[Federal Register Volume 77, Number 36 (Thursday, February 23, 2012)]
[Rules and Regulations]
[Pages 10651-10657]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4177]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2010-0044]
RIN 0960-AG89


How We Collect and Consider Evidence of Disability

AGENCY: Social Security Administration (SSA).

ACTION: Final rule.

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SUMMARY: We are modifying the requirement to recontact your medical 
source(s) first when we need to resolve an inconsistency or 
insufficiency in the evidence he or she provided. Depending on the 
nature of the inconsistency or insufficiency, there may be other, more 
appropriate sources from whom we could obtain the information we need. 
By giving adjudicators more flexibility in determining how best to 
obtain this information, we will be able to make a determination or 
decision on disability claims more quickly and efficiently in certain 
situations. Eventually, our need to recontact your medical source(s) in 
many situations will be significantly reduced as a result of our 
efforts to improve the evidence collection process through the 
increased use of Health Information Technology (HIT).

DATES: These rules are effective March 26, 2012.

FOR FURTHER INFORMATION CONTACT: Brian Rudick, Office of Regulations, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, (410) 965-7102. For information on eligibility or filing 
for benefits, call our national toll-free number, 1-800-772-1213 or TTY 
1-800-325-0778, or visit our Internet site, Social Security Online, at 
http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background

    We are making final the proposed changes to our rules regarding 
when we will recontact your medical source(s) to resolve an 
inconsistency or insufficiency in the evidence he or she provided. We 
proposed these changes in a Notice of Proposed Rulemaking (NPRM) we 
published in the Federal Register on April 12, 2011 (76 FR 20282). The 
preamble to the NPRM discussed the changes from the current rules and 
our reasons for proposing those changes.\1\ Because we are adopting the 
proposed rules as published, we are not repeating that information 
here.
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    \1\ The NPRM is available at: http://www.gpo.gov/fdsys/pkg/FR-2011-04-12/pdf/2011-8388.pdf.
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Public Comments on the NPRM

    In the NPRM, we provided the public a 60-day comment period, which 
ended on June 13, 2011. We received 59 public comments. The comments 
came from a member of the public, members of the disability advocacy 
community, and several national groups of Social Security claimants' 
representatives.
    We provide below summaries of the significant comments that were 
relevant to this rulemaking and our responses to those comments. We 
have tried to present the commenters' concerns and suggestions 
accurately and completely.
    Comment: All of the commenters recommended that we keep our current 
requirement to recontact a person's medical source(s) first when we 
need to resolve an inconsistency or insufficiency in the evidence he or 
she provided. Some of these commenters believed that the proposed 
modification of this requirement was inconsistent with sections 
223(d)(5)(B) and 1614(a)(3)(H) of the Social Security Act (Act), which 
require us to make ``every reasonable effort to obtain from the 
individual's treating physician (or other treating health care 
provider) all medical evidence, including diagnostic tests, necessary 
in order to properly make [a] determination, prior to evaluating 
medical evidence obtained from any other source on a consultative 
basis.'' Other commenters believed that any modification of the current 
requirement would make it less likely that adjudicators would obtain 
evidence from a person's medical source(s), and more likely that they 
would try and obtain evidence from a consultative examination (CE) 
instead. These commenters speculated that some adjudicators may even 
purchase CEs to undermine evidence provided by

[[Page 10652]]

treating sources and to circumvent our rules on how we weigh medical 
opinions from these sources.\2\ These commenters said that treating 
sources are usually the most knowledgeable about a person's condition, 
and therefore, can provide the best evidence regarding disability. One 
of these commenters also said that recontacting treating sources is 
simpler and more effective than purchasing a CE, and another commenter 
noted that it is more convenient for claimants to see their treating 
sources than it is for them to attend CEs.
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    \2\ Those rules require us to generally give ``more weight'' to 
the opinions from a treating source and ``controlling weight'' when 
the treating source's opinions are well-supported and not 
inconsistent with other substantial evidence. See Sec. Sec.  
404.1527(d) and 416.927(d).
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    Response: We did not adopt the comments. We disagree with the 
commenters' concerns for several reasons. First, we disagree that 
modification of the requirement to recontact a person's medical 
source(s) first when we need to resolve an inconsistency or 
insufficiency in the evidence he or she provided violates sections 
223(d)(5)(B) and 1614(a)(3)(H) of the Act or our regulations. As we 
explained in the NPRM, the proposed change ``would not alter our rules 
in Sec. Sec.  404.1512(d) and 416.912(d) that require us to make every 
reasonable effort to help you get medical reports from your medical 
sources when you give us permission to request the reports. Rather, the 
proposed change would apply only after we have made those reasonable 
efforts.'' \3\
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    \3\ 76 FR 20283 (emphasis added).
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    As we noted in the NPRM, the rules in Sec. Sec.  404.1512(d) and 
416.912(d) first require us to ``make every reasonable effort'' to 
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.'' \4\ Our regulations define ``every 
reasonable effort'' to include ``an initial request for evidence from 
your medical source'' and ``one follow-up request'' at anytime 
``between 10 and 20 calendar days after the initial request'' if we did 
not receive the evidence.\5\ The recontact requirement applies only 
when we have already received evidence from a person's medical source; 
therefore, the revisions we are making to our rules here do not change 
the adjudicator's initial obligation to obtain medical evidence.
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    \4\ 76 FR 20283.
    \5\ See Sec. Sec.  404.1512(d)(1) and 416.912(d)(1).
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    Because these final rules do not alter an adjudicator's obligations 
under Sec. Sec.  404.1512(d) and 416.912(d), they are consistent with 
sections 223(d)(5)(B) and 1614(a)(3)(H) of the Act. Contrary to what 
some of the commenters seemed to assume, when Congress enacted sections 
223(d)(5)(B) and 1614(a)(3)(H) of the Act in 1984, it did not intend to 
alter in any way the relative weight that we place on reports received 
from treating sources and consultative examiners or preclude us from 
obtaining consultative examinations when we find it necessary to obtain 
additional information or resolve conflicting evidence.\6\
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    \6\ S. Rep. No. 98-466, at 26 (1984).
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    Second, we disagree that these rules would permit adjudicators to 
purchase CEs rather than develop evidence from a person's medical 
source(s). We have regulations that govern the purchase of CEs, and 
those regulations provide, in part, that ``Generally, we will not 
request a consultative examination until we have made every reasonable 
effort to obtain evidence from your own medical sources.'' \7\ Other CE 
regulations underscore this point by providing that ``If your medical 
sources cannot or will not give us sufficient medical evidence about 
your impairment, we may ask you to have one or more physical or mental 
examinations.\8\ Our CE regulations also provide that before purchasing 
a CE, we will consider your ``existing medical reports.'' \9\ It is 
also important to note that, subject to certain requirements, ``your 
treating source will be the preferred source to do the purchased 
examination.'' \10\ We believe these regulations provide sufficient 
safeguards against any potential abuse of the CE process.
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    \7\ Sections 404.1512(f) and 416.912(f). See also Sec. Sec.  
404.1517 through 416.1519t and 404.917 through 416.919t for our 
other rules governing the CE process.
    \8\ Sections 404.1517 and 416.917.
    \9\ Sections 404.1519a(a)(1) and 416.919a(a)(1). These 
regulations also state that, in addition to ``existing medical 
reports,'' we will consider ``the disability interview form 
containing your allegations as well as other pertinent evidence in 
your file'' before purchasing a CE.
    \10\ Sections 404.1519h and 416.919h.
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    We agree with the commenters who stated that the treating source 
can be a valuable source of evidence about a person's condition. As we 
explained in the NPRM, there are times when we would still expect 
adjudicators to recontact a person's medical source first; that is, 
when recontact is the most effective and efficient way to obtain the 
information needed to resolve an inconsistency or insufficiency in the 
evidence received from that source. In the NPRM, we also gave two 
examples of situations where we would expect adjudicators to contact 
the medical source first, because the additional information needed is 
directly related to that source's medical opinion.\11\ In fact, we 
expect that adjudicators will often contact a person's medical 
source(s) first whenever the additional information sought pertains to 
findings, treatment, and functional capacity, because the treating 
source may be the best source regarding these issues.
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    \11\ 76 FR 20283.
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    In further response to the commenters' concerns, we plan to conduct 
training on these final rules and will provide additional guidance on 
when adjudicators should recontact a person's medical source(s) first 
for additional information. In addition, we are currently conducting 
comprehensive training regarding the development of evidence from a 
person's medical source(s) and related rules regarding the purchase of 
CEs. These training efforts are ongoing and for adjudicators at all 
levels of the disability determination process.
    Comment: Several commenters believed that the proposed modification 
to the recontact requirement will sacrifice the best evidence from a 
person's medical source(s) for the sake of efficiency, and will, 
therefore, result in less accurate decision making by adjudicators.
    Response: We disagree with the commenters. As we pointed out in 
response to the comments above, modifying the recontact requirement 
does not alter how we comply with the provisions of the Act that 
require us to make ``every reasonable effort'' to obtain medical 
evidence from the individual's treating physician ``prior to evaluating 
medical evidence obtained from any other source on a consultative 
basis.'' Therefore, the efficiencies we expect to achieve by the 
changes we are making in these rules will not come at the expense of 
those statutory provisions. As we also noted in response to previous 
comments, we expect adjudicators will often recontact treating sources 
first in some situations because they may be the best sources of 
information about a person's medical condition. Accordingly, we do not 
believe the modification to our recontact requirement will cause a 
qualitative change in the medical evidence we consider or produce less 
accurate disability determinations and decisions.
    Comment: One commenter noted that in the preamble to the NPRM, we 
gave two examples of when we believed it

[[Page 10653]]

would be ``inefficient and ineffective'' to require recontact with a 
person's medical source. In one example, the person's medical source 
did not specialize in the area of the impairment alleged and we needed 
more evidence about its current severity.\12\ We indicated that we may 
supplement the evidence ``by obtaining a CE with a specialist (such as 
a pulmonologist) who can perform the type of examination we need to 
determine disability under our rules.'' \13\ In the other example, the 
medical records received contain a reference that the claimant has 
returned to work; we explained that it may be more appropriate to 
verify this information with the claimant and obtain related 
information rather than recontact the medical source.\14\ The commenter 
suggested that we include some examples in the regulations, but 
believed the first example appears to absolve adjudicators of their 
obligation to recontact the medical source if that source is not a 
specialist.
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    \12\ 76 FR 20283.
    \13\ 76 FR 20283.
    \14\ 76 FR 20283.
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    Response: We did not adopt this comment because whether to obtain 
additional evidence often depends on specific case facts, and because 
we believe it is better to present examples in training and other 
instructions. As we indicated in response to the comments above, we 
plan to conduct training on these final rules and will provide 
additional guidance on when adjudicators should recontact a person's 
medical source(s) first for additional information. We disagree with 
the commenter that the first example about obtaining a CE with a 
specialist would absolve adjudicators of any recontact obligation if a 
person's medical source is not a specialist. Depending on the nature of 
the impairment or the additional information we need, it may be more 
appropriate for us to recontact the person's medical source(s) first 
before considering the purchase of a CE with a specialist. Because the 
situations when we need to obtain additional information are so 
variable, the type of guidance the commenter asked us to include would 
be too extensive to put in the regulation.
    Comment: Several commenters said the proposed modification to the 
recontact requirement eliminates the ``treating physician rule,'' which 
relates to our regulations on how we weigh medical opinions from 
treating sources and the deference we give these opinions under certain 
circumstances.\15\ These commenters also said that the proposed 
modification would diminish the role and weight of medical opinion 
evidence we receive from treating sources in our determination of 
disability.
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    \15\ See Sec. Sec.  404.1527 and 416.927 for our rules on how we 
weigh medical opinion evidence, including opinions from treating 
sources.
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    Response: We did not propose any changes to our regulations on how 
we weigh treating source opinions in the NPRM. In addition, we disagree 
that modification of our recontact requirement diminishes the 
importance of medical evidence we receive from treating sources. As we 
described in response to the comments above, we have rules regarding 
how we obtain and consider evidence from a person's medical source(s) 
and rules that govern the purchase and use of CEs. These rules explain 
how we apply the provisions of the Act that require us to make ``every 
reasonable effort'' to obtain medical evidence from the individual's 
treating physician before we consider purchase of a CE. We believe 
these rules provide adequate safeguards against possible attempts to 
undermine the evidence received from a person's medical source(s), and 
we expect our adjudicators to follow these rules.
    Comment: One commenter expressed concern about the impact our 
proposed modification of the recontact requirement could have at the 
hearings level. The commenter believed that giving administrative law 
judges the option of contacting someone other than a person's treating 
source(s) for additional information would make the proceeding 
adversarial. The commenter pointed out that our judges have a duty to 
develop the record fully and fairly and should seek out the most 
reliable evidence which, the commenter said, is ``presumptively'' from 
a treating source.
    Response: We do not believe that modifying the recontact 
requirement will change the non-adversarial format of our 
administrative hearings. We agree that our judges have a duty to 
develop the record fully and fairly. Our rules regarding the 
development of medical evidence from a person's medical source(s) and 
the purchase of CEs apply equally to the judges. As we have discussed 
at length in our prior responses to comments, we believe these rules 
prevent both abuse of the CE process and any attempt to undermine the 
evidence received from treating sources at all levels of the disability 
determination process, including the hearings level.
    Comment: Several commenters said the proposed modification to our 
recontact requirement is unnecessary because there is already an 
exception to this requirement in our current regulations that will 
permit adjudicators to contact someone other than the person's medical 
source first.
    Response: We disagree with the commenters. Currently, the only 
exception to the recontact requirement is if we know from past 
experience that the medical source either cannot or will not provide 
the additional information we need.\16\ We believe, however, that this 
exception is not always broad enough to cover other situations when 
contact with a different source first would be more appropriate. In the 
NPRM, we gave the example of evidence received from a medical source 
referencing a claimant's return to work.\17\ Although the medical 
source may know something about this issue, the claimant would usually 
be a more appropriate source to contact first, because the claimant 
would be more likely to have all of the related information we need 
regarding work issues. Under our current rules, however, the 
adjudicator would first have to recontact the medical source for 
additional information, which could delay adjudicating the case. 
Therefore, we have found that our current requirement, even with its 
one exception, is simply too rigid at a time when our adjudicators need 
more flexibility in developing evidence as quickly and efficiently as 
possible.
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    \16\ See Sec. Sec.  404.1512(e)(2) and 416.912(e)(2).
    \17\ See 76 FR 20283.
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    Comment: One commenter said that the proposed regulation does not 
require us to document the case record when we know from past 
experience that a medical source either cannot or will not provide the 
additional information we need. This commenter also said it is unfair 
for us to assume that a medical source will not respond to an inquiry 
just because that source has been uncooperative in the past.
    Response: Our current instructions require adjudicators to document 
the case development summary whenever they do not attempt to recontact 
a medical source because of past experience with that source.\18\ 
Although these instructions are sub-regulatory, we expect our 
adjudicators to follow them, and we do not expect to change this 
procedure when we publish these final rules. In response to the 
commenter's other concern, we do not believe it is reasonable to 
require our adjudicators to attempt to recontact a medical source

[[Page 10654]]

when we know from past experience that this source either cannot or 
will not provide the information we need. Of course, adjudicators may 
recontact such a source whenever they have reason to believe that the 
source may provide information for a particular claimant. To require 
recontact in all cases, however, on the chance that the source might be 
cooperative, would not promote efficient claims adjudication.
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    \18\ POMS DI 22505.008B.
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    Comment: Several commenters said that rather than modifying our 
recontact requirement, we should instead find better ways to develop 
the evidence we need from a person's medical source(s). Some of these 
commenters recommended that we send a medical source statement form to 
elicit information targeted to our specific disability criteria or 
templates of condition-specific questions at the same time we send our 
general request for records to a person's medical source(s). Other 
commenters suggested that we establish even more requirements for 
recontacting medical sources. For example, they suggested that we 
require adjudicators to contact the claimant, a family member, or the 
claimant's representative for assistance in recontacting the medical 
source(s), or that we require adjudicators to make at least three 
attempts to recontact a medical source(s) before ordering a CE. One of 
these commenters also suggested that we wait 45 days for feedback from 
the claimant or claimant's representative after requesting assistance 
in recontacting a medical source(s). Several commenters said that 
claimants' representatives can assist our adjudicators in getting the 
information they need and said we should develop better lines of 
communication between them. Another commenter suggested that we might 
be able to improve our ability to obtain additional information from a 
person's medical source(s) by finding out whether the claimant is 
receiving services or support from another source that could assist us 
in getting information from treating sources, or by establishing a 
telephone dictation system for medical sources that may not have 
clerical support, or by paying treating sources that are unwilling to 
provide additional information without some financial compensation.
    Response: We did not adopt the comments. We believe our 
adjudicators need more flexibility to conduct case development in the 
most efficient way possible. Requiring them to repeatedly contact the 
medical source(s), or requiring them to wait for feedback or to contact 
another source for assistance in recontacting the medical source(s), 
regardless of the nature of the inconsistency or insufficiency in the 
evidence received, would not serve these goals. As we explained in the 
NPRM, ``[d]epending on the nature of the inconsistency or 
insufficiency, there may be other, more appropriate sources from whom 
we could obtain the information we need.'' \19\ Therefore, adjudicators 
need more, not less, discretion than our current recontact requirement 
provides to obtain the needed information from the most appropriate 
source. In addition, we are confident that we will be able to identify 
and correct any problems in the exercise of that discretion, should 
they occur, through our quality review process.
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    \19\ 76 FR 20282.
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    In further response to the commenters' suggestions, it is important 
to note that we are always striving to find better methods of 
collecting medical evidence, such as using Health Information 
Technology (HIT). As we explained in the NPRM, using HIT will enable 
our adjudicators to access a person's complete medical records upon 
receipt of a claim and reduce the number of CEs.\20\ In addition, our 
adjudicators already use a variety of methods to obtain the evidence we 
need to determine disability, including the use of forms and tailored 
requests for information from treating sources, which several 
commenters suggested. Our adjudicators also routinely contact 
claimants, representatives, and third parties designated by claimants 
for assistance in obtaining evidence. We will continue to explore ways 
of improving the medical evidence collection process, but there are 
many factors, especially cost, which we must consider before we can 
require any particular method of obtaining medical evidence.
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    \20\ 76 FR 20283.
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    Moreover, we believe there should be a variety of methods available 
to our adjudicators, and that they should have the flexibility to 
determine which method of development would be the most appropriate 
given the facts in each case. We do not believe there is any one method 
that is always the most suitable or efficient, and therefore, do not 
believe we should require any of the suggestions made by the commenters 
in all cases.
    Comment: Several commenters noted our reference to HIT in the NPRM 
and said that using HIT cannot justify modifying the recontact 
requirement, because HIT is not yet widespread.
    Response: We did not intend our reference to HIT in the NPRM to be 
a justification for the proposed change to the recontact requirement. 
Instead, we mentioned HIT simply to point out that we are engaging in 
other efforts to improve the medical evidence collection process. Many 
of the commenters encouraged such efforts, and several of these 
commenters agreed with our view that increased use of HIT will speed 
our review of medical evidence, reduce the need to recontact treating 
sources, and reduce the number of CEs we might otherwise need to 
purchase.\21\ Although HIT is still in the early phases, we are 
positioning our agency to take full advantage of this technology as it 
becomes more widespread in the medical community.
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    \21\ 76 FR 20283.
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    Comment: One commenter thought the organization of the proposed 
changes to our regulations on how we collect and consider evidence of 
disability was confusing and would be clearer if we reorganized those 
changes.
    Response: We did not adopt the comment. We received many comments 
on the NPRM, and it appears that the commenters generally had a good 
understanding of how we proposed to modify the recontact requirement. 
In addition, as we noted in the NPRM, we combined our rules on how we 
collect and consider evidence into one new section (final Sec. Sec.  
404.1520b and 416.1520b), ``so that these rules are easier to 
understand and apply.'' \22\ We believe the consolidation of our rules 
into one section will achieve these goals.
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    \22\ 76 FR 20283.
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Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this final rule meets the requirements for a 
significant regulatory action under Executive Order 12866 as 
supplemented by Executive Order 13563. Thus, OMB reviewed the final 
rule.

Regulatory Flexibility Act

    We certify that this final rule will not have a significant 
economic impact on a substantial number of small entities because it 
only affects individuals. Accordingly, a regulatory flexibility 
analysis as provided in the Regulatory Flexibility Act, as amended, is 
not required.

Paperwork Reduction Act

    This rule does not create any new or affect any existing 
collections and,

[[Page 10655]]

therefore, does not require Office of Management Budget 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; 96.004, Social Security--Survivors Insurance; and 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability 
benefits, Public assistance programs; Reporting and recordkeeping 
requirements; Supplemental Security Income (SSI).

Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending subpart P 
of part 404 and subpart I of part 416 of chapter III of title 20 Code 
of Federal Regulations as set forth below:

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

Subpart P--[Amended]

0
1. 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), 
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and 
(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 
110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).


0
2. Amend Sec.  404.1512 by revising the third sentence of paragraph (a) 
and the last sentence of paragraph (b)(6), by removing paragraph (e), 
redesignating paragraph (f) as (e) and revising the heading and first 
sentence, and redesignating paragraph (g) as (f), to read as follows:


Sec.  404.1512  Evidence.

    (a) * * * This means that you must furnish medical and other 
evidence that we can use to reach conclusions about your medical 
impairment(s) and, if material to the determination of whether you are 
disabled, its effect on your ability to work on a sustained basis. * * 
*
    (b) * * *
    (6) * * * See Sec.  404.1527(e)(2)-(3).
* * * * *
    (e) Obtaining a consultative examination. We may ask you to attend 
one or more consultative examinations at our expense. * * *
* * * * *

0
3. Amend Sec.  404.1519a by revising paragraph (a), revising paragraph 
(b) introductory text, adding ``or'' after the semi-colon in paragraph 
(b)(3), removing paragraph (b)(4), and redesignating paragraph (b)(5) 
as (b)(4), to read as follows:


Sec.  404.1519a  When we will purchase a consultative examination and 
how we will use it.

    (a) General. If we cannot get the information we need from your 
medical sources, we may decide to purchase a consultative examination. 
See Sec.  404.1512 for the procedures we will follow to obtain evidence 
from your medical sources and Sec.  404.1520b for how we consider 
evidence. Before purchasing a consultative examination, we will 
consider not only existing medical reports, but also the disability 
interview form containing your allegations as well as other pertinent 
evidence in your file.
    (b) Situations that may require a consultative examination. We may 
purchase a consultative examination to try to resolve an inconsistency 
in the evidence, or when the evidence as a whole is insufficient to 
allow us to make a determination or decision on your claim. Some 
examples of when we might purchase a consultative examination to secure 
needed medical evidence, such as clinical findings, laboratory tests, a 
diagnosis, or prognosis, include but are not limited to:
* * * * *

0
4. Amend Sec.  404.1520 by adding a sentence to the end of paragraph 
(a)(3) to read as follows:


Sec.  404.1520  Evaluation of disability in general.

    (a) * * *
    (3) * * * See Sec.  404.1520b.
* * * * *

0
5. Add Sec.  404.1520b to read as follows:


Sec.  404.1520b  How we consider evidence.

    After we review all of the evidence relevant to your claim, 
including medical opinions (see Sec.  404.1527), we make findings about 
what the evidence shows. In some situations, we may not be able to make 
these findings 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 additional actions, as we explain in paragraphs (b) and 
(c) of this section.
    (a) 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) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent, we will weigh the relevant 
evidence and see whether we can determine whether you are disabled 
based on the evidence we have.
    (c) If the evidence is consistent but we have insufficient evidence 
to determine whether you are disabled, or if after weighing the 
evidence we determine we cannot reach a conclusion about whether you 
are disabled, we will determine the best way to resolve the 
inconsistency or insufficiency. The action(s) we take will depend on 
the nature of the inconsistency or insufficiency. We will try to 
resolve the inconsistency or insufficiency by taking any one or more of 
the actions listed in paragraphs (c)(1) through (c)(4) of this section. 
We might not take all of the actions listed below. We will consider any 
additional evidence we receive together with the evidence we already 
have.
    (1) We may recontact your treating physician, psychologist, or 
other medical source. We may choose not to seek additional evidence or 
clarification from a medical source if we know from experience that the 
source either cannot or will not provide the necessary evidence. If we 
obtain medical evidence over the telephone, we will send the telephone 
report to the source for review, signature, and return;
    (2) We may request additional existing records (see Sec.  
404.1512);
    (3) We may ask you to undergo a consultative examination at our 
expense (see Sec. Sec.  404.1517 through 404.1519t); or
    (4) We may ask you or others for more information.
    (d) When there are inconsistencies in the evidence that we cannot 
resolve or when, despite efforts to obtain additional evidence, the 
evidence is

[[Page 10656]]

insufficient to determine whether you are disabled, we will make a 
determination or decision based on the evidence we have.


0
6. Amend Sec.  404.1527 as follows:
0
a. Revise paragraph (b);
0
b. Remove paragraph (c);
0
c. Redesignate paragraphs (d) through (f) as (c) through (e);
0
d. In newly redesignated paragraph (c) introductory text remove 
``(d)(2)'' and add in its place ``(c)(2)'';
0
e. In newly redesignated paragraph (c)(2) introductory text remove 
``(d)(2)(i) and (d)(2)(ii)'' and add in its place ``(c)(2)(i) and 
(c)(2)(ii)'' and remove ``(d)(3) through (d)(6)'' and add in its place 
``(c)(3) through (c)(6)'';
0
f. In newly redesignated paragraph (d)(3) remove ``(e)(1) and (e)(2)'' 
and add in its place ``(d)(1) and (d)(2)'';
0
g. In newly redesignated paragraph (e) introductory text remove ``(a) 
through (e)'' and add in its place ``(a) through (d)'';
0
h. In newly redesignated paragraph (e)(2)(ii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''; and
0
i. In newly redesignated paragraph (e)(2)(iii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)'', to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (b) How we consider medical opinions. In determining whether you 
are disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive. See 
Sec.  404.1520b.
* * * * *
0
7. Amend Sec.  404.1545 by revising the fifth sentence of paragraph 
(a)(3) to read as follows:


Sec.  404.1545  Your residual functional capacity.

    (a) * * *
    (3) * * * (See Sec. Sec.  404.1512(d) through (e).) * * *
* * * * *

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

Subpart I--[Amended]

0
8. The authority citation for subpart I of part 416 continues to read 
as follows:

    Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).


0
9. Amend Sec.  416.912 by revising the third sentence of paragraph (a) 
and the last sentence of paragraph (b)(6), by removing paragraph (e), 
redesignating paragraph (f) as (e) and revising the heading and first 
sentence, and redesignating paragraph (g) as (f), to read as follows:


Sec.  416.912  Evidence.

    (a) * * * If material to the determination whether you are 
disabled, medical and other evidence must be furnished about the 
effects of your impairment(s) on your ability to work, or if you are a 
child, on your functioning, on a sustained basis. * * *
    (b) * * *
    (6) * * * See Sec.  416.927(e)(2)-(3).
* * * * *
    (e) Obtaining a consultative examination. We may ask you to attend 
one or more consultative examinations at our expense. * * *
* * * * *
0
10. Amend Sec.  416.919a by revising paragraph (a), revising paragraph 
(b) introductory text, adding ``or'' after the semi-colon in paragraph 
(b)(3), removing paragraph (b)(4), and redesignating paragraph (b)(5) 
as (b)(4), to read as follows:


Sec.  416.919a  When we will purchase a consultative examination and 
how we will use it.

    (a) General. If we cannot get the information we need from your 
medical sources, we may decide to purchase a consultative examination. 
See Sec.  416.912 for the procedures we will follow to obtain evidence 
from your medical sources and Sec.  416.920b for how we consider 
evidence. Before purchasing a consultative examination, we will 
consider not only existing medical reports, but also the disability 
interview form containing your allegations as well as other pertinent 
evidence in your file.
    (b) Situations that may require a consultative examination. We may 
purchase a consultative examination to try to resolve an inconsistency 
in the evidence or when the evidence as a whole is insufficient to 
support a determination or decision on your claim. Some examples of 
when we might purchase a consultative examination to secure needed 
medical evidence, such as clinical findings, laboratory tests, a 
diagnosis, or prognosis, include but are not limited to:
* * * * *

0
11. Amend Sec.  416.920 by adding a sentence to the end of paragraph 
(a)(3) to read as follows:


Sec.  416.920  Evaluation of disability in general.

    (a) * * *
    (3) * * * See Sec.  416.920b.
* * * * *

0
12. Add Sec.  416.920b to read as follows:


Sec.  416.920b  How we consider evidence.

    After we review all of the evidence relevant to your claim, 
including medical opinions (see Sec.  416.927), we make findings about 
what the evidence shows. In some situations, we may not be able to make 
these findings 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 additional actions, as we explain in paragraphs (b) and 
(c) of this section.
    (a) 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) If any of the evidence in your case record, including any 
medical opinion(s), is inconsistent, we will weigh the relevant 
evidence and see whether we can determine whether you are disabled 
based on the evidence we have.
    (c) If the evidence is consistent but we have insufficient evidence 
to determine whether you are disabled, or if after weighing the 
evidence we determine we cannot reach a conclusion about whether you 
are disabled, we will determine the best way to resolve the 
inconsistency or insufficiency. The action(s) we take will depend on 
the nature of the inconsistency or insufficiency. We will try to 
resolve the inconsistency or insufficiency by taking any one or more of 
the actions listed in paragraphs (c)(1) through (c)(4) of this section. 
We might not take all of the actions listed below. We will consider any 
additional evidence we receive together with the evidence we already 
have.
    (1) We may recontact your treating physician, psychologist, or 
other medical source. We may choose not to seek additional evidence or 
clarification

[[Page 10657]]

from a medical source if we know from experience that the source either 
cannot or will not provide the necessary evidence. If we obtain medical 
evidence over the telephone, we will send the telephone report to the 
source for review, signature, and return;
    (2) We may request additional existing records (see Sec.  416.912);
    (3) We may ask you to undergo a consultative examination at our 
expense (see Sec. Sec.  416.917 through 416.919t); or
    (4) We may ask you or others for more information.
    (d) When there are inconsistencies in the evidence that we cannot 
resolve or when, despite efforts to obtain additional evidence, the 
evidence is insufficient to determine whether you are disabled, we will 
make a determination or decision based on the evidence we have.


0
13. Amend Sec.  416.927 as follows:
0
a. Revise paragraph (b);
0
b. Remove paragraph (c);
0
c. Redesignate paragraphs (d) through (f) as (c) through (e);
0
d. In newly redesignated paragraph (c) introductory text remove 
``(d)(2)'' and add in its place ``(c)(2)'';
0
e. In newly redesignated paragraph (c)(2) introductory text remove 
``(d)(2)(i) and (d)(2)(ii)'' and add in its place ``(c)(2)(i) and 
(c)(2)(ii)'' and remove ``(d)(3) through (d)(6)'' and add in its place 
``(c)(3) through (c)(6)'';
0
f. In newly redesignated paragraph (d)(3) remove ``(e)(1) and (e)(2)'' 
and add in its place ``(d)(1) and (d)(2)'';
0
g. In newly redesignated paragraph (e) introductory text remove ``(a) 
through (e)'' and add in its place ``(a) through (d)'';
0
h. In newly redesignated paragraph (e)(2)(ii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)''; and
0
i. In newly redesignated paragraph (e)(2)(iii) remove ``(a) through 
(e)'' and add in its place ``(a) through (d)'', to read as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (b) How we consider medical opinions. In determining whether you 
are disabled, we will always consider the medical opinions in your case 
record together with the rest of the relevant evidence we receive. See 
Sec.  416.920b.
* * * * *

0
14. Amend Sec.  416.945 by revising the fifth sentence of paragraph 
(a)(3) to read as follows:


Sec.  416.945  Your residual functional capacity.

    (a) * * *
    (3) * * * (See Sec. Sec.  416.912(d) through (e).) * * *
* * * * *
[FR Doc. 2012-4177 Filed 2-22-12; 8:45 am]
BILLING CODE 4191-02-P