Disability Determinations by State Agency Disability Examiners, 9821-9827 [2010-4283]
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Federal Register / Vol. 75, No. 42 / Thursday, March 4, 2010 / Proposed Rules
TABLE 1—RELATED SERVICE INFORMATION
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EMBRAER Service Bulletin 190–36–0006 ......................................................................................................
EMBRAER Service Bulletin 190–36–0014 ......................................................................................................
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Review Board Report MRB–1621.
Issued in Renton, Washington, on February
24, 2010.
Jeffrey E. Duven,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2010–4505 Filed 3–3–10; 8:45 am]
BILLING CODE 4910–13–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA–2008–0041]
RIN 0960–AG87
Disability Determinations by State
Agency Disability Examiners
Social Security Administration.
Notice of proposed rulemaking.
AGENCY:
ACTION:
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SUMMARY: We propose to amend our
rules to permit disability examiners in
the State agencies to make fully
favorable determinations in certain
claims for disability benefits under titles
II and XVI of the Social Security Act
(Act) without the approval of a medical
or psychological consultant. The
proposed changes would apply on a
temporary basis only to claims we
consider under our rules for Quick
Disability Determinations (QDD) or
under our compassionate allowance
initiative.
DATES: To be sure that we consider your
comments, we must receive them no
later than April 5, 2010.
ADDRESSES: You may submit comments
by any one of three methods—Internet,
fax or mail. Do not submit the same
comments multiple times or by more
than one method. Regardless of which
method you choose, please state that
your comments refer to Docket No.
SSA–2008–0041 so that we may
associate your comments with the
correct regulation.
Caution: You should be careful to
include in your comments only
information that you wish to make
publicly available. We strongly urge you
not to include in your comments any
personal information, such as Social
Security numbers or medical
information.
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1. Internet: We strongly recommend
this method for submitting your
comments. Visit the Federal
eRulemaking portal at https://
www.regulations.gov. Use the Search
function of the webpage to find docket
number SSA–2008–0041, then submit
your comment. Once you submit your
comment, the system will issue you a
tracking number to confirm your
submission. You will not be able to
view your comment immediately as we
must manually post each comment. It
may take up to a week for your
comment to be viewable.
2. Fax: Fax comments to (410) 966–
2830.
3. Mail: Address your comments to
the Office of Regulations, Social
Security Administration, 137 Altmeyer
Building, 6401 Security Boulevard,
Baltimore, MD 21235–6401.
Comments are available for public
viewing on the Federal eRulemaking
portal at https://www.regulations.gov or
in person, during regular business
hours, by arranging with the contact
person identified below.
FOR FURTHER INFORMATION CONTACT:
Nancy Schoenberg, Office of
Compassionate Allowances and
Disability Outreach, Social Security
Administration, 4692 Annex, 6401
Security Boulevard, Baltimore, MD
21235–6401, (410) 966–9408, for
information about this notice. For
information on eligibility or filing for
benefits, call our national toll-free
number, 1–800–772–1213 or TTY 1–
800–325–0778, or visit our Internet site,
Social Security Online at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is
available on the date of publication in
the Federal Register at https://
www.gpoaccess.gov/fr/.
What Do Our Current Rules Provide?
Under our current rules, a State
agency disability examiner and a State
agency medical or psychological
consultant generally work together to
make disability determinations at the
first two levels of the administrative
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01
02
01
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5
Date
March 10, 2008.
July 19, 2007.
July 19, 2007.
January 14, 2009.
November 5, 2008.
review process for adjudicating
disability claims under titles II and XVI
of the Act.1 The members of the team
are jointly responsible for the
determination.2 A State agency
disability examiner can make the
disability determination alone only
when there is no medical evidence to
evaluate and the claimant fails or
refuses, without a good reason, to go to
a consultative examination.3
Although we evaluate all disability
claims using the same criteria, we have
developed two methods for expediting
certain claims where there is a high
probability that we will find the
claimant disabled. In the QDD process,
we use a computer-based predictive
model to analyze specific elements of
data in electronic claim files. The
predictive model identifies claims in
which there is a high potential that the
claimant is disabled and in which we
can quickly and easily obtain evidence
supporting the claimant’s allegations.4
In the compassionate allowance
initiative, we use a list of conditions to
quickly identify diseases and other
medical conditions that invariably
qualify under the Listing of Impairments
1 Sections
404.900 and 416.1400.
404.1615(c)(1) and 416.1015(c)(1).
3 Sections 404.1615(c)(2) and 416.1015(c)(2). In
some States, we are testing a modification to the
disability determination procedures that allows
State agency disability examiners called ‘‘single
decisionmakers’’ (SDM) to make both favorable and
unfavorable determinations alone in some cases;
that is, without working in a team with a medical
or psychological consultant. Sections 404.906(b)(2)
and 416.1406(b)(2). We expect to continue that
testing even if we adopt these proposed rules as
final rules. However, if we adopt these proposed
rules as final rules, the changes would apply in all
States, including SDM States. They would allow
SDMs and other disability examiners to make fully
favorable determinations alone in QDD and
compassionate allowance claims.
4 Sections 404.1619 and 416.1019. Our data
demonstrate that the model is working as we
intend. See, for example, ‘‘Good Practices in Social
Security: The Quick Disability Determination (QDD)
and Compassionate Allowances (CAL) Initiatives: A
case of the Social Security Administration,’’
International Social Security Association (ISSA),
2009, available at: https://www.issa.int/aiss/
Observatory/Good-Practices/The-Quick-DisabilityDetermination-QDD-and-CompassionateAllowances-CAL–Initiatives. In that paper, we
reported to ISSA that the processing time for QDD
allowances is about 12 days.
2 Sections
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(‘‘listings’’) in our regulations 5 based on
minimal, but sufficient, objective
medical information.6
What Changes Are We Proposing, and
Why?
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We propose to redesignate current
§§ 404.1615(c)(3) and 416.1015(c)(3) as
(c)(4) and to add new paragraph (c)(3) to
allow disability examiners to make fully
favorable determinations under our
QDD rules or under our compassionate
allowance initiative without the
approval of a medical or psychological
consultant. This proposal is consistent
with our goal to allow cases that should
be allowed as quickly as possible.7 It
would also help us to process cases
more efficiently because it would give
State agency medical and psychological
consultants more time to work on those
complex cases for which we need their
expertise.
This proposal is a change from our
prior position. When we published final
rules extending the QDD process to all
States,8 we declined to adopt a
comment to allow disability examiners
to make determinations without a
medical or psychological consultant’s
involvement.9 However, we now have
about 2 years of experience using the
QDD process nationally, and even
longer experience in our Boston region.
In light of our experience adjudicating
QDD and compassionate allowance
cases and our quality assurance reviews
of determinations made in States that
use single decisionmakers (SDMs), we
believe it is appropriate to allow
disability examiners to make some fully
favorable determinations without a
medical or psychological consultation.
Our quality assurance reviews for the
past 2 fiscal years show that the
accuracy rates in the States that use
SDMs is comparable to, if not higher
than, the accuracy rates in those States
that do not use SDMs. Moreover, many
of the determinations included in our
quality assurance reviews are more
5 20 CFR part 404, subpart P, appendix 1, which
also applies to title XVI per § 416.925.
6 See generally https://www.socialsecurity.gov/
compassionateallowances/. In October 2008, we
issued an initial list of 50 conditions that we
consider for compassionate allowance. See https://
www.socialsecurity.gov/compassionateallowances/
conditions.htm. We created this list based on input
from a variety of sources, including the public. See,
e.g., 72 FR 41649 (2007), 73 FR 10715 (2008), and
73 FR 66563 (2008). We plan to obtain more public
input in order to determine whether and how to
expand the list over time.
7 See Social Security Administration Strategic
Plan 2008–2013, Strategic Goal 2, https://
www.ssa.gov/asp/StrategicGoal2.pdf.
8 72 FR 51173.
9 Id. at 51175.
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complex than QDD and compassionate
allowance determinations.
For these reasons, we expect that the
accuracy rate of QDD and
compassionate allowance
determinations made by State agency
disability examiners would be
comparable to the accuracy rate of the
determinations now made by a team.
We also have other measures in place
that will provide us with information
about the quality of QDD and
compassionate allowance
determinations, including quality
assurance reviews. Therefore, we would
be monitoring determinations made by
State agency disability examiners. If we
proceed with final rules, we plan to
include a ‘‘sunset date’’—a date after
which the final rules would no longer
be effective—of three years after the
final rules become effective, subject to
further extensions. The sunset date
would apply only to the final rules on
determinations by State agency
disability examiners on QDD and
compassionate allowance cases.
State agency disability examiners who
make fully favorable determinations
under these proposed rules would still
have the option of consulting with State
agency medical and psychological
consultants when they deem it
necessary. We would also require State
agency disability examiners to consult
with State agency medical or
psychological consultants before they
make a fully favorable determination
based on medical equivalence to a
listing at step 3 or based on a finding of
inability to do other work at step 5 of
our sequential evaluation process.10 Our
current rules require adjudicators to
consider the opinion of one or more
medical or psychological consultants
when they determine whether an
impairment(s) medically equals a listing
at step 3.11 Further, in order to make a
fully favorable determination at step 5,
adjudicators must first determine that a
claimant does not have an
impairment(s) that meets or medically
equals a listing; therefore, they will have
had to consult with a medical or
psychological consultant to determine
that there were no impairments that
medically equaled a listing.12
Regardless of whether the State agency
disability examiner chooses to consult
with a State agency medical or
psychological consultant or is required
to do so, the disability examiner would
10 Sections 404.1520 and 416.920. Fully favorable
determinations based on medical equivalence or at
step 5 are only a relatively small fraction of the
QDD and compassionate allowance determinations
we have made so far.
11 Sections 404.1526(c) and 416.926(c).
12 Sections 404.1520(a)(4) and 416.920(a)(4).
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be solely responsible for the
determination under the proposed rules.
We would not apply these proposed
changes to claims for supplemental
security income payments under title
XVI for individuals under age 18. The
Social Security Act requires us to make
reasonable efforts to ensure that a
qualified pediatrician or other
individual who specializes in a field of
medicine appropriate to the child’s
impairment(s) evaluates the child’s
case.13 We interpret this statutory
requirement to mean that a medical or
psychological consultant must
participate as part of a team in all State
agency determinations of childhood
disability under title XVI, including
fully favorable determinations.
What Other Changes Are We
Proposing?
The change we are proposing would
apply only to claims adjudicated under
the QDD process or the compassionate
allowance initiative. Our current
regulations explain the QDD process,
but not the compassionate allowance
initiative. Therefore, we propose to add
a short definition of compassionate
allowance in §§ 404.1602 and 416.1002,
the sections of subpart Q of part 404 and
subpart J of part 416 that provide
definitions of terms.
We also propose a number of
conforming changes throughout
subparts P and Q of part 404 and
subparts I and J of part 416 of our
regulations to reflect the provisions in
proposed new §§ 404.1615(c)(3) and
416.1015(c)(3). For example, we propose
revisions to §§ 404.1546 and 416.946 to
recognize that it would be possible in
some cases for a State agency disability
examiner to be responsible for assessing
a claimant’s residual functional
capacity. We also propose revisions to
§§ 404.1512, 404.1527, 416.912, and
416.927 to account for situations in
which State agency disability examiners
would weigh State agency medical or
psychological consultant input as
opinion evidence; these rules are similar
to rules we already have for
administrative law judges and the
Appeals Council (when the Appeals
Council makes a decision). We show all
of the proposed changes in the proposed
rules section following this preamble.
While the QDD process applies only
to the initial level of the administrative
review process under §§ 404.1602 and
416.1002 of our regulations, these
proposed rules include provisions that
apply to both the initial and
reconsideration levels. We have two
13 Section 1614(a)(3)(I) of the Act and
§§ 416.903(f) and 416.1015(e) of our regulations.
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major reasons for including references
to the reconsideration level:
• The compassionate allowance
initiative is not limited to the initial
level of administrative review; and,
• Any claimant who is dissatisfied
with our determination—even a
determination that is fully favorable—
may request a reconsideration.14
Finally, we are proposing minor
editorial changes to several rules to
recognize that State agency medical
consultants are not always physicians.
These changes would conform these
rules to the provisions of §§ 404.1616
and 416.1016 of our current rules. We
also would correct a grammatical error
in §§ 404.1619(b)(2) and 416.1019(b)(2)
and make other minor editorial changes
throughout the proposed rules.
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Clarity of These Proposed Rules
Executive Order 12866 requires each
agency to write all rules in plain
language. In addition to your
substantive comments on these
proposed rules, we invite your
comments on how to make them easier
to understand.
For example:
• Have we organized the material to
suit your needs?
• Are the requirements in the rules
clearly stated?
• Do the rules contain technical
language or jargon that isn’t clear?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the rules easier to
understand?
• Would more (but shorter) sections
be better?
• Could we improve clarity by adding
tables, lists, or diagrams?
• What else could we do to make the
rules easier to understand?
What Is Our Authority To Make Rules
and Set Procedures for Determining
Whether a Person is Disabled Under the
Statutory Definition?
Under the Act, we have full power
and authority to make rules and
regulations and to establish necessary
and appropriate procedures to carry out
the provisions of the Act. Sections
205(a), 702(a)(5), and 1631(d)(1). In
addition, we have the power to
promulgate regulations that establish
the procedures State agencies must
follow when performing the disability
determination function for us. Sections
221(a)(2) and 1633.
Regulatory Procedures
We have consulted with the Office of
Management and Budget (OMB) and
determined that these proposed rules
meet the criteria for a significant
regulatory action under Executive Order
12866. Thus, they were subject to OMB
review.
The Office of the Chief Actuary
provided two estimates of the effects of
the proposed rule change, due to
uncertainty over the extent to which the
predictive models underlying the QDD
process and the compassionate
allowance initiative are expanded. The
first estimate assumes the percent of
cases designated QDD or compassionate
allowance remains at the recent level
(3.8%). The second estimate assumes
that we will adjudicate 6% of all cases
under the QDD or compassionate
allowance models by the end of FY
2012. The following table presents the
year-by-year estimates of the effect of
the proposed change on OASDI benefit
payments and Federal SSI payments for
the fiscal year period 2010–19 under
these two sets of assumptions. All
estimates are based on the assumptions
underlying the President’s FY 2010
Budget, assuming the proposed changes
become effective July 1, 2010. The
estimates reflect projected costs should
the changes be extended through 2019.
TABLE 1—ESTIMATED INCREASES IN
OASDI BENEFITS AND FEDERAL SSI
PAYMENTS RETAIN QDD AND COMPASSIONATE ALLOWANCE AT 3.8%
OF ALL INITIAL RECEIPTS
[In millions]
Fiscal year
2010
2011
2012
2013
2014
2015
2016
2017
2018
2019
404.907 and 416.1407.
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SSI
Total
*
*
$1
1
1
1
1
1
1
2
*
*
*
*
*
*
*
*
*
*
*
*
$1
1
1
1
1
1
2
2
2
*
3
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[In millions]
Fiscal year
Sfmt 4702
OASDI
SSI
9
Total
1
10
* Increase in OASDI benefit payments or
Federal SSI payments of less than $500,000.
(Totals may not equal the sum of components
due to rounding.)
TABLE 2—ESTIMATED INCREASES IN
OASDI BENEFITS AND FEDERAL SSI
PAYMENTS EXPAND QDD AND COMPASSIONATE ALLOWANCE TO 6% OF
ALL INITIAL RECEIPTS
[In millions]
Fiscal year
2011
2011
2012
2013
2014
2015
2016
2017
2018
2019
OASDI
SSI
Total
..................
..................
..................
..................
..................
..................
..................
..................
..................
..................
*
*
$1
2
2
2
3
3
3
4
*
*
*
*
*
*
*
*
*
$1
*
$1
1
2
2
3
3
3
4
4
Totals
2010–14 .....
2010–19 .....
5
20
1
3
6
23
* Increase in OASDI benefit payments or
Federal SSI payments of less than $500,000.
(Totals may not equal the sum of components
due to rounding.).
Regulatory Flexibility Act
We certify that these proposed rules,
if published in final, would not have a
significant economic impact on a
substantial number of small entities as
they affect only States and individuals.
Therefore, a regulatory flexibility
analysis as provided in the Regulatory
Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
..................
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..................
..................
..................
..................
..................
..................
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..................
Frm 00015
TABLE 1—ESTIMATED INCREASES IN
OASDI BENEFITS AND FEDERAL SSI
PAYMENTS RETAIN QDD AND COMPASSIONATE ALLOWANCE AT 3.8%
OF ALL INITIAL RECEIPTS—Continued
2010–19 .....
Executive Order 12866
Totals
2010–14 .....
When Will We Start To Use These
Rules?
We will not use these rules until we
evaluate public comments and publish
14 Sections
final rules in the Federal Register. All
final rules we issue include an effective
date. We will continue to use our
current rules until that date. If we
publish final rules, we will include a
summary of the significant comments
we received, along with responses and
an explanation of how we will apply the
new rules.
This rule does not create any new, or
affect any existing, collections and,
therefore, does not require Office of
Management and Budget approval
under the Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance
Program No 96.001, Social Security—
Disability Insurance; 96.002, Social
Security—Retirement Insurance; 96.004,
Social Security—Survivors Insurance;
96.006, Supplemental Security Income.)
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List of Subjects
20 CFR Part 404
Administrative practice and
procedure, Blind, Disability benefits,
Old-age, Survivors and Disability
Insurance, Reporting and recordkeeping
requirements, Social Security.
20 CFR Part 416
Administrative practice and
procedure, Reporting and recordkeeping
requirements, Supplemental Security
Income (SSI).
Dated: November 10, 2009.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the
preamble, we propose to amend
subparts P and Q of part 404 and
subparts I and J of part 416 of chapter
III of title 20 of the Code of Federal
Regulations as set forth below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
physicians, psychologists, or other
medical specialists at the initial level of
the administrative review process, and
other opinions they provide based on
their review of the evidence in your case
record at the initial and reconsideration
levels (see § 404.1527(f)(1)(iii)); and
(8) At the administrative law judge
and Appeals Council levels (including
the administrative law judge and
Decision Review Board levels in claims
adjudicated under the procedures in
part 405 of this chapter), findings, other
than the ultimate determination about
whether you are disabled, made by State
agency medical or psychological
consultants and other program
physicians or psychologists, or other
medical specialists, and opinions
expressed by medical experts or
psychological experts that we consult
based on their review of the evidence in
your case record. See § 404.1527(f)(2)–
(3).
*
*
*
*
*
3. Amend § 404.1527 by revising
paragraphs (f)(1), and (f)(2)(i) and
(f)(2)(ii) to read as follows:
Subpart P—[Amended]
§ 404.1527
1. The authority citation for subpart P
of part 404 continues to read as follows:
*
Authority: Secs. 202, 205(a), (b), and (d)–
(h), 216(i), 221(a) and (i), 222(c), 223, 225,
and 702(a)(5) of the Social Security Act (42
U.S.C. 402, 405(a), (b), and (d)–(h), 416(i),
421(a) and (i), 422(c), 423, 425, and
902(a)(5)); sec. 211(b), Pub. L. 104–193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).
2. Amend § 404.1512 by removing the
word ‘‘and’’ from the end of paragraph
(b)(5), redesignating paragraph (b)(6) as
paragraph (b)(8) and revising newly
redesignated paragraph (b)(8), and
adding new paragraphs (b)(6) and (b)(7)
to read as follows:
§ 404.1512
Evidence.
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*
*
*
*
*
(b) * * *
(6) At the initial level of the
administrative review process, when a
State agency disability examiner makes
the initial determination alone (see
§ 404.1615(c)(3)), opinions provided by
State agency medical and psychological
consultants based on their review of the
evidence in your case record (see
§ 404.1527(f)(1)(ii));
(7) At the reconsideration level of the
administrative review process, when a
State agency disability examiner makes
the determination alone (see
§ 404.1615(c)(3)), findings, other than
the ultimate determination about
whether you are disabled, made by State
agency medical or psychological
consultants and other program
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Evaluating opinion evidence.
*
*
*
*
(f) * * *
(1) In claims adjudicated by the State
agency, a State agency medical or
psychological consultant (or a medical
or psychological expert (as defined in
§ 405.5 of this chapter) in claims
adjudicated under the procedures in
part 405 of this chapter) may make the
determination of disability together with
a State agency disability examiner or
provide one or more medical opinions
to a State agency disability examiner
when the disability examiner makes the
initial or reconsideration determination
alone (see § 404.1615(c)). The following
rules apply:
(i) When a State agency medical or
psychological consultant makes the
determination together with a State
agency disability examiner at the initial
or reconsideration level of the
administrative review process as
provided in § 404.1615(c)(1), he or she
will consider the evidence in your case
record and make findings of fact about
the medical issues, including, but not
limited to, the existence and severity of
your impairment(s), the existence and
severity of your symptoms, whether
your impairment(s) meets or medically
equals the requirements for any
impairment listed in appendix 1 to this
subpart, and your residual functional
capacity. These administrative findings
of fact are based on the evidence in your
case but are not in themselves evidence
at the level of the administrative review
process at which they are made.
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(ii) When a State agency disability
examiner makes the initial
determination alone as provided in
§ 404.1615(c)(3), he or she may obtain
the opinion of a State agency medical or
psychological consultant about one or
more of the medical issues listed in
paragraph (f)(1)(i) of this section. In
these cases, the State agency disability
examiner will consider the opinion of
the State agency medical or
psychological consultant as opinion
evidence and weigh this evidence using
the relevant factors in paragraphs (a)
through (e) of this section.
(iii) When a State agency disability
examiner makes a reconsideration
determination alone as provided in
§ 404.1615(c)(3), he or she will consider
findings made by a State agency medical
or psychological consultant at the initial
level of the administrative review
process and any opinions provided by
such consultants at the initial and
reconsideration levels as opinion
evidence and weigh this evidence using
the relevant factors in paragraphs (a)
through (e) of this section.
(2) * * *
(i) Administrative law judges are not
bound by any findings made by State
agency medical or psychological
consultants, or other program
physicians or psychologists. State
agency medical and psychological
consultants and other program
physicians, psychologists, and other
medical specialists are highly qualified
physicians, psychologists, and other
medical specialists who are also experts
in Social Security disability evaluation.
Therefore, administrative law judges
must consider findings and other
opinions of State agency medical and
psychological consultants and other
program physicians, psychologists, and
other medical specialists as opinion
evidence, except for the ultimate
determination about whether you are
disabled (see § 404.1512(b)(8)).
(ii) When an administrative law judge
considers findings of a State agency
medical or psychological consultant or
other program physician, psychologist,
or other medical specialist, the
administrative law judge will evaluate
the findings using relevant factors in
paragraphs (a) through (e) of this
section, such as the consultant’s
medical specialty and expertise in our
rules, the supporting evidence in the
case record, supporting explanations the
medical or psychological consultant
provides, and any other factors relevant
to the weighing of the opinions. Unless
a treating source’s opinion is given
controlling weight, the administrative
law judge must explain in the decision
the weight given to the opinions of a
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State agency medical or psychological
consultant or other program physician,
psychologist, or other medical
specialist, as the administrative law
judge must do for any opinions from
treating sources, nontreating sources,
and other nonexamining sources who
do not work for us.
*
*
*
*
*
4. Amend § 404.1529 by revising the
third sentence of paragraph (b) to read
as follows:
§ 404.1529 How we evaluate symptoms,
including pain.
*
*
*
*
*
(b) * * * In cases decided by a State
agency (except in disability hearings
under §§ 404.914 through 404.918 and
in fully favorable determinations made
by State agency disability examiners
alone under § 404.1615(c)(3)), a State
agency medical or psychological
consultant or other medical or
psychological consultant designated by
the Commissioner (or a medical or
psychological expert (as defined in
§ 405.5 of this chapter) in claims
adjudicated under the procedures in
part 405 of this chapter) directly
participates in determining whether
your medically determinable
impairment(s) could reasonably be
expected to produce your alleged
symptoms. * * *
*
*
*
*
*
5. Revise § 404.1546(a) to read as
follows:
sroberts on DSKD5P82C1PROD with PROPOSALS
§ 404.1546 Responsibility for assessing
your residual functional capacity.
(a) Responsibility for assessing
residual functional capacity at the State
agency. When a State agency medical or
psychological consultant and a State
agency disability examiner make the
disability determination as provided in
§ 404.1615(c)(1), a State agency medical
or psychological consultant(s) (or a
medical or psychological expert (as
defined in § 405.5 of this chapter) in
claims adjudicated under the
procedures in part 405 of this chapter)
is responsible for assessing your
residual functional capacity. When a
State agency disability examiner makes
a disability determination alone as
provided in § 404.1615(c)(3), the
disability examiner is responsible for
assessing your residual functional
capacity.
*
*
*
*
*
Subpart Q—[Amended]
6. The authority citation for subpart Q
of part 404 continues to read as follows:
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Authority: Secs. 205(a), 221, and 702(a)(5)
of the Social Security Act (42 U.S.C. 405(a),
421, and 902(a)(5)).
7. Amend § 404.1602 by adding the
definition ‘‘Compassionate allowance’’
in alphabetical order to read as follows:
§ 404.1602
Definitions.
*
*
*
*
*
Compassionate allowance means a
determination or decision we make
under a process that identifies for
expedited handling claims that involve
impairments that invariably qualify
under the Listing of Impairments in
appendix 1 to subpart P based on
minimal, but sufficient, objective
medical evidence.
*
*
*
*
*
8. Amend § 404.1615 by revising
paragraph (c) introductory text,
removing the word ‘‘or’’ at the end of
paragraph (c)(2), redesignating
paragraph (c)(3) as paragraph (c)(4), and
adding a new paragraph (c)(3) to read as
follows:
§ 404.1615 Making disability
determinations.
*
*
*
*
*
(c) Disability determinations will be
made by:
*
*
*
*
*
(3) A State agency disability examiner
alone if the claim is adjudicated under
the quick disability determination
process (see § 404.1619) or as a
compassionate allowance (see
§ 404.1602), and the initial or
reconsidered determination is fully
favorable to you. This paragraph will no
longer be effective on [INSERT DATE
THREE YEARS AFTER EFFECTIVE
DATE OF FINAL RULES] unless we
terminate it earlier or extend it beyond
that date by notice of a final rule in the
Federal Register; or
*
*
*
*
*
9. Amend § 404.1619 by revising
paragraphs (b) introductory text, (b)(1),
(b)(2), and (c) to read as follows:
§ 404.1619
process.
Quick disability determination
*
*
*
*
*
(b) If we refer a claim to the State
agency for a quick disability
determination, a designated quick
disability determination examiner must
do all of the following:
(1) Subject to the provisions in
paragraph (c) of this section, make the
disability determination after consulting
with a State agency medical or
psychological consultant if the State
agency disability examiner determines
consultation is appropriate or if
consultation is required under
§ 404.1526(c). The State agency may
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Fmt 4702
Sfmt 4702
9825
certify the disability determination
forms to us without the signature of the
medical or psychological consultant.
(2) Make the quick disability
determination based only on the
medical and nonmedical evidence in
the file.
*
*
*
*
*
(c) If the quick disability
determination examiner cannot make a
determination that is fully favorable to
the individual, or if there is an
unresolved disagreement between the
disability examiner and the medical or
psychological consultant (except when a
disability examiner makes the
determination alone under
§ 404.1615(c)(3)), the State agency will
adjudicate the claim using the regularly
applicable procedures in this subpart.
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart I—[Amended]
10. The authority citation for subpart
I of part 416 continues to read as
follows:
Authority: Secs. 221(m), 702(a)(5), 1611,
1614, 1619, 1631(a), (c), (d)(1), and (p), and
1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h,
1383(a), (c), (d)(1), and (p), and 1383b); secs.
4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98–
460, 98 Stat. 1794, 1801, 1802, and 1808 (42
U.S.C. 421 note, 423 note, and 1382h note).
11. Amend § 416.912 by removing the
word ‘‘and’’ from the end of paragraph
(b)(5), redesignating paragraph (b)(6) as
paragraph (b)(8) and revising newly
redesignated paragraph (b)(8), and
adding new paragraphs (b)(6) and (b)(7)
to read as follows:
§ 416.912
Evidence.
*
*
*
*
*
(b) * * *
(6) At the initial level of the
administrative review process, when a
State agency disability examiner makes
the initial determination alone (see
§ 416.1015(c)(3)), opinions provided by
State agency medical and psychological
consultants based on their review of the
evidence in your case record (see
§ 416.927(f)(1)(ii));
(7) At the reconsideration level of the
administrative review process, when a
State agency disability examiner makes
the determination alone (see
§ 416.1015(c)(3)), findings, other than
the ultimate determination about
whether you are disabled, made by State
agency medical or psychological
consultants and other program
physicians, psychologists, or other
medical specialists at the initial level of
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the administrative review process, and
other opinions they provide based on
their review of the evidence in your case
record at the initial and reconsideration
levels (see § 416.927(f)(1)(iii)); and
(8) At the administrative law judge
and Appeals Council levels (including
the administrative law judge and
Decision Review Board levels in claims
adjudicated under the procedures in
part 405 of this chapter), findings, other
than the ultimate determination about
whether you are disabled, made by State
agency medical or psychological
consultants and other program
physicians or psychologists, or other
medical specialists, and opinions
expressed by medical experts or
psychological experts that we consult
based on their review of the evidence in
your case record. See § 416.927(f)(2)–(3).
*
*
*
*
*
12. Amend § 416.927 by revising
paragraphs (f)(1), (f)(2)(i) and (f)(2)(ii) to
read as follows:
§ 416.927
Evaluating opinion evidence.
sroberts on DSKD5P82C1PROD with PROPOSALS
*
*
*
*
*
(f) * * *
(1) In claims adjudicated by the State
agency, a State agency medical or
psychological consultant (or a medical
or psychological expert (as defined in
§ 405.5 of this chapter) in claims
adjudicated under the procedures in
part 405 of this chapter) may make the
determination of disability together with
a State agency disability examiner or
provide one or more medical opinions
to a State agency disability examiner
when the disability examiner makes the
initial or reconsideration determination
alone (see § 416.1015(c)). The following
rules apply:
(i) When a State agency medical or
psychological consultant makes the
determination together with a State
agency disability examiner at the initial
or reconsideration level of the
administrative review process as
provided in § 416.1015(c)(1), he or she
will consider the evidence in your case
record and make findings of fact about
the medical issues, including, but not
limited to, the existence and severity of
your impairment(s), the existence and
severity of your symptoms, whether
your impairment(s) meets or medically
equals the requirements for any
impairment listed in appendix 1 to
subpart P of part 404 of this chapter,
and your residual functional capacity.
These administrative findings of fact are
based on the evidence in your case but
are not in themselves evidence at the
level of the administrative review
process at which they are made.
(ii) When a State agency disability
examiner makes the initial
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16:36 Mar 03, 2010
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determination alone as provided in
§ 416.1015(c)(3), he or she may obtain
the opinion of a State agency medical or
psychological consultant about one or
more of the medical issues listed in
paragraph (f)(1)(i) of this section. In
these cases, the State agency disability
examiner will consider the opinion of
the State agency medical or
psychological consultant as opinion
evidence and weigh this evidence using
the relevant factors in paragraphs (a)
through (e) of this section.
(iii) When a State agency disability
examiner makes a reconsideration
determination alone as provided in
§ 416.1015(c)(3), he or she will consider
findings made by a State agency medical
or psychological consultant at the initial
level of the administrative review
process and any opinions provided by
such consultants at the initial and
reconsideration levels as opinion
evidence and weigh this evidence using
the relevant factors in paragraphs (a)
through (e) of this section.
(2) * * *
(i) Administrative law judges are not
bound by any findings made by State
agency medical or psychological
consultants, or other program
physicians or psychologists. State
agency medical and psychological
consultants and other program
physicians, psychologists, and other
medical specialists are highly qualified
physicians, psychologists, and other
medical specialists who are also experts
in Social Security disability evaluation.
Therefore, administrative law judges
must consider findings and other
opinions of State agency medical and
psychological consultants and other
program physicians, psychologists, and
other medical specialists as opinion
evidence, except for the ultimate
determination about whether you are
disabled (see § 416.912(b)(8)).
(ii) When an administrative law judge
considers findings of a State agency
medical or psychological consultant or
other program physician, psychologist,
or other medical specialist, the
administrative law judge will evaluate
the findings using relevant factors in
paragraphs (a) through (e) of this
section, such as the consultant’s
medical specialty and expertise in our
rules, the supporting evidence in the
case record, supporting explanations the
medical or psychological consultant
provides, and any other factors relevant
to the weighing of the opinions. Unless
a treating source’s opinion is given
controlling weight, the administrative
law judge must explain in the decision
the weight given to the opinions of a
State agency medical or psychological
consultant or other program physician,
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
psychologist, or other medical
specialist, as the administrative law
judge must do for any opinions from
treating sources, nontreating sources,
and other nonexamining sources who
do not work for us.
*
*
*
*
*
13. Amend § 416.929 by revising the
third sentence of paragraph (b) to read
as follows:
§ 416.929 How we evaluate symptoms,
including pain.
*
*
*
*
*
(b) * * * In cases decided by a State
agency (except in disability hearings
under §§ 416.1414 through 416.1418
and in fully favorable determinations
made by State agency disability
examiners alone under § 416.1015(c)(3)),
a State agency medical or psychological
consultant or other medical or
psychological consultant designated by
the Commissioner (or a medical or
psychological expert (as defined in
§ 405.5 of this chapter) in claims
adjudicated under the procedures in
part 405 of this chapter) directly
participates in determining whether
your medically determinable
impairment(s) could reasonably be
expected to produce your alleged
symptoms. * * *
*
*
*
*
*
14. Revise § 416.946(a) to read as
follows:
§ 416.946 Responsibility for assessing
your residual functional capacity.
(a) Responsibility for assessing
residual functional capacity at the State
agency. When a State agency medical or
psychological consultant and a State
agency disability examiner make the
disability determination as provided in
§ 416.1015(c)(1), a State agency medical
or psychological consultant(s) (or a
medical or psychological expert (as
defined in § 405.5 of this chapter) in
claims adjudicated under the
procedures in part 405 of this chapter)
is responsible for assessing your
residual functional capacity. When a
State agency disability examiner makes
a disability determination alone as
provided in § 416.1015(c)(3), the
disability examiner is responsible for
assessing your residual functional
capacity.
*
*
*
*
*
Subpart J—[Amended]
15. The authority citation for subpart
J of part 416 continues to read as
follows:
Authority: Secs. 702(a)(5), 1614, 1631, and
1633 of the Social Security Act (42 U.S.C.
902(a)(5), 1382c, 1383, and 1383b).
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16. Amend § 416.1002 by adding a
definition of ‘‘Compassionate
allowance’’ in alphabetical order to read
as follows:
§ 416.1002
Definitions.
*
*
*
*
*
Compassionate allowance means a
determination or decision we make
under a process that identifies for
expedited handling claims that involve
impairments that invariably qualify
under the Listing of Impairments in
appendix 1 to subpart P of part 404 of
this chapter based on minimal, but
sufficient, objective medical evidence.
*
*
*
*
*
17. Amend § 416.1015 by revising
paragraph (c) introductory text,
removing the word ‘‘or’’ at the end of
paragraph (c)(2), redesignating
paragraph (c)(3) as paragraph (c)(4), and
adding a new paragraph (c)(3) to read as
follows:
§ 416.1015 Making disability
determinations.
*
*
*
*
*
(c) Disability determinations will be
made by:
*
*
*
*
*
(3) A State agency disability examiner
alone if you are not a child (a person
who has not attained age 18), and the
claim is adjudicated under the quick
disability determination process (see
§ 416.1019) or as a compassionate
allowance (see § 416.1002), and the
initial or reconsidered determination is
fully favorable to you. This paragraph
will no longer be effective on [INSERT
DATE THREE YEARS AFTER
EFFECTIVE DATE OF FINAL RULES]
unless we terminate it earlier or extend
it beyond that date by notice of a final
rule in the Federal Register; or
*
*
*
*
*
18. Amend § 416.1019 by revising
paragraphs (b) introductory text, (b)(1),
(b)(2), and (c) to read as follows:
§ 416.1019
process.
Quick disability determination
sroberts on DSKD5P82C1PROD with PROPOSALS
*
*
*
*
*
(b) If we refer a claim to the State
agency for a quick disability
determination, a designated quick
disability determination examiner must
do all of the following:
(1) Subject to the provisions in
paragraph (c) of this section, make the
disability determination after consulting
with a State agency medical or
psychological consultant if the State
agency disability examiner determines
consultation is appropriate or if
consultation is required under
§ 416.926(c). The State agency may
certify the disability determination
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16:36 Mar 03, 2010
Jkt 220001
9827
[Docket No. TTB–2010–0001; Notice No.
103]
Trade Bureau, 1310 G Street, NW., Suite
200–E, Washington, DC 20005.
See the Public Participation section of
this notice for specific instructions and
requirements for submitting comments,
and for information on how to request
a public hearing.
You may view copies of this notice,
selected supporting materials, and any
comments we receive about this
proposal at https://www.regulations.gov
within Docket No. TTB–2010–0001. A
direct link to this docket is posted on
the TTB Web site at https://www.ttb.gov/
wine/wine_rulemaking.shtml under
Notice No. 103. You also may view
copies of this notice, all related
petitions, maps or other supporting
materials, and any comments we receive
about this proposal by appointment at
the TTB Information Resource Center,
1310 G Street, NW., Washington, DC
20220. Please call 202–453–2270 to
make an appointment.
FOR FURTHER INFORMATION CONTACT: N.A.
Sutton, Regulations and Rulings
Division, Alcohol and Tobacco Tax and
Trade Bureau, 925 Lakeville St., No.
158, Petaluma, CA 94952; telephone
415–271–1254.
SUPPLEMENTARY INFORMATION:
RIN 1513–AB31
Background on Viticultural Areas
forms to us without the signature of the
medical or psychological consultant.
(2) Make the quick disability
determination based only on the
medical and nonmedical evidence in
the file.
*
*
*
*
*
(c) If the quick disability
determination examiner cannot make a
determination that is fully favorable to
the individual, or if there is an
unresolved disagreement between the
disability examiner and the medical or
psychological consultant (except when a
disability examiner makes the
determination alone under
§ 416.1015(c)(3)), the State agency will
adjudicate the claim using the regularly
applicable procedures in this subpart.
[FR Doc. 2010–4283 Filed 3–3–10; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF THE TREASURY
Alcohol and Tobacco Tax and Trade
Bureau
27 CFR Part 9
Proposed Expansion of the Santa
Maria Valley Viticultural Area (2008R–
287P)
AGENCY: Alcohol and Tobacco Tax and
Trade Bureau, Treasury.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Alcohol and Tobacco Tax
and Trade Bureau proposes to expand
the Santa Maria Valley viticultural area
in Santa Barbara and San Luis Obispo
Counties, California, by 18,790 acres.
We designate viticultural areas to allow
vintners to better describe the origin of
their wines and to allow consumers to
better identify wines they may
purchase. We invite comments on this
proposed change to our regulations.
DATES: We must receive your comments
on or before May 3, 2010.
ADDRESSES: You may send comments on
this notice to one of the following
addresses:
• https://www.regulations.gov (via the
online comment form for this notice as
posted within Docket No. TTB–2010–
0001 at ‘‘Regulations.gov,’’ the Federal
e-rulemaking portal);
• Director, Regulations and Rulings
Division, Alcohol and Tobacco Tax and
Trade Bureau, P.O. Box 14412,
Washington, DC 20044–4412; or
• Hand delivery/courier in lieu of
mail: Alcohol and Tobacco Tax and
PO 00000
Frm 00019
Fmt 4702
Sfmt 4702
TTB Authority
Section 105(e) of the Federal Alcohol
Administration Act (FAA Act), 27
U.S.C. 205(e), authorizes the Secretary
of the Treasury to prescribe regulations
for the labeling of wine, distilled spirits,
and malt beverages. The FAA Act
requires that these regulations, among
other things, prohibit consumer
deception and the use of misleading
statements on labels, and ensure that
labels provide the consumer with
adequate information as to the identity
and quality of the product. The Alcohol
and Tobacco Tax and Trade Bureau
(TTB) administers the regulations
promulgated under the FAA Act.
Part 4 of the TTB regulations (27 CFR
part 4) allows the establishment of
definitive viticultural areas and the use
of their names as appellations of origin
on wine labels and in wine
advertisements. Part 9 of the TTB
regulations (27 CFR part 9) contains the
list of approved viticultural areas.
Definition
Section 4.25(e)(1)(i) of the TTB
regulations (27 CFR 4.25(e)(1)(i)) defines
a viticultural area for American wine as
a delimited grape-growing region
distinguishable by geographical
features, the boundaries of which have
been recognized and defined in part 9
of the regulations. These designations
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]]>Agencies
[Federal Register Volume 75, Number 42 (Thursday, March 4, 2010)]
[Proposed Rules]
[Pages 9821-9827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-4283]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2008-0041]
RIN 0960-AG87
Disability Determinations by State Agency Disability Examiners
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: We propose to amend our rules to permit disability examiners
in the State agencies to make fully favorable determinations in certain
claims for disability benefits under titles II and XVI of the Social
Security Act (Act) without the approval of a medical or psychological
consultant. The proposed changes would apply on a temporary basis only
to claims we consider under our rules for Quick Disability
Determinations (QDD) or under our compassionate allowance initiative.
DATES: To be sure that we consider your comments, we must receive them
no later than April 5, 2010.
ADDRESSES: You may submit comments by any one of three methods--
Internet, fax or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2008-0041 so
that we may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend this method for submitting your
comments. Visit the Federal eRulemaking portal at https://www.regulations.gov. Use the Search function of the webpage to find
docket number SSA-2008-0041, then submit your comment. Once you submit
your comment, the system will issue you a tracking number to confirm
your submission. You will not be able to view your comment immediately
as we must manually post each comment. It may take up to a week for
your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Address your comments to the Office of Regulations, Social
Security Administration, 137 Altmeyer Building, 6401 Security
Boulevard, Baltimore, MD 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at https://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Nancy Schoenberg, Office of
Compassionate Allowances and Disability Outreach, Social Security
Administration, 4692 Annex, 6401 Security Boulevard, Baltimore, MD
21235-6401, (410) 966-9408, for information about this notice. For
information on eligibility or filing for benefits, call our national
toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our
Internet site, Social Security Online at https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Electronic Version
The electronic file of this document is available on the date of
publication in the Federal Register at https://www.gpoaccess.gov/fr/.
What Do Our Current Rules Provide?
Under our current rules, a State agency disability examiner and a
State agency medical or psychological consultant generally work
together to make disability determinations at the first two levels of
the administrative review process for adjudicating disability claims
under titles II and XVI of the Act.\1\ The members of the team are
jointly responsible for the determination.\2\ A State agency disability
examiner can make the disability determination alone only when there is
no medical evidence to evaluate and the claimant fails or refuses,
without a good reason, to go to a consultative examination.\3\
---------------------------------------------------------------------------
\1\ Sections 404.900 and 416.1400.
\2\ Sections 404.1615(c)(1) and 416.1015(c)(1).
\3\ Sections 404.1615(c)(2) and 416.1015(c)(2). In some States,
we are testing a modification to the disability determination
procedures that allows State agency disability examiners called
``single decisionmakers'' (SDM) to make both favorable and
unfavorable determinations alone in some cases; that is, without
working in a team with a medical or psychological consultant.
Sections 404.906(b)(2) and 416.1406(b)(2). We expect to continue
that testing even if we adopt these proposed rules as final rules.
However, if we adopt these proposed rules as final rules, the
changes would apply in all States, including SDM States. They would
allow SDMs and other disability examiners to make fully favorable
determinations alone in QDD and compassionate allowance claims.
---------------------------------------------------------------------------
Although we evaluate all disability claims using the same criteria,
we have developed two methods for expediting certain claims where there
is a high probability that we will find the claimant disabled. In the
QDD process, we use a computer-based predictive model to analyze
specific elements of data in electronic claim files. The predictive
model identifies claims in which there is a high potential that the
claimant is disabled and in which we can quickly and easily obtain
evidence supporting the claimant's allegations.\4\ In the compassionate
allowance initiative, we use a list of conditions to quickly identify
diseases and other medical conditions that invariably qualify under the
Listing of Impairments
[[Page 9822]]
(``listings'') in our regulations \5\ based on minimal, but sufficient,
objective medical information.\6\
---------------------------------------------------------------------------
\4\ Sections 404.1619 and 416.1019. Our data demonstrate that
the model is working as we intend. See, for example, ``Good
Practices in Social Security: The Quick Disability Determination
(QDD) and Compassionate Allowances (CAL) Initiatives: A case of the
Social Security Administration,'' International Social Security
Association (ISSA), 2009, available at: https://www.issa.int/aiss/Observatory/Good-Practices/The-Quick-Disability-Determination-QDD-and-Compassionate-Allowances-CAL-Initiatives. In that paper, we
reported to ISSA that the processing time for QDD allowances is
about 12 days.
\5\ 20 CFR part 404, subpart P, appendix 1, which also applies
to title XVI per Sec. 416.925.
\6\ See generally https://www.socialsecurity.gov/compassionateallowances/. In October 2008, we issued an initial list
of 50 conditions that we consider for compassionate allowance. See
https://www.socialsecurity.gov/compassionateallowances/conditions.htm. We created this list based on input from a variety
of sources, including the public. See, e.g., 72 FR 41649 (2007), 73
FR 10715 (2008), and 73 FR 66563 (2008). We plan to obtain more
public input in order to determine whether and how to expand the
list over time.
---------------------------------------------------------------------------
What Changes Are We Proposing, and Why?
We propose to redesignate current Sec. Sec. 404.1615(c)(3) and
416.1015(c)(3) as (c)(4) and to add new paragraph (c)(3) to allow
disability examiners to make fully favorable determinations under our
QDD rules or under our compassionate allowance initiative without the
approval of a medical or psychological consultant. This proposal is
consistent with our goal to allow cases that should be allowed as
quickly as possible.\7\ It would also help us to process cases more
efficiently because it would give State agency medical and
psychological consultants more time to work on those complex cases for
which we need their expertise.
---------------------------------------------------------------------------
\7\ See Social Security Administration Strategic Plan 2008-2013,
Strategic Goal 2, https://www.ssa.gov/asp/StrategicGoal2.pdf.
---------------------------------------------------------------------------
This proposal is a change from our prior position. When we
published final rules extending the QDD process to all States,\8\ we
declined to adopt a comment to allow disability examiners to make
determinations without a medical or psychological consultant's
involvement.\9\ However, we now have about 2 years of experience using
the QDD process nationally, and even longer experience in our Boston
region. In light of our experience adjudicating QDD and compassionate
allowance cases and our quality assurance reviews of determinations
made in States that use single decisionmakers (SDMs), we believe it is
appropriate to allow disability examiners to make some fully favorable
determinations without a medical or psychological consultation. Our
quality assurance reviews for the past 2 fiscal years show that the
accuracy rates in the States that use SDMs is comparable to, if not
higher than, the accuracy rates in those States that do not use SDMs.
Moreover, many of the determinations included in our quality assurance
reviews are more complex than QDD and compassionate allowance
determinations.
---------------------------------------------------------------------------
\8\ 72 FR 51173.
\9\ Id. at 51175.
---------------------------------------------------------------------------
For these reasons, we expect that the accuracy rate of QDD and
compassionate allowance determinations made by State agency disability
examiners would be comparable to the accuracy rate of the
determinations now made by a team. We also have other measures in place
that will provide us with information about the quality of QDD and
compassionate allowance determinations, including quality assurance
reviews. Therefore, we would be monitoring determinations made by State
agency disability examiners. If we proceed with final rules, we plan to
include a ``sunset date''--a date after which the final rules would no
longer be effective--of three years after the final rules become
effective, subject to further extensions. The sunset date would apply
only to the final rules on determinations by State agency disability
examiners on QDD and compassionate allowance cases.
State agency disability examiners who make fully favorable
determinations under these proposed rules would still have the option
of consulting with State agency medical and psychological consultants
when they deem it necessary. We would also require State agency
disability examiners to consult with State agency medical or
psychological consultants before they make a fully favorable
determination based on medical equivalence to a listing at step 3 or
based on a finding of inability to do other work at step 5 of our
sequential evaluation process.\10\ Our current rules require
adjudicators to consider the opinion of one or more medical or
psychological consultants when they determine whether an impairment(s)
medically equals a listing at step 3.\11\ Further, in order to make a
fully favorable determination at step 5, adjudicators must first
determine that a claimant does not have an impairment(s) that meets or
medically equals a listing; therefore, they will have had to consult
with a medical or psychological consultant to determine that there were
no impairments that medically equaled a listing.\12\ Regardless of
whether the State agency disability examiner chooses to consult with a
State agency medical or psychological consultant or is required to do
so, the disability examiner would be solely responsible for the
determination under the proposed rules.
---------------------------------------------------------------------------
\10\ Sections 404.1520 and 416.920. Fully favorable
determinations based on medical equivalence or at step 5 are only a
relatively small fraction of the QDD and compassionate allowance
determinations we have made so far.
\11\ Sections 404.1526(c) and 416.926(c).
\12\ Sections 404.1520(a)(4) and 416.920(a)(4).
---------------------------------------------------------------------------
We would not apply these proposed changes to claims for
supplemental security income payments under title XVI for individuals
under age 18. The Social Security Act requires us to make reasonable
efforts to ensure that a qualified pediatrician or other individual who
specializes in a field of medicine appropriate to the child's
impairment(s) evaluates the child's case.\13\ We interpret this
statutory requirement to mean that a medical or psychological
consultant must participate as part of a team in all State agency
determinations of childhood disability under title XVI, including fully
favorable determinations.
---------------------------------------------------------------------------
\13\ Section 1614(a)(3)(I) of the Act and Sec. Sec. 416.903(f)
and 416.1015(e) of our regulations.
---------------------------------------------------------------------------
What Other Changes Are We Proposing?
The change we are proposing would apply only to claims adjudicated
under the QDD process or the compassionate allowance initiative. Our
current regulations explain the QDD process, but not the compassionate
allowance initiative. Therefore, we propose to add a short definition
of compassionate allowance in Sec. Sec. 404.1602 and 416.1002, the
sections of subpart Q of part 404 and subpart J of part 416 that
provide definitions of terms.
We also propose a number of conforming changes throughout subparts
P and Q of part 404 and subparts I and J of part 416 of our regulations
to reflect the provisions in proposed new Sec. Sec. 404.1615(c)(3) and
416.1015(c)(3). For example, we propose revisions to Sec. Sec.
404.1546 and 416.946 to recognize that it would be possible in some
cases for a State agency disability examiner to be responsible for
assessing a claimant's residual functional capacity. We also propose
revisions to Sec. Sec. 404.1512, 404.1527, 416.912, and 416.927 to
account for situations in which State agency disability examiners would
weigh State agency medical or psychological consultant input as opinion
evidence; these rules are similar to rules we already have for
administrative law judges and the Appeals Council (when the Appeals
Council makes a decision). We show all of the proposed changes in the
proposed rules section following this preamble.
While the QDD process applies only to the initial level of the
administrative review process under Sec. Sec. 404.1602 and 416.1002 of
our regulations, these proposed rules include provisions that apply to
both the initial and reconsideration levels. We have two
[[Page 9823]]
major reasons for including references to the reconsideration level:
The compassionate allowance initiative is not limited to
the initial level of administrative review; and,
Any claimant who is dissatisfied with our determination--
even a determination that is fully favorable--may request a
reconsideration.\14\
---------------------------------------------------------------------------
\14\ Sections 404.907 and 416.1407.
---------------------------------------------------------------------------
Finally, we are proposing minor editorial changes to several rules
to recognize that State agency medical consultants are not always
physicians. These changes would conform these rules to the provisions
of Sec. Sec. 404.1616 and 416.1016 of our current rules. We also would
correct a grammatical error in Sec. Sec. 404.1619(b)(2) and
416.1019(b)(2) and make other minor editorial changes throughout the
proposed rules.
Clarity of These Proposed Rules
Executive Order 12866 requires each agency to write all rules in
plain language. In addition to your substantive comments on these
proposed rules, we invite your comments on how to make them easier to
understand.
For example:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
What Is Our Authority To Make Rules and Set Procedures for Determining
Whether a Person is Disabled Under the Statutory Definition?
Under the Act, we have full power and authority to make rules and
regulations and to establish necessary and appropriate procedures to
carry out the provisions of the Act. Sections 205(a), 702(a)(5), and
1631(d)(1). In addition, we have the power to promulgate regulations
that establish the procedures State agencies must follow when
performing the disability determination function for us. Sections
221(a)(2) and 1633.
When Will We Start To Use These Rules?
We will not use these rules until we evaluate public comments and
publish final rules in the Federal Register. All final rules we issue
include an effective date. We will continue to use our current rules
until that date. If we publish final rules, we will include a summary
of the significant comments we received, along with responses and an
explanation of how we will apply the new rules.
Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, they
were subject to OMB review.
The Office of the Chief Actuary provided two estimates of the
effects of the proposed rule change, due to uncertainty over the extent
to which the predictive models underlying the QDD process and the
compassionate allowance initiative are expanded. The first estimate
assumes the percent of cases designated QDD or compassionate allowance
remains at the recent level (3.8%). The second estimate assumes that we
will adjudicate 6% of all cases under the QDD or compassionate
allowance models by the end of FY 2012. The following table presents
the year-by-year estimates of the effect of the proposed change on
OASDI benefit payments and Federal SSI payments for the fiscal year
period 2010-19 under these two sets of assumptions. All estimates are
based on the assumptions underlying the President's FY 2010 Budget,
assuming the proposed changes become effective July 1, 2010. The
estimates reflect projected costs should the changes be extended
through 2019.
Table 1--Estimated Increases in OASDI Benefits and Federal SSI Payments
Retain QDD and Compassionate Allowance at 3.8% of All Initial Receipts
[In millions]
------------------------------------------------------------------------
Fiscal year OASDI SSI Total
------------------------------------------------------------------------
2010......................................... * * *
2011......................................... * * *
2012......................................... $1 * $1
2013......................................... 1 * 1
2014......................................... 1 * 1
2015......................................... 1 * 1
2016......................................... 1 * 1
2017......................................... 1 * 1
2018......................................... 1 * 2
2019......................................... 2 * 2
nsTotals ....... ....... .......
2010-14.................................. 2 * 3
2010-19.................................. 9 1 10
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
than $500,000. (Totals may not equal the sum of components due to
rounding.)
Table 2--Estimated Increases in OASDI Benefits and Federal SSI Payments
Expand QDD and Compassionate Allowance to 6% of All Initial Receipts
[In millions]
------------------------------------------------------------------------
Fiscal year OASDI SSI Total
------------------------------------------------------------------------
2011......................................... * * *
2011......................................... * * $1
2012......................................... $1 * 1
2013......................................... 2 * 2
2014......................................... 2 * 2
2015......................................... 2 * 3
2016......................................... 3 * 3
2017......................................... 3 * 3
2018......................................... 3 * 4
2019......................................... 4 $1 4
nsTotals ....... ....... .......
2010-14.................................. 5 1 6
2010-19.................................. 20 3 23
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
than $500,000. (Totals may not equal the sum of components due to
rounding.).
Regulatory Flexibility Act
We certify that these proposed rules, if published in final, would
not have a significant economic impact on a substantial number of small
entities as they affect only States and individuals. Therefore, a
regulatory flexibility analysis as provided in the Regulatory
Flexibility Act, as amended, is not required.
Paperwork Reduction Act
This rule does not create any new, or affect any existing,
collections and, therefore, does not require Office of Management and
Budget approval under the Paperwork Reduction Act.
(Catalog of Federal Domestic Assistance Program No 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; 96.006,
Supplemental Security Income.)
[[Page 9824]]
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors and Disability Insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
Dated: November 10, 2009.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend
subparts P and Q of part 404 and subparts I and J of part 416 of
chapter III of title 20 of the Code of Federal Regulations as set forth
below:
PART 404--FEDERAL OLD[dash]AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart P--[Amended]
1. The authority citation for subpart P of part 404 continues to
read as follows:
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a)
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
2. Amend Sec. 404.1512 by removing the word ``and'' from the end
of paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8)
and revising newly redesignated paragraph (b)(8), and adding new
paragraphs (b)(6) and (b)(7) to read as follows:
Sec. 404.1512 Evidence.
* * * * *
(b) * * *
(6) At the initial level of the administrative review process, when
a State agency disability examiner makes the initial determination
alone (see Sec. 404.1615(c)(3)), opinions provided by State agency
medical and psychological consultants based on their review of the
evidence in your case record (see Sec. 404.1527(f)(1)(ii));
(7) At the reconsideration level of the administrative review
process, when a State agency disability examiner makes the
determination alone (see Sec. 404.1615(c)(3)), findings, other than
the ultimate determination about whether you are disabled, made by
State agency medical or psychological consultants and other program
physicians, psychologists, or other medical specialists at the initial
level of the administrative review process, and other opinions they
provide based on their review of the evidence in your case record at
the initial and reconsideration levels (see Sec. 404.1527(f)(1)(iii));
and
(8) At the administrative law judge and Appeals Council levels
(including the administrative law judge and Decision Review Board
levels in claims adjudicated under the procedures in part 405 of this
chapter), findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, or other
medical specialists, and opinions expressed by medical experts or
psychological experts that we consult based on their review of the
evidence in your case record. See Sec. 404.1527(f)(2)-(3).
* * * * *
3. Amend Sec. 404.1527 by revising paragraphs (f)(1), and
(f)(2)(i) and (f)(2)(ii) to read as follows:
Sec. 404.1527 Evaluating opinion evidence.
* * * * *
(f) * * *
(1) In claims adjudicated by the State agency, a State agency
medical or psychological consultant (or a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) in claims
adjudicated under the procedures in part 405 of this chapter) may make
the determination of disability together with a State agency disability
examiner or provide one or more medical opinions to a State agency
disability examiner when the disability examiner makes the initial or
reconsideration determination alone (see Sec. 404.1615(c)). The
following rules apply:
(i) When a State agency medical or psychological consultant makes
the determination together with a State agency disability examiner at
the initial or reconsideration level of the administrative review
process as provided in Sec. 404.1615(c)(1), he or she will consider
the evidence in your case record and make findings of fact about the
medical issues, including, but not limited to, the existence and
severity of your impairment(s), the existence and severity of your
symptoms, whether your impairment(s) meets or medically equals the
requirements for any impairment listed in appendix 1 to this subpart,
and your residual functional capacity. These administrative findings of
fact are based on the evidence in your case but are not in themselves
evidence at the level of the administrative review process at which
they are made.
(ii) When a State agency disability examiner makes the initial
determination alone as provided in Sec. 404.1615(c)(3), he or she may
obtain the opinion of a State agency medical or psychological
consultant about one or more of the medical issues listed in paragraph
(f)(1)(i) of this section. In these cases, the State agency disability
examiner will consider the opinion of the State agency medical or
psychological consultant as opinion evidence and weigh this evidence
using the relevant factors in paragraphs (a) through (e) of this
section.
(iii) When a State agency disability examiner makes a
reconsideration determination alone as provided in Sec.
404.1615(c)(3), he or she will consider findings made by a State agency
medical or psychological consultant at the initial level of the
administrative review process and any opinions provided by such
consultants at the initial and reconsideration levels as opinion
evidence and weigh this evidence using the relevant factors in
paragraphs (a) through (e) of this section.
(2) * * *
(i) Administrative law judges are not bound by any findings made by
State agency medical or psychological consultants, or other program
physicians or psychologists. State agency medical and psychological
consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security
disability evaluation. Therefore, administrative law judges must
consider findings and other opinions of State agency medical and
psychological consultants and other program physicians, psychologists,
and other medical specialists as opinion evidence, except for the
ultimate determination about whether you are disabled (see Sec.
404.1512(b)(8)).
(ii) When an administrative law judge considers findings of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, the administrative law judge
will evaluate the findings using relevant factors in paragraphs (a)
through (e) of this section, such as the consultant's medical specialty
and expertise in our rules, the supporting evidence in the case record,
supporting explanations the medical or psychological consultant
provides, and any other factors relevant to the weighing of the
opinions. Unless a treating source's opinion is given controlling
weight, the administrative law judge must explain in the decision the
weight given to the opinions of a
[[Page 9825]]
State agency medical or psychological consultant or other program
physician, psychologist, or other medical specialist, as the
administrative law judge must do for any opinions from treating
sources, nontreating sources, and other nonexamining sources who do not
work for us.
* * * * *
4. Amend Sec. 404.1529 by revising the third sentence of paragraph
(b) to read as follows:
Sec. 404.1529 How we evaluate symptoms, including pain.
* * * * *
(b) * * * In cases decided by a State agency (except in disability
hearings under Sec. Sec. 404.914 through 404.918 and in fully
favorable determinations made by State agency disability examiners
alone under Sec. 404.1615(c)(3)), a State agency medical or
psychological consultant or other medical or psychological consultant
designated by the Commissioner (or a medical or psychological expert
(as defined in Sec. 405.5 of this chapter) in claims adjudicated under
the procedures in part 405 of this chapter) directly participates in
determining whether your medically determinable impairment(s) could
reasonably be expected to produce your alleged symptoms. * * *
* * * * *
5. Revise Sec. 404.1546(a) to read as follows:
Sec. 404.1546 Responsibility for assessing your residual functional
capacity.
(a) Responsibility for assessing residual functional capacity at
the State agency. When a State agency medical or psychological
consultant and a State agency disability examiner make the disability
determination as provided in Sec. 404.1615(c)(1), a State agency
medical or psychological consultant(s) (or a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) in claims
adjudicated under the procedures in part 405 of this chapter) is
responsible for assessing your residual functional capacity. When a
State agency disability examiner makes a disability determination alone
as provided in Sec. 404.1615(c)(3), the disability examiner is
responsible for assessing your residual functional capacity.
* * * * *
Subpart Q--[Amended]
6. The authority citation for subpart Q of part 404 continues to
read as follows:
Authority: Secs. 205(a), 221, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).
7. Amend Sec. 404.1602 by adding the definition ``Compassionate
allowance'' in alphabetical order to read as follows:
Sec. 404.1602 Definitions.
* * * * *
Compassionate allowance means a determination or decision we make
under a process that identifies for expedited handling claims that
involve impairments that invariably qualify under the Listing of
Impairments in appendix 1 to subpart P based on minimal, but
sufficient, objective medical evidence.
* * * * *
8. Amend Sec. 404.1615 by revising paragraph (c) introductory
text, removing the word ``or'' at the end of paragraph (c)(2),
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new
paragraph (c)(3) to read as follows:
Sec. 404.1615 Making disability determinations.
* * * * *
(c) Disability determinations will be made by:
* * * * *
(3) A State agency disability examiner alone if the claim is
adjudicated under the quick disability determination process (see Sec.
404.1619) or as a compassionate allowance (see Sec. 404.1602), and the
initial or reconsidered determination is fully favorable to you. This
paragraph will no longer be effective on [INSERT DATE THREE YEARS AFTER
EFFECTIVE DATE OF FINAL RULES] unless we terminate it earlier or extend
it beyond that date by notice of a final rule in the Federal Register;
or
* * * * *
9. Amend Sec. 404.1619 by revising paragraphs (b) introductory
text, (b)(1), (b)(2), and (c) to read as follows:
Sec. 404.1619 Quick disability determination process.
* * * * *
(b) If we refer a claim to the State agency for a quick disability
determination, a designated quick disability determination examiner
must do all of the following:
(1) Subject to the provisions in paragraph (c) of this section,
make the disability determination after consulting with a State agency
medical or psychological consultant if the State agency disability
examiner determines consultation is appropriate or if consultation is
required under Sec. 404.1526(c). The State agency may certify the
disability determination forms to us without the signature of the
medical or psychological consultant.
(2) Make the quick disability determination based only on the
medical and nonmedical evidence in the file.
* * * * *
(c) If the quick disability determination examiner cannot make a
determination that is fully favorable to the individual, or if there is
an unresolved disagreement between the disability examiner and the
medical or psychological consultant (except when a disability examiner
makes the determination alone under Sec. 404.1615(c)(3)), the State
agency will adjudicate the claim using the regularly applicable
procedures in this subpart.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--[Amended]
10. The authority citation for subpart I of part 416 continues to
read as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
11. Amend Sec. 416.912 by removing the word ``and'' from the end
of paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8)
and revising newly redesignated paragraph (b)(8), and adding new
paragraphs (b)(6) and (b)(7) to read as follows:
Sec. 416.912 Evidence.
* * * * *
(b) * * *
(6) At the initial level of the administrative review process, when
a State agency disability examiner makes the initial determination
alone (see Sec. 416.1015(c)(3)), opinions provided by State agency
medical and psychological consultants based on their review of the
evidence in your case record (see Sec. 416.927(f)(1)(ii));
(7) At the reconsideration level of the administrative review
process, when a State agency disability examiner makes the
determination alone (see Sec. 416.1015(c)(3)), findings, other than
the ultimate determination about whether you are disabled, made by
State agency medical or psychological consultants and other program
physicians, psychologists, or other medical specialists at the initial
level of
[[Page 9826]]
the administrative review process, and other opinions they provide
based on their review of the evidence in your case record at the
initial and reconsideration levels (see Sec. 416.927(f)(1)(iii)); and
(8) At the administrative law judge and Appeals Council levels
(including the administrative law judge and Decision Review Board
levels in claims adjudicated under the procedures in part 405 of this
chapter), findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, or other
medical specialists, and opinions expressed by medical experts or
psychological experts that we consult based on their review of the
evidence in your case record. See Sec. 416.927(f)(2)-(3).
* * * * *
12. Amend Sec. 416.927 by revising paragraphs (f)(1), (f)(2)(i)
and (f)(2)(ii) to read as follows:
Sec. 416.927 Evaluating opinion evidence.
* * * * *
(f) * * *
(1) In claims adjudicated by the State agency, a State agency
medical or psychological consultant (or a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) in claims
adjudicated under the procedures in part 405 of this chapter) may make
the determination of disability together with a State agency disability
examiner or provide one or more medical opinions to a State agency
disability examiner when the disability examiner makes the initial or
reconsideration determination alone (see Sec. 416.1015(c)). The
following rules apply:
(i) When a State agency medical or psychological consultant makes
the determination together with a State agency disability examiner at
the initial or reconsideration level of the administrative review
process as provided in Sec. 416.1015(c)(1), he or she will consider
the evidence in your case record and make findings of fact about the
medical issues, including, but not limited to, the existence and
severity of your impairment(s), the existence and severity of your
symptoms, whether your impairment(s) meets or medically equals the
requirements for any impairment listed in appendix 1 to subpart P of
part 404 of this chapter, and your residual functional capacity. These
administrative findings of fact are based on the evidence in your case
but are not in themselves evidence at the level of the administrative
review process at which they are made.
(ii) When a State agency disability examiner makes the initial
determination alone as provided in Sec. 416.1015(c)(3), he or she may
obtain the opinion of a State agency medical or psychological
consultant about one or more of the medical issues listed in paragraph
(f)(1)(i) of this section. In these cases, the State agency disability
examiner will consider the opinion of the State agency medical or
psychological consultant as opinion evidence and weigh this evidence
using the relevant factors in paragraphs (a) through (e) of this
section.
(iii) When a State agency disability examiner makes a
reconsideration determination alone as provided in Sec.
416.1015(c)(3), he or she will consider findings made by a State agency
medical or psychological consultant at the initial level of the
administrative review process and any opinions provided by such
consultants at the initial and reconsideration levels as opinion
evidence and weigh this evidence using the relevant factors in
paragraphs (a) through (e) of this section.
(2) * * *
(i) Administrative law judges are not bound by any findings made by
State agency medical or psychological consultants, or other program
physicians or psychologists. State agency medical and psychological
consultants and other program physicians, psychologists, and other
medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security
disability evaluation. Therefore, administrative law judges must
consider findings and other opinions of State agency medical and
psychological consultants and other program physicians, psychologists,
and other medical specialists as opinion evidence, except for the
ultimate determination about whether you are disabled (see Sec.
416.912(b)(8)).
(ii) When an administrative law judge considers findings of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, the administrative law judge
will evaluate the findings using relevant factors in paragraphs (a)
through (e) of this section, such as the consultant's medical specialty
and expertise in our rules, the supporting evidence in the case record,
supporting explanations the medical or psychological consultant
provides, and any other factors relevant to the weighing of the
opinions. Unless a treating source's opinion is given controlling
weight, the administrative law judge must explain in the decision the
weight given to the opinions of a State agency medical or psychological
consultant or other program physician, psychologist, or other medical
specialist, as the administrative law judge must do for any opinions
from treating sources, nontreating sources, and other nonexamining
sources who do not work for us.
* * * * *
13. Amend Sec. 416.929 by revising the third sentence of paragraph
(b) to read as follows:
Sec. 416.929 How we evaluate symptoms, including pain.
* * * * *
(b) * * * In cases decided by a State agency (except in disability
hearings under Sec. Sec. 416.1414 through 416.1418 and in fully
favorable determinations made by State agency disability examiners
alone under Sec. 416.1015(c)(3)), a State agency medical or
psychological consultant or other medical or psychological consultant
designated by the Commissioner (or a medical or psychological expert
(as defined in Sec. 405.5 of this chapter) in claims adjudicated under
the procedures in part 405 of this chapter) directly participates in
determining whether your medically determinable impairment(s) could
reasonably be expected to produce your alleged symptoms. * * *
* * * * *
14. Revise Sec. 416.946(a) to read as follows:
Sec. 416.946 Responsibility for assessing your residual functional
capacity.
(a) Responsibility for assessing residual functional capacity at
the State agency. When a State agency medical or psychological
consultant and a State agency disability examiner make the disability
determination as provided in Sec. 416.1015(c)(1), a State agency
medical or psychological consultant(s) (or a medical or psychological
expert (as defined in Sec. 405.5 of this chapter) in claims
adjudicated under the procedures in part 405 of this chapter) is
responsible for assessing your residual functional capacity. When a
State agency disability examiner makes a disability determination alone
as provided in Sec. 416.1015(c)(3), the disability examiner is
responsible for assessing your residual functional capacity.
* * * * *
Subpart J--[Amended]
15. The authority citation for subpart J of part 416 continues to
read as follows:
Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).
[[Page 9827]]
16. Amend Sec. 416.1002 by adding a definition of ``Compassionate
allowance'' in alphabetical order to read as follows:
Sec. 416.1002 Definitions.
* * * * *
Compassionate allowance means a determination or decision we make
under a process that identifies for expedited handling claims that
involve impairments that invariably qualify under the Listing of
Impairments in appendix 1 to subpart P of part 404 of this chapter
based on minimal, but sufficient, objective medical evidence.
* * * * *
17. Amend Sec. 416.1015 by revising paragraph (c) introductory
text, removing the word ``or'' at the end of paragraph (c)(2),
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new
paragraph (c)(3) to read as follows:
Sec. 416.1015 Making disability determinations.
* * * * *
(c) Disability determinations will be made by:
* * * * *
(3) A State agency disability examiner alone if you are not a child
(a person who has not attained age 18), and the claim is adjudicated
under the quick disability determination process (see Sec. 416.1019)
or as a compassionate allowance (see Sec. 416.1002), and the initial
or reconsidered determination is fully favorable to you. This paragraph
will no longer be effective on [INSERT DATE THREE YEARS AFTER EFFECTIVE
DATE OF FINAL RULES] unless we terminate it earlier or extend it beyond
that date by notice of a final rule in the Federal Register; or
* * * * *
18. Amend Sec. 416.1019 by revising paragraphs (b) introductory
text, (b)(1), (b)(2), and (c) to read as follows:
Sec. 416.1019 Quick disability determination process.
* * * * *
(b) If we refer a claim to the State agency for a quick disability
determination, a designated quick disability determination examiner
must do all of the following:
(1) Subject to the provisions in paragraph (c) of this section,
make the disability determination after consulting with a State agency
medical or psychological consultant if the State agency disability
examiner determines consultation is appropriate or if consultation is
required under Sec. 416.926(c). The State agency may certify the
disability determination forms to us without the signature of the
medical or psychological consultant.
(2) Make the quick disability determination based only on the
medical and nonmedical evidence in the file.
* * * * *
(c) If the quick disability determination examiner cannot make a
determination that is fully favorable to the individual, or if there is
an unresolved disagreement between the disability examiner and the
medical or psychological consultant (except when a disability examiner
makes the determination alone under Sec. 416.1015(c)(3)), the State
agency will adjudicate the claim using the regularly applicable
procedures in this subpart.
[FR Doc. 2010-4283 Filed 3-3-10; 8:45 am]
BILLING CODE 4191-02-P
