Signature Requirements for State Agency Medical and Psychological Consultants in Disability Determinations

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

RIN 0960-AD88

Signature Requirements for State Agency Medical and Psychological

Consultants in Disability Determinations

AGENCY: Social Security Administration (SSA).

ACTION: Final rules.

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SUMMARY: We are revising the requirements of the Social Security and

Supplemental Security Income (SSI) regulations regarding the

certifications required on the disability determination forms used by

State agencies to certify determinations of disability. Present

regulations require that, unless the disability determination is made

by a State agency disability hearing officer, disability determinations

made by a State agency will be made by a State agency medical or

psychological consultant and a State agency disability examiner. This

includes determinations made on technical, non-medical, rather than

medical, grounds. We are revising our rules to remove the requirement

that a medical or psychological consultant sign the disability

determination forms used by the State agency to certify each

determination, when there is no medical evidence to be evaluated. In

such cases, the disability examiner may make the determination alone.

EFFECTIVE DATE: April 18, 1996.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,

Division of Regulations and Rulings, Social Security Administration,

6401 Security Boulevard, Baltimore, Maryland 21235, (410) 965-6243.

SUPPLEMENTARY INFORMATION:

Background

The Social Security Act (the Act) provides, in title II, for the

payment of disability insurance benefits to individuals insured under

the Act. Title II also provides for the payment of child's insurance

benefits based on disability and widow's and widower's insurance

benefits for disabled widows, widowers, and surviving divorced spouses

of insured individuals. In addition, the Act provides, in title XVI,

for SSI payments to persons who are aged, blind, or disabled and who

have limited income and resources. For adults under both the title II

and title XVI programs and for persons claiming child's insurance

benefits based on disability under the title II program,

[[Page 11134]]

``disability'' means the inability to engage in any substantial gainful

activity by reason of any medically determinable impairment which has

lasted or can be expected to last for a continuous period of not less

than 12 months or result in death. For an individual under age 18

claiming SSI benefits based on disability, ``disability'' means that

the individual's impairment(s) is of comparable severity to one that

would disable an adult (i.e., the impairment(s) substantially reduces

the individual's ability to function independently, appropriately, and

effectively in an age-appropriate manner such that the individual's

impairment(s) and resulting limitations are comparable to those that

would disable an adult). The individual's impairment(s) must also meet

the statutory duration requirement.

Sections 221 and 1633(a) of the Act and Secs. 404.1503 and 416.903

of our regulations provide that State agencies make disability and

blindness determinations for the Commissioner of Social Security for

most persons living in the State. Sections 404.1615(c) and 416.1015(c)

of the regulations provide that disability determinations will be made

by either: (1) a State agency medical or psychological consultant and a

State agency disability examiner or (2) a State agency disability

hearing officer. In addition, a single decisionmaker may make the

determination of disability for purposes of the tests we are conducting

under the authority of the final rules we published on April 24, 1995,

``Testing Modifications to the Disability Determination Procedures,''

(60 FR 20023). (To be codified at 20 CFR 404.906 and 416.1406). These

final rules do not affect the procedures we are following for the

purposes of those tests.

Sections 404.1615(e) and 416.1015(f) of the regulations require the

State agency to certify each determination of disability to the Social

Security Administration (SSA) on forms provided by SSA. The term

``determination of disability'' is defined in Secs. 404.1602 and

416.1002 of the regulations to mean one or more of the following

decisions: whether or not a person is under a disability; the date a

person's disability began; or the date a person's disability ended.

When a disability determination is made jointly by a State agency

medical or psychological consultant and a State agency disability

examiner, the medical or psychological consultant is responsible for

the medical portion of the determination, and the disability examiner

is responsible for the remainder of the determination. Under our

current procedures for these cases, both the disability examiner and

the medical or psychological consultant must certify the determination

on forms which we provide as required in the regulations.

In some instances the requirement for the medical or psychological

consultant's certification is unnecessary because the determination is

made on technical, non-medical, grounds alone, without consideration of

any medical evidence. Many medical and psychological consultants who

work with the State agencies do so on a part-time basis and are not

always available to sign disability determination forms. This can

result in delays of cases that are otherwise complete because no

medical evaluation or expertise is necessary.

This happens, for example, when an individual who has no history of

medical treatment or examination--and, hence, no existing medical

records that we can obtain--refuses to attend a consultative

examination purchased at our expense. In such a case, the State agency

makes its determination on technical, non-medical, rather than medical,

grounds. It denies such a claim because, without the individual's

cooperation, the evidence needed to determine whether the individual is

disabled cannot be obtained. Nevertheless, our current rules require

that a medical or psychological consultant sign the standard disability

determination form in such a case, even though there is no medical

evidence and no medical findings that can be made.

Change Made by This Rule

We are addressing the above issue by revising Secs. 404.1615 and

416.1015 of the regulations to provide, in a new paragraph (c)(2), that

a State agency disability examiner alone may make the disability

determination when there is no medical evidence to be evaluated, such

as when there is no existing medical evidence and the individual

refuses to attend a consultative examination. We are redesignating

current paragraph (c)(2), which provides that a State agency disability

hearing officer may also make disability determinations, as paragraph

(c)(3).

Public Comments

On October 26, 1994, we published these revisions in a Notice of

Proposed Rulemaking (NPRM) in the Federal Register (59 FR 53769). We

invited interested persons, organizations, and groups to submit their

comments on the NPRM within 60 days.

We received letters from four State agencies, three legal

advocates, and a vocational rehabilitation council. Five commenters

indicated support for the rule, two opposed it, and one provided

comments without indicating either support or opposition.

Comment: One commenter requested that we broaden the provision to

state that the medical or psychological consultant's signature is not

required on the disability determination form if the consultant has

furnished a written medical severity assessment.

Response: We are currently considering alternatives to our

procedures for documenting medical or psychological consultant

participation in the disability determination. In February 1994, we

provided temporary procedures for State agencies to document medical or

psychological consultant participation in certain cases with the

consultant's signature on a document other than the disability

determination form. We are also considering ways to expand this

procedure to other cases. We do not believe that a regulatory change

beyond the changes made by these final rules is appropriate at this

time.

Comment: Another commenter recommended that we broaden the

provision to include cases in which there is some medical evidence, but

the substantive conclusion of whether an individual is disabled appears

obvious. The commenter also suggested including cases involving only

medical evidence from outside the period at issue in the case, and

cases that include some medical evidence but are still denied based on

failure to attend a consultative examination.

Response: This kind of expansion would not be consistent with the

scope or intent of this rule. We believe that the presence of medical

evidence in connection with a claim for benefits is sufficient reason

to require the special expertise of a medical or psychological

consultant, even if the outcome seems ``obvious'' or the evidence seems

immaterial to a lay person. Therefore, we did not make these changes.

Comment: Three commenters expressed concern about the scope and

meaning of the proposed provisions. All three were concerned that cases

with insufficient medical evidence will be denied on a technical basis;

i.e., without the participation of a medical or psychological

consultant. Two of these commenters requested clarification of the

phrase ``no medical evidence.'' Two stated that existing regulations

(Secs. 404.1516, 404.1518, 416.916, and 416.918) require a medical

evaluation of the case when an individual fails or refuses to attend a

consultative examination. They said that the decision should,

therefore, be made

[[Page 11135]]

with the participation of a medical or psychological consultant.

Response: We have changed the proposed rules to clarify what we

mean by ``no medical evidence.'' The final rules do not apply if the

file contains some medical evidence, even if such evidence is

insufficient to make a determination or contains no findings to support

a determination that the claimant is disabled. In such a case, the

medical or psychological consultant and disability examiner must make

the determination as a team.

We disagree with the commenters who stated that existing

regulations require a medical evaluation of the case when an individual

fails or refuses to attend a consultative examination. Our current

regulations (Secs. 404.1518 and 416.918) state only that if a claimant

does ``not have a good reason for failing or refusing to take part in a

consultative examination * * *, we may find that you are not disabled *

* * .'' This provision does not require a medical evaluation of such a

case, and we believe that it would be futile to attempt to make such an

evaluation in the absence of any medical evidence. Although we do not

necessarily agree that Secs. 404.1516 and 416.916 apply to this

situation, they do not prescribe any specific kind of case evaluation

(i.e., a medical evaluation). They merely provide that we will ``make a

decision based on information available in your case.''

Comment: The same commenters were concerned that disability

examiners will not make adequate attempts to obtain medical evidence.

Two of these commenters stated that only a physician should decide

whether the case is unsupported by medical evidence. One observed that

the rule does not define ``medical evidence,'' and another stated that

a physician should be involved in deciding what is or is not medical

evidence.

Response: These new rules do not alter the existing statutory and

regulatory requirement that, before we make a determination that an

individual is not disabled, we develop a complete medical history for

at least the 12 months preceding the month in which the application is

filed, unless there is reason to believe that development of an earlier

period is necessary or unless the claimant states that his or her

disability began less than 12 months before the application is filed.

These rules also do not alter the existing requirement that we make

every reasonable effort to obtain medical evidence from the

individual's own medical sources, as provided for in sections

223(d)(5)(B) and 1614(a)(3)(G) of the Act and Secs. 404.1512(d) and

416.912(d) of our regulations. We have revised these final rules to

emphasize that we will continue to do so.

Our existing regulations, Secs. 404.1513 and 416.913, set forth the

requirements for the contents of medical evidence and reports, and

these rules do not change those requirements. We do not agree that a

physician's expertise is required to determine whether evidence is

``medical evidence'', or to evaluate non-medical evidence.

Comment: Two commenters requested a more definitive identification

of the circumstances that justify the provision.

Response: We have clarified the circumstances under which the final

rules apply. They apply whenever there is no medical evidence to be

evaluated and the claimant fails or refuses, without a good reason, to

attend a consultative examination. The final versions of

Secs. 404.1615(c)(2) and 416.1015(c)(2) make this clear.

Comment: A number of commenters observed that mental illness or

other factors may be the basis for an individual's failure to

cooperate.

Response: Existing regulations include provisions on good cause for

failure to attend a consultative examination. Regulations

Secs. 404.1518 and 416.918 require us to consider an individual's

physical, mental, educational and linguistic limitations when

determining whether he or she has a good reason for failing to attend a

consultative examination. Nevertheless, in the final rules we have

clarified that they apply only if the individual fails or refuses to

attend a consultative examination without a good reason, and have

provided a cross-reference to Secs. 404.1518 and 416.918.

Except for these clarifications, several minor, non-substantive

technical changes, and corrections to authority citations, we are

adopting the proposed rules as final rules.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that these final rules do not meet the criteria for a

significant regulatory action under Executive Order 12866. Therefore,

they are not subject to OMB review.

Regulatory Flexibility Act

We certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

affect individuals' eligibility for program benefits under the Social

Security Act. Therefore, a regulatory flexibility analysis is not

required.

Paperwork Reduction Act

These regulations will impose no additional reporting or

recordkeeping requirements necessitating clearance by OMB.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social

Security-Disability Insurance; and 96.006, Supplemental Security

Income)

List of Subjects

20 CFR Part 404

Administrative practice and procedure, Blind, Death benefits,

Disability benefits, Old-Age, Survivors and Disability Insurance,

Reporting and recordkeeping requirements, Social security.

20 CFR Part 416

Administrative practice and procedure, Aged, Blind, Disability

benefits, Public assistance programs, Supplemental Security Income

(SSI), Reporting and recordkeeping requirements.

Dated: March 8, 1996.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, subpart Q of part 404 and

subpart J of part 416 of chapter III of title 20 of the Code of Federal

Regulations are amended as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950-- )

Subpart Q--[Amended]

1. The authority citation for subpart Q of part 404 continues to

read as follows:

Authority: Secs. 205(a), 221, and 702(a)(5) of the Social

Security Act (42 U.S.C. 405(a), 421, and 902(a)(5)).

2. Section 404.1615 is amended by removing the ``or'' at the end of

paragraph (c)(1), by adding a semicolon after paragraph (c)(1), by

redesignating paragraph (c)(2) as paragraph (c)(3), and by adding a new

paragraph (c)(2) to read as follows:

Sec. 404.1615 Making disability determinations.

* * * * *

(c) * * *

(2) A State agency disability examiner alone when there is no

medical evidence to be evaluated (i.e., no medical evidence exists or

we are unable, despite making every reasonable effort, to obtain any

medical evidence

[[Page 11136]]

that may exist) and the individual fails or refuses, without a good

reason, to attend a consultative examination (see Sec. 404.1518); or

* * * * *

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

DISABLED

Subpart J--[Amended]

3. The authority citation for subpart J continues to read as

follows:

Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social

Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).

4. Section 416.1015 is amended by removing the ``or'' at the end of

paragraph (c)(1), by redesignating paragraph (c)(2) as paragraph

(c)(3), and by adding a new paragraph (c)(2) to read as follows:

Sec. 416.1015 Making disability determinations.

* * * * *

(c) * * *

(2) A State agency disability examiner alone when there is no

medical evidence to be evaluated (i.e., no medical evidence exists or

we are unable, despite making every reasonable effort, to obtain any

medical evidence that may exist) and the individual fails or refuses,

without a good reason, to attend a consultative examination (see

Sec. 416.918); or

* * * * *

[FR Doc. 96-6375 Filed 3-18-96; 8:45 am]

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