sec.
416.930) and drug addiction and alcoholism (see Sec. 416.935) relate
to your claim.
(b) Exceptions for privileged communications.
(1) The privileged communications listed in paragraphs (b)(1)(i)
and (b)(1)(ii) of this section are not evidence, and we will neither
consider nor provide any analysis about them in your determination or
decision. This exception for privileged communications applies equally
whether your representative is an attorney or a non-attorney.
(i) Oral or written communications between you and your
representative that are subject to the attorney-client privilege,
unless you voluntarily disclose the communication to us.
(ii) Your representative's analysis of your claim, unless he or she
voluntarily discloses it to us. This analysis means information that is
subject to the attorney work product doctrine, but it does not include
medical evidence, medical opinions, or any other factual matter that we
may consider in determining whether or not you are entitled to benefits
(see paragraph (b)(2) of this section).
(2) The attorney-client privilege generally protects confidential
communications between an attorney and his or her client that are
related to providing or obtaining legal advice. The attorney work
product doctrine generally protects an attorney's analyses, theories,
mental impressions, and notes. In the context of your disability claim,
neither the attorney-client privilege nor the attorney work product
doctrine allow you to withhold factual information, medical opinions,
or other medical evidence that we may consider in determining whether
or not you are entitled to benefits. For example, if you tell your
representative about the medical sources you have seen, your
representative cannot refuse to disclose the identity of those medical
sources to us based on the attorney-client privilege. As another
example, if your representative asks a medical source to complete an
opinion form related to your impairment(s), symptoms, or limitations,
your representative cannot withhold the completed opinion form from us
based on the attorney work product doctrine. The attorney work product
doctrine would not protect the source's opinions on the completed form,
regardless of whether or not your representative used the form in his
or her analysis of your claim or made handwritten notes on the face of
the report.

0
43. Add Sec. 416.913a to read as follows:

Sec. 416.913a Evidence from our Federal or State agency medical or
psychological consultants.

The following rules apply to our Federal or State agency medical or
psychological consultants that we consult in connection with
administrative law judge hearings and Appeals Council reviews:
(a) 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
medical evidence 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). 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), he or she will consider
the evidence in your case record and make administrative findings 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 medical
findings 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. See Sec. 416.913(a)(5).
(2) When a State agency disability examiner makes the initial
determination alone as provided in Sec. 416.1015(c)(3), he or she may
obtain medical evidence from a State agency medical or psychological
consultant about one or more of the medical issues listed in paragraph
(a)(1) of this section. In these cases, the State agency disability
examiner will consider the medical evidence of the State agency medical
or psychological consultant under Sec. Sec. 416.920b, 416.920c, and
416.927.
(3) When a State agency disability examiner makes a reconsideration
determination alone as provided in Sec. 416.1015(c)(3), he or she will
consider prior administrative medical findings made by a State agency
medical or psychological consultant at the initial level of the
administrative review process, and any medical evidence provided by
such consultants at the initial and reconsideration levels, about one
or more of the medical issues listed in paragraph (a)(1)(i) of this
section under Sec. Sec. 416.920b, 416.920c, and 416.927.
(b) Administrative law judges are responsible for reviewing the
evidence and making administrative findings of fact and conclusions of
law. They will consider prior administrative medical findings and
medical evidence from our Federal or State agency medical or
psychological consultants as follows:

[[Page 5877]]

(1) Administrative law judges are not required to adopt any prior
administrative medical findings, but they must consider this evidence
according to Sec. Sec. 416.920b, 416.920c, and 416.927, as
appropriate, because our Federal or State agency medical or
psychological consultants are highly qualified and experts in Social
Security disability evaluation.
(2) Administrative law judges may also ask for medical evidence
from expert medical sources. Administrative law judges will consider
this evidence under Sec. Sec. 416.920b, 416.920c, and 416.927, as
appropriate.
(c) When the Appeals Council makes a decision, it will consider
prior administrative medical findings according to the same rules for
considering prior administrative medical findings as administrative law
judges follow under paragraph (b) of this section.

0
44. Revise Sec. 416.918 paragraph (c) to read as follows:

Sec. 416.918 If you do not appear at a consultative examination.

0
45. Revise Sec. 416.919g(a) to read as follows:

Sec. 416.919g Who we will select to perform a consultative
examination.

0
46. Revise Sec. 416.919h to read as follows:

Sec. 416.919h Your medical source.

0
47. Revise Sec. 416.919i to read as follows:

Sec. 416.919i Other sources for consultative examinations.

0
48. Revise Sec. 416.919n paragraph (c)(6) to read as follows:

Sec. 416.919n Informing the medical source of examination scheduling,
report content, and signature requirements.

0
49. In Sec. 416.920a, revise the second sentence of paragraphs (b)(1)
and (d)(1) to read as follows:

Sec. 416.920a Evaluation of mental impairments.

* * * * *
(b) * * *
(1) * * * See Sec. 416.921 for more information about what is
needed to show a medically determinable impairment. * * *
* * * * *
(d) * * *
(1) If we rate the degrees of your limitation as ``none'' or
``mild,'' we will generally conclude that your impairment(s) is not
severe, unless the evidence otherwise indicates that there is more than
a minimal limitation in your ability to do basic work activities (see
Sec. 416.922).
* * * * *

0
50. Revise Sec. 416.920b to read as follows:

Sec. 416.920b How we consider evidence.

[[Page 5878]]

(ii) We may request additional existing evidence;
(iii) We may ask you to undergo a consultative examination at our
expense (see Sec. Sec. 416.917 through 416.919t); or
(iv) We may ask you or others for more information.
(3) When there are inconsistencies in the evidence that we cannot
resolve or when, despite efforts to obtain additional evidence, the
evidence is insufficient to determine whether you are disabled, we will
make a determination or decision based on the evidence we have.
(c) Evidence that is inherently neither valuable nor persuasive.
Paragraphs (c)(1) through (c)(3) apply in claims filed (see Sec.
416.325) on or after March 27, 2017. Because the evidence listed in
paragraphs ((c)(1)-(c)(3) of this section is inherently neither
valuable nor persuasive to the issue of whether you are disabled or
blind under the Act, we will not provide any analysis about how we
considered such evidence in our determination or decision, even under
Sec. 416.920c:
(1) Decisions by other governmental agencies and nongovernmental
entities. See Sec. 416.904.
(2) Disability examiner findings. Findings made by a State agency
disability examiner made at a previous level of adjudication about a
medical issue, vocational issue, or the ultimate determination about
whether you are disabled.
(3) Statements on issues reserved to the Commissioner. The
statements listed in paragraphs (c)(3)(i) through (c)(3)(ix) of this
section would direct our determination or decision that you are or are
not disabled or blind within the meaning of the Act, but we are
responsible for making the determination or decision about whether you
are disabled or blind:
(i) Statements that you are or are not disabled, blind, able to
work, or able to perform regular or continuing work;
(ii) Statements about whether or not you have a severe
impairment(s);
(iii) Statements about whether or not your impairment(s) meets the
duration requirement (see Sec. 416.909);
(iv) Statements about whether or not your impairment(s) meets or
medically equals any listing in the Listing of Impairments in Part 404,
Subpart P, Appendix 1;
(v) If you are a child, statements about whether or not your
impairment(s) functionally equals the listings in Part 404 Subpart P
Appendix 1 (see Sec. 416.926a);
(vi) If you are an adult, statements about what your residual
functional capacity is using our programmatic terms about the
functional exertional levels in Part 404, Subpart P, Appendix 2, Rule
200.00 instead of descriptions about your functional abilities and
limitations (see Sec. 416.945);
(vii) If you are an adult, statements about whether or not your
residual functional capacity prevents you from doing past relevant work
(see Sec. 416.960);
(viii) If you are an adult, statements that you do or do not meet
the requirements of a medical-vocational rule in Part 404, Subpart P,
Appendix 2; and
(ix) Statements about whether or not your disability continues or
ends when we conduct a continuing disability review (see Sec.
416.994).

0
51. Add Sec. 416.920c to read as follows:

Sec. 416.920c How we consider and articulate medical opinions and
prior administrative medical findings for claims filed on or after
March 27, 2017.

For claims filed (see Sec. 416.325) on or after March 27, 2017,
the rules in this section apply. For claims filed before March 27,
2017, the rules in Sec. 416.927 apply.
(a) How we consider medical opinions and prior administrative
medical findings. We will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or
prior administrative medical finding(s), including those from your
medical sources. When a medical source provides one or more medical
opinions or prior administrative medical findings, we will consider
those medical opinions or prior administrative medical findings from
that medical source together using the factors listed in paragraphs
(c)(1) through (c)(5) of this section, as appropriate. The most
important factors we consider when we evaluate the persuasiveness of
medical opinions and prior administrative medical findings are
supportability (paragraph (c)(1) of this section) and consistency
(paragraph (c)(2) of this section). We will articulate how we
considered the medical opinions and prior administrative medical
findings in your claim according to paragraph (b) of this section.
(b) How we articulate our consideration of medical opinions and
prior administrative medical findings. We will articulate in our
determination or decision how persuasive we find all of the medical
opinions and all of the prior administrative medical findings in your
case record. Our articulation requirements are as follows:
(1) Source-level articulation. Because many claims have voluminous
case records containing many types of evidence from different sources,
it is not administratively feasible for us to articulate in each
determination or decision how we considered all of the factors for all
of the medical opinions and prior administrative medical findings in
your case record. Instead, when a medical source provides multiple
medical opinion(s) or prior administrative medical finding(s), we will
articulate how we considered the medical opinions or prior
administrative medical findings from that medical source together in a
single analysis using the factors listed in paragraphs (c)(1) through
(c)(5) of this section, as appropriate. We are not required to
articulate how we considered each medical opinion or prior
administrative medical finding from one medical source individually.
(2) Most important factors. The factors of supportability
(paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of
this section) are the most important factors we consider when we
determine how persuasive we find a medical source's medical opinions or
prior administrative medical findings to be. Therefore, we will explain
how we considered the supportability and consistency factors for a
medical source's medical opinions or prior administrative medical
findings in your determination or decision. We may, but are not
required to, explain how we considered the factors in paragraphs (c)(3)
through (c)(5) of this section, as appropriate, when we articulate how
we consider medical opinions and prior administrative medical findings
in your case record.
(3) Equally persuasive medical opinions or prior administrative
medical findings about the same issue. When we find that two or more
medical opinions or prior administrative medical findings about the
same issue are both equally well-supported (paragraph (c)(1) of this
section) and consistent with the record (paragraph (c)(2) of this
section) but are not exactly the same, we will articulate how we
considered the other most persuasive factors in paragraphs (c)(3)
through (c)(5) of this section for those medical opinions or prior
administrative medical findings in your determination or decision.
(c) Factors. We will consider the following factors when we
consider the medical opinion(s) and prior administrative medical
finding(s) in your case:
(1) Supportability. The more relevant the objective medical
evidence and supporting explanations presented by a medical source are
to support his or her medical opinion(s) or prior

[[Page 5879]]

administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more
persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.
(3) Relationship with the claimant. This factor combines
consideration of the issues in paragraphs (c)(3)(i)-(v) of this
section.
(i) Length of the treatment relationship. The length of time a
medical source has treated you may help demonstrate whether the medical
source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with
the medical source may help demonstrate whether the medical source has
a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for
treatment you received from the medical source may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of
examinations and testing the medical source has performed or ordered
from specialists or independent laboratories may help demonstrate the
level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better
understanding of your impairment(s) if he or she examines you than if
the medical source only reviews evidence in your folder.
(4) Specialization. The medical opinion or prior administrative
medical finding of a medical source who has received advanced education
and training to become a specialist may be more persuasive about
medical issues related to his or her area of specialty than the medical
opinion or prior administrative medical finding of a medical source who
is not a specialist in the relevant area of specialty.
(5) Other factors. We will consider other factors that tend to
support or contradict a medical opinion or prior administrative medical
finding. This includes, but is not limited to, evidence showing a
medical source has familiarity with the other evidence in the claim or
an understanding of our disability program's policies and evidentiary
requirements. When we consider a medical source's familiarity with the
other evidence in a claim, we will also consider whether new evidence
we receive after the medical source made his or her medical opinion or
prior administrative medical finding makes the medical opinion or prior
administrative medical finding more or less persuasive.
(d) Evidence from nonmedical sources. We are not required to
articulate how we considered evidence from nonmedical sources using the
requirements in paragraphs (a) through (c) in this section.

0
52. Revise Sec. 416.921 to read as follows:

Sec. 416.921 Establishing that you have a medically determinable
impairment(s).

If you are not doing substantial gainful activity, we will then
determine whether you have a medically determinable physical or mental
impairment(s) (see Sec. 416.920(a)(4)(ii)). Your impairment(s) must
result from anatomical, physiological, or psychological abnormalities
that can be shown by medically acceptable clinical and laboratory
diagnostic techniques. Therefore, a physical or mental impairment must
be established by objective medical evidence from an acceptable medical
source. We will not use your statement of symptoms, a diagnosis, or a
medical opinion to establish the existence of an impairment(s). After
we establish that you have a medically determinable impairment(s), then
we determine whether your impairment(s) is severe.

0
53. Revise Sec. 416.922 to read as follows:

Sec. 416.922 What we mean by an impairment(s) that is not severe in
an adult.

0
54. Revise Sec. 416.923 to read as follows:

Sec. 416.923 Multiple impairments.

0
55. In Sec. 416.924a, revise paragraph (a) introductory text, the
last sentence of paragraph (a)(1)(i), the last sentence of (a)(1)(iii),
and the section heading of paragraph (a)(2) to read as follows:

Sec. 416.924a Considerations in determining disability for children.

(a) Basic considerations. We consider all evidence in your case
record (see Sec. 416.913). The evidence in your case record may
include information from medical sources (such as your pediatrician or
other physician; psychologist; qualified speech-language pathologist;
and physical, occupational, and rehabilitation therapists) and
nonmedical sources (such as your parents, teachers, and other people
who know you).

[[Page 5880]]

(1) * * *
(i) * * * (See Sec. 416.920c.)
* * * * *
(iii) * * * When a medical source has accepted and relied on such
information to reach a diagnosis, we may consider this information to
be a sign, as defined in Sec. 416.902(l).
(2) Statements from nonmedical sources. * * *
* * * * *

0
56. Amend Sec. 416.924b by revising the first sentence of paragraph
(b)(3) to read as follows:

Sec. 416.924b Age as a factor of evaluation in the sequential
evaluation process for children.

* * * * *
(b) * * *
(3) Notwithstanding the provisions in paragraph (b)(1) of this
section, we will not compute a corrected chronological age if the
medical evidence shows that your medical source has already considered
your prematurity in his or her assessment of your development. * * *

0
57. In Sec. 416.925, revise the last sentence in paragraph (c)(2) to
read as follows:

Sec. 416.925 Listing of Impairments in appendix 1 of subpart P of
part 404 of this chapter.

0
58. In Sec. 416.926, revise paragraphs (d) and (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. See Sec. 416.1016 of this part for the
necessary qualifications for medical consultants and psychological
consultants and the limitations on what medical consultants who are not
physicians can evaluate.
(e) Who is responsible for determining medical equivalence?
(1) 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.
(2) 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 Policy or his or her delegate.
(3) 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
59. Amend Sec. 416.926a by revising the second sentence of paragraph
(b)(3) to read as follows:

Sec. 416.926a Functional equivalence for children.

* * * * *
(b) * * *
(3) * * * We will ask for information from your medical sources who
can give us medical evidence, including medical opinions, about your
limitations and restrictions. * * *
* * * * *

0
60. Revise Sec. 416.927 to read as follows:

Sec. 416.927 Evaluating opinion evidence for claims filed before
March 27, 2017.

For claims filed (see Sec. 416.325) before March 27, 2017, the
rules in this section apply. For claims filed on or after March 27,
2017, the rules in Sec. 416.920c apply.
(a) Definitions.
(1) Medical opinions. Medical opinions are statements from
acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and
prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.
(2) Treating source. Treating source means your own acceptable
medical source who provides you, or has provided you, with medical
treatment or evaluation and who has, or has had, an ongoing treatment
relationship with you. Generally, we will consider that you have an
ongoing treatment relationship with an acceptable medical source when
the medical evidence establishes that you see, or have seen, the source
with a frequency consistent with accepted medical practice for the type
of treatment and/or evaluation required for your medical condition(s).
We may consider an acceptable medical source who has treated or
evaluated you only a few times or only after long intervals (e.g.,
twice a year) to be your treating source if the nature and frequency of
the treatment or evaluation is typical for your condition(s). We will
not consider an acceptable medical source to be your treating source if
your relationship with the source is not based on your medical need for
treatment or evaluation, but solely on your need to obtain a report in
support of your claim for disability. In such a case, we will consider
the acceptable medical source to be a nontreating source.
(b) How we consider medical opinions. In determining whether you
are disabled, we will always consider the medical opinions in your case
record together with the rest of the relevant evidence we receive. See
Sec. 416.920b.
(c) How we weigh medical opinions. Regardless of its source, we
will evaluate every medical opinion we receive. Unless we give a
treating source's medical opinion controlling weight under paragraph
(c)(2) of this section, we consider all of the following factors in
deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the
medical opinion of a source who has examined you than to the medical
opinion of a medical source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to
medical opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed,
longitudinal picture of your medical impairment(s) and may bring a
unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual
examinations, such as consultative examinations or brief
hospitalizations. If we find that a treating source's medical opinion
on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. When we do not give the treating source's medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i)
and

[[Page 5881]]

(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3)
through (c)(6) of this section in determining the weight to give the
medical opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's
medical opinion.
(i) Length of the treatment relationship and the frequency of
examination. Generally, the longer a treating source has treated you
and the more times you have been seen by a treating source, the more
weight we will give to the source's medical opinion. When the treating
source has seen you a number of times and long enough to have obtained
a longitudinal picture of your impairment, we will give the medical
source's medical opinion more weight than we would give it if it were
from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally,
the more knowledge a treating source has about your impairment(s) the
more weight we will give to the source's medical opinion. We will look
at the treatment the source has provided and at the kinds and extent of
examinations and testing the source has performed or ordered from
specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during
your eye examinations, we will consider his or her medical opinion with
respect to your neck pain, but we will give it less weight than that of
another physician who has treated you for the neck pain. When the
treating source has reasonable knowledge of your impairment(s), we will
give the source's medical opinion more weight than we would give it if
it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant
evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion.
The better an explanation a source provides for a medical opinion, the
more weight we will give that medical opinion. Furthermore, because
nonexamining sources have no examining or treating relationship with
you, the weight we will give their medical opinions will depend on the
degree to which they provide supporting explanations for their medical
opinions. We will evaluate the degree to which these medical opinions
consider all of the pertinent evidence in your claim, including medical
opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent a medical opinion
is with the record as a whole, the more weight we will give to that
medical opinion.
(5) Specialization. We generally give more weight to the medical
opinion of a specialist about medical issues related to his or her area
of specialty than to the medical opinion of a source who is not a
specialist.
(6) Other factors. When we consider how much weight to give to a
medical opinion, we will also consider any factors you or others bring
to our attention, or of which we are aware, which tend to support or
contradict the medical opinion. For example, the amount of
understanding of our disability programs and their evidentiary
requirements that a medical source has, regardless of the source of
that understanding, and the extent to which a medical source is
familiar with the other information in your case record are relevant
factors that we will consider in deciding the weight to give to a
medical opinion.
(d) Medical source opinions on issues reserved to the Commissioner.
Opinions on some issues, such as the examples that follow, are not
medical opinions, as described in paragraph (a)(1) of this section, but
are, instead, opinions on issues reserved to the Commissioner because
they are administrative findings that are dispositive of a case; i.e.,
that would direct the determination or decision of disability.
(1) Opinions that you are disabled. We are responsible for making
the determination or decision about whether you meet the statutory
definition of disability. In so doing, we review all of the medical
findings and other evidence that support a medical source's statement
that you are disabled. A statement by a medical source that you are
``disabled'' or ``unable to work'' does not mean that we will determine
that you are disabled.
(2) Other opinions on issues reserved to the Commissioner. We use
medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s).
Although we consider opinions from medical sources on issues such as
whether your impairment(s) meets or equals the requirements of any
impairment(s) in the Listing of Impairments in appendix 1 to subpart P
of part 404 of this chapter, your residual functional capacity (see
Sec. Sec. 416.945 and 416.946), or the application of vocational
factors, the final responsibility for deciding these issues is reserved
to the Commissioner.
(3) We will not give any special significance to the source of an
opinion on issues reserved to the Commissioner described in paragraphs
(d)(1) and (d)(2) of this section.
(e) Evidence from our Federal or State agency medical or
psychological consultants. The rules in Sec. 416.913a apply except
that when an administrative law judge gives controlling weight to a
treating source's medical opinion, the administrative law judge is not
required to explain in the decision the weight he or she gave to the
prior administrative medical findings in the claim.
(f) Opinions from medical sources who are not acceptable medical
sources and from nonmedical sources.
(1) Consideration. Opinions from medical sources who are not
acceptable medical sources and from nonmedical sources may reflect the
source's judgment about some of the same issues addressed in medical
opinions from acceptable medical sources. Although we will consider
these opinions using the same factors as listed in paragraph (c)(1)
through (c)(6) in this section, not every factor for weighing opinion
evidence will apply in every case because the evaluation of an opinion
from a medical source who is not an acceptable medical source or from a
nonmedical source depends on the particular facts in each case.
Depending on the particular facts in a case, and after applying the
factors for weighing opinion evidence, an opinion from a medical source
who is not an acceptable medical source or from a nonmedical source may
outweigh the medical opinion of an acceptable medical source, including
the medical opinion of a treating source. For example, it may be
appropriate to give more weight to the opinion of a medical source who
is not an ``acceptable medical source'' if he or she has seen the
individual more often than the treating source, has provided better
supporting evidence and a better explanation for the opinion, and the
opinion is more consistent with the evidence as a whole.
(2) Articulation. The adjudicator generally should explain the
weight given to opinions from these sources or otherwise ensure that
the discussion of the evidence in the determination or decision allows
a claimant or subsequent reviewer to follow the adjudicator's
reasoning, when such opinions may have an effect on the outcome of the
case. In addition, when an adjudicator determines that an opinion from
such a source is entitled to greater weight than a medical opinion from
a treating source, the adjudicator must explain the reasons in the
notice of decision in hearing cases and in the notice of determination
(that is, in the personalized disability notice) at the

[[Page 5882]]

initial and reconsideration levels, if the determination is less than
fully favorable.

Sec. 416.928 [Removed and Reserved]

0
61. Remove and reserve Sec. 416.928.

0
62. In Sec. 416.929, revise paragraph (a), the second and third
sentences of paragraph (c)(1), the introductory text of paragraph
(c)(3), and the third sentence of paragraph (c)(4) to read as follows:

Sec. 416.929 How we evaluate symptoms, including pain.

(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence. We will consider all of your
statements about your symptoms, such as pain, and any description your
medical sources or nonmedical sources may provide about how the
symptoms affect your activities of daily living and your ability to
work (or, if you are a child, your functioning). However, statements
about your pain or other symptoms will not alone establish that you are
disabled. There must be objective medical evidence from an acceptable
medical source that shows you have a medical impairment(s) which could
reasonably be expected to produce the pain or other symptoms alleged
and that, when considered with all of the other evidence (including
statements about the intensity and persistence of your pain or other
symptoms which may reasonably be accepted as consistent with the
medical signs and laboratory findings), would lead to a conclusion that
you are disabled. In evaluating the intensity and persistence of your
symptoms, including pain, we will consider all of the available
evidence, including your medical history, the medical signs and
laboratory findings, and statements about how your symptoms affect you.
We will then determine the extent to which your alleged functional
limitations and restrictions due to pain or other symptoms can
reasonably be accepted as consistent with the medical signs and
laboratory findings and other evidence to decide how your symptoms
affect your ability to work (or if you are a child, your functioning).
* * * * *
(c) * * *
(1) * * * In evaluating the intensity and persistence of your
symptoms, we consider all of the available evidence from your medical
sources and nonmedical sources about how your symptoms affect you. We
also consider the medical opinions as explained in Sec. 416.920c. * *
*
* * * * *
(3) Consideration of other evidence. Because symptoms sometimes
suggest a greater severity of impairment than can be shown by objective
medical evidence alone, we will carefully consider any other
information you may submit about your symptoms. The information that
your medical sources or nonmedical sources provide about your pain or
other symptoms (e.g., what may precipitate or aggravate your symptoms,
what medications, treatments or other methods you use to alleviate
them, and how the symptoms may affect your pattern of daily living) is
also an important indicator of the intensity and persistence of your
symptoms. Because symptoms, such as pain, are subjective and difficult
to quantify, any symptom-related functional limitations and
restrictions that your medical sources or nonmedical sources report,
which can reasonably be accepted as consistent with the objective
medical evidence and other evidence, will be taken into account as
explained in paragraph (c)(4) of this section in reaching a conclusion
as to whether you are disabled. We will consider all of the evidence
presented, including information about your prior work record, your
statements about your symptoms, evidence submitted by your medical
sources, and observations by our employees and other persons. If you
are a child, we will also consider all of the evidence presented,
including evidence submitted by your medical sources (such as
physicians, psychologists, and therapists) and nonmedical sources (such
as educational agencies and personnel, parents and other relatives, and
social welfare agencies). Section 416.920c explains in detail how we
consider medical opinions and prior administrative medical findings
about the nature and severity of your impairment(s) and any related
symptoms, such as pain. Factors relevant to your symptoms, such as
pain, which we will consider include:
* * * * *
(4) * * * We will consider whether there are any inconsistencies in
the evidence and the extent to which there are any conflicts between
your statements and the rest of the evidence, including your history,
the signs and laboratory findings, and statements by your medical
sources or other persons about how your symptoms affect you. * * *
* * * * *

0
63. Revise Sec. 416.930(a) to read as follows:

Sec. 416.930 Need to follow prescribed treatment.

(a) What treatment you must follow. In order to get benefits, you
must follow treatment prescribed by your medical source(s) if this
treatment is expected to restore your ability to work.
* * * * *

0
64. Amend Sec. 416.993 by revising the seventh and ninth sentences of
paragraph (b) to read as follows:

Sec. 416.993 Medical evidence in continuing disability review cases.

* * * * *
(b) * * * See Sec. 416.912(b)(1)(i) concerning what we mean by
every reasonable effort. * * * See Sec. 416.912(b)(1)(ii).
* * * * *

0
65. Amend Sec. 416.994 by revising the last sentence in paragraph
(b)(1)(i), the sixth sentence in example 1, the second sentence of
paragraph (b)(1)(vi), and the fourth sentence of (b)(2)(iv)(E) to read
as follows:

Sec. 416.994 How we will determine whether your disability continues
or ends.

* * * * *
(b) * * *
(1) * * *
(i) * * * A determination that there has been a decrease in medical
severity must be based on changes (improvement) in the symptoms, signs,
or laboratory findings associated with your impairment(s).

Example 1: * * * When we reviewed your claim your medical
source who has treated you reported that he or she had seen you
regularly every 2 to 3 months for the past 2 years. * * *
* * * * *
(vi) * * * We will consider all evidence you submit and that we
obtain from your medical sources and nonmedical sources. * * *
* * * * *
(2) * * *
(iv) * * *
(E) * * * If you are able to engage in substantial gainful
activity, we will determine whether an attempt should be made to
reconstruct those portions of the missing file that were relevant to
our most recent favorable medical decision (e.g., work history, medical
evidence, and the results of consultative examinations). * * *

0
66. Amend Sec. 416.994a by revising the second sentence of paragraph
(a)(2), the first sentence in paragraph (c)(2), the fourth sentence of
paragraph (d), and paragraph (i)(1) to read as follows:

[[Page 5883]]

Sec. 416.994a How we will determine whether your disability continues
or ends, and whether you are and have been receiving treatment that is
medically necessary and available, disabled children.

(a) * * *
(2) * * * We will consider all evidence you submit and that we
obtain from your medical and nonmedical sources. * * *
* * * * *
(c) * * *
(2) The terms symptoms, signs, and laboratory findings are defined
in Sec. 416.902. * * *
(d) * * * If not, we will determine whether an attempt should be
made to reconstruct those portions of the missing file that were
relevant to our most recent favorable determination or decision (e.g.,
school records, medical evidence, and the results of consultative
examinations). * * *
* * * * *
(i) * * *
(1) What we mean by treatment that is medically necessary.
Treatment that is medically necessary means treatment that is expected
to improve or restore your functioning and that was prescribed by your
medical source. If you do not have a medical source, we will decide
whether there is treatment that is medically necessary that could have
been prescribed by a medical source. The treatment may include (but is
not limited to)--
* * * * *

Subpart J--Determinations of Disability

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

Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).

Sec. 416.1015 [Amended]

0
68. Revise Sec. 416.1015 by removing paragraph (d) and redesignating
paragraphs (e) through (h) as paragraphs (d) through (g).

0
69. Revise Sec. 416.1016 to read as follows:

Sec. 416.1016 Medical consultants and psychological consultants.

(a) What is a medical consultant? A medical consultant is a member
of a team that makes disability determinations in a State agency (see
Sec. 416.1015), or who is a member of a team that makes disability
determinations for us when we make disability determinations ourselves.
The medical consultant completes the medical portion of the case review
and any applicable residual functional capacity assessment about all
physical impairment(s) in a claim.
(b) What qualifications must a medical consultant have? A medical
consultant is a licensed physician, as defined in Sec. 416.902(a)(1).
(c) What is a psychological consultant? A psychological consultant
is a member of a team that makes disability determinations in a State
agency (see Sec. 416.1015), or who is a member of a team that makes
disability determinations for us when we make disability determinations
ourselves. The psychological consultant completes the medical portion
of the case review and any applicable residual functional capacity
assessment about all mental impairment(s) in a claim. When we are
unable to obtain the services of a qualified psychiatrist or
psychologist despite making every reasonable effort (see Sec.
416.1017) in a claim involving a mental impairment(s), a medical
consultant will evaluate the mental impairment(s).
(d) What qualifications must a psychological consultant have? A
psychological consultant can be either a licensed psychiatrist or
psychologist. We will only consider a psychologist qualified to be a
psychological consultant if he or she:
(1) Is licensed or certified as a psychologist at the independent
practice level of psychology by the State in which he or she practices;
and
(2)(i) Possesses a doctorate degree in psychology from a program in
clinical psychology of an educational institution accredited by an
organization recognized by the Council on Post-Secondary Accreditation;
or
(ii) Is listed in a national register of health service providers
in psychology which the Commissioner of Social Security deems
appropriate; and
(3) Possesses 2 years of supervised clinical experience as a
psychologist in health service, at least 1 year of which is post-
masters degree.
(e) Cases involving both physical and mental impairments. In a case
where there is evidence of both physical and mental impairments, the
medical consultant will evaluate the physical impairments in accordance
with paragraph (a) of this section, and the psychological consultant
will evaluate the mental impairment(s) in accordance with paragraph (c)
of this section.

0
70. Revise Sec. 416.1017(a) to read as follows:

Sec. 416.1017 Reasonable efforts to obtain review by a qualified
psychiatrist or psychologist.

Subpart N--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions

0
71. The authority for subpart N 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
72. In Sec. 416.1406(b)(2), revise the fourth sentence to read as
follows:

Sec. 416.1406 Testing modifications to the disability determination
procedures.

[[Page 5884]]

the case review and any applicable residual functional capacity
assessment pursuant to our existing procedures (see Sec. 416.1017). *
* *
* * * * *

0
73. In Sec. 416.1442, revise paragraph (f)(1) to read as follows:

Sec. 416.1442 Prehearing proceedings and decisions by attorney
advisors.

* * * * *
(f) * * *
(1) Authorize an attorney advisor to exercise the functions
performed by an administrative law judge under Sec. Sec. 416.913a,
416.920a, 416.926, and 416.946.
* * * * *
[FR Doc. 2017-00455 Filed 1-17-17; 8:45 am]
BILLING CODE 4191-02-P