Social Security Ruling, SSR 18-3p; Titles II and XVI: Failure To Follow Prescribed Treatment, 49616-49621 [2018-21359]

Download as PDF 49616 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES1 written questions to be answered under oath or penalty of perjury). The decision to call on the services of an ME is always at the ALJ’s discretion. Neither the claimant nor his or her representative can require an ALJ to call on the services of an ME to assist in inferring the date that the claimant first met the statutory definition of disability. The Appeals Council may review the ALJ’s finding regarding when the claimant first met the statutory definition of disability, or any other finding of the ALJ, by granting a claimant’s request for review or on its own motion authority.22 The Appeals Council may also exercise its removal authority and assume responsibility of the request for hearing. The Appeals Council will review a case if there is an error of law; the actions, findings, or conclusions of the ALJ are not supported by substantial evidence; there appears to be an abuse of discretion by the ALJ; or there is a broad policy or procedural issue that may affect the general public interest.23 The Appeals Council will also review a case if it receives additional evidence that meets certain requirements.24 If the Appeals Council grants review, it will issue its own decision or return the case to the ALJ for further proceedings, which may include obtaining evidence regarding when the claimant first met the statutory definition of disability. If the Appeals Council issues a decision, it will consider the totality of the evidence (subject to the limitations on Appeals Council consideration of additional evidence in 20 CFR 404.970 and 416.1470) and establish the date that the claimant first met the statutory definition of disability, which is both supported by the evidence and consistent with the nature of the impairment(s). 3. How do we determine when a claimant with more than one type of impairment first met the statutory definition of disability? If a claimant has a traumatic impairment and a non-traumatic or exacerbating and remitting impairment, we will consider all of the impairments in combination when determining when the claimant first met the statutory definition of disability. We will consider the date of the traumatic event as well as the evidence pertaining to the non-traumatic or exacerbating and remitting impairment and will determine the date on which the 22 20 CFR 404.969, 416.1469. CFR 404.970, 416.1470. 24 20 CFR 404.970(a)(5), (b) and 416.1470(a)(5), (b). 23 20 VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 combined impairments first caused the claimant to meet the statutory definition of disability. II. What are some special considerations related to the EOD? A. How does work activity affect our determination of the EOD? We consider the date the claimant stopped performing substantial gainful activity (SGA) when we establish the EOD. SGA is work that involves doing significant and productive physical or mental duties and is done (or intended) for pay or profit.25 If medical and other evidence indicates the claimant’s disability began on the last day he or she performed SGA, we can establish an EOD on that date, even if the claimant worked a full day. Generally, we may not determine a claimant’s EOD to be before the last day that he or she performed SGA. We may, however, determine a claimant’s EOD to be before or during a period that we determine to be an unsuccessful work attempt (UWA). A UWA is an effort to do work that discontinues or reduces to the non-SGA level after a short time (no more than six months) because of the impairment or the removal of special conditions related to the impairment that are essential for the further performance of work.26 B. May we determine the EOD to be in a previously adjudicated period? Yes, if our rules for reopening are met 27 and the claimant meets the statutory definition of disability and the applicable non-medical requirements during the previously adjudicated period.28 Reopening, however, is at the discretion of the adjudicator.29 III. When is this SSR applicable? This SSR is applicable on October 2, 2018. We will use this SSR beginning on its applicable date. We will apply this SSR to new applications filed on or after the applicable date of the SSR and to claims that are pending on and after the applicable date. This means that we will use this SSR on and after its applicable date, in any case in which we make a determination or decision. We expect 25 20 26 20 CFR 404.1510, 416.910. CFR 404.1574(a)(1), (c) and 416.974(a)(1), (c). 27 20 CFR 404.988, 404.989, 416.1488, 416.1489. also Program Operations Manual System (POMS) DI 25501.250.A.5 (explaining when a period of disability may begin during a previously adjudicated period). 29 20 CFR 404.988, 416.1488 (stating that ‘‘[a] determination, revised determination, decision, or revised decision may be reopened . . .’’) (emphasis added). 28 See PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 that Federal courts will review our final decisions using the rules that were in effect at the time we issued the decisions. If a court reverses our final decision and remands a case for further administrative proceedings after the applicable date of this SSR, we will apply this SSR to the entire period at issue in appropriate cases when we make a decision after the court’s remand. [FR Doc. 2018–21368 Filed 10–1–18; 8:45 am] BILLING CODE 4191–02–P SOCIAL SECURITY ADMINISTRATION [Docket No. SSA–2016–0034] Social Security Ruling, SSR 18–3p; Titles II and XVI: Failure To Follow Prescribed Treatment Social Security Administration. Notice of Social Security Ruling AGENCY: ACTION: (SSR). We are providing notice of SSR 18–3p. This Ruling provides guidance about how we apply our failure to follow prescribed treatment policy in disability and blindness claims under Titles II and XVI of the Social Security Act (Act). DATES: We will apply this notice on October 29, 2018. FOR FURTHER INFORMATION CONTACT: Dan O’Brien, Office of Vocational, Evaluation, and Process Policy in the Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235–6401, 410–597–1632. For information on eligibility or filing for benefits, call our national toll-free number at 1–800–772– 1213, or visit our internet site, Social Security online, at https:// www.socialsecurity.gov. SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are publishing it in accordance with 20 CFR 402.35(b)(1). We use SSRs to make available to the public precedential decisions relating to the Federal old age, survivors, disability, supplemental security income, and special veterans benefits programs. We may base SSRs on determinations or decisions made in our administrative review process, Federal court decisions, decisions of our Commissioner, opinions from our Office of the General Counsel, or other interpretations of law and regulations. Although SSRs do not have the same force and effect as law, they are binding on all components of the Social Security Administration in accordance with 20 SUMMARY: E:\FR\FM\02OCN1.SGM 02OCN1 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices CFR 402.35(b)(1), and are binding as precedents in adjudicating cases. This SSR will remain in effect until we publish a notice in the Federal Register that rescinds it, or until we publish a new SSR in the Federal Register that rescinds and replaces or modifies it. (Catalog of Federal Domestic Assistance, Programs Nos. 96.001, Social Security— Disability Insurance; 96.002, Social Security— Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006—Supplemental Security Income.) Nancy A. Berryhill, Acting Commissioner of Social Security. Policy Interpretation Ruling Titles II and XVI: Failure To Follow Prescribed Treatment This Social Security Ruling (SSR) rescinds and replaces SSR 82–59: ‘‘Titles II and XVI: Failure to Follow Prescribed Treatment.’’ Purpose: To provide guidance on how we apply our failure to follow prescribed treatment policy in disability and blindness claims under titles II and XVI of the Social Security Act (Act). Citations (Authority): Sections 216(i), 223(d) and (f), and 1614(a) of the Act, as amended; 20 CFR 404.1530 and 416.930. Dates: We will apply this notice on October 29, 2018.1 amozie on DSK3GDR082PROD with NOTICES1 Overview A. Background B. When we decide whether the failure to follow prescribed treatment policy may apply in an initial claim Condition 1: The individual is otherwise entitled to disability or statutory blindness benefits under titles II or XVI of the Act Condition 2: There is evidence that an individual’s own medical source(s) prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based Condition 3: There is evidence that the individual did not follow the prescribed treatment C. How we will make a failure to follow prescribed treatment determination Assessment 1: We assess whether the 1 Our adjudicators will apply this ruling when we make determinations and decisions on or after October 29, 2018. When a Federal court reviews our final decision in a claim, we expect the court will review the final decision using the rules that were in effect at the time we issued the decision under review. If a court finds reversible error and remands a case for further administrative proceedings on or after October 29, 2018, the applicable date of this ruling, we will apply this ruling to the entire period at issue in the decision we make after the court’s remand. Our regulations on failure to follow prescribed treatment are unchanged. VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 prescribed treatment, if followed, would be expected to restore the individual’s ability to engage in substantial gainful activity (SGA) Assessment 2: We assess whether the individual has good cause for not following the prescribed treatment D. Development procedures E. Required written statement of failure to follow prescribed treatment determination F. When we make a failure to follow prescribed treatment determination within the sequential evaluation process Adult claims that meet or equal a listing at step 3 Title XVI child claims that meet, medically equal, or functionally equal the listings at step 3 Adult claims finding disability at step 5 G. Reopening a determination or decision H. Continuing Disability Reviews (CDR) I. Duration in disability and Title II blindness claims J. Duration in Title XVI blindness claims K. Claims involving both drug addiction and alcoholism (DAA) and failure to follow prescribed treatment A. Background Under the Act, an individual who meets the requirements to receive disability or blindness benefits will not be entitled to these benefits if the individual fails, without good cause, to follow prescribed treatment that we expect would restore his or her ability to engage in substantial gainful activity (SGA).2 We apply the failure to follow prescribed treatment policy at all levels of our administrative review process when we decide an initial claim for benefits based on disability or blindness. We also apply the policy when we reopen a prior determination or decision involving a claim for benefits based on disability or blindness, when we conduct an age-18 redetermination, and when we conduct a continuing disability review (CDR) under titles II or XVI of the Act. This SSR explains the policy and procedures we follow when we decide whether an individual has failed to 2 Sections 223(f) and 1614(a) of the Act. The ability to engage in SGA is the standard in adult disability claims. However, when this policy is applied in title XVI child disability claims, the standard is ‘‘the prescribed treatment is expected to eliminate or improve the child’s impairment so that it no longer results in marked and severe functional limitations.’’ Similarly, for claims based on statutory blindness, the standard is the prescribed treatment would be expected to ‘‘restore vision to the extent that the individual will no longer be blind.’’ PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 49617 follow prescribed treatment as required by the Act and our regulations.3 B. When We Decide Whether the Failure To Follow Prescribed Treatment Policy May Apply in an Initial Claim We will determine whether an individual has failed to follow prescribed treatment only if all three of the following conditions exist: 1. The individual would otherwise be entitled to benefits based on disability or eligible for blindness benefits under titles II or XVI of the Act; 2. We have evidence that an individual’s own medical source(s) prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based; and 3. We have evidence that the individual did not follow the prescribed treatment. If all three conditions exist, we will determine whether the individual failed to follow prescribed treatment, as explained below.4 Condition 1: The Individual Is Otherwise Entitled to Disability or Statutory Blindness Benefits Under Titles II or XVI of the Act We only perform the failure to follow prescribed treatment analysis discussed in this SSR after we find that an individual is entitled to disability or eligible for statutory blindness benefits under titles II or XVI of the Act, regardless of whether the individual followed the prescribed treatment. We will not determine whether an individual failed to follow prescribed treatment if we find the individual is not disabled, not blind, or otherwise not entitled to or eligible for benefits under titles II or XVI of the Act. Condition 2: There Is Evidence That an Individual’s Own Medical Source(s) Prescribed Treatment for the Medically Determinable Impairment(s) Upon Which the Disability Finding Is Based If we find that the individual is otherwise entitled to disability or eligible for statutory blindness benefits under titles II or XVI of the Act, we will only determine if the individual has failed to follow prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based if the individual’s own medical source(s) prescribed the 3 See 20 CFR 404.1530 and 416.930. are two exceptions at step 3 of the sequential evaluation process, explained in section F (below), when we will not make a failure to follow prescribed treatment determination even if these three conditions are met. 4 There E:\FR\FM\02OCN1.SGM 02OCN1 49618 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices amozie on DSK3GDR082PROD with NOTICES1 treatment.5 We will not determine whether the individual failed to follow prescribed treatment if the treatment was prescribed only by a consultative examiner (CE), medical consultant (MC), psychological consultant (PC), medical expert (ME), or by a medical source during an evaluation conducted solely to determine eligibility to any State or Federal benefit. Prescribed treatment means any medication, surgery, therapy, use of durable medical equipment, or use of assistive devices. Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation. We will consider any evidence of prescribed treatment, whether it appears on prescription forms or is otherwise indicated within a medical source’s records. We will consider treatment a medical source prescribed in the past if that treatment is still relevant to the individual’s medically determinable impairments that are present during the potential period of entitlement or eligibility and upon which the disability finding was based. We will evaluate whether the individual failed to follow the prescribed treatment, and whether there is good cause for this failure, only for the period(s) during which the individual may be entitled to benefits under the Act. For example: On January 2, 2017, an individual filed for disability benefits based on an impairment related to a lower-extremity amputation. The individual is no longer wearing a prosthesis that her medical source prescribed in 2015. We determine that the individual meets all of the other criteria for disability. In this scenario, we will evaluate whether the individual is failing to follow the prescribed treatment to wear the prosthesis during the potential entitlement period and whether the individual has good cause for not following the prescribed treatment during this period. However, we will not consider whether the individual failed to follow prescribed treatment prior to the first possible date of entitlement. Condition 3: There Is Evidence That the Individual Did Not Follow the Prescribed Treatment If we have any evidence that the individual is not following the prescribed treatment, this condition is satisfied. For example, a medical source may include in a treatment note that the patient has not been compliant with a prescribed medication regimen. 5 See 20 CFR 404.1502 and 416.902 for the definition of ‘‘medical source.’’ VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 C. How We Will Make a Failure To Follow Prescribed Treatment Determination Assessment 2: We Assess Whether the Individual Has Good Cause for Not Following the Prescribed Treatment If all three conditions exist, we will determine whether the individual has failed to follow prescribed treatment in the claim. To make a failure to follow prescribed treatment determination, we will: 1. Assess whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to engage in SGA. 2. Assess whether the individual has good cause for not following the prescribed treatment. We may make either assessment first. If we first assess that the prescribed treatment, if followed, would not be expected to restore the individual’s ability to engage in SGA, then it is unnecessary for us to assess whether the individual had good cause. Similarly, if we first assess that an individual has good cause for not following the prescribed treatment, then it is unnecessary for us to assess whether the prescribed treatment, if followed, would be expected to restore the individual’s ability to engage in SGA. This assessment focuses on whether the individual has good cause for not following the prescribed treatment. In adult claims, the individual has the burden to provide evidence showing that he or she has good cause for failing to follow prescribed treatment. In child claims, the parent or guardian has the burden to provide evidence showing that the child has good cause for failing to follow prescribed treatment. If the child has a representative payee and the parent, guardian, or child asserts that the child would have followed prescribed treatment but for the actions of the representative payee, we will determine whether to obtain a new representative payee. If we decide to obtain a new representative payee, we will provide additional time for the child to follow the prescribed treatment before we continue considering the claim. To assess good cause in both adult and child claims, we will develop the claim according to the instructions in the Development procedures section below. The following are examples of acceptable good cause reasons for not following prescribed treatment: 1. Religion: The established teaching and tenets of the individual’s religion prohibit him or her from following the prescribed treatment. The individual must identify the religion, provide evidence of the individual’s membership in or affiliation to his or her religion, and provide evidence that the religion’s teachings do not permit the individual to follow the prescribed treatment. 2. Cost: The individual is unable to afford prescribed treatment, which he or she is willing to follow, but for which affordable or free community resources are unavailable. Some individuals can obtain free or subsidized health insurance plans or healthcare from a clinic or other provider. In these instances, the individual must demonstrate why he or she does not have health insurance that pays for the prescribed treatment or why he or she failed to obtain treatment at the free or subsidized healthcare provider. 3. Incapacity: The individual is unable to understand the consequences of failing to follow prescribed treatment. 4. Medical disagreement: When the individual’s own medical sources disagree about whether the individual should follow a prescribed treatment, the individual has good cause to not follow the prescribed treatment. Similarly, when an individual chooses Assessment 1: We Assess Whether the Prescribed Treatment, if Followed, Would Be Expected To Restore the Individual’s Ability To Engage in SGA This assessment focuses on the prescribed treatment. We will determine whether we would expect the prescribed treatment, if followed, to restore the individual’s ability to engage in SGA. We are responsible for making this assessment, and we will consider all the relevant evidence in the record. At the initial and reconsideration levels of the administrative review process, an MC or PC will make this assessment. At the hearings and Appeals Council (AC) levels, the adjudicator(s) will make this assessment. Although the conclusion of this assessment ultimately rests with us, we will consider the prescribing medical source’s prognosis. If we first determine that following the prescribed treatment would not be expected to restore the individual’s ability to engage in SGA, then it is unnecessary for us to assess whether the individual had good cause for failing to follow the prescribed treatment. If we determine that following the prescribed treatment would restore the individual’s ability to engage in SGA, we will then assess whether the individual has good cause for not following the prescribed treatment. PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1 amozie on DSK3GDR082PROD with NOTICES1 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices to follow one kind of treatment prescribed by one medical source to the simultaneous exclusion of an alternate treatment prescribed by another medical source, the individual has good cause not to follow the alternate treatment. 5. Intense fear of surgery: The individual’s fear of surgery is so intense that it is a contraindication to having the surgery. We require a written statement from an individual’s own medical source affirming that the individual’s intense fear of surgery is in fact a contraindication to having the surgery. We will not consider an individual’s refusal of surgery as good cause for failing to follow prescribed treatment if it is based on the individual’s assertion that success is not guaranteed or that the individual knows of someone else for whom the treatment was not successful. 6. Prior history: The individual previously had major surgery for the same impairment with unsuccessful results and the same or similar additional major surgery is now prescribed. 7. High risk of loss of life or limb: The treatment involves a high risk for loss of life or limb. Treatments in this category include: Æ Surgeries with a risk of death, such as open-heart surgery or organ transplant. Æ Cataract surgery in one eye with a documented, unusually high-risk of serious surgical complications when the individual also has a severe visual impairment of the other eye that cannot be improved through treatment. Æ Amputation of an extremity or a major part of an extremity. 8. Risk of addiction to opioid medication: The prescribed treatment is for opioid medication. 9. Other: If the individual offers another reason for failing to follow prescribed treatment, we will determine whether it is reasonably justified on a case-by-case basis. We will not consider as good cause an individual’s allegation that he or she was unaware that his or her own medical source prescribed the treatment, unless the individual shows incapacity as described above. Similarly, mere assertions or allegations about the effectiveness of the treatment are insufficient to meet the individual’s burden to show good cause for not following the prescribed treatment. D. Development Procedures If evidence we already have in a claim is insufficient to make the required assessment(s) in the failure to follow prescribed treatment determination, we may develop the evidence, as VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 49619 appropriate. This development could include contacting the individual’s medical source(s) or the individual to ask why he or she did not follow the prescribed treatment. Although it may be helpful to have evidence from a CE or ME, we are not required to purchase a CE or obtain testimony from an ME to help us determine whether we expect a prescribed treatment, if followed, would restore the ability to engage in SGA. We are responsible for resolving any conflicts in the evidence, including inconsistencies between statements made by the individual and information received from his or her medical source(s). We may also evaluate the claim using the procedures for fraud or similar fault, if appropriate. we will not make a failure to follow prescribed treatment determination when we find the individual disabled based on a listing that requires only the presence of laboratory findings. In these claims, treatment would have no effect on the disability determination or decision. Second, we will not make a failure to follow prescribed treatment determination when we find the individual is disabled based on a listed impairment(s) which requires us to consider whether the individual was following that specific treatment as part of the required listing analysis. If either of these exceptions apply, we will find the individual is disabled without making a failure to follow prescribed treatment determination. E. Required Written Statement of Failure To Follow Prescribed Treatment Determination Title XVI Child Claims That Meet, Medically Equal, or Functionally Equal the Listings at Step 3 Generally, if we find that a child’s impairment(s) meets, medically equals, or functionally equals the listings at step 3 of the sequential evaluation process, and there is evidence of all three conditions listed in Section B above, we will determine whether there has been a failure to follow prescribed treatment. We will determine whether the child’s impairment(s) would still meet, medically equal, or functionally equal the listings had he or she followed the prescribed treatment. If we determine the child’s impairment(s) would no longer meet, medically equal, or functionally equal the listings had he or she followed prescribed treatment, we will assess whether there is good cause for not following the prescribed treatment. We will find the child is disabled if we determine that he or she has good cause for not following the prescribed treatment. If we determine that there is not good cause for failing to following the prescribed treatment, we will find the child is not disabled. There are two instances when we will not make a failure to follow prescribed treatment determination at step 3 of sequential evaluation process even if there is evidence that a child did not follow prescribed treatment. First, we will not make a failure to follow prescribed treatment determination when we find the child is disabled based on a listing that requires only the presence of laboratory findings. In these claims, treatment would have no impact on the disability determination or decision. Second, we will not make a failure to follow prescribed treatment determination when we find the child is disabled based on a listed impairment(s) which requires us to consider whether the child was following that specific treatment as part of the required listing When we make a failure to follow prescribed treatment determination, we will explain the basis for our findings in our determination or decision. F. When We Make a Failure To Follow Prescribed Treatment Determination Within the Sequential Evaluation Process for Initial Claims Adult Claims That Meet or Equal a Listing at Step 3 Generally, if we find that an individual’s impairment(s) meets or medically equals a listing at step 3 of the sequential evaluation process, and there is evidence of all three conditions listed in Section B above, we will determine whether the individual failed to follow prescribed treatment. We will determine whether an individual would still meet or medically equal a listing had he or she followed the prescribed treatment. If we determine the individual would no longer meet or medically equal the listing had he or she followed prescribed treatment, we will assess whether there is good cause for not following the prescribed treatment. We will determine that the individual is disabled if we find that he or she has good cause for not following the prescribed treatment. If we do not find good cause, we will continue to evaluate the claim using the sequential evaluation process by determining the individual’s residual functional capacity (RFC).6 There are two instances when we will not make a failure to follow prescribed treatment determination at step 3 of the sequential evaluation process, even if there is evidence that an individual did not follow prescribed treatment. First, 6 See PO 00000 20 CFR 404.1545 and 416.945. Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1 49620 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices analysis. If either of these exceptions apply, we will find the child is disabled without making a failure to follow prescribed treatment determination. amozie on DSK3GDR082PROD with NOTICES1 Adult Claims Finding Disability at Step 5 If we find that an individual is disabled at step 5 of the sequential evaluation process and there is evidence the individual is not following treatment prescribed by his or her own medical source(s), before we find the individual is disabled, we will assess whether the individual would still be disabled if he or she were following the prescribed treatment. We will determine what the individual’s residual functional capacity (RFC) would be had he or she followed the prescribed treatment. We will then use that RFC to reevaluate steps 4 and 5 of the sequential evaluation process to determine whether the individual could perform his or her past relevant work at step 4 or adjust to other work at step 5. We will find the individual is disabled if we determine that the individual would remain unable to engage in SGA, even if the individual had followed the prescribed treatment. We will also find the individual is disabled if we find the individual had good cause for not following the prescribed treatment. However, we will find the individual is not disabled if the individual does not have good cause for not following the prescribed treatment and we determine that, had the individual followed the prescribed treatment, he or she could perform past relevant work or engage in other SGA. G. Reopening a Determination or Decision As permitted by our regulations, we may reopen a favorable determination or decision if we discover we did not apply the failure to follow prescribed treatment policy correctly.7 We may base our reopening on the evidence we had in the folder at the time we made our determination or decision or based on new evidence we receive. When we reopen a disability or blindness determination or decision and find that an individual does not have good cause for failing to follow prescribed treatment, we will issue a predetermination notice and offer the individual an opportunity to respond before we terminate benefits. H. Continuing Disability Reviews (CDR) When we conduct a CDR, we will make a failure to follow prescribed 7 See 20 CFR 404.988, 404.989, 416.1488, and 416.1489. VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 treatment determination when the individual’s own medical source(s) prescribed a new treatment for the disabling impairment(s) since the last favorable determination or decision and the individual did not follow the prescribed treatment. We will also make a failure to follow prescribed treatment determination during a CDR if we find that an individual would continue to be entitled to disability or blindness benefits based upon an impairment first alleged during the CDR and there is evidence that the individual has not followed his or her own medical source’s prescribed treatment for that impairment. If we determine an individual does not have good cause for failing to follow the prescribed treatment that we have determined would restore the individual’s ability engage in SGA, we will issue a predetermination notice and, because benefits may be terminated, offer the individual an opportunity to respond before terminating benefits. Individuals are entitled to benefits while we develop evidence to determine whether they failed to follow prescribed treatment. If we determine that an individual failed to follow prescribed treatment without good cause in either situation, we will cease benefits two months after the month of the determination or decision that the individual is no longer disabled or statutorily blind. I. Duration in Disability and Title II Blindness Claims If an individual failed to follow the prescribed treatment without good cause within 12 months of onset of disability or blindness, we will find the individual is not disabled because the duration requirement is not met.8 However, if an individual failed to follow prescribed treatment without good cause more than 12 months after onset of disability or blindness and is otherwise disabled, we will find the individual is disabled with a closed period that ends when the individual failed to follow the prescribed treatment. In this situation, we will continue to pay benefits as usual through the second month after the month disability or blindness ends. J. Duration in Title XVI Blindness Claims Because title XVI blindness entitlement does not have a duration requirement, an individual meeting the title XVI blindness requirements may be entitled to benefits beginning the month 8 See PO 00000 20 CFR 404.1509 and 416.909. Frm 00091 Fmt 4703 Sfmt 4703 after he or she applies for benefits.9 If we determine an individual failed to follow prescribed treatment without good cause any time before the first day of the month after filing, we will find the individual is not disabled. However, if we determine the individual failed to follow prescribed treatment without good cause any time after the first day of the month after filing, we will find the individual is disabled with a closed period from the date of entitlement until the date we determined the individual failed to follow the prescribed treatment without good cause. In this situation, we will continue to pay benefits as usual through the second month after the month blindness ends. If we need further development to determine whether a title XVI blind individual failed to follow prescribed treatment without good cause, the individual is entitled to benefits while we conduct the additional development. At the hearing and Appeals Council levels, we will refer the claim to the effectuating component to develop the evidence necessary to make a failure to follow prescribed treatment determination. K. Claims Involving Both Drug Addiction and Alcoholism (DAA) and Failure To Follow Prescribed Treatment In a claim that may involve both DAA and failure to follow a prescribed treatment for an impairment other than DAA, we will first make the DAA determination.10 If we find that the individual is disabled considering all impairments including the DAA and that DAA is material to our determination of disability, we will deny the claim and not make a failure to follow prescribed treatment determination. If we find that the individual is disabled considering all impairments including the DAA, but the DAA is not material to our determination of disability, we will then make the failure to follow prescribed treatment determination for the impairment(s) other than DAA. Even if the prescribed treatment for the other impairment(s) may also have beneficial effect on the DAA, we do not reevaluate for DAA materiality a second time. For example, we cannot find that an individual has failed to follow prescribed treatment for liver disease based on a failure to follow treatment prescribed for alcohol dependence. If the cessation of drinking alcohol would 9 Section 216(i)(1)(B) of the Act. SSR 13–2p: Titles II and XVI: Evaluating Cases Involving Drug Addiction and Alcoholism (DAA), 78 FR 11939 (Mar. 22, 2013). 10 See E:\FR\FM\02OCN1.SGM 02OCN1 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices be expected to improve the individual’s functioning so that he or she is not disabled, we would find that DAA is material to the determination of disability and deny the claim for that reason. [FR Doc. 2018–21359 Filed 10–1–18; 8:45 am] BILLING CODE 4191–02–P SOCIAL SECURITY ADMINISTRATION (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; 96.006, Supplemental Security Income) [Docket No. SSA–2018–0011] Social Security Ruling, SSR 18–02p; Titles II and XVI: Determining the Established Onset Date (EOD) in Blindness Claims AGENCY: Nancy A. Berryhill, Acting Commissioner of Social Security. ACTION: Policy Interpretation Ruling Social Security Administration. Notice of Social Security Ruling (SSR). We are providing notice of SSR 18–02p, which rescinds and replaces the following sections of SSR 83–20, ‘‘Titles II and XVI: Onset of Disability,’’—(1) ‘‘Title II: Blindness Cases,’’ and (2) ‘‘Title XVI—Specific Onset is Necessary,’’ as it applies to blindness claims. Specifically, this SSR addresses how we determine the EOD in blindness claims under titles II and XVI of the Social Security Act (Act). We concurrently published a separate SSR, SSR 18–01p, ‘‘Titles II and XVI: Determining the Established Onset Date (EOD) in Disability Claims,’’ which rescinded and replaced all other parts of SSR 83–20. Therefore, SSR 83–20 is completely rescinded and replaced by SSR 18–01p and SSR 18–02p. DATES: We will apply this notice on October 2, 2018. FOR FURTHER INFORMATION CONTACT: Dan O’Brien, (410) 597–1632, Dan.OBrien@ ssa.gov. For information on eligibility or filing for benefits, call our national tollfree number at 1–800–772–1213, or visit our internet site, Social Security online, at https://www.socialsecurity.gov. SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are publishing it in accordance with 20 CFR 402.35(b)(1). We use SSRs to make available to the public precedential decisions relating to the Federal old age, survivors, disability, supplemental security income, and special veterans benefits programs. We may base SSRs on determinations or decisions made in our administrative review process, Federal court decisions, decisions of our Commissioner, opinions from our Office of the General Counsel, or other interpretations of law and regulations. SUMMARY: amozie on DSK3GDR082PROD with NOTICES1 Although SSRs do not have the force and effect of law, they are binding on all components of the Social Security Administration in accordance with 20 CFR 402.35(b)(1). This SSR will remain in effect until we publish a notice in the Federal Register that rescinds it, or until we publish a new SSR in the Federal Register that rescinds and replaces or modifies it. VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 Titles II and XVI: Determining the Established Onset Date (EOD) in Blindness Claims We are providing notice of SSR 18– 02p which rescinds and replaces the following sections of SSR 83–20: ‘‘Titles II and XVI: Onset of Disability,’’—(1) ‘‘Title II: Blindness Cases,’’ and (2) ‘‘Title XVI—Specific Onset is Necessary,’’ as it applies to blindness claims. Concurrently, we published a separate SSR, SSR 18–01p, ‘‘Titles II and XVI: Determining the Established Onset Date (EOD) in Disability Claims,’’ which rescinded and replaced all other parts of SSR 83–20. Therefore, as of October 2, 2018, the date this SSR was published in the Federal Register, SSR 83–20 is completely rescinded and replaced by SSR 18–01p and SSR 18– 02p. Purpose: This SSR explains how we determine the EOD in blindness claims under titles II and XVI of the Social Security Act (Act). Citations: Sections 216, 220, 223, 1602, 1611, and 1614 of the Act, as amended; Public Law 108–203, 118 STAT. 535; 20 CFR 404.110, 404.130, 404.303, 404.315–.316, 404.320–.321, 404.335–.336, 404.350–.351, 404.1505, 404.1510, 404.1512, 404.1572, 404.1581–.1584, 416.202, 416.305, 416.912, 416.981–.984. Policy Interpretation: To be entitled to disability insurance (DI) benefits under title II of the Act or eligible for Supplemental Security Income (SSI) payments under title XVI of the Act based on blindness, a claimant must file an application, meet the relevant statutory definition(s), and satisfy the applicable non-medical requirements. If we find that a claimant meets the relevant statutory definitions and meets the applicable non-medical requirements during the period covered PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 49621 by his or her application, we then determine the claimant’s EOD. The EOD is the earliest date that the claimant meets both the relevant definitions and non-medical requirements during the period covered by his or her application. Outline I. What is the EOD? A. What is the statutory definition of blindness? B. What are the statutory definitions of disability for blind claimants and when do they apply? 1. What is the statutory definition of disability for a title II blind claimant who is younger than 55? 2. What is the statutory definition of disability for a title II blind claimant who is age 55 or older? C. What are the non-medical requirements? II. What are some special considerations related to the EOD? A. What if a claimant meets all the requirements for DI benefits or SSI payments based on blindness and based on another impairment? B. What happens when a claimant applies for DI benefits under title II and meets the statutory definition of blindness, but continues to work? III. When is this SSR applicable? Discussion I. What is the EOD? For title II blindness claims, the EOD is the earliest date that the claimant meets the statutory definitions of blindness and disability 1 and the applicable non-medical requirements 2 for entitlement to benefits during the period covered by his or her application. For title XVI blindness claims, the EOD is the earliest date that the claimant meets the statutory definition of blindness 3 and the 1 42 U.S.C. 416(i)(1)(B) (defining blindness), 423(d)(1)(A) (defining disability for blind individuals younger than age 55), 423(d)(1)(B) (defining disability for statutorily blind individuals age 55 and older); 20 CFR 404.1581 (defining blindness), 404.1582 (explaining how we determine a period of disability based on blindness), 404.1583 (explaining how we determine disability for blind persons who are age 55 or older). 2 See, e.g., 20 CFR 404.315, 404.316, 404.320, 404.321 (setting forth some of the non-medical requirements for title II DI benefits), 20 CFR 404.335, 404.336 (same for title II disabled widow(er)’s benefits (DWB)), 20 CFR 404.350, 404.351 (same for title II childhood disability benefits (CDB)). 3 42 U.S.C. 1381a (‘‘Every aged, blind, or disabled individual who is determined . . . to be eligible on the basis of his income and resources shall, in accordance with and subject to the provisions of this title, be paid benefits by the Commissioner of Social Security’’) (emphasis added), 1382(a) (defining an eligible individual), 1382c(a)(2) E:\FR\FM\02OCN1.SGM Continued 02OCN1

Agencies

Social Security Administration

[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Notices]
[Pages 49616-49621]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-21359]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2016-0034]


Social Security Ruling, SSR 18-3p; Titles II and XVI: Failure To 
Follow Prescribed Treatment

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are providing notice of SSR 18-3p. This Ruling provides 
guidance about how we apply our failure to follow prescribed treatment 
policy in disability and blindness claims under Titles II and XVI of 
the Social Security Act (Act).

DATES: We will apply this notice on October 29, 2018.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Vocational, 
Evaluation, and Process Policy in the Office of Disability Policy, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, 410-597-1632. For information on eligibility or filing for 
benefits, call our national toll-free number at 1-800-772-1213, or 
visit our internet site, Social Security online, at https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are publishing it in accordance 
with 20 CFR 402.35(b)(1).
    We use SSRs to make available to the public precedential decisions 
relating to the Federal old age, survivors, disability, supplemental 
security income, and special veterans benefits programs. We may base 
SSRs on determinations or decisions made in our administrative review 
process, Federal court decisions, decisions of our Commissioner, 
opinions from our Office of the General Counsel, or other 
interpretations of law and regulations.
    Although SSRs do not have the same force and effect as law, they 
are binding on all components of the Social Security Administration in 
accordance with 20

[[Page 49617]]

CFR 402.35(b)(1), and are binding as precedents in adjudicating cases.
    This SSR will remain in effect until we publish a notice in the 
Federal Register that rescinds it, or until we publish a new SSR in the 
Federal Register that rescinds and replaces or modifies it.

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

Nancy A. Berryhill,
Acting Commissioner of Social Security.

Policy Interpretation Ruling

Titles II and XVI: Failure To Follow Prescribed Treatment

    This Social Security Ruling (SSR) rescinds and replaces SSR 82-59: 
``Titles II and XVI: Failure to Follow Prescribed Treatment.''
    Purpose: To provide guidance on how we apply our failure to follow 
prescribed treatment policy in disability and blindness claims under 
titles II and XVI of the Social Security Act (Act).
    Citations (Authority): Sections 216(i), 223(d) and (f), and 1614(a) 
of the Act, as amended; 20 CFR 404.1530 and 416.930.
    Dates: We will apply this notice on October 29, 2018.\1\
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    \1\ Our adjudicators will apply this ruling when we make 
determinations and decisions on or after October 29, 2018. When a 
Federal court reviews our final decision in a claim, we expect the 
court will review the final decision using the rules that were in 
effect at the time we issued the decision under review. If a court 
finds reversible error and remands a case for further administrative 
proceedings on or after October 29, 2018, the applicable date of 
this ruling, we will apply this ruling to the entire period at issue 
in the decision we make after the court's remand. Our regulations on 
failure to follow prescribed treatment are unchanged.
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Overview

A. Background
B. When we decide whether the failure to follow prescribed treatment 
policy may apply in an initial claim
    Condition 1: The individual is otherwise entitled to disability or 
statutory blindness benefits under titles II or XVI of the Act
    Condition 2: There is evidence that an individual's own medical 
source(s) prescribed treatment for the medically determinable 
impairment(s) upon which the disability finding is based
    Condition 3: There is evidence that the individual did not follow 
the prescribed treatment
C. How we will make a failure to follow prescribed treatment 
determination
    Assessment 1: We assess whether the prescribed treatment, if 
followed, would be expected to restore the individual's ability to 
engage in substantial gainful activity (SGA)
    Assessment 2: We assess whether the individual has good cause for 
not following the prescribed treatment
D. Development procedures
E. Required written statement of failure to follow prescribed treatment 
determination
F. When we make a failure to follow prescribed treatment determination 
within the sequential evaluation process
    Adult claims that meet or equal a listing at step 3
    Title XVI child claims that meet, medically equal, or functionally 
equal the listings at step 3
    Adult claims finding disability at step 5
    G. Reopening a determination or decision
H. Continuing Disability Reviews (CDR)
I. Duration in disability and Title II blindness claims
J. Duration in Title XVI blindness claims
K. Claims involving both drug addiction and alcoholism (DAA) and 
failure to follow prescribed treatment

A. Background

    Under the Act, an individual who meets the requirements to receive 
disability or blindness benefits will not be entitled to these benefits 
if the individual fails, without good cause, to follow prescribed 
treatment that we expect would restore his or her ability to engage in 
substantial gainful activity (SGA).\2\
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    \2\ Sections 223(f) and 1614(a) of the Act. The ability to 
engage in SGA is the standard in adult disability claims. However, 
when this policy is applied in title XVI child disability claims, 
the standard is ``the prescribed treatment is expected to eliminate 
or improve the child's impairment so that it no longer results in 
marked and severe functional limitations.'' Similarly, for claims 
based on statutory blindness, the standard is the prescribed 
treatment would be expected to ``restore vision to the extent that 
the individual will no longer be blind.''
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    We apply the failure to follow prescribed treatment policy at all 
levels of our administrative review process when we decide an initial 
claim for benefits based on disability or blindness. We also apply the 
policy when we reopen a prior determination or decision involving a 
claim for benefits based on disability or blindness, when we conduct an 
age-18 redetermination, and when we conduct a continuing disability 
review (CDR) under titles II or XVI of the Act.
    This SSR explains the policy and procedures we follow when we 
decide whether an individual has failed to follow prescribed treatment 
as required by the Act and our regulations.\3\
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    \3\ See 20 CFR 404.1530 and 416.930.
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B. When We Decide Whether the Failure To Follow Prescribed Treatment 
Policy May Apply in an Initial Claim

    We will determine whether an individual has failed to follow 
prescribed treatment only if all three of the following conditions 
exist:
    1. The individual would otherwise be entitled to benefits based on 
disability or eligible for blindness benefits under titles II or XVI of 
the Act;
    2. We have evidence that an individual's own medical source(s) 
prescribed treatment for the medically determinable impairment(s) upon 
which the disability finding is based; and
    3. We have evidence that the individual did not follow the 
prescribed treatment. If all three conditions exist, we will determine 
whether the individual failed to follow prescribed treatment, as 
explained below.\4\
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    \4\ There are two exceptions at step 3 of the sequential 
evaluation process, explained in section F (below), when we will not 
make a failure to follow prescribed treatment determination even if 
these three conditions are met.
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Condition 1: The Individual Is Otherwise Entitled to Disability or 
Statutory Blindness Benefits Under Titles II or XVI of the Act

    We only perform the failure to follow prescribed treatment analysis 
discussed in this SSR after we find that an individual is entitled to 
disability or eligible for statutory blindness benefits under titles II 
or XVI of the Act, regardless of whether the individual followed the 
prescribed treatment. We will not determine whether an individual 
failed to follow prescribed treatment if we find the individual is not 
disabled, not blind, or otherwise not entitled to or eligible for 
benefits under titles II or XVI of the Act.

Condition 2: There Is Evidence That an Individual's Own Medical 
Source(s) Prescribed Treatment for the Medically Determinable 
Impairment(s) Upon Which the Disability Finding Is Based

    If we find that the individual is otherwise entitled to disability 
or eligible for statutory blindness benefits under titles II or XVI of 
the Act, we will only determine if the individual has failed to follow 
prescribed treatment for the medically determinable impairment(s) upon 
which the disability finding is based if the individual's own medical 
source(s) prescribed the

[[Page 49618]]

treatment.\5\ We will not determine whether the individual failed to 
follow prescribed treatment if the treatment was prescribed only by a 
consultative examiner (CE), medical consultant (MC), psychological 
consultant (PC), medical expert (ME), or by a medical source during an 
evaluation conducted solely to determine eligibility to any State or 
Federal benefit.
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    \5\ See 20 CFR 404.1502 and 416.902 for the definition of 
``medical source.''
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    Prescribed treatment means any medication, surgery, therapy, use of 
durable medical equipment, or use of assistive devices. Prescribed 
treatment does not include lifestyle modifications, such as dieting, 
exercise, or smoking cessation. We will consider any evidence of 
prescribed treatment, whether it appears on prescription forms or is 
otherwise indicated within a medical source's records.
    We will consider treatment a medical source prescribed in the past 
if that treatment is still relevant to the individual's medically 
determinable impairments that are present during the potential period 
of entitlement or eligibility and upon which the disability finding was 
based. We will evaluate whether the individual failed to follow the 
prescribed treatment, and whether there is good cause for this failure, 
only for the period(s) during which the individual may be entitled to 
benefits under the Act.
    For example: On January 2, 2017, an individual filed for disability 
benefits based on an impairment related to a lower-extremity 
amputation. The individual is no longer wearing a prosthesis that her 
medical source prescribed in 2015. We determine that the individual 
meets all of the other criteria for disability. In this scenario, we 
will evaluate whether the individual is failing to follow the 
prescribed treatment to wear the prosthesis during the potential 
entitlement period and whether the individual has good cause for not 
following the prescribed treatment during this period. However, we will 
not consider whether the individual failed to follow prescribed 
treatment prior to the first possible date of entitlement.

Condition 3: There Is Evidence That the Individual Did Not Follow the 
Prescribed Treatment

    If we have any evidence that the individual is not following the 
prescribed treatment, this condition is satisfied. For example, a 
medical source may include in a treatment note that the patient has not 
been compliant with a prescribed medication regimen.

C. How We Will Make a Failure To Follow Prescribed Treatment 
Determination

    If all three conditions exist, we will determine whether the 
individual has failed to follow prescribed treatment in the claim. To 
make a failure to follow prescribed treatment determination, we will:
    1. Assess whether the prescribed treatment, if followed, would be 
expected to restore the individual's ability to engage in SGA.
    2. Assess whether the individual has good cause for not following 
the prescribed treatment.
    We may make either assessment first. If we first assess that the 
prescribed treatment, if followed, would not be expected to restore the 
individual's ability to engage in SGA, then it is unnecessary for us to 
assess whether the individual had good cause. Similarly, if we first 
assess that an individual has good cause for not following the 
prescribed treatment, then it is unnecessary for us to assess whether 
the prescribed treatment, if followed, would be expected to restore the 
individual's ability to engage in SGA.

Assessment 1: We Assess Whether the Prescribed Treatment, if Followed, 
Would Be Expected To Restore the Individual's Ability To Engage in SGA

    This assessment focuses on the prescribed treatment. We will 
determine whether we would expect the prescribed treatment, if 
followed, to restore the individual's ability to engage in SGA. We are 
responsible for making this assessment, and we will consider all the 
relevant evidence in the record. At the initial and reconsideration 
levels of the administrative review process, an MC or PC will make this 
assessment. At the hearings and Appeals Council (AC) levels, the 
adjudicator(s) will make this assessment. Although the conclusion of 
this assessment ultimately rests with us, we will consider the 
prescribing medical source's prognosis.
    If we first determine that following the prescribed treatment would 
not be expected to restore the individual's ability to engage in SGA, 
then it is unnecessary for us to assess whether the individual had good 
cause for failing to follow the prescribed treatment. If we determine 
that following the prescribed treatment would restore the individual's 
ability to engage in SGA, we will then assess whether the individual 
has good cause for not following the prescribed treatment.

Assessment 2: We Assess Whether the Individual Has Good Cause for Not 
Following the Prescribed Treatment

    This assessment focuses on whether the individual has good cause 
for not following the prescribed treatment.
    In adult claims, the individual has the burden to provide evidence 
showing that he or she has good cause for failing to follow prescribed 
treatment.
    In child claims, the parent or guardian has the burden to provide 
evidence showing that the child has good cause for failing to follow 
prescribed treatment. If the child has a representative payee and the 
parent, guardian, or child asserts that the child would have followed 
prescribed treatment but for the actions of the representative payee, 
we will determine whether to obtain a new representative payee. If we 
decide to obtain a new representative payee, we will provide additional 
time for the child to follow the prescribed treatment before we 
continue considering the claim.
    To assess good cause in both adult and child claims, we will 
develop the claim according to the instructions in the Development 
procedures section below. The following are examples of acceptable good 
cause reasons for not following prescribed treatment:
    1. Religion: The established teaching and tenets of the 
individual's religion prohibit him or her from following the prescribed 
treatment. The individual must identify the religion, provide evidence 
of the individual's membership in or affiliation to his or her 
religion, and provide evidence that the religion's teachings do not 
permit the individual to follow the prescribed treatment.
    2. Cost: The individual is unable to afford prescribed treatment, 
which he or she is willing to follow, but for which affordable or free 
community resources are unavailable. Some individuals can obtain free 
or subsidized health insurance plans or healthcare from a clinic or 
other provider. In these instances, the individual must demonstrate why 
he or she does not have health insurance that pays for the prescribed 
treatment or why he or she failed to obtain treatment at the free or 
subsidized healthcare provider.
    3. Incapacity: The individual is unable to understand the 
consequences of failing to follow prescribed treatment.
    4. Medical disagreement: When the individual's own medical sources 
disagree about whether the individual should follow a prescribed 
treatment, the individual has good cause to not follow the prescribed 
treatment. Similarly, when an individual chooses

[[Page 49619]]

to follow one kind of treatment prescribed by one medical source to the 
simultaneous exclusion of an alternate treatment prescribed by another 
medical source, the individual has good cause not to follow the 
alternate treatment.
    5. Intense fear of surgery: The individual's fear of surgery is so 
intense that it is a contraindication to having the surgery. We require 
a written statement from an individual's own medical source affirming 
that the individual's intense fear of surgery is in fact a 
contraindication to having the surgery. We will not consider an 
individual's refusal of surgery as good cause for failing to follow 
prescribed treatment if it is based on the individual's assertion that 
success is not guaranteed or that the individual knows of someone else 
for whom the treatment was not successful.
    6. Prior history: The individual previously had major surgery for 
the same impairment with unsuccessful results and the same or similar 
additional major surgery is now prescribed.
    7. High risk of loss of life or limb: The treatment involves a high 
risk for loss of life or limb. Treatments in this category include:
    [cir] Surgeries with a risk of death, such as open-heart surgery or 
organ transplant.
    [cir] Cataract surgery in one eye with a documented, unusually 
high-risk of serious surgical complications when the individual also 
has a severe visual impairment of the other eye that cannot be improved 
through treatment.
    [cir] Amputation of an extremity or a major part of an extremity.
    8. Risk of addiction to opioid medication: The prescribed treatment 
is for opioid medication.
    9. Other: If the individual offers another reason for failing to 
follow prescribed treatment, we will determine whether it is reasonably 
justified on a case-by-case basis.
    We will not consider as good cause an individual's allegation that 
he or she was unaware that his or her own medical source prescribed the 
treatment, unless the individual shows incapacity as described above. 
Similarly, mere assertions or allegations about the effectiveness of 
the treatment are insufficient to meet the individual's burden to show 
good cause for not following the prescribed treatment.

D. Development Procedures

    If evidence we already have in a claim is insufficient to make the 
required assessment(s) in the failure to follow prescribed treatment 
determination, we may develop the evidence, as appropriate. This 
development could include contacting the individual's medical source(s) 
or the individual to ask why he or she did not follow the prescribed 
treatment. Although it may be helpful to have evidence from a CE or ME, 
we are not required to purchase a CE or obtain testimony from an ME to 
help us determine whether we expect a prescribed treatment, if 
followed, would restore the ability to engage in SGA. We are 
responsible for resolving any conflicts in the evidence, including 
inconsistencies between statements made by the individual and 
information received from his or her medical source(s). We may also 
evaluate the claim using the procedures for fraud or similar fault, if 
appropriate.

E. Required Written Statement of Failure To Follow Prescribed Treatment 
Determination

    When we make a failure to follow prescribed treatment 
determination, we will explain the basis for our findings in our 
determination or decision.

F. When We Make a Failure To Follow Prescribed Treatment Determination 
Within the Sequential Evaluation Process for Initial Claims

Adult Claims That Meet or Equal a Listing at Step 3

    Generally, if we find that an individual's impairment(s) meets or 
medically equals a listing at step 3 of the sequential evaluation 
process, and there is evidence of all three conditions listed in 
Section B above, we will determine whether the individual failed to 
follow prescribed treatment. We will determine whether an individual 
would still meet or medically equal a listing had he or she followed 
the prescribed treatment. If we determine the individual would no 
longer meet or medically equal the listing had he or she followed 
prescribed treatment, we will assess whether there is good cause for 
not following the prescribed treatment. We will determine that the 
individual is disabled if we find that he or she has good cause for not 
following the prescribed treatment. If we do not find good cause, we 
will continue to evaluate the claim using the sequential evaluation 
process by determining the individual's residual functional capacity 
(RFC).\6\
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    \6\ See 20 CFR 404.1545 and 416.945.
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    There are two instances when we will not make a failure to follow 
prescribed treatment determination at step 3 of the sequential 
evaluation process, even if there is evidence that an individual did 
not follow prescribed treatment. First, we will not make a failure to 
follow prescribed treatment determination when we find the individual 
disabled based on a listing that requires only the presence of 
laboratory findings. In these claims, treatment would have no effect on 
the disability determination or decision. Second, we will not make a 
failure to follow prescribed treatment determination when we find the 
individual is disabled based on a listed impairment(s) which requires 
us to consider whether the individual was following that specific 
treatment as part of the required listing analysis. If either of these 
exceptions apply, we will find the individual is disabled without 
making a failure to follow prescribed treatment determination.

Title XVI Child Claims That Meet, Medically Equal, or Functionally 
Equal the Listings at Step 3

    Generally, if we find that a child's impairment(s) meets, medically 
equals, or functionally equals the listings at step 3 of the sequential 
evaluation process, and there is evidence of all three conditions 
listed in Section B above, we will determine whether there has been a 
failure to follow prescribed treatment. We will determine whether the 
child's impairment(s) would still meet, medically equal, or 
functionally equal the listings had he or she followed the prescribed 
treatment. If we determine the child's impairment(s) would no longer 
meet, medically equal, or functionally equal the listings had he or she 
followed prescribed treatment, we will assess whether there is good 
cause for not following the prescribed treatment. We will find the 
child is disabled if we determine that he or she has good cause for not 
following the prescribed treatment. If we determine that there is not 
good cause for failing to following the prescribed treatment, we will 
find the child is not disabled.
    There are two instances when we will not make a failure to follow 
prescribed treatment determination at step 3 of sequential evaluation 
process even if there is evidence that a child did not follow 
prescribed treatment. First, we will not make a failure to follow 
prescribed treatment determination when we find the child is disabled 
based on a listing that requires only the presence of laboratory 
findings. In these claims, treatment would have no impact on the 
disability determination or decision. Second, we will not make a 
failure to follow prescribed treatment determination when we find the 
child is disabled based on a listed impairment(s) which requires us to 
consider whether the child was following that specific treatment as 
part of the required listing

[[Page 49620]]

analysis. If either of these exceptions apply, we will find the child 
is disabled without making a failure to follow prescribed treatment 
determination.

Adult Claims Finding Disability at Step 5

    If we find that an individual is disabled at step 5 of the 
sequential evaluation process and there is evidence the individual is 
not following treatment prescribed by his or her own medical source(s), 
before we find the individual is disabled, we will assess whether the 
individual would still be disabled if he or she were following the 
prescribed treatment.
    We will determine what the individual's residual functional 
capacity (RFC) would be had he or she followed the prescribed 
treatment. We will then use that RFC to reevaluate steps 4 and 5 of the 
sequential evaluation process to determine whether the individual could 
perform his or her past relevant work at step 4 or adjust to other work 
at step 5. We will find the individual is disabled if we determine that 
the individual would remain unable to engage in SGA, even if the 
individual had followed the prescribed treatment. We will also find the 
individual is disabled if we find the individual had good cause for not 
following the prescribed treatment. However, we will find the 
individual is not disabled if the individual does not have good cause 
for not following the prescribed treatment and we determine that, had 
the individual followed the prescribed treatment, he or she could 
perform past relevant work or engage in other SGA.

G. Reopening a Determination or Decision

    As permitted by our regulations, we may reopen a favorable 
determination or decision if we discover we did not apply the failure 
to follow prescribed treatment policy correctly.\7\ We may base our 
reopening on the evidence we had in the folder at the time we made our 
determination or decision or based on new evidence we receive. When we 
reopen a disability or blindness determination or decision and find 
that an individual does not have good cause for failing to follow 
prescribed treatment, we will issue a predetermination notice and offer 
the individual an opportunity to respond before we terminate benefits.
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    \7\ See 20 CFR 404.988, 404.989, 416.1488, and 416.1489.
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H. Continuing Disability Reviews (CDR)

    When we conduct a CDR, we will make a failure to follow prescribed 
treatment determination when the individual's own medical source(s) 
prescribed a new treatment for the disabling impairment(s) since the 
last favorable determination or decision and the individual did not 
follow the prescribed treatment.
    We will also make a failure to follow prescribed treatment 
determination during a CDR if we find that an individual would continue 
to be entitled to disability or blindness benefits based upon an 
impairment first alleged during the CDR and there is evidence that the 
individual has not followed his or her own medical source's prescribed 
treatment for that impairment.
    If we determine an individual does not have good cause for failing 
to follow the prescribed treatment that we have determined would 
restore the individual's ability engage in SGA, we will issue a 
predetermination notice and, because benefits may be terminated, offer 
the individual an opportunity to respond before terminating benefits. 
Individuals are entitled to benefits while we develop evidence to 
determine whether they failed to follow prescribed treatment. If we 
determine that an individual failed to follow prescribed treatment 
without good cause in either situation, we will cease benefits two 
months after the month of the determination or decision that the 
individual is no longer disabled or statutorily blind.

I. Duration in Disability and Title II Blindness Claims

    If an individual failed to follow the prescribed treatment without 
good cause within 12 months of onset of disability or blindness, we 
will find the individual is not disabled because the duration 
requirement is not met.\8\ However, if an individual failed to follow 
prescribed treatment without good cause more than 12 months after onset 
of disability or blindness and is otherwise disabled, we will find the 
individual is disabled with a closed period that ends when the 
individual failed to follow the prescribed treatment. In this 
situation, we will continue to pay benefits as usual through the second 
month after the month disability or blindness ends.
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    \8\ See 20 CFR 404.1509 and 416.909.
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J. Duration in Title XVI Blindness Claims

    Because title XVI blindness entitlement does not have a duration 
requirement, an individual meeting the title XVI blindness requirements 
may be entitled to benefits beginning the month after he or she applies 
for benefits.\9\ If we determine an individual failed to follow 
prescribed treatment without good cause any time before the first day 
of the month after filing, we will find the individual is not disabled. 
However, if we determine the individual failed to follow prescribed 
treatment without good cause any time after the first day of the month 
after filing, we will find the individual is disabled with a closed 
period from the date of entitlement until the date we determined the 
individual failed to follow the prescribed treatment without good 
cause. In this situation, we will continue to pay benefits as usual 
through the second month after the month blindness ends.
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    \9\ Section 216(i)(1)(B) of the Act.
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    If we need further development to determine whether a title XVI 
blind individual failed to follow prescribed treatment without good 
cause, the individual is entitled to benefits while we conduct the 
additional development. At the hearing and Appeals Council levels, we 
will refer the claim to the effectuating component to develop the 
evidence necessary to make a failure to follow prescribed treatment 
determination.

K. Claims Involving Both Drug Addiction and Alcoholism (DAA) and 
Failure To Follow Prescribed Treatment

    In a claim that may involve both DAA and failure to follow a 
prescribed treatment for an impairment other than DAA, we will first 
make the DAA determination.\10\ If we find that the individual is 
disabled considering all impairments including the DAA and that DAA is 
material to our determination of disability, we will deny the claim and 
not make a failure to follow prescribed treatment determination. If we 
find that the individual is disabled considering all impairments 
including the DAA, but the DAA is not material to our determination of 
disability, we will then make the failure to follow prescribed 
treatment determination for the impairment(s) other than DAA. Even if 
the prescribed treatment for the other impairment(s) may also have 
beneficial effect on the DAA, we do not reevaluate for DAA materiality 
a second time.
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    \10\ See SSR 13-2p: Titles II and XVI: Evaluating Cases 
Involving Drug Addiction and Alcoholism (DAA), 78 FR 11939 (Mar. 22, 
2013).
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    For example, we cannot find that an individual has failed to follow 
prescribed treatment for liver disease based on a failure to follow 
treatment prescribed for alcohol dependence. If the cessation of 
drinking alcohol would

[[Page 49621]]

be expected to improve the individual's functioning so that he or she 
is not disabled, we would find that DAA is material to the 
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determination of disability and deny the claim for that reason.

[FR Doc. 2018-21359 Filed 10-1-18; 8:45 am]
 BILLING CODE 4191-02-P

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