[Federal Register Volume 76, Number 85 (Tuesday, May 3, 2011)]
[Rules and Regulations]
[Pages 24802-24812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10486]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404, 405, 416, and 422
[Docket No. SSA-2008-0015]
RIN 0960-AG80
Eliminating the Decision Review Board
AGENCY: Social Security Administration.
ACTION: Final rules.
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SUMMARY: We are eliminating the Decision Review Board (DRB) portions of
part 405 of our rules, which we currently use as the final step in our
administrative review process for adjudicating initial disability
claims in our Boston region. As of the effective date of this
regulation, we will replace the DRB step with review by the Appeals
Council. The Appeals Council will follow most of the rules in parts 404
and 416 that we use in the rest of the country to adjudicate disability
claims at the Appeals Council level, with some differences needed to
accommodate the rules that govern administrative law judge (ALJ)
hearings in the Boston region. We will also authorize attorney advisors
in the Boston region to conduct certain prehearing proceedings and make
fully favorable decisions as they do in the rest of the country. We are
making these changes to improve service to claimants and to increase
consistency in our program rules.
DATES: These final rules are effective June 13, 2011.
FOR FURTHER INFORMATION CONTACT: Paul Kryglik, Social Security
Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401,
(410) 965-3735 for information about these rules. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
On March 31, 2006, we published final rules in the Federal Register
that implemented a number of changes in our process for handling
initial disability claims.\1\ We referred to those regulations
collectively as the Disability Service Improvement process (DSI). We
intended DSI to improve the way we handle initial disability claims.
DSI added rules that implemented a Quick Disability Determination (QDD)
process at the initial level of our administrative review process. It
also replaced the reconsideration step of the administrative review
process with review by a Federal Reviewing Official (FedRO),
established the Office of Medical and Vocational Expertise (OMVE), and
made changes to some of the procedures in our ALJ hearing-level
process. DSI also eliminated review by the Appeals Council, the final
step in our administrative review process. We replaced the Appeals
Council with the DRB, which reviewed certain ALJ decisions before those
decisions became final. On August 1, 2006, we implemented the DSI rules
in our Boston region, which consists of the States of Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. At that
time, we planned to implement the DSI rules in our remaining regions
over a period of several years.
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\1\ 71 FR 16424. Many of the changes are found in 20 CFR part
405.
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We have continually monitored the DSI process and made appropriate
changes when necessary. For example, we published final rules on
September 6, 2007, that implemented the QDD process nationally.\2\ In
other final rules, we suspended new claims processing through the
Office of the Federal Reviewing Official (OFedRO) and the OMVE under
subpart C of part 405 on March 23, 2008, so that we could reallocate
those resources to reduce the backlog at the ALJ hearing level.\3\ In
November 2008, the OFedRO issued a decision on the last of the claims
it had accepted for review.\4\ Thus, in accordance with our March 2008
final rules, the States in the Boston region returned to some of the
processes they followed before August 2006, including using either the
process for reconsideration of an initial determination in 20 CFR
404.907 and 416.1407 or the testing procedures in 20 CFR 404.906 and
416.1406.
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\2\ 72 FR 51173.
\3\ 73 FR 2411 (Jan. 15, 2008), corrected at 73 FR 10381 (Feb.
27, 2008).
\4\ 73 FR at 2412.
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On December 4, 2009, we published a notice of proposed rulemaking
(NPRM), Reestablishing Uniform National Disability Adjudication
Provisions, which proposed to eliminate DSI and return the Boston
region to the rules in parts 404 and 416 that we use to adjudicate
disability claims in the rest of the country.\5\ We are adopting some
of our proposed revisions in these final rules.
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\5\ 74 FR 63688.
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Explanation of Changes
In these final rules, we are eliminating the DRB and restoring the
Boston region to most of the same rules and procedures at the Appeals
Council level under parts 404 and 416 that we currently follow in the
rest of the country. We will continue to use our rules about hearings
before ALJs under part 405 in the Boston region, including our rules
that provide 75-day notice of a hearing and require a claimant to
submit all evidence 5 days prior to his or her hearing unless he or she
shows good cause. We are eliminating the existing rules that require
claimants to ask an ALJ to vacate the ALJ's dismissal of a hearing
request. Instead, under our new rules, claimants may appeal an ALJ's
dismissal of a hearing request
[[Page 24803]]
directly to the Appeals Council, as is our current practice in the rest
of the country.
Although we closed a claimant's official record once an ALJ issued
his or her decision under the DSI rules,\6\ the ALJ could consider new
evidence submitted afterwards under certain conditions.\7\ The DRB
could also consider new evidence under certain conditions. In these
final rules, we are eliminating the rule that allowed an ALJ to
consider new evidence and adding final section 405.401, which restricts
the conditions under which the Appeals Council can accept new evidence
in DSI claims. If a claimant appeals an ALJ's dismissal of a hearing
request, the Appeals Council will consider additional evidence about
the dismissal and decide whether it provides a basis for granting
review, as also described in final section 405.401.
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\6\ Current 20 CFR 405.360.
\7\ Current 20 CFR 405.373.
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With the other changes that we have already made to the DSI
process, we no longer need many of the DSI rules in part 405 and are
removing references to the FedRO from our rules. These final rules do
not affect our Disability Prototype and Single Decisionmaker
demonstration projects.
The DRB has not functioned as we originally intended; its workload
has grown quickly and become overwhelming. We had intended to use an
automated predictive model to select the most error-prone cases for DRB
review. However, because we were unable to implement this predictive
model, the DRB processed 100% of the unfavorable and partially
favorable decisions, requiring significantly more resources than we had
anticipated.
The DRB is composed of selected ALJs and administrative appeals
judges from the Appeals Council. As members of the DRB, they were
unavailable for their regular work, and our efforts to reduce the
hearing backlog suffered. Before we implemented DSI, requests for
review from the Boston region represented a small fraction of the
Appeals Council's total requests for review. Because the DRB processed
100% of the unfavorable and partially favorable cases, there were more
cases to review. At the same time, we had an increased number of
requests for review by the Appeals Council in other areas of the
country as we continued to work down our disability hearings backlog
and increased the number of ALJ adjudications nationwide. In fiscal
year (FY) 2010, the Appeals Council received 20% more requests for
review than in FY 2009, up from 106,965 in FY 2009 to 128,703 in FY
2010.
The DRB's workload also reduced needed resources at the ALJ hearing
level, as those ALJs who worked full-time on the DRB were unavailable
to hold hearings. If we continued the DRB, we would need to assign even
more ALJs to the DRB's workload as the number of DRB receipts rose due
to our hearings backlog reduction plan. Consequently, the continued use
of the DRB adversely affected our ability to reduce the hearings
backlog.
We also are adding a new section 405.342 to allow attorney advisors
to conduct prehearing proceedings and issue fully favorable decisions
on cases that arise in the Boston region in the same manner as they do
in the rest of the country. In our proposed rules, we proposed to
follow in the Boston region the same hearings-level procedures we use
in the rest of the country, including the rules that apply to our
attorney advisor program. Even though these final rules do not adopt
for the Boston region all of the hearings-level procedures we use in
the rest of the country, we are adding this rule to help us reduce the
backlog of cases awaiting a hearing.
Conforming Changes
We are making a number of conforming changes to sections in parts
404, 405, 416, and 422 to reflect this removal of the DRB rules. Some
sections in these final rules differ from the language we proposed in
the December 4, 2009 NPRM because these final rules retain the part 405
rules about the ALJ hearing level and include changes made after that
date by our final rules ``Disability Determinations by State Agency
Disability Examiners,'' which we published in the Federal Register on
October 13, 2010.\8\ We have already published final rules in parts 404
and 416 that either removed some aspects of the DSI process or extended
them nationally.\9\ With the changes to the DSI process in this final
rule, we are making a number of conforming changes consistent with the
2010 final rules.
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\8\ 75 FR 62676.
\9\ As stated above, under the final rules we published in March
2008 that ended the FedRO and OMVE initiatives, subpart C of part
405 is no longer in effect. See 20 CFR 405.10(d).
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Technical Change
We also are making a technical change to the heading of 20 CFR
416.926(e). The former heading was ``Responsibility for determining
medical equivalence.'' We are changing the heading to ``Who is
responsible for determining medical equivalence?'' This change will
make the heading consistent with its counterpart in 20 CFR 404.1526(e)
and the format of headings in surrounding sections.
Public Comments
We published an NPRM in the Federal Register on December 4, 2009,
and we gave the public 60 days to comment on it.\10\ The comment period
closed on February 2, 2010. We received comments from six individuals
and organizations. The comments are available for public viewing at
http://www.regulations.gov. The commenters supported most of the
proposed changes but were concerned about three issues, which we
discuss below. We carefully considered the comments. Because some of
the comments were long, we have condensed, summarized, and paraphrased
them. We have tried to summarize the commenters' views accurately, and
to respond to the significant issues raised by the commenters that were
within the scope of these rules.
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\10\ 74 FR 63688.
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Comment: Several of the commenters wanted attorney advisors in our
Office of Disability Adjudication and Review to be able to conduct
prehearing proceedings and issue fully favorable decisions in the
Boston region as they do in the rest of the country.\11\ These
commenters noted that we precluded attorney advisors from deciding DSI
cases.
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\11\ See 20 CFR 404.942 and 416.1442.
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Response: We are adopting this comment. As the commenters correctly
noted, the attorney advisor program is available only to disability
claims processed under parts 404 and 416 of our rules, and it does not
apply to claims processed under the DSI rules in part 405.\12\ We agree
with the commenters that we should extend the attorney advisor
prehearing process to claims processed in the Boston region as we
continue our efforts to reduce the number of disability claims that are
awaiting a hearing. Therefore, beginning on the effective date of these
final rules, we will allow attorney advisors to conduct prehearing
proceedings and issue fully favorable decisions on cases that arise in
the Boston region in the same manner as they do in the rest of the
country. We are adding this authority in new section 405.342.
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\12\ 73 FR 11349, 11350 (March 3, 2008).
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Comment: Most of the commenters asked us to extend DSI's 75-day
advance notice of a hearing rule in 20 CFR 405.315 to our national
rules in 20 CFR 404.938 and 416.1438, which require 20 days advance
notice.
[[Page 24804]]
Response: We are not adopting this comment. The rules we proposed
on December 4, 2009 addressed only rule changes related to our proposal
to eliminate the remaining DSI rules in part 405 of our rules. The
commenters' suggestion would make a substantive change to our rules in
parts 404 and 416, which is beyond the scope of this rulemaking. We
issued for public comment a separate NPRM that proposed to make several
substantive changes to our rules in parts 404 and 416, including the
change the commenters recommended, on October 29, 2007.\13\ We will
consider the commenters' suggestion in the context of that rulemaking
proceeding.
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\13\ 72 FR 61218.
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Comment: All of the commenters expressed concern about our plan to
transfer cases pending at the DRB to the Appeals Council on the
effective date of these final rules. The commenters believed that
claimants whose cases we would transfer would be disadvantaged because
they would have to wait longer for the Appeals Council to take action
than DSI's 90-day limit for DRB review. Some commenters believed that
this proposed procedure would be especially problematic in cases that
involve partially favorable decisions. Under DSI, the DRB reviews those
decisions before we effectuate them, while in non-DSI States, we first
effectuate a partially favorable decision before we send it to the
Appeals Council to consider the claimant's request for review. Some of
the commenters suggested that we handle pending DRB cases as we handled
cases pending review by a FedRO when we suspended FedRO case reviews in
2008. In that situation, we stopped sending new cases for FedRO review
but kept the rules for such review in place until a FedRO issued a
decision on the last pending case.
Response: We understand the commenters' concerns about longer
processing times at the Appeals Council. To help allay concerns about
processing times at the Appeals Council, we will put the transferred
cases at the front of the Appeals Council queue. We believe that this
approach will result in the best use of our resources and will result
in the best service to claimants.
We decided not to use a process similar to the one we used for
FedRO cases because the rapid growth in the DRB's workload, the
unanticipated need for adjudicative resources, and the impact on other
workloads both at the ALJ hearing level and at the Appeals Council are
adversely affecting our ability to serve the public. Transferring all
pending DRB cases to the Appeals Council on the effective date of these
rules will help us use our resources more effectively and provide the
best service to claimants.
We will process partially favorable ALJ decisions transferred to
the Appeals Council under these final rules in the following manner.
The Appeals Council will send partially favorable ALJ decisions that it
receives from the DRB to a processing component, and we will effectuate
these decisions in the same manner that we do for cases that arise in
other parts of the country. In addition, the Appeals Council will
notify those claimants whose claims we have transferred that we have
deemed that they have filed a request for Appeals Council review of the
ALJ's decision. That notice will inform the claimants that they have a
right to file a written request for withdrawal of the deemed request
for review. If the Appeals Council grants review of a partially
favorable ALJ decision, it will review the entire record and may
affirm, modify, or reverse the ALJ's decision.
When will we start to use these rules?
We will start to use these final rules on the effective date stated
above. Until then, we will continue to use our current rules.
On the effective date of these final rules, we will transfer all
cases pending before the DRB to the Appeals Council and treat these
cases as if the claimant had requested Appeals Council review of the
hearing decision. The Appeals Council will notify each of these
claimants that we have deemed that he or she has filed a request for
Appeals Council review of the ALJ's decision and that he or she has the
right to file a written request for withdrawal of the deemed request
for Appeals Council review. For cases in which a claimant has appealed
a dismissal by an ALJ under the procedures in part 405, we will treat
the pending request as a request for Appeals Council review of the
ALJ's dismissal. We will transfer to the Appeals Council any cases
remanded by a Federal court that we assigned to the DRB. We will
immediately begin effectuating partially favorable decisions when we
forward them for Appeals Council review.
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Order 135653
We consulted with the Office of Management and Budget (OMB) and
determined that these final rules meet the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Therefore, OMB reviewed them.
Regulatory Flexibility Act
We certify that these final rules will not have a significant
economic impact on a substantial number of small entities because they
affect only individuals. Therefore, a regulatory flexibility analysis
as provided in the Regulatory Flexibility Act, as amended, is not
required.
Paperwork Reduction Act
These final rules contain reporting requirements in the regulation
sections listed below. For some sections in these rules, we previously
accounted for the public reporting burdens in the Information
Collection Requests for the various forms the public uses to submit the
information to us. Consequently, we are not reporting those sections
below. The sections below pose new public reporting burdens not covered
by an existing OMB-approved form, and we provide burden estimates for
them.
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Average
Description of Number of Frequency of burden per Estimated
Regulation Section 20 CFR public reporting respondents response response annual burden
requirement (annually) (minutes) (hours)
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405.1(b)(5), 405.372(b)...... If applicants 833 1 30 417
have pursued
their claims
through all
levels of the
administrative
process and are
dissatisfied
with SSA's final
decision, they
(or parties
acting on their
behalf) may
request judicial
review by filing
an action in
Federal district
court within the
stated time
period.
[[Page 24805]]
405.1(c)(2).................. Applicants 5,310 1 10 885
appealing SSA's
decisions must
provide evidence
to support their
claims.
405.20....................... If one wants an 5,310 1 10 885
extension past
the deadline to
request
administrative
or judicial
review, one must
establish there
is good cause
for missing the
deadline.
405.372(c)................... If applicants 5,310 1 10 885
want to submit
additional
evidence to the
Appeals Council,
the Council will
only consider it
if it meets
certain criteria.
405.505...................... If one files for 833 1 30 417
an extension of
time to file a
civil action,
one must file
that request
with the Appeals
Council.
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Total.................... ................. 17,596 .............. .............. 3,489
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We are also seeking comment on our information collections in our
current rule sections listed below. We are updating the public
reporting burdens for the information collection requirements under OMB
control number 0960-0710. The following are updated burden estimates:
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Average
Description of Number of Frequency of burden per Estimated
Regulation section 20 CFR public reporting respondents response response annual burden
requirement (annually) (minutes) (hours)
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404.961, 416.1461, 405.330, An individual may 12,220 1 20 4,073
and 405.366. request a pre-
hearing or post-
hearing
conference.
404.950, 416.1450, and An individual has 1,040 1 20 347
405.332. the right to
present evidence
at a hearing,
including the
subpoena process.
404.949 and 416.1449......... An individual (or 2,868 1 60 2,868
designated
representative)
may appear
before an
administrative
law judge to
present an oral
or written
statement of a
case.
405.334...................... An individual (or 20 1 60 20
designated
representative)
may, at any time
before the
hearing begins,
submit a pre-
hearing
statement with
an explanation
of the alleged
disability.
404.957, 416.1457, and Explain the 21,041 1 10 3,507
405.380. conditions under
which an
administrative
law judge may
dismiss a
request for
hearing.
405.381...................... Outlines the 37 1 30 19
contents of the
notice of
dismissal and
the procedures
for requesting
Appeals Council
review of the
dismissal
decision.
405.401...................... Explains 5,310 1 10 885
procedures for
requesting
review of a
hearing decision
or a dismissal
of a hearing
request and the
conditions under
which the
Appeals Council
will consider
new evidence.
404.982 & 416.1482........... Pertains to the 1,687 1 30 844
extension of
time for filing
an action in a
Federal district
court.
404.987 & 404.988 and Outlines the 12,425 1 30 6,213
416.1487 & 416.1488 and conditions under
405.601. which we may
reopen a final
decision or
determination.
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Totals................... ................. 56,648 .............. .............. 18,776
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We submitted an Information Collection Request for clearance to
OMB. We are soliciting comments on the burden estimate; the need for
the information; its practical utility; ways to enhance its quality,
utility, and clarity; and ways to minimize the burden on respondents,
including the use of automated techniques or other forms of information
technology. If you would like to submit comments, please send them to
the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, E-mail address: [email protected].
Social Security Administration, Attn: Reports Clearance Officer, 1333
Annex, 6401 Security Blvd, Baltimore, MD 21235-0001, Fax Number: 410-
965-6400, E-mail: [email protected].
You can submit comments until July 5, 2011, which is 60 days after
the publication of these rules. However, your comments will be most
useful if you send them to us by June 2, 2011, which is 30 days after
publication. To receive a copy of the OMB clearance package, contact
the SSA Reports Clearance Officer using any of the above contact
methods. We prefer to receive comments by e-mail or fax.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social
[[Page 24806]]
Security--Retirement Insurance; 96.004, Social Security--Survivors
Insurance; and 96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind; Disability benefits;
Old-Age, Survivors, and Disability Insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 405
Administrative practice and procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability Insurance; Public assistance
programs; Reporting and recordkeeping requirements; Social Security;
Supplemental Security Income (SSI).
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits, Public Assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
20 CFR Part 422
Administrative practice and procedure; Organization and functions
(Government agencies); Reporting and recordkeeping requirements; Social
Security.
Dated: April 26, 2011.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we amend subparts J, P,
and Q of part 404, part 405, subparts I, J, and N of part 416, and
subparts B and C of part 422 of chapter III of title 20 Code of Federal
Regulations as set forth below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart J--[Amended]
0
1. The authority citation for subpart J of part 404 is revised to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
0
2. Amend Sec. 404.906 by removing the third and fourth sentences of
paragraph (b)(4).
0
3. Amend Sec. 404.930 by removing paragraph (c).
Subpart P--[Amended]
0
4. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a)-(b), and (d)-(h), 216(i), 221(a),
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security
Act (42 U.S.C. 402, 405(a)-(b), and (d)-(h), 416(i), 421(a), (i),
and (j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-
193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509
(42 U.S.C. 902 note).
0
5. Amend Sec. 404.1502 by revising the definition of ``nonexamining
source'' to read as follows:
Sec. 404.1502 General definitions and terms for this subpart.
* * * * *
Nonexamining source means a physician, psychologist, or other
acceptable medical source who has not examined you but provides a
medical or other opinion in your case. At the administrative law judge
hearing and Appeals Council levels of the administrative review
process, it includes State agency medical and psychological
consultants, other program physicians and psychologists, and medical
experts or psychological experts we consult. See Sec. 404.1527.
* * * * *
0
6. Amend Sec. 404.1512 by revising paragraph (b)(8) to read as
follows:
Sec. 404.1512 Evidence.
* * * * *
(b) * * *
(8) At the administrative law judge and Appeals Council levels,
findings, other than the ultimate determination about whether you are
disabled, made by State agency medical or psychological consultants and
other program physicians or psychologists, or other medical
specialists, and opinions expressed by medical experts or psychological
experts that we consult based on their review of the evidence in your
case record. See Sec. Sec. 404.1527(f)(2)-(3).
* * * * *
0
7. Amend Sec. 404.1513 by revising the first sentence of paragraph (c)
to read as follows:
Sec. 404.1513 Medical and other evidence of your impairment(s).
* * * * *
(c) * * * At the administrative law judge and Appeals Council
levels, we will consider residual functional capacity assessments made
by State agency medical and psychological consultants, and other
program physicians and psychologists to be ``statements about what you
can still do'' made by nonexamining physicians and psychologists based
on their review of the evidence in the case record. * * *
* * * * *
0
8. Amend Sec. 404.1519k by revising paragraph (a) to read as follows:
Sec. 404.1519k Purchase of medical examinations, laboratory tests,
and other services.
* * * * *
(a) The rate of payment for purchasing medical or other services
necessary to make determinations of disability may not exceed the
highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See Sec. Sec. 404.1624 and 404.1626
of this part.
* * * * *
0
9. Amend Sec. 404.1519m by revising the third sentence to read as
follows:
Sec. 404.1519m Diagnostic tests or procedures.
* * * A State agency medical consultant must approve the ordering
of any diagnostic test or procedure when there is a chance it may
involve significant risk. * * *
0
10. Amend Sec. 404.1519s by revising paragraph (c) to read as follows:
Sec. 404.1519s Authorizing and monitoring the consultative
examination.
* * * * *
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
* * * * *
0
11. Amend Sec. 404.1520a by revising the third sentence and removing
the fourth sentence of paragraph (d)(2), and revising paragraphs (e)
introductory text, (e)(1), (e)(4), and (e)(5) to read as follows:
Sec. 404.1520a Evaluation of mental impairments.
* * * * *
(d) * * *
(2) * * * We will record the presence or absence of the criteria
and the rating of the degree of functional limitation on a standard
document at the initial and reconsideration levels of the
administrative review process, or in the decision at the administrative
law judge hearing and Appeals Council levels (in cases in which the
Appeals Council issues a decision). * * *
* * * * *
(e) Documenting application of the technique. At the initial and
reconsideration levels of the administrative review process, we will
complete a standard document to record
[[Page 24807]]
how we applied the technique. At the administrative law judge hearing
and Appeals Council levels (in cases in which the Appeals Council
issues a decision), we will document application of the technique in
the decision. The following rules apply:
(1) When a State agency medical or psychological consultant makes
the determination together with a State agency disability examiner at
the initial or reconsideration level of the administrative review
process as provided in Sec. 404.1615(c)(1) of this part, the State
agency medical or psychological consultant has overall responsibility
for assessing medical severity. A State agency disability examiner may
assist in preparing the standard document. However, our medical or
psychological consultant must review and sign the document to attest
that it is complete and that he or she is responsible for its content,
including the findings of fact and any discussion of supporting
evidence.
* * * * *
(4) At the administrative law judge hearing and Appeals Council
levels, the written decision must incorporate the pertinent findings
and conclusions based on the technique. The decision must show the
significant history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a
conclusion about the severity of the mental impairment(s). The decision
must include a specific finding as to the degree of limitation in each
of the functional areas described in paragraph (c) of this section.
(5) If the administrative law judge requires the services of a
medical expert to assist in applying the technique but such services
are unavailable, the administrative law judge may return the case to
the State agency or the appropriate Federal component, using the rules
in Sec. 404.941 of this part, for completion of the standard document.
If, after reviewing the case file and completing the standard document,
the State agency or Federal component concludes that a determination
favorable to you is warranted, it will process the case using the rules
found in Sec. 404.941(d) or (e) of this part. If, after reviewing the
case file and completing the standard document, the State agency or
Federal component concludes that a determination favorable to you is
not warranted, it will send the completed standard document and the
case to the administrative law judge for further proceedings and a
decision.
0
12. Amend Sec. 404.1526 by revising the first sentence of paragraph
(d) and paragraph (e) to read as follows:
Sec. 404.1526 Medical equivalence.
* * * * *
(d) Who is a designated medical or psychological consultant? A
medical or psychological consultant designated by the Commissioner
includes any medical or psychological consultant employed or engaged to
make medical judgments by the Social Security Administration, the
Railroad Retirement Board, or a State agency authorized to make
disability determinations. * * *
(e) Who is responsible for determining medical equivalence? In
cases where the State agency or other designee of the Commissioner
makes the initial or reconsideration disability determination, a State
agency medical or psychological consultant or other designee of the
Commissioner (see Sec. 404.1616 of this part) has the overall
responsibility for determining medical equivalence. For cases in the
disability hearing process or otherwise decided by a disability hearing
officer, the responsibility for determining medical equivalence rests
with either the disability hearing officer or, if the disability
hearing officer's reconsideration determination is changed under Sec.
404.918 of this part, with the Associate Commissioner for Disability
Programs or his or her delegate. For cases at the administrative law
judge or Appeals Council level, the responsibility for deciding medical
equivalence rests with the administrative law judge or Appeals Council.
0
13. Amend Sec. 404.1527 by revising the first sentence of paragraph
(f)(1) and removing paragraph (f)(4), to read as follows:
Sec. 404.1527 Evaluating opinion evidence.
* * * * *
(f) * * *
(1) In claims adjudicated by the State agency, a State agency
medical or psychological consultant may make the determination of
disability together with a State agency disability examiner or provide
one or more medical opinions to a State agency disability examiner when
the disability examiner makes the initial or reconsideration
determination alone (see Sec. 404.1615(c) of this part). * * *
* * * * *
0
14. Amend Sec. 404.1529 by revising the third and fifth sentences of
paragraph (b) to read as follows:
Sec. 404.1529 How we evaluate symptoms, including pain.
* * * * *
(b) * * * In cases decided by a State agency (except in disability
hearings under Sec. Sec. 404.914 through 404.918 of this part and in
fully favorable determinations made by State agency disability
examiners alone under Sec. 404.1615(c)(3) of this part), a State
agency medical or psychological consultant or other medical or
psychological consultant designated by the Commissioner directly
participates in determining whether your medically determinable
impairment(s) could reasonably be expected to produce your alleged
symptoms. * * * At the administrative law judge hearing or Appeals
Council level of the administrative review process, the adjudicator(s)
may ask for and consider the opinion of a medical or psychological
expert concerning whether your impairment(s) could reasonably be
expected to produce your alleged symptoms. * * *
* * * * *
0
15. Amend Sec. 404.1546 by revising the first sentence of paragraph
(a) and paragraph (c), and removing paragraph (d), to read as follows:
Sec. 404.1546 Responsibility for assessing your residual functional
capacity.
(a) Responsibility for assessing residual functional capacity at
the State agency. When a State agency medical or psychological
consultant and a State agency disability examiner make the disability
determination as provided in Sec. 404.1615(c)(1) of this part, a State
agency medical or psychological consultant(s) is responsible for
assessing your residual functional capacity. * * *
* * * * *
(c) Responsibility for assessing residual functional capacity at
the administrative law judge hearing or Appeals Council level. If your
case is at the administrative law judge hearing level or at the Appeals
Council review level, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals
Council makes a decision) is responsible for assessing your residual
functional capacity.
Subpart Q--[Amended]
0
16. The authority citation for subpart Q of part 404 continues to read
as follows:
Authority: Secs. 205(a), 221, and 702(a)(5) of the Social
Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).
[[Page 24808]]
0
17. Amend Sec. 404.1601 by removing the third sentence of the
introductory text.
0
18. Amend Sec. 404.1616 by removing the third sentence of paragraph
(b), and removing paragraph (e)(4).
0
19. Amend Sec. 404.1624 by revising the first sentence to read as
follows:
Sec. 404.1624 Medical and other purchased services.
The State will determine the rates of payment for purchasing
medical or other services necessary to make determinations of
disability. * * *
PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL
DISABILITY CLAIMS
0
20. The authority citation for part 405 continues to read as follows:
Authority: Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221,
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421,
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).
Subpart A--[Amended]
0
21. Amend Sec. 405.1 by adding a third sentence to paragraph (b)(1)
and revising paragraphs (b)(2), (b)(3), (b)(4), (b)(5), the first
sentence of (c)(2), and (c)(3) to read as follows:
Sec. 405.1 Introduction.
* * * * *
(b) * * *
(1) * * * We use the procedures in part 404 subpart J of this
chapter, part 416 subpart N of this chapter, or both, for your initial
determination.
(2) Reconsideration. If you are dissatisfied with the initial
determination, you may ask us to reconsider it. We use the procedures
in part 404 subpart J of this chapter, part 416 subpart N of this
chapter, or both, for your reconsideration determination. You must
follow the procedure in Sec. Sec. 404.909 or 416.1409 of this chapter
to request reconsideration.
(3) Hearing before an administrative law judge. If you are
dissatisfied with the reconsidered determination, you may request a
hearing before an administrative law judge. The administrative law
judge will use the procedures in subpart D of this part.
(4) Appeals Council review. If you or any other party to the
hearing is dissatisfied with the administrative law judge's decision or
with the administrative law judge's dismissal of a hearing request, you
may request that the Appeals Council review that action. The Appeals
Council also may initiate review on its own motion. The Appeals Council
will use the procedures in subparts E through G of this part for its
review.
(5) Federal court review. If you have pursued your claim through
all levels of our administrative process and are dissatisfied with our
final decision, you may request judicial review by filing an action in
Federal district court.
(c) * * *
(2) Evidence considered and right to representation. Subject to
Sec. Sec. 405.331 and 405.430, you may present and we will consider
information in support of your claim. * * *
(3) Evidentiary standards applied. When we make a determination or
decision on your disability claim, we will apply a preponderance of the
evidence standard, except that the Appeals Council will review findings
of fact under the substantial evidence standard.
* * * * *
0
22. Revise Sec. 405.5 to read as follows:
Sec. 405.5 Definitions.
As used in this part:
Act means the Social Security Act, as amended.
Administrative law judge means an administrative law judge
appointed pursuant to the provisions of 5 U.S.C. 3105 who is employed
by the Social Security Administration.
Commissioner means the Commissioner of Social Security, or his or
her designee.
Date you receive notice means five days after the date on the
notice, unless you show us that you did not receive it within the five-
day period.
Day means calendar day, unless otherwise indicated.
Decision means the decision made by an administrative law judge,
attorney advisor, or the Appeals Council.
Disability claim or claim means:
(1) An application for benefits that is based on whether you are
disabled under title II of the Act, or
(2) An application for supplemental security income payments that
is based on whether you are disabled or blind under title XVI of the
Act.
(3) For purposes of this part, the terms ``disability claim'' or
``claim'' do not include a continuing disability review or age-18
redetermination.
Document includes books, records, correspondence, papers, as well
as forms of electronic media such as video tapes, CDs, and DVDs.
Evidence means evidence as defined under Sec. Sec. 404.1512 and
416.912 of this chapter.
Preponderance of the evidence means such relevant evidence that as
a whole shows that the existence of the fact to be proven is more
likely than not.
Substantial evidence means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
Vacate means to set aside a previous action.
We, us, or our refers to the Social Security Administration.
You or your refers to the person who has filed a disability claim
and, where appropriate, his or her authorized representative.
0
23. Remove and reserve Sec. 405.10.
0
24. Amend Sec. 405.20 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 405.20 Good cause for extending deadlines.
(a) If you want us to extend the deadline to request administrative
or judicial review, you must establish that there is good cause for
missing the deadline. * * *
* * * * *
Subparts B and C-- [Removed and Reserved]
0
25. Remove and reserve subparts B and C.
Subpart D--[Amended]
0
26. Amend Sec. 405.301 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 405.301 Hearing before an administrative law judge--general.
(a) This subpart explains what to do if you are dissatisfied with a
reconsidered determination or an initial determination subject to a
hearing by an administrative law judge under the procedures in this
part as a result of Sec. 404.906(b)(4) or Sec. 416.1406(b)(4) of this
chapter. * * *
* * * * *
0
27. Revise Sec. 405.305 to read as follows:
Sec. 405.305 Availability of a hearing before an administrative law
judge.
You may request a hearing before an administrative law judge if you
are dissatisfied with the reconsidered determination on your disability
claim or an initial determination subject to a hearing by an
administrative law judge under the procedures in this part as a result
of Sec. Sec. 404.906(b)(4) or 416.1406(b)(4) of this chapter.
0
28. Amend Sec. 405.310 by revising paragraph (a)(3) and the first
sentence of paragraph (b) to read as follows:
[[Page 24809]]
Sec. 405.310 How to request a hearing before an administrative law
judge.
(a) Written request. * * *
(3) The specific reasons you disagree with the previous
determination,
* * * * *
(b) Time limit for filing request. An administrative law judge will
conduct a hearing if you request one in writing no later than 60 days
after the date you receive notice of the reconsidered determination or
an initial determination subject to a hearing by an administrative law
judge under the procedures in this part as a result of Sec.
404.906(b)(4) or Sec. 416.1406(b)(4) of this chapter (or within the
extended time period if we extend the time as provided in paragraph (d)
of this section). * * *
* * * * *
0
29. Amend Sec. 405.320 by removing the last sentence of paragraph (b).
0
30. Add Sec. 405.342 to read as follows:
Sec. 405.342 Prehearing proceedings and decisions by attorney
advisors.
After a hearing is requested but before it is held, an attorney
advisor may conduct prehearing proceedings as set out in Sec. Sec.
404.942(c) or 416.1442(c) of this chapter. If, after the completion of
these proceedings, we can make a decision that is fully favorable to
you and all other parties based on the preponderance of the evidence,
an attorney advisor, instead of an administrative law judge, may issue
the decision. We use the procedures Sec. Sec. 404.942 or 416.1442 of
this chapter when we conduct prehearing proceedings or issue decisions
under this section.
0
31. Amend Sec. 405.360 by revising the last sentence to read as
follows:
Sec. 405.360 Official record.
* * * Subject to Sec. 405.401(c), the official record closes once
the administrative law judge issues his or her decision regardless of
whether it becomes our final decision.
0
32. Amend Sec. 405.365 by revising paragraph (a)(2) to read as
follows:
Sec. 405.365 Consolidated hearing before an administrative law judge.
(a) * * *
(2) If the administrative law judge consolidates the claims, he or
she will decide both claims, even if we have not yet made an initial
determination or a reconsidered determination on the other claim.
* * * * *
0
33. Amend Sec. 405.370 by removing the third sentence of paragraph (a)
and revising the third sentence of paragraph (b) to read as follows:
Sec. 405.370 Decisions by the administrative law judge.
* * * * *
(b) * * * Within five days after the hearing, if there are no
subsequent changes to the analysis in the oral decision, we will send
you a written decision that incorporates such oral decision by
reference. * * *
0
34. Amend Sec. 405.371 by revising the second and third sentences to
read as follows:
Sec. 405.371 Notice of the decision of an administrative law judge.
* * * The notice accompanying the decision will explain your right
to representation. It also will explain your right to request review of
the decision by the Appeals Council.
0
35. Revise Sec. 405.372 to read as follows:
Sec. 405.372 Effect of an administrative law judge's decision.
The decision of the administrative law judge is binding on all
parties to the hearing unless--
(a) You or another party requests a review of the decision by the
Appeals Council within the stated time period, and the Appeals Council
reviews your case;
(b) You or another party requests a review of the decision by the
Appeals Council within the stated time period, the Appeals Council
denies your request for review, you seek judicial review of your case
by filing an action in a Federal district court, and the Federal court
reverses the decision or remands it for further administrative action;
(c) An administrative law judge or the Appeals Council revises the
decision under Sec. 405.601 of this part;
(d) You use the expedited appeals process described in Sec. Sec.
404.923 through 404.928 or 416.1423 through 416.1428 of this chapter;
(e) The ALJ decided the case after a Federal court remanded your
case to us, and the Appeals Council follows the procedures in
Sec. Sec. 404.984 or 416.1484 of this chapter to assume jurisdiction
of your case; or
(f) The Appeals Council reviews the claim on its own motion.
0
36. Remove and reserve Sec. 405.373.
0
37. Amend Sec. 405.381 by revising the second and third sentences to
read as follows:
Sec. 405.381 Notice of dismissal of a request for a hearing before an
administrative law judge.
* * * The notice will tell you that you may ask the Appeals Council
to review the dismissal and will explain your right to representation.
Your request for review by the Appeals Council must be in writing and
must be filed within 60 days after the date that you receive notice of
the dismissal.
0
38. Remove and reserve Sec. 405.382.
0
39. Revise Sec. 405.383 to read as follows:
Sec. 405.383 Effect of dismissal of a request for a hearing before an
administrative law judge.
The administrative law judge's dismissal of a request for a hearing
is binding and not subject to further review, unless an administrative
law judge or the Appeals Council vacates it.
Subpart E--[Amended]
0
40. Revise the heading of subpart E of part 405 to read as follows:
Subpart E--Appeals Council Review
0
41. Revise Sec. 405.401 to read as follows:
Sec. 405.401 Appeals Council review.
(a) If you (or any other party) are dissatisfied with the hearing
decision or with the dismissal of a hearing request under this part,
you may request that the Appeals Council review that action. The
Appeals Council may also initiate review on its own motion. Except as
specifically provided in this subpart, we will follow our rules for
Appeals Council review in Sec. Sec. 404.966 through 404.984 and
416.1466 through 416.1484 of this chapter.
(b) If you seek Appeals Council review, you must file your request
within the time period and in accordance with the procedures in
Sec. Sec. 404.968 and 416.1468 of this chapter. The Appeals Council
will consider additional evidence only in accordance with paragraph (c)
of this section.
(c) If you submit additional evidence, the Appeals Council will
consider the additional evidence only where it relates to the period on
or before the date of the hearing decision, and only if you show that
there is a reasonable probability that the evidence, alone or when
considered with the other evidence of record, would change the outcome
of the decision, and
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from submitting the evidence earlier;
or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from submitting the evidence earlier.
[[Page 24810]]
0
42. Remove and reserve Sec. Sec. 405.405, 405.410, 405.415, 405.420,
405.425, and 405.427.
0
43. Revise Sec. 405.430 to read as follows:
Sec. 405.430 Record before the Appeals Council.
Subject to Sec. 405.401(c), the record is closed as of the date of
the administrative law judge's decision, and the Appeals Council will
base its action on the same evidence that was before the administrative
law judge.
0
44. Remove and reserve Sec. Sec. 405.440, 405.445, and 405.450.
Subpart F--[Amended]
0
45. Amend Sec. 405.505 by revising the third sentence to read as
follows:
Sec. 405.505 Extension of time to file a civil action.
* * * You must file your request with the Appeals Council. * * *
0
46. Revise Sec. 405.510 to read as follows:
Sec. 405.510 Claims remanded by a Federal court.
When a Federal court remands a claim decided under this part for
further agency consideration, the Appeals Council may make a decision
based upon the evidence in the record, or it may remand the claim to an
administrative law judge. If the Appeals Council remands a claim to an
administrative law judge, the Appeals Council will send you a notice of
remand.
Subpart H -- [Removed and Reserved]
0
47. Remove and reserve subpart H.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--[Amended]
0
48. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
49. Amend Sec. 416.902 by revising the definition of ``nonexamining
source'' to read as follows:
Sec. 416.902 General definitions and terms for this subpart.
* * * * *
Nonexamining source means a physician, psychologist, or other
acceptable medical source who has not examined you but provides a
medical or other opinion in your case. At the administrative law judge
hearing and Appeals Council levels of the administrative review
process, it includes State agency medical and psychological
consultants, other program physicians and psychologists, and medical
experts or psychological experts we consult. See Sec. 416.927.
* * * * *
0
50. Amend Sec. 416.912 by revising paragraph (b)(8) to read as
follows:
Sec. 416.912 Evidence.
* * * * *
(b) * * *
(8) At the administrative law judge and Appeals Council levels,
findings, other than the ultimate determination about whether you are
disabled, made by State agency medical or psychological consultants and
other program physicians or psychologists, or other medical
specialists, and opinions expressed by medical experts or psychological
experts that we consult based on their review of the evidence in your
case record. See Sec. Sec. 416.927(f)(2)-(3).
* * * * *
0
51. Amend Sec. 416.913 by revising the first sentence of paragraph (c)
to read as follows:
Sec. 416.913 Medical and other evidence of your impairment(s).
* * * * *
(c) * * * At the administrative law judge and Appeals Council
levels, we will consider residual functional capacity assessments made
by State agency medical and psychological consultants and other program
physicians and psychologists to be ``statements about what you can
still do'' made by nonexamining physicians and psychologists based on
their review of the evidence in the case record. * * *
* * * * *
0
52. Amend Sec. 416.919k by revising paragraph (a) to read as follows:
Sec. 416.919k Purchase of medical examinations, laboratory tests, and
other services.
* * * * *
(a) The rate of payment for purchasing medical or other services
necessary to make determinations of disability may not exceed the
highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See Sec. Sec. 416.1024 and 416.1026
of this part.
* * * * *
0
53. Amend Sec. 416.919m by revising the third sentence to read as
follows:
Sec. 416.919m Diagnostic tests or procedures.
* * * A State agency medical consultant must approve the ordering
of any diagnostic test or procedure when there is a chance it may
involve significant risk. * * *
0
54. Amend Sec. 416.919s by revising paragraph (c) to read as follows:
Sec. 416.919s Authorizing and monitoring the consultative
examination.
* * * * *
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
* * * * *
0
55. Amend Sec. 416.920a by revising the third sentence and removing
the fourth sentence of paragraph (d)(2) and revising paragraphs (e)
introductory text, (e)(1), (e)(4), and (e)(5) to read as follows:
Sec. 416.920a Evaluation of mental impairments.
* * * * *
(d) * * *
(2) * * * We will record the presence or absence of the criteria
and the rating of the degree of functional limitation on a standard
document at the initial and reconsideration levels of the
administrative review process, or in the decision at the administrative
law judge hearing and Appeals Council levels (in cases in which the
Appeals Council issues a decision). * * *
* * * * *
(e) Documenting application of the technique. At the initial and
reconsideration levels of the administrative review process, we will
complete a standard document to record how we applied the technique. At
the administrative law judge hearing and Appeals Council levels (in
cases in which the Appeals Council issues a decision), we will document
application of the technique in the decision. The following rules
apply:
(1) When a State agency medical or psychological consultant makes
the determination together with a State agency disability examiner at
the initial or reconsideration level of the administrative review
process as provided in Sec. 416.1015(c)(1) of this part, the State
agency medical or psychological consultant has overall
[[Page 24811]]
responsibility for assessing medical severity. A State agency
disability examiner may assist in preparing the standard document.
However, our medical or psychological consultant must review and sign
the document to attest that it is complete and that he or she is
responsible for its content, including the findings of fact and any
discussion of supporting evidence.
* * * * *
(4) At the administrative law judge hearing and Appeals Council
levels, the written decision must incorporate the pertinent findings
and conclusions based on the technique. The decision must show the
significant history, including examination and laboratory findings, and
the functional limitations that were considered in reaching a
conclusion about the severity of the mental impairment(s). The decision
must include a specific finding as to the degree of limitation in each
of the functional areas described in paragraph (c) of this section.
(5) If the administrative law judge requires the services of a
medical expert to assist in applying the technique but such services
are unavailable, the administrative law judge may return the case to
the State agency or the appropriate Federal component, using the rules
in Sec. 416.1441 of this part, for completion of the standard
document. If, after reviewing the case file and completing the standard
document, the State agency or Federal component concludes that a
determination favorable to you is warranted, it will process the case
using the rules found in Sec. 416.1441(d) or (e) of this part. If,
after reviewing the case file and completing the standard document, the
State agency or Federal component concludes that a determination
favorable to you is not warranted, it will send the completed standard
document and the case to the administrative law judge for further
proceedings and a decision.
0
56. Amend Sec. 416.924 by revising paragraph (g) to read as follows:
Sec. 416.924 How we determine disability for children.
* * * * *
(g) How we will explain our findings. When we make an initial or
reconsidered determination whether you are disabled under this section
or whether your disability continues under Sec. 416.994a (except when
a disability hearing officer makes the reconsideration determination),
we will complete a standard form, Form SSA-538, Childhood Disability
Evaluation Form. The form outlines the steps of the sequential
evaluation process for individuals who have not attained age 18. The
State agency medical or psychological consultant (see Sec. 416.1016 of
this part) or other designee of the Commissioner has overall
responsibility for the content of the form and must sign the form to
attest that it is complete and that he or she is responsible for its
content, including the findings of fact and any discussion of
supporting evidence. Disability hearing officers, administrative law
judges, and the administrative appeals judges on the Appeals Council
(when the Appeals Council makes a decision) will not complete the form
but will indicate their findings at each step of the sequential
evaluation process in their determinations or decisions.
0
57. Amend Sec. 416.926 by revising the first sentence of paragraph (d)
and revising paragraph (e) to read as follows:
Sec. 416.926 Medical equivalence for adults and children.
* * * * *
(d) Who is a designated medical or psychological consultant? A
medical or psychological consultant designated by the Commissioner
includes any medical or psychological consultant employed or engaged to
make medical judgments by the Social Security Administration, the
Railroad Retirement Board, or a State agency authorized to make
disability determinations. * * *
(e) Who is responsible for determining medical equivalence? In
cases where the State agency or other designee of the Commissioner
makes the initial or reconsideration disability determination, a State
agency medical or psychological consultant or other designee of the
Commissioner (see Sec. 416.1016 of this part) has the overall
responsibility for determining medical equivalence. For cases in the
disability hearing process or otherwise decided by a disability hearing
officer, the responsibility for determining medical equivalence rests
with either the disability hearing officer or, if the disability
hearing officer's reconsideration determination is changed under Sec.
416.1418 of this part, with the Associate Commissioner for Disability
Programs or his or her delegate. For cases at the administrative law
judge or Appeals Council level, the responsibility for deciding medical
equivalence rests with the administrative law judge or Appeals Council.
0
58. Amend Sec. 416.926a by revising paragraph (n) to read as follows:
Sec. 416.926a Functional equivalence for children.
* * * * *
(n) Responsibility for determining functional equivalence. In cases
where the State agency or other designee of the Commissioner makes the
initial or reconsideration disability determination, a State agency
medical or psychological consultant or other designee of the
Commissioner (see Sec. 416.1016 of this part) has the overall
responsibility for determining functional equivalence. For cases in the
disability hearing process or otherwise decided by a disability hearing
officer, the responsibility for determining functional equivalence
rests with either the disability hearing officer or, if the disability
hearing officer's reconsideration determination is changed under Sec.
416.1418 of this part, with the Associate Commissioner for Disability
Programs or his or her delegate. For cases at the administrative law
judge or Appeals Council level, the responsibility for deciding
functional equivalence rests with the administrative law judge or
Appeals Council.
0
59. Amend Sec. 416.927 by revising the first sentence of paragraph
(f)(1) and removing paragraph (f)(4), to read as follows:
Sec. 416.927 Evaluating opinion evidence.
* * * * *
(f) * * *
(1) In claims adjudicated by the State agency, a State agency
medical or psychological consultant may make the determination of
disability together with a State agency disability examiner or provide
one or more medical opinions to a State agency disability examiner when
the disability examiner makes the initial or reconsideration
determination alone (See Sec. 416.1015(c) of this part). * * *
* * * * *
0
60. Amend Sec. 416.929 by revising the third and fifth sentences of
paragraph (b) to read as follows:
Sec. 416.929 How we evaluate symptoms, including pain.
* * * * *
(b) * * * In cases decided by a State agency (except in disability
hearings under Sec. Sec. 416.1414 through 416.1418 of this part and in
fully favorable determinations made by State agency disability
examiners alone under Sec. 416.1015(c)(3) of this part), a State
agency medical or psychological consultant or other medical or
psychological consultant designated by the Commissioner directly
participates in determining whether your medically determinable
impairment(s) could reasonably be expected to produce your alleged
symptoms. * * * At the
[[Page 24812]]
administrative law judge hearing or Appeals Council level of the
administrative review process, the adjudicator(s) may ask for and
consider the opinion of a medical or psychological expert concerning
whether your impairment(s) could reasonably be expected to produce your
alleged symptoms. * * *
* * * * *
0
61. Amend Sec. 416.946 by revising the first sentence in paragraph (a)
and paragraph (c), and removing paragraph (d), to read as follows:
Sec. 416.946 Responsibility for assessing your residual functional
capacity.
(a) Responsibility for assessing residual functional capacity at
the State agency. When a State agency medical or psychological
consultant and a State agency disability examiner make the disability
determination as provided in Sec. 416.1015(c)(1) of this part, a State
agency medical or psychological consultant(s) is responsible for
assessing your residual functional capacity. * * *
* * * * *
(c) Responsibility for assessing residual functional capacity at
the administrative law judge hearing or Appeals Council level. If your
case is at the administrative law judge hearing level or at the Appeals
Council review level, the administrative law judge or the
administrative appeals judge at the Appeals Council (when the Appeals
Council makes a decision) is responsible for assessing your residual
functional capacity.
Subpart J--[Amended]
0
62. The authority citation for subpart J of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).
0
63. Amend Sec. 416.1001 by removing the third sentence of the
introductory text.
0
64. Amend Sec. 416.1016 by removing the third sentence of paragraph
(b) and removing paragraph (e)(4).
0
65. Amend Sec. 416.1024 by revising the first sentence to read as
follows:
Sec. 416.1024 Medical and other purchased services.
The State will determine the rates of payment for purchasing
medical or other services necessary to make determinations of
disability. * * *
Subpart N--[Amended]
0
66. The authority citation for subpart N of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
0
67. Amend Sec. 416.1406 by removing the third and fourth sentences of
paragraph (b)(4).
0
68. Amend Sec. 416.1430 by removing paragraph (c).
PART 422--ORGANIZATION AND PROCEDURES
Subpart B--[Amended]
0
69. The authority citation for subpart B of part 422 continues to read
as follows:
Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the
Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and
1320b-13), and sec. 7213(a)(1)(A) of Pub. L. 108-458.
0
70. Amend Sec. 422.130 by revising the first sentence of paragraph (b)
and the second sentence of paragraph (c) to read as follows:
Sec. 422.130 Claim procedure.
* * * * *
(b) * * * An individual who files an application for monthly
benefits, the establishment of a period of disability, a lump-sum death
payment, or entitlement to hospital insurance benefits or supplementary
medical insurance benefits, either on his own behalf or on behalf of
another, must establish by satisfactory evidence the material
allegations in his application, except as to earnings shown in the
Social Security Administration's records (see subpart H of part 404 of
this chapter for evidence requirements in nondisability cases and
subpart P of part 404 of this chapter for evidence requirements in
disability cases). * * *
(c) * * * Section 404.1503 of this chapter has a discussion of the
respective roles of State agencies and the Administration in the making
of disability determinations and information regarding initial
determinations as to entitlement or termination of entitlement in
disability claims. * * *
0
71. Revise Sec. 422.140 to read as follows:
Sec. 422.140 Reconsideration of initial determination.
If you are dissatisfied with an initial determination with respect
to entitlement to monthly benefits, a lump-sum death payment, a period
of disability, a revision of an earnings record, with respect to any
other right under title II of the Social Security Act, or with respect
to entitlement to hospital insurance benefits or supplementary medical
insurance benefits, you may request that we reconsider the initial
determination. The information in Sec. 404.1503 of this chapter as to
the respective roles of State agencies and the Social Security
Administration in making disability determinations is also generally
applicable to the reconsideration of initial determinations involving
disability. However, in cases in which a disability hearing as
described in Sec. Sec. 404.914 through 404.918 and Sec. Sec. 416.1414
through 416.1418 of this chapter is available, the reconsidered
determination may be issued by a disability hearing officer or the
Associate Commissioner for Disability Programs or his or her delegate.
After the initial determination has been reconsidered, we will mail you
written notice and inform you of your right to a hearing before an
administrative law judge (see Sec. 422.201).
Subpart C--[Amended]
0
72. Revise the heading of subpart C of part 422 to read as follows:
Subpart C--Procedures of the Office of Disability Adjudication and
Review
0
73. The authority citation for subpart C of part 422 continues to read
as follows:
Authority: Secs. 205, 221, and 702(a)(5) of the Social Security
Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).
0
74. Amend Sec. 422.201 by revising the first and third sentences of
the introductory text to read as follows:
Sec. 422.201 Material included in this subpart.
This subpart describes in general the procedures relating to
hearings before an administrative law judge of the Office of Disability
Adjudication and Review, review by the Appeals Council of the hearing
decision or dismissal, and court review in cases decided under the
procedures in parts 404, 405, 408, 410, and 416 of this chapter. * * *
Procedures related to hearings before an administrative law judge,
review by the Appeals Council, or court review in claims adjudicated
under the procedures in part 405 of this chapter are explained in
subparts D, E, and F of part 405 of this chapter. * * *
* * * * *
[FR Doc. 2011-10486 Filed 5-2-11; 8:45 am]
BILLING CODE 4191-02-P