[Federal Register Volume 77, Number 36 (Thursday, February 23, 2012)]
[Rules and Regulations]
[Pages 10651-10657]
From the Federal Register Online via the Government Publishing 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