How We Collect and Consider Evidence of Disability, 20282-20287 [2011-8388]

Agencies

• Social Security Administration

[Federal Register Volume 76, Number 70 (Tuesday, April 12, 2011)]
[Proposed Rules]
[Pages 20282-20287]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8388]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2010-0044]
RIN 0960-AG89


How We Collect and Consider Evidence of Disability

AGENCY: Social Security Administration (SSA).

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to modify the requirement to recontact your medical 
source(s) first when we need to resolve an inconsistency or 
insufficiency in the evidence he or she provided. Depending on the 
nature of the inconsistency or insufficiency, there may be other, more 
appropriate sources from whom we could obtain the information we need. 
By giving adjudicators more flexibility in determining how best to 
obtain this information, we will be able to make a determination or 
decision on disability claims more quickly and efficiently in certain 
situations. Eventually, our need to recontact your medical source(s) in 
many situations will be significantly reduced as a result of our 
efforts to improve the evidence collection process through the 
increased utilization of Health Information Technology (HIT).

DATES: To be sure that we consider your comments, we must receive them 
by June 13, 2011.

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-2010-0044 so 
that we may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at https://www.regulations.gov. Use the Search function to find docket number 
SSA-2010-0044. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.

[[Page 20283]]

    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations, Social 
Security Administration, 107 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 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: Brian Rudick, Office of Regulations, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7102. 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:

Explanation of Changes

    Sometimes the evidence we receive from your treating physician, 
psychologist, or other medical source is inadequate for us to determine 
whether you are disabled; that is, we either do not have sufficient 
evidence to determine whether you are disabled or if after weighing the 
evidence we determine we cannot reach a conclusion about whether you 
are disabled.
    Our current regulations describe what actions we will take in these 
situations. Currently, we will first recontact your medical source to 
determine whether the additional information we need is readily 
available, unless we know from past experience that the source either 
cannot or will not provide the necessary findings. We will seek 
additional evidence or clarification from your medical source when the 
report from your medical source contains a conflict or ambiguity that 
must be resolved, does not contain all the necessary information, or 
does not appear to be based on medically acceptable clinical and 
laboratory diagnostic techniques. We may do this by requesting copies 
of your medical source's records, a new report, or a more detailed 
report from your medical source, including your treating source, or by 
telephoning your medical source. If the information we need is not 
readily available from your medical source, we may request additional 
medical records, ask you to undergo a consultative examination (CE) at 
our expense, or ask you or others for more information. Sections 
404.1512(e), 404.1527(c), 416.912(e), and 416.927(c).
    We are currently engaged in efforts to dramatically improve the 
evidence collection process, particularly as it pertains to obtaining 
records from your medical source(s). Through the increased utilization 
of HIT, we will be able to obtain medical records from your source(s) 
electronically in a readable and organized format. HIT will also enable 
our adjudicators to access your complete records upon their receipt of 
a claim for adjudication. By obtaining all of the records from your 
medical source(s) at the outset of a claim and in a format that will 
speed our review of the evidence, we will be able to significantly 
reduce the need to recontact your source(s) for additional records or 
clarification. HIT will also reduce the number of CEs we might 
otherwise need when information from your medical source(s) is 
inadequate for us to determine disability.
    In the meantime, we propose to modify the requirement in Sec. Sec.  
404.1512(e) and 416.912(e) that we first recontact your medical 
source(s) when we need to resolve an inconsistency or insufficiency in 
the evidence he or she provided. Under our proposed rule, after we have 
made every reasonable effort to help you get medical reports from your 
medical sources,\1\ we will determine the best way to resolve the 
inconsistency or insufficiency. We will do that by taking one or more 
of several actions, including recontacting your medical source(s) when 
we need to resolve an inconsistency or insufficiency in the evidence he 
or she provided.
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    \1\ Sections 404.1512(d) and 416.912(d) require us to ``make 
every reasonable effort'' to develop ``your complete medical history 
for at least the 12 months preceding the month in which you file 
your application unless there is a reason to believe that 
development of an earlier period is necessary or unless you say that 
your disability began less than 12 months before you filed your 
application.'' See Sec. Sec.  404.1512(d)(1) and 416.912(d)(1) for 
how we define ``every reasonable effort.''
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    Although we propose to eliminate the requirement that we recontact 
your medical source(s) first when we need to resolve an inconsistency 
or insufficiency in the evidence he or she provided, we expect that our 
adjudicators would continue to recontact your medical source(s) when we 
believe such recontact is the most effective and efficient way to 
resolve an inconsistency or insufficiency. For example, if we have a 
report from one of your medical sources that contains a functional 
assessment of your physical capacity for work, but no clinical or 
objective findings in support, we expect that the adjudicator would 
first contact that source to find out the reasons for his or her 
assessment. Similarly, when the medical evidence we receive from one of 
your medical sources contains an internal inconsistency about an issue 
relevant to our disability determination, we would also expect that our 
adjudicator would contact that source to resolve the inconsistency.
    However, our adjudicative experience has shown that, in some cases, 
there are other, more effective, ways to obtain the additional 
information we need. It is sometimes inefficient and ineffective to 
require our adjudicators to first contact your medical source(s). For 
example, when your medical source(s) does not specialize in the area of 
the impairment you have alleged and we need more evidence about its 
current severity, we may supplement the evidence in your case record by 
obtaining a CE with a specialist (such as a pulmonologist) who can 
perform the type of examination we need in order to determine whether 
you are disabled under our rules.
    In addition, there are times when issues revealed in the medical 
evidence are better clarified by someone other than your medical 
source(s). For example, if the medical evidence contains a reference 
that indicates you returned to work, it may be more appropriate to 
contact you to verify this information and to obtain any related 
information, such as your schedule, earnings, and job duties, rather 
than recontacting your medical source(s). The current requirement to 
recontact your medical source(s) first can sometimes cause a delay in 
the adjudication of your case.
    There are situations where we need the flexibility to determine how 
best to resolve inconsistencies and insufficiencies in the evidence. 
This proposed change would give our adjudicators the discretion to 
determine the best way to address these issues and obtain the needed 
information more quickly and efficiently. In these situations, we would 
shorten case processing time and conserve resources.
    This proposed change would not alter our rules in Sec. Sec.  
404.1512(d) and 416.912(d) that require us to make every reasonable 
effort to help you get medical reports from your medical sources when 
you give us permission to request the reports. Rather, the proposed 
change would apply only after we have made those reasonable efforts. In 
addition to removing the requirement to recontact medical sources first 
in all situations, we propose to reorganize and clarify our rules about 
how we would consider and obtain additional evidence so that these 
rules are easier to understand and apply. Specifically, we propose to 
combine the guidance in current Sec. Sec.  404.1512(e), 404.1527(c), 
416.912(e),

[[Page 20284]]

and 416.927(c) in a new section, proposed Sec. Sec.  404.1520b and 
416.920b. In this new section, we will:
     Explain when we consider evidence to be ``insufficient'' 
or ``inconsistent'';
     Explain that if all the evidence we receive, including any 
medical opinion(s), is consistent and there is sufficient evidence for 
us to determine whether you are disabled, we will make a determination 
or decision based on that evidence;
     Explain that if any of the evidence in your case record, 
including any medical opinion(s), is inconsistent, we will weigh the 
relevant evidence and decide if we can determine whether you are 
disabled based on the evidence we have;
     Explain that if the evidence is consistent but we have 
insufficient evidence to determine whether you are disabled or if after 
weighing the evidence we determine we cannot reach a conclusion about 
whether you are disabled, we will determine the best way to resolve any 
inconsistency or insufficiency;
     Explain that the action(s) we take will depend on the 
nature of the inconsistency or insufficiency;
     List the action(s) we will take to resolve the 
inconsistency or insufficiency and explain that we may not take all of 
the actions listed;
     Explain that if we cannot resolve the inconsistency or 
insufficiency, we will make a determination or decision based on the 
evidence we have.
    Because we are proposing to remove current Sec. Sec.  404.1512(e), 
404.1527(c), 416.912(e), and 416.927(c), we would redesignate the 
paragraphs that follow. We would revise cross-references in Sec. Sec.  
404.1512(b)(6), 404.1545(a)(3), 416.912(b)(6), and 416.945(a)(3) to 
reflect these redesignations. We would also add cross-references to 
proposed Sec. Sec.  404.1520b and 416.920b in Sec. Sec.  404.1519a, 
404.1520, 404.1527, 416.919a, 416.920, and 416.927.
    Current Sec. Sec.  404.1512(f) and 416.912(f) (proposed 
redesignated Sec. Sec.  404.1512(e) and 416.912(e)), state, ``If the 
information we need is not readily available from the records of your 
medical treatment source, or we are unable to seek clarification from 
your medical source, we will ask you to attend one or more consultative 
examinations at our expense.'' The phrase ``not readily available from 
the records of your medical treatment source'' could be read to require 
recontact with your medical sources first, so we propose to revise this 
language to say that we may ask you to attend one or more consultative 
examinations at our expense. Similarly, we would revise the first 
sentence in current Sec. Sec.  404.1519a(a)(1) and 416.919a(a)(1) 
(proposed redesignated Sec. Sec.  404.1519a(a) and 416.919a(a)) because 
it could also be read to require recontact first.
    We would also remove from the list of situations which may require 
a CE in Sec. Sec.  404.1519a(b) and 416.919a(b) the example that 
indicates that we could not resolve the inconsistency or insufficiency 
by recontacting your medical source. We also propose to combine the 
guidance in current Sec. Sec.  404.1519a(a)(2) and (b) and 
416.919a(a)(2) and (b), because both of these paragraphs explain that 
we will use results from CEs to resolve inconsistencies and 
insufficiencies.

Other Changes

    We propose to make a number of other editorial corrections and non-
substantive changes to the current rules. We are proposing these 
changes for clarity and consistency and to correct minor grammatical 
errors. For example, we propose to revise some language from passive to 
active voice. Where the current rules refer to a ``determination,'' we 
propose to add the term ``or decision,'' as appropriate, to clarify 
that these regulations apply to determinations and decisions at all 
levels of our administrative review process.
    Our current title II rules state, ``you must furnish medical and 
other evidence * * * about your medical impairment(s) and, if material 
to the determination of whether you are blind or disabled, its effect 
on your ability to work on a sustained basis.'' Section 404.1512(a). 
Our current title XVI rules state, ``If material to the determination 
whether you are blind or disabled, medical and other evidence must be 
furnished about the effects of your impairment(s) on your ability to 
work, or if you are a child, on your functioning, on a sustained 
basis.'' Section 416.912(a). We propose to remove the words ``blind 
or'' from these two sections because your ability to work is not 
material to a determination or decision of whether you have blindness 
under titles II and XVI of the Social Security Act. This change 
reflects our current policy and operational practice with respect to 
the evaluation of disability claims involving blindness.

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 is 
not 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?

When will we start to use these rules?

    We will not use these rules until we evaluate the public comments 
we receive on them, determine whether they should be issued as final 
rules, and issue final rules in the Federal Register. If we publish 
final rules, we will explain in the preamble how we will apply them, 
and summarize and respond to the public comments. Until the effective 
date of any final rules, we will continue to use our current rules.

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules meet the requirements for a 
significant regulatory action under Executive Order 12866 as 
supplemented by Executive Order 13563. Thus, they were reviewed by OMB.

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 because they would affect only individuals. Accordingly, a 
regulatory flexibility analysis as provided in the Regulatory 
Flexibility Act, as amended, is not required.

Paperwork Reduction Act

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

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006, 
Supplemental Security Income)

[[Page 20285]]

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

Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 
subpart P of part 404 and subpart I of part 416 of chapter III of title 
20 Code of Federal Regulations as set forth below:

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

Subpart 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), 
(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).

    2. Amend Sec.  404.1512 by:
    a. Revising the third sentence of paragraph (a);
    b. In paragraph (b)(6), removing the phrase ``(see Sec.  
404.1527(f)(1)(ii));'' and adding in its place the phrase ``. See Sec.  
404.1527(e)(2) through (3).'',
    c. Removing paragraph (e),
    e. Redesignating paragraph (f) as (e)
    f. Revising the heading and first sentence of newly redesignated 
paragraph (e), and g. Redesignating paragraph (g) as (f).
    The revisions read as follows:


Sec.  404.1512  Evidence.

    (a) * * * This means that you must furnish medical and other 
evidence that we can use to reach conclusions about your medical 
impairment(s) and, if material to the determination of whether you are 
disabled, its effect on your ability to work on a sustained basis. * * 
*
* * * * *
    (e) Obtaining a consultative examination. We may ask you to attend 
one or more consultative examinations at our expense. * * *
* * * * *
    3. Amend Sec.  404.1519a by
    a. Redesignating paragraph (a)(1) as paragraph (a) and revising the 
newly redesignated paragraph (a),
    b. Removing paragraph (a)(2),
    b. Revising paragraph (b) introductory text,
    e. Adding ``or'' after the semi-colon in paragraph (b)(3),
    E. Removing paragraph (b)(4), and
    f. Redesignating paragraph (b)(5) as (b)(4).
    The revisions read as follows:


Sec.  404.1519a  When we will purchase a consultative examination and 
how we will use it.

    (a) General. If we cannot get the information we need from your 
medical sources, we may decide to purchase a consultative examination. 
See Sec.  404.1512 for the procedures we will follow to obtain evidence 
from your medical sources and Sec.  404.1520b for how we consider 
evidence. Before purchasing a consultative examination, we will 
consider not only existing medical reports, but also the disability 
interview form containing your allegations as well as other pertinent 
evidence in your file.
    (b) Situations which may require a consultative examination. We may 
purchase a consultative examination to try to resolve an inconsistency 
in the evidence, or when the evidence as a whole is insufficient to 
allow us to make a determination or decision on your claim. Some 
examples of when we might purchase a consultative examination to secure 
needed medical evidence, such as clinical findings, laboratory tests, a 
diagnosis, or prognosis, include but are not limited to:
* * * * *
    4. Amend Sec.  404.1520 by adding a sentence to the end of 
paragraph (a)(3) to read as follows:


Sec.  404.1520  Evaluation of disability in general.

    (a) * * *
    (3) * * * See Sec.  404.1520b.
* * * * *
    5. Add Sec.  404.1520b to read as follows:


Sec.  404.1520b  How we consider evidence.

    After we review all of the evidence relevant to your claim, 
including medical opinions (see Sec.  404.1527), we make findings about 
what the evidence shows. In some situations, we may not be able to make 
these findings because the evidence in your case record is insufficient 
or inconsistent. We consider evidence to be insufficient when it does 
not contain all the information we need to make our determination or 
decision. We consider evidence to be inconsistent when it conflicts 
with other evidence, contains an internal conflict, is ambiguous, or 
when the medical evidence does not appear to be based on medically 
acceptable clinical or laboratory diagnostic techniques. If the 
evidence in your case record is insufficient or inconsistent, we may 
need to take additional actions, as we explain in paragraphs (b) and 
(c) of this section.
    (a) If all of the evidence we receive, including all medical 
opinion(s), is consistent and there is sufficient evidence for us to 
determine whether you are disabled, we will make our determination or 
decision based on that evidence.
    (b) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent, we will weigh the relevant 
evidence and see whether we can determine whether you are disabled 
based on the evidence we have.
    (c) If the evidence is consistent but we have insufficient evidence 
to determine whether you are disabled or if after weighing the evidence 
we determine we cannot reach a conclusion about whether you are 
disabled, we will determine the best way to resolve the inconsistency 
or insufficiency. The action(s) we take will depend on the nature of 
the inconsistency or insufficiency. We will try to resolve the 
inconsistency or insufficiency by taking any one or more of the actions 
listed in paragraphs (c)(1) through (c)(4) of this section. We might 
not take all of the actions listed below. We will consider any 
additional evidence we receive together with the evidence we already 
have.
    (1) We may recontact your treating physician, psychologist, or 
other medical source. We may choose not to seek additional evidence or 
clarification from a medical source if we know from experience that the 
source either cannot or will not provide the necessary evidence. If we 
obtain medical evidence over the telephone, we will send the telephone 
report to the source for review, signature, and return;
    (2) We may request additional existing records (see Sec.  
404.1512);
    (3) We may ask you to undergo a consultative examination at our 
expense (see Sec. Sec.  404.1517 through 404.1519t); or
    (4) We may ask you or others for more information.
    (d) When there are inconsistencies in the evidence that we cannot 
resolve or when, despite efforts to obtain

[[Page 20286]]

additional evidence, the evidence is insufficient to determine whether 
you are disabled, we will make a determination or decision based on the 
evidence we have.
    6. Amend Sec.  404.1527 as follows:
    a. Revise paragraph (b);
    b. Remove paragraph (c);
    c. Redesignate paragraphs (d) through (f) as (c) through (e);
    d. In newly redesignated paragraph (c) remove ``(d)(2)'' and add in 
its place ``(c)(2)'';
    e. In newly redesignated paragraph (c)(2) remove ``(d)(2)(i) and 
(d)(2)(ii)'' and add in its place ``(c)(2)(i) and (c)(2)(ii)'' and 
remove ``(d)(3) through (d)(6)'' and add in its place ``(c)(3) through 
(c)(6)'';
    f. In newly redesignated paragraph (d)(3) remove ``(e)(1) and 
(e)(2)'' and add in its place ``(d)(1) and (d)(2)'';
    g. In newly redesignated paragraph (e) remove ``(a) through (e)'' 
and add in its place ``(a) through (d)'';
    h. In newly redesignated paragraph (e)(2)(ii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''; and
    i. In newly redesignated paragraph (e)(2)(iii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''.
    The revision reads as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (b) How we consider medical opinions. In determining whether you 
are disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive. See 
Sec.  404.1520b.
* * * * *
    7. Amend Sec.  404.1545 by revising the fifth sentence of paragraph 
(a)(3) to read as follows:


Sec.  404.1545  Your residual functional capacity.

    (a) * * *
    (3) * * * (See Sec. Sec.  404.1512(d) through (e).) * * *
* * * * *

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

Subpart I--[Amended]

    8. 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 1383(b); 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).

    9. Amend Sec.  416.912 by:
    a. Revising the third sentence of paragraph (a),
    b. In paragraph (b)(6), removing the phrase (see Sec.  
416.927(f)(1)(ii)); and adding in its place the phrase ``See Sec.  
416.927(e)(2)-(3)'',
    c. By removing paragraph (e),
    d. Redesignating paragraph (f) as (e),
    e. Revising the heading and first sentence of the newly 
redesignated paragraph (e), and
    f. Redesignating paragraph (g) as (f).
    The revisions read as follows:


Sec.  416.912  Evidence.

    (a) * * * If material to the determination whether you are 
disabled, medical and other evidence must be furnished about the 
effects of your impairment(s) on your ability to work, or if you are a 
child, on your functioning, on a sustained basis. * * *
* * * * *
    (e) Obtaining a consultative examination. We may ask you to attend 
one or more consultative examinations at our expense. * * *
* * * * *
    10. Amend Sec.  416.919a by:
    a. Redesignating paragraph (a)(1) as (a) and revising the newly 
redesignated paragraph (a),
    b. Removing paragraph (a)(2),
    c. Revising paragraph (b) introductory text,
    d. Adding ``or'' after the semi-colon in paragraph (b)(3),
    e. Removing paragraph (b)(4), and
    f. Redesignating paragraph (b)(5) as (b)(4).
    The revisions read as follows:


Sec.  416.919a  When we will purchase a consultative examination and 
how we will use it.

    (a) General. If we cannot get the information we need from your 
medical sources, we may decide to purchase a consultative examination. 
See Sec.  416.912 for the procedures we will follow to obtain evidence 
from your medical sources and Sec.  416.920b for how we consider 
evidence. Before purchasing a consultative examination, we will 
consider not only existing medical reports, but also the disability 
interview form containing your allegations as well as other pertinent 
evidence in your file.
    (b) Situations which may require a consultative examination. We may 
purchase a consultative examination to try to resolve an inconsistency 
in the evidence or when the evidence as a whole is insufficient to 
support a determination or decision on your claim. Some examples of 
when we might purchase a consultative examination to secure needed 
medical evidence, such as clinical findings, laboratory tests, a 
diagnosis, or prognosis, include but are not limited to:
* * * * *
    11. Amend Sec.  416.920 by adding a sentence to the end of 
paragraph (a)(3) to read as follows:


Sec.  416.920  Evaluation of disability in general.

    (a) * * *
    (3) * * * See Sec.  416.920b.
* * * * *
    12. Add Sec.  416.920b to read as follows:


Sec.  416.920b  How we consider evidence.

    After we review all of the evidence relevant to your claim, 
including medical opinions (see Sec.  416.927), we make findings about 
what the evidence shows. In some situations, we may not be able to make 
these findings because the evidence in your case record is insufficient 
or inconsistent. We consider evidence to be insufficient when it does 
not contain all the information we need to make our determination or 
decision. We consider evidence to be inconsistent when it conflicts 
with other evidence, contains an internal conflict, is ambiguous, or 
when the medical evidence does not appear to be based on medically 
acceptable clinical or laboratory diagnostic techniques. If the 
evidence in your case record is insufficient or inconsistent, we may 
need to take additional actions, as we explain in paragraphs (b) and 
(c) of this section.
    (a) If all of the evidence we receive, including all medical 
opinion(s), is consistent and there is sufficient evidence for us to 
determine whether you are disabled, we will make our determination or 
decision based on that evidence.
    (b) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent, we will weigh the relevant 
evidence and see whether we can determine whether you are disabled 
based on the evidence we have.
    (c) If the evidence is consistent but we have insufficient evidence 
to determine whether you are disabled or if after weighing the evidence 
we determine we cannot reach a conclusion about whether you are 
disabled, we will determine the best way to resolve the inconsistency 
or insufficiency. The action(s) we take will depend on the nature of 
the inconsistency or insufficiency. We will try to resolve the 
inconsistency or insufficiency by taking any one or more of the actions 
listed in paragraphs (c)(1) through (c)(4) of this section. We might 
not take all of the

[[Page 20287]]

actions listed below. We will consider any additional evidence we 
receive together with the evidence we already have.
    (1) We may recontact your treating physician, psychologist, or 
other medical source. We may choose not to seek additional evidence or 
clarification from a medical source if we know from experience that the 
source either cannot or will not provide the necessary evidence. If we 
obtain medical evidence over the telephone, we will send the telephone 
report to the source for review, signature, and return;
    (2) We may request additional existing records (see Sec.  416.912);
    (3) We may ask you to undergo a consultative examination at our 
expense (see Sec. Sec.  416.917 through 416.919t); or
    (4) We may ask you or others for more information.
    (d) When there are inconsistencies in the evidence that we cannot 
resolve or when, despite efforts to obtain additional evidence, the 
evidence is insufficient to determine whether you are disabled, we will 
make a determination or decision based on the evidence we have.
    13. Amend Sec.  416.927 as follows:
    a. Revise paragraph (b);
    b. Remove paragraph (c);
    c. Redesignate paragraphs (d) through (f) as (c) through (e);
    d. In newly redesignated paragraph (c) remove ``(d)(2)'' and add in 
its place ``(c)(2)'';
    e. In newly redesignated paragraph (c)(2) remove ``(d)(2)(i) and 
(d)(2)(ii)'' and add in its place ``(c)(2)(i) and (c)(2)(ii)'' and 
remove ``(d)(3) through (d)(6)'' and add in its place ``(c)(3) through 
(c)(6)'';
    f. In newly redesignated paragraph (d)(3) remove ``(e)(1) and 
(e)(2)'' and add in its place ``(d)(1) and (d)(2)'';
    g. In newly redesignated paragraph (e) remove ``(a) through (e)'' 
and add in its place ``(a) through (d)'';
    h. In newly redesignated paragraph (e)(2)(ii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''; and
    i. In newly redesignated paragraph (e)(2)(iii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''.
    The revision reads as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (b) How we consider medical opinions. In determining whether you 
are disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive. See 
Sec.  416.920b.
* * * * *
    14. Amend Sec.  416.945 by revising the fifth sentence of paragraph 
(a)(3) to read as follows:


Sec.  416.945  Your residual functional capacity.

    (a) * * *
    (3) * * * (See Sec. Sec.  416.912(d) through (e).) * * *
* * * * *
[FR Doc. 2011-8388 Filed 4-11-11; 8:45 am]
BILLING CODE 4191-02-P