Evidence of Disability, 78235-78239 [2024-21777]

Agencies

• Railroad Retirement Board

[Federal Register Volume 89, Number 186 (Wednesday, September 25, 2024)]
[Rules and Regulations]
[Pages 78235-78239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-21777]


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RAILROAD RETIREMENT BOARD

20 CFR Part 220

RIN 3220-AB68


Evidence of Disability

AGENCY: Railroad Retirement Board.

ACTION: Final rule.

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SUMMARY: The Railroad Retirement Board (RRB) amends its regulations 
regarding the submission of evidence in disability claims to require 
you to inform us or submit all evidence known to you that ``relates 
to'' your disability claim, with exceptions for privileged 
communications and duplicates. This requirement includes the duty to 
submit all evidence obtained from any source in its entirety, subject 
to one of these exceptions. These clarifications to our regulations 
describe in more detail the requirement for you to submit all evidence 
that relates to your disability claim, enables us to have a more 
complete case record which will allow us to make more accurate 
determinations of your disability status, and aligns our disability 
evidence requirements with regulations of the Social Security 
Administration (SSA).

DATES: This rule is effective November 25, 2024.

FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel, 
(312) 751-4922, TTD (312) 751-4701, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background Information

    The RRB published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register on November 9, 2016 (81 FR 78757). The preamble to the 
NPRM discussed the changes from our current rules and our reasons for 
proposing those changes. In the NPRM, we proposed to clarify our 
regulations to require you to inform us about or submit all evidence 
known to you that relates to your disability claim, subject to two 
exceptions for certain privileged communications. We explained that 
this requirement would include the duty to submit all evidence from any 
source in its entirety, unless subject to one of these exceptions. We 
also proposed to require your representative to help you obtain the 
information or evidence that

[[Page 78236]]

we would require you to submit under our regulations.
    We provided 60 days for the public to comment on the NPRM. We 
received four comments: two comments were submitted anonymously, and 
two comments were from individual members of the public. All four 
comments focused on the requirement to submit all evidence that relates 
to an individual's disability claim. None of the four comments 
discussed the exceptions for material protected by attorney-client 
privilege or attorney work product doctrine. We provide summaries of 
the significant comments that were relevant to this rulemaking and our 
responses to those comments in Part II below. One comment was entirely 
supportive of the proposed changes. We appreciate that comment but have 
not summarized or responded to it below because it does not require a 
response.
    In the process of reviewing the public comments to the NPRM, we 
independently determined that one change in the proposed rule would 
unintentionally increase the burden on us and on individuals claiming 
benefits to require development of a complete medical history covering 
at least the full 12 months prior to the application filing date, even 
when a fully favorable adjudication of the application is supported by 
medical evidence without development of the full 12 months of medical 
history. As explained in Part III below, we are modifying the final 
rule to keep existing language and eliminate this unintended effect. 
After carefully considering the public comments, we are otherwise 
adopting the proposed rule revisions without change.

II. Public Comments

    Comment: One commenter advocated for a standardized form or 
template for medical sources to use when submitting medical evidence, 
to allow medical sources to simply fill out the form rather than write 
an opinion letter. The commenter also suggested that evidence should 
only consist of formal, official medical documents, not oral or 
unofficial written material. Finally, the commenter suggested the rule 
contain more explanation of the type of benefits a disabled employee 
can receive in the workplace.
    Response: We did not adopt these suggestions. We disagree that a 
standardized form is needed for submitting medical evidence. The 
obligation to submit evidence described by this rule extends beyond 
opinion letters or medical source's assessments of an individual's 
capacity to work. Instead, medical evidence as described in our 
regulations at 20 CFR 220.46 encompasses office and progress notes, 
prior medical history, clinical findings such as the results of 
physical and mental examinations, laboratory findings, diagnosis, 
prescribed treatment, and other types of evidence that would be 
maintained in a medical source's file, in addition to statements about 
the claimant's ability to work despite the claimant's impairment. These 
records may be generated and maintained by many different medical 
providers, each with their own electronic or manual medical record 
system. Requiring all providers to submit these widely varying types of 
evidence in a standardized common form would be much more burdensome on 
providers than simply accepting copies of the medical records as they 
are already maintained by the providers in a native format and 
increases the risk that important evidence might be omitted in the 
process of transcribing records from their native format into the 
standardized common form. Additionally, medical providers have already 
widely adopted the SOAP (Subjective, Objective, Assessment and Plan) 
structure for documenting health care, which promotes effective 
communication between medical providers by organizing the most 
important information in an easily recognizable way and an easy to find 
location.\1\ This commonly used technique for organizing information in 
medical notes also assists our adjudicators to review medical evidence 
effectively even in the absence of a specific RRB-required form. In 
comparison to the burdens and risks imposed by requiring a specific 
RRB-required form, the gains in efficiency and ease of reviewing 
medical evidence in such a standardized common form are marginal and do 
not justify imposing such a requirement.
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    \1\ Podder V, Lew V, Ghassemzadeh S. SOAP Notes. [Updated 2023 
Aug 28]. In: StatPearls [internet]. Treasure Island (FL): StatPearls 
Publishing; 2024 Jan-. Available from: https://www.ncbi.nlm.nih.gov/books/NBK482263/.
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    We also disagree that evidence must be contained in a formal or 
official document to be considered. The rule as proposed does not 
expand or restrict the existing definition of ``evidence'' for purposes 
of evaluating disability claims under the Railroad Retirement Act. Our 
regulations at Sec.  220.46 explain we may use information from other 
sources to understand how an impairment affects a claimant's ability to 
work, including observations by nonmedical sources. For many of the 
same reasons explained above for why we decline to require a 
standardized form for submitting medical evidence, we decline to impose 
a threshold requirement of formality on receiving and considering 
medical or nonmedical evidence. Although receiving such evidence in the 
form of formal written documents may be preferable in many 
circumstances, we will not reject or decline to consider evidence that 
is submitted merely because it is submitted in an oral or informal 
written manner.
    Finally, we disagree with the need to explain more expansively what 
sort of benefits a disabled employee can receive in the workplace. The 
requirement to submit all evidence related to an individual's 
disability claim applies only to claims for disability under the 
Railroad Retirement Act for work in an employee's regular railroad 
occupation and disability under the Railroad Retirement Act for any 
regular employment. Other benefits that an employee may or may not be 
entitled to in connection with a disability are outside the scope of 
this rule and may not even be administered by the RRB. Therefore, such 
other benefits need not be addressed here.
    Comment: One commenter criticized the existing regulations as not 
requiring claimants to provide evidence of age, education, work 
experience, or daily activities, and suggested requiring this evidence 
would reduce fraud.
    Response: We believe this comment is based on an inaccurate factual 
premise, and the proposed rule need not be modified to address it. The 
existing regulation already provides that we may ask claimants to 
provide evidence about age, education, work experience, and daily 
activities when the facts of a specific case require it. While every 
claim for disability under the Railroad Retirement Act will require 
medical evidence to adjudicate the claim, not every claim will require 
all categories of vocational and other evidence articulated in the 
regulation. For example, when finding that an individual is medically 
disabled as explained in 20 CFR 220.110, we will not consider the 
individual's residual functional capacity, age, education, or work 
experience because those factors are not relevant to the determination. 
The proposed changes to 20 CFR 220.45 preserve our right to request 
necessary information about these non-medical factors when it is 
necessary to adjudicate a claim. This information is usually gathered 
initially as part of the application for disability, as approved by the 
Office of Management and Budget under control number 3220-0002. This 
collection has been approved without changes since 1990. The

[[Page 78237]]

changes proposed by the NPRM do not affect or modify that information 
collection. Therefore, we do not believe any changes to the proposed 
rule are required to address this concern.
    Comment: One commenter criticized the proposed rule as creating an 
undue burden on disabled claimants by requiring submission of evidence 
that is not relevant to the determination of disability status. The 
commenter also stated requiring all known evidence to be submitted is 
more likely to necessitate additional investigation based on extraneous 
information. The commenter advocated for leaving the existing rule in 
place without changes.
    Response: We disagree with the commenter. Unless the context 
indicates otherwise, we generally intend for the words we use in our 
regulations to be construed according to their ordinary meaning. In 
this rule, we intend for the word ``relates'' to have its ordinary 
meaning, which is to show or establish a logical or causal connection 
between two things. Although this meaning is broad and includes 
anything that has a logical or causal connection to the disability 
claim (including unfavorable evidence), evidence that is entirely 
irrelevant to the determination of disability would not ``relate[s] 
to'' the claimed disability. It is also important to note that we 
consider all of a claimant's impairments for which we have evidence or 
may develop evidence, not just the ones alleged, and we consider the 
combined effect of all impairments.\2\ We are also required, subject to 
certain exceptions, to develop a complete medical history for at least 
the 12 months preceding the date of the disability application.\3\ 
Therefore, evidence of treatment for conditions other than the one 
alleged by the claimant could relate to the disability claim. For 
example, if a claimant alleged a back impairment, the treatment records 
from health care providers other than the treating orthopedic surgeon 
(for example, from a family doctor who has rendered treatment for a 
condition other than the one alleged) may contain related information. 
Therefore, we may ask the claimant if they saw other providers during 
the period at issue. In addition, if the back impairment arose out of 
an injury at work, we would expect the claimant, upon our request, to 
inform us whether they filed a worker's compensation claim or personal 
injury lawsuit under the Federal Employers Liability Act (45 U.S.C. 51-
60). If so, we may obtain the records from that claim, because they may 
contain evidence that ``relates'' to the claim for disability.
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    \2\ 20 CFR 220.104.
    \3\ 20 CFR 220.45(b).
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    Because the commenter discussed the burden of submitting all 
evidence, we also considered whether this requirement is consistent 
with Executive Order 14058, Transforming Federal Customer Experience 
and Service Delivery to Rebuild Trust in Government, 86 FR 71357 (Dec. 
16, 2021). The order establishes an executive branch policy for 
agencies to effectively reduce administrative burdens and minimize 
``time taxes'' to more directly meet the needs of the people of the 
United States. We do not believe that clarifying the requirement to 
submit all evidence known to the claimant that relates to the claimed 
disability will result in a substantially increased burden on 
claimants. The rule does not require the claimant to create or obtain 
new evidence, only to inform the RRB of evidence that the claimant is 
aware of. The rule requires the RRB to assist the claimant in obtaining 
the required evidence if necessary. If the claimant informs the RRB 
about the existence of evidence, and the RRB is unable to obtain the 
evidence, the claimant has fulfilled the claimant's obligation and the 
RRB will not penalize the claimant or make any negative inference about 
the claimant's disability because of the inability to obtain evidence. 
When the claimant receives evidence from another source (for example, 
if the claimant obtains a copy of medical records from a primary care 
provider), the final rule requires the claimant to submit a complete 
copy rather than selectively choose which portions to submit. This 
should require less work on the part of the claimant or the claimant's 
representative by removing the need to exercise judgment over which 
portions of medical records should be submitted. Finally, the 
requirement to submit all evidence will enable us to obtain more 
complete case records and adjudicate claims more accurately, serving 
both a program integrity function (to ensure we do not improperly pay 
benefits) and the claimant's interest in receiving an accurate 
determination. In some cases, receiving complete copies of medical 
evidence and being informed of all evidence related to a particular 
claim will avoid the need for us to obtain consultative examinations of 
the claimant as explained in 20 CFR Subpart G, and this will facilitate 
prompt adjudications and save the claimant the burden of time and 
travel to attend such a consultative examination. These benefits 
outweigh the minimal additional burden that may result from this 
requirement.

III. Correction to Proposed Rule Based on Internal Review

    In reviewing the submitted public comments, we independently 
determined one of the proposed changes to 20 CFR 220.45(b) would 
increase the burden on us and on individuals claiming benefits in a way 
we did not intend and do not believe is necessary or beneficial. 
Currently, our regulations require us to develop a complete medical 
history covering at least the full 12 months preceding your application 
for benefits before we can decide that you are not disabled, unless you 
tell us your disability began less than 12 months before you filed your 
application. This language allows our adjudicators to make fully 
favorable allowance determinations without awaiting receipt of, or 
continuing to follow up on, requests for evidence that in the judgment 
of the adjudicator should not affect the allowance determination, if 
the evidence we possess is complete and detailed enough to support such 
a decision.\4\ This standard is consistent with Social Security 
Administration regulations and policy regarding evaluation of 
disability claims.\5\
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    \4\ 20 CFR 220.46(c); U.S. R.R. Ret. Brd. Gen. Couns. Op. L-
2017-59 (Dec. 8, 2017).
    \5\ 20 CFR 404.1512(b); Program Operations Manual System DI 
24515.020.
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    In the NPRM, we proposed to change the language in 20 CFR 220.45(b) 
to state we will develop that complete medical history covering the 
preceding 12 months before making any determination on your disability 
status. If implemented, this change would eliminate our discretion to 
make a fully favorable allowance decision based on less than 12 months 
of medical history, even when the evidence is complete and detailed 
enough to support a fully favorable decision. Favorable decisions could 
be delayed as a result while we wait for additional evidence or 
responses that we do not expect will change the result of the case. We 
did not intend to foreclose the use of discretion in this category of 
cases when we published the NPRM. As a result, we are modifying the 
language in the final rule to maintain the existing standard that 
permits fully favorable decisions with less than 12 months of medical 
history, if the evidence in our possession is complete and detailed 
enough to fully support the favorable decision. We also identified and 
fixed a small number of typographical and grammatical errors

[[Page 78238]]

that do not affect the substance of the rule.

Regulatory Analysis

Executive Order 12866, as Supplemented by Executive Order 13563

    The RRB, with the Office of Management and Budget, has determined 
that this is not a significant regulatory action under Executive Order 
12866, as supplemented by Executive Order 13563. Therefore, no 
regulatory impact analysis is required.

Executive Order 13132 (Federalism)

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the RRB believes that this proposed rule will 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement.

Regulatory Flexibility Act

    The RRB certifies that this rule will not have a significant 
economic impact on a substantial number of small entities because the 
rulemaking affects individuals only. Therefore, a regulatory 
flexibility analysis is not required under the Regulatory Flexibility 
Act, as amended.

Paperwork Reduction Act

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

List of Subjects in 20 CFR Part 220

    Disability benefits, Railroad employees, Railroad retirement.

    For the reasons set out in the preamble, the Railroad Retirement 
Board proposes to amend 20 CFR part 220 as follows:

PART 220--DETERMINING DISABILITY

0
1. The authority citation for part 220 continues to read as follows:

    Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.


0
2. Revise Sec.  220.45 to read as follows:


Sec.  220.45  Providing evidence of disability.

    (a) General. You are responsible for providing all evidence of the 
claimed disability and the effect of the disability on your ability to 
work. You must inform the Board about or submit all evidence known to 
you that relates to the claimed disability. This duty is ongoing and 
requires you to disclose any additional related evidence about which 
you become aware. This duty applies at each level of the administrative 
review process, including the appeals level, if the evidence relates to 
the period on or before the date of the hearings officer's decision. 
The Board will assist you, when necessary, in obtaining the required 
evidence. At its discretion, the Board will arrange for an examination 
by a consultant at the expense of the Board as explained in Sec. Sec.  
220.50 and 220.51.
    (b) Kind of evidence. (1) You must provide medical evidence proving 
that you have an impairment(s) and how severe it is during the time you 
claim to be disabled. The Board will consider only impairment(s) you 
claim to have or about which the Board receives evidence. Before 
deciding that you are not disabled, the Board will develop a complete 
medical history (i.e., evidence from the records of your medical 
sources) covering at least the preceding 12 months, unless you say that 
your disability began less than 12 months before you filed an 
application. The Board will make every reasonable effort to help you in 
getting medical reports from your own medical sources when you give the 
Board permission to request them. Every reasonable effort means that 
the Board will make an initial request and, after 20 days, one follow-
up request to your medical source to obtain the medical evidence 
necessary to make a determination before the Board evaluates medical 
evidence obtained from another source on a consultative basis. The 
medical source will have 10 days from the follow-up request to reply 
(unless experience indicates that a longer period is advisable in a 
particular case). In order to expedite processing, the Board may order 
a consultative exam from a non-treating source while awaiting receipt 
of medical source evidence. If the Board asks you to do so, you must 
contact the medical sources to help us get the medical reports.
    (2) Exceptions. Notwithstanding paragraph (a) of this section, 
evidence does not include:
    (i) Oral or written communications between you and your 
representative that are subject to the attorney-client privilege, 
unless you voluntarily disclose the communications to us; or
    (ii) Your representative's analysis of your claim, unless you or 
your representative voluntarily disclose it to us. Your 
representative's ``analysis of your claim'' means information that is 
subject to the attorney work product doctrine, but it does not include 
medical evidence, medical source opinions, or any other factual matter 
that we may consider in determining whether or not you are entitled to 
benefits (see paragraph (b)(2)(iv) of this section).
    (iii) The provisions of paragraph (b)(2)(i) of this section apply 
to communications between you and your non-attorney representative only 
if the communications would be subject to the attorney-client privilege 
if your non-attorney representative were an attorney. The provisions of 
paragraph (b)(2)(ii) of this section apply to the analysis of your 
claim by your non-attorney representative only if the analysis of your 
claim would be subject to the attorney work product doctrine if your 
non-attorney representative were an attorney.
    (iv) The attorney-client privilege generally protects confidential 
communications between an attorney and the attorney's client that are 
related to providing or obtaining legal advice. The attorney work 
product doctrine generally protects an attorney's analysis, theories, 
mental impressions, and notes. In the context of your disability claim, 
neither the attorney-client privilege nor the attorney work product 
doctrine allows you to withhold factual information, medical source 
opinions, or other medical evidence that we may consider in determining 
whether or not you are entitled to benefits. For example, if you tell 
your representative about the medical sources you have seen, your 
representative cannot refuse to disclose the identity of those medical 
sources to us based on the attorney-client privilege. As another 
example, if your representative asks a medical source to complete an 
opinion form related to your impairment(s), symptoms, or limitations, 
your representative cannot withhold the completed opinion form from us 
based on the attorney work product doctrine. The attorney work product 
doctrine would not protect the source's opinions on the completed form, 
regardless of whether or not your representative used the form in an 
analysis of your claim or made handwritten notes on the face of the 
report.
    (c) Your responsibility. You must inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled. When you submit evidence received from another source, you 
must submit that evidence in its entirety, unless you previously 
submitted the same evidence to us or we instruct you otherwise. The 
Board may also ask you to provide evidence about:

[[Page 78239]]

    (1) Your age;
    (2) Your education and training;
    (3) Your work experience;
    (4) Your daily activities both before and after the date you say 
that you became disabled;
    (5) Your efforts to work; and
    (6) Any other evidence showing how your impairment(s) affects your 
ability to work. (In Sec. Sec.  220.125 through 220.134, we discuss in 
more detail the evidence the Board needs when it considers vocational 
factors.)

    Dated: September 19, 2024.

    By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2024-21777 Filed 9-24-24; 8:45 am]
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