Disability Determinations by State Agency Disability Examiners, 62676-62684 [2010-25502]

Agencies

• Social Security Administration

[Federal Register Volume 75, Number 197 (Wednesday, October 13, 2010)]
[Rules and Regulations]
[Pages 62676-62684]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-25502]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2008-0041]
RIN 0960-AG87


Disability Determinations by State Agency Disability Examiners

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising our rules on a temporary basis to permit State 
agency disability examiners to make fully favorable determinations in 
certain claims for disability benefits under titles II and XVI of the 
Social Security Act (Act) without the approval of a State agency 
medical or psychological consultant. These changes apply only to claims 
we consider under our rules for quick disability determinations (QDD) 
or under our compassionate allowance initiative.

DATES: These final rules are effective on November 12, 2010.

FOR FURTHER INFORMATION CONTACT: Nancy Schoenberg, Office of 
Compassionate Allowances and Disability Outreach, Social Security 
Administration, 4692 Annex, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 966-9408, for information about this notice. For 
information on eligibility or filing for benefits, call our national 
toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our 
Internet site, Social Security Online at 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/.

Our Current Rules

    Under our current rules, a State agency disability examiner and a 
State agency medical or psychological consultant generally work 
together to make a disability determination at the first two levels of 
the administrative review process for adjudicating disability claims 
under titles II and XVI of the Act.\1\ The members of the team are 
jointly responsible for the determination.\2\ Except in prototype 
States, a State agency disability examiner may solely make a disability 
determination, without consulting a medical consultant, only when there 
is no medical evidence to evaluate and the claimant fails or refuses, 
without a good reason, to undergo a consultative examination.\3\
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    \1\ 20 CFR 404.900 and 416.1400.
    \2\ 20 CFR 404.1615(c)(1) and 416.1015(c)(1).
    \3\ 20 CFR 404.1615(c)(2) and 416.1015(c)(2). In some States, we 
are testing a modification to the disability determination 
procedures that allows State agency disability examiners called 
``single decisionmakers'' (SDM) to make both favorable and 
unfavorable determinations alone in some cases; that is, without 
working in a team with a medical or psychological consultant. 20 CFR 
404.906(b)(2) and 416.1406(b)(2). We are continuing that testing. 
However, the changes in these final rules apply in all States, 
including SDM States. They allow SDMs and other disability examiners 
to make fully favorable determinations alone in QDD and 
compassionate allowance claims.
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    Although we evaluate all disability claims using the same criteria, 
we have developed two methods for expediting certain claims where there 
is a high probability that we will find the claimant disabled. In the 
QDD process, we use a computer-based predictive model to analyze 
specific elements of data in electronic claim files. The predictive 
model identifies claims in which there is a high potential that the 
claimant is disabled and in which we can quickly and easily obtain 
evidence supporting the claimant's allegations.\4\ In the compassionate 
allowance initiative, we use a list of conditions to quickly identify 
diseases and other medical conditions that invariably qualify under the 
Listing of Impairments (``listings'') in our regulations \5\ at step 3 
of the sequential evaluation process for initial claims \6\ based on 
minimal, but sufficient, objective medical information.\7\
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    \4\ 20 CFR 404.1619 and 416.1019. Our data demonstrate that the 
model is working as we intend. See, for example, ``Good Practices in 
Social Security: The Quick Disability Determination (QDD) and 
Compassionate Allowances (CAL) Initiatives: A case of the Social 
Security Administration,'' International Social Security Association 
(ISSA), 2009, available at: 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 under 20 CFR 416.925.
    \6\ 20 CFR 404.1520(a)(4)(iii) and (d) and 416.920(a)(4)(iii) 
and (d).
    \7\ See, generally, 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, for example, 72 FR 41649 
(2007), 73 FR 10715 (2008), and 73 FR 66563 (2008). On March 1, 
2010, we added another 38 conditions. See https://www.socialsecurity.gov/compassionateallowances/newconditions.htm. We 
plan to obtain more public input to determine whether and how to 
expand the list over time.

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[[Page 62677]]

New QDD and Compassionate Allowance Rules

    These final rules allow disability examiners to make certain fully 
favorable determinations under our QDD rules or under our compassionate 
allowance initiative without the approval of a medical or psychological 
consultant. This change is consistent with our goal to allow cases that 
should be allowed as quickly as possible.\8\ It will also help us to 
process cases more efficiently because it will give State agency 
medical and psychological consultants more time to work on those 
complex cases for which we need their expertise. To accommodate this 
change, we are redesignating current 20 CFR 404.1615(c)(3) and 
416.1015(c)(3) as (c)(4) and adding new paragraphs 20 CFR 
404.1615(c)(3) and 416.1015(c)(3).
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    \8\ See Social Security Administration Strategic Plan 2008-2013, 
Strategic Goal 2, https://www.ssa.gov/asp/StrategicGoal2.pdf.
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    This revision is a change from our prior position. When we 
published final rules extending the QDD process to all States,\9\ we 
declined to adopt a comment to allow disability examiners to make 
determinations without a medical or psychological consultant's 
involvement.\10\ However, we now have about 3 years of experience using 
the QDD process nationally, and even longer experience in our Boston 
region. In light of our experience adjudicating QDD and compassionate 
allowance cases and our quality assurance reviews of determinations 
made in States that use single decisionmakers (SDMs), we believe it is 
appropriate to allow disability examiners to make some fully favorable 
determinations without a medical or psychological consultation. Our 
quality assurance reviews for the past 2 fiscal years show that the 
accuracy rates in the States that use SDMs are comparable to, if not 
higher than, the accuracy rates in those States that do not use SDMs. 
Moreover, many of the determinations included in our quality assurance 
reviews are more complex than QDD and compassionate allowance 
determinations.
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    \9\ 72 FR 51173 (Sept. 6, 2007).
    \10\ Id. at 51175.
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    For these reasons, we expect that the accuracy rates of QDDs and 
compassionate allowance determinations made solely by State agency 
disability examiners will be comparable to the accuracy rate of the 
determinations now made in consultation with medical examiners. We will 
also have measures in place, in addition to quality assurance reviews, 
that will provide us with information about the quality of QDDs and 
compassionate allowance determinations. Therefore, we will be 
monitoring these determinations made by State agency disability 
examiners. We are also including a 3-year ``sunset date,'' after which 
final sections 404.1615(c)(3) and 416.1015(c)(3) will no longer be 
effective, unless we terminate the rules earlier or extend them beyond 
that date by notice of a final rule in the Federal Register.
    State agency disability examiners who make fully favorable 
determinations under these final rules will still have the option of 
consulting with State agency medical and psychological consultants when 
they deem it necessary. We will continue to require State agency 
disability examiners to consult with State agency medical or 
psychological consultants before they make a fully favorable 
determination based on a claimant's impairment(s) medically equaling 
the severity of a listing at step 3.\11\ Further, to make a fully 
favorable determination at step 5, adjudicators generally must first 
determine that a claimant does not have an impairment(s) that meets or 
medically equals a listing. In these cases, they will have also had to 
consult with a medical or psychological consultant to determine that 
there were no impairments that medically equaled a listing.\12\ 
Regardless of whether the State agency disability examiner chooses to 
consult with a State agency medical or psychological consultant or is 
required to do so, the disability examiner is solely responsible for 
the determination.
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    \11\ 20 CFR 404.1526(c) and 416.926(c).
    \12\ 20 CFR 404.1520(a)(4) and 416.920(a)(4). Fully favorable 
determinations based on medical equivalence or at step 5 are only a 
relatively small fraction of the QDD and compassionate allowance 
determinations we have made so far.
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    These final rules do not apply to claims for supplemental security 
income payments under title XVI for persons under age 18. The Act 
requires us to make reasonable efforts to ensure that a qualified 
pediatrician or other medical professional who specializes in a field 
of medicine appropriate to the child's medical impairment(s) evaluates 
the child's case.\13\ We interpret this statutory requirement to mean 
that a medical or psychological consultant must participate as part of 
a team in all State agency determinations of childhood disability under 
title XVI, including fully favorable determinations.
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    \13\ Section 1614(a)(3)(I) of the Act and 20 CFR 416.903(f) and 
416.1015(e).
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Other Changes

    These final rules apply only to claims adjudicated under the QDD 
process or the compassionate allowance initiative. Our current 
regulations explain the QDD process but not the compassionate allowance 
initiative. Therefore, we are adding a definition of ``compassionate 
allowance'' in 20 CFR 404.1602 and 416.1002, the sections of part 404 
subpart Q and part 416 subpart J that provide definitions of terms.
    We are also making a number of conforming changes to our rules to 
reflect our QDD and compassionate allowance rules in final 20 CFR 
404.1615(c)(3) and 416.1015(c)(3). For example, we are revising 20 CFR 
404.1546 and 416.946 to recognize that it is possible in some cases for 
a State agency disability examiner to be responsible for assessing a 
claimant's residual functional capacity. We are also revising 20 CFR 
404.1512, 404.1527, 416.912, and 416.927 to account for situations in 
which State agency disability examiners will weigh State agency medical 
or psychological consultant input as opinion evidence. These rules are 
similar to our current rules for administrative law judges (ALJs) and 
the Appeals Council (when the Appeals Council makes a decision). We are 
revising 20 CFR 404.1520a and 416.920a to authorize State agency 
disability examiners to evaluate the severity of mental impairment(s), 
and to complete the standard document showing how the disability 
examiner applied the special technique required by that section, in 
cases in which they make fully favorable QDD and compassionate 
allowance determinations when claimants have a mental impairment(s). 
While we did not propose specific revisions to 20 CFR 404.1520a and 
416.920a in the NPRM, these revisions are consistent with our proposal 
to allow State agency disability examiners to decide QDD and 
compassionate allowance cases without the approval of a medical or 
psychological consultant. Because the current QDD model and the current 
list of compassionate allowance conditions include mental impairments, 
we need to make these revisions to allow State agency disability 
examiners to decide those cases alone, as we proposed.
    These final rules include revisions to rules that relate to both 
the initial and reconsideration levels of the administrative review 
process under 20 CFR 404.1602 and 416.1002. We are making these 
revisions because:

[[Page 62678]]

(1) Unlike the QDD process, the compassionate allowance initiative is 
not limited to the initial level of administrative review; and (2) any 
claimant who is dissatisfied with our determination--even a 
determination allowing a claimant's claim in full--may request a 
reconsideration.\14\
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    \14\ 20 CFR 404.907 and 416.1407.
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    Finally, we are making minor editorial changes to several rules to 
recognize that State agency medical consultants are not always 
physicians. These changes will conform these rules to current 20 CFR 
404.1616 and 416.1016. We also are correcting a grammatical error in 20 
CFR 404.1619(b)(2) and 416.1019(b)(2) and making other minor editorial 
changes throughout these final rules.

Relationship of These Rules to Notice of Proposed Rulemaking 
``Reestablishing Uniform National Disability Adjudication Provisions''

    We published a notice of proposed rulemaking (NPRM) 
``Reestablishing Uniform National Disability Adjudication Provisions'' 
in the Federal Register on December 4, 2009. 74 FR 63688. We proposed 
different revisions to several of the regulatory sections revised by 
these final rules. The language in these final rules is controlling. We 
are still evaluating the comments on the December 4, 2009, NPRM.

Public Comments

    We published a NPRM in the Federal Register on March 4, 2010, and 
we gave the public 30 days to comment on the NPRM. 75 FR 9821. We 
received comments from five persons and organizations during this 
period. We carefully read and considered each of them. They are 
available for public viewing at https://www.regulations.gov. Because 
some of the comments were long, we have condensed, summarized, and 
paraphrased them. We have tried to summarize the commenters' views 
accurately and to respond to the significant issues raised by the 
commenters that were within the scope of these rules.
    Comment: Four of the commenters supported our proposed rules, but 
one commenter opposed them based on his experience working as a medical 
consultant in a State agency. He said that his State agency's attempt 
to have disability examiners make determinations without medical 
consultant involvement or approval failed and would fail again. The 
commenter generally questioned the qualifications of disability 
examiners, State agency managers, and quality control personnel. The 
commenter said that our ``[p]ilot studies with tight controls and 
everybody acting on good behavior'' would not be representative of the 
deterioration in quality that he thought would occur over time under 
our proposed rules. He preferred that State agency disability examiners 
continue to work with State agency medical consultants on all claims to 
achieve a balance in quality and resist possible ``corruption of the 
[decisionmaking] process.''
    Response: We disagree with this comment. We are confident that 
disability examiners are competent and able to make these fully 
favorable determinations. Our confidence is bolstered by the success of 
the pilot. We simply do not agree with the commenter's assessment of 
the skills and competence of disability examiners, managers, and 
quality control personnel. We believe they are highly-skilled and 
capable employees who do a fine job for us.
    Moreover, the commenter's personal experience with one State agency 
ended almost 20 years ago. His personal experience does not take into 
account our more recent experience with the SDM initiatives. Our more 
recent experience, which involves the adjudication of tens of thousands 
of cases in 20 State agencies, does not show the types of problems 
cited by the commenter.
    Furthermore, these final rules allow State agency disability 
examiners to make only fully favorable QDD and compassionate allowance 
determinations. Our procedures for the two initiatives ensure that we 
select cases that we are very likely to allow. In fact, we make fully 
favorable determinations in the great majority of cases we identify for 
QDD and compassionate allowances. Given our program experience using 
these initiatives, we believe that we do not need State agency medical 
or psychological consultants to approve these determinations and that 
the State agencies can better use the services of their medical and 
psychological consultants for more complex cases in which we need their 
medical expertise.
    Moreover, we are confident that we will be able to quickly detect 
and correct any quality issues, should they occur, through our quality 
assurance reviews. We are also required by statute to review at least 
50 percent of all State agency allowances,\15\ and this sample includes 
QDD and compassionate allowance determinations. To further ensure that 
these final rules do not result in any unforeseen or unintended 
consequences, we are including in final sections 404.1615(c)(3) and 
416.1015(c)(3) a 3-year sunset date and a provision that allows us to 
terminate the new process even sooner if we determine that it would be 
appropriate to do so.
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    \15\ Sections 221(c)(3) and 1633(e)(2) of the Act.
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    Comment: The same commenter also said that our NPRM was 
``unbalanced'' because we authorized State agency disability examiners 
to make only fully favorable determinations. The commenter asserted 
that this restriction indicated that we believed that State agency 
disability examiners were more competent to make allowance 
determinations than denials and that claimants deserve professional 
medical input before being denied benefits. Another commenter thought 
our NPRM was too restrictive and asked us to authorize State agency 
disability examiners to also make partially favorable determinations, 
such as favorable determinations with onset dates later than claimants 
allege.
    Response: We disagree with the first commenter. We want to make 
fully favorable determinations as quickly as possible for claimants who 
should receive them. We have determined that State agency disability 
examiners are capable of making fully favorable QDD and compassionate 
allowance determinations.
    The first commenter seems to have also misunderstood the intent of 
our proposal. We proposed, and decided to adopt, rules that apply only 
to a subset of our allowance determinations, not all allowances. As we 
explain above, we have been and are still conducting another project 
that authorizes State agency disability examiners to make both more 
complex favorable determinations and unfavorable determinations.\16\
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    \16\ See footnote 3, above.
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    We also did not adopt the second comment to authorize State agency 
disability examiners to make partially favorable determinations. These 
determinations require findings that a claimant was either disabled at 
a later onset date than the claimant alleged or that the claimant had a 
``closed'' period of disability and is no longer disabled. Thus, the 
same considerations that led us to exclude unfavorable determinations 
and continuing disability reviews also apply to partially favorable 
determinations. We proposed to authorize State agency disability 
examiners to make only what are essentially some of the most obvious 
allowance determinations in our

[[Page 62679]]

caseload. At this time, we are not expanding that authority to 
partially favorable or unfavorable determinations.
    Comment: We received two comments about the sunset date from 
commenters who supported the NPRM. One commenter asked why we included 
a sunset date and suggested that we make these rules permanent. Another 
commenter supported the sunset date in case we find that the process is 
not working satisfactorily.
    Response: We decided to include a sunset date for these rules 
because we believe that we need to evaluate how the rules work in 
practice. If we decide based on that evaluation that the process is not 
working satisfactorily, the sunset date will allow us to let the 
program expire without the need for an additional change to our rules. 
The sunset date requires us only to publish a final rule in the Federal 
Register to notify the public if we decide to extend the process beyond 
the 3-year period or to terminate it before the expiration of that 
period. We do not need to publish new regulations or propose changes if 
we want the process to end at the expiration of the 3-year period. We 
have used sunset dates in some of our other rules, and we have extended 
them when we have determined that they are working well. For example, 
on July 13, 2009, we extended our rules that allow attorney advisors in 
hearing offices to conduct prehearing proceedings, which include 
issuing fully favorable decisions at the ALJ hearing level.\17\
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    \17\ ``Attorney Advisor Program Sunset Date Extension,'' 74 FR 
33327.
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    Comment: One commenter disagreed with the statement in our preamble 
that said: ``We would also require State agency disability examiners to 
consult with State agency medical or psychological consultants before 
they make a fully favorable determination based on medical equivalence 
to a listing at step 3 or based on a finding of inability to do other 
work at step 5 of our sequential evaluation process.'' \18\ The 
commenter wanted us to authorize State agency disability examiners to 
make fully favorable determinations based on medical equivalence 
without needing to first obtain ``approval'' from State agency medical 
or psychological consultants. The commenter believed that the 
requirement we described would severely restrict disability examiner 
authority in QDD and compassionate allowance claims and make the rules 
``almost impractical.''
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    \18\ 75 FR at 9822.
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    Response: We believe the commenter may have misunderstood our 
proposed rule. We did not say that State agency disability examiners 
would need approval from a State agency medical or psychological 
consultant before issuing a fully favorable determination in this 
process. We simply explained that State agency disability examiners who 
are solely responsible for QDD and compassionate allowance 
determinations would be subject to the same rules about determining 
medical equivalence as other decisionmakers at other levels of our 
administrative review process when we cannot allow a case as a QDD or 
compassionate allowance.
    Under our longstanding regulations, all adjudicators at all levels 
of the administrative review process must consider the opinion of ``one 
or more medical or psychological consultants designated by the 
Commissioner'' whenever they make a finding that an impairment(s) does 
or does not medically equal a listing. 20 CFR 404.1526(c) and 
416.926(c).
    These requirements apply to State agency disability examiners. At 
the initial and reconsideration levels of the administrative review 
process, the requirement for medical or psychological consultant input 
is normally satisfied because a State agency medical or psychological 
consultant is part of a team that makes the determination.
    We disagree with the commenter's opinion that requiring State 
agency disability examiners to follow the same rule as other 
adjudicators would make our proposal impractical. Most claimants who 
qualify under the QDD and compassionate allowance initiatives have 
impairments that meet listings, and these rules do not require 
disability examiners to consult with a medical or psychological 
consultant before determining that a claimant's impairment(s) meets a 
listing.
    Under the new process in these final rules, State agency disability 
examiners will be solely responsible for their fully favorable QDD and 
compassionate allowance determinations. Nevertheless, if in QDD and 
compassionate allowance cases, disability examiners are not able to 
find that a claimant's impairment(s) meets the severity of a listed 
impairment, they will need to follow the longstanding requirement to 
obtain an opinion about medical equivalence from medical or 
psychological consultants. Although they must obtain and review such 
opinions, State agency disability examiners are not bound to accept 
them as binding, and the State agency medical or psychological 
consultants will not need to ``approve'' the determinations.
    Also, these final rules do not require a State agency disability 
examiner to obtain an opinion about residual functional capacity before 
making a fully favorable determination. In the NPRM's preamble, we were 
explaining only that, to allow a case at step 5 of the sequential 
evaluation process, a State agency disability examiner will necessarily 
have had to obtain a State agency medical or psychological consultant's 
opinion about medical equivalence at step 3.

Authority for These Final Rules

    Under the Act, we have full power and authority to make rules and 
regulations and to establish necessary or appropriate procedures to 
carry out the provisions of the Act. Sections 205(a), 702(a)(5), and 
1631(d)(1). In addition, we have the power to promulgate regulations 
that establish the procedures State agencies must follow when 
performing the disability determination function for us. Sections 
221(a)(2) and 1633.

Regulatory Procedures

Executive Order 12866

    We consulted with the Office of Management and Budget (OMB) and 
determined that these final rules meet the criteria for a significant 
regulatory action under Executive Order 12866. Thus, OMB reviewed them.
    The Office of the Chief Actuary provided two estimates of the 
effects of these final rules, due to uncertainty over the extent to 
which the compassionate allowance initiative and the predictive model 
underlying the QDD process can be enhanced. The first estimate assumes 
the percent of cases designated QDD or compassionate allowance remains 
at the recent level (3.8%). The second estimate assumes that we will 
adjudicate 6% of all cases under the QDD or compassionate allowance 
models by the end of fiscal year (FY) 2012. The following table 
presents the year-by-year estimates of the effect of these final rules 
on OASDI benefit payments and Federal SSI payments for the fiscal year 
period 2010-2019 under these two sets of assumptions. All estimates are 
based on the assumptions underlying the President's FY 2010 Budget and 
assume these final rules are effective July 1, 2010. The estimates 
reflect projected costs should the changes be extended through 2019.

[[Page 62680]]



Table 1--Estimated Increases in OASDI Benefits and Federal SSI Payments--
 Retain QDD and Compassionate Allowance at 3.8% of All Initial Receipts
                              [In millions]
------------------------------------------------------------------------
                   Fiscal year                     OASDI    SSI    Total
------------------------------------------------------------------------
2010............................................       *       *       *
2011............................................       *       *       *
2012............................................      $1       *      $1
2013............................................       1       *       1
2014............................................       1       *       1
2015............................................       1       *       1
2016............................................       1       *       1
2017............................................       1       *       1
2018............................................       1       *       2
2019............................................       2       *       2
Totals:                                           ......  ......  ......
  2010-14.......................................       2       *       3
  2010-19.......................................       9       1      10
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
  than $500,000. (Totals may not equal the sum of components due to
  rounding.)


Table 2--Estimated Increases in OASDI Benefits and Federal SSI Payments--
  Expand QDD and Compassionate Allowance to 6% of All Initial Receipts
                              [In millions]
------------------------------------------------------------------------
                   Fiscal year                     OASDI    SSI    Total
------------------------------------------------------------------------
2010............................................       *       *       *
2011............................................       *       *      $1
2012............................................      $1       *       1
2013............................................       2       *       2
2014............................................       2       *       2
2015............................................       2       *       3
2016............................................       3       *       3
2017............................................       3       *       3
2018............................................       3       *       4
2019............................................       4      $1       4
Totals:                                           ......  ......  ......
  2010-14.......................................       5       1       6
  2010-19.......................................      20       3      23
------------------------------------------------------------------------
* Increase in OASDI benefit payments or Federal SSI payments of less
  than $500,000. (Totals may not equal the sum of components due to
  rounding.)

Regulatory Flexibility Act

    We certify that these final rules do not have a significant 
economic impact on a substantial number of small entities as they 
affect only States and individuals. Therefore, the Regulatory 
Flexibility Act, as amended, does not require us to make a regulatory 
flexibility analysis.

Paperwork Reduction Act

    These final rules do not create any new or affect any existing 
collections. They do not require Office of Management and Budget 
approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program No 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending 20 CFR part 
404 subparts P and Q and part 416 subparts I and J as set forth below:

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

Subpart P--[Amended]

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

    Authority:  Secs. 202, 205(a)-(b), and (d)-(h), 216(i), 221(a), 
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 402, 405(a)-(b), and (d)-(h), 416(i), 421(a), (i), 
and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-
193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 
(42 U.S.C. 902 note).


0
2. Amend Sec.  404.1512 by removing the word ``and'' from the end of 
paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8) 
and revising redesignated paragraph (b)(8), and adding new paragraphs 
(b)(6) and (b)(7) to read as follows:


Sec.  404.1512  Evidence.

* * * * *
    (b) * * *
    (6) At the initial level of the administrative review process, when 
a State agency disability examiner makes the initial determination 
alone (see Sec.  404.1615(c)(3)), opinions provided by State agency 
medical and psychological consultants based on their review of the 
evidence in your case record (see Sec.  404.1527(f)(1)(ii));
    (7) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  404.1615(c)(3)), findings, other than 
the ultimate determination about whether you are disabled, made by 
State agency medical or psychological consultants and other program 
physicians, psychologists, or other medical specialists at the initial 
level of the administrative review process, and other opinions they 
provide based on their review of the evidence in your case record at 
the initial and reconsideration levels (see Sec.  404.1527(f)(1)(iii)); 
and
    (8) At the administrative law judge and Appeals Council levels 
(including the administrative law judge and Decision Review Board 
levels in claims adjudicated under the procedures in part 405 of this 
chapter), findings, other than the ultimate determination about whether 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record. See Sec. Sec.  404.1527(f)(2)-(3).
* * * * *

0
3. Amend Sec.  404.1520a by adding a third sentence to the introductory 
text of paragraph (e), revising paragraph (e)(1), redesignating 
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5), and 
adding new paragraphs (e)(2) and (e)(3) to read as follows:


Sec.  404.1520a  Evaluation of mental impairments.

* * * * *
    (e) Documenting application of the technique. * * * The following 
rules apply:
    (1) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  404.1615(c)(1), the State agency medical 
or psychological consultant has overall responsibility for assessing 
medical severity. At the initial level in claims adjudicated under the 
procedures in part 405 of this chapter, a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) has overall 
responsibility for assessing medical severity. A State agency 
disability examiner may assist in preparing the standard document. 
However, our medical or psychological consultant (or the medical or 
psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter) 
must review and sign the document to attest that it is complete and 
that he or she is responsible for its content, including the findings 
of fact and any discussion of supporting evidence.

[[Page 62681]]

    (2) When a State agency disability examiner makes the determination 
alone as provided in Sec.  404.1615(c)(3), the State agency disability 
examiner has overall responsibility for assessing medical severity and 
for completing and signing the standard document.
    (3) When a disability hearing officer makes a reconsideration 
determination as provided in Sec.  404.1615(c)(4), the determination 
must document application of the technique, incorporating the 
disability hearing officer's pertinent findings and conclusions based 
on this technique.
* * * * *

0
4. Amend Sec.  404.1527 by revising paragraph (f)(1), and revising 
paragraphs (f)(2)(i) and (f)(2)(ii) to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) may make 
the determination of disability together with a State agency disability 
examiner or provide one or more medical opinions to a State agency 
disability examiner when the disability examiner makes the initial or 
reconsideration determination alone (see Sec.  404.1615(c)). The 
following rules apply:
    (i) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  404.1615(c)(1), he or she will consider 
the evidence in your case record and make findings of fact about the 
medical issues, including, but not limited to, the existence and 
severity of your impairment(s), the existence and severity of your 
symptoms, whether your impairment(s) meets or medically equals the 
requirements for any impairment listed in appendix 1 to this subpart, 
and your residual functional capacity. These administrative findings of 
fact are based on the evidence in your case but are not in themselves 
evidence at the level of the administrative review process at which 
they are made.
    (ii) When a State agency disability examiner makes the initial 
determination alone as provided in Sec.  404.1615(c)(3), he or she may 
obtain the opinion of a State agency medical or psychological 
consultant about one or more of the medical issues listed in paragraph 
(f)(1)(i) of this section. In these cases, the State agency disability 
examiner will consider the opinion of the State agency medical or 
psychological consultant as opinion evidence and weigh this evidence 
using the relevant factors in paragraphs (a) through (e) of this 
section.
    (iii) When a State agency disability examiner makes a 
reconsideration determination alone as provided in Sec.  
404.1615(c)(3), he or she will consider findings made by a State agency 
medical or psychological consultant at the initial level of the 
administrative review process and any opinions provided by such 
consultants at the initial and reconsideration levels as opinion 
evidence and weigh this evidence using the relevant factors in 
paragraphs (a) through (e) of this section.
    (2) * * *
    (i) Administrative law judges are not bound by any findings made by 
State agency medical or psychological consultants, or other program 
physicians or psychologists. State agency medical and psychological 
consultants and other program physicians, psychologists, and other 
medical specialists are highly qualified physicians, psychologists, and 
other medical specialists who are also experts in Social Security 
disability evaluation. Therefore, administrative law judges must 
consider findings and other opinions of State agency medical and 
psychological consultants and other program physicians, psychologists, 
and other medical specialists as opinion evidence, except for the 
ultimate determination about whether you are disabled (see Sec.  
404.1512(b)(8)).
    (ii) When an administrative law judge considers findings of a State 
agency medical or psychological consultant or other program physician, 
psychologist, or other medical specialist, the administrative law judge 
will evaluate the findings using the relevant factors in paragraphs (a) 
through (e) of this section, such as the consultant's medical specialty 
and expertise in our rules, the supporting evidence in the case record, 
supporting explanations the medical or psychological consultant 
provides, and any other factors relevant to the weighing of the 
opinions. Unless a treating source's opinion is given controlling 
weight, the administrative law judge must explain in the decision the 
weight given to the opinions of a State agency medical or psychological 
consultant or other program physician, psychologist, or other medical 
specialist, as the administrative law judge must do for any opinions 
from treating sources, nontreating sources, and other nonexamining 
sources who do not work for us.
* * * * *

0
5. Amend Sec.  404.1529 by removing ``Sec. Sec.  404.1512(b)(2) through 
(6)'' in the third sentence of paragraph (a) and adding ``Sec. Sec.  
404.1512(b)(2) through (8)'' in its place, and by revising the third 
sentence of paragraph (b), to read as follows:


Sec.  404.1529  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  404.914 through 404.918 and in fully 
favorable determinations made by State agency disability examiners 
alone under Sec.  404.1615(c)(3)), a State agency medical or 
psychological consultant or other medical or psychological consultant 
designated by the Commissioner (or a medical or psychological expert 
(as defined in Sec.  405.5 of this chapter) in claims adjudicated under 
the procedures in part 405 of this chapter) directly participates in 
determining whether your medically determinable impairment(s) could 
reasonably be expected to produce your alleged symptoms. * * *
* * * * *

0
6. Revise Sec.  404.1546(a) to read as follows:


Sec.  404.1546  Responsibility for assessing your residual functional 
capacity.

    (a) Responsibility for assessing residual functional capacity at 
the State agency.
    When a State agency medical or psychological consultant and a State 
agency disability examiner make the disability determination as 
provided in Sec.  404.1615(c)(1), a State agency medical or 
psychological consultant(s) (or a medical or psychological expert (as 
defined in Sec.  405.5 of this chapter) in claims adjudicated under the 
procedures in part 405 of this chapter) is responsible for assessing 
your residual functional capacity. When a State agency disability 
examiner makes a disability determination alone as provided in Sec.  
404.1615(c)(3), the disability examiner is responsible for assessing 
your residual functional capacity.
* * * * *

Subpart Q--[Amended]

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

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


[[Page 62682]]



0
8. Amend Sec.  404.1602 by adding a definition of ``compassionate 
allowance'' in alphabetical order to read as follows:


Sec.  404.1602  Definitions.

* * * * *
    Compassionate allowance means a determination or decision we make 
under a process that identifies for expedited handling claims that 
involve impairments that invariably qualify under the Listing of 
Impairments in appendix 1 to subpart P based on minimal, but 
sufficient, objective medical evidence.
* * * * *

0
9. Amend Sec.  404.1615 by revising the introductory text of paragraph 
(c), removing the word ``or'' at the end of paragraph (c)(2), 
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new 
paragraph (c)(3) to read as follows:


Sec.  404.1615  Making disability determinations.

* * * * *
    (c) Disability determinations will be made by:
* * * * *
    (3) A State agency disability examiner alone if the claim is 
adjudicated under the quick disability determination process (see Sec.  
404.1619) or as a compassionate allowance (see Sec.  404.1602), and the 
initial or reconsidered determination is fully favorable to you. This 
paragraph will no longer be effective on November 12, 2013 unless we 
terminate it earlier or extend it beyond that date by publication of a 
final rule in the Federal Register; or
* * * * *

0
10. Amend Sec.  404.1619 by revising paragraphs (b) introductory text, 
(b)(1), (b)(2), and (c) to read as follows:


Sec.  404.1619  Quick disability determination process.

* * * * *
    (b) If we refer a claim to the State agency for a quick disability 
determination, a designated quick disability determination examiner 
must do all of the following:
    (1) Subject to the provisions in paragraph (c) of this section, 
make the disability determination after consulting with a State agency 
medical or psychological consultant if the State agency disability 
examiner determines consultation is appropriate or if consultation is 
required under Sec.  404.1526(c). The State agency may certify the 
disability determination forms to us without the signature of the 
medical or psychological consultant.
    (2) Make the quick disability determination based only on the 
medical and nonmedical evidence in the file.
* * * * *
    (c) If the quick disability determination examiner cannot make a 
determination that is fully favorable, or if there is an unresolved 
disagreement between the disability examiner and the medical or 
psychological consultant (except when a disability examiner makes the 
determination alone under Sec.  404.1615(c)(3)), the State agency will 
adjudicate the claim using the regularly applicable procedures in this 
subpart.

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

Subpart I--[Amended]

0
11. The authority citation for subpart I of part 416 is revised to read 
as follows:

    Authority:  Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).


0
12. Amend Sec.  416.912 by removing the word ``and'' from the end of 
paragraph (b)(5), redesignating paragraph (b)(6) as paragraph (b)(8) 
and revising redesignated paragraph (b)(8), and adding new paragraphs 
(b)(6) and (b)(7) to read as follows:


Sec.  416.912  Evidence.

* * * * *
    (b) * * *
    (6) At the initial level of the administrative review process, when 
a State agency disability examiner makes the initial determination 
alone (see Sec.  416.1015(c)(3)), opinions provided by State agency 
medical and psychological consultants based on their review of the 
evidence in your case record (see Sec.  416.927(f)(1)(ii));
    (7) At the reconsideration level of the administrative review 
process, when a State agency disability examiner makes the 
determination alone (see Sec.  416.1015(c)(3)), findings, other than 
the ultimate determination about whether you are disabled, made by 
State agency medical or psychological consultants and other program 
physicians, psychologists, or other medical specialists at the initial 
level of the administrative review process, and other opinions they 
provide based on their review of the evidence in your case record at 
the initial and reconsideration levels (see Sec.  416.927(f)(1)(iii)); 
and
    (8) At the administrative law judge and Appeals Council levels 
(including the administrative law judge and Decision Review Board 
levels in claims adjudicated under the procedures in part 405 of this 
chapter), findings, other than the ultimate determination about whether 
you are disabled, made by State agency medical or psychological 
consultants and other program physicians or psychologists, or other 
medical specialists, and opinions expressed by medical experts or 
psychological experts that we consult based on their review of the 
evidence in your case record. See Sec. Sec.  416.927(f)(2)-(3).
* * * * *

0
13. Amend Sec.  416.920a by adding a third sentence to the introductory 
text of paragraph (e), revising paragraph (e)(1), redesignating 
paragraphs (e)(2) and (e)(3) as paragraphs (e)(4) and (e)(5), and 
adding new paragraphs (e)(2) and (e)(3) to read as follows:


Sec.  416.920a  Evaluation of mental impairments.

* * * * *
    (e) Documenting application of the technique. * * * The following 
rules apply:
    (1) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  416.1015(c)(1), the State agency medical 
or psychological consultant has overall responsibility for assessing 
medical severity. At the initial level in claims adjudicated under the 
procedures in part 405 of this chapter, a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) has overall 
responsibility for assessing medical severity. A State agency 
disability examiner may assist in preparing the standard document. 
However, our medical or psychological consultant (or the medical or 
psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter) 
must review and sign the document to attest that it is complete and 
that he or she is responsible for its content, including the findings 
of fact and any discussion of supporting evidence.
    (2) When a State agency disability examiner makes the determination 
alone as provided in Sec.  416.1015(c)(3), the State agency disability 
examiner has overall responsibility for assessing

[[Page 62683]]

medical severity and for completing and signing the standard document.
    (3) When a disability hearing officer makes a reconsideration 
determination as provided in Sec.  416.1015(c)(4), the determination 
must document application of the technique, incorporating the 
disability hearing officer's pertinent findings and conclusions based 
on this technique.
* * * * *

0
14. Amend Sec.  416.927 by revising paragraph (f)(1), and revising 
paragraphs (f)(2)(i) and (f)(2)(ii) to read as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) may make 
the determination of disability together with a State agency disability 
examiner or provide one or more medical opinions to a State agency 
disability examiner when the disability examiner makes the initial or 
reconsideration determination alone (see Sec.  416.1015(c)). The 
following rules apply:
    (i) When a State agency medical or psychological consultant makes 
the determination together with a State agency disability examiner at 
the initial or reconsideration level of the administrative review 
process as provided in Sec.  416.1015(c)(1), he or she will consider 
the evidence in your case record and make findings of fact about the 
medical issues, including, but not limited to, the existence and 
severity of your impairment(s), the existence and severity of your 
symptoms, whether your impairment(s) meets or medically equals the 
requirements for any impairment listed in appendix 1 to subpart P of 
part 404 of this chapter, and your residual functional capacity. These 
administrative findings of fact are based on the evidence in your case 
but are not in themselves evidence at the level of the administrative 
review process at which they are made.
    (ii) When a State agency disability examiner makes the initial 
determination alone as provided in Sec.  416.1015(c)(3), he or she may 
obtain the opinion of a State agency medical or psychological 
consultant about one or more of the medical issues listed in paragraph 
(f)(1)(i) of this section. In these cases, the State agency disability 
examiner will consider the opinion of the State agency medical or 
psychological consultant as opinion evidence and weigh this evidence 
using the relevant factors in paragraphs (a) through (e) of this 
section.
    (iii) When a State agency disability examiner makes a 
reconsideration determination alone as provided in Sec.  
416.1015(c)(3), he or she will consider findings made by a State agency 
medical or psychological consultant at the initial level of the 
administrative review process and any opinions provided by such 
consultants at the initial and reconsideration levels as opinion 
evidence and weigh this evidence using the relevant factors in 
paragraphs (a) through (e) of this section.
    (2) * * *
    (i) Administrative law judges are not bound by any findings made by 
State agency medical or psychological consultants, or other program 
physicians or psychologists. State agency medical and psychological 
consultants and other program physicians, psychologists, and other 
medical specialists are highly qualified physicians, psychologists, and 
other medical specialists who are also experts in Social Security 
disability evaluation. Therefore, administrative law judges must 
consider findings and other opinions of State agency medical and 
psychological consultants and other program physicians, psychologists, 
and other medical specialists as opinion evidence, except for the 
ultimate determination about whether you are disabled (see Sec.  
416.912(b)(8)).
    (ii) When an administrative law judge considers findings of a State 
agency medical or psychological consultant or other program physician, 
psychologist, or other medical specialist, the administrative law judge 
will evaluate the findings using the relevant factors in paragraphs (a) 
through (e) of this section, such as the consultant's medical specialty 
and expertise in our rules, the supporting evidence in the case record, 
supporting explanations the medical or psychological consultant 
provides, and any other factors relevant to the weighing of the 
opinions. Unless a treating source's opinion is given controlling 
weight, the administrative law judge must explain in the decision the 
weight given to the opinions of a State agency medical or psychological 
consultant or other program physician, psychologist, or other medical 
specialist, as the administrative law judge must do for any opinions 
from treating sources, nontreating sources, and other nonexamining 
sources who do not work for us.
* * * * *


0
15. Amend Sec.  416.929 by removing ``Sec. Sec.  416.912(b)(2) through 
(6)'' in the third sentence of paragraph (a) and adding ``Sec. Sec.  
416.912(b)(2) through (8)'' in its place, and by revising the third 
sentence of paragraph (b), to read as follows:


Sec.  416.929  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  416.1414 through 416.1418 and in fully 
favorable determinations made by State agency disability examiners 
alone under Sec.  416.1015(c)(3)), a State agency medical or 
psychological consultant or other medical or psychological consultant 
designated by the Commissioner (or a medical or psychological expert 
(as defined in Sec.  405.5 of this chapter) in claims adjudicated under 
the procedures in part 405 of this chapter) directly participates in 
determining whether your medically determinable impairment(s) could 
reasonably be expected to produce your alleged symptoms. * * *
* * * * *


0
16. Revise Sec.  416.946(a) to read as follows:


Sec.  416.946  Responsibility for assessing your residual functional 
capacity.

    (a) Responsibility for assessing residual functional capacity at 
the State agency. When a State agency medical or psychological 
consultant and a State agency disability examiner make the disability 
determination as provided in Sec.  416.1015(c)(1), a State agency 
medical or psychological consultant(s) (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) is 
responsible for assessing your residual functional capacity. When a 
State agency disability examiner makes a disability determination alone 
as provided in Sec.  416.1015(c)(3), the disability examiner is 
responsible for assessing your residual functional capacity.
* * * * *

Subpart J--[Amended]

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

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


0
18. Amend Sec.  416.1002 by adding a definition of ``compassionate 
allowance'' in alphabetical order to read as follows:

[[Page 62684]]

Sec.  416.1002  Definitions.

* * * * *
    Compassionate allowance means a determination or decision we make 
under a process that identifies for expedited handling claims that 
involve impairments that invariably qualify under the Listing of 
Impairments in appendix 1 to subpart P of part 404 of this chapter 
based on minimal, but sufficient, objective medical evidence.
* * * * *

0
19. Amend Sec.  416.1015 by revising the introductory text of paragraph 
(c), removing the word ``or'' at the end of paragraph (c)(2), 
redesignating paragraph (c)(3) as paragraph (c)(4), and adding a new 
paragraph (c)(3) to read as follows:


Sec.  416.1015  Making disability determinations.

* * * * *
    (c) Disability determinations will be made by:
* * * * *
    (3) A State agency disability examiner alone if you are not a child 
(a person who has not attained age 18), and the claim is adjudicated 
under the quick disability determination process (see Sec.  416.1019) 
or as a compassionate allowance (see Sec.  416.1002), and the initial 
or reconsidered determination is fully favorable to you. This paragraph 
will no longer be effective on November 12, 2013 unless we terminate it 
earlier or extend it beyond that date by publication of a final rule in 
the Federal Register; or
* * * * *

0
20. Amend Sec.  416.1019 by revising paragraphs (b) introductory text, 
(b)(1), (b)(2), and (c) to read as follows:


Sec.  416.1019  Quick disability determination process.

* * * * *
    (b) If we refer a claim to the State agency for a quick disability 
determination, a designated quick disability determination examiner 
must do all of the following:
    (1) Subject to the provisions in paragraph (c) of this section, 
make the disability determination after consulting with a State agency 
medical or psychological consultant if the State agency disability 
examiner determines consultation is appropriate or if consultation is 
required under Sec.  416.926(c). The State agency may certify the 
disability determination forms to us without the signature of the 
medical or psychological consultant.
    (2) Make the quick disability determination based only on the 
medical and nonmedical evidence in the file.
* * * * *
    (c) If the quick disability determination examiner cannot make a 
determination that is fully favorable, or if there is an unresolved 
disagreement between the disability examiner and the medical or 
psychological consultant (except when a disability examiner makes the 
determination alone under Sec.  416.1015(c)(3)), the State agency will 
adjudicate the claim using the regularly applicable procedures in this 
subpart.

[FR Doc. 2010-25502 Filed 10-12-10; 8:45 am]
BILLING CODE 4191-02-P