Revisions to Rules Regarding the Evaluation of Medical Evidence, 62559-62598 [2016-21358]

Download as PDF Vol. 81 Friday, No. 175 September 9, 2016 Part II Social Security Administration asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 20 CFR Parts 404 and 416 Revisions to Rules Regarding the Evaluation of Medical Evidence; Proposed Rule VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\09SEP2.SGM 09SEP2 62560 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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 Social Security Administration. Notice of proposed rulemaking (NPRM). AGENCY: ACTION: We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions would conform our rules with the requirements of the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims. DATES: To ensure that we consider your comments, we must receive them by no later than November 8, 2016. ADDRESSES: You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA–2012–0035 so that we may associate your comments with the correct regulation. CAUTION: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information. 1. Internet: We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at https:// www.regulations.gov. Use the ‘‘Search’’ function to find docket number SSA– 2012–0035. The system will issue a asabaliauskas on DSK3SPTVN1PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable. 2. Fax: Fax comments to (410) 966– 2830. 3. Mail: Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235–6401. Comments and background documents are available for public viewing on the Federal eRulemaking portal at www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below. 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. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Preamble Table of Contents I. Background II. Redefining and Categorizing Terms Related to Evidence A. What Is Evidence B. Overview of Proposed Revisions C. Medical Sources D. Objective Medical Evidence E. Medical Opinions F. Other Medical Evidence G. Statements From Nonmedical Sources H. Prior Administrative Medical Findings I. Decisions by Other Governmental Agencies and Nongovernmental Entities J. Disability Examiner Findings K. Statements on Issues Reserved to the Commissioner III. Establishing the Existence of an Impairment A. Current Rules B. Proposed Revisions IV. Acceptable Medical Sources (AMS) A. Current AMS Rules B. Why We Are Proposing To Add New AMSs C. Proposed New AMSs D. Other Revisions to the Current AMS List E. Related Revisions to Our Listings V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs VI. Consideration and Articulation of Medical Opinions and Prior Administrative Medical Findings A. Our Current Rules About Considering Medical Opinions and Administrative Findings of Fact PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 B. Our Current Rules About Articulating How We Consider Medical Opinions and Administrative Findings of Fact C. History of the Controlling Weight Rule D. Experience With the Current Rules for Weighing Medical Opinions 1. The Number of Findings Required 2. Federal Court Perspectives 3. Ninth Circuit’s Credit-as-True Rule 4. Difficulty Determining Treating Source Status Due to the Changing Nature of the Primary Healthcare System 5. Legal Scholars’ Perspectives on the Treating Physician Rule E. Proposed Revisions About How To Consider Medical Opinions and Prior Administrative Medical Findings F. Proposed Revisions About How To Articulate How We Consider Medical Opinions and Prior Administrative Medical Findings VII. Other Revisions Related to Treating Sources A. Background B. Proposed Revisions VIII. Reorganizing Our Opinion Evidence Regulations A. Distribution Table B. Derivation Table IX. Effect Upon Certain Social Security Rulings X. Proposed Implementation Process I. Background The Social Security Act (Act) mandates that we find an individual disabled only if he or she furnishes the medical and other evidence that we require.1 Much of the terminology and organization of our current evidence rules remain the same as when we adopted them in 1991 (the 1991 final rules).2 In the 1991 final rules, we defined evidence, listed categories of evidence, explained the factors we use to weigh medical opinions, and explained that we give controlling weight to medical opinions from treating sources about the nature and severity of claimants’ impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This latter rule is commonly known as our ‘‘treating physician rule.’’ We have modified these rules a few times since 1991. We expanded the list of AMSs who can be medical consultants, who can provide medical opinions, and who can provide us 1 42 U.S.C. 423(d)(5)(A) and 42 U.S.C. 1382c(a)(3)(H)(i). 2 Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932 (Aug. 1, 1991). E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules with objective medical evidence to establish the existence of an impairment(s) at step 2 of the sequential evaluation process.3 We also issued rules that clarified how administrative law judges (ALJ) and the Appeals Council (AC) must consider opinion evidence from State agency medical and psychological consultants, other program physicians and psychologists, and medical experts whom we consult.4 In addition, we have issued rules modifying the requirement that we recontact a person’s medical source(s) when we need to resolve an inconsistency or insufficiency in the evidence he or she provided.5 We also clarified a person’s duty to submit medical and other evidence that relates to his or her disability claim.6 As part of our reevaluation of our regulations that deal with weighing medical opinions, we asked the Administrative Conference of the United States (ACUS) 7 to provide us with recommendations on how to improve our medical opinion evidence in the disability and blindness claims evaluation process. ACUS issued its Final Report (ACUS Final Report) in April 2013.8 In light of the ACUS Final report and our adjudicative experience, we are proposing a number of revisions to our medical source and opinion evidence regulations to make them easier to understand and use. We expect that these changes will help us further ensure our high level of accuracy in future determinations and decisions. We discuss each of these proposed revisions below. We also propose to revise related rules about who can be MCs and PCs in conformity with requirements in the BBA. II. Redefining and Categorizing Terms Related to Evidence We propose to redefine and categorize several terms to make our rules of evidence easier to understand and use. We also propose to identify certain types of evidence that are inherently neither valuable nor persuasive for our purposes and for which we will not articulate an analysis in determinations and decisions. A. What Is Evidence Our current rules state that evidence is anything that we obtain or is submitted to us that relates to a claim.9 Our rules list several types of evidence as examples: (1) Objective medical evidence, (2) other evidence from medical sources (including medical opinions), (3) statements you or others make, (4) information from other sources, (5) decisions by any other governmental or nongovernmental agency, and (6) certain findings and opinions made by our employees and program experts.10 Our regulations also state that medical source opinions on issues reserved to the Commissioner do not satisfy our definition of a medical opinion.11 We issued Social Security Ruling (SSR) 96– 5p to explain how we consider these opinions.12 However, our adjudicative experience has shown that we can improve the current regulatory structure 62561 for categorizing and evaluating this evidence. B. Overview of Proposed Revisions We propose to reorganize and define categories of evidence to make them easier to apply in the disability adjudication process. The proposed categories of evidence are: (1) Objective medical evidence, (2) medical opinions, (3) other medical evidence, (4) statements from nonmedical sources, and (5) prior administrative medical findings.13 Each category would have a specific definition and purpose in our administrative process. We would categorize evidence from medical sources other than our Federal and State agency MCs and PCs as objective medical evidence, medical opinions, or other medical evidence.14 We would categorize evidence from our MCs and PCs as prior administrative medical findings.15 We would categorize evidence from nonmedical sources, such as from the claimant, family, and employers, as statements from nonmedical sources. Because all evidence we would receive would fall within one of the categories of evidence, we would define all of the evidence categories. This means we would remove the current language that evidence is not limited to the listed examples because all evidence we receive would fit into a specified category of evidence. We propose to list and define the categories of evidence in 20 CFR 404.1513(a)(1)–(5) and 416.913(a)(1)–(5). The following chart displays the proposed organization: Source Summary of definition Objective medical evidence .............................................. Medical opinions ............................................................... Other medical evidence .................................................... Medical sources ................. Medical sources ................. Medical sources ................. Statements from nonmedical sources .............................. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Category of evidence Nonmedical sources ........... Signs, laboratory findings, or both.16 Statements about functional limitations and abilities. All other evidence from medical sources that are not objective medical evidence or medical opinions. All evidence from nonmedical sources. 3 See, e.g., Federal Old-Age, Survivors and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Medical and Other Evidence of Your Impairment(s) and Definition of Medical Consultant, 65 FR 34950 (June 1, 2000). See also, Optometrists as ‘‘Acceptable Medical Sources’’ To Establish a Medically Determinable Impairment, 72 FR 9239 (March 1, 2007). 4 Federal Old-Age, Survivors and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Evaluating Opinion Evidence, 65 FR 11866 (March 7, 2000). 5 How We Collect and Consider Evidence of Disability, 77 FR 10651 (February 23, 2012). 6 See Id., and Submission of Evidence in Disability Claims, 80 FR 14828 (March 20, 2015). 7 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 agency procedures.’’ About the Administrative Conference of the United States (ACUS), available at https://www.acus.gov/about-administrativeconference-united-states-acus. 8 Administrative Conference of the United States, SSA Disability Benefits Programs: Assessing the Efficacy of the Treating Physician Rule (April 3, 2013), available at https://www.acus.gov/sites/ default/files/documents/Treating_Physician_Rule_ Final_Report_4-3-2013_0.pdf. 9 20 CFR 404.1512(b) and 416.912(b). 10 20 CFR 404.1512(b)(1)(i)–(viii) and 416.912(b)(1)(i)–(viii). 11 The current definition of issues reserved to the Commissioner is found in 404.1527(d)(2)–(d)(3) and 416.927(d)(2)–(d)(3). 12 SSR 96–5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner (61 FR 34471) (July 2, 1996)). 13 20 CFR 404.1512(d) and 416.912(d). PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 14 When the Appeals Council uses the expertise of the medical sources on its Medical Support Staff, we categorize and consider the evidence from those medical sources as we do for any medical source who is not an MC or PC. We would continue to follow this practice under the rules proposed in this NPRM. 15 Our current rules clarify that when MCs and PCs are part of the adjudicative team that makes disability determinations, their findings are not evidence at the level at which they are made. See 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). However, in subsequent levels of appeal, the MC and PC findings from the prior adjudicative levels become evidence. See 20 CFR 404.1527(e)(1)(ii) and 416.927(e)(1)(ii). This NPRM retains that distinction. 16 Our current rules define signs and laboratory findings in 20 CFR 404.1528 and 416.928. We discuss the current definitions and our proposed definitions for these terms in the preamble section II.D. Objective medical evidence below. E:\FR\FM\09SEP2.SGM 09SEP2 62562 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules Category of evidence Source Summary of definition Prior administrative medical findings ................................ MCs and PCs ..................... Findings about medical issues made by MCs and PCs at a prior administrative level. We define and explain each category later in this preamble. Additionally, we frequently receive documents from medical sources that contain different categories of evidence on a single page, such as treatment notes containing both a laboratory finding and a medical opinion interpreting that finding. We would continue to follow our current practice to treat each kind of evidence from a medical source according to its category of evidence, even if there is more than one category of evidence on a single page. C. Medical Sources Medical evidence comes from medical sources. Our current rules define medical sources as AMSs or other healthcare providers who are not AMSs,17 and identify who is an AMS in 20 CFR 404.1502 and 416.902. We propose to revise our current definition of medical sources in 20 CFR 404.1502 and 416.902 to specify that a medical source must be an individual who is: (1) Licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law, or (2) 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. We propose to specify these two requirements in order that we may categorize evidence from healthcare providers as evidence coming from medical sources practicing lawfully. Because an entity, such as a hospital, may have possession of a medical source’s evidence, we would clarify in proposed 20 CFR 404.1512(b)(1)(i) and 416.912(b)(1)(i) that we will contact a claimant’s medical sources and entities that maintain a claimant’s medical evidence when we develop a complete medical history. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS D. Objective Medical Evidence We currently define objective medical evidence as signs and laboratory findings.18 To clarify our current policy, we propose to redefine objective medical evidence as signs, laboratory findings, or both to make clear that signs alone or laboratory findings alone are objective medical evidence. We propose 17 20 CFR 404.1502 and 416.902. CFR 404.1512(b)(1)(i) and 416.912(b)(1)(i) as defined in 20 CFR 404.1528(b) and (c) and 416.928(b) and (c). to include this definition in 20 CFR 404.1502(f) and 416.902(f). As part of our effort to better organize our regulations, we propose to move the existing definitions for signs, symptoms, and laboratory findings from current 20 CFR 404.1528 and 416.928 to the definitions section of 20 CFR 404.1502 and 416.902. We also propose to remove 20 CFR 404.1528 and 416.928 and make conforming changes to other related sections. For clarity, we also propose to make minor editorial revisions to the definition of laboratory findings in proposed 20 CFR 404.1502(c) and 416.902(g) that are consistent with our current policy. E. Medical Opinions Our program experience suggests that the reorganization and clarification of our current definitions and rules about medical opinions would make them easier to understand and use. For example, the category of ‘‘medical opinions’’ is called ‘‘other evidence from medical sources’’ in 20 CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii), but referred to as ‘‘statements from physicians, psychologists, or other [AMSs] that reflect judgments about the nature and severity of an individual’s impairment(s), including symptoms, diagnosis and prognosis, what the individual can still do despite impairment(s), and physical or mental restrictions’’ in 20 CFR 404.1527(a)(2) and 416.927(a)(2). Our current rules state that we weigh medical opinions using several factors as part of our consideration of this evidence.19 We discuss statements about what an individual can still do despite his or her impairment(s).20 We state that such a statement should describe the kinds of physical and mental capabilities we list in those sections. Similarly, although we do not directly define the phrase ‘‘your physical or mental restrictions’’ in 20 CFR 404.1527(a)(2) and 416.927(a)(2), our current rules in 20 CFR 404.1545(b)–(d) and 416.945(b)–(d) state which abilities we look for that may be limited by physical or mental restrictions. Our adjudicative experience has also shown that a narrower definition of medical opinions would improve our adjudicative process. Diagnoses and 18 20 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 19 See 20 20 PO 00000 20 CFR 404.1527 and 416.927. CFR 404.1513(c) and 416.913(c). Frm 00004 Fmt 4701 Sfmt 4702 prognoses do not describe how an individual functions. Also, while we always consider a claimant’s own statements about his or her symptoms, how we consider this kind of evidence is different from how we consider evidence from medical sources.21 A more appropriate focus of medical opinions would be perspectives from medical sources about claimants’ functional abilities and limitations. To help make our evidence rules easier to use and apply, we propose to redefine medical opinions to combine relevant, current text about functional abilities and limitations from different regulatory sections. We propose to specify that all medical sources other than MCs and PCs, not just AMSs, can create evidence that we will categorize as medical opinions. We also propose to remove symptoms, diagnosis, and prognosis from the current definition of medical opinions and add them to the definition of ‘‘other medical evidence’’ because these concepts do not describe a claimant’s functional abilities and limitations. We propose to add a definition for medical opinion in 20 CFR 404.1513(a)(2) and 416.913(a)(2). For adults filing for disability or blindness under titles II or XVI of the Act, a medical opinion would be a statement from a medical source about what an individual can still do and whether the individual has one or more impairment-related limitations or restrictions in specific abilities. For adult claims, we would specify which limitations and restrictions in current 20 CFR 404.1545 and 416.945 we would consider. For disability claims for children filing under title XVI of the Act,22 we propose to refer to a child’s abilities to function in the six domains of functioning found in current 20 CFR 416.926a(g)–(l). We discuss our proposals about considering and articulating our 21 See 404.1529 and 416.929. CFR 416.906 states: ‘‘If you are under age 18, we will consider you disabled if you have a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months. Notwithstanding the preceding sentence, if you file a new application for benefits and you are engaging in substantial gainful activity, we will not consider you disabled. We discuss our rules for determining disability in children who file new applications in §§ 416.924 through 416.924b and §§ 416.925 through 416.926a.’’ 22 20 E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS consideration of medical opinions below in Section VI, Consideration and articulation of medical opinions and prior administrative medical findings. Staff at the Appeals Council in the same ways we consider evidence from all other medical sources who are not MCs or PCs. F. Other Medical Evidence Our current rules of evidence include a category of evidence referred to as ‘‘other evidence from medical sources,’’ which includes medical history, opinions, and statements about treatment a claimant has received.23 Our current rules also describe medical reports and imply that only AMSs can create medical reports.24 Our rules describe medical reports by what they should include: (1) Medical history, (2) clinical findings (such as the results of physical or mental status examinations); (3) laboratory findings (such as blood pressure, x-rays); (4) diagnosis (statement of disease or injury based on its signs and symptoms); (5) treatment prescribed with response and prognosis; and (6) a statement about a claimant’s physical and mental abilities based on the AMS’ findings.25 To help make our evidence rules easier to use and apply, we propose to combine the categories ‘‘other evidence from medical sources’’ and ‘‘medical reports’’ into a single evidence category called ‘‘other medical evidence.’’ We also propose to clarify that all medical sources, not just AMSs, can produce other medical evidence. This category of evidence would include all medical evidence that is not objective medical evidence or a medical opinion, as well as examples of common kinds of evidence from our current rules. This would include items such as medical reports, diagnosis, and prognosis. We propose to move judgments about the nature and severity of a claimant’s symptoms, diagnosis, and prognosis from the current definition of medical opinion to the proposed definition of other medical evidence because these concepts do not describe a claimant’s functional abilities and limitations. We also propose to exclude laboratory findings from the proposed definition of other medical evidence because this is already included as part of the proposed definition of objective medical evidence. We would make these revisions in proposed 20 CFR 404.1513(a)(2) and 416.913(a)(2). We would continue to categorize and consider evidence from medical experts testifying at the hearings level and from medical sources in the Medical Support G. Statements From Nonmedical Sources CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii). 20 CFR 404.1512–404.1513(b), 404.1519g(a), and 416.912–416.913(b), and 404.919g(a). 25 20 CFR 404.1513(b)–(b)(6) and 416.913(b)– (b)(6). Our current rules state that nonmedical sources can provide two types of evidence: (1) Statements you or others make and (2) information from other sources. First, we define the term ‘‘statements you or others make’’ as statements a claimant or others make about a claimant’s impairment(s), restrictions, daily activities, efforts to work, or any other statement a claimant makes to medical sources during the course of examination or treatment, or to us during interviews, on applications, in letters, or in testimony during our administrative proceedings.26 Second, we define ‘‘information from other sources’’ by referencing 20 CFR 404.1513(d) and 416.913(d) for the definition of other sources.27 In those sections, we define the term ‘‘other sources,’’ for instance, as medical sources who are not listed as AMS, educational personnel, social welfare agency personnel, family members, friends, neighbors, and clergy.28 There is no difference in how we consider a statement a claimant or other nonmedical source makes and information from other sources; both sources can produce evidence to show the severity of an impairment and how it affects an individual’s ability to work. To help make our evidence rules easier to use and apply, we propose to combine ‘‘statements you or others make’’ and ‘‘information from other sources’’ into one category of evidence to be called ‘‘statements from nonmedical sources.’’ We would not include medical sources in this category of evidence. We would define this category of evidence as statements nonmedical sources make about an individual’s impairment(s), restrictions, daily activities, efforts to work, or any other relevant statements an individual makes to medical sources during the course of examination or treatment, or to us during interviews, on applications, in letters, and in testimony in our administrative proceedings. We also propose to distinguish between medical sources and nonmedical sources. A medical source would be someone currently classified 23 20 24 See VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 26 20 CFR 404.1512(b)(1)(iii) and 416.912(b)(1)(iii). 27 20 CFR 404.1512(b)(1)(iv) and 416.912(b)(1)(iv). 28 20 CFR 404.1513(d)(1)–(4) and 416.1513(d)(1)– (4). PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 62563 as an AMS or another source listed in current 20 CFR 404.1513(d)(1) and 416.913(d)(1) who is licensed or certified as a healthcare worker by a State and working within the scope of their healthcare license or certification. Consistent with this realignment of our rules, we propose to define nonmedical sources in 20 CFR 404.1502 and 416.902 as a source of evidence who is not a medical source and specify that this includes the claimant, educational personnel, social welfare agency personnel, family members, caregivers, friends, neighbors, and clergy. We would continue to consider statements from nonmedical sources to be important evidence that we would consider under 20 CFR 404.1520b and 416.920b. H. Prior Administrative Medical Findings State agencies make disability determinations at the initial and reconsideration levels of our administrative review process.29 In most States, a disability examiner makes a disability determination together with a State agency MC or PC, as appropriate.30 In States where we have been conducting our single decision maker pilot, our rules also allow Federal components to employ MCs and PCs to function just as they would for a State.31 The MCs and PCs create evidence that we currently categorize as both medical opinions and administrative findings of fact.32 These administrative findings of fact are about medical issues, including, but not limited to, the existence and severity of impairment(s), the existence and severity of symptoms, whether an impairment(s) meets or medically equals the requirements for an impairment in our Listing of Impairments,33 and an individual’s residual functional capacity (RFC). Although MCs and PCs base these administrative findings of fact on evidence in the case, the administrative findings are not, in themselves, 29 See 20 CFR 404.1615 and 416.1015. 20 CFR 404.906(b)(2), 404.1615(c)(1), 416.1015(c)(1), and 416.1406(b)(2). In States where we are using a single decision maker (SDM) under the rules in 20 CFR 404.906 and 416.1406, when the State agency disability examiner makes the disability determination alone, the disability examiner may also consult with an MC or PC to help make a disability determination, when appropriate. However, section 832 of the Bipartisan Budget Act of 2015, Pub. L. 114–74, 129 Stat. 584, 613 affects the use of an SDM. This NPRM does not propose to change the rules that recognize SDM authority. We intend to publish a separate NPRM that discusses in more detail how we propose to end SDM authority. 31 See 20 CFR 404.1661 and 416.1061. 32 20 CFR 404.1527(e) and 416.927(e). 33 20 CFR part 404, subpart P, Appendix 1. 30 See E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 62564 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules evidence at the level of the administrative review process at which we make the findings.34 They become medical evidence at subsequent levels in the administrative review process that adjudicators must consider and weigh as opinion evidence because MCs and PCs are highly qualified and are also experts in Social Security disability evaluation.35 To explain how we interpret these rules, we issued 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.36 SSR 96–6p explains that when ALJs or the AC issue decisions, they must weigh these opinions and administrative findings of fact using the same factors used to weigh other medical opinions. It also explains that in appropriate circumstances an MC or PC opinion might be entitled to greater weight than an opinion from a claimant’s treating source or an examining source. In order to simplify our rules, we propose to combine the two types of evidence our current rules state MCs and PCs make—administrative findings of fact and medical opinions—into a single category of evidence called ‘‘prior administrative medical findings.’’ We propose to define this evidence as findings about medical issues, other than the ultimate determination about whether you are disabled, made by our Federal and State agency medical and psychological consultants at a prior level of review based on their review of the evidence in your case record. We propose to identify as prior administrative medical findings the following medical issues: • The existence and severity of impairment(s); • the existence and severity of symptoms; • statements about whether an impairment(s) meets or medically equals the requirements for any impairment in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1; • in child claims under title XVI, whether an impairment(s) is functionally equivalent in severity to an impairment(s) in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1; 34 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). CFR 404.1527(e)(2)(i) and 416.927(e)(2)(i). 36 61 FR 34466 (July 2, 1996). • in adult claims, a claimant’s residual functional capacity; • whether an impairment(s) meets the duration requirement; and • how the policies about failure to follow prescribed treatment and drug addiction and alcoholism relate to a claim. These medical issues are similar to those currently listed in 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). We would consider and articulate our consideration of prior administrative medical findings using the same factors we use to consider medical opinions from medical sources. However, due to our proposed revisions to the definition of the evidence category of medical opinion, we would remove from several regulation sections references to MCs and PCs making medical opinions. Consistent with these proposals and our proposals below in Section VI, Consideration and articulation of medical opinions and prior administrative medical findings, we would also delete the definition of nonexamining source because it would be unnecessary as a result of other proposed revisions in this NPRM. We would also remove any reference to specialists during the initial and reconsideration levels because we would not use medical sources other than MCs and PCs. We propose to include these revisions in 20 CFR 404.1502, 404.1513(a)(6), 404.1513a, 416.902, 416.913(a)(6), and 416.913a. I. Decisions by Other Governmental Agencies and Nongovernmental Entities Several other governmental agencies and nongovernmental entities make decisions using their own rules about disability, blindness, and employability. These organizations include the Department of Veterans Affairs (VA), the Department of Defense (DOD), the Office of Personnel Management (OPM), the Department of Labor (DOL), State workers compensation programs, and private long-term disability insurance programs. As part of our claim development, we sometimes receive decisions or information about decisions made by other governmental agencies and nongovernmental entities, as well as the evidence relied on to make these decisions. Our current rules include a category of evidence called ‘‘decisions by any governmental or nongovernmental agency about whether you are blind or disabled.’’ 37 Our current rules state that these decisions are not binding on us because we must make a disability or blindness decision 35 20 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 37 20 PO 00000 CFR 404.1512(b)(1)(v) and 416.912(b)(1)(v). Frm 00006 Fmt 4701 Sfmt 4702 based on the Act and our regulations.38 We propose to clarify how we would consider disability and blindness decisions made by other agencies. We address this aspect of our policy in SSR 06–03p,39 in which we distinguish between issues reserved to the Commissioner—such as whether a claimant is disabled—and evidence that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies. In the ruling, we stated that we cannot ignore and must consider evidence of a disability decision by another governmental or nongovernmental agency. However, our program experience since we issued SSR 06–03p suggests we need to revise these policies. There are four reasons why we should not need to consider or articulate in our written determinations or decisions our consideration of decisions from other governmental and nongovernmental agencies. First, the purpose of the Act and the specific eligibility requirements for disability and blindness benefits under titles II and XVI of the Act differ significantly from the purpose and eligibility requirements of other programs. These differences include eligibility criteria, duration, insured status, individualized versus categorical medical and functional assessments, onset rules, how subjective complaints are considered, employability findings, consideration of past work, and consideration of other work.40 Therefore, other governmental agencies’ or nongovernmental entities’ decisions give us little indication whether a claimant is more or less likely to be found disabled or blind under the Act. Those decisions are not, by themselves, useful to us when we decide whether a claimant is disabled or blind under the Act and are therefore neither valuable nor persuasive evidence for determining disability or blindness under our rules. For example, VA and SSA disability differ significantly in purpose as well as in eligibility criteria. In determining 38 20 CFR 404.1504 and 416.904. 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, 71 FR 45593 (August 9, 2006). 40 These differences among the various programs are well-documented. For example, the Government Accountability Office (GAO) produced a report that highlighted the differences among SSA, VA, and DOD disability programs. GAO, Social Security Disability: Additional Outreach and Collaboration on Sharing Medical Records Would Improve Wounded Warriors’ Access to Benefits, GAO–09– 762 (September 2009), available at https:// www.gao.gov/assets/300/296693.pdf. 39 SSR E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules disability, the VA assigns a percentage disability rating based on a consideration of the effects of a disease or injury on a hypothetical, average person’s ability to earn income without consideration of a specific veteran’s age, education, or work experience.41 In contrast, under our rules, unless a claimant’s impairment(s) meets or medically equals a listing, we perform an individualized assessment that focuses on that particular claimant’s ability to perform work in the national economy. As part of this individualized assessment, the Act requires us to consider several criteria, such as whether a claimant has worked (substantial gainful activity), whether the claimant’s impairment(s) is expected to last at least 12 months or result in death (the duration requirement), how the claimant’s impairment(s) limit his or her physical and mental ability to do work activities (severity and assessment of RFC), whether the claimant can perform in his or her past relevant work given his or her RFC, and whether the claimant’s RFC, age, education, and work experience (the vocational factors) allow the claimant to perform other work that exists in significant numbers in the national economy. Thus, because of our different requirements, the mere fact that the VA process resulted in a particular disability rating is not predictive or useful evidence of whether the claimant will be found disabled under our rules, even upon consideration of the same impairment(s). Similarly, the DOD and OPM follow rules that are substantially different from our rules when they make determinations on disability retirement. State agencies and the DOL make determinations under State and Federal workers’ compensation programs, which vary from State to State and may involve determinations of partial disability, a concept that does not exist in our programs. These compensation programs may consider the individual’s ability to do past work, but make no consideration of the individual’s ability to do other work, as we are required to consider under our rules. Some States also make determinations about whether individuals are entitled to receive Medicaid and related benefits; however, those States may set individual eligibility criteria within the Federal minimum standards and may find individuals eligible to receive Medicaid for reasons other than disability. Furthermore, States may anticipate how we may interpret and apply our own 41 38 CFR 4.1. VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 rules regarding disability, but are not bound to follow our case development requirements and other regulations. Thus, in each instance, there are significant differences between our rules and the eligibility criteria and rules that other agencies or entities follow. Therefore, a finding of ‘‘disability’’ or a decision to award benefits made by any other agency or entity is not predictive of whether a claimant would be found disabled under our rules. Second, a record may indicate that another agency or entity decided to award benefits, but not include the decision itself. Alternatively, the decision might be in the record, but may not include any explanation about the factual findings or reasons for the decision. In those instances, there is nothing substantive about the decision for our adjudicators to consider. Third, our adjudicators follow regulations and other guidance specific to our program; they generally do not have a detailed understanding of the rules other agencies or entities apply when making their decisions. Consequently, our adjudicators lack the expertise to compare and contrast the differences between the Act and our rules, and the rules applied by another agency or entity. Accordingly, when our adjudicators follow our instructions in SSR 06–03p that require them to consider decisions in the record from another agency or entity in the record, they often simply state that they considered the other agency’s or entity’s decision, but that it was not binding because it was made using the other agency’s or entity’s rules and not ours. Our current requirement that adjudicators consider other agency’s or entity’s decisions therefore imposes an unnecessary articulation requirement on our adjudicators. Fourth, over time Federal courts have interpreted and applied our rules and SSR 06–03p differently in different jurisdictions. For example, in some circuits, the United States Courts of Appeals have stated that we should give disability decisions from the VA great or substantial weight absent some reasoned, fact-specific explanation for discounting the VA disability decisions.42 We administer a national 42 For example, the Ninth Circuit held that our ALJs must ‘‘ordinarily give great weight to a VA determination of disability’’ although ‘‘the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.’’ McCartey v. Massanari 298 F.3d 1072, 1076 (9th Cir. 2002). This principle has been followed in a number of more recent cases. See, e.g., Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694–95 (9th Cir. 2009) (ALJ’s explanation for giving little weight to a VA disability determination that rested on the general PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 62565 disability program, and our goal is to apply rules uniformly. We propose to revise our rules in 20 CFR 404.1504 and 416.904 to state that we will not provide any analysis in our determinations and decisions about how we consider decisions made by other governmental agencies or nongovernmental entities that an individual is disabled, blind, or unemployable in any claim for disability or blindness under titles II and XVI of the Act, and that we are not bound by those decisions. Although we would categorize decisions made by other governmental agencies or nongovernmental entities within the other medical evidence category if made by a medical source or a statement if made by a nonmedical source, we propose to state in 20 CFR 404.1520b and 416.920b that these decisions are inherently neither valuable nor persuasive to our disability and blindness determinations. Importantly, however, we would continue to consider relevant medical and other evidence that supports or underlies other governmental agencies’ or nongovernmental entities’ decisions that we receive based on the applicable evidence categories proposed above. For example, we would continue to consider a compensation and pension examination from a VA physician that underlies a VA disability rating, even though our adjudicators would not be required to give any particular weight to or analyze the specific VA disability rating. Similarly, we would continue to consider a medical opinion from a medical source submitted in support of a claimant’s workers’ compensation claim or Medicaid application, even grounds that the VA and SSA inquiries are different ran afoul of McCartey, although the ALJ’s reliance on evidence not before the VA was a persuasive, specific, and valid reason); Berry v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (rejecting two reasons the ALJ gave for discounting a VA determination, accepting a third ‘‘in part,’’ and remanding for reconsideration of the VA disability determination); McLeod v. Astrue, 640 F.3d 881, 885–86 (9th Cir. 2011) (claimant denied a full and fair hearing because the record suggested he had a VA disability rating, which was not in the record); Hiler v. Astrue, 687 F.3d 1208, 1211–12 (9th Cir. 2012) (ALJ misunderstood and did not properly evaluate the three VA decisions in the record). The Fourth Circuit has found McCartey persuasive and held that ‘‘SSA must give substantial weight to a VA disability rating’’ although ‘‘an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.’’ Bird v. Astrue, 699 F.3d 337, 343 (4th Cir. 2012). Subsequently, at least one district court within the Fourth Circuit has interpreted Bird as announcing a new standard for evaluating VA decisions. See, e.g.,, Persaud v. Colvin, No. 2:12-cv-661, 2014 WL 198922, *8–11 (E.D. Va. Jan. 14, 2014); Jacobs v. Colvin, No. 2:12cv-508, 2013 WL 5741538, *5–7 (E.D. Va. Oct. 22, 2013). E:\FR\FM\09SEP2.SGM 09SEP2 62566 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules though our adjudicators would not be required to give any weight to or discuss the decision to award workers’ compensation or Medicaid benefits. We could also still use information from other governmental agencies or nongovernmental entities we receive to process claims. For example, we would retain authority to expedite processing of claims for Wounded Warriors and for veterans with a 100% VA disability compensation rating, as we do now.43 For clarity, we also propose to change our current regulatory term ‘‘decisions by other organizations and agencies’’ to ‘‘decisions by other government agencies and nongovernment entities.’’ asabaliauskas on DSK3SPTVN1PROD with PROPOSALS J. Disability Examiner Findings Currently, in most States, disability examiners consult with MCs and PCs to make disability and blindness determinations at the initial and reconsideration levels of the administrative appeals process.44 The disability examiner’s findings about medical issues, vocational issues, and whether an individual is disabled becomes our determination. Under our current rules, we do not weigh disability examiner findings at subsequent levels of the administrative appeals process because adjudicators at each level make new findings for their determination or decision. This is in contrast to how we treat administrative findings about medical issues by MCs and PCs, which are evidence we weigh at subsequent levels of review. While this distinction is implied in our current regulation,45 we propose to state in 20 CFR 404.1520b(c)(2) and 416.920b(c)(2) that we will not provide any analysis about how we considered disability examiner findings from a prior level of adjudication. K. Statements on Issues Reserved to the Commissioner Statements on issues reserved to the Commissioner consist of opinions or statements about how we should interpret and apply our policies to a claim instead of simply stating a claimant’s abilities and limitations. Although our current list of evidence types in 20 CFR 404.1512 and 416.912 does not include issues reserved to the Commissioner, our rules do discuss medical source opinions on issues 43 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. 44 Some States use SDMs in certain situations to make a disability determination without consulting an MC or PC. See 20 CFR 404.906(b)(2), 404.1615(c), 416.1015(c), and 416.1406(b)(2). 45 See 20 CFR 404.1512(b)(6)–(8) and 416.912(b)(6)–(8). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 reserved to the Commissioner in 20 CFR 404.1527(d) and 416.927(d). Our rules state that opinions on issues reserved to the Commissioner are not medical opinions, because they are administrative findings that are dispositive of a case, i.e., that direct the determination or decision of disability. We give several examples of issues reserved to the Commissioner. These include statements by medical sources that a claimant is disabled or unable to work, whether a claimant’s impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments, a claimant’s RFC, and how we should apply the vocational factors. We issued SSR 96–5p to explain how we consider these types of opinions.46 The SSR states: (1) The difference between issues reserved to the Commissioner and medical opinions; (2) that treating source opinions on issues reserved to the Commissioner are never entitled to controlling weight or special significance; (3) that opinions from any medical source about issues reserved to the Commissioner must never be ignored, and that the notice of the determination or decision must explain the consideration given to the treating source’s opinion(s); and (4) the difference between the opinion called a medical source statement and the administrative finding called an RFC assessment.47 Since we published SSR 96–5p, we have frequently received requests to provide further guidance about how to identify and evaluate opinions about issues reserved to the Commissioner. One area we have been asked to clarify is how to consider and weigh the opinions because we do not give them any special significance. We also have received requests to provide additional examples of issues that are reserved to the Commissioner. Consistent with our goals to better define and organize our evidence regulations to produce more accurate and consistent determinations and decisions, we propose to define a statement on an issue reserved to the Commissioner as a statement that would direct the determination or decision of disability. Because we are responsible for making the determination or decision about whether a person meets 46 SSR 96–5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner (61 FR 34471 (July 2, 1996)). 47 The SSR also included a discussion about requirements for recontacting treating sources. Since the publication of the SSR, we also published final rules that revised how we consider medical source statements from State disability examiners (65 FR 11866 (March 7, 2000)). PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 the statutory definition of disability, a statement on an issue reserved to the Commissioner is inherently neither valuable nor persuasive to us. Although a statement on an issue reserved to the Commissioner would be categorized within other medical evidence if made by a medical source or a statement if made by a nonmedical source, we would not provide any analysis about how we considered such statements at all in our determinations and decisions. An example of a medical opinion that we could consider valuable or persuasive and that we may provide analysis about in a determination or decision is a medical source’s statement that a claimant could lift 10 pounds for up to one-third of an 8-hour day and less than 10 pounds for up to two-thirds of an 8-hour day, stand and walk for about 2 hours of an 8-hour day, and sit for up to 6 hours of an 8-hour day. An example of a statement on an issue reserved to the Commissioner that we would not provide any analysis about in a determination or decision because it is inherently neither valuable nor persuasive is that the claimant has an RFC for sedentary work. The second statement is an issue reserved to the Commissioner because it includes assumptions about what particular medical limitations and restrictions mean in terms of our policy. Another example of a statement on an issue reserved to the Commissioner that we would not provide any analysis about in a determination or decision is that the claimant ‘‘is disabled.’’ This statement includes assumptions about how we should apply our policy in a particular claim. To help adjudicators, representatives, and courts identify statements on issues reserved to the Commissioner, we propose to include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3): • Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work; • statements about whether or not an individual’s impairment(s) meets the duration requirement for disability; • statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments; • in title XVI child claims, statements about whether or not an individual’s impairment(s) functionally equals the Listings; • in adult claims, statements about what an individual’s RFC is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules instead of descriptions about his or her functional abilities and limitations; • in adult claims, statements about whether or not an individual’s RFC prevents him or her from doing past relevant work; • in adult claims, statements that an individual does or does not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and • statements about whether or not an individual’s disability continues or ends when we conduct a continuing disability review (CDR). We would also rescind SSR 96–5p consistent with these proposed revisions. III. Establishing the Existence of an Impairment A. Current Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS To be found disabled under titles II or XVI of the Act,48 an individual must have a physical or mental impairment that results from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.49 At step 2 of the sequential evaluation process, we determine both whether an individual has a medically determinable impairment(s) and, once the existence of the impairment(s) is established, whether it is severe.50 We interpret the Act as requiring us to obtain objective medical evidence— signs or laboratory findings—from an AMS to establish the existence of a medically determinable impairment.51 Once we have objective medical evidence from an AMS showing that the claimant has a medically determinable impairment or combination of impairments at step 2, we then consider evidence from all sources, regardless of AMS status, to determine the severity of those impairments at step 2. If we do not have objective evidence from an AMS to establish the existence of an impairment, we try to get this evidence from a claimant’s own AMS or by purchasing a consultative examination 48 The Act defines a disability as the ‘‘inability to engage in any substantial gainful activity by reason of any physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.’’ 42 U.S.C. 423(d) and 1382c(a)(3). We have a different definition for determining statutory blindness. See 42 U.S.C. 416(i)(1) and 1382c(a)(2). 49 42 U.S.C. 423(d)(3) and 1382c(a)(3)(D). 50 See 20 CFR 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). 51 See, e.g., SSR 16–3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 FR 14166 (March 16, 2016). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 (CE) with an AMS.52 Even if we already have evidence of signs or laboratory findings from a medical source who is not an AMS, under our current policy we cannot use this evidence to establish the existence of a medically determinable impairment. Our current policies also preclude the following types of evidence from establishing the existence of a medically determinable impairment at step 2 because they are not objective medical evidence: (1) A statement of symptoms, (2) a diagnosis, and (3) a medical opinion.53 The Act requires medically acceptable clinical and laboratory diagnostic techniques as evidence.54 A claimant’s self-reported symptoms and a medical source’s own subjective opinion do not meet this statutory requirement. We also cannot rely on a diagnosis to establish the existence of an impairment because sometimes medical sources diagnose individuals without using objective medical evidence. For example, a medical source may rely on a claimant’s reported symptoms or another medical source’s medical opinion, treat reported symptoms under a provisional diagnosis, or rule-out diagnosis without making this clear in the treatment note. In addition, we have found—especially with electronic medical records—diagnoses that are listed solely for billing and medical insurance reasons but that do not include supporting objective medical evidence. B. Proposed Revisions In order to assist representatives and our adjudicators in interpreting our rules, we propose to revise our rules to state affirmatively our current policy that we will not use a diagnosis, medical opinion, or an individual’s statement of symptoms to establish the existence of an impairment(s). We would clarify our rules to state that a physical or mental impairment must be established by objective medical evidence from an AMS. We would continue to follow our current policy if we have objective medical evidence from an AMS that a claimant has a severe impairment(s) at step 2, we will consider all evidence to determine the severity of the impairment(s) and all other findings in the sequential evaluation process. We would also continue to follow our current policy in 20 CFR 404.1529 and 416.929 about how we evaluate symptoms, including pain, when we determine severity and 52 See 20 CFR 404.1519a and 416.919a. 20 CFR 404.1508, 404.1528(a), 404.1529, 416.908, 416.928(a), and 416.929 and SSR 96–2p. 54 42 U.S.C. 423(d)(3) and 1382c(a)(3)(D). 53 See PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 62567 RFC. We would make these revisions to 20 CFR 404.1521, 404.1522, 416.921, and 416.922. IV. Acceptable Medical Sources (AMS) A. Current AMS Rules As noted above, under our current policy, only objective medical evidence from AMSs can be used to establish an impairment(s) at step 2 of the sequential evaluation process. Also, as we discuss below in ‘‘Treating Sources,’’ only AMSs can be treating sources. Our current rules recognize the following medical sources as AMSs: • Licensed physicians (medical or osteopathic doctors). • Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only. • Licensed optometrists, for purposes of establishing visual disorders only (except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of visual acuity and visual fields only). • Licensed podiatrists, for purposes of establishing 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. • Qualified speech-language pathologists, for purposes of establishing speech or language impairments only. For this source, qualified means that the speechlanguage 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 from the American Speech-Language-Hearing Association.55 B. Why We Are Proposing To Add New AMSs We propose to revise our rules to reflect changes in the national healthcare workforce and the manner that many people now receive primary medical care. Much of the medical evidence we receive in disability claims comes from primary care providers. Under our current rules, we are not able to consider an increasing number of primary care providers to be AMSs. For example, more than 50 percent of the 55 20 E:\FR\FM\09SEP2.SGM CFR 404.1513(a) and 416.913(a). 09SEP2 62568 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS nation’s more than 55,000 nurse practitioners specialize in primary care,56 and the total number of nurse practitioners increased almost 28 percent from 2004 to 2011.57 A nurse practitioner is one type of Advanced Practice Registered Nurses (APRN) we propose to add to our AMS list below. Nurse practitioners provide diagnostic and clinical treatment of acute and chronic illnesses. In the U.S., there is a simultaneous increasing shortage of primary care physicians.58 In fact, the American Association of Medical Colleges predicts a shortage of 90,000 primary care physicians by 2020.59 The Institute of Medicine recommended Federal agencies recognize the advanced level of care provided by APRNs.60 Similarly, an increasing percentage of healthcare services for hearing-related impairments come from audiologists instead of physicians.61 The Bureau of Labor Statistics predicts employment of audiologists will increase 25 percent by 2018.62 Audiologists assess, diagnose, and treat dysfunction in hearing, auditory and vestibular function, balance, and related disorders by obtaining a complete history and performing tests that include otoscopic examination, pure-tone audiometry, tympanometry, otoacoustic emissions measurements, and speech audiometry. Uneven geographic distribution of the healthcare workforce makes it difficult for individuals living in rural areas to 56 Agency for Healthcare Research and Quality, Primary Care Workforce Facts and Stats No. 3, available at https://www.ahrq.gov/research/findings/ factsheets/primary/pcwork3/. 57 American College of Nurse Practitioners, Numbers of Nurse Practitioners, available at https:// www.acnpweb.org; The Henry J. Kaiser Family Foundation, Total Nurse Practitioners, 2011, available at https://www.statehealthfacts.org.; U.S. Bureau of Labor Statistics, available at https:// www.bls.gov/ooh/Healthcare/Physicianassistants.htm. 58 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 https:// kaiserfamilyfoundation.files.wordpress.com/2013/ 01/8167.pdf. 59 American Association of Medical Colleges, More U.S. Medical Students Match to Primary Care for Second Consecutive Year, available at https:// www.aamc.org/newsroom. 60 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 https:// www.nationalacademies.org/hmd/Reports/2010/ The-Future-of-Nursing-Leading-Change-AdvancingHealth/Report-Brief-Scope-of-Practice.aspx. 61 See, for example, Sieminski, Louis R. The audiologist’s role in early intervention. Hearing Journal. Vol 63 (1): 35 (2010). 62 U.S. Bureau of Labor Statistics, Occupational Outlook Handbook, available at https://www.bls.gov/ ooh/healthcare/audiologists.htm. VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 access primary care providers who are AMSs. APRNs are more likely than licensed physicians to work in rural areas and to provide primary care treatment to those with limited access to physicians.63 Additionally, the National Law Center on Homelessness and Poverty (NLCHP) has expressed concern that the limited list of AMSs creates unnecessary delays in processing disability applications for low-income claimants who may receive primary healthcare only from non-AMS medical sources, such as APRNs.64 NLCHP notes that health professionals other than physicians and psychiatrists staff most programs for homeless claimants. As stated above, we pay for expensive consultative examinations with AMSs to establish the existence of an impairment when we already have this objective medical evidence from medical sources who are not AMSs. Adding these additional qualified AMSs would also reduce the need to pay for consultative examinations. C. Proposed New AMSs We propose to recognize both audiologists and APRNs with specific scope of practice requirements as AMSs in 20 CFR 404.1502(a) and 416.902(a). We propose to add to the AMS list licensed audiologists for purposes of establishing hearing loss and auditory processing disorders. We also propose to add to the AMS list APRNs and other licensed advanced practice nurses with other titles acting within their licensed scope of practice. For the reasons discussed below, we are satisfied that these medical sources have sufficiently consistent and rigorous national licensing requirements for education, training, certification, and scope of practice. Audiologists provide a substantial amount of the healthcare for hearingrelated impairments and States have dramatically increased licensing requirements for audiologists during the past decade. Audiologists obtain State licensure after completing a master’s or doctoral level-degree in a nationally accredited educational program. Most States require audiologists to pass a national audiology exam, such as the National Examination in Audiology administered by the Educational Testing 63 Agency for Healthcare Research and Quality, available at https://www.ahrq.gov/research/findings/ factsheets/primary/pcwork3/. 64 National Law Center on Homelessness and Poverty, Improving Access: Expanding Acceptable Medical Sources for the Social Security Administration Disability Determination Process, (2012), pg. 1, available at https://www.manatt.com/ uploadedFiles/Content/News_and_Events/Firm_ News/5.14.12%20Improving %20Access,%20FINAL.pdf. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Service, and to complete a significant number of supervised clinical training hours. Many States recognize that the nearly uniform criteria for certification from the American Board of Audiology (ABA) or a Certificate of Clinical Competence in Audiology (CCC–A) from the American Speech-LanguageHearing Association (ASHA) meet or exceed the States’ own audiology licensing requirements. To receive certification from the ABA, an audiologist must complete doctoral coursework, pass a national audiology examination, and complete 2,000 supervised hours of direct patient care. To receive a CCC–A, an audiologist must obtain a doctoral degree, pass the National Examination in Audiology, and complete a minimum of 1,820 supervised hours of clinical practicum. With a few minor State variations, there are four main kinds of APRNs: Certified Nurse Midwife, Nurse Practitioner, 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 propose to consider all of these medical source groups as AMSs if they are licensed by a State and acting within the scope of their practice. We would maintain a current list of State-specific AMS titles in our subregulatory instructions. We would not categorize evidence from an APRN to be AMS evidence if the APRN acted outside of his or her scope of practice, since under such circumstances, an APRN would be violating his or her State license. State licensure requirements for APRNs are rigorous. To receive APRN licensure, all States require these medical sources to have a registered nurse license and an advanced nursing educational degree.65 In addition, nearly all States require APRNs to obtain and maintain national certification by a standard advanced nursing credentialing agency,66 and these 65 In a very few States, the advanced nursing educational degree requirement may be achieved indirectly from the requirement to obtain the national certification. See Indiana’s Administrative Code 848 IAC 4–1–4 about Nurse Practitioners, available at https://www.in.gov/pla/files/ISBN.2011_ EDITION.pdf. See also South Dakota law 20:48:05:01 about Certified Registered Nurse Anesthetists, available at https://legis.sd.gov/Rules/ DisplayRule.aspx?Rule=20:48:05:01. 66 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 https://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 https://www.in.gov/pla/files/ E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS credentials require extensive education and training requirements.67 Despite minor variability in nomenclature and licensure requirements, a growing majority 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.68 Given the number of States and types of licenses, we consider the very few current differences in licensing requirements not to outweigh the sufficiently national and increasingly uniform State requirements, especially given the trend to full implementation of the Consensus Model for APRN Regulation. While we believe that these medical sources reflect the modern primary healthcare delivery system and are among the most highly qualified medical sources, we are particularly interested in receiving public comment on which criteria we should use when we determine which medical sources should be an AMS. In particular, we are interested in public comments about whether we should add physician assistants (PAs) to the AMS list. PAs are significant health care providers for certain underserved populations, including those in rural communities. We would like public comments on whether the licensing, education, and training requirements for PAs are sufficient and consistent across States for PAs to be considered AMSs in all cases. We would also like public comments on whether there are additional criteria we should use to support the inclusion of PAs on the AMS list in particular circumstances, and how we should consider these issues in the context of a national disability program with uniform rules. We are also interested in whether or not there are other professionals, such as licensed clinical social workers, who we should include on the AMS list. ISBN.2011_EDITION.pdf; (3) New York, see Education Law Article 139 § 6910 for Nurse Practitioners and Clinical Nurse Specialists, available at https://www.op.nysed.gov/prof/nurse/ article139.htm, and Article 140 § 79–5.2 for Midwives, available at https://www.op.nysed.gov/ prof/midwife/part79-5.htm; and (4) Oregon for Clinical Nurse Specialists, see Oregon Rules 851– 054–0040, available at https://arcweb.sos.state.or.us/ pages/rules/oars_800/oar_851/851_054.html. 67 See, for example, the American Academy of Nurse Practitioners Certification Program, available at https://www.aanpcert.org/ptistore/control/certs/ qualifications. 68 Available at https://www.aacn.nche.edu/ education-resources/APRNReport.pdf. VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 D. Other Revisions to the Current AMS List We propose to make six additional revisions to our current AMS list. The first two proposed revisions would update our rules about optometrists to reflect current State law about scope of practice. Our current rules include licensed optometrists for establishing visual disorders only, except in the U.S. Virgin Islands where licensed optometrists are included for the measurement of visual acuity and visual fields only.69 Subsequent to publication of the final rule in 2007 that added optometrists to the AMS and medical consultant list,70 the U.S. Virgin Islands enacted legislation that authorized full scope of practice for optometrists.71 Therefore, we propose to delete the exception for licensed optometrists in the U.S. Virgin Islands from our rules. On the other hand, Puerto Rico now has a limited scope of practice for licensed optometrists. Although licensed optometrists in Puerto Rico can perform visual acuity examination and visual field measurement, they are unable to prescribe medication or perform surgery.72 Consequently, in proposed 20 CFR 404.1502(a)(3) and 416.902(a)(3), we propose to limit licensed optometrists in Puerto Rico to the measurement of visual acuity and visual fields as is consistent with their scope of practice. Our third proposal is to revise our definition of psychologists as AMSs to include independently practicing, licensed or certified, psychologists. All of these psychologists have a minimum of a master’s degree. Although this is our subregulatory interpretation of the current regulatory language,73 we believe it would be clearer to place it in the regulatory language. Fourth, we propose to enumerate school psychologists separately from psychologists to clarify that the current ‘‘independent practice level’’ requirement applies to licensed or certified psychologists only but not to school psychologists. This is not a change in our current policy. Fifth, we propose to revise our rules to reflect that the title of the certificate 69 20 CFR 404.1513(a)(3) and 416.913(a)(3). FR 9239 (March 1, 2007). 71 Act 7376, available at https://www.legvi.org/ vilegsearch/ShowPDF.aspx?num=7376&type=Act, see also 27 V.I.C. 161(a), available at https:// www.lexisnexis.com/hottopics/vicode. 72 See 20 LPRA 544(b)(1), available at https:// www.lexisnexis.com/hottopics/lawsofpuertorico/. 73 See POMS DI 22505.004 Establishing the Credentials for Psychologists and School Psychologists Who Do Not Show Their Licensing or Certification Status, available at https:// secure.ssa.gov/apps10/poms.nsf/lnx/0422505004. 70 72 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 62569 that the ASHA issues to qualified speech-language pathologists is now a Certificate of Clinical Competence in Speech-Language Pathology. Our current rules in 20 CFR 404.1513(a)(5) and 416.913(a)(5) state that the certification is a Certificate of Clinical Competence. We propose to make this revision in proposed 20 CFR 404.1502 and 416.902. Sixth, we propose to revise how we use evidence from medical sources on the AMS list. For most AMS sources, our regulations state the medical source is an AMS for the purpose of establishing a particular kind of impairment(s). Because we use evidence from AMSs for additional purposes, such as determining whose medical opinions we articulate in a determination or decision, we propose to revise our regulations to allow the use of evidence ‘‘for impairment(s) of’’ in order to better describe what AMS status means in our rules. We propose to make this revision to 20 CFR 404.1502(a)(2)(ii)–(7) and 416.902(a)(2)(ii)–(7). E. Related Revisions to Our Listings Because we propose to recognize audiologists as AMSs, we also propose to revise our rules to specify what evidence would establish a medically determinable impairment that causes hearing loss that could meet the requirement of a listing in the Listing of Impairments.74 Under our Special Senses and Speech Listings, we currently require a complete otologic examination by a licensed physician (medical or osteopathic doctor) to establish a medically determinable impairment that causes hearing loss.75 We propose to remove the word ‘‘complete’’ because we currently specify the information we need in listing 2.00B2b and 102.00B2b, and we expect medical providers to follow professional standards for conducting examinations. We also propose to specify that audiologists, because they would be AMSs, could also perform the otologic examination. We propose to make these revisions in 20 CFR part 404, subpart P, Appendix 1 sections 2.00B for adults and 102.00B for children. V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs BBA section 832 states that when there is evidence indicating the existence of a physical impairment in a claim, we may not make an initial 74 See 20 CFR 404.1525 and 416.925. CFR part 404, subpart P, Appendix 1 sections 2.00B2b for adults and 102.00B2b. 75 20 E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 62570 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules disability determination until we have made every reasonable effort to ensure that a qualified physician has completed the medical portion of the case review and any applicable RFC assessment.76 Similarly, 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 disability 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 RFC assessment.77 These requirements will apply to how State agency DDSs use MCs and PCs to complete the medical portion of the case review and any applicable RFC assessment(s) at both the initial and reconsideration levels. To implement BBA section 832, we propose several revisions about who can be MCs and PCs who can complete the medical portion of the case review and any applicable RFC assessment(s). First, we currently authorize licensed physicians (medical or osteopathic) to be MCs who can complete the medical portion of the case review and any applicable RFC assessment for all physical impairments.78 We also authorize licensed optometrists, podiatrists, and speech-language pathologists to be MCs who can complete the medical portion of the case review and any applicable residual functional capacity assessment about physical impairments in their scope of practice.79 To implement BBA section 832, we propose to authorize only licensed physicians to be MCs, who must complete the medical portion of the case review and any applicable RFC assessment for physical impairments in a claim. Second, when we propose to deny a claim involving mental impairments, we are currently required to make every reasonable effort to ensure that a psychiatrist or psychologist completes the medical portion of the case review and any applicable RFC assessment. In practice psychiatrists and qualified psychologists also typically review claims we propose to allow.80 Our current regulations define the steps we must take to make every reasonable effort, as prescribed in section 221(h) of the Act. Current 20 CFR 404.1617 and 416.1017 states that if we are unable to obtain the services of a qualified 76 Pub, L, 114–74, § 832, Stat. 584, 613. 77 Id. CFR 404.1616(b) and 416.1016(b). CFR 404.1616(b) and (c) and 416.1016(b) and (c). 80 20 CFR 404.1615(d), 404.1616(d), 416.1015(d), and 416.1016(d). psychologist or psychiatrist after making every reasonable effort, then we authorize an MC who is a physician to complete the medical portion of the case review and any applicable residual functional capacity assessment for mental impairments in a claim.81 To implement BBA section 832, we propose to make every reasonable effort to ensure that psychiatrists or psychologists complete the medical portion of a case review and any applicable RFC assessment for mental impairments whether we propose to allow or deny a claim. Third, BBA section 832 requires us to make every reasonable effort to ensure that a qualified physician has completed the medical portion of the case review and any applicable residual functional capacity assessment about physical impairment(s) before we make an initial determination, just as we make every reasonable effort for claims involving mental impairments. To implement BBA section 832, we propose to also make every reasonable effort to have physicians complete the medical portion of the case review and any applicable RFC assessment about physical impairments in a claim. Fourth, we propose to revise our rules about who can be a PC. BBA section 832 states both psychiatrists and psychologists can make the medical assessment for mental impairments. For clarity, we propose to specify that a psychiatrist, who is a licensed physician, could serve as either an MC or PC. Instead of separately enumerating what constitutes a ‘‘qualified’’ psychologist who can be a PC, we also propose to define a psychologist in the same way we propose in our rules on AMSs in 20 CFR 404.1502(a)(2) and 416.902(a)(2). We propose to make these revisions to 20 CFR 404.1615–404.1617 and 416.1015–416.1017. Because BBA section 832 becomes effective for determinations made on and after November 2, 2016, we would begin applying these revisions to our MC and PC rules on that date. VI. Consideration and Articulation of Medical Opinions and Prior Administrative Medical Findings A. Our Current Rules About Considering Medical Opinions and Administrative Findings of Fact We consider all evidence in a claim, including medical opinions, when we determine disability.82 Our current rules explain the process we use to weigh medical opinions and administrative findings of fact.83 We consider the following factors when we weigh a medical opinion and an administrative finding of fact: • Examining relationship. Generally, we give more weight to the opinion of a source who has examined a claimant than to the opinion of a source who has not examined a claimant.84 • Treatment relationship. Generally, we give more weight to opinions from a claimant’s treating sources because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of a claimant’s medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. Within the treatment relationship factor, we also consider these sub-factors: 1. Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated a claimant and the more times a treating source has seen a claimant, the more weight we will give to the source’s medical opinion. When a treating source has seen a claimant a number of times and long enough to have obtained a longitudinal picture of a claimant’s impairment, we will give the source’s opinion more weight than we would give it if it were from a nontreating source.85 2. Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about a claimant’s 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 the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if an ophthalmologist notices that a claimant complained of neck pain during an eye examination, we will consider his or her opinion with respect to the neck pain, but we will give it less weight than that of another physician who has treated the claimant for the neck pain. When the treating source has reasonable knowledge of the claimant’s impairment(s), we will give the source’s opinion more weight than we would 78 20 79 20 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 83 See 81 Id. 82 42 U.S.C. 423(d)(5)(B) and 1382c(H)(i). See also 20 CFR 404.1520(a)(3), 404.1527(b), 416.920(a)(3), and 416.927(b). PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 20 CFR 404.1527(c) and 416.927(c). CFR 404.1527(c)(1) and 416.927(c)(1). 85 20 CFR 404.1527(c)(2)–(c)(2)(i) and 416.927(c)(2)–(c)(2)(i). 84 20 E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules give it if it were from a nontreating source.86 • Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because non-examining sources have no examining or treating relationship with a claimant, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in a claim, including opinions of treating and other examining sources.87 • Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.88 • Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.89 • Other factors. When we consider how much weight to give a medical opinion, we will also consider any factors brought to our attention, or of which we are aware, that tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an AMS has, regardless of the source of that understanding, and the extent to which an AMS is familiar with the other information in a case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.90 In addition to weighing all medical opinions and administrative findings of fact with these factors, our rules include special policies for weighing medical opinions from treating sources. We currently define a treating source as an individual’s own physician, psychologist, or other AMS who provides, or has provided, medical treatment or evaluation resulting from an ongoing treatment relationship. Generally, we consider a relationship ongoing if the AMS has seen an individual with a frequency consistent with the accepted medical practice for CFR 404.1527(c)(2)–(c)(2)(ii) and 416.927(c)(2)–(c)(2)(ii). 87 20 CFR 404.1527(c)(3) and 416.927(c)(3). 88 20 CFR 404.1527(c)(4) and 416.927(c)(4). 89 20 CFR 404.1527(c)(5) and 416.927(c)(5). 90 20 CFR 404.1527(c)(6) and 416.927(c)(6). the type of treatment or evaluation required for a specific medical condition(s). We do not consider an AMS to be a treating source if the relationship with the individual is based solely on that individual’s need to obtain an assessment or evaluation in support of a disability claim. In such a case, we consider the AMS to be a nontreating source.91 Under our current rules, a treating source’s medical opinion about the nature and severity of a claimant’s impairment(s) is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.92 Stated another way, when we find the supportability and consistency factors persuasive for a treating source, we will generally adopt the treating source’s opinion about the nature and severity of a claimant’s impairment(s). When we do not give controlling weight to a treating source’s medical opinion because it is not well-supported or is inconsistent with other substantial evidence in the case record, we will evaluate the medical opinion using all of the factors listed above. B. Our Current Rules About Articulating How We Consider Medical Opinions and Administrative Findings of Fact Once we consider all medical opinions and administrative findings of fact in the record, we articulate how we consider the following medical opinions and administrative findings of fact in the notice of determination or decision: 1. If we give controlling weight to a treating source’s medical opinion, we articulate how we considered only that medical opinion by giving good reasons for the weight we give it.93 2. If we do not give controlling weight to a treating source’s medical opinion, not only do we give good reasons for the weight we give to the treating source’s opinion, we also articulate how we considered medical opinions from all AMSs and administrative findings of fact.94 3. If we do not give controlling weight to a treating source’s medical opinion and we find that an opinion from a medical source who is not an AMS is more persuasive than the AMS medical opinions and administrative findings of fact, in addition to the requirements listed above, we also articulate how we 86 20 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 considered that non-AMS medical opinion.95 4. The adjudicator generally should explain the weight given to opinions from other sources when such opinions may have an effect on the outcome of the case.96 There is no clear requirement about which factors we must discuss in a determination or decision. C. History of the Controlling Weight Rule We based our policies about giving certain treating source opinions controlling weight on the Act’s requirement that we make every reasonable effort to obtain from the individual’s treating physician (or other treating healthcare provider) all medical evidence necessary to make a disability determination before evaluating medical evidence from a consultative source.97 Although the Act requires us to consider a treating medical source’s evidence, it does not specify how we should evaluate that evidence. Instead, the Act gives us the authority to adopt reasonable and proper rules, regulate and provide for the nature and extent of proof and evidence for disability claims.98 As the United States Supreme Court has emphasized, we have exceptionally broad statutory authority to establish rules about evidence.99 Responding to certain court decisions,100 in 1991 we issued final rules to create a uniform national policy about how to consider medical opinions from treating physicians.101 We stated that treating sources’ evidence tends to have a special, intrinsic value because treating sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of a claimant’s medical impairment(s) and may bring a unique perspective to the medical evidence.102 We also stated that, because medical opinions always have a subjective component and the effects of medical conditions on individuals vary widely, as no two cases are exactly alike, it is not possible to create rules that prescribe the weight to be given to each piece of evidence we may take into consideration. The 1991 final rule also recognized that the weighing of any evidence, including medical opinions, is a process of comparing the intrinsic value, 95 SSR 06–03p. 96 Id. 97 42 U.S.C. 423(d)(5)(B) and 1382c(H)(i). U.S.C. 405(a). 99 Bowen v. Yuckert, 482 U.S. 137, 145 (1987). 100 See, e.g., Schisler v. Bowen, 851 F.2d 43, 44 (2d Cir. 1988). 101 56 FR 36932 (Aug. 1, 1991). 102 56 FR at 36934 and 36961. 98 42 91 20 CFR 404.1502 and 416.902. CFR 404.1527(c)(2) and 416.927(c)(2). 93 20 CFR 404.1527(c)(2) and 416.927(c)(2). 94 20 CFR 404.1527(c) and (e) and 416.927(c) and (e). 92 20 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 62571 E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 62572 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules persuasiveness, and internal consistency of each piece of evidence together to determine which findings of fact the evidence best supports.103 We have revised our policies about weighing medical opinions from treating sources several times since the 1991 final rules. We expanded the definition of who can be a treating source to allow any AMS to be a treating source and expanded the list of AMSs to include osteopaths, optometrists, podiatrists, and speech-language pathologists.104 By expanding the AMS list, it became more common for claims to include medical opinions from multiple treating sources. In addition, claimants frequently submitted opinions from medical sources who were not AMSs and not considered treating sources under our rules. We also issued two SSRs to help adjudicators evaluate multiple medical opinions and opinions from sources who were not AMSs. We issued SSR 96–2p to clarify how we apply this policy and to explain terms in our regulations used in evaluating whether treating source medical opinions are entitled to controlling weight.105 We emphasized several policies, including: • A case cannot be decided by relying on a medical opinion if the medical source making that opinion does not provide reasonable support for the opinion. • Controlling weight may be given only to medical opinions that are about the nature and severity of an individual’s impairment(s). • Controlling weight may not be given to a treating source’s medical opinion unless the opinion is both well supported by medically acceptable clinical and laboratory diagnostic techniques (clinical signs and laboratory findings) and not inconsistent with the other substantial evidence in the case record. • To give a treating source’s opinion controlling weight means to adopt it. • A finding that a treating source’s medical opinion is not entitled to controlling weight does not mean that we reject the opinion. It may still be entitled to deference and an adjudicator may adopt it. We recognized a need to provide additional policy guidance because our 103 Id. at 36934–36935. 104 Medical and Other Evidence of Your Impairments and Definition of Medical Consultant, 65 FR 34952 (June 1, 2000); Optometrists as ‘‘Accepted Medical Sources’’ to Establish a Medically Determinable Impairment, 72 FR 9239 (March 1, 2007). 105 SSR 96–2p: Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 61 FR 34490 (July 2, 1996). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 rules did not explicitly tell our adjudicators how to consider the growing prevalence of opinions from claimants’ medical sources who did not qualify as treating sources under our regulations. We stated this additional policy guidance in SSR 06–03p.106 SSR 06–03p included the following guidance: • We may use evidence from medical sources who are not AMSs to show the severity of an impairment(s) and how it affects a claimant’s ability to function, but we may not use evidence from medical sources who are not AMSs to establish the existence of an impairment(s) at step 2 of the sequential evaluation process. • We should evaluate opinions from non-AMS sources using the same criteria used to evaluate AMS opinions. • We generally should explain the weight given to opinions from non-AMS sources when such opinions may have an effect on the outcome of the case. • We will explain how we considered an opinion from a non-AMS source when it is entitled to greater weight than a medical opinion from a treating source. D. Experience With the Current Rules for Weighing Medical Opinions The current policies for weighing medical opinions have resulted in several adjudicative issues. 1. The Number of Findings Required Our current policies require our adjudicators to make a large number of findings that need to be included in their determinations and decisions. Claims often contain evidence from a great number of medical sources, and each medical source may express several medical opinions.107 Some claim files contain opinions from ten or more medical sources. Our current rules require adjudicators to articulate the weight given to most of these opinions using the factors listed in 20 CFR 404.1527(c) and 416.927(c). Often, these medical opinions differ, and Federal courts have remanded cases citing failure to weigh properly one of the many medical opinions in a record. 2. Federal Court Perspectives Our rules specify that a treating source’s opinion is entitled to controlling weight only if it is wellsupported by medically acceptable 106 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, 71 FR 45593 (Aug. 9, 2006). 107 See ACUS Final Report at 14. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Our rules also require us to give good reasons in our notice of determination or decision for the weight we give a treating source’s opinion.108 However, some courts have questioned ALJs’ articulated reasons for not giving treating source opinions controlling weight. They have offered different reasons for rejecting ALJs’ articulated explanations for not giving controlling weight to treating source opinions, such as: The treating source opinion is more recent; 109 an ALJ may only discredit claimants’ reported pain symptoms using a heightened evidentiary standard; 110 an ALJ may not rely upon prescribed conservative treatment to indicate less severe restrictions.111 In effect, these reviewing courts have focused more on whether we sufficiently articulated the weight we gave treating source opinions rather than on whether substantial evidence supports the Commissioner’s final decision. As the 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.112 Some courts have recognized the challenges the treating source rule creates for us during judicial review. The United States Court of Appeals for the Seventh Circuit has specifically called on us to reexamine the treating physician rule. That court questioned its usefulness and noted that ‘‘the weight properly to be given to testimony or other evidence of a treating physician depends on circumstances.’’ 113 While the Supreme Court has not directly addressed this issue, its unanimous holding in Black & Decker Disability Plan v. Nord,114 which overturned the Ninth Circuit’s attempt to apply the treating physician rule to a different Federal statute, offers insight. The Court cautioned that that the treating physician rule’s built-in evidentiary bias in favor of treating physicians may influence treating 108 20 CFR 404.1527(c)(2) and 416.927(c)(2). example, see Winters v. Barnhart, 153 Fed. Appx. 846 (3d Cir. 2005). 110 For example, see Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 111 For example, see Santiago v. Barnhart, 386 F. Supp. 2d 20 (D.P.R. 2005). 112 ACUS Final Report at 23. 113 Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006). 114 538 U.S. 822, 832 (2003). 109 For E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules sources to favor a finding of disabled.115 ACUS commented: ‘‘The cautionary note sounded by the Supreme Court in Black & Decker applies as well, it would seem, to Social Security’s disability benefits programs. Indeed, as detailed in earlier parts of this report, our legal and empirical assessment of SSA’s treating physician rule suggests that the rule’s ‘routine deference’ to treating physicians may no longer be warranted.’’ 116 3. Ninth Circuit’s Credit-as-True Rule While 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, the Ninth Circuit uses a ‘‘credit-as-true’’ rule, which sometimes results in it ordering us to award benefits instead of remanding cases.117 The Ninth Circuit combines the treating physician rule with its credit-as-true rule in cases in which the court finds: 1. The ALJ failed to provide legally sufficient reasons for rejecting the treating source opinion; 2. there are no other issues that must be resolved before a determination of disability can be made; and 3. it is clear from the record that the ALJ would be required to find the claimant disabled if he or she credited the treating source opinion as true.118 Application of the credit-as-true rule prevents us from reconsidering the evidence in the record as a whole and correcting any errors that may exist, effectively supplanting the judgment of our decision makers. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 4. Difficulty Determining Treating Source Status Due to the Changing Nature of the Primary Healthcare System We stated in the 1991 final rules that our basis for creating the treating physician rule was the presumption that a claimant’s sole treating physician generally has the longitudinal knowledge and a unique perspective about his or her patient’s impairments that objective medical evidence alone cannot provide. 115 Id. at 832; see also Hofslien v. Barnhart, 439 F.3d at 376 noting that a treating physician may bend over backwards to assist a patient in obtaining benefits); Stephens v. Heckler, 766 F.2d 284, 289 (7th Cir. 1985) (noting that a treating physician may want to do a favor for a friend and client and so may too quickly find disability and might also lack appreciation of how one case compares with other related cases, whereas a consulting physician may bring both impartiality and expertise). 116 ACUS Final Report at 43. 117 For example, see Garrison v. Colvin, 759 F.3d 995, 1021–1022 (9th Cir. 2014). 118 Id. For example, see Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 However, changes in the national healthcare workforce and in the manner in which many people now receive primary medical care make this presumption less persuasive than when we issued those rules 25 years ago.119 One reason our current formulation needs to be revised is that many claimants receive healthcare from coordinated and managed care organizations instead of from one treating AMS. Claimants typically visit multiple medical professionals (such as primary physicians, specialists, and nurse practitioners) in a variety of medical settings (such as managed care and specialty clinics, hospitals, ambulatory care centers, and various public healthcare centers) for their healthcare needs, and less frequently develop a sustained relationship with one treating physician. Similarly, the specialized nature of healthcare delivery means that medical sources are less familiar with claimants’ entire medical situation. This is more pronounced for patients with chronic impairments who are often treated by a team of medical sources instead of by one treating medical source. Additionally, many claimants switch medical providers over time to match changes in insurance coverage.120 As a result of the current complex healthcare delivery model, adjudicators and courts have attempted to understand what level of medical care would qualify a medical source as a treating source under our current rules. The main source of divergence originates because our rules do not address how to weigh more than one treating source’s medical opinion simultaneously. In response, several courts have created varying standards of how we must address opinions from multiple treating sources. Some courts have even considered the following kinds of medical sources to be treating sources: • Physicians ‘‘with relatively sporadic treatment relationships’’ to claimants; 121 • all members of a healthcare team; 122 and • a physician who coordinated care among medical sources but who did not personally examine the claimant.123 119 See ACUS Final Report at 25–27 and footnotes. 120 See ACUS Final Report at footnotes 220 and 221. 121 ACUS Final Report at 34. For example, see Johnson v. Astrue, 597 F.3d 409, 411 (1st Cir. 2009). 122 For example, see Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003). 123 For example, see Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003). PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 62573 However, these approaches move our adjudication away from looking at the content of the medical opinions and towards weighing treatment relationships against each other. About these kinds of court holdings, ACUS stated: These cases reveal that, from the courts’ perspective, the distinction between treating and other physicians has blurred. The expansion of treating physician status runs the risk of undermining the rule itself. The original idea that the persuasiveness of medical opinion should turn more on the frequency of visits and depth of professional judgment underlying the medical opinion has gotten lost. This blurring of professional lines— between treating physicians and other medical professionals—is, moreover, increasingly reflected not just in judicial opinions, but in medical offices as well. Indeed, the treating physician business has expanded with new services to include doctors who see patients in high volume . . . . This ‘‘devaluation’’ of the physician-patient relationship calls into further question whether any deference—let alone ‘‘controlling weight’’—should be afforded to the opinions of this type of medical practitioner.124 5. Legal Scholars’ Perspectives on the Treating Physician Rule Some legal scholars also disfavor the treating physician rule. For example, two scholars argue that ‘‘[t]he substantial evidence standard of review should mean the same thing under the Social Security Act as it does under the APA or other organic statutes,’’ but that this rule influences courts to review our decisions differently.125 E. Proposed Revisions About How To Consider Medical Opinions and Prior Administrative Medical Findings To address the concerns discussed above, we propose several revisions to how we consider medical opinions and prior administrative medical findings. First, we would no longer give a specific weight to medical opinions and prior administrative medical findings; this includes giving controlling weight to medical opinions from treating sources. Instead, we would consider the persuasiveness of medical opinions and 124 ACUS Final Report at 35 (internal citations omitted). 125 Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 TEX. L. REV. 499, 546 (2011); see also Richard Pierce, Jr., Petition for Rulemaking before the Social Security Administration, July 2, 2012, available at www.regulations.gov by searching under Docket SSA–2012–0035. E:\FR\FM\09SEP2.SGM 09SEP2 62574 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules prior administrative medical findings using the factors described below. Second, we propose to consider supportability and consistency as the most important factors. Finally, we propose to reorganize the factors to: (1) List the supportability and consistency factors first, (2) include a ‘‘relationship with the claimant’’ factor that combines the content of the current examining relationship and treatment relationship factors, (3) list individually the three different factors currently combined as other factors, and (4) restate the factors using consistent sentence structure. First, we would consider the persuasiveness of medical opinions and prior administrative medical findings from all medical sources equally using the factors discussed below. We would not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding or medical opinion, including from an individual’s own healthcare providers. We would add this in proposed new 20 CFR 404.1520c(a) and 416.920c(a). We also propose to focus on the persuasiveness of medical opinions and prior administrative medical findings instead of the weight of an opinion. We always strive to make our regulations as clear as possible; therefore, we are agreeing with an ACUS recommendation to revise the regulations to avoid using terms or phrases that have different meanings in related contexts.126 Our current rules use the terms ‘‘weigh’’ or ‘‘weight’’ in several different ways: (1) As a synonym for considering all evidence generally,127 (2) as a synonym for persuasiveness,128 and (3) as part of our additional evidence standard for review used at the AC,129 and during CDRs.130 In addition to proposing to use the term ‘‘persuasive’’ instead of ‘‘weight’’ for medical opinions in 20 CFR 404.1520c and 416.920c, we also propose to use 126 ACUS Final Report at 56. 20 CFR 404.1520b and 416.920b. This term applies to all evidence, not only medical opinions. 128 See 20 CFR 404.1527(c) and 416.927(c). See also 56 FR 36931, 36935–36: ‘‘[B]ecause opinions always have a subjective component, because the effects of medical conditions on individuals vary so widely, and because no two cases are ever exactly alike, it is not possible to create rules that prescribe the weight to be given to each piece of evidence that we may take into consideration in every case. [The final rule] also recognizes that the weighing of any evidence, including opinions, is a process of comparing the intrinsic value, persuasiveness, and internal consistency of each piece of evidence together to determine which findings of fact are best supported by all of the evidence.’’ 129 See 20 CFR 404.970(b) and 416.1470(b). 130 See 20 CFR 404.1579(b)(4), 404.1594(b)(6), 416.979(b)(4), 416.994(b)(1)(vi), and 416.994a(a)(2). asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 127 See VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 the term ‘‘consider’’ instead of ‘‘weigh’’ in 20 CFR 404.1520b and 416.920b. We would retain the current standards for AC review and CDRs. Next, to rely more upon the content and less on the source of medical opinions and prior administrative medical findings, we propose to emphasize supportability and consistency as the most important factors for considering the value and persuasiveness of medical opinions and prior administrative medical findings. The supportability and consistency factors are the two factors that focus upon the objective medical evidence and medical reports supporting a medical opinion or prior administrative medical finding. These two factors are also the factors we evaluate when assigning controlling weight under our current rules.131 If a medical opinion or prior administrative medical finding is both well-supported and consistent with the other evidence in the case record, we typically find that it is persuasive. Under the proposed change, adjudicators would still consider the value of the medical opinion or prior administrative medical finding to the issues in the claim. Additionally, we propose several revisions to how we list and define the factors considering medical opinion and administrative finding of fact. The most important factors are supportability and consistency; therefore, we propose to list them first. We propose to list the remaining factors after the supportability and consistency factors in an order similar to how they appear in our current rules. We also propose to merge the current examining relationship and treatment relationship factors into one factor called ‘‘relationship with the claimant’’ because they both describe aspects of the relationship between a claimant and medical source. The proposed factor called ‘‘relationship with the claimant’’ would list the following subfactors separately: Examining relationship, length of the treatment relationship, frequency of examination, purpose of treatment relationship, and extent of the treatment relationship. Similarly, we propose to list separately the three factors we currently identify as other factors: (1) Familiarity with the entire record, (2) understanding of our policy, and (3) any other factor brought to our attention. Finally, we propose to restate the factors using consistent sentence structure for clarity. 131 See PO 00000 20 CFR 404.1527(c)(2) and 416.927(c)(2). Frm 00016 Fmt 4701 Sfmt 4702 We would make these revisions in the proposed new 20 CFR 404.1520c and 416.920c. F. Proposed Revisions About How To Articulate How We Consider Medical Opinions and Prior Administrative Medical Findings We propose to articulate in our determinations and decisions how we consider medical opinions and prior administrative medical findings at the source level instead of by the date of treatment and to focus more on the content than on the source of this evidence. We also propose to focus on the value and persuasiveness of medical opinions and prior administrative medical findings instead of assigning a specific weight. We propose to add the articulation policies in SSR 06–03p to our regulations and remove our policies about articulating medical opinions from treating sources from our rules. The proposed revisions would make our rules easier to understand and apply. We will continue to consider all evidence we receive in a claim. First, we propose to articulate together, instead of individually, all medical opinions and prior administrative medical findings made by a medical source because our administrative experience shows that adjudicators, claimants, representatives, and courts tend to evaluate all of a medical source’s evidence together. Additionally, 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. Therefore, we propose that our adjudicators articulate separately how they considered multiple medical opinions or prior administrative medical findings from one medical source. Second, we propose to simplify our rules about which medical sources’ medical opinions we would need to articulate. Because many claims have voluminous case records, it is not administratively feasible for us to articulate in determinations or decisions how we considered all medical sources’ medical opinions in a claim. Our current policy requires us to articulate how we considered all AMS medical opinions when controlling weight does not apply, but it does not require us to always articulate how we considered medical opinions from medical sources who are not AMSs. E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules Due to the advanced education and training received by AMSs, their medical opinions may have presumptive value in describing a claimant’s functional limitations and abilities. Therefore, we propose to require our adjudicators to articulate how persuasive they find all AMS medical opinions. Similarly, because all MCs and PCs are AMSs, we would require our adjudicators to articulate how persuasive they find the prior administrative medical findings in the case record. This requirement is similar to our current policy in SSR 06–03p. Under these proposed rules, if an adjudicator finds that a medical opinion(s) from a medical source who is not an AMS is more valuable and persuasive than all of the AMS medical opinions and prior administrative medical findings in the claim, then the adjudicator would articulate how he or she considered that medical opinion(s). For example, if a physical therapist submits evidence indicating functional limitations supported by objective medical evidence that is consistent with the other evidence in the claim, the adjudicator would articulate in the determination or decisions how he or she considered that evidence if it is more valuable and persuasive than the all of the other medical opinions and prior administrative medical findings in the claim. This proposed rule also gives adjudicators the discretion of whether to discuss non-AMS medical opinions they find are not valuable or persuasive. For example, if a physical therapist submits a form indicating functional limitations without sufficient support or that are not consistent with the other evidence in the claim, the adjudicator would have the discretion about whether to articulate in the determination or decisions how he or she considered that evidence. Third, we propose to specify which of the factors we must articulate in our determinations and decisions. Due to voluminous case records in some cases, it is not always administratively feasible for us to articulate how we considered each of the factors for all of the medical opinions and prior administrative medical findings in a claim while still offering timely customer service to our claimants. Instead, for AMS medical opinions and prior administrative medical findings, we would explain, in the determination or decision, how we considered the factors of supportability and consistency because those are the most important factors. Generally, under these proposed rules, we would have discretion to VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 articulate how we consider the other factors. We would only be required to explain how we consider other applicable factors when we find that two or more AMS’ medical opinions or prior administrative medical findings about the same issue are not the same but are both equally well-supported and consistent with the other evidence in the record. This situation may arise when the medical sources are discussing different impairments. Similarly, if we find that a non-AMS medical opinion(s) is well-supported and consistent with the other evidence in the record, as well as more valuable and persuasive than all AMS medical opinions and prior administrative medical findings, we would articulate how we consider the factors of supportability, consistency, and, if any, the other most persuasive factors. We would add these revisions in the proposed new 20 CFR 404.1520c and 416.920c. VII. Other Revisions Related to Treating Sources A. Background Our current regulations use the terms treating source and nontreating source in several sections. We consider a nontreating source to be a physician, psychologist, or other AMS who has examined an individual but does not, or did not, have an ongoing treatment relationship with that individual. The term includes an AMS who is a consultative examiner for us, when the consultative examiner is not the individual’s treating source.132 In addition to our rules about weighing medical opinions, our current rules include treating sources in two other contexts. First, we state that a claimant’s treating source will be the preferred source of a consultative examination when, in our judgment, the treating source is qualified, equipped, and willing to perform the additional examination or tests for the fee schedule payment, and generally furnishes complete and timely reports.133 We also state that we will use a medical source other than the treating source for a consultative examination in other situations, such as if there are conflicts or inconsistencies in a claim that cannot be resolved by going back to the treating source.134 The other context in which we use the term treating source is when a claimant must follow treatment prescribed by his or her physician if the treatment can 132 See 20 CFR 404.1502 and 416.902. CFR 404.1519h and 416.919h. 134 20 CFR 404.1519i and 416.919i. restore the claimant’s ability to work.135 Our subregulatory policy recognizes prescribed treatment from a claimant’s treating sources. B. Proposed Revisions The current healthcare delivery model involves many types of medical sources that are not currently AMSs and that we do not consider treating sources under our rules. A challenge has been the difference between our policy-specific intent for the term ‘‘treating source’’ and its colloquial use to refer to any medical source who has treated an individual. We are proposing to align our rules to focus more on the content of medical evidence than the source of that evidence. We propose to consider all medical sources that a claimant identifies as his or her medical sources for our rules and not use the term ‘‘treating source’’ in our regulations at all. Consequently, we propose to revise our rules to use the phrase ‘‘your medical source(s)’’ to refer to whichever medical sources a claimant chooses to use. First, we propose to revise our regulations at 20 CFR 404.1530(a) and 416.930(a) to state that a claimant must follow treatment by his or her medical source(s) if this treatment can restore his or her ability to work. Second, we propose to revise our rules to state that our preference for consultative examinations will be any of a claimant’s medical sources. We would continue to use the existing standards to decide whether to select the claimant’s medical source for the consultative examinations, such as whether the medical source is qualified, equipped, and willing to perform the additional examination or tests for the fee schedule payment, and generally furnishes complete and timely reports. We propose to make this revision to 20 CFR 404.1519h, 404.1519i, 416.919h, and 416.919i. We also propose to delete the final sentence of current 20 CFR 404.1519h and 416.919h that discusses which medical source may perform supplemental tests because this is already encompassed in the prior sentence’s use of the term ‘‘test(s).’’ Finally, because we would no longer use the terms treating source and nontreating source in our regulations, we propose to delete the definitions for these terms from our regulations at 20 CFR 404.1502 and 416.902. VIII. Reorganizing Our Opinion Evidence Regulations Our current regulations about opinion evidence are scattered throughout 20 133 20 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 62575 135 20 E:\FR\FM\09SEP2.SGM CFR 404.1530 and 416.930. 09SEP2 62576 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules CFR part 404 subpart P and part 416 subpart I. As part of our proposal to simplify our opinion evidence regulations to make them easier to understand and use, we are proposing to reorganize several sections and rename some section headings in our regulations. The proposed reorganization would combine similar topics now in separate sections into one section, place sections about how we weigh medical opinions and how we consider evidence next to each other, and add a section about establishing an impairment(s) at step 2 of the sequential evaluation process. For ease of use, the following are distribution and derivation tables for 20 CFR part 404 subpart P and part 416 subpart I: A. DISTRIBUTION TABLE asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Current section Proposed section 404.1501–404.1506 .................................................................................. 404.1508 ................................................................................................... 404.1509–404.1511 .................................................................................. 404.1512(a) .............................................................................................. 404.1512(b)–(b)(1)(iv) ............................................................................... 404.1512(b)(1)(v) ...................................................................................... 404.1512(b)(1)(vi)–(viii) ............................................................................ 404.1512(b)(2)–(b)(2)(iv) .......................................................................... 404.1512(c)–(c)(7) .................................................................................... 404.1512(d)–(f) ......................................................................................... 404.1513(a) .............................................................................................. 404.1513(b)–(b)(2) .................................................................................... 404.1513(c)–(c)(2) .................................................................................... 404.1513(d)–(d)(4) .................................................................................... 404.1513(e)–(e)(3) .................................................................................... 404.1514–404.1520b ................................................................................ 404.1521 ................................................................................................... 404.1522 ................................................................................................... 404.1523 ................................................................................................... 404.1525–404.1526 .................................................................................. 404.1527(a)(1) .......................................................................................... 404.1527(a)(2) .......................................................................................... 404.1527(b) .............................................................................................. 404.1527(c)–(c)(6) .................................................................................... 404.1527(d)–(d)(3) .................................................................................... 404.1527(e)–(e)(3) .................................................................................... 404.1528 ................................................................................................... 404.1529—Appendix 2 to Subpart P of Part 404 .................................... 416.901–416.906 ...................................................................................... 416.908 ..................................................................................................... 416.909–416.911 ...................................................................................... 416.912(a) ................................................................................................ 404.912(b)–(b)(1)(iv) ................................................................................. 404.912(b)(1)(v) ........................................................................................ 404.912(b)(1)(vi)–(viii) .............................................................................. 416.912(b)(2)–(b)(2)(iv) ............................................................................ 416.912(c)–(c)(7) ...................................................................................... 416.912(d)–(f) ........................................................................................... 416.913(a) ................................................................................................ 416.913(b)–(b)(2) ...................................................................................... 416.913(c)–(c)(2) ...................................................................................... 416.913(d)–(d)(4) ...................................................................................... 416.913(e)–(e)(3) ...................................................................................... 416.913(f) ................................................................................................. 416.914–416.920b .................................................................................... 416.923 ..................................................................................................... 416.925–416.926 ...................................................................................... 416.927(a)(1) ............................................................................................ 416.927(a)(2) ............................................................................................ 416.927(b) ................................................................................................ 416.927(c)–(c)(6) ...................................................................................... 416.927(d)–(d)(3) ...................................................................................... 416.927(e)–(e)(3) ...................................................................................... 416.928 ..................................................................................................... 416.929–416.999d .................................................................................... 404.1501–404.1506. 404.1521. 404.1509–404.1511. 404.1512(a)(1). 404.1513(a)–(a)(4). 404.1520b(c)(2). 404.1513(a)(5)–(a)(5)(vi). 404.1513(b)–(b)(2). 404.1512(a)(1)–(a)(1)(vii). 404.1512(b)(1)–(b)(3). 404.1502(a). 404.1513(a)–(a)(2). Remove. 404.1513(a)(4). 404.1512(a)(2)–(a)(2)(iii). 404.1514–404.1520b. 404.1522. 404.1523(a) and (b). 404.1523(c). 404.1525–404.1526. Remove. 404.1513(a)(3). 404.1527(b). 404.1520c(b)–(b)(7) and 404.1527(c)–(c)(6). 404.1520b(c)(3)–(c)(3)(vii) and 404.1527(d)–(d)(3). 404.1513(b)(3) and 404.1513a. 404.1502. 404.1529—Appendix 2 to Subpart P of Part 404. 416.901–416.906. 416.921. 416.909–416.911. 416.912(a)(1). 404.913(a)–(a)(4). 404.920b(c)(2). 404.913(a)(5)–(a)(5)(vi). 416.913(b)–(b)(2). 416.912(a)(1)–(a)(1)(vii). 416.912(b)(1)–(b)(3). 416.902(a). 416.913(a)–(a)(2). Remove. 416.913(a)(4). 416.912(a)(2)–(a)(2)(iii). 416.912(a)(3). 416.914–416.920b. 416.923(c). 416.925–416.926. Remove. 416.913(a)(3). 416.927(b). 416.920c(b)–(b)(7) and 416.927(c)–(c)(6). 416.920b(c)(3)–(c)(3)(vii) and 416.927(d)–(d)(3). 416.913(b)(3) and 416.913a. 416.902. 416.929–416.999d. B. DERIVATION TABLE Proposed section Current section 404.1501 ................................................................................................... 404.1502(a) .............................................................................................. 404.1502(b)–404.1503a ........................................................................... VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 PO 00000 Frm 00018 Fmt 4701 404.1501. 404.1513(a). 404.1502–404.1503a and 404.1528. Sfmt 4702 E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 62577 B. DERIVATION TABLE—Continued Proposed section Current section asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 404.1504–404.1507 .................................................................................. [Reserved] ................................................................................................ 404.1509–404.1511 .................................................................................. 404.1512(a)(1) .......................................................................................... 404.1512(a)(1)–(a)(1)(vii) ......................................................................... 404.1512(a)(2)–(a)(2)(iii) .......................................................................... 404.1512(b)(1)–(b)(3) ............................................................................... 404.1513(a)–(a)(2) .................................................................................... 404.1513(a)(3)–(a)(3)(iv) .......................................................................... 404.1513(a)(4) .......................................................................................... 404.1513(a)(5)–(a)(5)(v) ........................................................................... 404.1513(b)–(b)(2) .................................................................................... 404.1513a ................................................................................................. 404.1514–404.1520b ................................................................................ 404.1520b(c)(1) ........................................................................................ 404.1520b(c)(2) ........................................................................................ 404.1520b(c)(3) ........................................................................................ 404.1520c(b)–(b)(7) .................................................................................. 404.1521 ................................................................................................... 404.1522 ................................................................................................... 404.1523(a) and (b) .................................................................................. 404.1523(c) ............................................................................................... 404.1525–404.1526 .................................................................................. 404.1527 ................................................................................................... [Reserved] ................................................................................................ 404.1529—Appendix 2 to Subpart P of Part 404 .................................... 416.901 ..................................................................................................... 416.902(a) ................................................................................................ 416.902(b)–416.903a ............................................................................... 416.904–416.907 ...................................................................................... [Reserved] ................................................................................................ 416.909–416.911 ...................................................................................... 416.912(a)(1) ............................................................................................ 416.912(a)(1)–(a)(1)(vii) ........................................................................... 416.912(a)(2)–(a)(2)(iii) ............................................................................ 416.912(a)(3) ............................................................................................ 416.912(b)(1)–(b)(3) ................................................................................. 416.913(a)–(a)(2) ...................................................................................... 416.913(a)(3)–(a)(3)(iv) ............................................................................ 416.913(a)(4) ............................................................................................ 416.913(a)(5)–(a)(5)(v) ............................................................................. 416.913(b)–(b)(2) ...................................................................................... 416.913(b)(2) ............................................................................................ 416.913a ................................................................................................... 416.914–416.920b .................................................................................... 416.920b(c)(1) .......................................................................................... 416.920b(c)(2) .......................................................................................... 416.920b(c)(3) .......................................................................................... 416.920c(b)–(b)(7) .................................................................................... 416.921 ..................................................................................................... 416.922 ..................................................................................................... 416.923(a) and (b) .................................................................................... 416.923(c) ................................................................................................. 416.925–416.926 ...................................................................................... 416.927 ..................................................................................................... [Reserved] ................................................................................................ 416.929–416.999d .................................................................................... We also propose to reorganize the current text within 20 CFR 404.1520b and 416.920b for readability. Finally, we propose to make a number of revisions throughout the proposed regulatory sections to use plain language. IX. Effect Upon Certain Social Security Rulings Upon publication of final rules, we would also rescind the following SSRs VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 404.1504–404.1507. 404.1508. 404.1509–404.1511. 404.1512(a). 404.1512(c)–(c)(7). 404.1513(e)–(e)(3). 404.1512(d)–(f). 404.1512(b)(1)(i)–(b)(1)(ii). 404.1527(a)(2). 404.1512(b)(1)(iii)–(iv) and 404.1513(d)–(d)(4). 404.1512(b)–(b)(1)(viii). 404.1512(b)(2)–(b)(2)(iv). 404.1527(e)–(e)(3). 404.1514–404.1520b. 404.1512(b)(5). 404.1527(d)–(d)(3). 404.1527(e)(1)(i). 404.1527(c)–(c)(6). 404.1508. 404.1521. 404.1522. 404.1523. 404.1525–404.1526. 404.1527. 404.1528. 404.1529—Appendix 2 to Subpart P of Part 404. 416.901. 416.913(a). 416.902–416.903a and 416.928. 416.904–416.907. 416.908. 416.909–416.911. 416.912(a). 416.912(c)–(c)(7). 416.913(e)–(e)(3). 416.913(f). 416.912(d)–(f). 416.912(b)(1)(i)–(b)(1)(ii). 416.927(a)(2). 416.912(b)(1)(iii)–(iv) and 416.913(d)–(d)(4). 416.912(b)–(b)(1)(viii). 416.912(b)(2)–(b)(2)(iv). New. 416.927(e)–(e)(3). 416.914–416.920b. 416.912(b)(5). 416.927(d)–(d)(3). 416.927(e)(1)(i). 416.927(c)–(c)(6). 416.908. 416.921. 416.922. 416.923. 416.925–416.926. 416.927. 416.928. 416.928–416.999d. that would be inconsistent or unnecessarily duplicative with our new rules: • SSR 96–2p: Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions.136 136 61 PO 00000 FR 34490 (July 2, 1996). Frm 00019 Fmt 4701 Sfmt 4702 • SSR 96–5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner.137 • 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 137 61 E:\FR\FM\09SEP2.SGM FR 34471 (July 2, 1996). 09SEP2 62578 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Judge and Appeals Council Levels of Administrative Review; Medical Equivalence.138 • 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.139 In addition, because we would rescind SSR 96–6p, we intend to publish a new SSR that would discuss certain aspects of how ALJs and the AC must obtain evidence sufficient to make a finding of medical equivalence. • How we consider issues reserved to the Commissioner, as explained in current 20 CFR 404.1527(d) and 416.927(d); • How we consider decisions by other governmental agencies and nongovernmental entities, as explained in current 20 CFR 404.1504 and 416.904; and • Neither audiologists nor APRNs are AMSs, as explained in current 20 CFR 404.1502, 404.1513, 416.902, and 416.913. We also propose to make a number of conforming changes to reflect this proposed implementation process. X. Proposed Implementation Process We propose to implement all of the revisions discussed above on the effective date of the final rule, with the exception of those revisions specified below. The revisions that we propose to implement in all claims as of the effective date of the final rule respond fully to the mandate of BBA section 832 medical review requirements, clarify current policy, or are not substantially related to the policies about evaluating medical opinions. However, a claimant has the burden of proving to us that he or she is blind or disabled, and we are aware that claimants whose claims are pending administrative review may have requested and obtained treating and other medical source opinions based on our policy set forth in current 20 CFR 404.1527 and 416.927. Considering this fact, we propose to continue to use our current rules about how we consider medical source opinion evidence, including the controlling weight policy for treating sources, for claims that are filed before the effective date of the final rule. Using our current rules about how we consider medical source opinions for claims filed before the effective date of the final rule will also enable us to apply a uniform standard to evaluate medical source opinion evidence throughout the administrative review process. Specifically, we propose to continue to use the following current rules in claims that are filed before the effective date of the final rule: • The current definitions of a medical opinion and a treating source in current 20 CFR 404.1502, 404.1527(a), 416.902, and 416.927(a); • How we consider medical opinions, including that we may give controlling weight to certain medical opinions, as explained in current 20 CFR 404.1527(b)–(c) and 416.927(b)–(c); Executive Order 12866, as Supplemented by Executive Order 13563 138 61 FR 34466 (July 2, 1996). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 We consulted with the Office of Management and Budget (OMB) and determined that this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it. Regulatory Flexibility Act We certify that this NPRM would not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended. Paperwork Reduction Act These 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. Carolyn W. Colvin, Acting Commissioner of Social Security. For the reasons set out in the preamble, we propose to amend 20 CFR parts 404 416 as set forth below: Fmt 4701 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). 2. In § 404.906, revise the fourth sentence of paragraph (b)(2) to read as follows: ■ § 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 § 404.1617). * * * * * * * * ■ 3. In § 404.942, revise paragraph (f)(1) to read as follows: § 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 §§ 404.1513a, 404.1520a, 404.1526, and 404.1546. * * * * * Subpart P—Determining Disability and Blindness 4. The authority citation for subpart P of part 404 is revised to read as follows: Administrative practice and procedure, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). Frm 00020 Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions ■ 20 CFR Part 416 PO 00000 PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950– ) Sfmt 4702 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). 5. Revise § 404.1502 to read as follows: ■ E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 404.1502 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 only (except, in Puerto Rico, for the measurement of visual acuity and visual fields only); (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 speechlanguage 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 SpeechLanguage Pathology from the American Speech-Language-Hearing Association; (6) Licensed audiologist for impairments of hearing loss and auditory processing disorders only (only with respect to claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]); or (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 § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]). (b) Commissioner means the Commissioner of Social Security or his or her authorized designee. (c) Laboratory findings means 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 imaging (such as X-rays), and psychological tests. (d) 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. (e) 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. (f) Objective medical evidence means signs, laboratory findings, or both. (g) Signs means 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. (h) State agency means an agency of a State designated by that State to carry out the disability or blindness determination function. (i) Symptoms means your own description of your physical or mental impairment. (j) We or us means, as appropriate, either the Social Security Administration or the State agency making the disability or blindness determination. (k) 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. § 404.1503 [Amended] 6. In § 404.1503, remove paragraph (e). ■ 7. Revise § 404.1504 to read as follows: ■ PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 62579 § 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 § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE], 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 in our determination or decision relevant supporting evidence underlying the other governmental agency or nongovernmental entity’s decision that we receive as evidence in your claim. § 404.1508 [Removed and Reserved] 8. Remove and reserve § 404.1508: 9. Revise § 404.1512 to read as follows: ■ ■ § 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 § 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; E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 62580 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules (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 §§ 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 § 404.1509 is met; and (iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 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 reports 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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: (A) The month you were last insured for disability insurance benefits (see § 404.130); (B) 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 § 404.335(c)(1)); or (C) The month you attain age 22 and you are applying for child’s benefits based on disability (see § 404.350(e)). (2) Obtaining a consultative examination. We may ask you to attend one or more consultative examinations at our expense. See §§ 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 § 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 §§ 404.1560 through 404.1569a), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e)), age, education, and work experience. ■ 10. Revise § 404.1513 to read as follows: § 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 §§ 404.1520b, 404.1520c (or under § 404.1527 for claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE]). 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 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 signs, laboratory findings, or both, as defined in § 404.1502(f). (2) Medical opinions. 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 impairmentrelated 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, and pace; carrying out instructions; and responding appropriately to supervision, co-workers, and work pressures in a work setting; (iii) Your ability to perform other demands of work, such as seeing, hearing, and using other senses; and (iv) Your ability to adapt to environmental conditions, such as temperature extremes and fumes. (For claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE]), see § 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 § 404.614) before [EFFECTIVE DATE OF FINAL RULE], other medical evidence does not include diagnosis, prognosis, and statements that reflect judgments about the nature and severity of your impairment(s)). (4) Statements from nonmedical sources. A statement from a nonmedical source is a statement(s) made by nonmedical sources (including you) about your impairment(s), your restrictions, your daily activities, your efforts to work, or any other relevant statements the nonmedical source makes to medical sources during the course of your examination or treatment or that he or she makes to us during interviews, on applications, in reports or letters, and in testimony in our administrative proceedings. (5) Prior administrative medical findings. A prior administrative medical finding is a finding, other than the ultimate determination about whether you are disabled, about a medical issue E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) 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 § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim. (b) Exceptions for privileged communications. (1) The privileged communications listed in paragraphs (b)(1)(i) and (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; or (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 source 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 analysis, 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 source 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- VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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. ■ 11. Add § 404.1513a to read as follows: § 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 § 404.1615(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 § 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 § 404.1513(a)(5). (2) When a State agency disability examiner makes the initial determination alone as provided in § 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 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 62581 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 §§ 404.1520b and 404.1520c. (3) When a State agency disability examiner makes a reconsideration determination alone as provided in § 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 §§ 404.1520b and 404.1520c. (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 §§ 404.1520b and 404.1520c because our Federal or State agency medical or psychological consultants are highly qualified 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 §§ 404.1520b and 404.1520c, 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. ■ 12. In § 404.1518, revise paragraph (c) to read as follows: § 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. ■ 13. In § 404.1519g, revise paragraph (a) to read as follows: E:\FR\FM\09SEP2.SGM 09SEP2 62582 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules § 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. * * * * * ■ 14. Revise § 404.1519h to read as follows: § 404.1519h § 404.1520a Evaluation of mental impairments. * 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). ■ 15. Revise § 404.1519i to read as follows: § 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 § 404.1519g. ■ 16. In § 404.1519n, revise paragraph (c)(6) to read as follows: § 404.1519n Informing the medical source of examination scheduling, report content, and signature requirements. asabaliauskas on DSK3SPTVN1PROD with PROPOSALS * * * * * (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 § 404.1513(a)(3); and * * * * * VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 17. In § 404.1520a, revise the second sentence of paragraph (b)(1) to read as follows: ■ * * * * (b) * * * (1) * * * See § 404.1521 for more information about what is needed to show a medically determinable impairment. * * * * * * * * ■ 18. Revise § 404.1520b to read as follows: § 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 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 paragraphs (b)(2)(i) through (iv) of this section. We might not take all of the actions listed paragraphs (b)(2)(i) through (iv) of this section. 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 §§ 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 neither valuable nor persuasive. Paragraphs (c)(1) through (3) of this section apply in claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]. Because the evidence listed in paragraphs (c)(1) through (3) 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 § 404.1520c: (1) Decisions by other governmental agencies and nongovernmental entities. See § 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 (vii) 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; E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules (ii) Statements about whether or not your impairment(s) meets the duration requirement (see § 404.1509); (iii) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1; (iv) 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 § 404.1545); (v) Statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 404.1560); (vi) Statements that you do or do not meet the requirements of a medicalvocational rule in Part 404, Subpart P, Appendix 2; and (vii) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 404.1594). ■ 19. Add § 404.1520c to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 404.1520c How we consider and articulate medical opinions and prior administrative medical findings. This section applies to claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]. For claims filed before [EFFECTIVE DATE OF FINAL RULE], the rules in § 404.1527 apply. (a) General. As part of our consideration of all evidence in your claim under § 404.1520b, we consider and articulate how we consider medical opinions and prior administrative medical findings under this section. 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 (7) of this section, as appropriate. The most important factors we consider when we evaluate the evidentiary value 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 administrative medical findings in your claim according to paragraph (b) of this section. (b) Articulation procedure. We will articulate in our determination or decision how persuasive we find the medical opinions and prior administrative medical findings in your case record 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 one or more medical opinion(s) or prior administrative medical finding(s), we will consider the medical opinion(s) or prior administrative medical finding(s) from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. We are not required to articulate separately how we considered multiple medical opinions or prior administrative medical findings from one medical source. (2) Most important factors. For medical opinions and prior administrative medical findings in your case record made by acceptable medical sources, we will explain how we considered the factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) in your determination or decision because those are the most important factors. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (7) of this section, as appropriate, when we articulate how we consider the medical opinions and prior administrative medical findings from acceptable medical sources in your case record. (3) Equally persuasive medical opinions or prior administrative medical findings about the same issue from acceptable medical sources. When we find that two or more acceptable medical sources’ 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 (7) of this section for those medical opinions or prior administrative medical findings in your determination or decision. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 62583 (4) Medical opinions from medical sources who are not acceptable medical sources. We will articulate in your determination or decision how we considered the medical opinion(s) from a medical source who is not an acceptable medical source only if we find it to be well-supported and consistent with the record, as well as more valuable and persuasive than the medical opinion(s) and prior administrative medical findings from all of the acceptable medical sources in your case record. When we do articulate how we considered the medical opinion(s) of a medical source who is not an acceptable medical source, we will articulate in your determination or decision how we considered the factors of supportability (paragraph (c)(1) of this section), consistency (paragraph (c)(2) of this section), and the other most persuasive factors in paragraphs (c)(3) through (7) of this section, as applicable. (c) Factors for consideration. 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). (3) Relationship with the claimant— (i) 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. (ii) Length of the treatment relationship. The length of time of the treatment relationship may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s). (iii) 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). (iv) Purpose of treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the E:\FR\FM\09SEP2.SGM 09SEP2 62584 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules medical source has of your impairment(s). (v) 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). (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. (5) Familiarity with the entire record. The medical opinion or prior administrative medical finding of a medical source may be more persuasive if the evidence demonstrates that the medical source is familiar with the other evidence in your case record than if the medical source is not familiar with the other evidence in your case record. (6) Understanding of our policy. The medical opinion or prior administrative medical finding of a medical source may be more persuasive if the evidence demonstrates that the medical source understands our disability programs and evidentiary requirements. (7) Other factors. We will also consider any factors that tend to support or contradict a medical opinion or prior administrative medical finding. ■ 20. Revise § 404.1521 to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 § 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 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. ■ 21. Revise § 404.1522 to read as follows: VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 § 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. ■ 22. Revise § 404.1523 to read as follows: § 404.1523 Multiple impairments. (a) Unrelated severe impairments. We cannot combine two or more unrelated severe impairments to meet the 12month 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 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 process. If we do not find that you have a medically severe combination of impairments, we will determine that you are not disabled (see § 404.1520). ■ 23. In § 404.1525, revise the last sentence in paragraph (c)(2) to read as follows: § 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 § 404.1521. * * * * * ■ 24. In § 404.1526, revise paragraphs (d) and (e) to read as follows: § 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 § 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 § 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 § 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. E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 25. Revise § 404.1527 to read as follows: ■ asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 404.1527 Evaluating opinion evidence. This section applies to claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE DATE OF FINAL RULE], the rules in § 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 § 404.1520b. (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 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 opinion of a source who has examined you than to VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 the opinion of a source who has not examined you. (2) Treatment relationship. Generally, we give more weight to 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 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 opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (ii) of this section, as well as the factors in paragraphs (c)(3) through (6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s 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 source’s 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 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 opinion more PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 62585 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 an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources. (4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion. (5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the 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 opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable 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)(2) 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 E:\FR\FM\09SEP2.SGM 09SEP2 62586 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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 §§ 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 § 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. § 404.1528. [Removed and Reserved] 26. Remove and reserve § 404.1528. 27. In § 404.1529, revise paragraph (a), the second and third sentences of paragraph (c)(1), paragraph (c)(3) introductory text, and the third sentence of paragraph (c)(4) to read as follows: ■ ■ asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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 § 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 symptomrelated 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 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 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. * * * * * * * * ■ 28. In § 404.1530, revise paragraph (a) to read as follows: § 404.1530 treatment. Need to follow prescribed (a) What treatment you must follow. In order to get benefits, you must follow treatment prescribed by your medical source(s) if this treatment can restore your ability to work. * * * * * ■ 29. In § 404.1579, revise the second sentence of paragraph (b)(1) introductory text and the second sentence of paragraph (b)(4) to read as follows: § 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. * * * * * * * * ■ 30. In § 404.1594, revise the second sentence of paragraph (b)(1) introductory text, the sixth sentence in Example 1 following paragraph (b)(1), the second sentence of paragraph (b)(6), and the fourth sentence of paragraph (c)(3)(v) to read as follows: § 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 must be based on improvement in the symptoms, signs, and/or laboratory E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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). * * * * * * * * ■ 31. Amend appendix 1 to subpart P as follows: ■ a. In Part A: ■ i. Revise the second, third, and fourth sentences of 2.00.B.1.a; ■ ii. Revise 2.00.B.1.b; ■ iii. Revise the fourth sentence of 7.00H; ■ iv. Revise the second sentence of 8.00.C.3; ■ v. Revise the second sentence of 12.00.D.1.a; ■ vi. Revise the second sentence of 12.00.D.7; and ■ vii. Revise the fourth sentence of 14.00H. ■ b. In Part B: ■ i. Revise the second, third, and fourth sentences of 102.00.B.1.a; ■ ii. Revise 102.00.B.1.b; ■ iii. Revise the second sentence of 108.00.C.3.; ■ iv. Revise the first sentence 108.00.E.3.a; and ■ v. Revise the second sentence of 112.00.D.1. The revisions read as follows: Appendix 1 to Subpart P of Part 404— asabaliauskas on DSK3SPTVN1PROD with PROPOSALS * * * * * 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. * * * VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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. * * * * * 62587 a. General. We need documentation from an acceptable medical source to establish that you have a medically determinable impairment. * * * * * * * * 112.00 * * * D. * * * 1. * * * See §§ 404.1521 and 416.921. * * * * * * * * 7.00 * * * H. * * * (See sections 404.1521, 404.1529, 416.921, and 416.929 of this chapter.) * * * Subpart Q—Determinations of Disability * ■ * * * * 32. The authority citation for subpart Q of part 404 continues to read as follows: 8.00 * * * C. * * * 3. * * * We assess the impact of symptoms as explained in §§ 404.1521, 404.1529, 416.921, and 416.929 of this chapter. * * * 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)). * § 404.1615 * * * * 12.00 * * * D. * * * 1. * * * a. * * * See §§ 404.1521 and 416.921. * * * * * * * * 7. * * * Such test results may be useful for disability evaluation when corroborated by other evidence from medical and nonmedical sources, including results from other psychological tests and information obtained in the course of the clinical evaluation. * * * * * * * * 14.00 * * * H. * * * See §§ 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. * * * * * 108.00. * * * C. * * * 3. * * * We assess the impact of symptoms as explained in §§ 404.1521, 404.1529, 416.921, and 416.929 of this chapter. * * * * * E. * * * 3. * * * PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 [Amended] 33. In § 404.1615, remove paragraph (d) and redesignate paragraphs (e) through (g) as paragraphs (d) through (f). ■ 34. Revise § 404.1616 to read as follows: ■ § 404.1616 Medical consultants and psychological consultants. (a) What is a medical consultant? A medical consultant is a licensed physician (see § 404.1502(a)(1)) who is a member of a team that makes disability determinations in a State agency (see § 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 is a psychological consultant? A psychological consultant is a licensed psychiatrist or psychologist (see § 404.1502(a)(2)) who is a member of a team that makes disability determinations in a State agency (see § 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 in a claim involving a mental impairment(s), a medical consultant who is not a psychiatrist will evaluate the mental impairment(s). (c) Cases involving both physical and mental impairments. In a case where there is evidence of both physical and mental impairments, the medical E:\FR\FM\09SEP2.SGM 09SEP2 62588 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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 (b) of this section. ■ 35. Revise § 404.1617 to read as follows: § 404.1617 Reasonable efforts to obtain review by a physician, psychiatrist, and psychologist. 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 36. The authority citation for subpart I of part 416 continues to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS ■ 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). VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 37. Revise § 416.902 to read as follows: ■ § 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 only (except, in Puerto Rico, for the measurement of visual acuity and visual fields only); (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 speechlanguage 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 SpeechLanguage Pathology from the American Speech-Language-Hearing Association; (6) Licensed audiologist for impairments of hearing loss and auditory processing disorders only (only in claims filed (see § 416.325) on or after [EFFECTIVE DATE OF FINAL RULE]); or (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 in claims filed (see § 416.325) on or after [EFFECTIVE DATE OF FINAL RULE]). (b) Adult means a person who is age 18 or older. (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 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 performance of substantial gainful activity. For individuals who are working and for whom a disability redetermination is required, we will apply the rules in §§ 416.260–416.269. In conducting a disability redetermination, we will not use the rules for determining whether disability continues set forth in § 416.994 or § 416.994a. (See § 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 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 §§ 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 §§ 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 20 CFR 404 and 416. (See §§ 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); E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules asabaliauskas on DSK3SPTVN1PROD with PROPOSALS (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 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 §§ 416.925 and 416.926, or that it functionally equals the severity of the listings, as explained in § 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 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. ■ 38. In § 416.903, remove paragraph (e), redesignate paragraph (f) as paragraph (e), and revise newly redesignated paragraph (e) to read as follows: § 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 medicine appropriate to the child’s impairment(s) evaluates the case of the child. ■ 39. Revise § 416.904 to read as follows: § 416.904 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 § 416.325) on or after [EFFECTIVE DATE OF FINAL RULE] 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 in our determination or decision relevant supporting evidence underlying the other governmental agency or nongovernmental entity’s decision that we receive as evidence in your claim. § 416.908 [Removed and Reserved] 40. Remove and reserve § 416.908: 41. Revise § 416.912 to read as follows: ■ ■ § 416.912 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 § 416.913). 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 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 62589 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 §§ 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 § 416.909 is met; and (iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 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 reports 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 E:\FR\FM\09SEP2.SGM 09SEP2 62590 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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 §§ 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 § 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 §§ 416.960 through 416.969a), given your residual functional capacity (which we have already assessed, as described in § 416.920(e)), age, education, and work experience. ■ 42. Revise § 416.913 to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 416.913 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 §§ 416.920b, 416.920c (or under § 416.927 for claims filed (see § 416.325) before [EFFECTIVE DATE OF FINAL RULE]). We evaluate evidence we receive according to the rules pertaining to the relevant category of evidence. The categories of evidence are: VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 (1) Objective medical evidence. Objective medical evidence is medical signs, laboratory findings, or both, as defined in § 416.902(k). (2) Medical opinions. 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 impairmentrelated limitations or restrictions in the abilities listed in paragraphs (a)(2)(i)(A)–(D) and (a)(2)(ii)(A)–(F) of this section. (For claims filed (see § 416.325) before [EFFECTIVE DATE OF FINAL RULE]), see § 416.927(a) for the definition of medical opinion.) (i) Medical opinions in adult claims are about impairment-related limitations and restrictions in: (A) 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); (B) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, and pace; carrying out instructions; and responding appropriately to supervision, co-workers, and work pressures in a work setting; (C) Your ability to perform other demands of work, such as seeing, hearing, and using other senses; and (D) Your ability to adapt to environmental conditions, such as temperature extremes and fumes. (ii) Medical opinions in child claims are about impairment-related limitations and restrictions in your abilities in the six domains of functioning: (A) Acquiring and using information (see § 416.926a(g)); (B) Attending and completing tasks (see § 416.926a(h)); (C) Interacting and relating with others (see § 416.926a(i)); (D) Moving about and manipulating objects (see § 416.926a(j)); (E) Caring for yourself (see § 416.926a(k)); and (F) Health and physical well-being (see § 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 § 416.325) before [EFFECTIVE DATE OF FINAL RULE]), other medical evidence does not include diagnosis, PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 prognosis, and statements that reflect judgments about the nature and severity of your impairment(s)). (4) Statements from nonmedical sources. A statement from a nonmedical source is a statement(s) made by nonmedical sources (including you) about your impairment(s), your restrictions, your daily activities, your efforts to work, or any other relevant statements the nonmedical source makes to medical sources during the course of your examination or treatment or that he or she makes to us during interviews, on applications, in reports or letters, and in testimony in our administrative proceedings. (5) Prior administrative medical findings. 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 § 416.1400) 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 § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim. (b) Exceptions for privileged communications. (1) The privileged communications listed in paragraphs (b)(1)(i) and (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 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 E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules does not include medical evidence, medical source 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 analysis, 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 source 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 attorneyclient 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. ■ 43. Add § 416.913a to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 416.913a Evidence from our Federal or State agency medical or psychological consultants. The following paragraphs (a) through (c) 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 § 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 administrative review process as provided in § 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 § 416.913(a)(5). (2) When a State agency disability examiner makes the initial determination alone as provided in § 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 §§ 416.920b and 416.920c. (3) When a State agency disability examiner makes a reconsideration determination alone as provided in § 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 §§ 416.920b and 416.920c. (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 §§ 416.920b and 416.920c because our Federal or State agency medical or psychological consultants are highly qualified 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 §§ 416.920b and 416.920c, as appropriate. PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 62591 (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. ■ 44. In§ 416.918, revise paragraph (c) to read as follows: § 416.918 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. ■ 45. In § 416.919g, revise paragraph (a) to read as follows: § 416.919g 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. * * * * * ■ 46. Revise § 416.919h to read as follows: § 416.919h 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). ■ 47. Revise § 416.919i to read as follows: § 416.919i 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; E:\FR\FM\09SEP2.SGM 09SEP2 62592 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules (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 § 416.919g. ■ 48. In § 416.919n, revise paragraph (c)(6) to read as follows: § 416.919n 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 § 416.913(a)(3); and * * * * * ■ 49. In § 416.920a, revise the second sentence of paragraph (b)(1) to read as follows: § 416.920a Evaluation of mental impairments. * * * * * (b) * * * (1) * * * See § 416.921 for more information about what is needed to show a medically determinable impairment. * * * * * * * * ■ 50. Revise § 416.920b to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 416.920b 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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 (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 §§ 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 neither valuable nor persuasive. Paragraphs (c)(1) through (3) apply in claims filed (see § 416.325) on or after [EFFECTIVE DATE OF FINAL RULE]. Because the evidence listed in paragraphs (c)(1) through (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 § 416.920c: PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 (1) Decisions by other governmental agencies and nongovernmental entities. See § 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 (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 your impairment(s) meets the duration requirement (see § 416.909); (iii) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1; (iv) If you are a child, statements about whether or not your impairment(s) functionally equals the listings in appendix 1 to subpart P of part 404 (see § 416.926a); (v) If you are an adult, statements about what your residual functional capacity is using our programmatic terms about the functional exertional levels in appendix 2 to subpart P of part 404, Rule 200.00 instead of descriptions about your functional abilities and limitations (see § 416.945); (vi) If you are an adult, statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 416.960); (vii) If you are an adult, statements that you do or do not meet the requirements of a medical-vocational rule in appendix 2 to subpart P of part 404; and (viii) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 416.994). ■ 51. Add § 416.920c to read as follows: § 416.920c How we consider and articulate medical opinions and prior administrative medical findings. This section applies to claims filed (see § 416.325) on or after [EFFECTIVE DATE OF FINAL RULE]. For claims filed before [EFFECTIVE DATE OF FINAL RULE], the rules in § 416.927 apply. (a) General. As part of our consideration of all evidence in your E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules claim under § 416.920b, we consider and articulate how we consider medical opinions and prior administrative medical findings under this section. 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 (7) of this section, as appropriate. The most important factors we consider when we evaluate the evidentiary value 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) Articulation procedure. We will articulate in our determination or decision how persuasive we find the medical opinions and prior administrative medical findings in your case record 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 one or more medical opinion(s) or prior administrative medical finding(s), we will consider the medical opinion(s) or prior administrative medical finding(s) from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. We are not required to articulate separately how we considered multiple medical opinions or prior administrative medical findings from one medical source. (2) Most important factors. For medical opinions and prior administrative medical findings in your case record made by acceptable medical sources, we will explain how we considered the factors of supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section) in your determination or decision because those are the most VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 important factors. We may, but are not required to, explain how we considered the factors in paragraphs (c)(3) through (7) of this section, as appropriate, when we articulate how we consider the medical opinions and prior administrative medical findings from acceptable medical sources in your case record. (3) Equally persuasive medical opinions or prior administrative medical findings about the same issue from acceptable medical sources. When we find that two or more acceptable medical sources’ 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 (7) of this section for those medical opinions or prior administrative medical findings in your determination or decision. (4) Medical opinions from medical sources who are not acceptable medical sources. We will articulate in your determination or decision how we considered the medical opinion(s) from a medical source who is not an acceptable medical source only if we find it to be well-supported and consistent with the record, as well as more valuable and persuasive than the medical opinion(s) and prior administrative medical findings from all of the acceptable medical sources in your case record. When we do articulate how we considered the medical opinion(s) of a medical source who is not an acceptable medical source, we will articulate in your determination or decision how we considered the factors of supportability (paragraph (c)(1) of this section), consistency (paragraph (c)(2) of this section), and the other most persuasive factors in paragraphs (c)(3) through (7) of this section, as applicable. (c) Factors for consideration. 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 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 62593 sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s). (3) Relationship with the claimant— (i) 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. (ii) Length of the treatment relationship. The length of time of the treatment relationship may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s). (iii) 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). (iv) Purpose of 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). (v) 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). (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. (5) Familiarity with the entire record. The medical opinion or prior administrative medical finding of a medical source may be more persuasive if the evidence demonstrates that the medical source is familiar with the other evidence in your case record than if the medical source is not familiar with the other evidence in your case record. (6) Understanding of our policy. The medical opinion or prior administrative medical finding of a medical source may be more persuasive if the evidence demonstrates that the medical source understands our disability programs and evidentiary requirements. (7) Other factors. We will also consider any factors that tend to support or contradict a medical opinion or prior administrative medical finding. ■ 52. Revise § 416.921 to read as follows: E:\FR\FM\09SEP2.SGM 09SEP2 62594 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules § 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 § 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. ■ 53. Revise § 416.922 to read as follows: § 416.922 What we mean by an impairment(s) that is not severe in an adult. (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. ■ 54. Revise § 416.923 to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 416.923 Multiple impairments. (a) Unrelated severe impairments. We cannot combine two or more unrelated severe impairments to meet the 12month 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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 §§ 416.920 and 416.924). ■ 55. In § 416.924a, revise paragraph (a) introductory text, the last sentence of paragraph (a)(1)(i), the last sentence in paragraph (a)(1)(iii), and the paragraph (a)(2) heading to read as follows: § 416.924a Considerations in determining disability for children. (a) Basic considerations. We consider all evidence in your case record (see § 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). (1) * * * (i) * * * (See § 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 § 416.902(l). (2) Statements from nonmedical sources. * * * * * * * * ■ 56. In § 416.924b, revise the first sentence of paragraph (b)(3) to read as follows: PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 § 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. * * * ■ 57. In § 416.925, revise the last sentence in paragraph (c)(2) to read as follows: § 416.925 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 §§ 416.921 and 416.924(c). * * * * * ■ 58. In § 416.926, revise paragraphs (d) and (e) to read as follows: § 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 § 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 § 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 E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules changed under § 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. ■ 59. In § 416.926a, revise the second sentence of paragraph (b)(3) to read as follows: § 416.926a children. Functional equivalence for * * * * * (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. * * * * * * * * ■ 60. Revise § 416.927 to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 416.927 Evaluating opinion evidence. This section applies to claims filed (see § 416.325) before [EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE DATE OF FINAL RULE], the rules in § 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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 § 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 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 opinion of a source who has examined you than to the opinion of a source who has not examined you. (2) Treatment relationship. Generally, we give more weight to 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 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 opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (ii) of this section, as well as the factors in paragraphs (c)(3) through (6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source’s 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 source’s opinion more weight than we PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 62595 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 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 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 an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources. (4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion. (5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the 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 opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in E:\FR\FM\09SEP2.SGM 09SEP2 asabaliauskas on DSK3SPTVN1PROD with PROPOSALS 62596 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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)(2) 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 §§ 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 (2) of this section. (e) Evidence from our Federal or State agency medical or psychological consultants. The rules in § 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. § 416.928. [Removed and Reserved] 61. Remove and reserve § 416.928. ■ 62. In § 416.929, revise paragraph (a), the second and third sentences of paragraph (c)(1), paragraph (c)(3) introductory text, and the third sentence of paragraph (c)(4) to read as follows: ■ VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 § 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 § 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 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 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 symptomrelated 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. * * * * * * * * ■ 63. In § 416.930, revise paragraph (a) to read as follows: § 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 can restore your ability to work. * * * * * ■ 64. In § 416.993, revise the seventh and ninth sentences of paragraph (b) to read as follows: E:\FR\FM\09SEP2.SGM 09SEP2 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules § 416.993 Medical evidence in continuing disability review cases. * * * * * (b) * * * See § 416.912(b)(1)(i) concerning what we mean by every reasonable effort. * * * See § 416.912(b)(1)(ii). * * * * * ■ 65. In § 416.994, revise the sixth sentence in Example 1 following paragraph (b)(1)(i), the second sentence of paragraph (b)(1)(vi), and the fourth sentence of (b)(2)(iv)(E) to read as follows: § 416.994 How we will determine whether your disability continues or ends. * * (b) * * (1) * * (i) * * * * * * * * Example 1: * * * When we reviewed your claim your medical source who has treated you reported that he 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). * * * ■ 66. In§ 416.994a, revise the second sentence of paragraph (a)(2), the first sentence in paragraph (c)(2), the fourth sentence of paragraph (d), and paragraph (i)(1) introductory text to read as follows: asabaliauskas on DSK3SPTVN1PROD with PROPOSALS § 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 § 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 VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 62597 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)— * * * * * unable to obtain the services of a qualified psychiatrist or psychologist despite making every reasonable effort in a claim involving a mental impairment(s), a medical consultant who is not a psychiatrist will evaluate the mental impairment(s). (c) 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 (b) of this section. ■ 70. Revise § 416.1017 to read as follows: Subpart J—Determinations of Disability § 416.1017 Reasonable efforts to obtain review by a physician, psychiatrist, and psychologist. 67. The authority citation for subpart J of part 416 continues to read as follows: 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. ■ 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). § 416.1015 [Amended] 68. In § 416.1015, remove paragraph (d) and redesignate paragraphs (e) through (h) as paragraphs (d) through (g). ■ 69. Revise § 416.1016 to read as follows: ■ § 416.1016 Medical consultants and psychological consultants. (a) What is a medical consultant? A medical consultant is a licensed physician (see § 416.902(a)(1)) who is a member of a team that makes disability determinations in a State agency (see § 416.915), 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 is a psychological consultant? A psychological consultant is a licensed psychiatrist or psychologist (see § 416.902(a)(2)) who is a member of a team that makes disability determinations in a State agency (see § 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 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 71. The authority for subpart N continues to read as follows: ■ E:\FR\FM\09SEP2.SGM 09SEP2 62598 Federal Register / Vol. 81, No. 175 / Friday, September 9, 2016 / Proposed Rules 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). 72. In § 416.1406, revise the fourth sentence of paragraph (b)(2) to read as follows: ■ § 416.1406 Testing modifications to the disability determination procedures. * * * * (b) * * * (2) * * * However, before an initial determination is made in any case asabaliauskas on DSK3SPTVN1PROD with PROPOSALS * VerDate Sep<11>2014 18:20 Sep 08, 2016 Jkt 238001 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 § 416.1017). * * * * * * * * ■ 73. In § 416.1442, revise paragraph (f)(1) to read as follows: PO 00000 Frm 00040 Fmt 4701 Sfmt 9990 § 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 §§ 416.913a, 416.920a, 416.926, and 416.946. * * * * * [FR Doc. 2016–21358 Filed 9–8–16; 8:45 am] BILLING CODE 4191–02–P E:\FR\FM\09SEP2.SGM 09SEP2

Agencies

Social Security Administration

[Federal Register Volume 81, Number 175 (Friday, September 9, 2016)]
[Proposed Rules]
[Pages 62559-62598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21358]



[[Page 62559]]

Vol. 81

Friday,

No. 175

September 9, 2016

Part II





Social Security Administration





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20 CFR Parts 404 and 416





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

Federal Register / Vol. 81 , No. 175 / Friday, September 9, 2016 / 
Proposed Rules

[[Page 62560]]


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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: Notice of proposed rulemaking (NPRM).

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

DATES: To ensure that we consider your comments, we must receive them 
by no later than November 8, 2016.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2012-0035 so 
that we may associate your comments with the correct regulation.
    CAUTION: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at https://www.regulations.gov. Use the ``Search'' function to find docket number 
SSA-2012-0035. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments and background documents are available for public viewing 
on the Federal eRulemaking portal at www.regulations.gov or in person, 
during regular business hours, by arranging with the contact person 
identified below.

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: 

Preamble Table of Contents

I. Background
II. Redefining and Categorizing Terms Related to Evidence
    A. What Is Evidence
    B. Overview of Proposed Revisions
    C. Medical Sources
    D. Objective Medical Evidence
    E. Medical Opinions
    F. Other Medical Evidence
    G. Statements From Nonmedical Sources
    H. Prior Administrative Medical Findings
    I. Decisions by Other Governmental Agencies and Nongovernmental 
Entities
    J. Disability Examiner Findings
    K. Statements on Issues Reserved to the Commissioner
III. Establishing the Existence of an Impairment
    A. Current Rules
    B. Proposed Revisions
IV. Acceptable Medical Sources (AMS)
    A. Current AMS Rules
    B. Why We Are Proposing To Add New AMSs
    C. Proposed New AMSs
    D. Other Revisions to the Current AMS List
    E. Related Revisions to Our Listings
V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs
VI. Consideration and Articulation of Medical Opinions and Prior 
Administrative Medical Findings
    A. Our Current Rules About Considering Medical Opinions and 
Administrative Findings of Fact
    B. Our Current Rules About Articulating How We Consider Medical 
Opinions and Administrative Findings of Fact
    C. History of the Controlling Weight Rule
    D. Experience With the Current Rules for Weighing Medical 
Opinions
    1. The Number of Findings Required
    2. Federal Court Perspectives
    3. Ninth Circuit's Credit-as-True Rule
    4. Difficulty Determining Treating Source Status Due to the 
Changing Nature of the Primary Healthcare System
    5. Legal Scholars' Perspectives on the Treating Physician Rule
    E. Proposed Revisions About How To Consider Medical Opinions and 
Prior Administrative Medical Findings
    F. Proposed Revisions About How To Articulate How We Consider 
Medical Opinions and Prior Administrative Medical Findings
VII. Other Revisions Related to Treating Sources
    A. Background
    B. Proposed Revisions
VIII. Reorganizing Our Opinion Evidence Regulations
    A. Distribution Table
    B. Derivation Table
IX. Effect Upon Certain Social Security Rulings
X. Proposed Implementation Process

I. Background

    The Social Security Act (Act) mandates that we find an individual 
disabled only if he or she furnishes the medical and other evidence 
that we require.\1\ Much of the terminology and organization of our 
current evidence rules remain the same as when we adopted them in 1991 
(the 1991 final rules).\2\ In the 1991 final rules, we defined 
evidence, listed categories of evidence, explained the factors we use 
to weigh medical opinions, and explained that we give controlling 
weight to medical opinions from treating sources about the nature and 
severity of claimants' impairments if they are well-supported by 
medically acceptable clinical and laboratory diagnostic techniques and 
are not inconsistent with other substantial evidence in the record. 
This latter rule is commonly known as our ``treating physician rule.''
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    \1\ 42 U.S.C. 423(d)(5)(A) and 42 U.S.C. 1382c(a)(3)(H)(i).
    \2\ Standards for Consultative Examinations and Existing Medical 
Evidence, 56 FR 36932 (Aug. 1, 1991).
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    We have modified these rules a few times since 1991. We expanded 
the list of AMSs who can be medical consultants, who can provide 
medical opinions, and who can provide us

[[Page 62561]]

with objective medical evidence to establish the existence of an 
impairment(s) at step 2 of the sequential evaluation process.\3\ We 
also issued rules that clarified how administrative law judges (ALJ) 
and the Appeals Council (AC) must consider opinion evidence from State 
agency medical and psychological consultants, other program physicians 
and psychologists, and medical experts whom we consult.\4\ In addition, 
we have issued rules modifying the requirement that we recontact a 
person's medical source(s) when we need to resolve an inconsistency or 
insufficiency in the evidence he or she provided.\5\ We also clarified 
a person's duty to submit medical and other evidence that relates to 
his or her disability claim.\6\
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    \3\ See, e.g., Federal Old-Age, Survivors and Disability 
Insurance and Supplemental Security Income for the Aged, Blind, and 
Disabled; Medical and Other Evidence of Your Impairment(s) and 
Definition of Medical Consultant, 65 FR 34950 (June 1, 2000). See 
also, Optometrists as ``Acceptable Medical Sources'' To Establish a 
Medically Determinable Impairment, 72 FR 9239 (March 1, 2007).
    \4\ Federal Old-Age, Survivors and Disability Insurance and 
Supplemental Security Income for the Aged, Blind, and Disabled; 
Evaluating Opinion Evidence, 65 FR 11866 (March 7, 2000).
    \5\ How We Collect and Consider Evidence of Disability, 77 FR 
10651 (February 23, 2012).
    \6\ See Id., and Submission of Evidence in Disability Claims, 80 
FR 14828 (March 20, 2015).
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    As part of our reevaluation of our regulations that deal with 
weighing medical opinions, we asked the Administrative Conference of 
the United States (ACUS) \7\ to provide us with recommendations on how 
to improve our medical opinion evidence in the disability and blindness 
claims evaluation process. ACUS issued its Final Report (ACUS Final 
Report) in April 2013.\8\
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    \7\ 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 https://www.acus.gov/about-administrative-conference-united-states-acus.
    \8\ Administrative Conference of the United States, SSA 
Disability Benefits Programs: Assessing the Efficacy of the Treating 
Physician Rule (April 3, 2013), available at https://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf.
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    In light of the ACUS Final report and our adjudicative experience, 
we are proposing a number of revisions to our medical source and 
opinion evidence regulations to make them easier to understand and use. 
We expect that these changes will help us further ensure our high level 
of accuracy in future determinations and decisions. We discuss each of 
these proposed revisions below.
    We also propose to revise related rules about who can be MCs and 
PCs in conformity with requirements in the BBA.

II. Redefining and Categorizing Terms Related to Evidence

    We propose to redefine and categorize several terms to make our 
rules of evidence easier to understand and use. We also propose to 
identify certain types of evidence that are inherently neither valuable 
nor persuasive for our purposes and for which we will not articulate an 
analysis in determinations and decisions.

A. What Is Evidence

    Our current rules state that evidence is anything that we obtain or 
is submitted to us that relates to a claim.\9\ Our rules list several 
types of evidence as examples: (1) Objective medical evidence, (2) 
other evidence from medical sources (including medical opinions), (3) 
statements you or others make, (4) information from other sources, (5) 
decisions by any other governmental or nongovernmental agency, and (6) 
certain findings and opinions made by our employees and program 
experts.\10\
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    \9\ 20 CFR 404.1512(b) and 416.912(b).
    \10\ 20 CFR 404.1512(b)(1)(i)-(viii) and 416.912(b)(1)(i)-
(viii).
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    Our regulations also state that medical source opinions on issues 
reserved to the Commissioner do not satisfy our definition of a medical 
opinion.\11\ We issued Social Security Ruling (SSR) 96-5p to explain 
how we consider these opinions.\12\ However, our adjudicative 
experience has shown that we can improve the current regulatory 
structure for categorizing and evaluating this evidence.
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    \11\ The current definition of issues reserved to the 
Commissioner is found in 404.1527(d)(2)-(d)(3) and 416.927(d)(2)-
(d)(3).
    \12\ SSR 96-5p: Titles II and XVI: Medical Source Opinions on 
Issues Reserved to the Commissioner (61 FR 34471) (July 2, 1996)).
---------------------------------------------------------------------------

B. Overview of Proposed Revisions

    We propose to reorganize and define categories of evidence to make 
them easier to apply in the disability adjudication process. The 
proposed categories of evidence are: (1) Objective medical evidence, 
(2) medical opinions, (3) other medical evidence, (4) statements from 
nonmedical sources, and (5) prior administrative medical findings.\13\ 
Each category would have a specific definition and purpose in our 
administrative process.
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    \13\ 20 CFR 404.1512(d) and 416.912(d).
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    We would categorize evidence from medical sources other than our 
Federal and State agency MCs and PCs as objective medical evidence, 
medical opinions, or other medical evidence.\14\ We would categorize 
evidence from our MCs and PCs as prior administrative medical 
findings.\15\ We would categorize evidence from nonmedical sources, 
such as from the claimant, family, and employers, as statements from 
nonmedical sources.
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    \14\ When the Appeals Council uses the expertise of the medical 
sources on its Medical Support Staff, we categorize and consider the 
evidence from those medical sources as we do for any medical source 
who is not an MC or PC. We would continue to follow this practice 
under the rules proposed in this NPRM.
    \15\ Our current rules clarify that when MCs and PCs are part of 
the adjudicative team that makes disability determinations, their 
findings are not evidence at the level at which they are made. See 
20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). However, in 
subsequent levels of appeal, the MC and PC findings from the prior 
adjudicative levels become evidence. See 20 CFR 404.1527(e)(1)(ii) 
and 416.927(e)(1)(ii). This NPRM retains that distinction.
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    Because all evidence we would receive would fall within one of the 
categories of evidence, we would define all of the evidence categories. 
This means we would remove the current language that evidence is not 
limited to the listed examples because all evidence we receive would 
fit into a specified category of evidence.
    We propose to list and define the categories of evidence in 20 CFR 
404.1513(a)(1)-(5) and 416.913(a)(1)-(5). The following chart displays 
the proposed organization:
---------------------------------------------------------------------------

    \16\ Our current rules define signs and laboratory findings in 
20 CFR 404.1528 and 416.928. We discuss the current definitions and 
our proposed definitions for these terms in the preamble section 
II.D. Objective medical evidence below.

------------------------------------------------------------------------
     Category of evidence             Source       Summary of definition
------------------------------------------------------------------------
Objective medical evidence....  Medical sources..  Signs, laboratory
                                                    findings, or
                                                    both.\16\
Medical opinions..............  Medical sources..  Statements about
                                                    functional
                                                    limitations and
                                                    abilities.
Other medical evidence........  Medical sources..  All other evidence
                                                    from medical sources
                                                    that are not
                                                    objective medical
                                                    evidence or medical
                                                    opinions.
Statements from nonmedical      Nonmedical         All evidence from
 sources.                        sources.           nonmedical sources.

[[Page 62562]]

 
Prior administrative medical    MCs and PCs......  Findings about
 findings.                                          medical issues made
                                                    by MCs and PCs at a
                                                    prior administrative
                                                    level.
------------------------------------------------------------------------

    We define and explain each category later in this preamble.
    Additionally, we frequently receive documents from medical sources 
that contain different categories of evidence on a single page, such as 
treatment notes containing both a laboratory finding and a medical 
opinion interpreting that finding. We would continue to follow our 
current practice to treat each kind of evidence from a medical source 
according to its category of evidence, even if there is more than one 
category of evidence on a single page.

C. Medical Sources

    Medical evidence comes from medical sources. Our current rules 
define medical sources as AMSs or other healthcare providers who are 
not AMSs,\17\ and identify who is an AMS in 20 CFR 404.1502 and 
416.902.
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    \17\ 20 CFR 404.1502 and 416.902.
---------------------------------------------------------------------------

    We propose to revise our current definition of medical sources in 
20 CFR 404.1502 and 416.902 to specify that a medical source must be an 
individual who is: (1) Licensed as a healthcare worker by a State and 
working within the scope of practice permitted under State or Federal 
law, or (2) 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. We propose to specify these two 
requirements in order that we may categorize evidence from healthcare 
providers as evidence coming from medical sources practicing lawfully.
    Because an entity, such as a hospital, may have possession of a 
medical source's evidence, we would clarify in proposed 20 CFR 
404.1512(b)(1)(i) and 416.912(b)(1)(i) that we will contact a 
claimant's medical sources and entities that maintain a claimant's 
medical evidence when we develop a complete medical history.

D. Objective Medical Evidence

    We currently define objective medical evidence as signs and 
laboratory findings.\18\ To clarify our current policy, we propose to 
redefine objective medical evidence as signs, laboratory findings, or 
both to make clear that signs alone or laboratory findings alone are 
objective medical evidence. We propose to include this definition in 20 
CFR 404.1502(f) and 416.902(f).
---------------------------------------------------------------------------

    \18\ 20 CFR 404.1512(b)(1)(i) and 416.912(b)(1)(i) as defined in 
20 CFR 404.1528(b) and (c) and 416.928(b) and (c).
---------------------------------------------------------------------------

    As part of our effort to better organize our regulations, we 
propose to move the existing definitions for signs, symptoms, and 
laboratory findings from current 20 CFR 404.1528 and 416.928 to the 
definitions section of 20 CFR 404.1502 and 416.902. We also propose to 
remove 20 CFR 404.1528 and 416.928 and make conforming changes to other 
related sections.
    For clarity, we also propose to make minor editorial revisions to 
the definition of laboratory findings in proposed 20 CFR 404.1502(c) 
and 416.902(g) that are consistent with our current policy.

E. Medical Opinions

    Our program experience suggests that the reorganization and 
clarification of our current definitions and rules about medical 
opinions would make them easier to understand and use. For example, the 
category of ``medical opinions'' is called ``other evidence from 
medical sources'' in 20 CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii), 
but referred to as ``statements from physicians, psychologists, or 
other [AMSs] that reflect judgments about the nature and severity of an 
individual's impairment(s), including symptoms, diagnosis and 
prognosis, what the individual can still do despite impairment(s), and 
physical or mental restrictions'' in 20 CFR 404.1527(a)(2) and 
416.927(a)(2). Our current rules state that we weigh medical opinions 
using several factors as part of our consideration of this 
evidence.\19\
---------------------------------------------------------------------------

    \19\ See 20 CFR 404.1527 and 416.927.
---------------------------------------------------------------------------

    We discuss statements about what an individual can still do despite 
his or her impairment(s).\20\ We state that such a statement should 
describe the kinds of physical and mental capabilities we list in those 
sections. Similarly, although we do not directly define the phrase 
``your physical or mental restrictions'' in 20 CFR 404.1527(a)(2) and 
416.927(a)(2), our current rules in 20 CFR 404.1545(b)-(d) and 
416.945(b)-(d) state which abilities we look for that may be limited by 
physical or mental restrictions.
---------------------------------------------------------------------------

    \20\ 20 CFR 404.1513(c) and 416.913(c).
---------------------------------------------------------------------------

    Our adjudicative experience has also shown that a narrower 
definition of medical opinions would improve our adjudicative process. 
Diagnoses and prognoses do not describe how an individual functions. 
Also, while we always consider a claimant's own statements about his or 
her symptoms, how we consider this kind of evidence is different from 
how we consider evidence from medical sources.\21\ A more appropriate 
focus of medical opinions would be perspectives from medical sources 
about claimants' functional abilities and limitations.
---------------------------------------------------------------------------

    \21\ See 404.1529 and 416.929.
---------------------------------------------------------------------------

    To help make our evidence rules easier to use and apply, we propose 
to redefine medical opinions to combine relevant, current text about 
functional abilities and limitations from different regulatory 
sections. We propose to specify that all medical sources other than MCs 
and PCs, not just AMSs, can create evidence that we will categorize as 
medical opinions. We also propose to remove symptoms, diagnosis, and 
prognosis from the current definition of medical opinions and add them 
to the definition of ``other medical evidence'' because these concepts 
do not describe a claimant's functional abilities and limitations. We 
propose to add a definition for medical opinion in 20 CFR 
404.1513(a)(2) and 416.913(a)(2).
    For adults filing for disability or blindness under titles II or 
XVI of the Act, a medical opinion would be a statement from a medical 
source about what an individual can still do and whether the individual 
has one or more impairment-related limitations or restrictions in 
specific abilities. For adult claims, we would specify which 
limitations and restrictions in current 20 CFR 404.1545 and 416.945 we 
would consider. For disability claims for children filing under title 
XVI of the Act,\22\ we propose to refer to a child's abilities to 
function in the six domains of functioning found in current 20 CFR 
416.926a(g)-(l).
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    \22\ 20 CFR 416.906 states: ``If you are under age 18, we will 
consider you disabled if you have a medically determinable physical 
or mental impairment or combination of impairments that causes 
marked and severe functional limitations, and that can be expected 
to cause death or that has lasted or can be expected to last for a 
continuous period of not less than 12 months. Notwithstanding the 
preceding sentence, if you file a new application for benefits and 
you are engaging in substantial gainful activity, we will not 
consider you disabled. We discuss our rules for determining 
disability in children who file new applications in Sec. Sec.  
416.924 through 416.924b and Sec. Sec.  416.925 through 416.926a.''
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    We discuss our proposals about considering and articulating our

[[Page 62563]]

consideration of medical opinions below in Section VI, Consideration 
and articulation of medical opinions and prior administrative medical 
findings.

F. Other Medical Evidence

    Our current rules of evidence include a category of evidence 
referred to as ``other evidence from medical sources,'' which includes 
medical history, opinions, and statements about treatment a claimant 
has received.\23\ Our current rules also describe medical reports and 
imply that only AMSs can create medical reports.\24\ Our rules describe 
medical reports by what they should include: (1) Medical history, (2) 
clinical findings (such as the results of physical or mental status 
examinations); (3) laboratory findings (such as blood pressure, x-
rays); (4) diagnosis (statement of disease or injury based on its signs 
and symptoms); (5) treatment prescribed with response and prognosis; 
and (6) a statement about a claimant's physical and mental abilities 
based on the AMS' findings.\25\
---------------------------------------------------------------------------

    \23\ 20 CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii).
    \24\ See 20 CFR 404.1512-404.1513(b), 404.1519g(a), and 416.912-
416.913(b), and 404.919g(a).
    \25\ 20 CFR 404.1513(b)-(b)(6) and 416.913(b)-(b)(6).
---------------------------------------------------------------------------

    To help make our evidence rules easier to use and apply, we propose 
to combine the categories ``other evidence from medical sources'' and 
``medical reports'' into a single evidence category called ``other 
medical evidence.'' We also propose to clarify that all medical 
sources, not just AMSs, can produce other medical evidence. This 
category of evidence would include all medical evidence that is not 
objective medical evidence or a medical opinion, as well as examples of 
common kinds of evidence from our current rules. This would include 
items such as medical reports, diagnosis, and prognosis.
    We propose to move judgments about the nature and severity of a 
claimant's symptoms, diagnosis, and prognosis from the current 
definition of medical opinion to the proposed definition of other 
medical evidence because these concepts do not describe a claimant's 
functional abilities and limitations. We also propose to exclude 
laboratory findings from the proposed definition of other medical 
evidence because this is already included as part of the proposed 
definition of objective medical evidence. We would make these revisions 
in proposed 20 CFR 404.1513(a)(2) and 416.913(a)(2).
    We would continue to categorize and consider evidence from medical 
experts testifying at the hearings level and from medical sources in 
the Medical Support Staff at the Appeals Council in the same ways we 
consider evidence from all other medical sources who are not MCs or 
PCs.

G. Statements From Nonmedical Sources

    Our current rules state that nonmedical sources can provide two 
types of evidence: (1) Statements you or others make and (2) 
information from other sources.
    First, we define the term ``statements you or others make'' as 
statements a claimant or others make about a claimant's impairment(s), 
restrictions, daily activities, efforts to work, or any other statement 
a claimant makes to medical sources during the course of examination or 
treatment, or to us during interviews, on applications, in letters, or 
in testimony during our administrative proceedings.\26\
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    \26\ 20 CFR 404.1512(b)(1)(iii) and 416.912(b)(1)(iii).
---------------------------------------------------------------------------

    Second, we define ``information from other sources'' by referencing 
20 CFR 404.1513(d) and 416.913(d) for the definition of other 
sources.\27\ In those sections, we define the term ``other sources,'' 
for instance, as medical sources who are not listed as AMS, educational 
personnel, social welfare agency personnel, family members, friends, 
neighbors, and clergy.\28\ There is no difference in how we consider a 
statement a claimant or other nonmedical source makes and information 
from other sources; both sources can produce evidence to show the 
severity of an impairment and how it affects an individual's ability to 
work.
---------------------------------------------------------------------------

    \27\ 20 CFR 404.1512(b)(1)(iv) and 416.912(b)(1)(iv).
    \28\ 20 CFR 404.1513(d)(1)-(4) and 416.1513(d)(1)-(4).
---------------------------------------------------------------------------

    To help make our evidence rules easier to use and apply, we propose 
to combine ``statements you or others make'' and ``information from 
other sources'' into one category of evidence to be called ``statements 
from nonmedical sources.'' We would not include medical sources in this 
category of evidence. We would define this category of evidence as 
statements nonmedical sources make about an individual's impairment(s), 
restrictions, daily activities, efforts to work, or any other relevant 
statements an individual makes to medical sources during the course of 
examination or treatment, or to us during interviews, on applications, 
in letters, and in testimony in our administrative proceedings.
    We also propose to distinguish between medical sources and 
nonmedical sources. A medical source would be someone currently 
classified as an AMS or another source listed in current 20 CFR 
404.1513(d)(1) and 416.913(d)(1) who is licensed or certified as a 
healthcare worker by a State and working within the scope of their 
healthcare license or certification. Consistent with this realignment 
of our rules, we propose to define nonmedical sources in 20 CFR 
404.1502 and 416.902 as a source of evidence who is not a medical 
source and specify that this includes the claimant, educational 
personnel, social welfare agency personnel, family members, caregivers, 
friends, neighbors, and clergy. We would continue to consider 
statements from nonmedical sources to be important evidence that we 
would consider under 20 CFR 404.1520b and 416.920b.

H. Prior Administrative Medical Findings

    State agencies make disability determinations at the initial and 
reconsideration levels of our administrative review process.\29\ In 
most States, a disability examiner makes a disability determination 
together with a State agency MC or PC, as appropriate.\30\ In States 
where we have been conducting our single decision maker pilot, our 
rules also allow Federal components to employ MCs and PCs to function 
just as they would for a State.\31\
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    \29\ See 20 CFR 404.1615 and 416.1015.
    \30\ See 20 CFR 404.906(b)(2), 404.1615(c)(1), 416.1015(c)(1), 
and 416.1406(b)(2). In States where we are using a single decision 
maker (SDM) under the rules in 20 CFR 404.906 and 416.1406, when the 
State agency disability examiner makes the disability determination 
alone, the disability examiner may also consult with an MC or PC to 
help make a disability determination, when appropriate. However, 
section 832 of the Bipartisan Budget Act of 2015, Pub. L. 114-74, 
129 Stat. 584, 613 affects the use of an SDM. This NPRM does not 
propose to change the rules that recognize SDM authority. We intend 
to publish a separate NPRM that discusses in more detail how we 
propose to end SDM authority.
    \31\ See 20 CFR 404.1661 and 416.1061.
---------------------------------------------------------------------------

    The MCs and PCs create evidence that we currently categorize as 
both medical opinions and administrative findings of fact.\32\ These 
administrative findings of fact are about medical issues, including, 
but not limited to, the existence and severity of impairment(s), the 
existence and severity of symptoms, whether an impairment(s) meets or 
medically equals the requirements for an impairment in our Listing of 
Impairments,\33\ and an individual's residual functional capacity 
(RFC). Although MCs and PCs base these administrative findings of fact 
on evidence in the case, the administrative findings are not, in 
themselves,

[[Page 62564]]

evidence at the level of the administrative review process at which we 
make the findings.\34\ They become medical evidence at subsequent 
levels in the administrative review process that adjudicators must 
consider and weigh as opinion evidence because MCs and PCs are highly 
qualified and are also experts in Social Security disability 
evaluation.\35\
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    \32\ 20 CFR 404.1527(e) and 416.927(e).
    \33\ 20 CFR part 404, subpart P, Appendix 1.
    \34\ 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i).
    \35\ 20 CFR 404.1527(e)(2)(i) and 416.927(e)(2)(i).
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    To explain how we interpret these rules, we issued 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.\36\ SSR 96-6p explains that when ALJs or the AC issue 
decisions, they must weigh these opinions and administrative findings 
of fact using the same factors used to weigh other medical opinions. It 
also explains that in appropriate circumstances an MC or PC opinion 
might be entitled to greater weight than an opinion from a claimant's 
treating source or an examining source.
---------------------------------------------------------------------------

    \36\ 61 FR 34466 (July 2, 1996).
---------------------------------------------------------------------------

    In order to simplify our rules, we propose to combine the two types 
of evidence our current rules state MCs and PCs make--administrative 
findings of fact and medical opinions--into a single category of 
evidence called ``prior administrative medical findings.'' We propose 
to define this evidence as findings about medical issues, other than 
the ultimate determination about whether you are disabled, made by our 
Federal and State agency medical and psychological consultants at a 
prior level of review based on their review of the evidence in your 
case record.
    We propose to identify as prior administrative medical findings the 
following medical issues:
     The existence and severity of impairment(s);
     the existence and severity of symptoms;
     statements about whether an impairment(s) meets or 
medically equals the requirements for any impairment in the Listing of 
Impairments in 20 CFR part 404, subpart P, Appendix 1;
     in child claims under title XVI, whether an impairment(s) 
is functionally equivalent in severity to an impairment(s) in the 
Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1;
     in adult claims, a claimant's residual functional 
capacity;
     whether an impairment(s) meets the duration requirement; 
and
     how the policies about failure to follow prescribed 
treatment and drug addiction and alcoholism relate to a claim.
    These medical issues are similar to those currently listed in 20 
CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). We would consider and 
articulate our consideration of prior administrative medical findings 
using the same factors we use to consider medical opinions from medical 
sources. However, due to our proposed revisions to the definition of 
the evidence category of medical opinion, we would remove from several 
regulation sections references to MCs and PCs making medical opinions.
    Consistent with these proposals and our proposals below in Section 
VI, Consideration and articulation of medical opinions and prior 
administrative medical findings, we would also delete the definition of 
nonexamining source because it would be unnecessary as a result of 
other proposed revisions in this NPRM. We would also remove any 
reference to specialists during the initial and reconsideration levels 
because we would not use medical sources other than MCs and PCs. We 
propose to include these revisions in 20 CFR 404.1502, 404.1513(a)(6), 
404.1513a, 416.902, 416.913(a)(6), and 416.913a.

I. Decisions by Other Governmental Agencies and Nongovernmental 
Entities

    Several other governmental agencies and nongovernmental entities 
make decisions using their own rules about disability, blindness, and 
employability. These organizations include the Department of Veterans 
Affairs (VA), the Department of Defense (DOD), the Office of Personnel 
Management (OPM), the Department of Labor (DOL), State workers 
compensation programs, and private long-term disability insurance 
programs. As part of our claim development, we sometimes receive 
decisions or information about decisions made by other governmental 
agencies and nongovernmental entities, as well as the evidence relied 
on to make these decisions. Our current rules include a category of 
evidence called ``decisions by any governmental or nongovernmental 
agency about whether you are blind or disabled.'' \37\ Our current 
rules state that these decisions are not binding on us because we must 
make a disability or blindness decision based on the Act and our 
regulations.\38\ We propose to clarify how we would consider disability 
and blindness decisions made by other agencies.
---------------------------------------------------------------------------

    \37\ 20 CFR 404.1512(b)(1)(v) and 416.912(b)(1)(v).
    \38\ 20 CFR 404.1504 and 416.904.
---------------------------------------------------------------------------

    We address this aspect of our policy in SSR 06-03p,\39\ in which we 
distinguish between issues reserved to the Commissioner--such as 
whether a claimant is disabled--and evidence that may have a bearing on 
our determination or decision of disability, including decisions by 
other governmental and nongovernmental agencies. In the ruling, we 
stated that we cannot ignore and must consider evidence of a disability 
decision by another governmental or nongovernmental agency. However, 
our program experience since we issued SSR 06-03p suggests we need to 
revise these policies.
---------------------------------------------------------------------------

    \39\ 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, 71 FR 45593 
(August 9, 2006).
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    There are four reasons why we should not need to consider or 
articulate in our written determinations or decisions our consideration 
of decisions from other governmental and nongovernmental agencies. 
First, the purpose of the Act and the specific eligibility requirements 
for disability and blindness benefits under titles II and XVI of the 
Act differ significantly from the purpose and eligibility requirements 
of other programs. These differences include eligibility criteria, 
duration, insured status, individualized versus categorical medical and 
functional assessments, onset rules, how subjective complaints are 
considered, employability findings, consideration of past work, and 
consideration of other work.\40\ Therefore, other governmental 
agencies' or nongovernmental entities' decisions give us little 
indication whether a claimant is more or less likely to be found 
disabled or blind under the Act. Those decisions are not, by 
themselves, useful to us when we decide whether a claimant is disabled 
or blind under the Act and are therefore neither valuable nor 
persuasive evidence for determining disability or blindness under our 
rules.
---------------------------------------------------------------------------

    \40\ These differences among the various programs are well-
documented. For example, the Government Accountability Office (GAO) 
produced a report that highlighted the differences among SSA, VA, 
and DOD disability programs. GAO, Social Security Disability: 
Additional Outreach and Collaboration on Sharing Medical Records 
Would Improve Wounded Warriors' Access to Benefits, GAO-09-762 
(September 2009), available at https://www.gao.gov/assets/300/296693.pdf.
---------------------------------------------------------------------------

    For example, VA and SSA disability differ significantly in purpose 
as well as in eligibility criteria. In determining

[[Page 62565]]

disability, the VA assigns a percentage disability rating based on a 
consideration of the effects of a disease or injury on a hypothetical, 
average person's ability to earn income without consideration of a 
specific veteran's age, education, or work experience.\41\ In contrast, 
under our rules, unless a claimant's impairment(s) meets or medically 
equals a listing, we perform an individualized assessment that focuses 
on that particular claimant's ability to perform work in the national 
economy.
---------------------------------------------------------------------------

    \41\ 38 CFR 4.1.
---------------------------------------------------------------------------

    As part of this individualized assessment, the Act requires us to 
consider several criteria, such as whether a claimant has worked 
(substantial gainful activity), whether the claimant's impairment(s) is 
expected to last at least 12 months or result in death (the duration 
requirement), how the claimant's impairment(s) limit his or her 
physical and mental ability to do work activities (severity and 
assessment of RFC), whether the claimant can perform in his or her past 
relevant work given his or her RFC, and whether the claimant's RFC, 
age, education, and work experience (the vocational factors) allow the 
claimant to perform other work that exists in significant numbers in 
the national economy. Thus, because of our different requirements, the 
mere fact that the VA process resulted in a particular disability 
rating is not predictive or useful evidence of whether the claimant 
will be found disabled under our rules, even upon consideration of the 
same impairment(s).
    Similarly, the DOD and OPM follow rules that are substantially 
different from our rules when they make determinations on disability 
retirement. State agencies and the DOL make determinations under State 
and Federal workers' compensation programs, which vary from State to 
State and may involve determinations of partial disability, a concept 
that does not exist in our programs. These compensation programs may 
consider the individual's ability to do past work, but make no 
consideration of the individual's ability to do other work, as we are 
required to consider under our rules. Some States also make 
determinations about whether individuals are entitled to receive 
Medicaid and related benefits; however, those States may set individual 
eligibility criteria within the Federal minimum standards and may find 
individuals eligible to receive Medicaid for reasons other than 
disability. Furthermore, States may anticipate how we may interpret and 
apply our own rules regarding disability, but are not bound to follow 
our case development requirements and other regulations. Thus, in each 
instance, there are significant differences between our rules and the 
eligibility criteria and rules that other agencies or entities follow. 
Therefore, a finding of ``disability'' or a decision to award benefits 
made by any other agency or entity is not predictive of whether a 
claimant would be found disabled under our rules.
    Second, a record may indicate that another agency or entity decided 
to award benefits, but not include the decision itself. Alternatively, 
the decision might be in the record, but may not include any 
explanation about the factual findings or reasons for the decision. In 
those instances, there is nothing substantive about the decision for 
our adjudicators to consider.
    Third, our adjudicators follow regulations and other guidance 
specific to our program; they generally do not have a detailed 
understanding of the rules other agencies or entities apply when making 
their decisions. Consequently, our adjudicators lack the expertise to 
compare and contrast the differences between the Act and our rules, and 
the rules applied by another agency or entity. Accordingly, when our 
adjudicators follow our instructions in SSR 06-03p that require them to 
consider decisions in the record from another agency or entity in the 
record, they often simply state that they considered the other agency's 
or entity's decision, but that it was not binding because it was made 
using the other agency's or entity's rules and not ours. Our current 
requirement that adjudicators consider other agency's or entity's 
decisions therefore imposes an unnecessary articulation requirement on 
our adjudicators.
    Fourth, over time Federal courts have interpreted and applied our 
rules and SSR 06-03p differently in different jurisdictions. For 
example, in some circuits, the United States Courts of Appeals have 
stated that we should give disability decisions from the VA great or 
substantial weight absent some reasoned, fact-specific explanation for 
discounting the VA disability decisions.\42\ We administer a national 
disability program, and our goal is to apply rules uniformly.
---------------------------------------------------------------------------

    \42\ For example, the Ninth Circuit held that our ALJs must 
``ordinarily give great weight to a VA determination of disability'' 
although ``the ALJ may give less weight to a VA disability rating if 
he gives persuasive, specific, valid reasons for doing so that are 
supported by the record.'' McCartey v. Massanari 298 F.3d 1072, 1076 
(9th Cir. 2002). This principle has been followed in a number of 
more recent cases. See, e.g., Valentine v. Comm'r Soc. Sec. Admin., 
574 F.3d 685, 694-95 (9th Cir. 2009) (ALJ's explanation for giving 
little weight to a VA disability determination that rested on the 
general grounds that the VA and SSA inquiries are different ran 
afoul of McCartey, although the ALJ's reliance on evidence not 
before the VA was a persuasive, specific, and valid reason); Berry 
v. Astrue, 622 F.3d 1228, 1236 (9th Cir. 2010) (rejecting two 
reasons the ALJ gave for discounting a VA determination, accepting a 
third ``in part,'' and remanding for reconsideration of the VA 
disability determination); McLeod v. Astrue, 640 F.3d 881, 885-86 
(9th Cir. 2011) (claimant denied a full and fair hearing because the 
record suggested he had a VA disability rating, which was not in the 
record); Hiler v. Astrue, 687 F.3d 1208, 1211-12 (9th Cir. 2012) 
(ALJ misunderstood and did not properly evaluate the three VA 
decisions in the record). The Fourth Circuit has found McCartey 
persuasive and held that ``SSA must give substantial weight to a VA 
disability rating'' although ``an ALJ may give less weight to a VA 
disability rating when the record before the ALJ clearly 
demonstrates that such a deviation is appropriate.'' Bird v. Astrue, 
699 F.3d 337, 343 (4th Cir. 2012). Subsequently, at least one 
district court within the Fourth Circuit has interpreted Bird as 
announcing a new standard for evaluating VA decisions. See, e.g.,, 
Persaud v. Colvin, No. 2:12-cv-661, 2014 WL 198922, *8-11 (E.D. Va. 
Jan. 14, 2014); Jacobs v. Colvin, No. 2:12-cv-508, 2013 WL 5741538, 
*5-7 (E.D. Va. Oct. 22, 2013).
---------------------------------------------------------------------------

    We propose to revise our rules in 20 CFR 404.1504 and 416.904 to 
state that we will not provide any analysis in our determinations and 
decisions about how we consider decisions made by other governmental 
agencies or nongovernmental entities that an individual is disabled, 
blind, or unemployable in any claim for disability or blindness under 
titles II and XVI of the Act, and that we are not bound by those 
decisions. Although we would categorize decisions made by other 
governmental agencies or nongovernmental entities within the other 
medical evidence category if made by a medical source or a statement if 
made by a nonmedical source, we propose to state in 20 CFR 404.1520b 
and 416.920b that these decisions are inherently neither valuable nor 
persuasive to our disability and blindness determinations.
    Importantly, however, we would continue to consider relevant 
medical and other evidence that supports or underlies other 
governmental agencies' or nongovernmental entities' decisions that we 
receive based on the applicable evidence categories proposed above. For 
example, we would continue to consider a compensation and pension 
examination from a VA physician that underlies a VA disability rating, 
even though our adjudicators would not be required to give any 
particular weight to or analyze the specific VA disability rating. 
Similarly, we would continue to consider a medical opinion from a 
medical source submitted in support of a claimant's workers' 
compensation claim or Medicaid application, even

[[Page 62566]]

though our adjudicators would not be required to give any weight to or 
discuss the decision to award workers' compensation or Medicaid 
benefits.
    We could also still use information from other governmental 
agencies or nongovernmental entities we receive to process claims. For 
example, we would retain authority to expedite processing of claims for 
Wounded Warriors and for veterans with a 100% VA disability 
compensation rating, as we do now.\43\
---------------------------------------------------------------------------

    \43\ 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.
---------------------------------------------------------------------------

    For clarity, we also propose to change our current regulatory term 
``decisions by other organizations and agencies'' to ``decisions by 
other government agencies and nongovernment entities.''

J. Disability Examiner Findings

    Currently, in most States, disability examiners consult with MCs 
and PCs to make disability and blindness determinations at the initial 
and reconsideration levels of the administrative appeals process.\44\ 
The disability examiner's findings about medical issues, vocational 
issues, and whether an individual is disabled becomes our 
determination. Under our current rules, we do not weigh disability 
examiner findings at subsequent levels of the administrative appeals 
process because adjudicators at each level make new findings for their 
determination or decision. This is in contrast to how we treat 
administrative findings about medical issues by MCs and PCs, which are 
evidence we weigh at subsequent levels of review. While this 
distinction is implied in our current regulation,\45\ we propose to 
state in 20 CFR 404.1520b(c)(2) and 416.920b(c)(2) that we will not 
provide any analysis about how we considered disability examiner 
findings from a prior level of adjudication.
---------------------------------------------------------------------------

    \44\ Some States use SDMs in certain situations to make a 
disability determination without consulting an MC or PC. See 20 CFR 
404.906(b)(2), 404.1615(c), 416.1015(c), and 416.1406(b)(2).
    \45\ See 20 CFR 404.1512(b)(6)-(8) and 416.912(b)(6)-(8).
---------------------------------------------------------------------------

K. Statements on Issues Reserved to the Commissioner

    Statements on issues reserved to the Commissioner consist of 
opinions or statements about how we should interpret and apply our 
policies to a claim instead of simply stating a claimant's abilities 
and limitations. Although our current list of evidence types in 20 CFR 
404.1512 and 416.912 does not include issues reserved to the 
Commissioner, our rules do discuss medical source opinions on issues 
reserved to the Commissioner in 20 CFR 404.1527(d) and 416.927(d). Our 
rules state that opinions on issues reserved to the Commissioner are 
not medical opinions, because they are administrative findings that are 
dispositive of a case, i.e., that direct the determination or decision 
of disability. We give several examples of issues reserved to the 
Commissioner. These include statements by medical sources that a 
claimant is disabled or unable to work, whether a claimant's 
impairment(s) meets or equals the requirements of any impairment(s) in 
the Listing of Impairments, a claimant's RFC, and how we should apply 
the vocational factors.
    We issued SSR 96-5p to explain how we consider these types of 
opinions.\46\ The SSR states: (1) The difference between issues 
reserved to the Commissioner and medical opinions; (2) that treating 
source opinions on issues reserved to the Commissioner are never 
entitled to controlling weight or special significance; (3) that 
opinions from any medical source about issues reserved to the 
Commissioner must never be ignored, and that the notice of the 
determination or decision must explain the consideration given to the 
treating source's opinion(s); and (4) the difference between the 
opinion called a medical source statement and the administrative 
finding called an RFC assessment.\47\
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    \46\ SSR 96-5p: Titles II and XVI: Medical Source Opinions on 
Issues Reserved to the Commissioner (61 FR 34471 (July 2, 1996)).
    \47\ The SSR also included a discussion about requirements for 
recontacting treating sources. Since the publication of the SSR, we 
also published final rules that revised how we consider medical 
source statements from State disability examiners (65 FR 11866 
(March 7, 2000)).
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    Since we published SSR 96-5p, we have frequently received requests 
to provide further guidance about how to identify and evaluate opinions 
about issues reserved to the Commissioner. One area we have been asked 
to clarify is how to consider and weigh the opinions because we do not 
give them any special significance. We also have received requests to 
provide additional examples of issues that are reserved to the 
Commissioner.
    Consistent with our goals to better define and organize our 
evidence regulations to produce more accurate and consistent 
determinations and decisions, we propose to define a statement on an 
issue reserved to the Commissioner as a statement that would direct the 
determination or decision of disability. Because we are responsible for 
making the determination or decision about whether a person meets the 
statutory definition of disability, a statement on an issue reserved to 
the Commissioner is inherently neither valuable nor persuasive to us. 
Although a statement on an issue reserved to the Commissioner would be 
categorized within other medical evidence if made by a medical source 
or a statement if made by a nonmedical source, we would not provide any 
analysis about how we considered such statements at all in our 
determinations and decisions.
    An example of a medical opinion that we could consider valuable or 
persuasive and that we may provide analysis about in a determination or 
decision is a medical source's statement that a claimant could lift 10 
pounds for up to one-third of an 8-hour day and less than 10 pounds for 
up to two-thirds of an 8-hour day, stand and walk for about 2 hours of 
an 8-hour day, and sit for up to 6 hours of an 8-hour day. An example 
of a statement on an issue reserved to the Commissioner that we would 
not provide any analysis about in a determination or decision because 
it is inherently neither valuable nor persuasive is that the claimant 
has an RFC for sedentary work. The second statement is an issue 
reserved to the Commissioner because it includes assumptions about what 
particular medical limitations and restrictions mean in terms of our 
policy.
    Another example of a statement on an issue reserved to the 
Commissioner that we would not provide any analysis about in a 
determination or decision is that the claimant ``is disabled.'' This 
statement includes assumptions about how we should apply our policy in 
a particular claim.
    To help adjudicators, representatives, and courts identify 
statements on issues reserved to the Commissioner, we propose to 
include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3):
     Statements that an individual is or is not disabled, 
blind, able to work, or able to perform regular or continuing work;
     statements about whether or not an individual's 
impairment(s) meets the duration requirement for disability;
     statements about whether or not an individual's 
impairment(s) meets or equals any listing in the Listing of 
Impairments;
     in title XVI child claims, statements about whether or not 
an individual's impairment(s) functionally equals the Listings;
     in adult claims, statements about what an individual's RFC 
is using our programmatic terms about the functional exertional levels 
in Part 404, Subpart P, Appendix 2, Rule 200.00

[[Page 62567]]

instead of descriptions about his or her functional abilities and 
limitations;
     in adult claims, statements about whether or not an 
individual's RFC prevents him or her from doing past relevant work;
     in adult claims, statements that an individual does or 
does not meet the requirements of a medical-vocational rule in Part 
404, Subpart P, Appendix 2; and
     statements about whether or not an individual's disability 
continues or ends when we conduct a continuing disability review (CDR).
    We would also rescind SSR 96-5p consistent with these proposed 
revisions.

III. Establishing the Existence of an Impairment

A. Current Rules

    To be found disabled under titles II or XVI of the Act,\48\ an 
individual must have a physical or mental impairment that results from 
anatomical, physiological, or psychological abnormalities that are 
demonstrable by medically acceptable clinical and laboratory diagnostic 
techniques.\49\ At step 2 of the sequential evaluation process, we 
determine both whether an individual has a medically determinable 
impairment(s) and, once the existence of the impairment(s) is 
established, whether it is severe.\50\
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    \48\ The Act defines a disability as the ``inability to engage 
in any substantial gainful activity by reason of any physical or 
mental impairment which can be expected to result in death or has 
lasted or can be expected to last for a continuous period of not 
less than 12 months.'' 42 U.S.C. 423(d) and 1382c(a)(3). We have a 
different definition for determining statutory blindness. See 42 
U.S.C. 416(i)(1) and 1382c(a)(2).
    \49\ 42 U.S.C. 423(d)(3) and 1382c(a)(3)(D).
    \50\ See 20 CFR 404.1520(a)(4)(ii) and 416.920(a)(4)(ii).
---------------------------------------------------------------------------

    We interpret the Act as requiring us to obtain objective medical 
evidence--signs or laboratory findings--from an AMS to establish the 
existence of a medically determinable impairment.\51\ Once we have 
objective medical evidence from an AMS showing that the claimant has a 
medically determinable impairment or combination of impairments at step 
2, we then consider evidence from all sources, regardless of AMS 
status, to determine the severity of those impairments at step 2. If we 
do not have objective evidence from an AMS to establish the existence 
of an impairment, we try to get this evidence from a claimant's own AMS 
or by purchasing a consultative examination (CE) with an AMS.\52\ Even 
if we already have evidence of signs or laboratory findings from a 
medical source who is not an AMS, under our current policy we cannot 
use this evidence to establish the existence of a medically 
determinable impairment.
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    \51\ See, e.g., SSR 16-3p; Titles II and XVI: Evaluation of 
Symptoms in Disability Claims, 81 FR 14166 (March 16, 2016).
    \52\ See 20 CFR 404.1519a and 416.919a.
---------------------------------------------------------------------------

    Our current policies also preclude the following types of evidence 
from establishing the existence of a medically determinable impairment 
at step 2 because they are not objective medical evidence: (1) A 
statement of symptoms, (2) a diagnosis, and (3) a medical opinion.\53\ 
The Act requires medically acceptable clinical and laboratory 
diagnostic techniques as evidence.\54\ A claimant's self-reported 
symptoms and a medical source's own subjective opinion do not meet this 
statutory requirement. We also cannot rely on a diagnosis to establish 
the existence of an impairment because sometimes medical sources 
diagnose individuals without using objective medical evidence. For 
example, a medical source may rely on a claimant's reported symptoms or 
another medical source's medical opinion, treat reported symptoms under 
a provisional diagnosis, or rule-out diagnosis without making this 
clear in the treatment note. In addition, we have found--especially 
with electronic medical records--diagnoses that are listed solely for 
billing and medical insurance reasons but that do not include 
supporting objective medical evidence.
---------------------------------------------------------------------------

    \53\ See 20 CFR 404.1508, 404.1528(a), 404.1529, 416.908, 
416.928(a), and 416.929 and SSR 96-2p.
    \54\ 42 U.S.C. 423(d)(3) and 1382c(a)(3)(D).
---------------------------------------------------------------------------

B. Proposed Revisions

    In order to assist representatives and our adjudicators in 
interpreting our rules, we propose to revise our rules to state 
affirmatively our current policy that we will not use a diagnosis, 
medical opinion, or an individual's statement of symptoms to establish 
the existence of an impairment(s). We would clarify our rules to state 
that a physical or mental impairment must be established by objective 
medical evidence from an AMS. We would continue to follow our current 
policy if we have objective medical evidence from an AMS that a 
claimant has a severe impairment(s) at step 2, we will consider all 
evidence to determine the severity of the impairment(s) and all other 
findings in the sequential evaluation process. We would also continue 
to follow our current policy in 20 CFR 404.1529 and 416.929 about how 
we evaluate symptoms, including pain, when we determine severity and 
RFC. We would make these revisions to 20 CFR 404.1521, 404.1522, 
416.921, and 416.922.

IV. Acceptable Medical Sources (AMS)

A. Current AMS Rules

    As noted above, under our current policy, only objective medical 
evidence from AMSs can be used to establish an impairment(s) at step 2 
of the sequential evaluation process. Also, as we discuss below in 
``Treating Sources,'' only AMSs can be treating sources. Our current 
rules recognize the following medical sources as AMSs:
     Licensed physicians (medical or osteopathic doctors).
     Licensed or certified psychologists. Included are school 
psychologists, or other licensed or certified individuals with other 
titles who perform the same function as a school psychologist in a 
school setting, for purposes of establishing intellectual disability, 
learning disabilities, and borderline intellectual functioning only.
     Licensed optometrists, for purposes of establishing visual 
disorders only (except, in the U.S. Virgin Islands, licensed 
optometrists, for the measurement of visual acuity and visual fields 
only).
     Licensed podiatrists, for purposes of establishing 
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.
     Qualified speech-language pathologists, for purposes of 
establishing 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 from the American Speech-
Language-Hearing Association.\55\
---------------------------------------------------------------------------

    \55\ 20 CFR 404.1513(a) and 416.913(a).
---------------------------------------------------------------------------

B. Why We Are Proposing To Add New AMSs

    We propose to revise our rules to reflect changes in the national 
healthcare workforce and the manner that many people now receive 
primary medical care. Much of the medical evidence we receive in 
disability claims comes from primary care providers. Under our current 
rules, we are not able to consider an increasing number of primary care 
providers to be AMSs. For example, more than 50 percent of the

[[Page 62568]]

nation's more than 55,000 nurse practitioners specialize in primary 
care,\56\ and the total number of nurse practitioners increased almost 
28 percent from 2004 to 2011.\57\ A nurse practitioner is one type of 
Advanced Practice Registered Nurses (APRN) we propose to add to our AMS 
list below. Nurse practitioners provide diagnostic and clinical 
treatment of acute and chronic illnesses. In the U.S., there is a 
simultaneous increasing shortage of primary care physicians.\58\ In 
fact, the American Association of Medical Colleges predicts a shortage 
of 90,000 primary care physicians by 2020.\59\ The Institute of 
Medicine recommended Federal agencies recognize the advanced level of 
care provided by APRNs.\60\
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    \56\ Agency for Healthcare Research and Quality, Primary Care 
Workforce Facts and Stats No. 3, available at https://www.ahrq.gov/research/findings/factsheets/primary/pcwork3/.
    \57\ American College of Nurse Practitioners, Numbers of Nurse 
Practitioners, available at https://www.acnpweb.org; The Henry J. 
Kaiser Family Foundation, Total Nurse Practitioners, 2011, available 
at https://www.statehealthfacts.org.; U.S. Bureau of Labor 
Statistics, available at https://www.bls.gov/ooh/Healthcare/Physician-assistants.htm.
    \58\ 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 
https://kaiserfamilyfoundation.files.wordpress.com/2013/01/8167.pdf.
    \59\ American Association of Medical Colleges, More U.S. Medical 
Students Match to Primary Care for Second Consecutive Year, 
available at https://www.aamc.org/newsroom.
    \60\ 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 https://www.nationalacademies.org/hmd/Reports/2010/The-Future-of-Nursing-Leading-Change-Advancing-Health/Report-Brief-Scope-of-Practice.aspx.
---------------------------------------------------------------------------

    Similarly, an increasing percentage of healthcare services for 
hearing-related impairments come from audiologists instead of 
physicians.\61\ The Bureau of Labor Statistics predicts employment of 
audiologists will increase 25 percent by 2018.\62\ Audiologists assess, 
diagnose, and treat dysfunction in hearing, auditory and vestibular 
function, balance, and related disorders by obtaining a complete 
history and performing tests that include otoscopic examination, pure-
tone audiometry, tympanometry, otoacoustic emissions measurements, and 
speech audiometry.
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    \61\ See, for example, Sieminski, Louis R. The audiologist's 
role in early intervention. Hearing Journal. Vol 63 (1): 35 (2010).
    \62\ U.S. Bureau of Labor Statistics, Occupational Outlook 
Handbook, available at https://www.bls.gov/ooh/healthcare/audiologists.htm.
---------------------------------------------------------------------------

    Uneven geographic distribution of the healthcare workforce makes it 
difficult for individuals living in rural areas to access primary care 
providers who are AMSs. APRNs are more likely than licensed physicians 
to work in rural areas and to provide primary care treatment to those 
with limited access to physicians.\63\
---------------------------------------------------------------------------

    \63\ Agency for Healthcare Research and Quality, available at 
https://www.ahrq.gov/research/findings/factsheets/primary/pcwork3/.
---------------------------------------------------------------------------

    Additionally, the National Law Center on Homelessness and Poverty 
(NLCHP) has expressed concern that the limited list of AMSs creates 
unnecessary delays in processing disability applications for low-income 
claimants who may receive primary healthcare only from non-AMS medical 
sources, such as APRNs.\64\ NLCHP notes that health professionals other 
than physicians and psychiatrists staff most programs for homeless 
claimants. As stated above, we pay for expensive consultative 
examinations with AMSs to establish the existence of an impairment when 
we already have this objective medical evidence from medical sources 
who are not AMSs. Adding these additional qualified AMSs would also 
reduce the need to pay for consultative examinations.
---------------------------------------------------------------------------

    \64\ National Law Center on Homelessness and Poverty, Improving 
Access: Expanding Acceptable Medical Sources for the Social Security 
Administration Disability Determination Process, (2012), pg. 1, 
available at https://www.manatt.com/uploadedFiles/Content/News_and_Events/Firm_News/5.14.12%20Improving%20Access,%20FINAL.pdf.
---------------------------------------------------------------------------

C. Proposed New AMSs

    We propose to recognize both audiologists and APRNs with specific 
scope of practice requirements as AMSs in 20 CFR 404.1502(a) and 
416.902(a). We propose to add to the AMS list licensed audiologists for 
purposes of establishing hearing loss and auditory processing 
disorders. We also propose to add to the AMS list APRNs and other 
licensed advanced practice nurses with other titles acting within their 
licensed scope of practice. For the reasons discussed below, we are 
satisfied that these medical sources have sufficiently consistent and 
rigorous national licensing requirements for education, training, 
certification, and scope of practice.
    Audiologists provide a substantial amount of the healthcare for 
hearing-related impairments and States have dramatically increased 
licensing requirements for audiologists during the past decade. 
Audiologists obtain State licensure after completing a master's or 
doctoral level-degree in a nationally accredited educational program. 
Most States require audiologists to pass a national audiology exam, 
such as the National Examination in Audiology administered by the 
Educational Testing Service, and to complete a significant number of 
supervised clinical training hours. Many States recognize that the 
nearly uniform criteria for certification from the American Board of 
Audiology (ABA) or a Certificate of Clinical Competence in Audiology 
(CCC-A) from the American Speech-Language-Hearing Association (ASHA) 
meet or exceed the States' own audiology licensing requirements. To 
receive certification from the ABA, an audiologist must complete 
doctoral coursework, pass a national audiology examination, and 
complete 2,000 supervised hours of direct patient care. To receive a 
CCC-A, an audiologist must obtain a doctoral degree, pass the National 
Examination in Audiology, and complete a minimum of 1,820 supervised 
hours of clinical practicum.
    With a few minor State variations, there are four main kinds of 
APRNs: Certified Nurse Midwife, Nurse Practitioner, 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 propose to consider all of these 
medical source groups as AMSs if they are licensed by a State and 
acting within the scope of their practice. We would maintain a current 
list of State-specific AMS titles in our subregulatory instructions. We 
would not categorize evidence from an APRN to be AMS evidence if the 
APRN acted outside of his or her scope of practice, since under such 
circumstances, an APRN would be violating his or her State license.
    State licensure requirements for APRNs are rigorous. To receive 
APRN licensure, all States require these medical sources to have a 
registered nurse license and an advanced nursing educational 
degree.\65\ In addition, nearly all States require APRNs to obtain and 
maintain national certification by a standard advanced nursing 
credentialing agency,\66\ and these

[[Page 62569]]

credentials require extensive education and training requirements.\67\ 
Despite minor variability in nomenclature and licensure requirements, a 
growing majority 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.\68\ Given the number of States and types of 
licenses, we consider the very few current differences in licensing 
requirements not to outweigh the sufficiently national and increasingly 
uniform State requirements, especially given the trend to full 
implementation of the Consensus Model for APRN Regulation.
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    \65\ In a very few States, the advanced nursing educational 
degree requirement may be achieved indirectly from the requirement 
to obtain the national certification. See Indiana's Administrative 
Code 848 IAC 4-1-4 about Nurse Practitioners, available at https://www.in.gov/pla/files/ISBN.2011_EDITION.pdf. See also South Dakota 
law 20:48:05:01 about Certified Registered Nurse Anesthetists, 
available at https://legis.sd.gov/Rules/DisplayRule.aspx?Rule=20:48:05:01.
    \66\ 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 https://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 https://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 https://www.op.nysed.gov/prof/nurse/article139.htm, and 
Article 140 Sec.  79-5.2 for Midwives, available at https://www.op.nysed.gov/prof/midwife/part79-5.htm; and (4) Oregon for 
Clinical Nurse Specialists, see Oregon Rules 851-054-0040, available 
at https://arcweb.sos.state.or.us/pages/rules/oars_800/oar_851/851_054.html.
    \67\ See, for example, the American Academy of Nurse 
Practitioners Certification Program, available at https://www.aanpcert.org/ptistore/control/certs/qualifications.
    \68\ Available at https://www.aacn.nche.edu/education-resources/APRNReport.pdf.
---------------------------------------------------------------------------

    While we believe that these medical sources reflect the modern 
primary healthcare delivery system and are among the most highly 
qualified medical sources, we are particularly interested in receiving 
public comment on which criteria we should use when we determine which 
medical sources should be an AMS.
    In particular, we are interested in public comments about whether 
we should add physician assistants (PAs) to the AMS list. PAs are 
significant health care providers for certain underserved populations, 
including those in rural communities. We would like public comments on 
whether the licensing, education, and training requirements for PAs are 
sufficient and consistent across States for PAs to be considered AMSs 
in all cases. We would also like public comments on whether there are 
additional criteria we should use to support the inclusion of PAs on 
the AMS list in particular circumstances, and how we should consider 
these issues in the context of a national disability program with 
uniform rules. We are also interested in whether or not there are other 
professionals, such as licensed clinical social workers, who we should 
include on the AMS list.

D. Other Revisions to the Current AMS List

    We propose to make six additional revisions to our current AMS 
list. The first two proposed revisions would update our rules about 
optometrists to reflect current State law about scope of practice. Our 
current rules include licensed optometrists for establishing visual 
disorders only, except in the U.S. Virgin Islands where licensed 
optometrists are included for the measurement of visual acuity and 
visual fields only.\69\ Subsequent to publication of the final rule in 
2007 that added optometrists to the AMS and medical consultant 
list,\70\ the U.S. Virgin Islands enacted legislation that authorized 
full scope of practice for optometrists.\71\ Therefore, we propose to 
delete the exception for licensed optometrists in the U.S. Virgin 
Islands from our rules.
---------------------------------------------------------------------------

    \69\ 20 CFR 404.1513(a)(3) and 416.913(a)(3).
    \70\ 72 FR 9239 (March 1, 2007).
    \71\ Act 7376, available at https://www.legvi.org/vilegsearch/ShowPDF.aspx?num=7376&type=Act, see also 27 V.I.C. 161(a), available 
at https://www.lexisnexis.com/hottopics/vicode.
---------------------------------------------------------------------------

    On the other hand, Puerto Rico now has a limited scope of practice 
for licensed optometrists. Although licensed optometrists in Puerto 
Rico can perform visual acuity examination and visual field 
measurement, they are unable to prescribe medication or perform 
surgery.\72\ Consequently, in proposed 20 CFR 404.1502(a)(3) and 
416.902(a)(3), we propose to limit licensed optometrists in Puerto Rico 
to the measurement of visual acuity and visual fields as is consistent 
with their scope of practice.
---------------------------------------------------------------------------

    \72\ See 20 LPRA 544(b)(1), available at https://www.lexisnexis.com/hottopics/lawsofpuertorico/.
---------------------------------------------------------------------------

    Our third proposal is to revise our definition of psychologists as 
AMSs to include independently practicing, licensed or certified, 
psychologists. All of these psychologists have a minimum of a master's 
degree. Although this is our subregulatory interpretation of the 
current regulatory language,\73\ we believe it would be clearer to 
place it in the regulatory language.
---------------------------------------------------------------------------

    \73\ See POMS DI 22505.004 Establishing the Credentials for 
Psychologists and School Psychologists Who Do Not Show Their 
Licensing or Certification Status, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0422505004.
---------------------------------------------------------------------------

    Fourth, we propose to enumerate school psychologists separately 
from psychologists to clarify that the current ``independent practice 
level'' requirement applies to licensed or certified psychologists only 
but not to school psychologists. This is not a change in our current 
policy.
    Fifth, we propose to revise our rules to reflect that the title of 
the certificate that the ASHA issues to qualified speech-language 
pathologists is now a Certificate of Clinical Competence in Speech-
Language Pathology. Our current rules in 20 CFR 404.1513(a)(5) and 
416.913(a)(5) state that the certification is a Certificate of Clinical 
Competence. We propose to make this revision in proposed 20 CFR 
404.1502 and 416.902.
    Sixth, we propose to revise how we use evidence from medical 
sources on the AMS list. For most AMS sources, our regulations state 
the medical source is an AMS for the purpose of establishing a 
particular kind of impairment(s). Because we use evidence from AMSs for 
additional purposes, such as determining whose medical opinions we 
articulate in a determination or decision, we propose to revise our 
regulations to allow the use of evidence ``for impairment(s) of'' in 
order to better describe what AMS status means in our rules. We propose 
to make this revision to 20 CFR 404.1502(a)(2)(ii)-(7) and 
416.902(a)(2)(ii)-(7).

E. Related Revisions to Our Listings

    Because we propose to recognize audiologists as AMSs, we also 
propose to revise our rules to specify what evidence would establish a 
medically determinable impairment that causes hearing loss that could 
meet the requirement of a listing in the Listing of Impairments.\74\ 
Under our Special Senses and Speech Listings, we currently require a 
complete otologic examination by a licensed physician (medical or 
osteopathic doctor) to establish a medically determinable impairment 
that causes hearing loss.\75\ We propose to remove the word 
``complete'' because we currently specify the information we need in 
listing 2.00B2b and 102.00B2b, and we expect medical providers to 
follow professional standards for conducting examinations. We also 
propose to specify that audiologists, because they would be AMSs, could 
also perform the otologic examination. We propose to make these 
revisions in 20 CFR part 404, subpart P, Appendix 1 sections 2.00B for 
adults and 102.00B for children.
---------------------------------------------------------------------------

    \74\ See 20 CFR 404.1525 and 416.925.
    \75\ 20 CFR part 404, subpart P, Appendix 1 sections 2.00B2b for 
adults and 102.00B2b.
---------------------------------------------------------------------------

V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs

    BBA section 832 states that when there is evidence indicating the 
existence of a physical impairment in a claim, we may not make an 
initial

[[Page 62570]]

disability determination until we have made every reasonable effort to 
ensure that a qualified physician has completed the medical portion of 
the case review and any applicable RFC assessment.\76\ Similarly, 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 
disability 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 RFC 
assessment.\77\ These requirements will apply to how State agency DDSs 
use MCs and PCs to complete the medical portion of the case review and 
any applicable RFC assessment(s) at both the initial and 
reconsideration levels.
---------------------------------------------------------------------------

    \76\ Pub, L, 114-74, Sec.  832, Stat. 584, 613.
    \77\ Id.
---------------------------------------------------------------------------

    To implement BBA section 832, we propose several revisions about 
who can be MCs and PCs who can complete the medical portion of the case 
review and any applicable RFC assessment(s).
    First, we currently authorize licensed physicians (medical or 
osteopathic) to be MCs who can complete the medical portion of the case 
review and any applicable RFC assessment for all physical 
impairments.\78\ We also authorize licensed optometrists, podiatrists, 
and speech-language pathologists to be MCs who can complete the medical 
portion of the case review and any applicable residual functional 
capacity assessment about physical impairments in their scope of 
practice.\79\ To implement BBA section 832, we propose to authorize 
only licensed physicians to be MCs, who must complete the medical 
portion of the case review and any applicable RFC assessment for 
physical impairments in a claim.
---------------------------------------------------------------------------

    \78\ 20 CFR 404.1616(b) and 416.1016(b).
    \79\ 20 CFR 404.1616(b) and (c) and 416.1016(b) and (c).
---------------------------------------------------------------------------

    Second, when we propose to deny a claim involving mental 
impairments, we are currently required to make every reasonable effort 
to ensure that a psychiatrist or psychologist completes the medical 
portion of the case review and any applicable RFC assessment. In 
practice psychiatrists and qualified psychologists also typically 
review claims we propose to allow.\80\ Our current regulations define 
the steps we must take to make every reasonable effort, as prescribed 
in section 221(h) of the Act. Current 20 CFR 404.1617 and 416.1017 
states that if we are unable to obtain the services of a qualified 
psychologist or psychiatrist after making every reasonable effort, then 
we authorize an MC who is a physician to complete the medical portion 
of the case review and any applicable residual functional capacity 
assessment for mental impairments in a claim.\81\ To implement BBA 
section 832, we propose to make every reasonable effort to ensure that 
psychiatrists or psychologists complete the medical portion of a case 
review and any applicable RFC assessment for mental impairments whether 
we propose to allow or deny a claim.
---------------------------------------------------------------------------

    \80\ 20 CFR 404.1615(d), 404.1616(d), 416.1015(d), and 
416.1016(d).
    \81\ Id.
---------------------------------------------------------------------------

    Third, BBA section 832 requires us to make every reasonable effort 
to ensure that a qualified physician has completed the medical portion 
of the case review and any applicable residual functional capacity 
assessment about physical impairment(s) before we make an initial 
determination, just as we make every reasonable effort for claims 
involving mental impairments. To implement BBA section 832, we propose 
to also make every reasonable effort to have physicians complete the 
medical portion of the case review and any applicable RFC assessment 
about physical impairments in a claim.
    Fourth, we propose to revise our rules about who can be a PC. BBA 
section 832 states both psychiatrists and psychologists can make the 
medical assessment for mental impairments. For clarity, we propose to 
specify that a psychiatrist, who is a licensed physician, could serve 
as either an MC or PC. Instead of separately enumerating what 
constitutes a ``qualified'' psychologist who can be a PC, we also 
propose to define a psychologist in the same way we propose in our 
rules on AMSs in 20 CFR 404.1502(a)(2) and 416.902(a)(2).
    We propose to make these revisions to 20 CFR 404.1615-404.1617 and 
416.1015-416.1017. Because BBA section 832 becomes effective for 
determinations made on and after November 2, 2016, we would begin 
applying these revisions to our MC and PC rules on that date.

VI. Consideration and Articulation of Medical Opinions and Prior 
Administrative Medical Findings

A. Our Current Rules About Considering Medical Opinions and 
Administrative Findings of Fact

    We consider all evidence in a claim, including medical opinions, 
when we determine disability.\82\ Our current rules explain the process 
we use to weigh medical opinions and administrative findings of 
fact.\83\ We consider the following factors when we weigh a medical 
opinion and an administrative finding of fact:
---------------------------------------------------------------------------

    \82\ 42 U.S.C. 423(d)(5)(B) and 1382c(H)(i). See also 20 CFR 
404.1520(a)(3), 404.1527(b), 416.920(a)(3), and 416.927(b).
    \83\ See 20 CFR 404.1527(c) and 416.927(c).
---------------------------------------------------------------------------

     Examining relationship. Generally, we give more weight to 
the opinion of a source who has examined a claimant than to the opinion 
of a source who has not examined a claimant.\84\
---------------------------------------------------------------------------

    \84\ 20 CFR 404.1527(c)(1) and 416.927(c)(1).
---------------------------------------------------------------------------

     Treatment relationship. Generally, we give more weight to 
opinions from a claimant's treating sources because these sources are 
likely to be the medical professionals most able to provide a detailed, 
longitudinal picture of a claimant's medical impairment(s) and may 
bring a unique perspective to the medical evidence that cannot be 
obtained from objective medical findings alone or from reports of 
individual examinations, such as consultative examinations or brief 
hospitalizations. Within the treatment relationship factor, we also 
consider these sub-factors:
    1. Length of the treatment relationship and the frequency of 
examination. Generally, the longer a treating source has treated a 
claimant and the more times a treating source has seen a claimant, the 
more weight we will give to the source's medical opinion. When a 
treating source has seen a claimant a number of times and long enough 
to have obtained a longitudinal picture of a claimant's impairment, we 
will give the source's opinion more weight than we would give it if it 
were from a nontreating source.\85\
---------------------------------------------------------------------------

    \85\ 20 CFR 404.1527(c)(2)-(c)(2)(i) and 416.927(c)(2)-
(c)(2)(i).
---------------------------------------------------------------------------

    2. Nature and extent of the treatment relationship. Generally, the 
more knowledge a treating source has about a claimant's 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 the kinds and extent 
of examinations and testing the source has performed or ordered from 
specialists and independent laboratories. For example, if an 
ophthalmologist notices that a claimant complained of neck pain during 
an eye examination, we will consider his or her opinion with respect to 
the neck pain, but we will give it less weight than that of another 
physician who has treated the claimant for the neck pain. When the 
treating source has reasonable knowledge of the claimant's 
impairment(s), we will give the source's opinion more weight than we 
would

[[Page 62571]]

give it if it were from a nontreating source.\86\
---------------------------------------------------------------------------

    \86\ 20 CFR 404.1527(c)(2)-(c)(2)(ii) and 416.927(c)(2)-
(c)(2)(ii).
---------------------------------------------------------------------------

     Supportability. The more a medical source presents 
relevant evidence to support an opinion, particularly medical signs and 
laboratory findings, the more weight we will give that opinion. The 
better explanation a source provides for an opinion, the more weight we 
will give that opinion. Furthermore, because non-examining sources have 
no examining or treating relationship with a claimant, the weight we 
will give their opinions will depend on the degree to which they 
provide supporting explanations for their opinions. We will evaluate 
the degree to which these opinions consider all of the pertinent 
evidence in a claim, including opinions of treating and other examining 
sources.\87\
---------------------------------------------------------------------------

    \87\ 20 CFR 404.1527(c)(3) and 416.927(c)(3).
---------------------------------------------------------------------------

     Consistency. Generally, the more consistent an opinion is 
with the record as a whole, the more weight we will give to that 
opinion.\88\
---------------------------------------------------------------------------

    \88\ 20 CFR 404.1527(c)(4) and 416.927(c)(4).
---------------------------------------------------------------------------

     Specialization. We generally give more weight to the 
opinion of a specialist about medical issues related to his or her area 
of specialty than to the opinion of a source who is not a 
specialist.\89\
---------------------------------------------------------------------------

    \89\ 20 CFR 404.1527(c)(5) and 416.927(c)(5).
---------------------------------------------------------------------------

     Other factors. When we consider how much weight to give a 
medical opinion, we will also consider any factors brought to our 
attention, or of which we are aware, that tend to support or contradict 
the opinion. For example, the amount of understanding of our disability 
programs and their evidentiary requirements that an AMS has, regardless 
of the source of that understanding, and the extent to which an AMS is 
familiar with the other information in a case record are relevant 
factors that we will consider in deciding the weight to give to a 
medical opinion.\90\
---------------------------------------------------------------------------

    \90\ 20 CFR 404.1527(c)(6) and 416.927(c)(6).
---------------------------------------------------------------------------

    In addition to weighing all medical opinions and administrative 
findings of fact with these factors, our rules include special policies 
for weighing medical opinions from treating sources. We currently 
define a treating source as an individual's own physician, 
psychologist, or other AMS who provides, or has provided, medical 
treatment or evaluation resulting from an ongoing treatment 
relationship. Generally, we consider a relationship ongoing if the AMS 
has seen an individual with a frequency consistent with the accepted 
medical practice for the type of treatment or evaluation required for a 
specific medical condition(s). We do not consider an AMS to be a 
treating source if the relationship with the individual is based solely 
on that individual's need to obtain an assessment or evaluation in 
support of a disability claim. In such a case, we consider the AMS to 
be a nontreating source.\91\
---------------------------------------------------------------------------

    \91\ 20 CFR 404.1502 and 416.902.
---------------------------------------------------------------------------

    Under our current rules, a treating source's medical opinion about 
the nature and severity of a claimant's impairment(s) is entitled to 
controlling weight if it is well-supported by medically acceptable 
clinical and laboratory diagnostic techniques and is not inconsistent 
with the other substantial evidence in the case record.\92\ Stated 
another way, when we find the supportability and consistency factors 
persuasive for a treating source, we will generally adopt the treating 
source's opinion about the nature and severity of a claimant's 
impairment(s). When we do not give controlling weight to a treating 
source's medical opinion because it is not well-supported or is 
inconsistent with other substantial evidence in the case record, we 
will evaluate the medical opinion using all of the factors listed 
above.
---------------------------------------------------------------------------

    \92\ 20 CFR 404.1527(c)(2) and 416.927(c)(2).
---------------------------------------------------------------------------

B. Our Current Rules About Articulating How We Consider Medical 
Opinions and Administrative Findings of Fact

    Once we consider all medical opinions and administrative findings 
of fact in the record, we articulate how we consider the following 
medical opinions and administrative findings of fact in the notice of 
determination or decision:
    1. If we give controlling weight to a treating source's medical 
opinion, we articulate how we considered only that medical opinion by 
giving good reasons for the weight we give it.\93\
---------------------------------------------------------------------------

    \93\ 20 CFR 404.1527(c)(2) and 416.927(c)(2).
---------------------------------------------------------------------------

    2. If we do not give controlling weight to a treating source's 
medical opinion, not only do we give good reasons for the weight we 
give to the treating source's opinion, we also articulate how we 
considered medical opinions from all AMSs and administrative findings 
of fact.\94\
---------------------------------------------------------------------------

    \94\ 20 CFR 404.1527(c) and (e) and 416.927(c) and (e).
---------------------------------------------------------------------------

    3. If we do not give controlling weight to a treating source's 
medical opinion and we find that an opinion from a medical source who 
is not an AMS is more persuasive than the AMS medical opinions and 
administrative findings of fact, in addition to the requirements listed 
above, we also articulate how we considered that non-AMS medical 
opinion.\95\
---------------------------------------------------------------------------

    \95\ SSR 06-03p.
---------------------------------------------------------------------------

    4. The adjudicator generally should explain the weight given to 
opinions from other sources when such opinions may have an effect on 
the outcome of the case.\96\
---------------------------------------------------------------------------

    \96\ Id.

There is no clear requirement about which factors we must discuss in a 
determination or decision.

C. History of the Controlling Weight Rule

    We based our policies about giving certain treating source opinions 
controlling weight on the Act's requirement that we make every 
reasonable effort to obtain from the individual's treating physician 
(or other treating healthcare provider) all medical evidence necessary 
to make a disability determination before evaluating medical evidence 
from a consultative source.\97\ Although the Act requires us to 
consider a treating medical source's evidence, it does not specify how 
we should evaluate that evidence. Instead, the Act gives us the 
authority to adopt reasonable and proper rules, regulate and provide 
for the nature and extent of proof and evidence for disability 
claims.\98\ As the United States Supreme Court has emphasized, we have 
exceptionally broad statutory authority to establish rules about 
evidence.\99\
---------------------------------------------------------------------------

    \97\ 42 U.S.C. 423(d)(5)(B) and 1382c(H)(i).
    \98\ 42 U.S.C. 405(a).
    \99\ Bowen v. Yuckert, 482 U.S. 137, 145 (1987).
---------------------------------------------------------------------------

    Responding to certain court decisions,\100\ in 1991 we issued final 
rules to create a uniform national policy about how to consider medical 
opinions from treating physicians.\101\ We stated that treating 
sources' evidence tends to have a special, intrinsic value because 
treating sources are likely to be the medical professionals most able 
to provide a detailed, longitudinal picture of a claimant's medical 
impairment(s) and may bring a unique perspective to the medical 
evidence.\102\ We also stated that, because medical opinions always 
have a subjective component and the effects of medical conditions on 
individuals vary widely, as no two cases are exactly alike, it is not 
possible to create rules that prescribe the weight to be given to each 
piece of evidence we may take into consideration. The 1991 final rule 
also recognized that the weighing of any evidence, including medical 
opinions, is a process of comparing the intrinsic value,

[[Page 62572]]

persuasiveness, and internal consistency of each piece of evidence 
together to determine which findings of fact the evidence best 
supports.\103\
---------------------------------------------------------------------------

    \100\ See, e.g., Schisler v. Bowen, 851 F.2d 43, 44 (2d Cir. 
1988).
    \101\ 56 FR 36932 (Aug. 1, 1991).
    \102\ 56 FR at 36934 and 36961.
    \103\ Id. at 36934-36935.
---------------------------------------------------------------------------

    We have revised our policies about weighing medical opinions from 
treating sources several times since the 1991 final rules. We expanded 
the definition of who can be a treating source to allow any AMS to be a 
treating source and expanded the list of AMSs to include osteopaths, 
optometrists, podiatrists, and speech-language pathologists.\104\ By 
expanding the AMS list, it became more common for claims to include 
medical opinions from multiple treating sources. In addition, claimants 
frequently submitted opinions from medical sources who were not AMSs 
and not considered treating sources under our rules.
---------------------------------------------------------------------------

    \104\ Medical and Other Evidence of Your Impairments and 
Definition of Medical Consultant, 65 FR 34952 (June 1, 2000); 
Optometrists as ``Accepted Medical Sources'' to Establish a 
Medically Determinable Impairment, 72 FR 9239 (March 1, 2007).
---------------------------------------------------------------------------

    We also issued two SSRs to help adjudicators evaluate multiple 
medical opinions and opinions from sources who were not AMSs. We issued 
SSR 96-2p to clarify how we apply this policy and to explain terms in 
our regulations used in evaluating whether treating source medical 
opinions are entitled to controlling weight.\105\ We emphasized several 
policies, including:
---------------------------------------------------------------------------

    \105\ SSR 96-2p: Titles II and XVI: Giving Controlling Weight to 
Treating Source Medical Opinions, 61 FR 34490 (July 2, 1996).
---------------------------------------------------------------------------

     A case cannot be decided by relying on a medical opinion 
if the medical source making that opinion does not provide reasonable 
support for the opinion.
     Controlling weight may be given only to medical opinions 
that are about the nature and severity of an individual's 
impairment(s).
     Controlling weight may not be given to a treating source's 
medical opinion unless the opinion is both well supported by medically 
acceptable clinical and laboratory diagnostic techniques (clinical 
signs and laboratory findings) and not inconsistent with the other 
substantial evidence in the case record.
     To give a treating source's opinion controlling weight 
means to adopt it.
     A finding that a treating source's medical opinion is not 
entitled to controlling weight does not mean that we reject the 
opinion. It may still be entitled to deference and an adjudicator may 
adopt it.
    We recognized a need to provide additional policy guidance because 
our rules did not explicitly tell our adjudicators how to consider the 
growing prevalence of opinions from claimants' medical sources who did 
not qualify as treating sources under our regulations. We stated this 
additional policy guidance in SSR 06-03p.\106\ SSR 06-03p included the 
following guidance:
---------------------------------------------------------------------------

    \106\ 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, 71 FR 45593 
(Aug. 9, 2006).
---------------------------------------------------------------------------

     We may use evidence from medical sources who are not AMSs 
to show the severity of an impairment(s) and how it affects a 
claimant's ability to function, but we may not use evidence from 
medical sources who are not AMSs to establish the existence of an 
impairment(s) at step 2 of the sequential evaluation process.
     We should evaluate opinions from non-AMS sources using the 
same criteria used to evaluate AMS opinions.
     We generally should explain the weight given to opinions 
from non-AMS sources when such opinions may have an effect on the 
outcome of the case.
     We will explain how we considered an opinion from a non-
AMS source when it is entitled to greater weight than a medical opinion 
from a treating source.

D. Experience With the Current Rules for Weighing Medical Opinions

    The current policies for weighing medical opinions have resulted in 
several adjudicative issues.
1. The Number of Findings Required
    Our current policies require our adjudicators to make a large 
number of findings that need to be included in their determinations and 
decisions. Claims often contain evidence from a great number of medical 
sources, and each medical source may express several medical 
opinions.\107\ Some claim files contain opinions from ten or more 
medical sources. Our current rules require adjudicators to articulate 
the weight given to most of these opinions using the factors listed in 
20 CFR 404.1527(c) and 416.927(c). Often, these medical opinions 
differ, and Federal courts have remanded cases citing failure to weigh 
properly one of the many medical opinions in a record.
---------------------------------------------------------------------------

    \107\ See ACUS Final Report at 14.
---------------------------------------------------------------------------

2. Federal Court Perspectives
    Our rules specify that a treating source's opinion is entitled to 
controlling weight only if it is well-supported by medically acceptable 
clinical and laboratory diagnostic techniques and is not inconsistent 
with the other substantial evidence in the case record. Our rules also 
require us to give good reasons in our notice of determination or 
decision for the weight we give a treating source's opinion.\108\
---------------------------------------------------------------------------

    \108\ 20 CFR 404.1527(c)(2) and 416.927(c)(2).
---------------------------------------------------------------------------

    However, some courts have questioned ALJs' articulated reasons for 
not giving treating source opinions controlling weight. They have 
offered different reasons for rejecting ALJs' articulated explanations 
for not giving controlling weight to treating source opinions, such as: 
The treating source opinion is more recent; \109\ an ALJ may only 
discredit claimants' reported pain symptoms using a heightened 
evidentiary standard; \110\ an ALJ may not rely upon prescribed 
conservative treatment to indicate less severe restrictions.\111\
---------------------------------------------------------------------------

    \109\ For example, see Winters v. Barnhart, 153 Fed. Appx. 846 
(3d Cir. 2005).
    \110\ For example, see Smolen v. Chater, 80 F.3d 1273, 1281 (9th 
Cir. 1996).
    \111\ For example, see Santiago v. Barnhart, 386 F. Supp. 2d 20 
(D.P.R. 2005).
---------------------------------------------------------------------------

    In effect, these reviewing courts have focused more on whether we 
sufficiently articulated the weight we gave treating source opinions 
rather than on whether substantial evidence supports the Commissioner's 
final decision. As the 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.\112\
---------------------------------------------------------------------------

    \112\ ACUS Final Report at 23.
---------------------------------------------------------------------------

    Some courts have recognized the challenges the treating source rule 
creates for us during judicial review. The United States Court of 
Appeals for the Seventh Circuit has specifically called on us to 
reexamine the treating physician rule. That court questioned its 
usefulness and noted that ``the weight properly to be given to 
testimony or other evidence of a treating physician depends on 
circumstances.'' \113\
---------------------------------------------------------------------------

    \113\ Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006).
---------------------------------------------------------------------------

    While the Supreme Court has not directly addressed this issue, its 
unanimous holding in Black & Decker Disability Plan v. Nord,\114\ which 
overturned the Ninth Circuit's attempt to apply the treating physician 
rule to a different Federal statute, offers insight. The Court 
cautioned that that the treating physician rule's built-in evidentiary 
bias in favor of treating physicians may influence treating

[[Page 62573]]

sources to favor a finding of disabled.\115\ ACUS commented:
---------------------------------------------------------------------------

    \114\ 538 U.S. 822, 832 (2003).
    \115\ Id. at 832; see also Hofslien v. Barnhart, 439 F.3d at 376 
noting that a treating physician may bend over backwards to assist a 
patient in obtaining benefits); Stephens v. Heckler, 766 F.2d 284, 
289 (7th Cir. 1985) (noting that a treating physician may want to do 
a favor for a friend and client and so may too quickly find 
disability and might also lack appreciation of how one case compares 
with other related cases, whereas a consulting physician may bring 
both impartiality and expertise).
---------------------------------------------------------------------------

    ``The cautionary note sounded by the Supreme Court in Black & 
Decker applies as well, it would seem, to Social Security's disability 
benefits programs. Indeed, as detailed in earlier parts of this report, 
our legal and empirical assessment of SSA's treating physician rule 
suggests that the rule's `routine deference' to treating physicians may 
no longer be warranted.'' \116\
---------------------------------------------------------------------------

    \116\ ACUS Final Report at 43.
---------------------------------------------------------------------------

3. Ninth Circuit's Credit-as-True Rule
    While 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, the Ninth Circuit uses a ``credit-
as-true'' rule, which sometimes results in it ordering us to award 
benefits instead of remanding cases.\117\ The Ninth Circuit combines 
the treating physician rule with its credit-as-true rule in cases in 
which the court finds:
---------------------------------------------------------------------------

    \117\ For example, see Garrison v. Colvin, 759 F.3d 995, 1021-
1022 (9th Cir. 2014).
---------------------------------------------------------------------------

    1. The ALJ failed to provide legally sufficient reasons for 
rejecting the treating source opinion;
    2. there are no other issues that must be resolved before a 
determination of disability can be made; and
    3. it is clear from the record that the ALJ would be required to 
find the claimant disabled if he or she credited the treating source 
opinion as true.\118\
---------------------------------------------------------------------------

    \118\ Id. For example, see Smolen v. Chater, 80 F.3d 1273, 1292 
(9th Cir. 1996).
---------------------------------------------------------------------------

    Application of the credit-as-true rule prevents us from 
reconsidering the evidence in the record as a whole and correcting any 
errors that may exist, effectively supplanting the judgment of our 
decision makers.
4. Difficulty Determining Treating Source Status Due to the Changing 
Nature of the Primary Healthcare System
    We stated in the 1991 final rules that our basis for creating the 
treating physician rule was the presumption that a claimant's sole 
treating physician generally has the longitudinal knowledge and a 
unique perspective about his or her patient's impairments that 
objective medical evidence alone cannot provide.
    However, changes in the national healthcare workforce and in the 
manner in which many people now receive primary medical care make this 
presumption less persuasive than when we issued those rules 25 years 
ago.\119\
---------------------------------------------------------------------------

    \119\ See ACUS Final Report at 25-27 and footnotes.
---------------------------------------------------------------------------

    One reason our current formulation needs to be revised is that many 
claimants receive healthcare from coordinated and managed care 
organizations instead of from one treating AMS. Claimants typically 
visit multiple medical professionals (such as primary physicians, 
specialists, and nurse practitioners) in a variety of medical settings 
(such as managed care and specialty clinics, hospitals, ambulatory care 
centers, and various public healthcare centers) for their healthcare 
needs, and less frequently develop a sustained relationship with one 
treating physician. Similarly, the specialized nature of healthcare 
delivery means that medical sources are less familiar with claimants' 
entire medical situation. This is more pronounced for patients with 
chronic impairments who are often treated by a team of medical sources 
instead of by one treating medical source. Additionally, many claimants 
switch medical providers over time to match changes in insurance 
coverage.\120\
---------------------------------------------------------------------------

    \120\ See ACUS Final Report at footnotes 220 and 221.
---------------------------------------------------------------------------

    As a result of the current complex healthcare delivery model, 
adjudicators and courts have attempted to understand what level of 
medical care would qualify a medical source as a treating source under 
our current rules. The main source of divergence originates because our 
rules do not address how to weigh more than one treating source's 
medical opinion simultaneously. In response, several courts have 
created varying standards of how we must address opinions from multiple 
treating sources. Some courts have even considered the following kinds 
of medical sources to be treating sources:
     Physicians ``with relatively sporadic treatment 
relationships'' to claimants; \121\
---------------------------------------------------------------------------

    \121\ ACUS Final Report at 34. For example, see Johnson v. 
Astrue, 597 F.3d 409, 411 (1st Cir. 2009).
---------------------------------------------------------------------------

     all members of a healthcare team; \122\ and
---------------------------------------------------------------------------

    \122\ For example, see Shontos v. Barnhart, 328 F.3d 418, 426 
(8th Cir. 2003).
---------------------------------------------------------------------------

     a physician who coordinated care among medical sources but 
who did not personally examine the claimant.\123\
---------------------------------------------------------------------------

    \123\ For example, see Benton v. Barnhart, 331 F.3d 1030 (9th 
Cir. 2003).
---------------------------------------------------------------------------

    However, these approaches move our adjudication away from looking 
at the content of the medical opinions and towards weighing treatment 
relationships against each other. About these kinds of court holdings, 
ACUS stated:
    These cases reveal that, from the courts' perspective, the 
distinction between treating and other physicians has blurred. The 
expansion of treating physician status runs the risk of undermining the 
rule itself. The original idea that the persuasiveness of medical 
opinion should turn more on the frequency of visits and depth of 
professional judgment underlying the medical opinion has gotten lost.
    This blurring of professional lines--between treating physicians 
and other medical professionals--is, moreover, increasingly reflected 
not just in judicial opinions, but in medical offices as well. Indeed, 
the treating physician business has expanded with new services to 
include doctors who see patients in high volume . . . . This 
``devaluation'' of the physician-patient relationship calls into 
further question whether any deference--let alone ``controlling 
weight''--should be afforded to the opinions of this type of medical 
practitioner.\124\
---------------------------------------------------------------------------

    \124\ ACUS Final Report at 35 (internal citations omitted).
---------------------------------------------------------------------------

5. Legal Scholars' Perspectives on the Treating Physician Rule
    Some legal scholars also disfavor the treating physician rule. For 
example, two scholars argue that ``[t]he substantial evidence standard 
of review should mean the same thing under the Social Security Act as 
it does under the APA or other organic statutes,'' but that this rule 
influences courts to review our decisions differently.\125\
---------------------------------------------------------------------------

    \125\ Richard E. Levy & Robert L. Glicksman, Agency-Specific 
Precedents, 89 TEX. L. REV. 499, 546 (2011); see also Richard 
Pierce, Jr., Petition for Rulemaking before the Social Security 
Administration, July 2, 2012, available at www.regulations.gov by 
searching under Docket SSA-2012-0035.
---------------------------------------------------------------------------

E. Proposed Revisions About How To Consider Medical Opinions and Prior 
Administrative Medical Findings

    To address the concerns discussed above, we propose several 
revisions to how we consider medical opinions and prior administrative 
medical findings. First, we would no longer give a specific weight to 
medical opinions and prior administrative medical findings; this 
includes giving controlling weight to medical opinions from treating 
sources. Instead, we would consider the persuasiveness of medical 
opinions and

[[Page 62574]]

prior administrative medical findings using the factors described 
below. Second, we propose to consider supportability and consistency as 
the most important factors. Finally, we propose to reorganize the 
factors to: (1) List the supportability and consistency factors first, 
(2) include a ``relationship with the claimant'' factor that combines 
the content of the current examining relationship and treatment 
relationship factors, (3) list individually the three different factors 
currently combined as other factors, and (4) restate the factors using 
consistent sentence structure.
    First, we would consider the persuasiveness of medical opinions and 
prior administrative medical findings from all medical sources equally 
using the factors discussed below. We would not defer or give any 
specific evidentiary weight, including controlling weight, to any prior 
administrative medical finding or medical opinion, including from an 
individual's own healthcare providers. We would add this in proposed 
new 20 CFR 404.1520c(a) and 416.920c(a).
    We also propose to focus on the persuasiveness of medical opinions 
and prior administrative medical findings instead of the weight of an 
opinion. We always strive to make our regulations as clear as possible; 
therefore, we are agreeing with an ACUS recommendation to revise the 
regulations to avoid using terms or phrases that have different 
meanings in related contexts.\126\ Our current rules use the terms 
``weigh'' or ``weight'' in several different ways: (1) As a synonym for 
considering all evidence generally,\127\ (2) as a synonym for 
persuasiveness,\128\ and (3) as part of our additional evidence 
standard for review used at the AC,\129\ and during CDRs.\130\ In 
addition to proposing to use the term ``persuasive'' instead of 
``weight'' for medical opinions in 20 CFR 404.1520c and 416.920c, we 
also propose to use the term ``consider'' instead of ``weigh'' in 20 
CFR 404.1520b and 416.920b. We would retain the current standards for 
AC review and CDRs.
---------------------------------------------------------------------------

    \126\ ACUS Final Report at 56.
    \127\ See 20 CFR 404.1520b and 416.920b. This term applies to 
all evidence, not only medical opinions.
    \128\ See 20 CFR 404.1527(c) and 416.927(c). See also 56 FR 
36931, 36935-36: ``[B]ecause opinions always have a subjective 
component, because the effects of medical conditions on individuals 
vary so widely, and because no two cases are ever exactly alike, it 
is not possible to create rules that prescribe the weight to be 
given to each piece of evidence that we may take into consideration 
in every case. [The final rule] also recognizes that the weighing of 
any evidence, including opinions, is a process of comparing the 
intrinsic value, persuasiveness, and internal consistency of each 
piece of evidence together to determine which findings of fact are 
best supported by all of the evidence.''
    \129\ See 20 CFR 404.970(b) and 416.1470(b).
    \130\ See 20 CFR 404.1579(b)(4), 404.1594(b)(6), 416.979(b)(4), 
416.994(b)(1)(vi), and 416.994a(a)(2).
---------------------------------------------------------------------------

    Next, to rely more upon the content and less on the source of 
medical opinions and prior administrative medical findings, we propose 
to emphasize supportability and consistency as the most important 
factors for considering the value and persuasiveness of medical 
opinions and prior administrative medical findings. The supportability 
and consistency factors are the two factors that focus upon the 
objective medical evidence and medical reports supporting a medical 
opinion or prior administrative medical finding.
    These two factors are also the factors we evaluate when assigning 
controlling weight under our current rules.\131\ If a medical opinion 
or prior administrative medical finding is both well-supported and 
consistent with the other evidence in the case record, we typically 
find that it is persuasive. Under the proposed change, adjudicators 
would still consider the value of the medical opinion or prior 
administrative medical finding to the issues in the claim.
---------------------------------------------------------------------------

    \131\ See 20 CFR 404.1527(c)(2) and 416.927(c)(2).
---------------------------------------------------------------------------

    Additionally, we propose several revisions to how we list and 
define the factors considering medical opinion and administrative 
finding of fact. The most important factors are supportability and 
consistency; therefore, we propose to list them first. We propose to 
list the remaining factors after the supportability and consistency 
factors in an order similar to how they appear in our current rules.
    We also propose to merge the current examining relationship and 
treatment relationship factors into one factor called ``relationship 
with the claimant'' because they both describe aspects of the 
relationship between a claimant and medical source. The proposed factor 
called ``relationship with the claimant'' would list the following 
subfactors separately: Examining relationship, length of the treatment 
relationship, frequency of examination, purpose of treatment 
relationship, and extent of the treatment relationship.
    Similarly, we propose to list separately the three factors we 
currently identify as other factors: (1) Familiarity with the entire 
record, (2) understanding of our policy, and (3) any other factor 
brought to our attention. Finally, we propose to restate the factors 
using consistent sentence structure for clarity.
    We would make these revisions in the proposed new 20 CFR 404.1520c 
and 416.920c.

F. Proposed Revisions About How To Articulate How We Consider Medical 
Opinions and Prior Administrative Medical Findings

    We propose to articulate in our determinations and decisions how we 
consider medical opinions and prior administrative medical findings at 
the source level instead of by the date of treatment and to focus more 
on the content than on the source of this evidence. We also propose to 
focus on the value and persuasiveness of medical opinions and prior 
administrative medical findings instead of assigning a specific weight. 
We propose to add the articulation policies in SSR 06-03p to our 
regulations and remove our policies about articulating medical opinions 
from treating sources from our rules. The proposed revisions would make 
our rules easier to understand and apply. We will continue to consider 
all evidence we receive in a claim.
    First, we propose to articulate together, instead of individually, 
all medical opinions and prior administrative medical findings made by 
a medical source because our administrative experience shows that 
adjudicators, claimants, representatives, and courts tend to evaluate 
all of a medical source's evidence together. Additionally, 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. Therefore, we propose that our adjudicators 
articulate separately how they considered multiple medical opinions or 
prior administrative medical findings from one medical source.
    Second, we propose to simplify our rules about which medical 
sources' medical opinions we would need to articulate. Because many 
claims have voluminous case records, it is not administratively 
feasible for us to articulate in determinations or decisions how we 
considered all medical sources' medical opinions in a claim. Our 
current policy requires us to articulate how we considered all AMS 
medical opinions when controlling weight does not apply, but it does 
not require us to always articulate how we considered medical opinions 
from medical sources who are not AMSs.

[[Page 62575]]

    Due to the advanced education and training received by AMSs, their 
medical opinions may have presumptive value in describing a claimant's 
functional limitations and abilities. Therefore, we propose to require 
our adjudicators to articulate how persuasive they find all AMS medical 
opinions.
    Similarly, because all MCs and PCs are AMSs, we would require our 
adjudicators to articulate how persuasive they find the prior 
administrative medical findings in the case record. This requirement is 
similar to our current policy in SSR 06-03p.
    Under these proposed rules, if an adjudicator finds that a medical 
opinion(s) from a medical source who is not an AMS is more valuable and 
persuasive than all of the AMS medical opinions and prior 
administrative medical findings in the claim, then the adjudicator 
would articulate how he or she considered that medical opinion(s). For 
example, if a physical therapist submits evidence indicating functional 
limitations supported by objective medical evidence that is consistent 
with the other evidence in the claim, the adjudicator would articulate 
in the determination or decisions how he or she considered that 
evidence if it is more valuable and persuasive than the all of the 
other medical opinions and prior administrative medical findings in the 
claim.
    This proposed rule also gives adjudicators the discretion of 
whether to discuss non-AMS medical opinions they find are not valuable 
or persuasive. For example, if a physical therapist submits a form 
indicating functional limitations without sufficient support or that 
are not consistent with the other evidence in the claim, the 
adjudicator would have the discretion about whether to articulate in 
the determination or decisions how he or she considered that evidence.
    Third, we propose to specify which of the factors we must 
articulate in our determinations and decisions. Due to voluminous case 
records in some cases, it is not always administratively feasible for 
us to articulate how we considered each of the factors for all of the 
medical opinions and prior administrative medical findings in a claim 
while still offering timely customer service to our claimants. Instead, 
for AMS medical opinions and prior administrative medical findings, we 
would explain, in the determination or decision, how we considered the 
factors of supportability and consistency because those are the most 
important factors.
    Generally, under these proposed rules, we would have discretion to 
articulate how we consider the other factors. We would only be required 
to explain how we consider other applicable factors when we find that 
two or more AMS' medical opinions or prior administrative medical 
findings about the same issue are not the same but are both equally 
well-supported and consistent with the other evidence in the record. 
This situation may arise when the medical sources are discussing 
different impairments.
    Similarly, if we find that a non-AMS medical opinion(s) is well-
supported and consistent with the other evidence in the record, as well 
as more valuable and persuasive than all AMS medical opinions and prior 
administrative medical findings, we would articulate how we consider 
the factors of supportability, consistency, and, if any, the other most 
persuasive factors.
    We would add these revisions in the proposed new 20 CFR 404.1520c 
and 416.920c.

VII. Other Revisions Related to Treating Sources

A. Background

    Our current regulations use the terms treating source and 
nontreating source in several sections. We consider a nontreating 
source to be a physician, psychologist, or other AMS who has examined 
an individual but does not, or did not, have an ongoing treatment 
relationship with that individual. The term includes an AMS who is a 
consultative examiner for us, when the consultative examiner is not the 
individual's treating source.\132\
---------------------------------------------------------------------------

    \132\ See 20 CFR 404.1502 and 416.902.
---------------------------------------------------------------------------

    In addition to our rules about weighing medical opinions, our 
current rules include treating sources in two other contexts. First, we 
state that a claimant's treating source will be the preferred source of 
a consultative examination when, in our judgment, the treating source 
is qualified, equipped, and willing to perform the additional 
examination or tests for the fee schedule payment, and generally 
furnishes complete and timely reports.\133\ We also state that we will 
use a medical source other than the treating source for a consultative 
examination in other situations, such as if there are conflicts or 
inconsistencies in a claim that cannot be resolved by going back to the 
treating source.\134\
---------------------------------------------------------------------------

    \133\ 20 CFR 404.1519h and 416.919h.
    \134\ 20 CFR 404.1519i and 416.919i.
---------------------------------------------------------------------------

    The other context in which we use the term treating source is when 
a claimant must follow treatment prescribed by his or her physician if 
the treatment can restore the claimant's ability to work.\135\ Our 
subregulatory policy recognizes prescribed treatment from a claimant's 
treating sources.
---------------------------------------------------------------------------

    \135\ 20 CFR 404.1530 and 416.930.
---------------------------------------------------------------------------

B. Proposed Revisions

    The current healthcare delivery model involves many types of 
medical sources that are not currently AMSs and that we do not consider 
treating sources under our rules. A challenge has been the difference 
between our policy-specific intent for the term ``treating source'' and 
its colloquial use to refer to any medical source who has treated an 
individual.
    We are proposing to align our rules to focus more on the content of 
medical evidence than the source of that evidence. We propose to 
consider all medical sources that a claimant identifies as his or her 
medical sources for our rules and not use the term ``treating source'' 
in our regulations at all. Consequently, we propose to revise our rules 
to use the phrase ``your medical source(s)'' to refer to whichever 
medical sources a claimant chooses to use.
    First, we propose to revise our regulations at 20 CFR 404.1530(a) 
and 416.930(a) to state that a claimant must follow treatment by his or 
her medical source(s) if this treatment can restore his or her ability 
to work.
    Second, we propose to revise our rules to state that our preference 
for consultative examinations will be any of a claimant's medical 
sources. We would continue to use the existing standards to decide 
whether to select the claimant's medical source for the consultative 
examinations, such as whether the medical source is qualified, 
equipped, and willing to perform the additional examination or tests 
for the fee schedule payment, and generally furnishes complete and 
timely reports. We propose to make this revision to 20 CFR 404.1519h, 
404.1519i, 416.919h, and 416.919i. We also propose to delete the final 
sentence of current 20 CFR 404.1519h and 416.919h that discusses which 
medical source may perform supplemental tests because this is already 
encompassed in the prior sentence's use of the term ``test(s).''
    Finally, because we would no longer use the terms treating source 
and nontreating source in our regulations, we propose to delete the 
definitions for these terms from our regulations at 20 CFR 404.1502 and 
416.902.

VIII. Reorganizing Our Opinion Evidence Regulations

    Our current regulations about opinion evidence are scattered 
throughout 20

[[Page 62576]]

CFR part 404 subpart P and part 416 subpart I. As part of our proposal 
to simplify our opinion evidence regulations to make them easier to 
understand and use, we are proposing to reorganize several sections and 
rename some section headings in our regulations. The proposed 
reorganization would combine similar topics now in separate sections 
into one section, place sections about how we weigh medical opinions 
and how we consider evidence next to each other, and add a section 
about establishing an impairment(s) at step 2 of the sequential 
evaluation process.
    For ease of use, the following are distribution and derivation 
tables for 20 CFR part 404 subpart P and part 416 subpart I:

                          A. Distribution Table
------------------------------------------------------------------------
            Current section                      Proposed section
------------------------------------------------------------------------
404.1501-404.1506......................  404.1501-404.1506.
404.1508...............................  404.1521.
404.1509-404.1511......................  404.1509-404.1511.
404.1512(a)............................  404.1512(a)(1).
404.1512(b)-(b)(1)(iv).................  404.1513(a)-(a)(4).
404.1512(b)(1)(v)......................  404.1520b(c)(2).
404.1512(b)(1)(vi)-(viii)..............  404.1513(a)(5)-(a)(5)(vi).
404.1512(b)(2)-(b)(2)(iv)..............  404.1513(b)-(b)(2).
404.1512(c)-(c)(7).....................  404.1512(a)(1)-(a)(1)(vii).
404.1512(d)-(f)........................  404.1512(b)(1)-(b)(3).
404.1513(a)............................  404.1502(a).
404.1513(b)-(b)(2).....................  404.1513(a)-(a)(2).
404.1513(c)-(c)(2).....................  Remove.
404.1513(d)-(d)(4).....................  404.1513(a)(4).
404.1513(e)-(e)(3).....................  404.1512(a)(2)-(a)(2)(iii).
404.1514-404.1520b.....................  404.1514-404.1520b.
404.1521...............................  404.1522.
404.1522...............................  404.1523(a) and (b).
404.1523...............................  404.1523(c).
404.1525-404.1526......................  404.1525-404.1526.
404.1527(a)(1).........................  Remove.
404.1527(a)(2).........................  404.1513(a)(3).
404.1527(b)............................  404.1527(b).
404.1527(c)-(c)(6).....................  404.1520c(b)-(b)(7) and
                                          404.1527(c)-(c)(6).
404.1527(d)-(d)(3).....................  404.1520b(c)(3)-(c)(3)(vii) and
                                          404.1527(d)-(d)(3).
404.1527(e)-(e)(3).....................  404.1513(b)(3) and 404.1513a.
404.1528...............................  404.1502.
404.1529--Appendix 2 to Subpart P of     404.1529--Appendix 2 to Subpart
 Part 404.                                P of Part 404.
416.901-416.906........................  416.901-416.906.
416.908................................  416.921.
416.909-416.911........................  416.909-416.911.
416.912(a).............................  416.912(a)(1).
404.912(b)-(b)(1)(iv)..................  404.913(a)-(a)(4).
404.912(b)(1)(v).......................  404.920b(c)(2).
404.912(b)(1)(vi)-(viii)...............  404.913(a)(5)-(a)(5)(vi).
416.912(b)(2)-(b)(2)(iv)...............  416.913(b)-(b)(2).
416.912(c)-(c)(7)......................  416.912(a)(1)-(a)(1)(vii).
416.912(d)-(f).........................  416.912(b)(1)-(b)(3).
416.913(a).............................  416.902(a).
416.913(b)-(b)(2)......................  416.913(a)-(a)(2).
416.913(c)-(c)(2)......................  Remove.
416.913(d)-(d)(4)......................  416.913(a)(4).
416.913(e)-(e)(3)......................  416.912(a)(2)-(a)(2)(iii).
416.913(f).............................  416.912(a)(3).
416.914-416.920b.......................  416.914-416.920b.
416.923................................  416.923(c).
416.925-416.926........................  416.925-416.926.
416.927(a)(1)..........................  Remove.
416.927(a)(2)..........................  416.913(a)(3).
416.927(b).............................  416.927(b).
416.927(c)-(c)(6)......................  416.920c(b)-(b)(7) and
                                          416.927(c)-(c)(6).
416.927(d)-(d)(3)......................  416.920b(c)(3)-(c)(3)(vii) and
                                          416.927(d)-(d)(3).
416.927(e)-(e)(3)......................  416.913(b)(3) and 416.913a.
416.928................................  416.902.
416.929-416.999d.......................  416.929-416.999d.
------------------------------------------------------------------------


                           B. Derivation Table
------------------------------------------------------------------------
            Proposed section                     Current section
------------------------------------------------------------------------
404.1501...............................  404.1501.
404.1502(a)............................  404.1513(a).
404.1502(b)-404.1503a..................  404.1502-404.1503a and
                                          404.1528.

[[Page 62577]]

 
404.1504-404.1507......................  404.1504-404.1507.
[Reserved].............................  404.1508.
404.1509-404.1511......................  404.1509-404.1511.
404.1512(a)(1).........................  404.1512(a).
404.1512(a)(1)-(a)(1)(vii).............  404.1512(c)-(c)(7).
404.1512(a)(2)-(a)(2)(iii).............  404.1513(e)-(e)(3).
404.1512(b)(1)-(b)(3)..................  404.1512(d)-(f).
404.1513(a)-(a)(2).....................  404.1512(b)(1)(i)-(b)(1)(ii).
404.1513(a)(3)-(a)(3)(iv)..............  404.1527(a)(2).
404.1513(a)(4).........................  404.1512(b)(1)(iii)-(iv) and
                                          404.1513(d)-(d)(4).
404.1513(a)(5)-(a)(5)(v)...............  404.1512(b)-(b)(1)(viii).
404.1513(b)-(b)(2).....................  404.1512(b)(2)-(b)(2)(iv).
404.1513a..............................  404.1527(e)-(e)(3).
404.1514-404.1520b.....................  404.1514-404.1520b.
404.1520b(c)(1)........................  404.1512(b)(5).
404.1520b(c)(2)........................  404.1527(d)-(d)(3).
404.1520b(c)(3)........................  404.1527(e)(1)(i).
404.1520c(b)-(b)(7)....................  404.1527(c)-(c)(6).
404.1521...............................  404.1508.
404.1522...............................  404.1521.
404.1523(a) and (b)....................  404.1522.
404.1523(c)............................  404.1523.
404.1525-404.1526......................  404.1525-404.1526.
404.1527...............................  404.1527.
[Reserved].............................  404.1528.
404.1529--Appendix 2 to Subpart P of     404.1529--Appendix 2 to Subpart
 Part 404.                                P of Part 404.
416.901................................  416.901.
416.902(a).............................  416.913(a).
416.902(b)-416.903a....................  416.902-416.903a and 416.928.
416.904-416.907........................  416.904-416.907.
[Reserved].............................  416.908.
416.909-416.911........................  416.909-416.911.
416.912(a)(1)..........................  416.912(a).
416.912(a)(1)-(a)(1)(vii)..............  416.912(c)-(c)(7).
416.912(a)(2)-(a)(2)(iii)..............  416.913(e)-(e)(3).
416.912(a)(3)..........................  416.913(f).
416.912(b)(1)-(b)(3)...................  416.912(d)-(f).
416.913(a)-(a)(2)......................  416.912(b)(1)(i)-(b)(1)(ii).
416.913(a)(3)-(a)(3)(iv)...............  416.927(a)(2).
416.913(a)(4)..........................  416.912(b)(1)(iii)-(iv) and
                                          416.913(d)-(d)(4).
416.913(a)(5)-(a)(5)(v)................  416.912(b)-(b)(1)(viii).
416.913(b)-(b)(2)......................  416.912(b)(2)-(b)(2)(iv).
416.913(b)(2)..........................  New.
416.913a...............................  416.927(e)-(e)(3).
416.914-416.920b.......................  416.914-416.920b.
416.920b(c)(1).........................  416.912(b)(5).
416.920b(c)(2).........................  416.927(d)-(d)(3).
416.920b(c)(3).........................  416.927(e)(1)(i).
416.920c(b)-(b)(7).....................  416.927(c)-(c)(6).
416.921................................  416.908.
416.922................................  416.921.
416.923(a) and (b).....................  416.922.
416.923(c).............................  416.923.
416.925-416.926........................  416.925-416.926.
416.927................................  416.927.
[Reserved].............................  416.928.
416.929-416.999d.......................  416.928-416.999d.
------------------------------------------------------------------------

    We also propose to reorganize the current text within 20 CFR 
404.1520b and 416.920b for readability. Finally, we propose to make a 
number of revisions throughout the proposed regulatory sections to use 
plain language.

IX. Effect Upon Certain Social Security Rulings

    Upon publication of final rules, we would also rescind the 
following SSRs that would be inconsistent or unnecessarily duplicative 
with our new rules:
     SSR 96-2p: Titles II and XVI: Giving Controlling Weight to 
Treating Source Medical Opinions.\136\
---------------------------------------------------------------------------

    \136\ 61 FR 34490 (July 2, 1996).
---------------------------------------------------------------------------

     SSR 96-5p: Titles II and XVI: Medical Source Opinions on 
Issues Reserved to the Commissioner.\137\
---------------------------------------------------------------------------

    \137\ 61 FR 34471 (July 2, 1996).
---------------------------------------------------------------------------

     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

[[Page 62578]]

Judge and Appeals Council Levels of Administrative Review; Medical 
Equivalence.\138\
---------------------------------------------------------------------------

    \138\ 61 FR 34466 (July 2, 1996).
---------------------------------------------------------------------------

     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.\139\
    In addition, because we would rescind SSR 96-6p, we intend to 
publish a new SSR that would discuss certain aspects of how ALJs and 
the AC must obtain evidence sufficient to make a finding of medical 
equivalence.

X. Proposed Implementation Process

    We propose to implement all of the revisions discussed above on the 
effective date of the final rule, with the exception of those revisions 
specified below. The revisions that we propose to implement in all 
claims as of the effective date of the final rule respond fully to the 
mandate of BBA section 832 medical review requirements, clarify current 
policy, or are not substantially related to the policies about 
evaluating medical opinions.
    However, a claimant has the burden of proving to us that he or she 
is blind or disabled, and we are aware that claimants whose claims are 
pending administrative review may have requested and obtained treating 
and other medical source opinions based on our policy set forth in 
current 20 CFR 404.1527 and 416.927. Considering this fact, we propose 
to continue to use our current rules about how we consider medical 
source opinion evidence, including the controlling weight policy for 
treating sources, for claims that are filed before the effective date 
of the final rule. Using our current rules about how we consider 
medical source opinions for claims filed before the effective date of 
the final rule will also enable us to apply a uniform standard to 
evaluate medical source opinion evidence throughout the administrative 
review process.
    Specifically, we propose to continue to use the following current 
rules in claims that are filed before the effective date of the final 
rule:
     The current definitions of a medical opinion and a 
treating source in current 20 CFR 404.1502, 404.1527(a), 416.902, and 
416.927(a);
     How we consider medical opinions, including that we may 
give controlling weight to certain medical opinions, as explained in 
current 20 CFR 404.1527(b)-(c) and 416.927(b)-(c);
     How we consider issues reserved to the Commissioner, as 
explained in current 20 CFR 404.1527(d) and 416.927(d);
     How we consider decisions by other governmental agencies 
and nongovernmental entities, as explained in current 20 CFR 404.1504 
and 416.904; and
     Neither audiologists nor APRNs are AMSs, as explained in 
current 20 CFR 404.1502, 404.1513, 416.902, and 416.913.
    We also propose to make a number of conforming changes to reflect 
this proposed implementation process.

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this NPRM meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

    We certify that this NPRM would not have a significant economic 
impact on a substantial number of small entities because it affects 
individuals only. Therefore, a regulatory flexibility analysis is not 
required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    These 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 propose to amend 20 CFR 
parts 404 416 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, revise the fourth sentence of paragraph (b)(2) 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:

[[Page 62579]]

Sec.  404.1502  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 only 
(except, in Puerto Rico, for the measurement of visual acuity and 
visual fields only);
    (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 and 
auditory processing disorders only (only with respect to claims filed 
(see Sec.  404.614) on or after [EFFECTIVE DATE OF FINAL RULE]); or
    (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 [EFFECTIVE DATE OF FINAL RULE]).
    (b) Commissioner means the Commissioner of Social Security or his 
or her authorized designee.
    (c) Laboratory findings means 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.
    (d) 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.
    (e) 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.
    (f) Objective medical evidence means signs, laboratory findings, or 
both.
    (g) Signs means 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.
    (h) State agency means an agency of a State designated by that 
State to carry out the disability or blindness determination function.
    (i) Symptoms means your own description of your physical or mental 
impairment.
    (j) We or us means, as appropriate, either the Social Security 
Administration or the State agency making the disability or blindness 
determination.
    (k) 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 [EFFECTIVE 
DATE OF FINAL RULE], 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 in our determination or decision relevant supporting 
evidence underlying the other governmental agency or nongovernmental 
entity's decision that we receive as evidence in your claim.


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;

[[Page 62580]]

    (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 reports 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. If applicable, we will develop your complete medical history 
for the 12-month period prior to:
    (A) The month you were last insured for disability insurance 
benefits (see Sec.  404.130);
    (B) 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
    (C) The month you attain age 22 and you are applying for child's 
benefits based on disability (see Sec.  404.350(e)).
    (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 [EFFECTIVE DATE OF FINAL RULE]). 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 opinions. 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, and pace; carrying out instructions; and responding 
appropriately to supervision, co-workers, and work pressures in a work 
setting;
    (iii) Your ability to perform other demands of work, such as 
seeing, hearing, and using other senses; and
    (iv) Your ability to adapt to environmental conditions, such as 
temperature extremes and fumes.
    (For claims filed (see Sec.  404.614) before [EFFECTIVE DATE OF 
FINAL RULE]), 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 [EFFECTIVE DATE OF FINAL RULE], other 
medical evidence does not include diagnosis, prognosis, and statements 
that reflect judgments about the nature and severity of your 
impairment(s)).
    (4) Statements from nonmedical sources. A statement from a 
nonmedical source is a statement(s) made by nonmedical sources 
(including you) about your impairment(s), your restrictions, your daily 
activities, your efforts to work, or any other relevant statements the 
nonmedical source makes to medical sources during the course of your 
examination or treatment or that he or she makes to us during 
interviews, on applications, in reports or letters, and in testimony in 
our administrative proceedings.
    (5) Prior administrative medical findings. A prior administrative 
medical finding is a finding, other than the ultimate determination 
about whether you are disabled, about a medical issue

[[Page 62581]]

made by our Federal and State agency medical and psychological 
consultants at a prior level of review (see Sec.  404.900) 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 (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; or
    (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 source 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 analysis, 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 source 
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) 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.  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 and 404.1520c.
    (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 and 404.1520c.
    (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 and 404.1520c because our Federal or 
State agency medical or psychological consultants are highly qualified 
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 and 404.1520c, 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. In Sec.  404.1518, revise paragraph (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. In Sec.  404.1519g, revise paragraph (a) to read as follows:

[[Page 62582]]

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. In Sec.  404.1519n, revise paragraph (c)(6) to read as follows:


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) 
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. * * *
* * * * *
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 (iv) of this 
section. We might not take all of the actions listed paragraphs 
(b)(2)(i) through (iv) of this section. 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 neither valuable nor persuasive. Paragraphs 
(c)(1) through (3) of this section apply in claims filed (see Sec.  
404.614) on or after [EFFECTIVE DATE OF FINAL RULE]. Because the 
evidence listed in paragraphs (c)(1) through (3) 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 (vii) 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;

[[Page 62583]]

    (ii) Statements about whether or not your impairment(s) meets the 
duration requirement (see Sec.  404.1509);
    (iii) Statements about whether or not your impairment(s) meets or 
medically equals any listing in the Listing of Impairments in 20 CFR 
part 404, subpart P, Appendix 1;
    (iv) 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);
    (v) Statements about whether or not your residual functional 
capacity prevents you from doing past relevant work (see Sec.  
404.1560);
    (vi) Statements that you do or do not meet the requirements of a 
medical-vocational rule in Part 404, Subpart P, Appendix 2; and
    (vii) 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.

    This section applies to claims filed (see Sec.  404.614) on or 
after [EFFECTIVE DATE OF FINAL RULE]. For claims filed before 
[EFFECTIVE DATE OF FINAL RULE], the rules in Sec.  404.1527 apply.
    (a) General. As part of our consideration of all evidence in your 
claim under Sec.  404.1520b, we consider and articulate how we consider 
medical opinions and prior administrative medical findings under this 
section. 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 
(7) of this section, as appropriate. The most important factors we 
consider when we evaluate the evidentiary value 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) Articulation procedure. We will articulate in our determination 
or decision how persuasive we find the medical opinions and prior 
administrative medical findings in your case record 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 one or more 
medical opinion(s) or prior administrative medical finding(s), we will 
consider the medical opinion(s) or prior administrative medical 
finding(s) from that medical source together using the factors listed 
in paragraphs (c)(1) through (7) of this section, as appropriate. We 
are not required to articulate separately how we considered multiple 
medical opinions or prior administrative medical findings from one 
medical source.
    (2) Most important factors. For medical opinions and prior 
administrative medical findings in your case record made by acceptable 
medical sources, we will explain how we considered the factors of 
supportability (paragraph (c)(1) of this section) and consistency 
(paragraph (c)(2) of this section) in your determination or decision 
because those are the most important factors. We may, but are not 
required to, explain how we considered the factors in paragraphs (c)(3) 
through (7) of this section, as appropriate, when we articulate how we 
consider the medical opinions and prior administrative medical findings 
from acceptable medical sources in your case record.
    (3) Equally persuasive medical opinions or prior administrative 
medical findings about the same issue from acceptable medical sources. 
When we find that two or more acceptable medical sources' 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 (7) of this 
section for those medical opinions or prior administrative medical 
findings in your determination or decision.
    (4) Medical opinions from medical sources who are not acceptable 
medical sources. We will articulate in your determination or decision 
how we considered the medical opinion(s) from a medical source who is 
not an acceptable medical source only if we find it to be well-
supported and consistent with the record, as well as more valuable and 
persuasive than the medical opinion(s) and prior administrative medical 
findings from all of the acceptable medical sources in your case 
record. When we do articulate how we considered the medical opinion(s) 
of a medical source who is not an acceptable medical source, we will 
articulate in your determination or decision how we considered the 
factors of supportability (paragraph (c)(1) of this section), 
consistency (paragraph (c)(2) of this section), and the other most 
persuasive factors in paragraphs (c)(3) through (7) of this section, as 
applicable.
    (c) Factors for consideration. 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).
    (3) Relationship with the claimant--(i) 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.
    (ii) Length of the treatment relationship. The length of time of 
the treatment relationship may help demonstrate whether the medical 
source has a longitudinal understanding of your impairment(s).
    (iii) 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).
    (iv) Purpose of treatment relationship. The purpose for treatment 
you received from the medical source may help demonstrate the level of 
knowledge the

[[Page 62584]]

medical source has of your impairment(s).
    (v) 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).
    (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.
    (5) Familiarity with the entire record. The medical opinion or 
prior administrative medical finding of a medical source may be more 
persuasive if the evidence demonstrates that the medical source is 
familiar with the other evidence in your case record than if the 
medical source is not familiar with the other evidence in your case 
record.
    (6) Understanding of our policy. The medical opinion or prior 
administrative medical finding of a medical source may be more 
persuasive if the evidence demonstrates that the medical source 
understands our disability programs and evidentiary requirements.
    (7) Other factors. We will also consider any factors that tend to 
support or contradict a medical opinion or prior administrative medical 
finding.
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 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 follows:


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.

[[Page 62585]]

0
25. Revise Sec.  404.1527 to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

    This section applies to claims filed (see Sec.  404.614) before 
[EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE 
DATE OF FINAL RULE], 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 evaluate every medical opinion we receive. Unless we give a 
treating source's 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 
opinion of a source who has examined you than to the opinion of a 
source who has not examined you.
    (2) Treatment relationship. Generally, we give more weight to 
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 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 opinion controlling weight, we apply the 
factors listed in paragraphs (c)(2)(i) and (ii) of this section, as 
well as the factors in paragraphs (c)(3) through (6) of this section in 
determining the weight to give the opinion. We will always give good 
reasons in our notice of determination or decision for the weight we 
give your treating source's 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 source's 
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 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 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 an opinion, particularly medical signs and 
laboratory findings, the more weight we will give that opinion. The 
better an explanation a source provides for an opinion, the more weight 
we will give that opinion. Furthermore, because nonexamining sources 
have no examining or treating relationship with you, the weight we will 
give their opinions will depend on the degree to which they provide 
supporting explanations for their opinions. We will evaluate the degree 
to which these opinions consider all of the pertinent evidence in your 
claim, including opinions of treating and other examining sources.
    (4) Consistency. Generally, the more consistent an opinion is with 
the record as a whole, the more weight we will give to that opinion.
    (5) Specialization. We generally give more weight to the opinion of 
a specialist about medical issues related to his or her area of 
specialty than to the 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 opinion. For example, the amount of understanding of our 
disability programs and their evidentiary requirements that an 
acceptable medical source has, regardless of the source of that 
understanding, and the extent to which an acceptable 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)(2) 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

[[Page 62586]]

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.


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), paragraph (c)(3) introductory text, 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. In Sec.  404.1530, revise paragraph (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 can restore your ability to work.
* * * * *
0
29. In Sec.  404.1579, revise the second sentence of paragraph (b)(1) 
introductory text 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. In Sec.  404.1594, revise the second sentence of paragraph (b)(1) 
introductory text, the sixth sentence in Example 1 following paragraph 
(b)(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 must be based on improvement in the symptoms, signs, and/or 
laboratory

[[Page 62587]]

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 as follows:
0
a. In Part A:
0
i. Revise the second, third, and fourth sentences of 2.00.B.1.a;
0
ii. Revise 2.00.B.1.b;
0
iii. Revise the fourth sentence of 7.00H;
0
iv. Revise the second sentence of 8.00.C.3;
0
v. Revise the second sentence of 12.00.D.1.a;
0
vi. Revise the second sentence of 12.00.D.7; and
0
vii. Revise the fourth sentence of 14.00H.
0
b. In Part B:
0
i. Revise the second, third, and fourth sentences of 102.00.B.1.a;
0
ii. Revise 102.00.B.1.b;
0
iii. Revise the second sentence of 108.00.C.3.;
0
iv. Revise the first sentence 108.00.E.3.a; and
0
v. Revise the second sentence of 112.00.D.1.
    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.
* * * * *
    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. 
* * *
* * * * *
    12.00 * * *
    D. * * *
    1. * * *
    a. * * * See Sec. Sec.  404.1521 and 416.921. * * *
* * * * *
    7. * * * Such test results may be useful for disability 
evaluation when corroborated by other evidence from medical and 
nonmedical sources, including results from other psychological tests 
and information obtained in the course of the clinical evaluation. * 
* *
* * * * *
    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.
* * * * *
    108.00. * * *
    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. * * *
* * * * *
    112.00 * * *
    D. * * *
    1. * * * See Sec. Sec.  404.1521 and 416.921. * * *
* * * * *

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).
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 
licensed physician (see Sec.  404.1502(a)(1)) who 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 is a psychological consultant? A psychological consultant 
is a licensed psychiatrist or psychologist (see Sec.  404.1502(a)(2)) 
who 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 in 
a claim involving a mental impairment(s), a medical consultant who is 
not a psychiatrist will evaluate the mental impairment(s).
    (c) Cases involving both physical and mental impairments. In a case 
where there is evidence of both physical and mental impairments, the 
medical

[[Page 62588]]

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 (b) of 
this section.
0
35. Revise Sec.  404.1617 to read as follows:


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

    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 only 
(except, in Puerto Rico, for the measurement of visual acuity and 
visual fields only);
    (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 and 
auditory processing disorders only (only in claims filed (see Sec.  
416.325) on or after [EFFECTIVE DATE OF FINAL RULE]); or
    (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 in claims filed (see Sec.  
416.325) on or after [EFFECTIVE DATE OF FINAL RULE]).
    (b) Adult means a person who is age 18 or older.
    (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.  416.260-416.269. 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 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 20 CFR 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);

[[Page 62589]]

    (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 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 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.
0
38. In Sec.  416.903, remove paragraph (e), redesignate paragraph (f) 
as paragraph (e), and revise 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 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.  416.325) on or after [EFFECTIVE 
DATE OF FINAL RULE] 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 in our determination or decision relevant supporting 
evidence underlying the other governmental agency or nongovernmental 
entity's decision that we receive as evidence in your claim.


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.

    (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.  416.913). 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, 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.  
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 reports 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

[[Page 62590]]

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.

    (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.  416.920b, 416.920c (or under Sec.  416.927 for claims filed 
(see Sec.  416.325) before [EFFECTIVE DATE OF FINAL RULE]). 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.  
416.902(k).
    (2) Medical opinions. 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 abilities listed in paragraphs (a)(2)(i)(A)-(D) and 
(a)(2)(ii)(A)-(F) of this section. (For claims filed (see Sec.  
416.325) before [EFFECTIVE DATE OF FINAL RULE]), see Sec.  416.927(a) 
for the definition of medical opinion.)
    (i) Medical opinions in adult claims are about impairment-related 
limitations and restrictions in:
    (A) 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);
    (B) Your ability to perform mental demands of work activities, such 
as understanding; remembering; maintaining concentration, persistence, 
and pace; carrying out instructions; and responding appropriately to 
supervision, co-workers, and work pressures in a work setting;
    (C) Your ability to perform other demands of work, such as seeing, 
hearing, and using other senses; and
    (D) Your ability to adapt to environmental conditions, such as 
temperature extremes and fumes.
    (ii) Medical opinions in child claims are about impairment-related 
limitations and restrictions in your abilities in the six domains of 
functioning:
    (A) Acquiring and using information (see Sec.  416.926a(g));
    (B) Attending and completing tasks (see Sec.  416.926a(h));
    (C) Interacting and relating with others (see Sec.  416.926a(i));
    (D) Moving about and manipulating objects (see Sec.  416.926a(j));
    (E) Caring for yourself (see Sec.  416.926a(k)); and
    (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 [EFFECTIVE DATE OF FINAL RULE]), other 
medical evidence does not include diagnosis, prognosis, and statements 
that reflect judgments about the nature and severity of your 
impairment(s)).
    (4) Statements from nonmedical sources. A statement from a 
nonmedical source is a statement(s) made by nonmedical sources 
(including you) about your impairment(s), your restrictions, your daily 
activities, your efforts to work, or any other relevant statements the 
nonmedical source makes to medical sources during the course of your 
examination or treatment or that he or she makes to us during 
interviews, on applications, in reports or letters, and in testimony in 
our administrative proceedings.
    (5) Prior administrative medical findings. 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) 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.  
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 (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 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

[[Page 62591]]

does not include medical evidence, medical source 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 analysis, 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 source 
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 paragraphs (a) through (c) 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 and 416.920c.
    (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 and 416.920c.
    (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.  416.920b and 416.920c because our Federal or 
State agency medical or psychological consultants are highly qualified 
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 and 416.920c, 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. InSec.  416.918, revise paragraph (c) to read as follows:


Sec.  416.918  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
45. In Sec.  416.919g, revise paragraph (a) to read as follows:


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


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


Sec.  416.919i  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;

[[Page 62592]]

    (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.  416.919g.
0
48. In Sec.  416.919n, revise paragraph (c)(6) to read as follows:


Sec.  416.919n  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.  416.913(a)(3); and
* * * * *
0
49. In Sec.  416.920a, revise the second sentence of paragraph (b)(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. * * *
* * * * *
0
50. Revise Sec.  416.920b to read as follows:


Sec.  416.920b  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 (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.  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 neither valuable nor persuasive. Paragraphs 
(c)(1) through (3) apply in claims filed (see Sec.  416.325) on or 
after [EFFECTIVE DATE OF FINAL RULE]. Because the evidence listed in 
paragraphs (c)(1) through (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 (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 your impairment(s) meets the 
duration requirement (see Sec.  416.909);
    (iii) Statements about whether or not your impairment(s) meets or 
medically equals any listing in the Listing of Impairments in 20 CFR 
part 404, subpart P, Appendix 1;
    (iv) If you are a child, statements about whether or not your 
impairment(s) functionally equals the listings in appendix 1 to subpart 
P of part 404 (see Sec.  416.926a);
    (v) If you are an adult, statements about what your residual 
functional capacity is using our programmatic terms about the 
functional exertional levels in appendix 2 to subpart P of part 404, 
Rule 200.00 instead of descriptions about your functional abilities and 
limitations (see Sec.  416.945);
    (vi) 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);
    (vii) If you are an adult, statements that you do or do not meet 
the requirements of a medical-vocational rule in appendix 2 to subpart 
P of part 404; and
    (viii) 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.

    This section applies to claims filed (see Sec.  416.325) on or 
after [EFFECTIVE DATE OF FINAL RULE]. For claims filed before 
[EFFECTIVE DATE OF FINAL RULE], the rules in Sec.  416.927 apply.
    (a) General. As part of our consideration of all evidence in your

[[Page 62593]]

claim under Sec.  416.920b, we consider and articulate how we consider 
medical opinions and prior administrative medical findings under this 
section. 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 
(7) of this section, as appropriate. The most important factors we 
consider when we evaluate the evidentiary value 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) Articulation procedure. We will articulate in our determination 
or decision how persuasive we find the medical opinions and prior 
administrative medical findings in your case record 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 one or more 
medical opinion(s) or prior administrative medical finding(s), we will 
consider the medical opinion(s) or prior administrative medical 
finding(s) from that medical source together using the factors listed 
in paragraphs (c)(1) through (7) of this section, as appropriate. We 
are not required to articulate separately how we considered multiple 
medical opinions or prior administrative medical findings from one 
medical source.
    (2) Most important factors. For medical opinions and prior 
administrative medical findings in your case record made by acceptable 
medical sources, we will explain how we considered the factors of 
supportability (paragraph (c)(1) of this section) and consistency 
(paragraph (c)(2) of this section) in your determination or decision 
because those are the most important factors. We may, but are not 
required to, explain how we considered the factors in paragraphs (c)(3) 
through (7) of this section, as appropriate, when we articulate how we 
consider the medical opinions and prior administrative medical findings 
from acceptable medical sources in your case record.
    (3) Equally persuasive medical opinions or prior administrative 
medical findings about the same issue from acceptable medical sources. 
When we find that two or more acceptable medical sources' 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 (7) of this 
section for those medical opinions or prior administrative medical 
findings in your determination or decision.
    (4) Medical opinions from medical sources who are not acceptable 
medical sources. We will articulate in your determination or decision 
how we considered the medical opinion(s) from a medical source who is 
not an acceptable medical source only if we find it to be well-
supported and consistent with the record, as well as more valuable and 
persuasive than the medical opinion(s) and prior administrative medical 
findings from all of the acceptable medical sources in your case 
record. When we do articulate how we considered the medical opinion(s) 
of a medical source who is not an acceptable medical source, we will 
articulate in your determination or decision how we considered the 
factors of supportability (paragraph (c)(1) of this section), 
consistency (paragraph (c)(2) of this section), and the other most 
persuasive factors in paragraphs (c)(3) through (7) of this section, as 
applicable.
    (c) Factors for consideration. 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).
    (3) Relationship with the claimant--(i) 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.
    (ii) Length of the treatment relationship. The length of time of 
the treatment relationship may help demonstrate whether the medical 
source has a longitudinal understanding of your impairment(s).
    (iii) 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).
    (iv) Purpose of 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).
    (v) 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).
    (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.
    (5) Familiarity with the entire record. The medical opinion or 
prior administrative medical finding of a medical source may be more 
persuasive if the evidence demonstrates that the medical source is 
familiar with the other evidence in your case record than if the 
medical source is not familiar with the other evidence in your case 
record.
    (6) Understanding of our policy. The medical opinion or prior 
administrative medical finding of a medical source may be more 
persuasive if the evidence demonstrates that the medical source 
understands our disability programs and evidentiary requirements.
    (7) Other factors. We will also consider any factors that tend to 
support or contradict a medical opinion or prior administrative medical 
finding.
0
52. Revise Sec.  416.921 to read as follows:

[[Page 62594]]

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.

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


Sec.  416.923  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. Sec.  416.920 and 416.924).
0
55. In Sec.  416.924a, revise paragraph (a) introductory text, the last 
sentence of paragraph (a)(1)(i), the last sentence in paragraph 
(a)(1)(iii), and the paragraph (a)(2) heading 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).
    (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. In Sec.  416.924b, revise 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.

* * * * *
    (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. Sec.  416.921 and 
416.924(c).
* * * * *
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

[[Page 62595]]

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. In Sec.  416.926a, revise 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.

    This section applies to claims filed (see Sec.  416.325) before 
[EFFECTIVE DATE OF FINAL RULE]. For claims filed on or after [EFFECTIVE 
DATE OF FINAL RULE], 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 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 
opinion of a source who has examined you than to the opinion of a 
source who has not examined you.
    (2) Treatment relationship. Generally, we give more weight to 
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 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 opinion controlling weight, we apply the 
factors listed in paragraphs (c)(2)(i) and (ii) of this section, as 
well as the factors in paragraphs (c)(3) through (6) of this section in 
determining the weight to give the opinion. We will always give good 
reasons in our notice of determination or decision for the weight we 
give your treating source's 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 source's 
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 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 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 an opinion, particularly medical signs and 
laboratory findings, the more weight we will give that opinion. The 
better an explanation a source provides for an opinion, the more weight 
we will give that opinion. Furthermore, because nonexamining sources 
have no examining or treating relationship with you, the weight we will 
give their opinions will depend on the degree to which they provide 
supporting explanations for their opinions. We will evaluate the degree 
to which these opinions consider all of the pertinent evidence in your 
claim, including opinions of treating and other examining sources.
    (4) Consistency. Generally, the more consistent an opinion is with 
the record as a whole, the more weight we will give to that opinion.
    (5) Specialization. We generally give more weight to the opinion of 
a specialist about medical issues related to his or her area of 
specialty than to the 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 opinion. For example, the amount of understanding of our 
disability programs and their evidentiary requirements that an 
acceptable medical source has, regardless of the source of that 
understanding, and the extent to which an acceptable medical source is 
familiar with the other information in

[[Page 62596]]

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)(2) 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.  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 (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.


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), paragraph (c)(3) introductory text, 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. In Sec.  416.930, revise paragraph (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 can restore your ability to work.
* * * * *
0
64. In Sec.  416.993, revise the seventh and ninth sentences of 
paragraph (b) to read as follows:

[[Page 62597]]

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. In Sec.  416.994, revise the sixth sentence in Example 1 following 
paragraph (b)(1)(i), 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) * * *
    Example 1: * * * When we reviewed your claim your medical source 
who has treated you reported that he 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. InSec.  416.994a, revise the second sentence of paragraph (a)(2), 
the first sentence in paragraph (c)(2), the fourth sentence of 
paragraph (d), and paragraph (i)(1) introductory text to read as 
follows:


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. In Sec.  416.1015, remove paragraph (d) and redesignate 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 
licensed physician (see Sec.  416.902(a)(1)) who is a member of a team 
that makes disability determinations in a State agency (see Sec.  
416.915), 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 is a psychological consultant? A psychological consultant 
is a licensed psychiatrist or psychologist (see Sec.  416.902(a)(2)) 
who 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 in 
a claim involving a mental impairment(s), a medical consultant who is 
not a psychiatrist will evaluate the mental impairment(s).
    (c) 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 (b) 
of this section.
0
70. Revise Sec.  416.1017 to read as follows:


Sec.  416.1017  Reasonable efforts to obtain review by a physician, 
psychiatrist, and psychologist.

    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.

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

0
71. The authority for subpart N continues to read as follows:


[[Page 62598]]


    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, revise the fourth sentence of paragraph (b)(2) 
to read as follows:


Sec.  416.1406  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.  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. 2016-21358 Filed 9-8-16; 8:45 am]
 BILLING CODE 4191-02-P

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