Revisions to Rules Regarding the Evaluation of Medical Evidence

Federal RegisterSep 9, 2016

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2012-0035]

RIN 0960-AH51

Revisions to Rules Regarding the Evaluation of Medical Evidence

AGENCY:

Social Security Administration.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

We are proposing several revisions to our medical evidence rules. The proposals include redefining several key terms related to evidence, revising our list of acceptable medical sources (AMS), revising how we consider and articulate our consideration of medical opinions and prior administrative medical findings, revising who can be a medical consultant (MC) and psychological consultant (PC), revising our rules about treating sources, and reorganizing our evidence regulations for ease of use. These proposed revisions would conform our rules with the requirements of the Bipartisan Budget Act of 2015 (BBA), reflect changes in the national healthcare workforce and in the manner that individuals receive primary medical care, simplify and reorganize our rules to make them easier to understand and apply, allow us to continue to make accurate and consistent decisions, and emphasize the need for objective medical evidence in disability and blindness claims.

DATES:

To ensure that we consider your comments, we must receive them by no later than November 8, 2016.

ADDRESSES:

You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2012-0035 so that we may associate your comments with the correct regulation.

CAUTION: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

Internet:

We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at

http://www.regulations.gov.

Use the “Search” function to find docket number SSA-2012-0035. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

Fax:

Fax comments to (410) 966-2830.

Mail:

Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

Comments and background documents are available for public viewing on the Federal eRulemaking portal at

www.regulations.gov

or in person, during regular business hours, by arranging with the contact person identified below.

FOR FURTHER INFORMATION CONTACT:

Dan O'Brien, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 597-1632. 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

www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Preamble Table of Contents

I. Background

II. Redefining and Categorizing Terms Related to Evidence

A. What Is Evidence

B. Overview of Proposed Revisions

C. Medical Sources

D. Objective Medical Evidence

E. Medical Opinions

F. Other Medical Evidence

G. Statements From Nonmedical Sources

H. Prior Administrative Medical Findings

I. Decisions by Other Governmental Agencies and Nongovernmental Entities

J. Disability Examiner Findings

K. Statements on Issues Reserved to the Commissioner

III. Establishing the Existence of an Impairment

A. Current Rules

B. Proposed Revisions

IV. Acceptable Medical Sources (AMS)

A. Current AMS Rules

B. Why We Are Proposing To Add New AMSs

C. Proposed New AMSs

D. Other Revisions to the Current AMS List

E. Related Revisions to Our Listings

V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs

VI. Consideration and Articulation of Medical Opinions and Prior Administrative Medical Findings

A. Our Current Rules About Considering Medical Opinions and Administrative Findings of Fact

B. Our Current Rules About Articulating How We Consider Medical Opinions and Administrative Findings of Fact

C. History of the Controlling Weight Rule

D. Experience With the Current Rules for Weighing Medical Opinions

1. The Number of Findings Required

2. Federal Court Perspectives

3. Ninth Circuit's Credit-as-True Rule

4. Difficulty Determining Treating Source Status Due to the Changing Nature of the Primary Healthcare System

5. Legal Scholars' Perspectives on the Treating Physician Rule

E. Proposed Revisions About How To Consider Medical Opinions and Prior Administrative Medical Findings

F. Proposed Revisions About How To Articulate How We Consider Medical Opinions and Prior Administrative Medical Findings

VII. Other Revisions Related to Treating Sources

A. Background

B. Proposed Revisions

VIII. Reorganizing Our Opinion Evidence Regulations

A. Distribution Table

B. Derivation Table

IX. Effect Upon Certain Social Security Rulings

X. Proposed Implementation Process

I. Background

The Social Security Act (Act) mandates that we find an individual disabled only if he or she furnishes the medical and other evidence that we require.

Much of the terminology and organization of our current evidence rules remain the same as when we adopted them in 1991 (the 1991 final rules).

In the 1991 final rules, we defined evidence, listed categories of evidence, explained the factors we use to weigh medical opinions, and explained that we give controlling weight to medical opinions from treating sources about the nature and severity of claimants' impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This latter rule is commonly known as our “treating physician rule.”

42 U.S.C. 423(d)(5)(A) and 42 U.S.C. 1382c(a)(3)(H)(i).

Standards for Consultative Examinations and Existing Medical Evidence, 56 FR 36932 (Aug. 1, 1991).

We have modified these rules a few times since 1991. We expanded the list of AMSs who can be medical consultants, who can provide medical opinions, and who can provide us

with objective medical evidence to establish the existence of an impairment(s) at step 2 of the sequential evaluation process.

We also issued rules that clarified how administrative law judges (ALJ) and the Appeals Council (AC) must consider opinion evidence from State agency medical and psychological consultants, other program physicians and psychologists, and medical experts whom we consult.

In addition, we have issued rules modifying the requirement that we recontact a person's medical source(s) when we need to resolve an inconsistency or insufficiency in the evidence he or she provided.

We also clarified a person's duty to submit medical and other evidence that relates to his or her disability claim.

See,

e.g.,

Federal Old-Age, Survivors and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Medical and Other Evidence of Your Impairment(s) and Definition of Medical Consultant, 65 FR 34950 (June 1, 2000). See also, Optometrists as “Acceptable Medical Sources” To Establish a Medically Determinable Impairment, 72 FR 9239 (March 1, 2007).

Federal Old-Age, Survivors and Disability Insurance and Supplemental Security Income for the Aged, Blind, and Disabled; Evaluating Opinion Evidence, 65 FR 11866 (March 7, 2000).

How We Collect and Consider Evidence of Disability, 77 FR 10651 (February 23, 2012).

See Id., and Submission of Evidence in Disability Claims, 80 FR 14828 (March 20, 2015).

As part of our reevaluation of our regulations that deal with weighing medical opinions, we asked the Administrative Conference of the United States (ACUS)

to provide us with recommendations on how to improve our medical opinion evidence in the disability and blindness claims evaluation process. ACUS issued its Final Report (ACUS Final Report) in April 2013.

ACUS is “an independent federal agency dedicated to improving the administrative process through consensus-driven applied research, providing nonpartisan expert advice and recommendations for improvement of federal agency procedures.” About the Administrative Conference of the United States (ACUS), available at

http://www.acus.gov/about-administrative-conference-united-states-acus.

Administrative Conference of the United States, SSA Disability Benefits Programs: Assessing the Efficacy of the Treating Physician Rule (April 3, 2013), available at

http://www.acus.gov/sites/default/files/documents/Treating_Physician_Rule_Final_Report_4-3-2013_0.pdf.

In light of the ACUS Final report and our adjudicative experience, we are proposing a number of revisions to our medical source and opinion evidence regulations to make them easier to understand and use. We expect that these changes will help us further ensure our high level of accuracy in future determinations and decisions. We discuss each of these proposed revisions below.

We also propose to revise related rules about who can be MCs and PCs in conformity with requirements in the BBA.

II. Redefining and Categorizing Terms Related to Evidence

We propose to redefine and categorize several terms to make our rules of evidence easier to understand and use. We also propose to identify certain types of evidence that are inherently neither valuable nor persuasive for our purposes and for which we will not articulate an analysis in determinations and decisions.

A. What Is Evidence

Our current rules state that evidence is anything that we obtain or is submitted to us that relates to a claim.

Our rules list several types of evidence as examples: (1) Objective medical evidence, (2) other evidence from medical sources (including medical opinions), (3) statements you or others make, (4) information from other sources, (5) decisions by any other governmental or nongovernmental agency, and (6) certain findings and opinions made by our employees and program experts.

20 CFR 404.1512(b) and 416.912(b).

20 CFR 404.1512(b)(1)(i)-(viii) and 416.912(b)(1)(i)-(viii).

Our regulations also state that medical source opinions on issues reserved to the Commissioner do not satisfy our definition of a medical opinion.

We issued Social Security Ruling (SSR) 96-5p to explain how we consider these opinions.

However, our adjudicative experience has shown that we can improve the current regulatory structure for categorizing and evaluating this evidence.

The current definition of issues reserved to the Commissioner is found in 404.1527(d)(2)-(d)(3) and 416.927(d)(2)-(d)(3).

SSR 96-5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner (61 FR 34471) (July 2, 1996)).

B. Overview of Proposed Revisions

We propose to reorganize and define categories of evidence to make them easier to apply in the disability adjudication process. The proposed categories of evidence are: (1) Objective medical evidence, (2) medical opinions, (3) other medical evidence, (4) statements from nonmedical sources, and (5) prior administrative medical findings.

Each category would have a specific definition and purpose in our administrative process.

20 CFR 404.1512(d) and 416.912(d).

We would categorize evidence from medical sources other than our Federal and State agency MCs and PCs as objective medical evidence, medical opinions, or other medical evidence.

We would categorize evidence from our MCs and PCs as prior administrative medical findings.

We would categorize evidence from nonmedical sources, such as from the claimant, family, and employers, as statements from nonmedical sources.

When the Appeals Council uses the expertise of the medical sources on its Medical Support Staff, we categorize and consider the evidence from those medical sources as we do for any medical source who is not an MC or PC. We would continue to follow this practice under the rules proposed in this NPRM.

Our current rules clarify that when MCs and PCs are part of the adjudicative team that makes disability determinations, their findings are not evidence at the level at which they are made. See 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). However, in subsequent levels of appeal, the MC and PC findings from the prior adjudicative levels become evidence. See 20 CFR 404.1527(e)(1)(ii) and 416.927(e)(1)(ii). This NPRM retains that distinction.

Because all evidence we would receive would fall within one of the categories of evidence, we would define all of the evidence categories. This means we would remove the current language that evidence is not limited to the listed examples because all evidence we receive would fit into a specified category of evidence.

We propose to list and define the categories of evidence in 20 CFR 404.1513(a)(1)-(5) and 416.913(a)(1)-(5). The following chart displays the proposed

organization:

Our current rules define signs and laboratory findings in 20 CFR 404.1528 and 416.928. We discuss the current definitions and our proposed definitions for these terms in the preamble section II.D. Objective medical evidence below.

Category of evidence

Source

Summary of definition

Objective medical evidence

Medical sources

Signs, laboratory findings, or both.

Medical opinions

Medical sources

Statements about functional limitations and abilities.

Other medical evidence

Medical sources

All other evidence from medical sources that are not objective medical evidence or medical opinions.

Statements from nonmedical sources

Nonmedical sources

All evidence from nonmedical sources.

Prior administrative medical findings

MCs and PCs

Findings about medical issues made by MCs and PCs at a prior administrative level.

We define and explain each category later in this preamble.

Additionally, we frequently receive documents from medical sources that contain different categories of evidence on a single page, such as treatment notes containing both a laboratory finding and a medical opinion interpreting that finding. We would continue to follow our current practice to treat each kind of evidence from a medical source according to its category of evidence, even if there is more than one category of evidence on a single page.

C. Medical Sources

Medical evidence comes from medical sources. Our current rules define medical sources as AMSs or other healthcare providers who are not AMSs,

and identify who is an AMS in 20 CFR 404.1502 and 416.902.

20 CFR 404.1502 and 416.902.

We propose to revise our current definition of medical sources in 20 CFR 404.1502 and 416.902 to specify that a medical source must be an individual who is: (1) Licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law, or (2) certified by a State as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law. We propose to specify these two requirements in order that we may categorize evidence from healthcare providers as evidence coming from medical sources practicing lawfully.

Because an entity, such as a hospital, may have possession of a medical source's evidence, we would clarify in proposed 20 CFR 404.1512(b)(1)(i) and 416.912(b)(1)(i) that we will contact a claimant's medical sources and entities that maintain a claimant's medical evidence when we develop a complete medical history.

D. Objective Medical Evidence

We currently define objective medical evidence as signs

and

laboratory findings.

To clarify our current policy, we propose to redefine objective medical evidence as signs, laboratory findings, or both to make clear that signs alone

laboratory findings alone are objective medical evidence. We propose to include this definition in 20 CFR 404.1502(f) and 416.902(f).

20 CFR 404.1512(b)(1)(i) and 416.912(b)(1)(i) as defined in 20 CFR 404.1528(b) and (c) and 416.928(b) and (c).

As part of our effort to better organize our regulations, we propose to move the existing definitions for signs, symptoms, and laboratory findings from current 20 CFR 404.1528 and 416.928 to the definitions section of 20 CFR 404.1502 and 416.902. We also propose to remove 20 CFR 404.1528 and 416.928 and make conforming changes to other related sections.

For clarity, we also propose to make minor editorial revisions to the definition of laboratory findings in proposed 20 CFR 404.1502(c) and 416.902(g) that are consistent with our current policy.

E. Medical Opinions

Our program experience suggests that the reorganization and clarification of our current definitions and rules about medical opinions would make them easier to understand and use. For example, the category of “medical opinions” is called “other evidence from medical sources” in 20 CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii), but referred to as “statements from physicians, psychologists, or other [AMSs] that reflect judgments about the nature and severity of an individual's impairment(s), including symptoms, diagnosis and prognosis, what the individual can still do despite impairment(s), and physical or mental restrictions” in 20 CFR 404.1527(a)(2) and 416.927(a)(2). Our current rules state that we weigh medical opinions using several factors as part of our consideration of this evidence.

See 20 CFR 404.1527 and 416.927.

We discuss statements about what an individual can still do despite his or her impairment(s).

We state that such a statement should describe the kinds of physical and mental capabilities we list in those sections. Similarly, although we do not directly define the phrase “your physical or mental restrictions” in 20 CFR 404.1527(a)(2) and 416.927(a)(2), our current rules in 20 CFR 404.1545(b)-(d) and 416.945(b)-(d) state which abilities we look for that may be limited by physical or mental restrictions.

20 CFR 404.1513(c) and 416.913(c).

Our adjudicative experience has also shown that a narrower definition of medical opinions would improve our adjudicative process. Diagnoses and prognoses do not describe how an individual functions. Also, while we always consider a claimant's own statements about his or her symptoms, how we consider this kind of evidence is different from how we consider evidence from medical sources.

A more appropriate focus of medical opinions would be perspectives from medical sources about claimants' functional abilities and limitations.

See 404.1529 and 416.929.

To help make our evidence rules easier to use and apply, we propose to redefine medical opinions to combine relevant, current text about functional abilities and limitations from different regulatory sections. We propose to specify that all medical sources other than MCs and PCs, not just AMSs, can create evidence that we will categorize as medical opinions. We also propose to remove symptoms, diagnosis, and prognosis from the current definition of medical opinions and add them to the definition of “other medical evidence” because these concepts do not describe a claimant's functional abilities and limitations. We propose to add a definition for medical opinion in 20 CFR 404.1513(a)(2) and 416.913(a)(2).

For adults filing for disability or blindness under titles II or XVI of the Act, a medical opinion would be a statement from a medical source about what an individual can still do and whether the individual has one or more impairment-related limitations or restrictions in specific abilities. For adult claims, we would specify which limitations and restrictions in current 20 CFR 404.1545 and 416.945 we would consider. For disability claims for children filing under title XVI of the Act,

we propose to refer to a child's abilities to function in the six domains of functioning found in current 20 CFR 416.926a(g)-(l).

20 CFR 416.906 states: “If you are under age 18, we will consider you disabled if you have a medically determinable physical or mental impairment or combination of impairments that causes marked and severe functional limitations, and that can be expected to cause death or that has lasted or can be expected to last for a continuous period of not less than 12 months. Notwithstanding the preceding sentence, if you file a new application for benefits and you are engaging in substantial gainful activity, we will not consider you disabled. We discuss our rules for determining disability in children who file new applications in §§ 416.924 through 416.924b and §§ 416.925 through 416.926a.”

We discuss our proposals about considering and articulating our

consideration of medical opinions below in Section VI, Consideration and articulation of medical opinions and prior administrative medical findings.

F. Other Medical Evidence

Our current rules of evidence include a category of evidence referred to as “other evidence from medical sources,” which includes medical history, opinions, and statements about treatment a claimant has received.

Our current rules also describe medical reports and imply that only AMSs can create medical reports.

Our rules describe medical reports by what they

should

include: (1) Medical history, (2) clinical findings (such as the results of physical or mental status examinations); (3) laboratory findings (such as blood pressure, x-rays); (4) diagnosis (statement of disease or injury based on its signs and symptoms); (5) treatment prescribed with response and prognosis; and (6) a statement about a claimant's physical and mental abilities based on the AMS' findings.

20 CFR 404.1512(b)(1)(ii) and 416.912(b)(1)(ii).

See 20 CFR 404.1512-404.1513(b), 404.1519g(a), and 416.912-416.913(b), and 404.919g(a).

20 CFR 404.1513(b)-(b)(6) and 416.913(b)-(b)(6).

To help make our evidence rules easier to use and apply, we propose to combine the categories “other evidence from medical sources” and “medical reports” into a single evidence category called “other medical evidence.” We also propose to clarify that all medical sources, not just AMSs, can produce other medical evidence. This category of evidence would include all medical evidence that is not objective medical evidence or a medical opinion, as well as examples of common kinds of evidence from our current rules. This would include items such as medical reports, diagnosis, and prognosis.

We propose to move judgments about the nature and severity of a claimant's symptoms, diagnosis, and prognosis from the current definition of medical opinion to the proposed definition of other medical evidence because these concepts do not describe a claimant's functional abilities and limitations. We also propose to exclude laboratory findings from the proposed definition of other medical evidence because this is already included as part of the proposed definition of objective medical evidence. We would make these revisions in proposed 20 CFR 404.1513(a)(2) and 416.913(a)(2).

We would continue to categorize and consider evidence from medical experts testifying at the hearings level and from medical sources in the Medical Support Staff at the Appeals Council in the same ways we consider evidence from all other medical sources who are not MCs or PCs.

G. Statements From Nonmedical Sources

Our current rules state that nonmedical sources can provide two types of evidence: (1) Statements you or others make and (2) information from other sources.

First, we define the term “statements you or others make” as statements a claimant or others make about a claimant's impairment(s), restrictions, daily activities, efforts to work, or any other statement a claimant makes to medical sources during the course of examination or treatment, or to us during interviews, on applications, in letters, or in testimony during our administrative proceedings.

20 CFR 404.1512(b)(1)(iii) and 416.912(b)(1)(iii).

Second, we define “information from other sources” by referencing 20 CFR 404.1513(d) and 416.913(d) for the definition of other sources.

In those sections, we define the term “other sources,” for instance, as medical sources who are not listed as AMS, educational personnel, social welfare agency personnel, family members, friends, neighbors, and clergy.

There is no difference in how we consider a statement a claimant or other nonmedical source makes and information from other sources; both sources can produce evidence to show the severity of an impairment and how it affects an individual's ability to work.

20 CFR 404.1512(b)(1)(iv) and 416.912(b)(1)(iv).

20 CFR 404.1513(d)(1)-(4) and 416.1513(d)(1)-(4).

To help make our evidence rules easier to use and apply, we propose to combine “statements you or others make” and “information from other sources” into one category of evidence to be called “statements from nonmedical sources.” We would not include medical sources in this category of evidence. We would define this category of evidence as statements nonmedical sources make about an individual's impairment(s), restrictions, daily activities, efforts to work, or any other relevant statements an individual makes to medical sources during the course of examination or treatment, or to us during interviews, on applications, in letters, and in testimony in our administrative proceedings.

We also propose to distinguish between medical sources and nonmedical sources. A medical source would be someone currently classified as an AMS or another source listed in current 20 CFR 404.1513(d)(1) and 416.913(d)(1) who is licensed or certified as a healthcare worker by a State and working within the scope of their healthcare license or certification. Consistent with this realignment of our rules, we propose to define nonmedical sources in 20 CFR 404.1502 and 416.902 as a source of evidence who is not a medical source and specify that this includes the claimant, educational personnel, social welfare agency personnel, family members, caregivers, friends, neighbors, and clergy. We would continue to consider statements from nonmedical sources to be important evidence that we would consider under 20 CFR 404.1520b and 416.920b.

H. Prior Administrative Medical Findings

State agencies make disability determinations at the initial and reconsideration levels of our administrative review process.

In most States, a disability examiner makes a disability determination together with a State agency MC or PC, as appropriate.

In States where we have been conducting our single decision maker pilot, our rules also allow Federal components to employ MCs and PCs to function just as they would for a State.

See 20 CFR 404.1615 and 416.1015.

See 20 CFR 404.906(b)(2), 404.1615(c)(1), 416.1015(c)(1), and 416.1406(b)(2). In States where we are using a single decision maker (SDM) under the rules in 20 CFR 404.906 and 416.1406, when the State agency disability examiner makes the disability determination alone, the disability examiner may also consult with an MC or PC to help make a disability determination, when appropriate. However, section 832 of the Bipartisan Budget Act of 2015, Pub. L. 114-74, 129 Stat. 584, 613 affects the use of an SDM. This NPRM does not propose to change the rules that recognize SDM authority. We intend to publish a separate NPRM that discusses in more detail how we propose to end SDM authority.

See 20 CFR 404.1661 and 416.1061.

The MCs and PCs create evidence that we currently categorize as both medical opinions and administrative findings of fact.

These administrative findings of fact are about medical issues, including, but not limited to, the existence and severity of impairment(s), the existence and severity of symptoms, whether an impairment(s) meets or medically equals the requirements for an impairment in our Listing of Impairments,

and an individual's residual functional capacity (RFC). Although MCs and PCs base these administrative findings of fact on evidence in the case, the administrative findings are not, in themselves,

evidence at the level of the administrative review process at which we make the findings.

They become medical evidence at subsequent levels in the administrative review process that adjudicators must consider and weigh as opinion evidence because MCs and PCs are highly qualified and are also experts in Social Security disability evaluation.

20 CFR 404.1527(e) and 416.927(e).

20 CFR part 404, subpart P, Appendix 1.

20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i).

20 CFR 404.1527(e)(2)(i) and 416.927(e)(2)(i).

To explain how we interpret these rules, we issued SSR 96-6p: Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law Judge and Appeals Council Levels of Administrative Review; Medical Equivalence.

SSR 96-6p explains that when ALJs or the AC issue decisions, they must weigh these opinions and administrative findings of fact using the same factors used to weigh other medical opinions. It also explains that in appropriate circumstances an MC or PC opinion might be entitled to greater weight than an opinion from a claimant's treating source or an examining source.

61 FR 34466 (July 2, 1996).

In order to simplify our rules, we propose to combine the two types of evidence our current rules state MCs and PCs make—administrative findings of fact and medical opinions—into a single category of evidence called “prior administrative medical findings.” We propose to define this evidence as findings about medical issues, other than the ultimate determination about whether you are disabled, made by our Federal and State agency medical and psychological consultants at a prior level of review based on their review of the evidence in your case record.

We propose to identify as prior administrative medical findings the following medical issues:

• The existence and severity of impairment(s);

• the existence and severity of symptoms;

• statements about whether an impairment(s) meets or medically equals the requirements for any impairment in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1;

• in child claims under title XVI, whether an impairment(s) is functionally equivalent in severity to an impairment(s) in the Listing of Impairments in 20 CFR part 404, subpart P, Appendix 1;

• in adult claims, a claimant's residual functional capacity;

• whether an impairment(s) meets the duration requirement; and

• how the policies about failure to follow prescribed treatment and drug addiction and alcoholism relate to a claim.

These medical issues are similar to those currently listed in 20 CFR 404.1527(e)(1)(i) and 416.927(e)(1)(i). We would consider and articulate our consideration of prior administrative medical findings using the same factors we use to consider medical opinions from medical sources. However, due to our proposed revisions to the definition of the evidence category of medical opinion, we would remove from several regulation sections references to MCs and PCs making medical opinions.

Consistent with these proposals and our proposals below in Section VI, Consideration and articulation of medical opinions and prior administrative medical findings, we would also delete the definition of nonexamining source because it would be unnecessary as a result of other proposed revisions in this NPRM. We would also remove any reference to specialists during the initial and reconsideration levels because we would not use medical sources other than MCs and PCs. We propose to include these revisions in 20 CFR 404.1502, 404.1513(a)(6), 404.1513a, 416.902, 416.913(a)(6), and 416.913a.

I. Decisions by Other Governmental Agencies and Nongovernmental Entities

Several other governmental agencies and nongovernmental entities make decisions using their own rules about disability, blindness, and employability. These organizations include the Department of Veterans Affairs (VA), the Department of Defense (DOD), the Office of Personnel Management (OPM), the Department of Labor (DOL), State workers compensation programs, and private long-term disability insurance programs. As part of our claim development, we sometimes receive decisions or information about decisions made by other governmental agencies and nongovernmental entities, as well as the evidence relied on to make these decisions. Our current rules include a category of evidence called “decisions by any governmental or nongovernmental agency about whether you are blind or disabled.”

Our current rules state that these decisions are not binding on us because we must make a disability or blindness decision based on the Act and our regulations.

We propose to clarify how we would consider disability and blindness decisions made by other agencies.

20 CFR 404.1512(b)(1)(v) and 416.912(b)(1)(v).

20 CFR 404.1504 and 416.904.

We address this aspect of our policy in SSR 06-03p,

in which we distinguish between issues reserved to the Commissioner—such as whether a claimant is disabled—and evidence that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies. In the ruling, we stated that we cannot ignore and must consider evidence of a disability decision by another governmental or nongovernmental agency. However, our program experience since we issued SSR 06-03p suggests we need to revise these policies.

SSR 06-03p: Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, 71 FR 45593 (August 9, 2006).

There are four reasons why we should not need to consider or articulate in our written determinations or decisions our consideration of decisions from other governmental and nongovernmental agencies. First, the purpose of the Act and the specific eligibility requirements for disability and blindness benefits under titles II and XVI of the Act differ significantly from the purpose and eligibility requirements of other programs. These differences include eligibility criteria, duration, insured status, individualized versus categorical medical and functional assessments, onset rules, how subjective complaints are considered, employability findings, consideration of past work, and consideration of other work.

Therefore, other governmental agencies' or nongovernmental entities' decisions give us little indication whether a claimant is more or less likely to be found disabled or blind under the Act. Those decisions are not, by themselves, useful to us when we decide whether a claimant is disabled or blind under the Act and are therefore neither valuable nor persuasive evidence for determining disability or blindness under our rules.

These differences among the various programs are well-documented. For example, the Government Accountability Office (GAO) produced a report that highlighted the differences among SSA, VA, and DOD disability programs. GAO, Social Security Disability: Additional Outreach and Collaboration on Sharing Medical Records Would Improve Wounded Warriors' Access to Benefits, GAO-09-762 (September 2009), available at

http://www.gao.gov/assets/300/296693.pdf.

For example, VA and SSA disability differ significantly in purpose as well as in eligibility criteria. In determining

disability, the VA assigns a percentage disability rating based on a consideration of the effects of a disease or injury on a hypothetical, average person's ability to earn income without consideration of a specific veteran's age, education, or work experience.

In contrast, under our rules, unless a claimant's impairment(s) meets or medically equals a listing, we perform an individualized assessment that focuses on that particular claimant's ability to perform work in the national economy.

38 CFR 4.1.

As part of this individualized assessment, the Act requires us to consider several criteria, such as whether a claimant has worked (substantial gainful activity), whether the claimant's impairment(s) is expected to last at least 12 months or result in death (the duration requirement), how the claimant's impairment(s) limit his or her physical and mental ability to do work activities (severity and assessment of RFC), whether the claimant can perform in his or her past relevant work given his or her RFC, and whether the claimant's RFC, age, education, and work experience (the vocational factors) allow the claimant to perform other work that exists in significant numbers in the national economy. Thus, because of our different requirements, the mere fact that the VA process resulted in a particular disability rating is not predictive or useful evidence of whether the claimant will be found disabled under our rules, even upon consideration of the same impairment(s).

Similarly, the DOD and OPM follow rules that are substantially different from our rules when they make determinations on disability retirement. State agencies and the DOL make determinations under State and Federal workers' compensation programs, which vary from State to State and may involve determinations of partial disability, a concept that does not exist in our programs. These compensation programs may consider the individual's ability to do past work, but make no consideration of the individual's ability to do other work, as we are required to consider under our rules. Some States also make determinations about whether individuals are entitled to receive Medicaid and related benefits; however, those States may set individual eligibility criteria within the Federal minimum standards and may find individuals eligible to receive Medicaid for reasons other than disability. Furthermore, States may anticipate how we may interpret and apply our own rules regarding disability, but are not bound to follow our case development requirements and other regulations. Thus, in each instance, there are significant differences between our rules and the eligibility criteria and rules that other agencies or entities follow. Therefore, a finding of “disability” or a decision to award benefits made by any other agency or entity is not predictive of whether a claimant would be found disabled under our rules.

Second, a record may indicate that another agency or entity decided to award benefits, but not include the decision itself. Alternatively, the decision might be in the record, but may not include any explanation about the factual findings or reasons for the decision. In those instances, there is nothing substantive about the decision for our adjudicators to consider.

Third, our adjudicators follow regulations and other guidance specific to our program; they generally do not have a detailed understanding of the rules other agencies or entities apply when making their decisions. Consequently, our adjudicators lack the expertise to compare and contrast the differences between the Act and our rules, and the rules applied by another agency or entity. Accordingly, when our adjudicators follow our instructions in SSR 06-03p that require them to consider decisions in the record from another agency or entity in the record, they often simply state that they considered the other agency's or entity's decision, but that it was not binding because it was made using the other agency's or entity's rules and not ours. Our current requirement that adjudicators consider other agency's or entity's decisions therefore imposes an unnecessary articulation requirement on our adjudicators.

Fourth, over time Federal courts have interpreted and applied our rules and SSR 06-03p differently in different jurisdictions. For example, in some circuits, the United States Courts of Appeals have stated that we should give disability decisions from the VA great or substantial weight absent some reasoned, fact-specific explanation for discounting the VA disability decisions.

We administer a national disability program, and our goal is to apply rules uniformly.

For example, the Ninth Circuit held that our ALJs must “ordinarily give great weight to a VA determination of disability” although “the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.”

McCartey

Massanari

298 F.3d 1072, 1076 (9th Cir. 2002). This principle has been followed in a number of more recent cases. See,

e.g., Valentine

Comm'r Soc. Sec. Admin.,

574 F.3d 685, 694-95 (9th Cir. 2009) (ALJ's explanation for giving little weight to a VA disability determination that rested on the general grounds that the VA and SSA inquiries are different ran afoul of

McCartey,

although the ALJ's reliance on evidence not before the VA was a persuasive, specific, and valid reason);

Berry

Astrue,

622 F.3d 1228, 1236 (9th Cir. 2010) (rejecting two reasons the ALJ gave for discounting a VA determination, accepting a third “in part,” and remanding for reconsideration of the VA disability determination);

McLeod

Astrue,

640 F.3d 881, 885-86 (9th Cir. 2011) (claimant denied a full and fair hearing because the record suggested he had a VA disability rating, which was not in the record);

Hiler

Astrue,

687 F.3d 1208, 1211-12 (9th Cir. 2012) (ALJ misunderstood and did not properly evaluate the three VA decisions in the record). The Fourth Circuit has found

McCartey

persuasive and held that “SSA must give substantial weight to a VA disability rating” although “an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.”

Bird

Astrue,

699 F.3d 337, 343 (4th Cir. 2012). Subsequently, at least one district court within the Fourth Circuit has interpreted

Bird

as announcing a new standard for evaluating VA decisions. See,

e.g.,, Persaud

Colvin,

No. 2:12-cv-661, 2014 WL 198922, *8-11 (E.D. Va. Jan. 14, 2014);

Jacobs

Colvin,

No. 2:12-cv-508, 2013 WL 5741538, *5-7 (E.D. Va. Oct. 22, 2013).

We propose to revise our rules in 20 CFR 404.1504 and 416.904 to state that we will not provide any analysis in our determinations and decisions about how we consider decisions made by other governmental agencies or nongovernmental entities that an individual is disabled, blind, or unemployable in any claim for disability or blindness under titles II and XVI of the Act, and that we are not bound by those decisions. Although we would categorize decisions made by other governmental agencies or nongovernmental entities within the other medical evidence category if made by a medical source or a statement if made by a nonmedical source, we propose to state in 20 CFR 404.1520b and 416.920b that these decisions are inherently neither valuable nor persuasive to our disability and blindness determinations.

Importantly, however, we would continue to consider relevant medical and other evidence that supports or underlies other governmental agencies' or nongovernmental entities' decisions that we receive based on the applicable evidence categories proposed above. For example, we would continue to consider a compensation and pension examination from a VA physician that underlies a VA disability rating, even though our adjudicators would not be required to give any particular weight to or analyze the specific VA disability rating. Similarly, we would continue to consider a medical opinion from a medical source submitted in support of a claimant's workers' compensation claim or Medicaid application, even

though our adjudicators would not be required to give any weight to or discuss the decision to award workers' compensation or Medicaid benefits.

We could also still use information from other governmental agencies or nongovernmental entities we receive to process claims. For example, we would retain authority to expedite processing of claims for Wounded Warriors and for veterans with a 100% VA disability compensation rating, as we do now.

See Information for Wounded Warriors and Veterans Who Have a Compensation Rating of 100% Permanent & Total (P&T), available at

https://www.ssa.gov/people/veterans

For clarity, we also propose to change our current regulatory term “decisions by other organizations and agencies” to “decisions by other government agencies and nongovernment entities.”

J. Disability Examiner Findings

Currently, in most States, disability examiners consult with MCs and PCs to make disability and blindness determinations at the initial and reconsideration levels of the administrative appeals process.

The disability examiner's findings about medical issues, vocational issues, and whether an individual is disabled becomes our determination. Under our current rules, we do not weigh disability examiner findings at subsequent levels of the administrative appeals process because adjudicators at each level make new findings for their determination or decision. This is in contrast to how we treat administrative findings about medical issues by MCs and PCs, which

are

evidence we weigh at subsequent levels of review. While this distinction is implied in our current regulation,

we propose to state in 20 CFR 404.1520b(c)(2) and 416.920b(c)(2) that we will not provide any analysis about how we considered disability examiner findings from a prior level of adjudication.

Some States use SDMs in certain situations to make a disability determination without consulting an MC or PC. See 20 CFR 404.906(b)(2), 404.1615(c), 416.1015(c), and 416.1406(b)(2).

See 20 CFR 404.1512(b)(6)-(8) and 416.912(b)(6)-(8).

K. Statements on Issues Reserved to the Commissioner

Statements on issues reserved to the Commissioner consist of opinions or statements about how we should interpret and apply our policies to a claim instead of simply stating a claimant's abilities and limitations. Although our current list of evidence types in 20 CFR 404.1512 and 416.912 does not include issues reserved to the Commissioner, our rules do discuss medical source opinions on issues reserved to the Commissioner in 20 CFR 404.1527(d) and 416.927(d). Our rules state that opinions on issues reserved to the Commissioner are not medical opinions, because they are administrative findings that are dispositive of a case,

i.e.,

that direct the determination or decision of disability. We give several examples of issues reserved to the Commissioner. These include statements by medical sources that a claimant is disabled or unable to work, whether a claimant's impairment(s) meets or equals the requirements of any impairment(s) in the Listing of Impairments, a claimant's RFC, and how we should apply the vocational factors.

We issued SSR 96-5p to explain how we consider these types of opinions.

The SSR states: (1) The difference between issues reserved to the Commissioner and medical opinions; (2) that treating source opinions on issues reserved to the Commissioner are never entitled to controlling weight or special significance; (3) that opinions from any medical source about issues reserved to the Commissioner must never be ignored, and that the notice of the determination or decision must explain the consideration given to the treating source's opinion(s); and (4) the difference between the opinion called a medical source statement and the administrative finding called an RFC assessment.

SSR 96-5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner (61 FR 34471 (July 2, 1996)).

The SSR also included a discussion about requirements for recontacting treating sources. Since the publication of the SSR, we also published final rules that revised how we consider medical source statements from State disability examiners (65 FR 11866 (March 7, 2000)).

Since we published SSR 96-5p, we have frequently received requests to provide further guidance about how to identify and evaluate opinions about issues reserved to the Commissioner. One area we have been asked to clarify is how to consider and weigh the opinions because we do not give them any special significance. We also have received requests to provide additional examples of issues that are reserved to the Commissioner.

Consistent with our goals to better define and organize our evidence regulations to produce more accurate and consistent determinations and decisions, we propose to define a statement on an issue reserved to the Commissioner as a statement that would direct the determination or decision of disability. Because we are responsible for making the determination or decision about whether a person meets the statutory definition of disability, a statement on an issue reserved to the Commissioner is inherently neither valuable nor persuasive to us. Although a statement on an issue reserved to the Commissioner would be categorized within other medical evidence if made by a medical source or a statement if made by a nonmedical source, we would not provide any analysis about how we considered such statements at all in our determinations and decisions.

An example of a medical opinion that we could consider valuable or persuasive and that we may provide analysis about in a determination or decision is a medical source's statement that a claimant could lift 10 pounds for up to one-third of an 8-hour day and less than 10 pounds for up to two-thirds of an 8-hour day, stand and walk for about 2 hours of an 8-hour day, and sit for up to 6 hours of an 8-hour day. An example of a statement on an issue reserved to the Commissioner that we would not provide any analysis about in a determination or decision because it is inherently neither valuable nor persuasive is that the claimant has an RFC for sedentary work. The second statement is an issue reserved to the Commissioner because it includes assumptions about what particular medical limitations and restrictions mean in terms of our policy.

Another example of a statement on an issue reserved to the Commissioner that we would not provide any analysis about in a determination or decision is that the claimant “is disabled.” This statement includes assumptions about how we should apply our policy in a particular claim.

To help adjudicators, representatives, and courts identify statements on issues reserved to the Commissioner, we propose to include the following in 20 CFR 404.1520b(c)(3) and 416.920b(c)(3):

• Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;

• statements about whether or not an individual's impairment(s) meets the duration requirement for disability;

• statements about whether or not an individual's impairment(s) meets or equals any listing in the Listing of Impairments;

• in title XVI child claims, statements about whether or not an individual's impairment(s) functionally equals the Listings;

• in adult claims, statements about what an individual's RFC is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00

instead of descriptions about his or her functional abilities and limitations;

• in adult claims, statements about whether or not an individual's RFC prevents him or her from doing past relevant work;

• in adult claims, statements that an individual does or does not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and

• statements about whether or not an individual's disability continues or ends when we conduct a continuing disability review (CDR).

We would also rescind SSR 96-5p consistent with these proposed revisions.

III. Establishing the Existence of an Impairment

A. Current Rules

To be found disabled under titles II or XVI of the Act,

an individual must have a physical or mental impairment that results from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.

At step 2 of the sequential evaluation process, we determine both whether an individual has a medically determinable impairment(s) and, once the existence of the impairment(s) is established, whether it is severe.

The Act defines a disability as the “inability to engage in any substantial gainful activity by reason of any physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 423(d) and 1382c(a)(3). We have a different definition for determining statutory blindness. See 42 U.S.C. 416(i)(1) and 1382c(a)(2).

42 U.S.C. 423(d)(3) and 1382c(a)(3)(D).

See 20 CFR 404.1520(a)(4)(ii) and 416.920(a)(4)(ii).

We interpret the Act as requiring us to obtain objective medical evidence—signs or laboratory findings—from an AMS to establish the existence of a medically determinable impairment.

Once we have objective medical evidence from an AMS showing that the claimant has a medically determinable impairment or combination of impairments at step 2, we then consider evidence from all sources, regardless of AMS status, to determine the severity of those impairments at step 2. If we do not have objective evidence from an AMS to establish the existence of an impairment, we try to get this evidence from a claimant's own AMS or by purchasing a consultative examination (CE) with an AMS.

Even if we already have evidence of signs or laboratory findings from a medical source who is not an AMS, under our current policy we cannot use this evidence to establish the existence of a medically determinable impairment.

See,

e.g.,

SSR 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 FR 14166 (March 16, 2016).

See 20 CFR 404.1519a and 416.919a.

Our current policies also preclude the following types of evidence from establishing the existence of a medically determinable impairment at step 2 because they are not objective medical evidence: (1) A statement of symptoms, (2) a diagnosis, and (3) a medical opinion.

The Act requires medically acceptable clinical and laboratory diagnostic techniques as evidence.

A claimant's self-reported symptoms and a medical source's own subjective opinion do not meet this statutory requirement. We also cannot rely on a diagnosis to establish the existence of an impairment because sometimes medical sources diagnose individuals without using objective medical evidence. For example, a medical source may rely on a claimant's reported symptoms or another medical source's medical opinion, treat reported symptoms under a provisional diagnosis, or rule-out diagnosis without making this clear in the treatment note. In addition, we have found—especially with electronic medical records—diagnoses that are listed solely for billing and medical insurance reasons but that do not include supporting objective medical evidence.

See 20 CFR 404.1508, 404.1528(a), 404.1529, 416.908, 416.928(a), and 416.929 and SSR 96-2p.

42 U.S.C. 423(d)(3) and 1382c(a)(3)(D).

B. Proposed Revisions

In order to assist representatives and our adjudicators in interpreting our rules, we propose to revise our rules to state affirmatively our current policy that we will not use a diagnosis, medical opinion, or an individual's statement of symptoms to establish the existence of an impairment(s). We would clarify our rules to state that a physical or mental impairment must be established by objective medical evidence from an AMS. We would continue to follow our current policy if we have objective medical evidence from an AMS that a claimant has a severe impairment(s) at step 2, we will consider all evidence to determine the severity of the impairment(s) and all other findings in the sequential evaluation process. We would also continue to follow our current policy in 20 CFR 404.1529 and 416.929 about how we evaluate symptoms, including pain, when we determine severity and RFC. We would make these revisions to 20 CFR 404.1521, 404.1522, 416.921, and 416.922.

IV. Acceptable Medical Sources (AMS)

A. Current AMS Rules

As noted above, under our current policy, only objective medical evidence from AMSs can be used to establish an impairment(s) at step 2 of the sequential evaluation process. Also, as we discuss below in “Treating Sources,” only AMSs can be treating sources. Our current rules recognize the following medical sources as AMSs:

• Licensed physicians (medical or osteopathic doctors).

• Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing intellectual disability, learning disabilities, and borderline intellectual functioning only.

• Licensed optometrists, for purposes of establishing visual disorders only (except, in the U.S. Virgin Islands, licensed optometrists, for the measurement of visual acuity and visual fields only).

• Licensed podiatrists, for purposes of establishing impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle.

• Qualified speech-language pathologists, for purposes of establishing speech or language impairments only. For this source, qualified means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence from the American Speech-Language-Hearing Association.

20 CFR 404.1513(a) and 416.913(a).

B. Why We Are Proposing To Add New AMSs

We propose to revise our rules to reflect changes in the national healthcare workforce and the manner that many people now receive primary medical care. Much of the medical evidence we receive in disability claims comes from primary care providers. Under our current rules, we are not able to consider an increasing number of primary care providers to be AMSs. For example, more than 50 percent of the

nation's more than 55,000 nurse practitioners specialize in primary care,

and the total number of nurse practitioners increased almost 28 percent from 2004 to 2011.

A nurse practitioner is one type of Advanced Practice Registered Nurses (APRN) we propose to add to our AMS list below. Nurse practitioners provide diagnostic and clinical treatment of acute and chronic illnesses. In the U.S., there is a simultaneous increasing shortage of primary care physicians.

In fact, the American Association of Medical Colleges predicts a shortage of 90,000 primary care physicians by 2020.

The Institute of Medicine recommended Federal agencies recognize the advanced level of care provided by APRNs.

Agency for Healthcare Research and Quality, Primary Care Workforce Facts and Stats No. 3, available at

http://www.ahrq.gov/research/findings/factsheets/primary/pcwork3/index.html

American College of Nurse Practitioners, Numbers of Nurse Practitioners, available at

http://www.acnpweb.org;

The Henry J. Kaiser Family Foundation, Total Nurse Practitioners, 2011, available at

http://www.statehealthfacts.org.;

U.S. Bureau of Labor Statistics, available at

http://www.bls.gov/ooh/Healthcare/Physician-assistants.htm

Kaiser Commission on Medicaid and the Uninsured, Improving Access to Adult Primary Care in Medicaid: Exploring the Potential Role of Nurse Practitioners and Physician Assistants, available at

http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8167.pdf

American Association of Medical Colleges, More U.S. Medical Students Match to Primary Care for Second Consecutive Year, available at

https://www.aamc.org/newsroom

Committee on the Robert Wood Johnson Foundation Initiative on the Future of Nursing, at the Institute of Medicine; Institute of Medicine: The Future of Nursing: Leading Change, Advancing Health (2011), available at

http://www.nationalacademies.org/hmd/Reports/2010/The-Future-of-Nursing-Leading-Change-Advancing-Health/Report-Brief-Scope-of-Practice.aspx

Similarly, an increasing percentage of healthcare services for hearing-related impairments come from audiologists instead of physicians.

The Bureau of Labor Statistics predicts employment of audiologists will increase 25 percent by 2018.

Audiologists assess, diagnose, and treat dysfunction in hearing, auditory and vestibular function, balance, and related disorders by obtaining a complete history and performing tests that include otoscopic examination, pure-tone audiometry, tympanometry, otoacoustic emissions measurements, and speech audiometry.

See, for example, Sieminski, Louis R. The audiologist's role in early intervention. Hearing Journal. Vol 63 (1): 35 (2010).

U.S. Bureau of Labor Statistics, Occupational Outlook Handbook, available at

http://www.bls.gov/ooh/healthcare/audiologists.htm

Uneven geographic distribution of the healthcare workforce makes it difficult for individuals living in rural areas to access primary care providers who are AMSs. APRNs are more likely than licensed physicians to work in rural areas and to provide primary care treatment to those with limited access to physicians.

Agency for Healthcare Research and Quality, available at

http://www.ahrq.gov/research/findings/factsheets/primary/pcwork3/index.html

Additionally, the National Law Center on Homelessness and Poverty (NLCHP) has expressed concern that the limited list of AMSs creates unnecessary delays in processing disability applications for low-income claimants who may receive primary healthcare only from non-AMS medical sources, such as APRNs.

NLCHP notes that health professionals other than physicians and psychiatrists staff most programs for homeless claimants. As stated above, we pay for expensive consultative examinations with AMSs to establish the existence of an impairment when we already have this objective medical evidence from medical sources who are not AMSs. Adding these additional qualified AMSs would also reduce the need to pay for consultative examinations.

National Law Center on Homelessness and Poverty, Improving Access: Expanding Acceptable Medical Sources for the Social Security Administration Disability Determination Process, (2012), pg. 1, available at

http://www.manatt.com/uploadedFiles/Content/News_and_Events/Firm_News/5.14.12%20Improving%20Access,%20FINAL.pdf

C. Proposed New AMSs

We propose to recognize both audiologists and APRNs with specific scope of practice requirements as AMSs in 20 CFR 404.1502(a) and 416.902(a). We propose to add to the AMS list licensed audiologists for purposes of establishing hearing loss and auditory processing disorders. We also propose to add to the AMS list APRNs and other licensed advanced practice nurses with other titles acting within their licensed scope of practice. For the reasons discussed below, we are satisfied that these medical sources have sufficiently consistent and rigorous national licensing requirements for education, training, certification, and scope of practice.

Audiologists provide a substantial amount of the healthcare for hearing-related impairments and States have dramatically increased licensing requirements for audiologists during the past decade. Audiologists obtain State licensure after completing a master's or doctoral level-degree in a nationally accredited educational program. Most States require audiologists to pass a national audiology exam, such as the National Examination in Audiology administered by the Educational Testing Service, and to complete a significant number of supervised clinical training hours. Many States recognize that the nearly uniform criteria for certification from the American Board of Audiology (ABA) or a Certificate of Clinical Competence in Audiology (CCC-A) from the American Speech-Language-Hearing Association (ASHA) meet or exceed the States' own audiology licensing requirements. To receive certification from the ABA, an audiologist must complete doctoral coursework, pass a national audiology examination, and complete 2,000 supervised hours of direct patient care. To receive a CCC-A, an audiologist must obtain a doctoral degree, pass the National Examination in Audiology, and complete a minimum of 1,820 supervised hours of clinical practicum.

With a few minor State variations, there are four main kinds of APRNs: Certified Nurse Midwife, Nurse Practitioner, Certified Registered Nurse Anesthetist, and Clinical Nurse Specialist. Although the majority of States use the APRN title, a minority of States use other similar titles, such as Advanced Practice Nurse and Advanced Registered Nurse Practitioner. We propose to consider all of these medical source groups as AMSs if they are licensed by a State and acting within the scope of their practice. We would maintain a current list of State-specific AMS titles in our subregulatory instructions. We would not categorize evidence from an APRN to be AMS evidence if the APRN acted outside of his or her scope of practice, since under such circumstances, an APRN would be violating his or her State license.

State licensure requirements for APRNs are rigorous. To receive APRN licensure, all States require these medical sources to have a registered nurse license and an advanced nursing educational degree.

In addition, nearly all States require APRNs to obtain and maintain national certification by a standard advanced nursing credentialing agency,

and these

credentials require extensive education and training requirements.

Despite minor variability in nomenclature and licensure requirements, a growing majority of States are adopting the Consensus Model for APRN Regulation from the American Association of Nurse Practitioners, which defines the standards for licensure, accreditation, certification, education, and practice.

Given the number of States and types of licenses, we consider the very few current differences in licensing requirements not to outweigh the sufficiently national and increasingly uniform State requirements, especially given the trend to full implementation of the Consensus Model for APRN Regulation.

In a very few States, the advanced nursing educational degree requirement may be achieved indirectly from the requirement to obtain the national certification. See Indiana's Administrative Code 848 IAC 4-1-4 about Nurse Practitioners, available at

http://www.in.gov/pla/files/ISBN.2011_EDITION.pdf

. See also South Dakota law 20:48:05:01 about Certified Registered Nurse Anesthetists, available at

http://legis.sd.gov/Rules/DisplayRule.aspx?Rule=20:48:05:01

In a very few States, the advanced nursing credentialing is optional. These are: (1) California for Nurse Practitioners, see Cal.C.Reg. 16.8.1482, available at

http://www.rn.ca.gov/pdfs/regulations/bp2834-r.pdf;

(2) Indiana for Nurse Practitioners and Clinical Nurse Specialists, see Indiana's Administrative Code 848 IAC 4-1-4 and -5, available at

http://www.in.gov/pla/files/

ISBN.2011_EDITION.pdf;

(3) New York, see Education Law Article 139 § 6910 for Nurse Practitioners and Clinical Nurse Specialists, available at

http://www.op.nysed.gov/prof/nurse/article139.htm,

and Article 140 § 79-5.2 for Midwives, available at

http://www.op.nysed.gov/prof/midwife/part79-5.htm;

and (4) Oregon for Clinical Nurse Specialists, see Oregon Rules 851-054-0040, available at

http://arcweb.sos.state.or.us/pages/rules/oars_800/oar_851/851_054.html

See, for example, the American Academy of Nurse Practitioners Certification Program, available at

http://www.aanpcert.org/ptistore/control/certs/qualifications

Available at

http://www.aacn.nche.edu/education-resources/APRNReport.pdf

While we believe that these medical sources reflect the modern primary healthcare delivery system and are among the most highly qualified medical sources, we are particularly interested in receiving public comment on which criteria we should use when we determine which medical sources should be an AMS.

In particular, we are interested in public comments about whether we should add physician assistants (PAs) to the AMS list. PAs are significant health care providers for certain underserved populations, including those in rural communities. We would like public comments on whether the licensing, education, and training requirements for PAs are sufficient and consistent across States for PAs to be considered AMSs in all cases. We would also like public comments on whether there are additional criteria we should use to support the inclusion of PAs on the AMS list in particular circumstances, and how we should consider these issues in the context of a national disability program with uniform rules. We are also interested in whether or not there are other professionals, such as licensed clinical social workers, who we should include on the AMS list.

D. Other Revisions to the Current AMS List

We propose to make six additional revisions to our current AMS list. The first two proposed revisions would update our rules about optometrists to reflect current State law about scope of practice. Our current rules include licensed optometrists for establishing visual disorders only, except in the U.S. Virgin Islands where licensed optometrists are included for the measurement of visual acuity and visual fields only.

Subsequent to publication of the final rule in 2007 that added optometrists to the AMS and medical consultant list,

the U.S. Virgin Islands enacted legislation that authorized full scope of practice for optometrists.

Therefore, we propose to delete the exception for licensed optometrists in the U.S. Virgin Islands from our rules.

20 CFR 404.1513(a)(3) and 416.913(a)(3).

72 FR 9239 (March 1, 2007).

Act 7376, available at

http://www.legvi.org/vilegsearch/ShowPDF.aspx?num=7376&type=Act,

see also 27 V.I.C. 161(a), available at

http://www.lexisnexis.com/hottopics/vicode

On the other hand, Puerto Rico now has a limited scope of practice for licensed optometrists. Although licensed optometrists in Puerto Rico can perform visual acuity examination and visual field measurement, they are unable to prescribe medication or perform surgery.

Consequently, in proposed 20 CFR 404.1502(a)(3) and 416.902(a)(3), we propose to limit licensed optometrists in Puerto Rico to the measurement of visual acuity and visual fields as is consistent with their scope of practice.

See 20 LPRA 544(b)(1), available at

http://www.lexisnexis.com/hottopics/lawsofpuertorico/

Our third proposal is to revise our definition of psychologists as AMSs to include independently practicing, licensed or certified, psychologists. All of these psychologists have a minimum of a master's degree. Although this is our subregulatory interpretation of the current regulatory language,

we believe it would be clearer to place it in the regulatory language.

See POMS DI 22505.004 Establishing the Credentials for Psychologists and School Psychologists Who Do Not Show Their Licensing or Certification Status, available at

https://secure.ssa.gov/apps10/poms.nsf/lnx/0422505004

Fourth, we propose to enumerate school psychologists separately from psychologists to clarify that the current “independent practice level” requirement applies to licensed or certified psychologists only but not to school psychologists. This is not a change in our current policy.

Fifth, we propose to revise our rules to reflect that the title of the certificate that the ASHA issues to qualified speech-language pathologists is now a Certificate of Clinical Competence in Speech-Language Pathology. Our current rules in 20 CFR 404.1513(a)(5) and 416.913(a)(5) state that the certification is a Certificate of Clinical Competence. We propose to make this revision in proposed 20 CFR 404.1502 and 416.902.

Sixth, we propose to revise how we use evidence from medical sources on the AMS list. For most AMS sources, our regulations state the medical source is an AMS for the purpose of establishing a particular kind of impairment(s). Because we use evidence from AMSs for additional purposes, such as determining whose medical opinions we articulate in a determination or decision, we propose to revise our regulations to allow the use of evidence “for impairment(s) of” in order to better describe what AMS status means in our rules. We propose to make this revision to 20 CFR 404.1502(a)(2)(ii)-(7) and 416.902(a)(2)(ii)-(7).

E. Related Revisions to Our Listings

Because we propose to recognize audiologists as AMSs, we also propose to revise our rules to specify what evidence would establish a medically determinable impairment that causes hearing loss that could meet the requirement of a listing in the Listing of Impairments.

Under our Special Senses and Speech Listings, we currently require a complete otologic examination by a licensed physician (medical or osteopathic doctor) to establish a medically determinable impairment that causes hearing loss.

We propose to remove the word “complete” because we currently specify the information we need in listing 2.00B2b and 102.00B2b, and we expect medical providers to follow professional standards for conducting examinations. We also propose to specify that audiologists, because they would be AMSs, could also perform the otologic examination. We propose to make these revisions in 20 CFR part 404, subpart P, Appendix 1 sections 2.00B for adults and 102.00B for children.

See 20 CFR 404.1525 and 416.925.

20 CFR part 404, subpart P, Appendix 1 sections 2.00B2b for adults and 102.00B2b.

V. Revisions to Our List of Medical Sources Who Can Be MCs and PCs

BBA section 832 states that when there is evidence indicating the existence of a physical impairment in a claim, we may not make an initial

disability determination until we have made every reasonable effort to ensure that a qualified physician has completed the medical portion of the case review and any applicable RFC assessment.

Similarly, BBA section 832 states that when there is evidence indicating the existence of a mental impairment in a claim, we may not make an initial disability determination until we have made every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable RFC assessment.

These requirements will apply to how State agency DDSs use MCs and PCs to complete the medical portion of the case review and any applicable RFC assessment(s) at both the initial and reconsideration levels.

Pub, L, 114-74, § 832, Stat. 584, 613.

Id.

To implement BBA section 832, we propose several revisions about who can be MCs and PCs who can complete the medical portion of the case review and any applicable RFC assessment(s).

First, we currently authorize licensed physicians (medical or osteopathic) to be MCs who can complete the medical portion of the case review and any applicable RFC assessment for all physical impairments.

We also authorize licensed optometrists, podiatrists, and speech-language pathologists to be MCs who can complete the medical portion of the case review and any applicable residual functional capacity assessment about physical impairments in their scope of practice.

To implement BBA section 832, we propose to authorize only licensed physicians to be MCs, who must complete the medical portion of the case review and any applicable RFC assessment for physical impairments in a claim.

20 CFR 404.1616(b) and 416.1016(b).

20 CFR 404.1616(b) and (c) and 416.1016(b) and (c).

Second, when we propose to deny a claim involving mental impairments, we are currently required to make every reasonable effort to ensure that a psychiatrist or psychologist completes the medical portion of the case review and any applicable RFC assessment. In practice psychiatrists and qualified psychologists also typically review claims we propose to allow.

Our current regulations define the steps we must take to make every reasonable effort, as prescribed in section 221(h) of the Act. Current 20 CFR 404.1617 and 416.1017 states that if we are unable to obtain the services of a qualified psychologist or psychiatrist after making every reasonable effort, then we authorize an MC who is a physician to complete the medical portion of the case review and any applicable residual functional capacity assessment for mental impairments in a claim.

To implement BBA section 832, we propose to make every reasonable effort to ensure that psychiatrists or psychologists complete the medical portion of a case review and any applicable RFC assessment for mental impairments whether we propose to allow or deny a claim.

20 CFR 404.1615(d), 404.1616(d), 416.1015(d), and 416.1016(d).

Id.

Third, BBA section 832 requires us to make every reasonable effort to ensure that a qualified physician has completed the medical portion of the case review and any applicable residual functional capacity assessment about physical impairment(s) before we make an initial determination, just as we make every reasonable effort for claims involving mental impairments. To implement BBA section 832, we propose to also make every reasonable effort to have physicians complete the medical portion of the case review and any applicable RFC assessment about physical impairments in a claim.

Fourth, we propose to revise our rules about who can be a PC. BBA section 832 states both psychiatrists and psychologists can make the medical assessment for mental impairments. For clarity, we propose to specify that a psychiatrist, who is a licensed physician, could serve as either an MC or PC. Instead of separately enumerating what constitutes a “qualified” psychologist who can be a PC, we also propose to define a psychologist in the same way we propose in our rules on AMSs in 20 CFR 404.1502(a)(2) and 416.902(a)(2).

We propose to make these revisions to 20 CFR 404.1615-404.1617 and 416.1015-416.1017. Because BBA section 832 becomes effective for determinations made on and after November 2, 2016, we would begin applying these revisions to our MC and PC rules on that date.

VI. Consideration and Articulation of Medical Opinions and Prior Administrative Medical Findings

A. Our Current Rules About Considering Medical Opinions and Administrative Findings of Fact

We consider all evidence in a claim, including medical opinions, when we determine disability.

Our current rules explain the process we use to weigh medical opinions and administrative findings of fact.

We consider the following factors when we weigh a medical opinion and an administrative finding of fact:

42 U.S.C. 423(d)(5)(B) and 1382c(H)(i). See also 20 CFR 404.1520(a)(3), 404.1527(b), 416.920(a)(3), and 416.927(b).

See 20 CFR 404.1527(c) and 416.927(c).

• Examining relationship. Generally, we give more weight to the opinion of a source who has examined a claimant than to the opinion of a source who has not examined a claimant.

20 CFR 404.1527(c)(1) and 416.927(c)(1).

• Treatment relationship. Generally, we give more weight to opinions from a claimant's treating sources because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of a claimant's medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. Within the treatment relationship factor, we also consider these sub-factors:

1. Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated a claimant and the more times a treating source has seen a claimant, the more weight we will give to the source's medical opinion. When a treating source has seen a claimant a number of times and long enough to have obtained a longitudinal picture of a claimant's impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.

20 CFR 404.1527(c)(2)-(c)(2)(i) and 416.927(c)(2)-(c)(2)(i).

2. Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about a claimant's impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if an ophthalmologist notices that a claimant complained of neck pain during an eye examination, we will consider his or her opinion with respect to the neck pain, but we will give it less weight than that of another physician who has treated the claimant for the neck pain. When the treating source has reasonable knowledge of the claimant's impairment(s), we will give the source's opinion more weight than we would

give it if it were from a nontreating source.

20 CFR 404.1527(c)(2)-(c)(2)(ii) and 416.927(c)(2)-(c)(2)(ii).

• Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because non-examining sources have no examining or treating relationship with a claimant, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in a claim, including opinions of treating and other examining sources.

20 CFR 404.1527(c)(3) and 416.927(c)(3).

• Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.

20 CFR 404.1527(c)(4) and 416.927(c)(4).

• Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

20 CFR 404.1527(c)(5) and 416.927(c)(5).

• Other factors. When we consider how much weight to give a medical opinion, we will also consider any factors brought to our attention, or of which we are aware, that tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an AMS has, regardless of the source of that understanding, and the extent to which an AMS is familiar with the other information in a case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.

20 CFR 404.1527(c)(6) and 416.927(c)(6).

In addition to weighing all medical opinions and administrative findings of fact with these factors, our rules include special policies for weighing medical opinions from treating sources. We currently define a treating source as an individual's own physician, psychologist, or other AMS who provides, or has provided, medical treatment or evaluation resulting from an ongoing treatment relationship. Generally, we consider a relationship ongoing if the AMS has seen an individual with a frequency consistent with the accepted medical practice for the type of treatment or evaluation required for a specific medical condition(s). We do not consider an AMS to be a treating source if the relationship with the individual is based solely on that individual's need to obtain an assessment or evaluation in support of a disability claim. In such a case, we consider the AMS to be a nontreating source.

20 CFR 404.1502 and 416.902.

Under our current rules, a treating source's medical opinion about the nature and severity of a claimant's impairment(s) is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.

Stated another way, when we find the supportability and consistency factors persuasive for a treating source, we will generally adopt the treating source's opinion about the nature and severity of a claimant's impairment(s). When we do not give controlling weight to a treating source's medical opinion because it is not well-supported or is inconsistent with other substantial evidence in the case record, we will evaluate the medical opinion using all of the factors listed above.

20 CFR 404.1527(c)(2) and 416.927(c)(2).

B. Our Current Rules About Articulating How We Consider Medical Opinions and Administrative Findings of Fact

Once we consider all medical opinions and administrative findings of fact in the record, we articulate how we consider the following medical opinions and administrative findings of fact in the notice of determination or decision:

1. If we give controlling weight to a treating source's medical opinion, we articulate how we considered only that medical opinion by giving good reasons for the weight we give it.

20 CFR 404.1527(c)(2) and 416.927(c)(2).

2. If we do not give controlling weight to a treating source's medical opinion, not only do we give good reasons for the weight we give to the treating source's opinion, we also articulate how we considered medical opinions from all AMSs and administrative findings of fact.

20 CFR 404.1527(c) and (e) and 416.927(c) and (e).

3. If we do not give controlling weight to a treating source's medical opinion and we find that an opinion from a medical source who is not an AMS is more persuasive than the AMS medical opinions and administrative findings of fact, in addition to the requirements listed above, we also articulate how we considered that non-AMS medical opinion.

SSR 06-03p.

4. The adjudicator generally

should

explain the weight given to opinions from other sources when such opinions may have an effect on the outcome of the case.

Id.

There is no clear requirement about which factors we must discuss in a determination or decision.

C. History of the Controlling Weight Rule

We based our policies about giving certain treating source opinions controlling weight on the Act's requirement that we make every reasonable effort to obtain from the individual's treating physician (or other treating healthcare provider) all medical evidence necessary to make a disability determination before evaluating medical evidence from a consultative source.

Although the Act requires us to consider a treating medical source's evidence, it does not specify how we should evaluate that evidence. Instead, the Act gives us the authority to adopt reasonable and proper rules, regulate and provide for the nature and extent of proof and evidence for disability claims.

As the United States Supreme Court has emphasized, we have exceptionally broad statutory authority to establish rules about evidence.

42 U.S.C. 423(d)(5)(B) and 1382c(H)(i).

42 U.S.C. 405(a).

Bowen

Yuckert,

482 U.S. 137, 145 (1987).

Responding to certain court decisions,

100

in 1991 we issued final rules to create a uniform national policy about how to consider medical opinions from treating physicians.

101

We stated that treating sources' evidence tends to have a special, intrinsic value because treating sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of a claimant's medical impairment(s) and may bring a unique perspective to the medical evidence.

102

We also stated that, because medical opinions always have a subjective component and the effects of medical conditions on individuals vary widely, as no two cases are exactly alike, it is not possible to create rules that prescribe the weight to be given to each piece of evidence we may take into consideration. The 1991 final rule also recognized that the weighing of any evidence, including medical opinions, is a process of comparing the intrinsic value,

persuasiveness, and internal consistency of each piece of evidence together to determine which findings of fact the evidence best supports.

103

100

See,

e.g., Schisler

Bowen,

851 F.2d 43, 44 (2d Cir. 1988).

101

56 FR 36932 (Aug. 1, 1991).

102

56 FR at 36934 and 36961.

103

Id. at 36934-36935.

We have revised our policies about weighing medical opinions from treating sources several times since the 1991 final rules. We expanded the definition of who can be a treating source to allow any AMS to be a treating source and expanded the list of AMSs to include osteopaths, optometrists, podiatrists, and speech-language pathologists.

104

By expanding the AMS list, it became more common for claims to include medical opinions from multiple treating sources. In addition, claimants frequently submitted opinions from medical sources who were not AMSs and not considered treating sources under our rules.

104

Medical and Other Evidence of Your Impairments and Definition of Medical Consultant, 65 FR 34952 (June 1, 2000); Optometrists as “Accepted Medical Sources” to Establish a Medically Determinable Impairment, 72 FR 9239 (March 1, 2007).

We also issued two SSRs to help adjudicators evaluate multiple medical opinions and opinions from sources who were not AMSs. We issued SSR 96-2p to clarify how we apply this policy and to explain terms in our regulations used in evaluating whether treating source medical opinions are entitled to controlling weight.

105

We emphasized several policies, including:

105

SSR 96-2p: Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 61 FR 34490 (July 2, 1996).

• A case cannot be decided by relying on a medical opinion if the medical source making that opinion does not provide reasonable support for the opinion.

• Controlling weight may be given only to medical opinions that are about the nature and severity of an individual's impairment(s).

• Controlling weight may not be given to a treating source's medical opinion unless the opinion is both well supported by medically acceptable clinical and laboratory diagnostic techniques (clinical signs and laboratory findings) and not inconsistent with the other substantial evidence in the case record.

• To give a treating source's opinion controlling weight means to adopt it.

• A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that we reject the opinion. It may still be entitled to deference and an adjudicator may adopt it.

We recognized a need to provide additional policy guidance because our rules did not explicitly tell our adjudicators how to consider the growing prevalence of opinions from claimants' medical sources who did not qualify as treating sources under our regulations. We stated this additional policy guidance in SSR 06-03p.

106

SSR 06-03p included the following guidance:

106

• We may use evidence from medical sources who are not AMSs to show the severity of an impairment(s) and how it affects a claimant's ability to function, but we may not use evidence from medical sources who are not AMSs to establish the existence of an impairment(s) at step 2 of the sequential evaluation process.

• We should evaluate opinions from non-AMS sources using the same criteria used to evaluate AMS opinions.

• We generally should explain the weight given to opinions from non-AMS sources when such opinions may have an effect on the outcome of the case.

• We will explain how we considered an opinion from a non-AMS source when it is entitled to greater weight than a medical opinion from a treating source.

D. Experience With the Current Rules for Weighing Medical Opinions

The current policies for weighing medical opinions have resulted in several adjudicative issues.

1. The Number of Findings Required

Our current policies require our adjudicators to make a large number of findings that need to be included in their determinations and decisions. Claims often contain evidence from a great number of medical sources, and each medical source may express several medical opinions.

107

Some claim files contain opinions from ten or more medical sources. Our current rules require adjudicators to articulate the weight given to most of these opinions using the factors listed in 20 CFR 404.1527(c) and 416.927(c). Often, these medical opinions differ, and Federal courts have remanded cases citing failure to weigh properly one of the many medical opinions in a record.

107

See ACUS Final Report at 14.

2. Federal Court Perspectives

Our rules specify that a treating source's opinion is entitled to controlling weight only if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record. Our rules also require us to give good reasons in our notice of determination or decision for the weight we give a treating source's opinion.

108

20 CFR 404.1527(c)(2) and 416.927(c)(2).

However, some courts have questioned ALJs' articulated reasons for not giving treating source opinions controlling weight. They have offered different reasons for rejecting ALJs' articulated explanations for not giving controlling weight to treating source opinions, such as: The treating source opinion is more recent;

109

an ALJ may only discredit claimants' reported pain symptoms using a heightened evidentiary standard;

110

an ALJ may not rely upon prescribed conservative treatment to indicate less severe restrictions.

111

109

For example, see

Winters

Barnhart,

153 Fed. Appx. 846 (3d Cir. 2005).

110

For example, see

Smolen

Chater,

80 F.3d 1273, 1281 (9th Cir. 1996).

111

For example, see

Santiago

Barnhart,

386 F. Supp. 2d 20 (D.P.R. 2005).

In effect, these reviewing courts have focused more on whether we sufficiently articulated the weight we gave treating source opinions rather than on whether substantial evidence supports the Commissioner's final decision. As the ACUS Final Report explains, these courts, in reviewing final agency decisions, are reweighing evidence instead of applying the substantial evidence standard of review, which is intended to be highly deferential standard to us.

112

ACUS Final Report at 23.

Some courts have recognized the challenges the treating source rule creates for us during judicial review. The United States Court of Appeals for the Seventh Circuit has specifically called on us to reexamine the treating physician rule. That court questioned its usefulness and noted that “the weight properly to be given to testimony or other evidence of a treating physician depends on circumstances.”

113

Hofslien

Barnhart,

439 F.3d 375, 377 (7th Cir. 2006).

While the Supreme Court has not directly addressed this issue, its unanimous holding in

Black & Decker Disability Plan

Nord,

114

which overturned the Ninth Circuit's attempt to apply the treating physician rule to a different Federal statute, offers insight. The Court cautioned that that the treating physician rule's built-in evidentiary bias in favor of treating physicians may influence treating

sources to favor a finding of disabled.

115

ACUS commented:

114

538 U.S. 822, 832 (2003).

115

Id. at 832; see also

Hofslien

Barnhart,

439 F.3d at 376 noting that a treating physician may bend over backwards to assist a patient in obtaining benefits);

Stephens

Heckler,

766 F.2d 284, 289 (7th Cir. 1985) (noting that a treating physician may want to do a favor for a friend and client and so may too quickly find disability and might also lack appreciation of how one case compares with other related cases, whereas a consulting physician may bring both impartiality and expertise).

“The cautionary note sounded by the Supreme Court in

Black & Decker

applies as well, it would seem, to Social Security's disability benefits programs. Indeed, as detailed in earlier parts of this report, our legal and empirical assessment of SSA's treating physician rule suggests that the rule's `routine deference' to treating physicians may no longer be warranted.”

116

ACUS Final Report at 43.

3. Ninth Circuit's Credit-as-True Rule

While courts in most circuits typically remand claims to us for further adjudication when they find we erred by not giving controlling weight to treating source opinions, the Ninth Circuit uses a “credit-as-true” rule, which sometimes results in it ordering us to award benefits instead of remanding cases.

117

The Ninth Circuit combines the treating physician rule with its credit-as-true rule in cases in which the court finds:

117

For example, see

Garrison

Colvin,

759 F.3d 995, 1021-1022 (9th Cir. 2014).

1. The ALJ failed to provide legally sufficient reasons for rejecting the treating source opinion;

2. there are no other issues that must be resolved before a determination of disability can be made; and

3. it is clear from the record that the ALJ would be required to find the claimant disabled if he or she credited the treating source opinion as true.

118

Id. For example, see

Smolen

Chater,

80 F.3d 1273, 1292 (9th Cir. 1996).

Application of the credit-as-true rule prevents us from reconsidering the evidence in the record as a whole and correcting any errors that may exist, effectively supplanting the judgment of our decision makers.

4. Difficulty Determining Treating Source Status Due to the Changing Nature of the Primary Healthcare System

We stated in the 1991 final rules that our basis for creating the treating physician rule was the presumption that a claimant's sole treating physician generally has the longitudinal knowledge and a unique perspective about his or her patient's impairments that objective medical evidence alone cannot provide.

However, changes in the national healthcare workforce and in the manner in which many people now receive primary medical care make this presumption less persuasive than when we issued those rules 25 years ago.

119

See ACUS Final Report at 25-27 and footnotes.

One reason our current formulation needs to be revised is that many claimants receive healthcare from coordinated and managed care organizations instead of from one treating AMS. Claimants typically visit multiple medical professionals (such as primary physicians, specialists, and nurse practitioners) in a variety of medical settings (such as managed care and specialty clinics, hospitals, ambulatory care centers, and various public healthcare centers) for their healthcare needs, and less frequently develop a sustained relationship with one treating physician. Similarly, the specialized nature of healthcare delivery means that medical sources are less familiar with claimants' entire medical situation. This is more pronounced for patients with chronic impairments who are often treated by a team of medical sources instead of by one treating medical source. Additionally, many claimants switch medical providers over time to match changes in insurance coverage.

120

See ACUS Final Report at footnotes 220 and 221.

As a result of the current complex healthcare delivery model, adjudicators and courts have attempted to understand what level of medical care would qualify a medical source as a treating source under our current rules. The main source of divergence originates because our rules do not address how to weigh more than one treating source's medical opinion simultaneously. In response, several courts have created varying standards of how we must address opinions from multiple treating sources. Some courts have even considered the following kinds of medical sources to be treating sources:

• Physicians “with relatively sporadic treatment relationships” to claimants;

121

ACUS Final Report at 34. For example, see

Johnson

Astrue,

597 F.3d 409, 411 (1st Cir. 2009).

• all members of a healthcare team;

122

and

122

For example, see

Shontos

Barnhart,

328 F.3d 418, 426 (8th Cir. 2003).

• a physician who coordinated care among medical sources but who did not personally examine the claimant.

123

For example, see

Benton

Barnhart,

331 F.3d 1030 (9th Cir. 2003).

However, these approaches move our adjudication away from looking at the content of the medical opinions and towards weighing treatment relationships against each other. About these kinds of court holdings, ACUS stated:

These cases reveal that, from the courts' perspective, the distinction between treating and other physicians has blurred. The expansion of treating physician status runs the risk of undermining the rule itself. The original idea that the persuasiveness of medical opinion should turn more on the frequency of visits and depth of professional judgment underlying the medical opinion has gotten lost.

This blurring of professional lines—between treating physicians and other medical professionals—is, moreover, increasingly reflected not just in judicial opinions, but in medical offices as well. Indeed, the treating physician business has expanded with new services to include doctors who see patients in high volume . . . . This “devaluation” of the physician-patient relationship calls into further question whether any deference—let alone “controlling weight”—should be afforded to the opinions of this type of medical practitioner.

124

ACUS Final Report at 35 (internal citations omitted).

5. Legal Scholars' Perspectives on the Treating Physician Rule

Some legal scholars also disfavor the treating physician rule. For example, two scholars argue that “[t]he substantial evidence standard of review should mean the same thing under the Social Security Act as it does under the APA or other organic statutes,” but that this rule influences courts to review our decisions differently.

125

Richard E. Levy & Robert L. Glicksman,

Agency-Specific Precedents,

89 TEX. L. REV. 499, 546 (2011); see also Richard Pierce, Jr., Petition for Rulemaking before the Social Security Administration, July 2, 2012, available at

www.regulations.gov

by searching under Docket SSA-2012-0035.

E. Proposed Revisions About How To Consider Medical Opinions and Prior Administrative Medical Findings

To address the concerns discussed above, we propose several revisions to how we consider medical opinions and prior administrative medical findings. First, we would no longer give a specific weight to medical opinions and prior administrative medical findings; this includes giving controlling weight to medical opinions from treating sources. Instead, we would consider the persuasiveness of medical opinions and

prior administrative medical findings using the factors described below. Second, we propose to consider supportability and consistency as the most important factors. Finally, we propose to reorganize the factors to: (1) List the supportability and consistency factors first, (2) include a “relationship with the claimant” factor that combines the content of the current examining relationship and treatment relationship factors, (3) list individually the three different factors currently combined as other factors, and (4) restate the factors using consistent sentence structure.

First, we would consider the persuasiveness of medical opinions and prior administrative medical findings from all medical sources equally using the factors discussed below. We would not defer or give any specific evidentiary weight, including controlling weight, to any prior administrative medical finding or medical opinion, including from an individual's own healthcare providers. We would add this in proposed new 20 CFR 404.1520c(a) and 416.920c(a).

We also propose to focus on the persuasiveness of medical opinions and prior administrative medical findings instead of the weight of an opinion. We always strive to make our regulations as clear as possible; therefore, we are agreeing with an ACUS recommendation to revise the regulations to avoid using terms or phrases that have different meanings in related contexts.

126

Our current rules use the terms “weigh” or “weight” in several different ways: (1) As a synonym for considering all evidence generally,

127

(2) as a synonym for persuasiveness,

128

and (3) as part of our additional evidence standard for review used at the AC,

129

and during CDRs.

130

In addition to proposing to use the term “persuasive” instead of “weight” for medical opinions in 20 CFR 404.1520c and 416.920c, we also propose to use the term “consider” instead of “weigh” in 20 CFR 404.1520b and 416.920b. We would retain the current standards for AC review and CDRs.

126

ACUS Final Report at 56.

127

See 20 CFR 404.1520b and 416.920b. This term applies to all evidence, not only medical opinions.

128

See 20 CFR 404.1527(c) and 416.927(c). See also 56 FR 36931, 36935-36: “[B]ecause opinions always have a subjective component, because the effects of medical conditions on individuals vary so widely, and because no two cases are ever exactly alike, it is not possible to create rules that prescribe the weight to be given to each piece of evidence that we may take into consideration in every case. [The final rule] also recognizes that the weighing of any evidence, including opinions, is a process of comparing the intrinsic value, persuasiveness, and internal consistency of each piece of evidence together to determine which findings of fact are best supported by all of the evidence.”

129

See 20 CFR 404.970(b) and 416.1470(b).

130

See 20 CFR 404.1579(b)(4), 404.1594(b)(6), 416.979(b)(4), 416.994(b)(1)(vi), and 416.994a(a)(2).

Next, to rely more upon the content and less on the source of medical opinions and prior administrative medical findings, we propose to emphasize supportability and consistency as the most important factors for considering the value and persuasiveness of medical opinions and prior administrative medical findings. The supportability and consistency factors are the two factors that focus upon the objective medical evidence and medical reports supporting a medical opinion or prior administrative medical finding.

These two factors are also the factors we evaluate when assigning controlling weight under our current rules.

131

If a medical opinion or prior administrative medical finding is both well-supported and consistent with the other evidence in the case record, we typically find that it is persuasive. Under the proposed change, adjudicators would still consider the value of the medical opinion or prior administrative medical finding to the issues in the claim.

131

See 20 CFR 404.1527(c)(2) and 416.927(c)(2).

Additionally, we propose several revisions to how we list and define the factors considering medical opinion and administrative finding of fact. The most important factors are supportability and consistency; therefore, we propose to list them first. We propose to list the remaining factors after the supportability and consistency factors in an order similar to how they appear in our current rules.

We also propose to merge the current examining relationship and treatment relationship factors into one factor called “relationship with the claimant” because they both describe aspects of the relationship between a claimant and medical source. The proposed factor called “relationship with the claimant” would list the following subfactors separately: Examining relationship, length of the treatment relationship, frequency of examination, purpose of treatment relationship, and extent of the treatment relationship.

Similarly, we propose to list separately the three factors we currently identify as other factors: (1) Familiarity with the entire record, (2) understanding of our policy, and (3) any other factor brought to our attention. Finally, we propose to restate the factors using consistent sentence structure for clarity.

We would make these revisions in the proposed new 20 CFR 404.1520c and 416.920c.

F. Proposed Revisions About How To Articulate How We Consider Medical Opinions and Prior Administrative Medical Findings

We propose to articulate in our determinations and decisions how we consider medical opinions and prior administrative medical findings at the source level instead of by the date of treatment and to focus more on the content than on the source of this evidence. We also propose to focus on the value and persuasiveness of medical opinions and prior administrative medical findings instead of assigning a specific weight. We propose to add the articulation policies in SSR 06-03p to our regulations and remove our policies about articulating medical opinions from treating sources from our rules. The proposed revisions would make our rules easier to understand and apply. We will continue to consider all evidence we receive in a claim.

First, we propose to articulate together, instead of individually, all medical opinions and prior administrative medical findings made by a medical source because our administrative experience shows that adjudicators, claimants, representatives, and courts tend to evaluate all of a medical source's evidence together. Additionally, because many claims have voluminous case records containing many types of evidence from different sources, it is not administratively feasible for us to articulate in each determination or decision how we considered all of the factors for all of the medical opinions and prior administrative medical findings. Therefore, we propose that our adjudicators articulate separately how they considered multiple medical opinions or prior administrative medical findings from one medical source.

Second, we propose to simplify our rules about which medical sources' medical opinions we would need to articulate. Because many claims have voluminous case records, it is not administratively feasible for us to articulate in determinations or decisions how we considered all medical sources' medical opinions in a claim. Our current policy requires us to articulate how we considered all AMS medical opinions when controlling weight does not apply, but it does not require us to always articulate how we considered medical opinions from medical sources who are not AMSs.

Due to the advanced education and training received by AMSs, their medical opinions may have presumptive value in describing a claimant's functional limitations and abilities. Therefore, we propose to require our adjudicators to articulate how persuasive they find all AMS medical opinions.

Similarly, because all MCs and PCs are AMSs, we would require our adjudicators to articulate how persuasive they find the prior administrative medical findings in the case record. This requirement is similar to our current policy in SSR 06-03p.

Under these proposed rules, if an adjudicator finds that a medical opinion(s) from a medical source who is not an AMS is more valuable and persuasive than all of the AMS medical opinions and prior administrative medical findings in the claim, then the adjudicator would articulate how he or she considered that medical opinion(s). For example, if a physical therapist submits evidence indicating functional limitations supported by objective medical evidence that is consistent with the other evidence in the claim, the adjudicator would articulate in the determination or decisions how he or she considered that evidence if it is more valuable and persuasive than the all of the other medical opinions and prior administrative medical findings in the claim.

This proposed rule also gives adjudicators the discretion of whether to discuss non-AMS medical opinions they find are not valuable or persuasive. For example, if a physical therapist submits a form indicating functional limitations without sufficient support or that are not consistent with the other evidence in the claim, the adjudicator would have the discretion about whether to articulate in the determination or decisions how he or she considered that evidence.

Third, we propose to specify which of the factors we must articulate in our determinations and decisions. Due to voluminous case records in some cases, it is not always administratively feasible for us to articulate how we considered each of the factors for all of the medical opinions and prior administrative medical findings in a claim while still offering timely customer service to our claimants. Instead, for AMS medical opinions and prior administrative medical findings, we would explain, in the determination or decision, how we considered the factors of supportability and consistency because those are the most important factors.

Generally, under these proposed rules, we would have discretion to articulate how we consider the other factors. We would only be required to explain how we consider other applicable factors when we find that two or more AMS' medical opinions or prior administrative medical findings about the same issue are not the same but are both equally well-supported and consistent with the other evidence in the record. This situation may arise when the medical sources are discussing different impairments.

Similarly, if we find that a non-AMS medical opinion(s) is well-supported and consistent with the other evidence in the record, as well as more valuable and persuasive than all AMS medical opinions and prior administrative medical findings, we would articulate how we consider the factors of supportability, consistency, and, if any, the other most persuasive factors.

We would add these revisions in the proposed new 20 CFR 404.1520c and 416.920c.

VII. Other Revisions Related to Treating Sources

A. Background

Our current regulations use the terms treating source and nontreating source in several sections. We consider a nontreating source to be a physician, psychologist, or other AMS who has examined an individual but does not, or did not, have an ongoing treatment relationship with that individual. The term includes an AMS who is a consultative examiner for us, when the consultative examiner is not the individual's treating source.

132

See 20 CFR 404.1502 and 416.902.

In addition to our rules about weighing medical opinions, our current rules include treating sources in two other contexts. First, we state that a claimant's treating source will be the preferred source of a consultative examination when, in our judgment, the treating source is qualified, equipped, and willing to perform the additional examination or tests for the fee schedule payment, and generally furnishes complete and timely reports.

133

We also state that we will use a medical source other than the treating source for a consultative examination in other situations, such as if there are conflicts or inconsistencies in a claim that cannot be resolved by going back to the treating source.

134

133

20 CFR 404.1519h and 416.919h.

134

20 CFR 404.1519i and 416.919i.

The other context in which we use the term treating source is when a claimant must follow treatment prescribed by his or her physician if the treatment can restore the claimant's ability to work.

135

Our subregulatory policy recognizes prescribed treatment from a claimant's treating sources.

135

20 CFR 404.1530 and 416.930.

B. Proposed Revisions

The current healthcare delivery model involves many types of medical sources that are not currently AMSs and that we do not consider treating sources under our rules. A challenge has been the difference between our policy-specific intent for the term “treating source” and its colloquial use to refer to any medical source who has treated an individual.

We are proposing to align our rules to focus more on the content of medical evidence than the source of that evidence. We propose to consider all medical sources that a claimant identifies as his or her medical sources for our rules and not use the term “treating source” in our regulations at all. Consequently, we propose to revise our rules to use the phrase “your medical source(s)” to refer to whichever medical sources a claimant chooses to use.

First, we propose to revise our regulations at 20 CFR 404.1530(a) and 416.930(a) to state that a claimant must follow treatment by his or her medical source(s) if this treatment can restore his or her ability to work.

Second, we propose to revise our rules to state that our preference for consultative examinations will be any of a claimant's medical sources. We would continue to use the existing standards to decide whether to select the claimant's medical source for the consultative examinations, such as whether the medical source is qualified, equipped, and willing to perform the additional examination or tests for the fee schedule payment, and generally furnishes complete and timely reports. We propose to make this revision to 20 CFR 404.1519h, 404.1519i, 416.919h, and 416.919i. We also propose to delete the final sentence of current 20 CFR 404.1519h and 416.919h that discusses which medical source may perform supplemental tests because this is already encompassed in the prior sentence's use of the term “test(s).”

Finally, because we would no longer use the terms treating source and nontreating source in our regulations, we propose to delete the definitions for these terms from our regulations at 20 CFR 404.1502 and 416.902.

VIII. Reorganizing Our Opinion Evidence Regulations

Our current regulations about opinion evidence are scattered throughout 20

CFR part 404 subpart P and part 416 subpart I. As part of our proposal to simplify our opinion evidence regulations to make them easier to understand and use, we are proposing to reorganize several sections and rename some section headings in our regulations. The proposed reorganization would combine similar topics now in separate sections into one section, place sections about how we weigh medical opinions and how we consider evidence next to each other, and add a section about establishing an impairment(s) at step 2 of the sequential evaluation process.

For ease of use, the following are distribution and derivation tables for 20 CFR part 404 subpart P and part 416 subpart I:

A. Distribution Table

Current section

Proposed section

404.1501-404.1506

404.1501-404.1506.

404.1508

404.1521.

404.1509-404.1511

404.1509-404.1511.

404.1512(a)

404.1512(a)(1).

404.1512(b)-(b)(1)(iv)

404.1513(a)-(a)(4).

404.1512(b)(1)(v)

404.1520b(c)(2).

404.1512(b)(1)(vi)-(viii)

404.1513(a)(5)-(a)(5)(vi).

404.1512(b)(2)-(b)(2)(iv)

404.1513(b)-(b)(2).

404.1512(c)-(c)(7)

404.1512(a)(1)-(a)(1)(vii).

404.1512(d)-(f)

404.1512(b)(1)-(b)(3).

404.1513(a)

404.1502(a).

404.1513(b)-(b)(2)

404.1513(a)-(a)(2).

404.1513(c)-(c)(2)

Remove.

404.1513(d)-(d)(4)

404.1513(a)(4).

404.1513(e)-(e)(3)

404.1512(a)(2)-(a)(2)(iii).

404.1514-404.1520b

404.1514-404.1520b.

404.1521

404.1522.

404.1522

404.1523(a) and (b).

404.1523

404.1523(c).

404.1525-404.1526

404.1525-404.1526.

404.1527(a)(1)

Remove.

404.1527(a)(2)

404.1513(a)(3).

404.1527(b)

404.1527(b).

404.1527(c)-(c)(6)

404.1520c(b)-(b)(7) and 404.1527(c)-(c)(6).

404.1527(d)-(d)(3)

404.1520b(c)(3)-(c)(3)(vii) and 404.1527(d)-(d)(3).

404.1527(e)-(e)(3)

404.1513(b)(3) and 404.1513a.

404.1528

404.1502.

404.1529—Appendix 2 to Subpart P of Part 404

404.1529—Appendix 2 to Subpart P of Part 404.

416.901-416.906

416.901-416.906.

416.908

416.921.

416.909-416.911

416.909-416.911.

416.912(a)

416.912(a)(1).

404.912(b)-(b)(1)(iv)

404.913(a)-(a)(4).

404.912(b)(1)(v)

404.920b(c)(2).

404.912(b)(1)(vi)-(viii)

404.913(a)(5)-(a)(5)(vi).

416.912(b)(2)-(b)(2)(iv)

416.913(b)-(b)(2).

416.912(c)-(c)(7)

416.912(a)(1)-(a)(1)(vii).

416.912(d)-(f)

416.912(b)(1)-(b)(3).

416.913(a)

416.902(a).

416.913(b)-(b)(2)

416.913(a)-(a)(2).

416.913(c)-(c)(2)

Remove.

416.913(d)-(d)(4)

416.913(a)(4).

416.913(e)-(e)(3)

416.912(a)(2)-(a)(2)(iii).

416.913(f)

416.912(a)(3).

416.914-416.920b

416.914-416.920b.

416.923

416.923(c).

416.925-416.926

416.925-416.926.

416.927(a)(1)

Remove.

416.927(a)(2)

416.913(a)(3).

416.927(b)

416.927(b).

416.927(c)-(c)(6)

416.920c(b)-(b)(7) and 416.927(c)-(c)(6).

416.927(d)-(d)(3)

416.920b(c)(3)-(c)(3)(vii) and 416.927(d)-(d)(3).

416.927(e)-(e)(3)

416.913(b)(3) and 416.913a.

416.928

416.902.

416.929-416.999d

416.929-416.999d.

B. Derivation Table

Proposed section

Current section

404.1501

404.1501.

404.1502(a)

404.1513(a).

404.1502(b)-404.1503a

404.1502-404.1503a and 404.1528.

404.1504-404.1507

404.1504-404.1507.

[Reserved]

404.1508.

404.1509-404.1511

404.1509-404.1511.

404.1512(a)(1)

404.1512(a).

404.1512(a)(1)-(a)(1)(vii)

404.1512(c)-(c)(7).

404.1512(a)(2)-(a)(2)(iii)

404.1513(e)-(e)(3).

404.1512(b)(1)-(b)(3)

404.1512(d)-(f).

404.1513(a)-(a)(2)

404.1512(b)(1)(i)-(b)(1)(ii).

404.1513(a)(3)-(a)(3)(iv)

404.1527(a)(2).

404.1513(a)(4)

404.1512(b)(1)(iii)-(iv) and 404.1513(d)-(d)(4).

404.1513(a)(5)-(a)(5)(v)

404.1512(b)-(b)(1)(viii).

404.1513(b)-(b)(2)

404.1512(b)(2)-(b)(2)(iv).

404.1513a

404.1527(e)-(e)(3).

404.1514-404.1520b

404.1514-404.1520b.

404.1520b(c)(1)

404.1512(b)(5).

404.1520b(c)(2)

404.1527(d)-(d)(3).

404.1520b(c)(3)

404.1527(e)(1)(i).

404.1520c(b)-(b)(7)

404.1527(c)-(c)(6).

404.1521

404.1508.

404.1522

404.1521.

404.1523(a) and (b)

404.1522.

404.1523(c)

404.1523.

404.1525-404.1526

404.1525-404.1526.

404.1527

404.1527.

[Reserved]

404.1528.

404.1529—Appendix 2 to Subpart P of Part 404

404.1529—Appendix 2 to Subpart P of Part 404.

416.901

416.901.

416.902(a)

416.913(a).

416.902(b)-416.903a

416.902-416.903a and 416.928.

416.904-416.907

416.904-416.907.

[Reserved]

416.908.

416.909-416.911

416.909-416.911.

416.912(a)(1)

416.912(a).

416.912(a)(1)-(a)(1)(vii)

416.912(c)-(c)(7).

416.912(a)(2)-(a)(2)(iii)

416.913(e)-(e)(3).

416.912(a)(3)

416.913(f).

416.912(b)(1)-(b)(3)

416.912(d)-(f).

416.913(a)-(a)(2)

416.912(b)(1)(i)-(b)(1)(ii).

416.913(a)(3)-(a)(3)(iv)

416.927(a)(2).

416.913(a)(4)

416.912(b)(1)(iii)-(iv) and 416.913(d)-(d)(4).

416.913(a)(5)-(a)(5)(v)

416.912(b)-(b)(1)(viii).

416.913(b)-(b)(2)

416.912(b)(2)-(b)(2)(iv).

416.913(b)(2)

New.

416.913a

416.927(e)-(e)(3).

416.914-416.920b

416.914-416.920b.

416.920b(c)(1)

416.912(b)(5).

416.920b(c)(2)

416.927(d)-(d)(3).

416.920b(c)(3)

416.927(e)(1)(i).

416.920c(b)-(b)(7)

416.927(c)-(c)(6).

416.921

416.908.

416.922

416.921.

416.923(a) and (b)

416.922.

416.923(c)

416.923.

416.925-416.926

416.925-416.926.

416.927

416.927.

[Reserved]

416.928.

416.929-416.999d

416.928-416.999d.

We also propose to reorganize the current text within 20 CFR 404.1520b and 416.920b for readability. Finally, we propose to make a number of revisions throughout the proposed regulatory sections to use plain language.

IX. Effect Upon Certain Social Security Rulings

Upon publication of final rules, we would also rescind the following SSRs that would be inconsistent or unnecessarily duplicative with our new rules:

• SSR 96-2p: Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions.

136

61 FR 34490 (July 2, 1996).

• SSR 96-5p: Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner.

137

61 FR 34471 (July 2, 1996).

• SSR 96-6p: Titles II and XVI: Consideration of Administrative Findings of Fact by State Agency Medical and Psychological Consultants and Other Program Physicians and Psychologists at the Administrative Law

Judge and Appeals Council Levels of Administrative Review; Medical Equivalence.

138

61 FR 34466 (July 2, 1996).

• SSR 06-03p: Titles II and XVI: Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical Sources” in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies.

139

In addition, because we would rescind SSR 96-6p, we intend to publish a new SSR that would discuss certain aspects of how ALJs and the AC must obtain evidence sufficient to make a finding of medical equivalence.

X. Proposed Implementation Process

We propose to implement all of the revisions discussed above on the effective date of the final rule, with the exception of those revisions specified below. The revisions that we propose to implement in all claims as of the effective date of the final rule respond fully to the mandate of BBA section 832 medical review requirements, clarify current policy, or are not substantially related to the policies about evaluating medical opinions.

However, a claimant has the burden of proving to us that he or she is blind or disabled, and we are aware that claimants whose claims are pending administrative review may have requested and obtained treating and other medical source opinions based on our policy set forth in current 20 CFR 404.1527 and 416.927. Considering this fact, we propose to continue to use our current rules about how we consider medical source opinion evidence, including the controlling weight policy for treating sources, for claims that are filed before the effective date of the final rule. Using our current rules about how we consider medical source opinions for claims filed before the effective date of the final rule will also enable us to apply a uniform standard to evaluate medical source opinion evidence throughout the administrative review process.

Specifically, we propose to continue to use the following current rules in claims that are filed before the effective date of the final rule:

• The current definitions of a medical opinion and a treating source in current 20 CFR 404.1502, 404.1527(a), 416.902, and 416.927(a);

• How we consider medical opinions, including that we may give controlling weight to certain medical opinions, as explained in current 20 CFR 404.1527(b)-(c) and 416.927(b)-(c);

• How we consider issues reserved to the Commissioner, as explained in current 20 CFR 404.1527(d) and 416.927(d);

• How we consider decisions by other governmental agencies and nongovernmental entities, as explained in current 20 CFR 404.1504 and 416.904; and

• Neither audiologists nor APRNs are AMSs, as explained in current 20 CFR 404.1502, 404.1513, 416.902, and 416.913.

We also propose to make a number of conforming changes to reflect this proposed implementation process.

Executive Order 12866, as Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and determined that this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

We certify that this NPRM would not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

These rules do not create any new or affect any existing collections and, therefore, do not require OMB approval under the Paperwork Reduction Act.

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

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

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

Carolyn W. Colvin,

Acting Commissioner of Social Security.

For the reasons set out in the preamble, we propose to amend 20 CFR parts 404 416 as set forth below:

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

Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions

1. The authority citation for subpart J of part 404 continues 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).

2. In § 404.906, revise the fourth sentence of paragraph (b)(2) to read as follows:

§ 404.906

Testing modifications to the disability determination procedures.

(b) * * *

(2) * * * However, before an initial determination is made in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see § 404.1617). * * *

3. In § 404.942, revise paragraph (f)(1) to read as follows:

§ 404.942

Prehearing proceedings and decisions by attorney advisors.

(f) * * *

(1) Authorize an attorney advisor to exercise the functions performed by an administrative law judge under §§ 404.1513a, 404.1520a, 404.1526, and 404.1546.

Subpart P—Determining Disability and Blindness

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

Authority:

Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and (h)-(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) and (h)-(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).

5. Revise § 404.1502 to read as follows:

§ 404.1502

Definitions for this subpart.

As used in the subpart—

(a)

Acceptable medical source

means a medical source who is a:

(1) Licensed physician (medical or osteopathic doctor);

(2) Licensed psychologist, which includes:

(i) A licensed or certified psychologist at the independent practice level, or

(ii) A licensed or certified school psychologist, or other licensed or certified individual with another title who performs the same function as a school psychologist in a school setting, for impairments of intellectual disability, learning disabilities, and borderline intellectual functioning only;

(3) Licensed optometrist for impairments of visual disorders only (except, in Puerto Rico, for the measurement of visual acuity and visual fields only);

(4) Licensed podiatrist for impairments of the foot, or foot and ankle only, depending on whether the State in which the podiatrist practices permits the practice of podiatry on the foot only, or the foot and ankle;

(5) Qualified speech-language pathologist for speech or language impairments only. For this source,

qualified

means that the speech-language pathologist must be licensed by the State professional licensing agency, or be fully certified by the State education agency in the State in which he or she practices, or hold a Certificate of Clinical Competence in Speech-Language Pathology from the American Speech-Language-Hearing Association;

(6) Licensed audiologist for impairments of hearing loss and auditory processing disorders only (only with respect to claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]); or

(7) Licensed Advanced Practice Registered Nurse or other licensed advanced practice nurse with another title for impairments within his or her licensed scope of practice (only with respect to claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE]).

(b)

Commissioner

means the Commissioner of Social Security or his or her authorized designee.

(c)

Laboratory findings

means anatomical, physiological, or psychological phenomena that can be shown by the use of medically acceptable laboratory diagnostic techniques. Diagnostic techniques include chemical tests (such as blood tests), electrophysiological studies (such as electrocardiograms and electroencephalograms), medical imaging (such as X-rays), and psychological tests.

(d)

Medical source

means an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law, or an individual who is certified by a State as a speech-language pathologist or a school psychologist and acting within the scope of practice permitted under State or Federal law.

(e)

Nonmedical source

means a source of evidence who is not a medical source. This includes, but is not limited to,:

(1) You;

(2) Educational personnel (for example, school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers);

(3) Public and private social welfare agency personnel; and

(4) Family members, caregivers, friends, neighbors, employers, and clergy.

(f)

Objective medical evidence

means signs, laboratory findings, or both.

(g)

Signs

means anatomical, physiological, or psychological abnormalities that can be observed, apart from your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena that indicate specific psychological abnormalities,

e.g.,

abnormalities of behavior, mood, thought, memory, orientation, development, or perception and must also be shown by observable facts that can be medically described and evaluated.

(h)

State agency

means an agency of a State designated by that State to carry out the disability or blindness determination function.

(i)

Symptoms

means your own description of your physical or mental impairment.

(j)

means, as appropriate, either the Social Security Administration or the State agency making the disability or blindness determination.

(k)

You

your

means, as appropriate, the person who applies for benefits or for a period of disability, the person for whom an application is filed, or the person who is receiving benefits based on disability or blindness.

§ 404.1503

[Amended]

6. In § 404.1503, remove paragraph (e).

7. Revise § 404.1504 to read as follows:

§ 404.1504

Decisions by other governmental agencies and nongovernmental entities.

Other governmental agencies and nongovernmental entities—such as the Department of Veterans Affairs, the Department of Defense, the Department of Labor, the Office of Personnel Management, State agencies, and private insurers—make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed (see § 404.614) on or after [EFFECTIVE DATE OF FINAL RULE], we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider in our determination or decision relevant supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim.

§ 404.1508

[Removed and Reserved]

8. Remove and reserve § 404.1508:

9. Revise § 404.1512 to read as follows:

§ 404.1512

Responsibility for evidence.

(a)

Your responsibility

—(1)

General.

In general, you have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled (

see

§ 404.1513). 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 Council level if the evidence relates to the period on or before the date of the administrative law judge hearing decision. We will consider only impairment(s) you say you have or about which we receive evidence. 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. If we ask you, you must inform us about:

(i) Your medical source(s);

(ii) Your age;

(iii) Your education and training;

(iv) Your work experience;

(v) Your daily activities both before and after the date you say that you became disabled;

(vi) Your efforts to work; and

(vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.

(2)

Completeness.

The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—

(i) The nature and severity of your impairment(s) for any period in question;

(ii) Whether the duration requirement described in § 404.1509 is met; and

(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) apply.

(b)

Our responsibility

—(1)

Development.

Before we make a determination that you are not disabled, we will develop your complete medical history for at least the 12 months preceding the month in which you file your application unless there is a reason to believe that development of an earlier period is necessary or unless you say that your disability began less than 12 months before you filed your application. We will make every reasonable effort to help you get medical reports from your own medical sources and entities that maintain your medical sources' evidence when you give us permission to request the reports.

(i)

Every reasonable effort

means that we will make an initial request for evidence from your medical source or entity that maintains your medical source's evidence, and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, we will make one follow-up request to obtain the medical evidence necessary to make a determination. The medical source or entity that maintains your medical source's evidence will have a minimum of 10 calendar days from the date of our follow-up request to reply, unless our experience with that source indicates that a longer period is advisable in a particular case.

(ii)

Complete medical history

means the records of your medical source(s) covering at least the 12 months preceding the month in which you file your application. If you say that your disability began less than 12 months before you filed your application, we will develop your complete medical history beginning with the month you say your disability began unless we have reason to believe your disability began earlier. If applicable, we will develop your complete medical history for the 12-month period prior to:

(A) The month you were last insured for disability insurance benefits (see § 404.130);

(B) The month ending the 7-year period you may have to establish your disability and you are applying for widow's or widower's benefits based on disability (see § 404.335(c)(1)); or

(2)

Obtaining a consultative examination.

We may ask you to attend one or more consultative examinations at our expense. See §§ 404.1517 through 404.1519t for the rules governing the consultative examination process. Generally, we will not request a consultative examination until we have made every reasonable effort to obtain evidence from your own medical sources. We may order a consultative examination while awaiting receipt of medical source evidence in some instances, such as when we know a source is not productive, is uncooperative, or is unable to provide certain tests or procedures. We will not evaluate this evidence until we have made every reasonable effort to obtain evidence from your medical sources.

(3)

Other work.

In order to determine under § 404.1520(g) that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e)), age, education, and work experience.

10. Revise § 404.1513 to read as follows:

§ 404.1513

Categories of evidence.

(a)

What we mean by evidence.

Subject to the provisions of paragraph (b), evidence is anything you or anyone else submits to us or that we obtain that relates to your claim. We consider evidence under §§ 404.1520b, 404.1520c (or under § 404.1527 for claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE]). We evaluate evidence we receive according to the rules pertaining to the relevant category of evidence. The categories of evidence are:

(1)

Objective medical evidence.

Objective medical evidence is medical signs, laboratory findings, or both, as defined in § 404.1502(f).

(2)

Medical opinions.

A medical opinion is a statement from a medical source about what you can still do despite your impairment(s) and whether you have one or more impairment-related limitations or restrictions in the following abilities:

(i) Your ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping, or crouching);

(ii) Your ability to perform mental demands of work activities, such as understanding; remembering; maintaining concentration, persistence, and pace; carrying out instructions; and responding appropriately to supervision, co-workers, and work pressures in a work setting;

(iii) Your ability to perform other demands of work, such as seeing, hearing, and using other senses; and

(iv) Your ability to adapt to environmental conditions, such as temperature extremes and fumes.

(For claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE]), see § 404.1527(a) for the definition of medical opinion.)

(3)

Other medical evidence.

Other medical evidence is evidence from a medical source that is not objective medical evidence or a medical opinion, including judgments about the nature and severity of your impairments, your medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis. (For claims filed (see § 404.614) before [EFFECTIVE DATE OF FINAL RULE],

other medical evidence

does not include diagnosis, prognosis, and statements that reflect judgments about the nature and severity of your impairment(s)).

(4)

Statements from nonmedical sources.

A statement from a nonmedical source is a statement(s) made by nonmedical sources (including you) about your impairment(s), your restrictions, your daily activities, your efforts to work, or any other relevant statements the nonmedical source makes to medical sources during the course of your examination or treatment or that he or she makes to us during interviews, on applications, in reports or letters, and in testimony in our administrative proceedings.

(5)

Prior administrative medical findings.

A prior administrative medical finding is a finding, other than the ultimate determination about whether you are disabled, about a medical issue

made by our Federal and State agency medical and psychological consultants at a prior level of review (see § 404.900) based on their review of the evidence in your case record, such as:

(i) The existence and severity of your impairment(s);

(ii) The existence and severity of your symptoms;

(iii) Statements about whether your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1;

(iv) Your residual functional capacity;

(v) Whether your impairment(s) meets the duration requirement; and

(vi) How failure to follow prescribed treatment (see § 404.1530) and drug addiction and alcoholism (see § 404.1535) relate to your claim.

(b)

Exceptions for privileged communications.

(1) The privileged communications listed in paragraphs (b)(1)(i) and (ii) of this section are not evidence, and we will neither consider nor provide any analysis about them in your determination or decision. This exception for privileged communications applies equally whether your representative is an attorney or a non-attorney.

(i) Oral or written communications between you and your representative that are subject to the attorney-client privilege, unless you voluntarily disclose the communication to us; or

(ii) Your representative's analysis of your claim, unless he or she voluntarily discloses it to us. This analysis 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) of this section).

(2) The attorney-client privilege generally protects confidential communications between an attorney and his or her 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 allow 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 his or her analysis of your claim or made handwritten notes on the face of the report.

11. Add § 404.1513a to read as follows:

§ 404.1513a

Evidence from our Federal or State agency medical or psychological consultants.

The following rules apply to our Federal or State agency medical or psychological consultants that we consult in connection with administrative law judge hearings and Appeals Council reviews:

(a) 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 medical evidence to a State agency disability examiner when the disability examiner makes the initial or reconsideration determination alone (see § 404.1615(c) of this part). 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 § 404.1615(c)(1), he or she will consider the evidence in your case record and make administrative findings about the medical issues, including, but not limited to, the existence and severity of your impairment(s), the existence and severity of your symptoms, whether your impairment(s) meets or medically equals the requirements for any impairment listed in appendix 1 to this subpart, and your residual functional capacity. These administrative medical findings are based on the evidence in your case but are not in themselves evidence at the level of the administrative review process at which they are made. See § 404.1513(a)(5).

(2) When a State agency disability examiner makes the initial determination alone as provided in § 404.1615(c)(3), he or she may obtain medical evidence from a State agency medical or psychological consultant about one or more of the medical issues listed in paragraph (a)(1) of this section. In these cases, the State agency disability examiner will consider the medical evidence of the State agency medical or psychological consultant under §§ 404.1520b and 404.1520c.

(3) When a State agency disability examiner makes a reconsideration determination alone as provided in § 404.1615(c)(3), he or she will consider prior administrative medical findings made by a State agency medical or psychological consultant at the initial level of the administrative review process, and any medical evidence provided by such consultants at the initial and reconsideration levels, about one or more of the medical issues listed in paragraph (a)(1)(i) of this section under §§ 404.1520b and 404.1520c.

(b) Administrative law judges are responsible for reviewing the evidence and making administrative findings of fact and conclusions of law. They will consider prior administrative medical findings and medical evidence from our Federal or State agency medical or psychological consultants as follows:

(1) Administrative law judges are not required to adopt any prior administrative medical findings, but they must consider this evidence according to §§ 404.1520b and 404.1520c because our Federal or State agency medical or psychological consultants are highly qualified experts in Social Security disability evaluation.

(2) Administrative law judges may also ask for medical evidence from expert medical sources. Administrative law judges will consider this evidence under §§ 404.1520b and 404.1520c, as appropriate.

(c) When the Appeals Council makes a decision, it will consider prior administrative medical findings according to the same rules for considering prior administrative medical findings as administrative law judges follow under paragraph (b) of this section.

12. In § 404.1518, revise paragraph (c) to read as follows:

§ 404.1518

If you do not appear at a consultative examination.

(c)

Objections by your medical source(s).

If any of your medical sources tell you that you should not take the examination or test, you should tell us at once. In many cases, we may be able to get the information we need in another way. Your medical source(s) may agree to another type of examination for the same purpose.

13. In § 404.1519g, revise paragraph (a) to read as follows:

§ 404.1519g

Who we will select to perform a consultative examination.

(a) We will purchase a consultative examination only from a qualified medical source. The medical source may be your own medical source or another medical source. If you are a child, the medical source we choose may be a pediatrician.

14. Revise § 404.1519h to read as follows:

§ 404.1519h

Your medical source.

When, in our judgment, your medical source is qualified, equipped, and willing to perform the additional examination or test(s) for the fee schedule payment, and generally furnishes complete and timely reports, your medical source will be the preferred source for the purchased examination or test(s).

15. Revise § 404.1519i to read as follows:

§ 404.1519i

Other sources for consultative examinations.

We will use a different medical source than your medical source for a purchased examination or test in situations including, but not limited to, the following:

(a) Your medical source prefers not to perform such an examination or does not have the equipment to provide the specific data needed;

(b) There are conflicts or inconsistencies in your file that cannot be resolved by going back to your medical source;

(d) We know from prior experience that your medical source may not be a productive source, such as when he or she has consistently failed to provide complete or timely reports; or

(e) Your medical source is not a qualified medical source as defined in § 404.1519g.

16. In § 404.1519n, revise paragraph (c)(6) to read as follows:

§ 404.1519n

Informing the medical source of examination scheduling, report content, and signature requirements.

(6) A medical opinion. Although we will ordinarily request a medical opinion as part of the consultative examination process, the absence of a medical opinion in a consultative examination report will not make the report incomplete. See § 404.1513(a)(3); and

17. In § 404.1520a, revise the second sentence of paragraph (b)(1) to read as follows:

§ 404.1520a

Evaluation of mental impairments.

(b) * * *

(1) * * * See § 404.1521 for more information about what is needed to show a medically determinable impairment. * * *

18. Revise § 404.1520b to read as follows:

§ 404.1520b

How we consider evidence.

After we review all of the evidence relevant to your claim, we make findings about what the evidence shows.

(a)

Complete and consistent evidence.

If all of the evidence we receive, including all medical opinion(s), is consistent and there is sufficient evidence for us to determine whether you are disabled, we will make our determination or decision based on that evidence.

(b)

Incomplete or inconsistent evidence.

In some situations, we may not be able to make our determination or decision because the evidence in your case record is insufficient or inconsistent. We consider evidence to be insufficient when it does not contain all the information we need to make our determination or decision. We consider evidence to be inconsistent when it conflicts with other evidence, contains an internal conflict, is ambiguous, or when the medical evidence does not appear to be based on medically acceptable clinical or laboratory diagnostic techniques. If the evidence in your case record is insufficient or inconsistent, we may need to take the additional actions in paragraphs (b)(1) through (4) of this section.

(1) If any of the evidence in your case record, including any medical opinion(s) and prior administrative medical findings, is inconsistent, we will consider the relevant evidence and see if we can determine whether you are disabled based on the evidence we have.

(2) If the evidence is consistent but we have insufficient evidence to determine whether you are disabled, or if after considering the evidence we determine we cannot reach a conclusion about whether you are disabled, we

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