Last Update: 7/31/2023 (Transmittal I-5-600-6)
HA 02410.002 Standards for Consultative Examinations and Existing Medical
Evidence (Final Rules; 56 FR 36932, August 1, 1991)
Renumbered from HALLEX section II-4-1-2
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Social Security Administration
20 CFR Parts 404 and 416 (56 FR 36932)
RIN 0960-AB22
[Regulations Nos. 4 and 16]
Standards for Consultative Examinations and Existing Medical
Evidence
AGENCY: Social Security Administration, HHS.
ACTION: Final Rules.
SUMMARY: Section 9 of Pub. L. 98-460 requires that the Secretary issue
regulations to establish standards for consultative examinations. These
regulations must include standards for determining when to obtain a
consultative examination, the type of consultative examination to be
purchased, and monitoring procedures for both the purchase process and the
consultative examination reports. Every reasonable effort must be made to
obtain from the claimant's medical sources the medical evidence necessary
to make a determination of disability before evaluating medical evidence
obtained from another source on a consultative basis. Section 9 also
requires consideration of all evidence available in a claimant's case
record and development of a complete medical history covering at least the
preceding 12 months in any case where a decision is made that the
individual is not under a disability. We have interpreted this provision
to refer to the 12 months prior to the date of application, the date the
claimant was last insured for disability benefit or period-of-disability
purposes, the end of the prescribed period for widow's or widower's
benefits based on disability, or attainment of age 22 for child's benefits
based on disability, as appropriate. We also understand this provision to
mean that a 12-month medical history is generally not required if the
disability is alleged to have begun less than 12 months before
application. In such cases, we will develop a complete medical history
beginning with the alleged onset date.
We published proposed rules in a Notice of Proposed Rulemaking in the
Federal Register
on April 20, 1987 (52 FR 13014). These final rules respond to comments,
reflect and implement the statutory requirements, and clarify our policy
on the weight to be given treating source opinions.
DATES: These rules are effective August 1, 1991.
FOR FURTHER INFORMATION CONTACT: William J. Ziegler, Legal Assistant,
Office of Regulations, Social Security Administration, 6401 Security
Boulevard, Baltimore, MD 21235, telephone 301-965-1759.
SUPPLEMENTARY INFORMATION
What We Mean by Evidence
We have explained in these final rules, at §§ 404.1512(b) and
416.912(b), what we mean by "evidence" in the disability
evaluation process in order to place the rules on evaluating medical
opinions in the broader context of all medical evidence in the case
record. We have added a paragraph which describes the types of evidence we
need from medical sources and the types of evidence we may need from
others.
Evidence from Medical Sources
One of the factors required to establish that an individual is disabled is
a medically determinable severe impairment. We must have medical evidence
when we determine impairment severity and the individual's residual
functional capacity. Objective and complete medical evidence results in
quality determinations and prompt decisions. We consider all of the
evidence in the individual's record to determine whether the individual is
disabled.
We make every reasonable effort to obtain medical evidence from the
sources who have treated the individual for the impairment(s) he or she
alleges since the alleged disability onset date when the individual is
applying for benefits, and during the preceding 12 months when the case of
an individual receiving benefits is undergoing review.
The quality of medical examinations has a major effect on the quality of
our decision making. We try to make decisions based on evidence from
treating sources because of the presumed continuing relationship between
the claimant and physician. When the evidence in the individual's case
file is insufficient for making a disability decision, a consultative
examination is purchased, at Government expense, from the treating source
whenever possible. Because basing a decision on evidence from a treating
or other medical source is not always possible for various reasons, it is
sometimes necessary to purchase a consultative examination from an
independent source at Government expense. For example, if the information
provided by a treating source or other medical source appears not to be
supported by medical findings and the source is unable or unwilling to
provide the additional medical evidence we need, we may purchase a
consultative examination from another source. We may also obtain a
consultative examination from another source when highly technical or
specialized evidence which is needed is not available from the treating
source or other medical source. In some instances, we may order a
consultative examination from an independent source while awaiting receipt
of treating or other medical source evidence, but the report will not be
evaluated until that evidence is received or every reasonable effort has
been made to obtain it.
Program Integrity
Since the enactment of the Medicare/Medicaid anti-fraud and abuse
amendments of 1977, an escalation in the prosecution of medical service
providers for fraud and abuses in those programs has raised the issue of
the propriety of the Social Security Administration (SSA) using these and
other offenders in the disability programs administered under titles II
and XVI of the Social Security Act (the Act). We are, therefore, providing
rules in §§ 404.1503a and 416.903a barring our use of any
individual or entity who is currently excluded, suspended, or otherwise
barred from participation in the Medicare or Medicaid programs, or by any
other Federal or Federally-assisted program or whose license is currently
revoked or suspended by any State licensing authority pursuant to adequate
due process procedures, except to provide existing medical evidence. The
final rules reflect a change from the proposed rules to conform our policy
to the policies of other agencies responsible for health care delivery
programs. We believe it would be unreasonable and confusing to medical
providers for us to administer a significantly different policy than these
other agencies. For clarity, we are defining an individual or entity as a
medical or psychological consultant, consultative examination provider, or
diagnostic test facility.
Consultative Examinations
Consultative examinations are medical examinations we purchase from
physicians, including pediatricians when appropriate, and other qualified
health professionals outside the agency;
If an individual's treating or other medical sources cannot provide us
with sufficient medical evidence about his or her impairment(s) to enable
us to determine whether the individual is disabled or blind, we may ask
the individual to have one or more physical or mental examinations or
tests. We will pay for those examinations that we arrange in accordance
with our rules at §§ 404.1624 and 416.1024 on payment for
medical and other purchased services. When we arrange an examination or
test, we will give the individual reasonable notice of the date, time, and
place that the examination or test will be given, indicate the type of
examination or test that will be given, and provide the name of the person
or facility who will do it. We will also give the examiner any necessary
background information about the individual's condition unless the
examiner already has the background information because he or she is a
treating source.
If an individual is applying for benefits and does not have a good reason
for failing or refusing to take part in a consultative examination or test
that we arrange to obtain information to determine disability or
blindness, we may find that the individual is not disabled or blind. If
the individual is already receiving benefits and does not have a good
reason for failing or refusing to take part in a consultative examination
or test that we have arranged, we may determine that the disability or
blindness has ceased.
Standards for Consultative Examinations
Consultative examinations may be obtained to secure additional information
necessary to make a disability determination or to resolve conflicting
information. Evidence obtained through a consultative examination is
considered with all other medical and nonmedical evidence submitted in
connection with a disability claim. Sections 404.1519m and 416.919m have
been revised to state that a State agency medical consultant must approve
the ordering of any diagnostic test or procedure when there is a chance
that it may entail significant risk;
Until enactment of section 9 of Pub. L. 98-460, there was no statutory
requirement for regulatory standards specifying particular cases in which
consultative examinations would be purchased, identifying the types of
consultative examinations to be purchased, or requiring any standard
procedures to be followed in establishing and monitoring purchase
policies. Because consultative examinations are purchased at government
expense, we have had guidelines that cover the standards to be used in
purchasing and monitoring such examinations. For some time, we have had in
place in our operating manuals these guidelines for managing every aspect
of the consultative examination process from deciding when to purchase an
examination, to providing guidance to the person performing the
consultative examination, to monitoring the actual consultative
examination delivery process and the reports which it produces. Congress,
in passing section 9 of Pub. L. 98-460, expressed satisfaction over our
success in better management of the consultative examination process, but
stated that our standards should appear in regulations.
See H. Rep. No. 98-618, 98th Cong.,
2d Sess. 19-20 (1984). These regulations are being issued to comply with
the law.
In addition to incorporating our existing operating procedures into this
regulation, we are adding further provisions in three areas. First, we
have identified certain time periods that we believe can serve as a frame
of reference for scheduling a consultative examination. These minimum
scheduling times are intended to emphasize our intentions that sufficient
time be made available for thoroughly examining the claimant. They are
meant to ensure sufficient time for a full consultative examination
including development of the claimant's case history. They are not meant
as inflexible rules to be applied mechanically or to impede appropriate
judgment on the part of the State and professional individuals. Second,
standards are included to ensure that laboratory fees paid to consultative
examination providers for services are reasonable and do not permit
excessive charges by the source. Third, we emphasize that State rules must
be followed regarding minimum qualification levels for physicians' and
psychologists' assistants.
The minimum scheduling times for consultative examinations were developed
by a panel of regional office and State agency physicians and
administrators that was convened to assist us in the preparation of these
regulations. Many State agencies already had such standards, including
some based on the duration of the examination and others on the numbers of
patients who can be scheduled for consultative examinations per hour.
These final rules establish national norms.
We have deleted the last two sentences of §§ 404.1519k(a) and
416.919k(a) that were included in the Notice of Proposed Rulemaking. Those
sentences dealt with the State determining the rate of payment for the
purchase of medical examinations, laboratory tests, and other services and
were an overstatement of our policy on the State's authority to set the
fees for such services.
The final rules on consultative examinations fall under the categories
mandated by law. Those categories are:
1.
Standards to be used by State and Federal personnel in determining when a
consultative examination should be obtained in connection with disability
determinations.
2.
Standards for the type of referral to be made.
3.
Procedures to monitor the referral process used.
4.
Procedures to monitor the product of health professionals to whom cases
are referred.
These standards are being included in Subpart P of Part 404 and Subpart I
of Part 416. We are adding new §§ 404.1519 through 404.1519t and
new §§ 416.919 through 416.919t. We are also updating the Table
of Contents for Subpart P and Subpart I.
Definitions
We are revising §§ 404.1502 and 416.902 to define what we mean
by "medical source," "treating source," and
"source of record."
Evidence of Impairment
We have reorganized and expanded §§ 404.1512 and 416.912 to
clarify our existing regulations, to provide greater detail about the
rules on development of existing evidence, and to refine and consolidate
some of the language in §§ 404.1519 and 416.919, 404.1519a and
416.919a, and 404.1519b and 416.919b. The final rule defines what we mean
by "evidence" and clearly delineates the responsibilities of the
individual and SSA. We explain these and other changes below.
The 12-Month Medical History
We are making changes in paragraph (b) of §§ 404.1512 and
416.912, and §§ 404.1593 and 416.993, to indicate that we will
develop a complete medical history covering at least the preceding 12
months in any case in which an unfavorable determination is made, unless
the disability is alleged to have begun less than 12 months before
application. See
S. Rep. No. 98?466S. Rep. No. 98-466, 98th Cong., 2d Sess., 26 (1984).
In addition, we have made changes to indicate that, if applicable, we will
develop a complete medical history for at least the 12-month period prior
to the month the individual was last insured for disability benefits, the
month ending the 7-year period to establish the individual's disability if
the individual filed an application for widow's or widower's benefits, or
the month of attainment of age 22 if the individual filed an application
for child's insurance benefits based on disability. We are also stating
that we will make every reasonable effort to obtain from the individual's
treating and other medical sources the evidence necessary to make a
determination before we evaluate medical evidence obtained from another
source on a consultative basis. "Every reasonable effort" is
defined to mean an initial request and, at any point between 10 and 20
calendar days after the initial request, if the evidence has not been
received, one followup request to the medical source for the medical
evidence. The source will have a minimum of 10 calendar days from the date
of our followup request to reply, unless our experience with that source
indicates a longer period is advisable in a particular case, before we
evaluate the evidence that we may obtain on a consultative basis. In some
instances, we may order a consultative examination while awaiting receipt
of treating or other medical source evidence.
In addition, we are amending paragraph (a) of §§ 404.1520 and
416.920 to state more clearly that we consider all evidence in the
individual's case record when we make a determination. We are also
revising §§ 404.1593 and 416.993 to recognize that development
of medical evidence in continuing disability review cases will be guided
by the special requirements of the medical improvement review standard and
to reaffirm that consultative examinations are purchased with only one
purpose, to provide information necessary to reach a decision in a
case.
Medical Assessment Requirement
We are also revising §§ 404.1513(b)(6) and (c), 404.1545(a) and
404.1546, as well as §§ 416.913(b)(6) and (c), 416.945(a) and
416.946 to delete references to medical assessments and to refer instead
to medical source statements about what a person can still do despite his
or her impairment(s). These revisions accomplish two things: They remove
all reference to the term "medical assessment," which was not
clearly defined and was thus open to various interpretations; and they
indicate that we will consider all of the medical and other evidence in
determining whether a person is disabled, including statements from
medical sources about what a person can still do despite an impairment,
and that medical source statements alone are not determinative of whether
or not the person is disabled;
We believe these are important changes. There has been confusion among
adjudicators as to what constitutes a "medical assessment." This
has resulted in special requests being made to elicit information which
was already at hand but not labeled "medical assessment." We
have also revised §§ 404.1513(b)(6) and 416.913(b)(6) to make
clear that we will request medical source statements from treating
sources, although the absence of a medical source's statement in a report
of existing medical evidence does not make the report incomplete. Also,
§§ 404.1519n and 416.919n ensure that although medical source
statements should ordinarily be requested as part of the consultative
examination process, the absence of a medical source's statement in a
consultative examination report does not make the report incomplete.
Evaluating Medical Opinions
In the preamble to the Notice of Proposed Rulemaking, we noted that the
Senate Finance Committee had indicated in its report on Pub. L. 98-460 (S.
Rep. No. 98-466, 98th Cong., 2d Sess., 26 (1984)), that it did not intend
to alter in any way the relative weight that the Secretary places on
reports received from treating physicians and from physicians who perform
consultative examinations. We also noted that judicial decisions in
several circuits pointed to a need for a clear policy statement that would
encourage uniformity of adjudication and provide the public and the courts
with a definitive explanation of our policy on weighing treating source
opinions. Accordingly, we proposed to replace existing regulations
§§ 404.1527 and 416.927 with longer and more detailed provisions
that would prescribe rules stating how we would consider and weigh medical
opinions.
Some public comments concerning the way we evaluate medical opinions were
critical. The comments demonstrated to us that our proposed regulation was
not as clear and comprehensive as we had hoped and that it could be
misinterpreted. We have, therefore, revised and expanded §§
404.1527 and 416.927 to state our policy more clearly and in more detail
and to respond to the public's concerns.
Although the circuit courts vary somewhat in their formulation of the rule
on how treating source evidence is to be considered, the majority of the
circuit courts generally agree on two basic principles. First, they agree
that treating source evidence tends to have a special intrinsic value by
virtue of the treating source's relationship with the claimant. Second,
they agree that if the Secretary decides to reject such an opinion, he
should provide the claimant with good reasons for doing so. We have been
guided by these principles in our development of the final rule.
We were guided in the development of these final rules by the general
principles articulated by the various circuit courts. None of the circuit
courts of appeals has held that its treating physician rule is required by
the Act or the Constitution. Rather, the courts of appeals have
articulated their treating physician precedent in the absence of a
definitive regulation by the Secretary and in the context of reviewing
individual decisions by the Secretary under
section 205(g) of the Act
to determine whether those individual decisions, given the facts of the
particular case, were supported by "substantial evidence."
Indeed, the Second Circuit in the Schisler case
recently expressly invited the Secretary to use the "customary
administrative process" to promulgate a treating physician policy.
The Secretary has the authority and responsibility under sections 205(a),
223(d)(5) and 1102 of the Act to prescribe regulations for determining the
amount and kind of evidence an individual must furnish in order to
establish that he or she is under a disability. In these final rules we
are exercising that authority to prescribe the standards that we will use
to evaluate treating source opinions when those opinions are furnished as
evidence in connection with a claim for disability benefits. The Secretary
will be applying these final rules as the appropriate legal standard for
evaluating treating physician opinion evidence in claims before the
Agency.
Under the Act, a claimant is required to prove to us that he or she is
disabled by providing medical and other evidence of disability. We
consider medical opinions, including treating source opinions, to be
evidence that must be evaluated together with all of the other evidence in
a person's case record. Sometimes, medical opinions may be entitled to so
much weight that they control the issues they address; other times,
opinions may be entitled to less weight.
The final rule addresses the problems of weighing opinion evidence in
several ways. It recognizes that, because opinions always have a
subjective component, because the effects of medical conditions on
individuals vary so widely, and because no two cases are ever exactly
alike, it is not possible to create rules that prescribe the weight to be
given to each piece of evidence that we may take into consideration in
every case. It also recognizes that the weighing of any evidence,
including opinions, is a process of comparing the intrinsic value,
persuasiveness, and internal consistency of each piece of evidence and
then evaluating all of the evidence together to determine which findings
of fact are best supported by all of the evidence. The final rule places
medical opinions in the context of the entire case record by first stating
general principles of weighing evidence and then the specific rules for
weighing opinion evidence. The final regulation provides more detail than
the Notice of Proposed Rulemaking on how we will weigh all types of
evidence, and contains some substantive changes in our policy made in
response to public comment. We believe the level of detail in these final
rules is necessary in order to explain our policy fully and to provide
sufficient guidance to our adjudicators.
The regulation also recognizes that we may receive medical opinions from
three kinds of medical sources: treating sources, other examining sources
who are not treating sources (for example, consulting physicians and
psychologists), and nonexamining sources. It describes the factors we will
consider when we weigh each kind of opinion. It also provides special
rules for weighing treating source opinions, and differentiates between
the standards for weighing treating source opinions and opinions from
other sources. We have included a discussion of evaluation of nontreating
source opinions in these final rules because it was clear to us that we
could not fully describe the rules to be used in weighing treating source
opinions without also describing how those opinions were to be evaluated
in relation to opinions from other sources.
The following discussion describes the structure of §§ 404.1527
and 416.927 in detail and why we revised the regulation as we did.
The final regulation contains six paragraphs that do not correspond
directly to the paragraphs of the regulation proposed in the Notice of
Proposed Rulemaking. Instead, we have reorganized and rewritten the
provisions that were originally proposed.
1.
Paragraph (a) of the final rule is a new provision that defines the kinds
of medical evidence we may consider to be medical opinions.
2.
Paragraph (b) states our policy that we always consider relevant medical
opinion evidence together with other relevant evidence when we make our
determinations and decisions.
3.
Paragraph (c) describes generally how we consider evidence, including
opinions, in making disability determinations. It also explains the
weighing of evidence and describes the steps we will take before we make
our determinations and decisions.
The evaluation of evidence is a complex process that requires careful
analysis of the value of each piece of evidence and the interrelationship
of and consistency among the various pieces of evidence. When the evidence
is consistent and sufficient for us to decide a case, decision making is
relatively straightforward since we can simply make our findings
consistent with the evidence as a whole. However, if there are any
inconsistencies in the evidence, including any individual reports that may
be internally inconsistent (for example, when a report provides detailed
medical findings that suggest greater or lesser severity of impairment
than is expressed in an opinion at the end of the report), we weigh all of
the evidence to determine what findings are best supported and whether
there is sufficient evidence for us to make a final determination or
decision.
Regardless of whether the evidence in the case record is consistent, if
there is insufficient evidence for us to decide the case, we will try to
remedy any evidentiary deficiencies, as provided elsewhere in these
regulations. If we are successful, we will have a case record that is
either wholly consistent and sufficient to decide the case, or which
retains inconsistencies but contains sufficient evidence for us to resolve
the inconsistencies. If we cannot get the evidence we need, we will have
no alternative but to make a determination or decision by weighing all of
the evidence we have and making judgments about what findings can be best
supported.
4.
Paragraph (d) contains the principal provisions of the regulation section
and is intended to replace paragraphs (b) through (d) of the regulation
section proposed in the Notice of Proposed Rulemaking. It recognizes that
medical opinions are particularly difficult to assess since they always
reflect judgments or beliefs of the person offering the opinion that we
may not be able to verify or that we may find questionable based on our
understanding of all of the evidence. We cannot decide a case solely in
reliance on a medical opinion when there is not some reasonable support
for the opinion, nor can we find an opinion to be controlling simply by
virtue of the fact that it may come from a treating source if there is
other substantial evidence which casts doubt on the opinion.
We recognize that medical conditions affect individuals in widely
different ways and that medical opinions—especially those from
treating sources—can provide evidence of the nature and severity of
an individual's impairment(s) that cannot be obtained by any other means.
Accordingly, paragraph (d) reaffirms that we will never ignore any medical
opinion in the case record. Then, it describes the factors we consider
when we determine the amount of deference to give to a medical source's
opinion, with particular attention to a treating source's opinion;
In a trial-type or adversarial situation, the facts or grounds on which an
opinion is based can be brought out by cross-examination. Such
cross-examination can strengthen or weaken the probity of the medical
opinion. The Social Security disability programs provide for the
adjudication of disability claims in a nonadversarial context without the
cross-examination safeguard. We believe that the use of the factors
specified in paragraph (d) is a reasonable substitute for the scrutiny
that any opinion would be subjected to if it were placed before a court in
an adversarial context;
When we cannot give controlling weight to a treating source's opinion
about the nature and severity of a claimant's impairment(s), we consider
all the following factors when we decide how much weight to give to the
opinion.
1.
The examining relationship—A
medical opinion of a source who has examined the individual will generally
be given more weight than a medical opinion of a nonexamining
source.
2.
The treatment relationship—We
give treating source medical opinions special deference because treating
sources usually have the most knowledge about their patients' conditions.
When we weigh a treating source's medical opinion, we consider several
factors that indicate the extent of this knowledge. Considering these
factors allows us to determine whether the treating source is in fact an
individual to whom we should give deference and the amount of deference to
give to the source's medical opinion. We will consider the length,
frequency, nature, and extent of the relationship between the treating
source and the claimant. Generally, the longer a treating source has known
an individual, the greater the number of times the source has seen the
individual for treatment, and the greater the extent of examinations and
testing the source has provided or ordered, the more weight we will give
to the source's opinion on any medical issue;
3.
Supportability—The more
relevant the supporting evidence of an opinion and the better an
explanation a medical source provides, the more weight we will give that
opinion.
4.
Consistency—The more
consistent a medical opinion is with the record as a whole, the more
weight we will give that opinion.
5.
Specialization—We generally
give more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a source
who is not a specialist in that area.
6.
Other factors—We have included
a provision to cover situations that may arise in rare cases that may not
be covered by the foregoing provisions. For example, information that a
particular physician or psychologist has been submitting identical medical
reports for different individuals would clearly affect the weight we would
give to any opinions expressed in those reports.
Even though we will consider all of the foregoing factors each time we
weigh an opinion, not every factor will apply in every case. Also, certain
factors (for example, treatment relationship) will sometimes take
precedence over other factors; at other times, certain combinations of
factors will result in a finding that one opinion is entitled to more
weight than another, or that a single opinion is entitled to great weight
while another might not be. As we have explained above, there are simply
too many variables to permit a formulaic description of how we will apply
the factors in every case, but we believe that the factors in paragraph
(d) represent a fair, logical, and comprehensive description of the
considerations we should take into account when weighing medical
opinions.
Paragraph (d)(2) also states special rules for evaluating medical opinions
from treating sources. It provides that we must give controlling weight to
any treating source medical opinion on the issues of the nature and
severity of the impairment when the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with other substantial evidence in the record. The final rule
was drafted to clarify language in the Notice of Proposed Rulemaking,
§§ 404.1527(b) and 416.927(b), which contained the provision
most criticized in the public comments. The provision recognizes the
deference to which a treating source's medical opinion should be entitled.
It does not permit us to substitute our own judgment for the opinion of a
treating source on the issues of the nature and severity of an impairment
when the treating source has offered a medical opinion that is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence.
We substituted the word "controlling" for the word
"conclusive" in those situations where treating source opinions
are such that they should be accorded great deference. We believe the word
"controlling" more clearly reflects the process we use, but do
not believe any substantive difference in the standard results from the
substitution of "controlling" for "conclusive." We
changed the term "fully supported" to "well-supported"
because we agreed with commenters who pointed out that "fully
supported" was unclear and that, more important, it was an
impractically high standard which, even if it were attainable, would
essentially make any opinion superfluous. We believe that the new term,
"well-supported," is more practicable and more reasonable; it
should make clear that we will adopt opinions that are well-supported by
medically acceptable clinical and laboratory diagnostic techniques unless
they are inconsistent with substantial evidence in the record.
Whether an opinion is well-supported will depend on the facts of each
case; however, as we explain below, when a treating source's opinion is
not accorded controlling weight, good reasons for such a decision are
required in the notice of determination or decision.
We also deleted the word "medical" from the phrase
"substantial medical evidence" in order to avoid the possibility
of an improper result being reached in some cases. Although we would
expect it to be an extremely rare occurrence, it is possible that a
treating source's opinion about the nature or severity of a claimant's
impairment(s), even one that is well-supported by medically acceptable
clinical and laboratory findings, may nevertheless be contradicted, and
even outweighed, by substantial nonmedical evidence. For example, an
opinion from a treating source about what a claimant can still do which
would seem to be well-supported by the objective findings would not be
entitled to controlling weight if there was other substantial evidence
that the claimant engaged in activities that were inconsistent with the
opinion.
In addition to the rule requiring us to give controlling weight to certain
treating source opinions, we have provided two rules in paragraph (d)(2)
for weighing treating source opinions that are not entitled to controlling
weight, in recognition of the special kind of knowledge about the nature
and severity of their patients' impairments that only treating sources can
have. These rules replace the provisions that were in the proposed
regulation's paragraph (d), including the term "some extra
weight" which was also identified in the public comments as a source
of confusion. All things being equal, when a treating source has seen a
claimant long enough to have obtained a detailed longitudinal picture of
the claimant's impairment(s), we will always give greater weight to the
treating source's opinion than to the opinions of nontreating sources even
if the other opinions are also reasonable or even if the treating source's
opinion is inconsistent with other substantial evidence of record. The
rule also provides that, even if the treating source's opinion is not such
that we can give it controlling weight, we will still give the opinion
more weight than we would have given it if it came from a nontreating
source.
We combined the rule on according controlling weight to some treating
source medical opinions with the other special rules addressing treating
source medical opinions to emphasize that we will still carefully evaluate
such opinions, and that we may still accord them special deference or
determine that they are entitled to great weight when we do not give them
controlling weight. Subsequent provisions in paragraph (d)(2) provide
that, as long as the treating source is someone entitled to special
deference, and all other factors are equal, we will always give more
weight to treating source medical opinions than to opinions from other
sources.
Finally, paragraph (d) provides that, when we do not give a treating
source's medical opinion controlling weight, we will always provide good
reasons why we have not done so in our notices of determination and
decision.
Paragraph (d) provides that many of the factors we use for weighing
opinions from treating sources are also used in weighing opinions from
sources who have examined claimants but who have no treatment relationship
(such as consulting physicians and psychologists or physicians or
psychologists who may have performed individual consultations during the
course of a hospitalization) and from nonexamining medical sources. Thus,
the weight to which the opinion of a nontreating source will be entitled
depends on such factors as the consistency of the opinion with other
evidence, the qualifications of the source, and the degree to which the
source offers supporting explanations for the opinion. Even though we may
ultimately find the opinion of a nontreating medical source entitled to
greater weight than that of a treating source, the opinions of nontreating
sources are not entitled to the special deference that we give to treating
source opinions;
Essentially, once we have determined that an opinion is from a treating
source, it is entitled to special deference. The final rules provide that
treating source opinions are generally entitled to greater weight than
opinions from nontreating sources unless there are clear and specific
reasons why they are outweighed;
5.
Paragraph (e) addresses the consideration of opinions on issues reserved
to the Secretary. Except for editorial changes, paragraph (e)(1) is
intended to be identical in meaning to the rule that was in the existing
regulations §§ 404.1527 and 416.927. Paragraph (e)(2) replaces
the paragraph (e) of the Notice of Proposed Rulemaking, which was another
source of serious concern and misunderstanding in the public
comments.
Medical sources often offer opinions about whether their patients are
"disabled" or "unable to work." Sometimes, medical
sources offer opinions about whether their patients have impairments that
meet or equal the requirements for an impairment listed in Appendix 1 to
Subpart P of Part 404. Medical sources may also offer opinions about a
claimant's "residual functional capacity" under §§
404.1545 and 416.945 (as distinct from the "statements about what you
can still do" described in §§ 404.1513 and 416.913), or
about their patient's ability to perform past relevant work or any other
type of work considering residual functional capacity, age, education, and
work experience.
The new paragraph (e) provides that we will not disregard these opinions,
even though they may generally be beyond the expertise of most medical
sources. In fact, if a treating source provides an opinion on a nonmedical
issue and the basis for the opinion is not clear from the evidence in the
case record, we will make every reasonable effort to recontact the source
to obtain an explanation of the medical basis for that opinion. The intent
of the paragraph, however, is to reiterate the principle previously stated
in §§ 404.1527 and 416.927 that determinations on these issues,
as described in those sections, are strictly the responsibility of the
Secretary and that opinions which address these issues can only be given
weight proportionate to the extent to which we can find that they are
supported by the remainder of the record. The Act requires such
determinations to be made by a State agency or the Secretary. To give a
treating source's opinion on such an issue controlling weight would, in
actuality, confer upon the treating source the authority to make the
determination, and would not, in our view, be consistent with the statute.
This was what we intended with the language in proposed paragraph (e). We
did not mean to require medical sources to use proper terminology, as some
commenters inferred. However, we did mean to reserve the ultimate
determination of disability to the Secretary.
6.
Paragraph (f) is a new provision that addresses evidence from nonexamining
physicians and psychologists. We use physicians and psychologists in
several capacities. At the State agency, physicians and psychologists are
members of the teams that make disability determinations. We also employ
physicians and psychologists to perform quality reviews and to provide
expert opinions to State agencies, disability hearing officers,
administrative law judges, and the Appeals Council. Administrative law
judges may also call upon medical advisors to provide expert testimony at
hearings. Even though the provisions of the introductory paragraph of
paragraph (f) will normally apply to such physicians and psychologists,
they are applicable to opinions received from any nonexamining source,
including the rare nonexamining medical source opinion submitted by a
claimant.
Paragraphs (f)(1) and (f)(2) are new provisions which clarify the complex
role of the State agency medical and psychological consultant. Paragraph
(f)(1) explains that when State agency medical or psychological
consultants make findings of fact about medical issues in their decision
making capacities, the findings are not opinions which are to be weighed
against opinions in the case record. Rather, they are findings based on
the pertinent medical and other evidence, including medical opinions. When
State agency medical or psychological consultants assess medical opinions
in the case record, they apply the principles set forth in §§
404.1527 and 416.927.
At the hearing level, administrative law judges consider the issues before
them de
novo. Therefore, when administrative
law judges consider issues of disability, they are not bound by any
findings made at the State agency in connection with the initial and
reconsidered determinations. However, State agency medical and
psychological consultants are highly qualified physicians and
psychologists who are also experts in Social Security disability
evaluation. Therefore, it has been our longstanding policy that
administrative law judges will consider the findings of State agency
medical and psychological consultants with regard to the nature and
severity of a claimant's impairment as opinions of nonexamining physicians
and psychologists. We have incorporated this policy into the regulations
in §§ 404.1512(b)(6) and 416.912(b)(6) and in §§
404.1527(f)(2) and 416.927(f)(2);
Administrative law judges will not give the opinions of State agency
medical or psychological consultants any special weight as such; they will
apply the principles of §§ 404.1527(a) through (e) and
416.927(a) through (e) when they weigh such opinions, always considering
that the opinions come from sources who have never examined the individual
whose case is being decided. Paragraph (f)(3) provides that the same
policy applies to the Appeals Council when the Appeals Council issues a
decision.
Public Comments
We published proposed rules to establish standards for consultative
examinations in a Notice of Proposed Rulemaking in the
Federal Register
on April 20, 1987 (52 FR 13014). Interested persons, organizations,
Government agencies, and other groups were given 60 days to comment. The
comment period closed on June 19, 1987.
We received comments from individuals, organizations, and Government
agencies, both State and Federal, whose responsibilities and interests
require them to have some expertise in the evaluation of medical evidence
used in making disability determinations under titles II and XVI of the
Act. We received no comments from disabled persons individually, but we
did receive them from six legal services organizations that represent the
interests of disabled individuals. We also received comments from medical
associations, physicians, and other medical professionals.
We have carefully considered all of the comments and have adopted many of
the recommendations. These changes are identified in the following
discussion of issues which were raised in the comments.
Many of the written comments, by necessity, had to be condensed,
summarized or paraphrased. In doing this, we believe we have expressed
everyone's views adequately and responded to the issues raised.
Some of the comments raised details about how the regulations would be
implemented. We believe these comments are not substantive public comments
that must be addressed in the regulations.
Many of the explanations and discussions of issues as published in the
Notice of Rulemaking have been expanded and clarified. We believe the
result is an improvement over the rules as published in the Notice of
Proposed Rulemaking which will enhance the uniformity and equity with
which the rules are applied.
We have refined and consolidated some of the language previously proposed
in §§ 404.1519 and 416.919, 404.1519a and 416.919a and 404.1519b
and 416.919b and moved it into §§ 404.1512 and 416.912. We
believe this is appropriate as it makes clearer the process of obtaining
existing medical evidence from medical sources, including recontacting the
medical source, before evaluating a consultative examination. We revised
§§ 404.1512 and 416.912 to clarify that the 12-month medical
history means 12 months prior to the application, the date the claimant
was last insured for disability benefit or period of disability purposes,
the end of the prescribed period for widow's or widower's benefits based
on disability, or attainment of age 22 for child's benefits based on
disability, as appropriate.
We have reorganized the sections on consultative examinations issues into
what we believe is a more logical order when read in the context of
current regulations.
Although we did not include §§ 404.1517 and 416.917 of the
existing regulations in the Notice of Proposed Rulemaking because we did
not initially recognize the need for changes in those sections, we later
realized that they should have been revised to avoid redundancy. We have
therefore revised the last sentence of §§ 404.1517(a) and
416.917(a) by inserting a period after the words "about your
condition." In addition, we have deleted §§ 404.1517(b) and
416.917(b) since situations requiring a consultative examination are now
described in §§ 404.1519(a) and 416.919(a). Therefore,
§§ 404.1517(a) and 416.917(a) have been redesignated to
§§ 404.1517 and 416.917. We have deleted §§ 404.1519e
and 416.919e and §§ 404.1519f and 416.919f as set out in the
Notice of Proposed Rulemaking since the procedures for development of
evidence and obtaining consultative examinations followed at the initial
level are also applicable at the reconsideration and hearings level of
review; we have added a statement to this effect in §§ 404.1519
and 416.919.
We reorganized the language previously proposed in §§ 404.1519s
and 416.919s and §§ 404.1519t and 416.919t as follows:
1.
The content of the first paragraph of §§ 404.1519s and 416.919s
was moved to §§ 404.1519t(a) and 416.919t(a).
2.
The language in §§ 404.1519t and 416.919t, with the exception of
the language in §§ 404.1519t(9)(d) and 416.919t(9)(d), is now
located in §§ 404.1519s and 416.919s.
We clarified § 416.920 to indicate that it does not apply to children
under title XVI.
In proposing these regulations, we had certain objectives in mind in
addition to implementing section 9 of Pub. L. 98-460:
•
To ensure that accurate disability determinations are made as early in the
process as possible;
•
To improve the uniformity of disability determinations;
•
To improve the management of the disability programs both at the State and
Federal levels; and,
•
To preserve the basic Federal/State relationship.
These objectives also guided us as we evaluated the comments received from
the public.
For ease of comprehension, we have organized comments according to the
issues raised. The issues and our responses are presented in the order in
which the regulations are now organized and not in the order in which the
issues appeared in the Notice of Proposed Rulemaking, except for the
sections which we have deleted from the final regulations. The reference
to sections in the headings regarding the comments and in the comments
refer to sections as numbered in the Notice of Proposed Rulemaking.
§§ 404.1502/416.902
General definitions and terms for this subpart.
Comment:
Several commenters believed that the definition of "treating
source" was too restrictive and should include physicians who have
treated the claimant in the past as well as those currently treating the
claimant. One commenter believed that "treating source" should
be defined as "the one who provides medical treatment for alleged
impairment(s)."
Response:
We have modified the language in the definition of "treating
source" to include those physicians who had treated the claimant on
an ongoing basis in the past. We did not limit the definition to "one
who provides treatment for the alleged impairment," since pertinent
evidence may be available in the records of a treating source who has or
had an ongoing treatment relationship with the claimant for a condition
other than the alleged impairment.
Comment:
Some commenters expressed concern about the distinction between
"treating source" and "source of record." The
commenters suggested clarification or deletion of the phrase "ongoing
treatment relationship." One commenter suggested cross-referring this
section to §§ 404.1513 and 416.913 to clearly define the term
"your own physician," to avoid controversy over evidence from
chiropractors, naturopaths, and other practitioners not licensed to
practice medicine and surgery.
Response:
record" has been made to differentiate a source who has examined the
claimant but did not have an ongoing relationship with the claimant from
one who has such a relationship. Additionally, we have stated what we mean
by "ongoing treatment relationship." We have cross-referred
§§ 404.1502 and 416.902 to §§ 404.1513 and 416.913 to
distinguish acceptable medical sources from other sources.
§§ 404.1503a/416.903a
Program integrity.
Comment:
Some commenters stated there was not enough detail with regard to the
issue of revocation and suspension of license by the State and asked, when
revocation or suspension occurs, whether the individual involved is
permanently barred from participation in the program or barred only for
the duration of the revocation or suspension. One commenter wanted to know
SSA's position regarding use of evidence from an individual whose license
to practice is restored after (1) passage of penalty time or (2) after
investigation.
Response:
We will not use in our program except to provide existing medical
evidence, any medical or psychological consultant, consultative
examination provider, or diagnostic test facility currently excluded,
suspended, or otherwise barred from participation in the Medicare or
Medicaid programs, or any other Federal or Federally-assisted program. The
regulations have been revised to reflect this policy. Participation in the
Social Security programs is permitted after revocation or suspension, once
the license to practice has been restored by the State which revoked or
suspended it and the bar from participation in the Medicare or Medicaid
programs is removed.
We believe a physician's/provider's professional conduct, reputation, and
dealings within the community and with all Government agencies must be
such as to avoid any unfavorable reflection upon the Government and
erosion of public confidence in the administration of the program.
Comment:
One commenter suggested we clarify whether the filing of an appeal on a
bar from participation in the Medicare or Medicaid program by physicians
would result in a suspension of the debarment by SSA.
Response:
The filing of an appeal would not result in a suspension of the debarment
by SSA.
Comment:
Several commenters indicated the need for SSA to maintain a listing of
individuals and entities found guilty of professional misconduct in order
to keep the State agencies informed.
Response:
We agree and are looking into the possibility of obtaining such
information through the use of a data bank service which maintains data on
a wide variety of professional disciplinary actions taken against
individuals and entities in the country.
Comment:
Several commenters suggested that we list additional reasons for
exclusions since congressional hearings and the General Accounting Office
reports on the consultative examination issue, particularly with regard to
"key" or "volume providers," suggested the need to
list further abuses in this section to avoid future problems.
Response:
We have not adopted the suggestion that we need to list additional reasons
for exclusion. We believe the regulations cover a broad base of reasons
for not using sanctioned physicians. The list of sanctioned physicians SSA
receives from the Office of the Inspector General, which we regularly
forward to the States, together with information the State agencies
receive and maintain through their monitoring systems on volume providers
and other medical sources are designed to ensure the integrity of the
program.
Comment:
Two commenters believed that prohibitions against "using"
physicians in the program and the type of participation that is precluded
needed additional clarification. For example, the commenters asked if we
would apply this regulation in situations in which the sanctioned
individual or entity was involved in our program prior to the legal
sanction, and whether we would apply the rule to laboratories used by
treating physicians. The commenters believed the regulation could preclude
use of a report from such a source in his or her role as a treating source
or source of record.
Response:
We believe that evidence submitted by sanctioned physicians who are
medical sources cannot be summarily disregarded in reviewing disability
claims. Similarly, if we have knowledge that the treating source has used
the services of a laboratory that has been sanctioned, such evidence will
also be considered.
Section 223(d)(5)(B) of the Act
states, in part, that "in making any determination with respect to
whether an individual is under a disability or continues to be under a
disability, the Secretary shall consider all evidence available in such
individual's case record."
Comment:
Several commenters questioned whether we would accept existing medical
evidence from sanctioned individuals and entities, and, if so, what the
probative value of such evidence would be. Another commenter wanted it
specified that the State agencies will not base their disability
determinations on any evidence presented by attending physicians who have
been sanctioned by the Office of the Inspector General for Medicare or
Medicaid program violations.
Response:
As we indicated earlier, evidence submitted by sanctioned physicians who
are medical sources cannot be summarily disregarded because this would be
unfair to the claimant. However, if the examiner has reason to doubt the
reliability of a report from a sanctioned physician, then the evidence may
have less probative value. Similarly, the particular action which has
caused a physician to be excluded from the program will be considered in
evaluating medical evidence of record submitted by that physician.
Comment:
With regard to the concept of using the treating physician as the
preferred source for consultative examinations, one commenter wanted to
know if such disciplinary action would bar consideration of those
physicians. Another commenter wanted it clearly specified that the State
agencies will not purchase consultative examinations from attending
physicians who have been sanctioned by the Office of the Inspector General
for Medicare or Medicaid program violations.
Response:
We will not use a treating source to perform a consultative examination if
we have knowledge that the treating source is currently under sanction by
the Office of the Inspector General for Medicare or Medicaid program
violations or by the State licensing authority.
§§ 404.1512/416.912
Responsibility for evidence of your impairment.
Comment:
One commenter stated that it would be advantageous to ensure that all
claimants fulfill their responsibility to submit evidence of disability.
Two commenters indicated that a step-by-step procedure should be
implemented for capable claimants to follow to secure medical evidence in
support of their claims. Three commenters believed that requiring the
claimant to contact medical sources to help obtain medical reports may
result in unfair denials. Several commenters stated that severely disabled
individuals cannot be expected to assume responsibility to get evidence,
and that SSA must assume responsibility in those cases.
Response:
We have made clear in §§ 404.1512 and 416.912 of these final
regulations the claimant's responsibility to submit evidence of disability
and SSA's responsibility to assist the claimant in obtaining evidence of
the claimant's impairment. We believe these provisions prevent unfair
denials to claimants who must assist us in contacting medical sources to
help obtain the medical reports. Additionally, SSA assists those claimants
who may be physically or mentally unable to provide evidence.
Comment:
One commenter believed that the regulations should honor the statutory
directive of developing a complete 12-month history in all cases
regardless of the alleged onset date. Other commenters also believed that
in cases involving mental impairments the claimant's statement or recall
of disability onset should not necessarily be the sole determining factor
in developing the preceding 12 months' evidence.
Response:
We do not believe that the statute requires 12 months' development in
every case. We have revised the regulations to indicate that if the
alleged onset date is less than 12 months before the application filing
date, we will develop a complete medical history beginning with the month
of alleged onset date. In mental impairment cases, as in any other case,
evidence can be requested with respect to periods before the alleged onset
date. The criteria of this provision are meant to be minimum standards.
Judgment and selectivity should be used based on the facts of a particular
case;
Comment:
Several commenters saw no purpose in rigid timeframes for followup for
obtaining existing medical evidence. Some stated that the total 30-day
timeframe is unreasonable and should be longer. Others stated that the
timeframe should be less than 30 days. Some commenters stated that
additional efforts should be made in securing existing medical evidence
such as a second followup by telephone, or that a carbon copy of the
followup should be sent to the claimant so the claimant can request the
source to respond promptly. One commenter suggested waiting 28 days after
the initial request for existing medical evidence before purchasing a
consultative examination, except when a source is known to be
uncooperative in providing such medical evidence. Several commenters
stated that a consultative examination should not be ordered while
awaiting existing medical evidence.
Response:
We have revised the language for "every reasonable effort," the
effort which we must expend to help a claimant get medical evidence from
his or her own medical source, to permit a period of 30 calendar days
between the date of the initial request for existing medical evidence and
the response to the followup. Within this 30-day period, the followup can
be made at any point between 10 and 20 calendar days after the initial
request. This allows a reasonable period of at least 10 calendar days
after the followup for response. Current operating instructions provide
that the disability determination services may contact the claimant to
assist in obtaining needed evidence from a source who has not responded to
the initial request. The final regulations provide that a consultative
examination may be ordered while awaiting existing medical evidence when a
source is known to be unable to provide certain tests or procedures or is
known to be nonproductive or uncooperative.
Comment:
One commenter questioned whether the treating source should be used for a
consultative examination when that source has been uncooperative in
furnishing existing medical evidence.
Response:
A provision has been included in §§ 404.1519i and 416.919i of
these final regulations for ordering a consultative examination from a
source other than the treating source when the treating source is known to
be uncooperative in furnishing existing medical evidence. The example
included in the provision illustrates that when the treating source has
consistently failed to furnish existing medical evidence, we should not
then use the source to perform the consultative examination.
§§ 404.1513/416.913
Medical evidence of your impairment.
Comment:
Several commenters objected to use of the new phrase "medical source
statement . . ." instead of the term "medical assessment."
They believed that the change from "medical assessment" was made
to allow consideration of observations by nonmedical personnel. One
commenter stated that the new phrase is a reversal of longstanding SSA
policy and is essentially a request for a residual functional capacity
finding. Many commenters were concerned that the request to a treating
physician for the statement of what the individual can still do despite
impairment(s) will result in frequent conflict with the State agency staff
medical or psychological consultant's residual functional capacity
assessment which is based on the full medical record. These commenters
thought that, generally, since the physician would not have access to the
claimant's full record, the opinion of the treating source may be
substantially different from the residual functional capacity assessment
provided by the State agency physician, resulting in increased State
agency time required to rebut the solicited opinion.
Response:
The new phrase "medical source statement" does not include
observations by non-medical personnel. We clearly indicated in
§§ 404.1513(b)(6) and 416.913(b)(6) that the "statement as
to what a person can still do despite impairments" should be provided
by a medical source. The request for
a statement from a medical source about what a person can still do is not
a reversal of SSA policy. It has always been our policy to request
"medical assessments" from treating sources because these
statements can provide important evidence about the actual functional
effect of an individual's impairment(s). However, because the term
"medical assessment" was open to various interpretations, we
decided that the clarification of our policy was necessary. The final
rules clarify that we will request each treating source and consultative
source to provide a statement of what the claimant can still do despite
impairments. Each opinion received will be considered along with all of
the medical and other evidence in arriving at the residual functional
capacity assessment. We agree that the State agency examiner or medical or
psychological consultant may be required to spend additional time
resolving differences between these opinions and the medical consultant's
residual functional capacity assessment, but we believe this is necessary
in our decision making process in order to properly weigh these
opinions;
Comment:
One commenter believed the list of work-related activities should be
complete rather than a partial list of activities. Two commenters believed
that the statement of the medical source's opinion about a claimant's
mental impairment should include "to concentrate" and "to
persevere," since these are more often the abilities lost in chronic
mental illness. Another commenter stated that the information to be
included in a medical report does not address complaints of pain and
limitations.
Response:
We have made clear in the regulations that the list of work- related
activities is not all-inclusive and is not limited to the physical and
mental capabilities as listed. However, even though the Notice of Proposed
Rulemaking at §§ 404.1513(c)(2) and 416.913(c)(2) referred to
the ability to reason or make occupational, personal, or social
adjustments, §§ 404.1545(c) and 416.945(c) refer instead to the
ability to understand, to carry out and remember instructions, and to
respond appropriately to supervision, coworkers, and work pressures in a
work setting. We believe that the language of the final regulations should
be consistent throughout. We have, therefore, revised the language of
these final regulations at §§ 404.1513(c)(2) and 416.913(c)(2)
and §§ 404.1519n(c)(6) and 416.919n(c)(6) about mental
capabilities to be consistent with the language in §§
404.1545(c) and 416.945(c).
Comment:
Two commenters believed that excluding disabled widows or widowers from
the requirement that a medical report should include a statement about
what the claimant can still do despite his or her impairment will result
in the exclusion of evidence needed in order to determine the eligibility
of a claimant seeking widow's benefits based on disability.
Response:
As a result of the enactment of section 5103 of Pub. L. 101-508, the
Omnibus Budget Reconciliation Act of 1990, on November 5, 1990, we will no
longer exclude disabled widows or widowers from the requirement that a
medical report should include a statement about what the claimant can
still do despite his or her impairment;
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
§§ 404.1519/416.919
The consultative examination.
Comment:
One commenter suggested adding a provision that a consultative examination
may be obtained at the claimant's request.
Response:
The claimant or the claimant's representative may request a consultative
examination. However, §§ 404.1517 and 416.917 state that we will
not pay for any medical examination arranged by the claimant or his
representative without our advance approval.
Comment:
One commenter suggested rewording of the language that a consultative
examination "must be obtained" to "should be obtained"
since "must" is too directive and rigid. Several commenters
indicated that in obtaining additional information readily available from
a medical source, trained disability examiners or other professionals are
just as effective as doctor-to-doctor contact. One commenter asked if the
purchase of a consultative examination should be approved if a telephone
contact to the treating source has not first been made. One commenter
stated that there should be no instance of recording conversations with a
medical source unless that source affirms the substance of any
conversation with us by his or her signature.
Response:
As explained above, we have reorganized paragraphs on recontacting medical
sources. Paragraphs 404.1519(b) and 416.919(b) as set out in the Notice of
Proposed Rulemaking are now §§ 404.1512(e) and 416.912(e),
respectively. We believe this reorganization better describes the process
of the efforts of requesting existing medical evidence before obtaining a
consultative examination. In rewording the new §§ 404.1512(e)
and 416.912(e), we deleted the phrase "must be obtained."
Reference to doctor-to-doctor contact was also deleted since existing
operating instructions indicate that routine requests for needed
information can be made by trained disability adjudicators. We have made
clear in these final regulations at §§ 404.1512(e) and (f) and
416.912(e) and (f), that before we request a consultative examination we
will first recontact the treating source or other medical source to
determine whether the information we need is readily available. The
decision to purchase a consultative examination will be made after we have
given full consideration to whether or not the additional information is
readily available from the records of the claimant's medical sources. Such
full consideration includes making a telephone contact with the treating
source. We agree that the substance of the conversation with a medical
source must be affirmed by the source's signature. We cover this in our
operating instructions, and we have added this requirement to the final
regulations at §§ 404.1512(e)(1) and 416.912(e)(1). Every
reasonable effort will be made to obtain the additional information or to
obtain the source's signature when medical evidence is obtained over the
telephone.
§§ 404.1519a/416.919a
When we will purchase a consultative examination and how we will use it.
Comment:
One commenter indicated that the regulations reflect using a medical
source other than the treating source to resolve conflicts, perform
specialized tests, and to evaluate changes in a claimant's condition. Two
commenters stated that there is no basis to seek a consultative
examination when there is an indication of a change in the claimant's
condition unless the treating source has first been contacted for the
information and cannot provide it. Two commenters stated that unless the
treating source is first contacted, SSA will not be able to determine that
the source cannot reconcile an inconsistency or ambiguity. One commenter
stated that the regulations should make clear that "conflict"
involves solely a conflict within the medical data already submitted and
not between the opinion of nonexamining physicians and the other medical
evidence in the case. Two commenters believed that the provisions appear
to indicate that a consultative examination will be required regardless of
the quality of the evidence in file from a treating source. These two
commenters believed that the language in §§ 404.1519a(b)(7) and
416.919a(b)(7) was unnecessarily broad and should be refined or
deleted.
Response:
The regulations state that when the evidence we receive is inadequate to
allow us to determine whether the individual is disabled, or when the
treating source's report or other medical source's report contains a
conflict or an ambiguity, we will give every consideration to whether the
additional information we need is readily available from the records of
the claimant's medical source. Recontact should be made with the treating
source or other medical source to determine whether the additional
information we need is readily available. We try to make decisions based
on the evidence from treating sources because they are often in the best
position to provide detailed longitudinal information about a claimant's
condition. However, when the source cannot provide the necessary
information, we will purchase a consultative examination from the treating
source whenever possible, subject to the exceptions noted in §§
404.1519i and 416.919i of these final regulations. We have made clear in
the regulations that when a report from a treating source contains a
conflict or an ambiguity, we will give every consideration to first
recontacting the treating source for the additional evidence or
clarification. The conflict may exist within the medical data or between
opinions of the physicians involved in the claimant's case. We will,
however, make every reasonable effort to recontact the treating source to
resolve the conflict. We agree with the commenter that paragraph (7) of
§§ 404.1519a(b) and 416.919a(b), as set out in the Notice of
Proposed Rulemaking, should be deleted from these final regulations and
have done so.
Comment:
One commenter said that consideration of vocational evidence, as mentioned
in the Notice of Proposed Rulemaking, is usually not a factor in deciding
whether or not to purchase a consultative examination unless there is
evidence of work activity. One commenter stated that considering the
vocational background from the background report before purchasing a
consultative examination may delay the case and may ultimately be
unnecessary.
Response:
We agree with these commenters and have deleted reference to the
vocational background report.
§§ 404.1519b/416.919b
When we will not purchase a consultative examination.
Comment:
Several commenters believed that the situations given in this section to
illustrate when a consultative examination will not be purchased are vague
and will result in the improper denial of benefits. Three commenters
indicated that clarification is needed regarding issues involving work
activity. Three commenters believed that these standards may have a
significant negative impact on persons with mental impairments. Several
commenters said that the intent and usage of situations (f) and (g) of
§ 404.1519b need particular clarification on how these situations
will be applied.
Response:
These situations are provided as guidelines for us to use in exercising
our judgment about obtaining a consultative examination based on the facts
of a particular case. We make special efforts to ensure against denial of
benefits to all individuals who may be severely impaired and unable to
assist us in obtaining evidence, especially those who may be mentally
impaired. The SSA field offices are responsible for resolving issues of
work activity. Because resolution of the medical issues may be
unnecessary, a consultative examination should not be ordered when the
State agency recognizes that specific issues concerning evaluation and
consideration of substantial gainful activity have not been resolved. We
believe our regulations already safeguard against the denial of benefits
to the mentally impaired. We have deleted situations (f) and (g), as set
out in the Notice of Proposed Rulemaking, from these final regulations
because those situations could be subject to misinterpretation.
§§ 416.919c
Purchase of title XVI slight impairment examination.
Comment:
Many commenters expressed concern that this section appears to be designed
to allow "quick and easy" determinations of nondisability under
title XVI. Several commenters disagreed with letting the claimant make the
arrangements for his or her own consultative examination. They believed
that it is far more important that SSA do "usual development" of
these cases in order to document and properly assess them. The commenters
noted that this section presumes that if a person applies for Supplemental
Security Income benefits because another agency requires a title XVI
determination, then the individual suffers from only a slight impairment.
One commenter stated that this section is in direct conflict with all of
the safeguards established in other sections of the regulations. Some
commenters were concerned about the quality of and lack of timeframes for
the medical report required under this section. One commenter said that
these special procedures should not be mandated, and if implemented, they
should be optional.
Response:
We agree that there should not be a different procedure for determinations
of nondisability for title XVI claimants than for title II claimants;
therefore, we have decided to delete the proposed provision.
§§ 404.1519e/416.919e
Purchase of consultative examinations at the reconsideration level.
Comment:
One commenter indicated that the regulations should include the
circumstances when a consultative examination will be needed at the
reconsideration level. Several commenters stated that the requirement to
purchase a consultative examination at the reconsideration level based on
a treating source's statement would not be cost-effective or productive if
the statement was adequately considered at the initial level. Other
commenters stated that it would be inappropriate to allow the same
treating source to perform a consultative examination at the initial and
reconsideration levels. They believed that the regulations should require
that a consultative examination at the reconsideration level be performed
by a different physician. Others believed that the purchase of a
consultative examination from the claimant's treating physician should be
mandatory;
Response:
We have deleted §§ 404.1519e and 416.919e and §§
404.1519f and 416.919f, as set out in the Notice of Proposed Rulemaking,
from these final regulations since we did not intend to create different
standards at the reconsideration or other appeals levels. The rules set
forth in §§ 404.1519a and 416.919a and §§ 404.1519b
and 416.919b of these final regulations for purchasing a consultative
examination are applicable at the reconsideration and other appeals levels
of review. When the treating source expresses the opinion that the
claimant is disabled, a consultative examination may be purchased at the
reconsideration level to ensure that all relevant evidence has been
obtained and that we have thoroughly reconsidered the claim. We believe it
is appropriate to have the same treating source perform the consultative
examination, when possible, at both the initial and reconsideration levels
because the treating source is often in the best position to provide
detailed longitudinal information about a claimant. Therefore, the
treating source is the preferred source for a consultative examination at
every level of adjudication, subject to the exceptions in these
rules.
§§ 404.1519f/416.919f
Securing medical evidence at the Administrative Law Judge hearing level.
Comment:
One commenter stated that there should be specific language in this
section against administrative law judge
ex parte contacts with either
treating or consultative physicians. Several commenters stated that this
section excuses the administrative law judge from making every reasonable
effort to get information from treating sources. Two commenters said that
the same provisions for consultative examinations at the reconsideration
level should apply at the administrative law judge hearing level.
Response:
Subpart P and subpart I of the regulations are not the appropriate places
to state policy on administrative law judge
ex parte contacts because
ex parte contacts can involve all
types of determinations, not only those about disability and blindness. We
will consider addressing this issue in Subpart J of the regulations. The
agency's "every reasonable effort" standard to help a claimant
get medical evidence from his or her own medical source, as set forth in
§§ 404.1512(c)(1) and 416.912(c)(1) also applies to the
administrative law judge. We did not intend to create different rules for
obtaining a consultative examination at the reconsideration and the
hearing levels. The rules that apply at the initial level also apply at
the reconsideration, administrative law judge and Appeals Council levels
of review.
Standards for the Type of Referral and for Report Content
§§ 404.1519g/416.919g
Who we will select to perform a consultative examination.
Comment:
One commenter recommended that to allow the State agency to exercise
judgment in determining when to order a specific test or a comprehensive
examination to determine the person's fitness to undergo the procedures
involved in the test or examination, the term "we may" should be
substituted for the phrase "we will" purchase only the specific
evidence needed. One commenter stated that certain test procedures should
never be ordered without a concurrent medical examination.
Response:
The regulations, as well as our operating instructions, clearly intend to
allow the State agency to exercise judgment in obtaining only the type of
examination and/or test needed for adjudication. We will order only the
specific examination or test needed. Sections 404.1519m and 416.919m of
these final regulations ensure that certain test procedures that may
entail significant risk to the claimant are not ordered for the evaluation
of disability. The disability interview form and pertinent medical
evidence available permits the examining physician to be aware of the
claimant's condition.
Comment:
Several commenters stated that it was unreasonable and virtually
impossible to expect monitoring of the credentials of the support staff of
consultative examination providers because of their sheer size in numbers,
their rapid turnover rate, and the broad range of certifications needed to
operate or perform certain functions that would be involved.
Response:
We recognize the overwhelming task it would be for the State agency to
monitor continually 100 percent of the support staff of all of their
consultative examination providers. We also recognize that this task will
become even greater as more new treating sources are used for consultative
examinations. However, we are also committed to ensuring that program
safeguards are in place. Additionally, congressional concerns have been
raised regarding the use of unqualified support staff to assist the
consultative examination physician in the examination process. Therefore,
we have retained the requirement outlined in this section governing the
qualifications of consultative examination providers. We will add to our
operating instructions the requirement that each consultative examination
panel source provides the State agency for which he or she agrees to do
consultative examinations, a signed agreement certifying that all support
staff he or she uses in the performance of a consultative examination meet
the appropriate licensing or certification requirements of the State. If
the State agency discovers a violation of this agreement by a consultative
examination provider, it will take appropriate action to ensure that the
problem is corrected. If the problem persists, the State agency will cease
using that consultative examination provider.
Comment:
One commenter wanted to know who constitutes "support staff" and
what documentation of the "appropriate licensing or
certification" must be maintained by the State agency. Another
commenter indicated that medical sources should be instructed to note on
the report when support staff assisted, their qualifications, what they
did, and the amount of supervision exercised by the consultative
examination provider.
Response:
We have added an example of "support staff" in §§
404.1519g(c) and 416.919g(c) of these final regulations. We have not
adopted the suggestion that consultative examination sources be instructed
to note on the report when support staff assisted, their qualifications,
what they did, and the amount of supervision exercised by the consultative
examination provider. We believe such requirements are excessive because
consultative examination sources are already aware of their responsibility
and liability for the welfare of the claimant during the consultative
examination as well as for the accuracy of the consultative examination
report. The consultative examination sources' motivation to maintain
qualified support staff will be reinforced by the signed agreement
discussed above. This signed agreement will also serve as the
documentation maintained by the State agency regarding the qualifications
of the support staff used by its consultative examination providers.
Comment:
Two other commenters wanted to know what constitutes the training and
experience to perform the type of examination or test requested and how
this is to be applied to treating sources selected to perform consultative
examinations.
Response:
Where the treating source believes that he or she is experienced in the
care of the person with the alleged impairment and is willing and able to
do the examination, the treating source will be the preferred source to
perform the consultative examination.
§§ 404.1519h/416.919h
Your treating physician or psychologist.
Comment:
Some commenters indicated that the policy on utilizing the treating source
as the primary source for a consultative examination could reward a
treating source who does not submit adequate evidence by purchasing a
necessary consultative examination from that source. Two commenters felt
this section as written allows SSA to justify excluding most treating
sources from use as consultative examiners. Two commenters stated that
there should be a provision notifying the claimant of the reasons his or
her treating source was not selected to perform the consultative
examination;
Response:
There is always the potential that a treating source may not provide us
with the existing evidence we need. However, the treating source is the
preferred source for a consultative examination. We do not intend this
provision to mean that a treating source should not be used for a
consultative examination. We see no benefit in notifying the claimant of
the reasons why a source other than the treating source was utilized for
the consultative examination. The claimant or the claimant's
representative retains the right to object to the use of a specific
physician.
§§ 404.1519i/416.919i
Other sources for consultative examinations.
Comment:
One commenter suggested that the regulations reflect that licensed
professional counselors be recognized to perform psychological
examinations. Another commenter stated that school officials, clinicians,
and others may have critical information needed in the determination of
disability.
Response:
Sections 404.1513 and 416.913 of the regulations indicate that we need
evidence from acceptable medical sources to determine the existence or
severity of an impairment. Since licensed professional counselors are not
physicians or psychologists, they cannot serve as consultative examination
providers. However, medical evidence from other sources of medical
information and evidence from nonmedical persons may be added to the
record.
§§ 404.1519j/416.919j
Objections to the designated physician or psychologist.
Comment:
Several commenters indicated that there should be guidelines as to how the
State agency will process objections based on this provision and how these
objections will be fairly resolved. Two commenters stated that there
should be a requirement that claimants be informed of their right to
object to a consultative examination. One commenter said that the claimant
should be provided an opportunity to object to an examination both before
and after the examination has occurred. Another commenter stated that the
regulations should emphasize that claimants or their representatives have
the right to purchase an examination with any physician they choose and to
have SSA consider that report in the determination process.
Response:
The regulations and current operating instructions contain guidelines
about how objections by the claimant or his or her representative to a
specific physician should be handled. Claimants have the right to object
to any and every step in the processing of their claims. To single out the
consultative examination would appear to give that step undue emphasis or
weight in the process;
Sections 404.1517 and 416.917 of these final regulations indicate that the
claimant or his or her representative can submit evidence from a purchased
examination from the physician of his or her choice. However, we will not
pay for any medical examination arranged by the claimant or his or her
representative without our advance approval. When the evidence is
received, it is considered along with all medical and other evidence in
the individual's case record in making a determination as to
disability.
§§ 404.1519k/416.919k
Purchase of medical examinations, laboratory tests and other services.
Some commenters indicated that SSA should consider issuing its own Federal
fee schedule, perhaps based on comparable Medicare reimbursement rates.
Some commenters noted that §§ 404.1519k(a) and 416.919k(a) do
not consider the problem of a State with such a low fee schedule that poor
quality evidence is purchased and recruitment of consultative examination
providers is impossible. One commenter stated that the word
"nominal" handling fee in paragraph (b)(2) should be better
defined. Some commenters were concerned that in paragraph (b)(2), the
situation where the examining physician uses an independent laboratory for
testing and bills the State agency for a higher amount, was not clearly
addressed. There was also some concern that applicant travel costs might
increase because the examining physicians would not provide services with
these payment restrictions. Some commenters were concerned that paragraph
(c) did not fully address how the State could document the rates of
payment it uses.
Response:
Under existing regulations, the State determines the rates of payment to
be used for purchasing medical or other services necessary to make
determinations of disability. The rates may not exceed the highest rate
paid by Federal or other public agencies in the State for the same or
similar type of service. The States have traditionally been responsible
for determining rates of payment. With the exception of a few State
agencies and isolated fee schedule problems, this arrangement has worked
well over the years. However, SSA is considering whether a maximum fee
schedule for laboratory tests, based on Medicare's limitation amounts for
laboratory test fee schedules is feasible. We are currently studying the
issue and what course of action, if any, we should take.
We do not believe a minimum payment standard is needed for the purchase of
medical examinations, laboratory tests and other services. When a State is
experiencing problems with poor quality medical evidence because of low
payment rates, SSA will try to assist the State agency or its parent
agency to correct the problem. We wish to point out, however, that there
are many States with low fee schedules that nevertheless obtain high
quality evidence. A high rate of payment does
not guarantee quality
evidence.
We do not believe publishing an exact amount for a physician's handling
fee in regulations form is appropriate. We believe determining the actual
amount should be based on local circumstances in accordance with general
operating guidelines provided by SSA.
We have added clarifying language to this section which provides that when
an examining physician uses an independent laboratory for testing, the
amount of reimbursement will not exceed the independent laboratory's
billed cost of the service or the State's rates of payment, whichever is
the lesser amount.
Although some concern was expressed that claimant travel costs might
increase because some physicians would not want to work pursuant to these
payment restrictions, we do not believe this would outweigh the other
considerations of regulating and limiting reimbursement to the service
providers within reasonable bounds.
The intent of this section is to ensure that there are no excessive
payments or markups for laboratory tests and other services billed by
physician providers or laboratories.
For purposes of audit as well as other reasons, State agencies continue to
be responsible for documenting the basis for the rates of payment they
use. These include such factors as:
1.
Blue Cross/Blue Shield physician payment profiles,
2.
Rates of payment of other State and Federal agencies using same or similar
services (i.e., Medicaid and Medicare),
3.
State surveys of physicians, hospitals and laboratory charges,
4.
Consumer price index and wage data of the medical community, and
5.
Requests by providers for rate changes.
The State agency will be required to submit a copy to SSA of the fee
schedule and a statement indicating what methodology was used.
§§ 404.1519 /416.919
Requesting examination by a specific physician, psychologist, or institution—Administrative Law Judge hearing level.
Comment:
Two commenters stated that this section inappropriately limits the
administrative law judge's obligation to seek evidence from the treating
source. Some commenters indicated that this provision allows the
administrative law judge to designate his or her "favorite"
physician.
Response:
We have deleted §§ 404.1519 and 416.919, as set out in the
Notice of Proposed Rulemaking, from these final regulations since an
administrative law judge and the Appeals Council will follow the same
procedures for development of evidence and obtaining consultative
examinations that are followed at the initial and reconsideration levels.
There may be special circumstances aside from those listed in §§
404.1519a and 416.919a in which an administrative law judge will request a
consultative examination; even in these circumstances, the claimant's
treating source will be the preferred source for the consultative
examination.
§§ 404.1519m/416.919m
Diagnostic tests or procedures.
Comment:
One commenter suggested that this section be expanded to ensure that
diagnostic procedures of any sort that would be life-threatening will not
be ordered. One commenter suggested that this section should include an
exhaustive list of diagnostic procedures that are precluded. One commenter
stated that the regulations should include a provision for consulting with
treating sources prior to ordering extensive and perhaps invasive
examinations;
Response:
The intent of this provision is that diagnostic tests or procedures that
may be of significant risk to the claimant shall not be ordered. It would
be impossible to provide an exhaustive list of diagnostic procedures that
are precluded. The situations provided in the regulations are examples of
such procedures and are not all-inclusive. Although we do not routinely
contact the treating source prior to ordering consultative examinations,
sound medical judgment is exercised in determining when to purchase an
examination. The medical and/or background report(s) containing
information about the claimant will serve as pertinent evidence in
determining when an examination should be purchased. As an additional
safeguard, we are adding a requirement that a medical consultant must
approve the ordering of any diagnostic test or procedure where there is a
question of significant risk to the claimant.
§§ 404.1519n/416.919n
Informing the examining physician or psychologist of examination scheduling, report content, and signature requirements.
Comment:
Several commenters expressed concern that the solicited "statements
of what a person can still do" will cause additional work for the
State agency and result in additional difficulty in the decisionmaking
process. One commenter suggested that a statement should be added that the
physician's opinions must be supported by medical findings. Two commenters
stated that the regulations put treating and consultative physicians in a
role of assessing residual functional capacity.
Response:
We agree that the solicited statement of what a claimant can still do
despite his or her impairment results in additional work for the State
agency. But the statements are important to the assessment of residual
functional capacity in the decisionmaking process because they are the
opinions of medical sources who have examined the claimant. Sections
404.1527 and 416.927 of the final regulations contain policy with respect
to treating source opinions. Among other things they provide instructions
on evaluating treating source medical opinions with respect to the nature
and severity of an impairment that are well-supported by medical findings,
those opinions that are not supported by medical findings, and those
opinions that are inconsistent with medical or other evidence. We will not
request the treating source or consultative examination source to provide
a residual functional capacity assessment. The State agency medical or
psychological consultant, the administrative law judge, or the Appeals
Council is responsible for assessing residual functional capacity. A
treating source or consultative examiner will be requested to provide a
statement of what work-related activities such as sitting, standing, etc.,
the claimant can do despite impairments based on his or her knowledge of
the claimant. Each statement received will be considered along with the
medical and other evidence in arriving at an assessment of the claimant's
residual functional capacity based on all of the evidence.
Comment:
One commenter stated that this subsection should indicate that only
examining physicians, not nonexamining staff persons, should furnish the
statement of what a person can still do despite impairment(s). One
commenter said that a similar statement is needed from every treating
source;
Response:
The first comment was not entirely clear to us, but we assume that by
"nonexamining staff persons" the commenter meant State agency
medical or psychological consultants. As we have explained, State agency
medical or psychological consultants do not furnish "statements about
what a person can still do," which we have defined in §§
404.1513(b)(6) and 416.913(b)(6) as statements from medical sources based
on their own findings.
The firs State agency medical or psychological consultants provide
assessments of residual functional capacity, which are formal
administrative determinations based on consideration of the entire case
record, including the medical and the pertinent nonmedical evidence. The
final regulations indicate, in §§ 404.1513 and 416.913, that the
statement of what a person can still do despite his or her impairment(s)
should be included in medical reports from treating sources or sources of
record. The final regulations also provide that the absence of the medical
source's statement of what the claimant can still do does not make the
medical report incomplete. Additionally, §§ 404.1519n and
416.919n of the final regulations clearly indicate that the statement is
to be made by the physician or psychologist who performs the consultative
examinations. Also, operating instructions indicate that statements will
be solicited from all treating sources and/or consultative examining
physicians or psychologists;
Comment:
One commenter suggested that the initial request for evidence to treating
sources be more complete;
Response:
The final regulations stress the importance of indicating to the treating
source and/or consultative source what a complete examination should
contain. We ask the treating source to provide the evidence already in the
records of the claimant and a statement of what the claimant can do in
spite of his or her impairments(s). Sections 404.1513(b) and 416.913(b)
pertain to what a treating source's medical report should include, and
§§ 404.1519n(b) and (c) and 416.919n(b) and (c) of these final
regulations pertain to the report content for a consultative
examiner.
Comment:
Several commenters were concerned with how the State agency would be able
to monitor consultative examination scheduling, and one believed it could
not be done unless the consultative examination provider scheduled only
Social Security referrals. Another commenter stated that the provision
setting minimum timeframes for the scheduling of consultative examinations
be deleted. This commenter believed that there is no guarantee that any
given examination will meet the limits as proposed because much depends on
the claimant's subjective perception of the length of the consultative
examination.
Concerns were also raised that the consultative examination physician's or
psychologist's intelligence would be insulted by the scheduling interval
requirements;
Response:
We are committed to protecting the public interest by maintaining program
safeguards against overscheduling consultative examinations. Both the
Subcommittee on Intergovernmental Relations and Human Resources of the
House Committee on Government Operations and the General Accounting Office
recommended that minimum scheduling intervals become requirements for
consultative examination providers. Therefore, we have retained the
scheduling interval requirements in this regulation.
We are aware that in the past the State agencies were heavily dependent
upon the claimant's subjective perception of the length of the
consultative examination as an indicator that overscheduling of
consultative examinations might be occurring. We are also cognizant of the
extra work that will be imposed on State agencies in monitoring the new
scheduling intervals especially when Social Security claimants represent
only a part of the consultative examination provider's caseload. For these
reasons, we will add to our operating instructions the requirement that
key consultative examination providers will sign a statement of agreement
with the State agencies certifying that consultative examinations will not
be scheduled any closer together than the minimum timeframes set forth in
this regulation.
A State agency will maintain its normal consultative examination oversight
activities. If a State agency discovers a violation of the above agreement
by a consultative examination provider, it will take appropriate actions
to ensure that the problem is remedied. If the problem persists, the State
agency will cease using that consultative examination provider.
Finally, there is no intent to demean the intelligence or professional
integrity of consultative examination physicians and psychologists by
establishing scheduling interval requirements; rather, we believe there is
a legitimate need to ensure that sufficient time is allowed for examining
the claimant.
Comment:
Several commenters suggested that the word "minimum" precede the
scheduling intervals to avoid the misunderstanding that State agency fees
can be multiplied incrementally by the specified times. One commenter
thought minimum timeframes were a good idea but thought it may be better
to also list average times (which will always exceed the minimum) to help
avoid examination mills based on the minimum scheduling intervals;
Response:
We adopted the suggestion to add the word "minimum" in front of
"scheduling intervals." We did not choose to show average times
for scheduling intervals since we believe the minimum times listed are
sufficient to prevent overscheduling.
Comment:
Several commenters did not think the difference between a "General
Medical Examination" and a "Comprehensive General Medical
Examination" was clear, while still another commenter thought the
phrase "greater or less frequency," which refers to scheduling
intervals of consultative examinations by a consultative provider, was not
consistent with the language that preceded it;
Response:
To clarify the potential confusion between the terms "general medical
examination" and "comprehensive general medical
examination," we deleted "general medical examination" from
the list of examinations. In response to the other commenter, we reworded
the sentence immediately following the list of examinations to read:
"We recognize that actual practice will dictate that some
examinations may require longer scheduling intervals depending on the
circumstances in a particular situation."
Comment:
One commenter thought that the time spent with the patient face-to-face
should be recorded. Another commenter wanted to know if this regulation
was actually discussing scheduling intervals or the length of the
consultative examination itself. Finally, one commenter questioned whether
the scheduling interval times were sufficient if they were to include the
administering of needed tests.
Response:
We did not adopt the comment that the time spent face-to-face with the
patient be recorded because this section deals with overscheduling of
consultative examinations and not with the duration of the examination. We
deleted the word "duration" from the title of the section for
clarity.
Also for clarity, we have added an explanation that the term
"scheduling intervals" pertains to time set aside for the
individual, not to the duration of the consultative examination;
These scheduling intervals are minimum time periods, and we contemplate
that increased time may be necessary for the administration of additional
laboratory tests or procedures.
Comment:
Two commenters expressed concerns with the provision allowing support
staff to help perform consultative examinations because they believed this
area was open to liberal interpretation and was a potential area for
abuse.
Response:
We believe that the concerns raised about the possible liberal
interpretation and potential abuse of the provision allowing support staff
to help perform consultative examinations are not justified. The
assistance to consultative examination providers by their support staff in
the performance of a consultative examination has been a part of the
consultative examination process since its inception and has worked
successfully. As stated previously, the purpose of this regulation is to
provide program safeguards to help ensure that when support staff are
used, they are properly qualified and the validity of the consultative
examination is not jeopardized. The consultative examination provider
remains responsible for the examination and must sign the report to attest
to that responsibility.
§§ 404.1519o/416.919o
When a properly signed consultative examination report has not been received.
Comment:
One commenter indicated that when an unsigned consultative examination
report is consistent with existing evidence and supports a favorable
decision, another consultative examination should not be obtained when the
original consultative examination was performed by a now deceased
physician. Two commenters stated that it was unnecessary or not
cost-effective to duplicate consultative examinations to obtain
signatures.
Response:
We agree that it would be unnecessary to obtain a second consultative
examination when a consultative examination performed by a now deceased
physician is consistent with existing evidence and supports a fully
favorable decision. We have revised the final regulations accordingly at
§§ 404.1519o(a) and 416.919o(a). We will not use an unsigned
consultative examination report to make disability determinations or
decisions that are unfavorable to the claimant. If necessary, and
notwithstanding the cost, we will obtain a second consultative examination
to obtain a properly signed consultative examination report.
§§ 404.1519p/416.919p
Reviewing reports of consultative examinations.
Comment:
One commenter stated that the examples which used "flail limb"
and "claw hands" were offensive, were obvious, and reflected
physical impairments. Two commenters said that the examples should be
expanded to include pain, alcoholism, and depression.
Response:
We have revised the examples to reflect the commenters' suggestions.
Comment:
Several commenters thought that the adequacy of the consultative
examination report is determined by SSA standards, not "the course of
a medical education."
Response:
The intent here is that the report be made by physicians according to
recognized writing standards set by the medical community and the disease,
impairments, and complaints are adequately addressed as required by
SSA.
Comment:
One commenter stated that this section should include provisions that the
claimant or his representative may submit questions to the consultative
examiner. One commenter stated that SSA should obtain the claimant's
authorization before any report is automatically released to a treating
source. Another commenter added that any consultative examination report
should be given to the treating source for comments unless the claimant
objects;
Response:
We have no objections to the claimant or his or her representative
submitting questions to the consultative examiner. We believe, however,
that this does not have to be included in regulations. Claimant
authorization for providing a copy of the consultative examination report
to the treating source is covered in existing operating instructions.
However, we are adding language stating our policy on claimant
authorization for providing a copy of the consultative examination report
to the claimant's treating source as a provision in the final regulation
at §§ 404.1519p(c) and 416.919p(c). Our operating instructions
also provide that when a claimant attends a consultative examination
performed by a nontreating source and returns a completed, signed
authorization, a copy of the consultative examination report is then
mailed to the treating source. When the consultative examination turns up
diagnostic information or test results that indicate a condition that is
life-threatening to the claimant, we will refer the consultative
examination report to the claimant's treating source regardless of
authorization. It is administratively impractical to routinely furnish the
consultative examination report to the treating source for comments.
§§ 404.1519q/416.919q
Conflict of interest.
Comment:
Two commenters recommended that the "family members" of State
agency medical or psychological consultants who cannot hold financial
interests in a business which provides consultative examinations in order
to avoid a conflict of interest be defined in the regulations.
Response:
We have not adopted the recommendation that "family members" be
defined because we prefer to decide on a case-by-case basis whether a
conflict exists between the financial interest of a particular family
member and the responsibilities of the State agency medical or
psychological consultant.
Comment:
One commenter suggested that if State agency review physicians and
psychologists get approval to perform consultative examinations, claimants
should be notified of this fact so they can object to having their
consultative examination performed by the designated physician or
psychologist.
Response:
We disagree. We believe that the claimant does not need to know that the
physician or psychologist designated to perform the consultative
examination is a State agency medical or psychological consultant. In the
following situations, State agency review physicians and psychologists
might be permitted to perform a consultative examination:
1.
When no other physician or psychologist with the prerequisite special
expertise is reasonably available. For example, the only psychiatrist in
Guam willing to perform consultative examinations is also a State agency
review physician. Similar situations exist elsewhere (especially in large
and sparsely populated States) where the limited physician population in
certain available specialties requires occasional use of a State agency
review physician to perform a consultative examination.
2.
When to do otherwise would result in inordinate scheduling delays or
extensive travel by the claimant.
3.
When, despite a large physician population to choose from, no other option
is available because of the conditions under which the consultative
examination must be performed (e.g., the consultative examination must be
performed on a claimant confined in an institution or other
facility).
In the above situations, it is to the claimant's advantage to have the
State agency review physician or psychologist perform the consultative
examination. Regulations §§ 404.1517, 404.1519j, 416.917, and
416.919j, and our operating instructions provide that the claimant or his
or her representative will be given the name of the physician or
psychologist who will perform the consultative examination and the
procedures to follow when the claimant objects to using a specific
physician or psychologist.
Comment:
One commenter suggested that we add "financial interest in a
corporation" to the list of prohibited financial interests of State
agency medical or psychological consultants or their family members to
make it clear that "corporations" were included with
"medical partnerships" and "similar
relationships."
Response:
We agree and have revised the first paragraph of §§ 404.1519q
and 416.919q to include the word "corporation."
§§ 404.1519s/416.919s
Authorizing and monitoring the consultative examination.
Comment:
Numerous commenters objected to the requirement of medical or supervisory
approval of a consultative examination authorization or purchase because
it did not recognize the professional competence of experienced disability
examiners. One commenter wanted to know if medical or supervisory approval
of the authorization of a consultative examination was going to be
required for every type of case and every adjudicator regardless of
individual consultative examination rates.
Response:
Our basic objective is to regulate to the extent necessary to assure
effective, efficient, and uniform administration of SSA's disability
programs throughout the United States.
Procedures for medical or supervisory approval of a consultative
examination authorization or purchase are necessary for every type of case
at the initial and reconsideration levels, including continuing disability
reviews, for the following reasons:
1.
It serves to help standardize and make less subjective the consultative
examination authorization and purchase process by adding an additional
level of professional review and control;
2.
It will provide additional program safeguards to help ensure that
disability claimants are not subjected to unnecessary consultative
examinations; and
3.
It will serve to keep consultative examination costs down by assuring that
only necessary procedures are ordered.
This requirement also allows a State agency flexibility in deciding which
professional review (medical or supervisory), or combination thereof, is
best for its management of the consultative examination process.
Comment:
One commenter wanted to know if this section applied to open-ended
administrative law judge authorizations. (We believe that the commenter
was referring to the fact that the State agencies are usually not supposed
to question administrative law judge requests for consultative
examinations. In other words, such requests are normally open-ended in
that they are not restricted by the judgment of the State agencies.)
Response:
Administrative law judge requests for consultative examinations will only
need to be approved by a State agency medical consultant when a
significant risk to a claimant may be involved if the examination is
performed.
Comment:
One commenter acknowledged the importance of onsite reviews but thought
they were disruptive to physicians' offices and that too many people on
the visiting team would be counterproductive. It was suggested that these
reviews be handled more like "visits" rather than
"inspections" with no more than two people on the team.
Response:
Comprehensive onsite reviews by SSA are essential to an effective and
successful consultative examination oversight process. The Secretary's
responsibility for the effective stewardship of SSA's disability programs
coupled with SSA's commitment to protect both the public welfare and the
trust fund, requires that SSA exercise ongoing consultative examination
oversight/quality reviews of every aspect of the consultative examination
process, from the consultative examination report to the consultative
examination itself. In addition, both Congress and the General Accounting
Office have called for the more comprehensive, specific, and uniform
consultative examination oversight procedures which are now reflected in
this regulation. We expect the high level of scrutiny by the public,
Congress, General Accounting Office, and other interested parties will
continue. The sensitivities of the medical/professional relationship
between the State agency and the consultative examination sources must be
held in proper perspective in view of these realities. It is for these
reasons that we have retained the consultative examination onsite review
requirements as written in the Notice of Proposed Rulemaking. These will
be conducted in a professional manner as reviews and not merely as
"visits," and the number of review team members will be
determined by the scope of that review.
Comment:
One commenter wanted a requirement that the State agency must make
unannounced monitoring visits of consultative examination providers,
particularly key providers.
Response:
We do not believe that State agencies should routinely conduct unannounced
visits to their consultative examination providers. We believe that such a
requirement is excessive and would place an unnecessary strain on the
State agencies' relationship with their consultative examination
providers. On the other hand, we recognize that situations do exist when
unannounced visits are warranted and should be made. We believe the State
agencies are usually in the best position to judge when this is necessary
and they should exercise this option when circumstances indicate it should
be used.
Comment:
Several commenters wanted the second condition under the definition of key
providers, which lists providers with practices of medicine and osteopathy
as possible consultative examination providers, to include
psychologists.
Response:
We agree with the comment and have amended the definition of key
consultative examination providers to include psychologists.
Comment:
Several commenters expressed concern about the requirement for onsite
reviews of key providers where claimants are present, causing interference
with the consultative examination and placing undue strain on the
claimant.
Response:
Obtaining the views of the claimant on the quality of consultative
examination providers is also a vital part of consultative examination
oversight. Onsite reviews provide the opportunity for face-to-face
interviews with claimants. Generally, our experience has shown that these
interviews have no adverse impact on claimants. We believe that the
comments from claimants will facilitate more effective management of
consultative examination providers, provide incentives to providers to
maintain quality examinations, and improve public relations.
Additionally, the General Accounting Office stated in its December 1985
report on the consultative examination process that "claimants'
perception of their consultative examination experience is central to the
program's overall credibility." We agree, and therefore, have also
retained this requirement for procedures for evaluating claimant reactions
to key providers. SSA's operating instructions, which were developed to
provide the State agencies with specific procedures for evaluating
claimant reactions relating to §§ 404.1519s(f)(10) and
416.919s(f)(10), require routine surveys of claimants by using various
methods (questionnaire, post card, telephone, personal interview) as soon
as possible after the consultative examination is completed and before any
decision is made on the claim. The purpose of these surveys is to obtain
the claimant's opinion on matters such as ease of location of, and
physical access to the consultative examination provider's facility;
cleanliness of the facility; courtesy and professional conduct; timeliness
and duration of the examination; and privacy of the examination.
Comment:
Another commenter thought that the regulation should be amended to require
the State agency to supply the claimant with a copy of the consultative
examination report before the State agency interviews the claimant about
his or her reaction to a key provider.
Response:
We do not believe that the regulations should be amended to require the
State agency to supply the claimant with a copy of the consultative
examination report before the State agency interviews the claimant about
his or her reaction to a key provider. SSA's basic policy is not to
release a consultative examination report directly to the claimant. SSA
has procedures to send the consultative examination report to the
claimant's treating source when the claimant authorizes SSA to do so, and
also has procedures for disclosure of the consultative examination report
to the claimant's treating source without consent when the consultative
examination uncovers a potentially life-threatening situation. The
rationale is that the consultative examination report contains information
that may prove harmful to the claimant's mental well-being, or which could
be easily misinterpreted by the claimant. SSA believes that, when it is
necessary to divulge the contents of the consultative examination report,
the information in the consultative examination report should be provided
directly to the claimant's treating source because the treating source is
in the best position to judge, in each individual case, how to explain the
information to the claimant. Additionally, in most cases, the report will
not have been completed before the State agency interviews the claimant
about his or her reaction to a key provider, and even if it were, we
believe that knowledge of its contents may jeopardize the claimant's
objectivity.
Comment:
One commenter raised concerns about the requirement of the State agency to
orient, train and review the work of new consultative examination
providers. This commenter went on to say that this is possible when the
number of consultative examination providers is relatively small, but when
the range of consultative examination providers is continually expanding
to include new treating sources, the burden of training and orienting
these potential providers becomes overwhelming. This commenter also
thought that this language is unclear and may imply to some readers that
the State agency is responsible for medical training of the consultative
physician, a responsibility clearly beyond the scope of the State
agency.
Two commenters expressed concern that a State could use this requirement
to create an obstacle to treating physicians being used as consultative
examination sources;
Response:
The intent of the regulation is to provide new consultative examination
providers with information on SSA's program requirements involving
consultative examination report content, and not to make the State agency
responsible for training the consultative physician in medical techniques,
which, we agree, is beyond the scope of the State's responsibility. We
have clarified the language in §§ 404.1519s(f)(2) and
416.919s(f)(2) of the final regulations to show that only orientation,
training, and review of new consultative examination providers are
required. Training or review of medical techniques is not included.
We recognize that the universe of consultative examination providers will
continue to expand to include new treating sources as the preferred
consultative examination providers. However, we also recognize the
unavoidable fact that the State agencies must orient, train, and review
their consultative examination providers to ensure that they are
conducting proper examinations and are providing complete reports
containing the necessary medical evidence.
The State agencies should use a common sense approach towards orientation,
training, and review of their consultative examination providers based
upon their expected frequency of use. For example, a consultative
examination physician or psychologist who is a member of the panel of
consultative examination providers that the State agency routinely uses
should receive more in-depth training, orientation, and review than a
treating source who may only be asked to perform a consultative
examination occasionally.
Comment:
One commenter thought that, to allow the State agency more latitude, this
entire section should be a recommendation rather than a mandate.
Response:
As stated earlier, the Secretary's responsibility for the effective
stewardship of SSA's disability programs, coupled with SSA's commitment to
manage these programs in a way that will be in the best interest of the
public and the trust funds, requires that SSA exercise greater management
responsibility for the consultative examination process. Therefore, this
section will remain mandatory.
Comment:
One commenter thought the regulations should contain language that a
claimant's failure to raise objections at the time of the consultative
examination does not waive objections at reconsideration or at the
administrative law judge level. This commenter also thought that there
should be a requirement that complaints about any provider (key or not)
must be referred to the State licensing authority responsible for
licensing doctors and psychologists. Another commenter stated that where
SSA finds inadequate reports from a consultative examination provider, all
cases where the provider was used should be reviewed to see if they should
be reopened, and, in cases where the claim is still being considered, or
where the decision is made not to reopen, the claimant should be informed.
The commenter thought this should be done in all cases where a provider is
no longer used because of fraud;
Response:
Although we agree that the claimant's failure to raise objections at the
time of the consultative examination does not waive objections at the
reconsideration or administrative law judge level, we see no need to
include this in the regulations. We see no purpose in referring all
complaints about consultative examination providers to the State licensing
authority, unless the complaint has something to do with the consultative
examination provider's competency to practice. We will refer any question
of competency of the physician to the State licensing authority. Where SSA
finds inadequate reports from a consultative examination provider, it
would be administratively impractical in terms of cost to routinely review
all prior cases where that provider was used or to notify the claimant. We
would not preclude such review, however. Any case in which there is a
question of fraud will be re-reviewed. When a provider is no longer used
because of fraud, it would be administratively impractical to routinely
review all prior cases when that provider was used.
404.1519t/416.919t
Consultative examination oversight.
Comment:
One commenter thought the original intent of these regulations was to
monitor the larger State agencies and wanted to know if this was still the
situation or would all State agencies be open to consultative examination
monitoring by an independent medical source. This commenter also
questioned the cost effectiveness of hiring an independent third-party
medical specialist. Another commenter wanted to know who the independent
medical specialists under contract with SSA were and if the State agency
is required to participate in their recruitment. This commenter was also
concerned about related budget considerations. Finally, one commenter
recommended that such reviews not be mandatory.
Response:
Complete and reliable medical evidence is a key element in making accurate
disability decisions. We spend considerable sums annually to obtain
consultative examinations. Because of these expenditures and the need to
obtain accurate and complete reports, it is imperative that the
consultative examinations and the accompanying reports be of the highest
quality. Therefore, it is our intent that all State agencies be open to
monitoring, including reviews by independent medical specialists under
contract with SSA, as the need arises. We believe these contractors will
demonstrate their value and cost effectiveness in providing us an
objective and credible evaluation of a consultative examination provider's
practices and competence, which in turn will help ensure the integrity and
public confidence in SSA's disability programs.
The identities of the contractors will be determined through appropriate
procedures on an "as needed" basis. The contractors could come
from various sources such as insurance companies, the American Medical
Association, and the American Psychiatric Association. State agency staff
may be asked for their advice in the selection of contractors and in
related budget considerations.
We agree with the commenter who indicated that independent reviews should
not be made mandatory and we have reflected this change in §§
404.1519t(a) and 416.919t(a).
Comment:
One commenter thought that comprehensive reviews of the State's
consultative examination management and onsite visits of consultative
examination providers should be done only at the invitation of State
agency staff.
Response:
SSA has the ultimate responsibility for oversight of the consultative
examination process. Also, as stated earlier, Congress and the General
Accounting Office have called for more comprehensive, specific, and
uniform consultative examination oversight. In order to carry out its
oversight responsibilities, SSA cannot limit itself to oversight
activities solely at the invitation of the State agencies. SSA will
undertake comprehensive reviews of State agencies periodically and
reserves the right to conduct reviews at such times as necessary to assure
compliance with pertinent Federal statutes and regulations;
Comment:
One commenter questioned the significance of including a regional
physician in the State agency review process since the commenter felt that
the regional physician could only comment on the report format,
deficiencies, or how the examination was conducted. Several commenters
also thought that the travel and contracting costs for the regional
physician would be considerable. Another commenter thought that the
requirements for regional office reviews of the State agencies may
adversely affect the relationship between State agency medical staff and
the consultative examination source as well as constitute a drain on an
already strained regional medical consultant time resource.
Response:
We agree with the commenters on the issue of regional physician
participation and are therefore, deleting the requirement for
participation by the regional medical advisor or a regional physician
delegate from the regulation.
We do not believe the State agency review requirements we are imposing
will adversely affect the relationship between State agency medical staff
and the consultative examination providers. SSA and the State agencies are
mindful of the need to preserve and foster a cooperative relationship with
the medical community.
§§ 404.1519u/416.919u
Direct purchase of medical services across State lines.
Comment:
Several commenters stated that changing our longstanding practice of using
the fee schedule of a neighboring State, as the Notice of Proposed
Rulemaking provided, when it becomes necessary to use a source in that
State for a consultative examination, will create medical relations
problems as well as greater cost and delay. According to the commenter,
these medical relations problems could occur, for example, when the
consultative examination source's payment in the neighboring State's fee
schedule is higher than the requesting State's fee schedule.
One commenter also indicated that this is not an aspect of program
administration that seriously affects our relationship with the public and
that internal program directives and understandings among the States
should suffice.
Response:
We agree with the commenters on both points and, therefore, have decided
to remove this section from the regulation. States will continue to follow
current operating policy in these situations.
§§ 404.1520/416.920
Evaluation of disability.
Comment:
One commenter indicated that mention should be made here of our policy on
multiple not severe impairments or a cross- reference to the
section.
Response:
We agree with the commenter and have amended §§ 404.1520 and
416.920 to include our policy on multiple not severe impairments.
§§ 404.1527/416.927
Evaluating medical opinions about your impairment(s) or disability.
Comment:
One commenter stated that proposed §§ 404.1527 and 416.927 were
beyond the scope of Pub. L. 98-460 and that we did not have the authority
to publish these regulations. He argued that section 9 of Pub. L. 98-460
required the Secretary to promulgate regulations addressing the standards
for consultative examinations and did not provide authority for
promulgating regulations on other issues, such as treating source
opinions. The commenter suggested that §§ 404.1527 and 416.927
be withdrawn.
Response:
This section has not been withdrawn as suggested by the commenter. We
agree that section 9 of Pub. L. 98-460, which required the Secretary to
issue regulations addressing standards for consultative examinations, does
not provide specific authority for the issuance of this provision.
However, the Secretary has general authority, under
section 205(a) of the
Act, to promulgate regulations on issues consistent with establishing the
right to benefits under the Act. Further,
section 221(k) of the Act
requires the Secretary to establish, by regulations, uniform standards to
be applied to all levels of determination, review, and adjudication in
determining whether individuals are "disabled" as defined under
the Act.
Comment:
Several commenters argued that our proposed policy in §§
404.1527(b) and (c) and 416.927(b) and (c) to give "conclusive"
weight only to treating source opinions that were "fully supported by
medically acceptable clinical and laboratory diagnostic techniques
and...not inconsistent with the other substantial medical evidence of
record" was unfair and contrary to the view of many circuits. Several
commenters pointed out that under the proposed standard such opinions
could be viewed as superfluous, since they would follow inevitably from
the known facts. Some commenters thought that the proposed standard
overlooked the fundamental principle common to decisions in their
respective circuits: That treating sources have special knowledge and
understanding of their patients by virtue of the treatment relationship.
This special knowledge is not necessarily evident in the objective medical
findings and cannot necessarily be verified by single examinations, such
as consultations, or by simply reviewing medical records. Some commenters
thought that the proposed rules would mislead adjudicators into
overlooking treating source opinions about their patients' symptomatology.
Some thought that the proposed rules would permit us to disregard most
treating source opinions. Many of the commenters pointed out that the
decisions of their respective circuits required us to adopt certain
treating source opinions unless we could overcome the opinions with other
substantial evidence.
In addition, some commenters thought that the language of the proposed
rule was unclear. They questioned what we meant by the term "fully
supported" and how we would determine whether an opinion was fully
supported. One commenter expressed a belief that the view of the Second
Circuit was based in part on a principle that adjudicators are not experts
and are, therefore, not in a position to evaluate whether treating source
opinions are supported. Commenters from other circuits generally conceded
that opinions were subject to a standard of support and that we were the
ultimate finders of the facts. Commenters from the Sixth Circuit stated
that the standards for support in their circuit were "sufficient
medical data" or "consistent with clinical or laboratory
findings." A commenter from the Seventh Circuit stated that the view
in that circuit was "fully supported by medically acceptable clinical
and laboratory diagnostic techniques and there exists no factual evidence
of bias on the part of the treating physician." A commenter from the
Tenth Circuit stated that the standard should be that "a treating
physician's opinion might be rejected if it is brief, conclusory, and
unsupported by medical evidence." However, irrespective of the
standards in their individual circuits, all of the commenters were
concerned that our proposed rules did not require adjudicators to
articulate reasons for rejecting any treating source opinions.
Response:
We believe that we have tried to be responsive to most of the comments we
have received on this subject, and that we have crafted a regulation that
is fair, balanced, and takes into account the concerns raised by the
commenters and by the courts.
As stated above, while the circuit courts vary somewhat in their
formulation of a standard on how treating source evidence is to be
considered, the majority of the circuit courts generally agree on two
basic principles. First, they agree that treating source evidence tends to
have greater value by virtue of the treating source's relationship with
the claimant, because this relationship allows the treating source to have
the best idea of how the physical or mental impairment has affected the
claimant. Second, they agree that if the Secretary decides to reject such
an opinion, he should provide the claimant with good reasons for doing so.
We have been guided by these principles in our development of the final
rule.
When we decide claims for disability benefits, we have a responsibility
(1) to be impartial; (2) to provide each claimant with the fairest
possible assessment of the evidence, and even to assist each claimant in
developing the evidence when necessary; and (3) to protect the public
interest by providing benefits only to those claimants who are truly
disabled;
We have revised our regulations to reflect these responsibilities and to
address the concerns expressed by the commenters. Consistent with our
responsibility to make correct determinations and decisions, the final
rules provide that unsupported opinions cannot be determinative. However,
we will never disregard a treating source's opinion, and we will make an
effort to obtain evidence from the source in support of the opinion.
Under the law, we are the ultimate deciders of each case. We have,
however, indicated when a treating source's opinion will be controlling.
When it is not controlling, we have provided several rules which recognize
the special status of treating sources, and which accord their opinions
greater weight—even when they are unsupported or
contradicted—than such opinions would otherwise be entitled to if
they came from a nontreating source. Moreover, consistent with the
concerns raised by the courts and in public comments, we have required our
adjudicators to provide good reasons in their notices of determination or
decision whenever they do not find a treating source's medical opinion as
to the nature or extent of an impairment to be controlling.
Comment:
Some commenters were concerned that the proposed language of §§
404.1527(b) and (c), and 416.927(b) and (c) permitted us to discount a
treating source's apparently unsupported opinion without recontacting the
source, and that the rules placed highly restrictive conditions on
obtaining additional information from treating sources.
Response:
To the contrary, recontact with treating sources to complete the case
record and to resolve any inconsistencies in the evidence is one of the
principal provisions of this set of rules.
See §§ 404.1512(d) and
416.912(d) of these final regulations. Far from being restrictive, the
intent of these rules is to require
such contacts.
Comment:
One commenter thought that the language of §§ 404.1527(b) and
(c), and 416.927(b) and (c) would encourage the inefficient and costly use
of consultative examinations.
Response:
This was not our intent. Our revisions to the regulations at §§
404.1519a and 416.919a clarify when a consultative examination will be
needed to complete a case record or to help resolve any inconsistencies.
If there is sufficient evidence in the case record to decide all of the
issues, we will not obtain a consultative examination.
Comment:
Several commenters expressed concern that, because our proposed definition
of treating source in §§ 404.1502 and 416.902 seemed to exclude
sources who had treated claimants in the past but who no longer maintained
treatment relationships, many source opinions that should be deserving of
special weight would not be entitled to such weight under proposed
§§ 404.1527 and 416.927.
Response:
We did not intend to exclude sources who had provided treatment in the
past. We have, therefore, revised our definition in §§ 404.1502
and 416.902 to include former treating sources, and it should be
understood that the provisions of §§ 404.1527 and 416.927 will
apply to opinions from these sources.
Comment:
Commenters from the Second, Sixth and Tenth Federal Judicial Circuits
expressed concern about the phrase "some extra weight" given to
the supported opinions of treating sources when resolving an inconsistency
with the evidence of record in proposed §§ 404.1527(d) and
416.927(d), stating a belief that the standard implied by the term was
inconsistent with the views of their respective circuits. One commenter
stated that the standard was contrary to the views of all relevant
circuits. Other commenters stated that the phrase was unclear and that it
would be difficult to apply.
Response:
The term "some extra weight" was actually taken from a case on
treating source evidence in the Second Circuit,
Schisler v. Heckler, 787 F.2d 76, 81, (2d Cir., 1986).
See also,
Schisler v. Bowen, 851 F.2d 43, (2d Cir., 1988).
However, we agree with the commenters that the term "some extra
weight" may be unclear. We have, therefore, clarified the regulations
by deleting the phrase and adding more detail to the rules.
We believe that the revisions make clear that our policy provides a very
specific and detailed process for evaluating medical opinions, a process
that takes into account and, in large measure, was shaped by, the kinds of
concerns raised by the circuit courts. If a particular treating source is
an individual who is more familiar with a claimant's medical condition, we
will always give special deference to the source's opinions about the
nature and degree of a claimant's impairment(s). If such an opinion is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with other substantial evidence in the
record, we will give it controlling weight. However, a treating source's
opinion does not have to be consistent with other substantial evidence,
and it does not necessarily have to be supported by objective evidence in
order to receive some special deference.
We will give greater weight to a well-supported medical opinion from a
treating source than to an equally well-supported medical opinion from
another source that is inconsistent with the treating source's opinion.
Moreover, in recognition of the special kind of knowledge and
understanding of a claimant's condition that only a treating source can
have, we will also give greater weight to a treating source's medical
opinion that is not well-supported than we would otherwise have given it
if it had come from a nontreating source. We will also never reject a
treating source's opinion simply because it is not well-supported or
because it conflicts with other substantial evidence. We will try to
recontact the source to obtain additional evidence—which may consist
of nothing more than a more detailed explanation—in support of the
opinion or to resolve the conflict.
Comment:
One commenter thought that the example we proposed in §§
404.1527(d) and 416.927(d) which describes a case involving arthritis of
the shoulder presumed that a treating source has the burden of justifying
his or her opinion while a consultative examiner need not give any such
justification.
Response:
We certainly did not intend to give the impression arrived at by the
commenter, but agree that the example could be misinterpreted. We have
therefore deleted the example and provided more detailed rules. In
general, we will not give great weight to any opinion, including a
treating source's opinion, unless we can understand the basis for the
opinion, either by reviewing the complete case record or by obtaining an
explanation from the medical source who offered the opinion.
Comment:
A significant number of the commenters took issue with the statement in
proposed §§ 404.1527(e) and 416.927(e) that we would "not
consider as conclusive nor give extra weight to medical opinions which are
not in accord with the statutory or regulatory standards for establishing
disability." Some commenters thought that this meant we would
disregard any treating source opinions that were not couched in the exact
terminology of the law or regulations; others thought that the provision
meant that we would never give any extra weight to such opinions. In
support of their interpretation of the language, several commenters
pointed to the second example at the end of the paragraph.
Response:
We agree with the commenters that the proposed language could be
misinterpreted, and have therefore deleted the examples and replaced the
entire section with new §§ 404.1527(e) and 416.927(e). We did
not intend to suggest a policy that would permit adjudicators to ignore or
reject any opinion evidence on the grounds that the opinions used the
wrong terminology.
Our final rule affirms that the ultimate determination of disability is
the Secretary's responsibility, and clarifies our policy on how we
consider opinions about "disability," "inability to
work," and other issues reserved to the Secretary, including
determinations about meeting or equalling the Listings, residual
functional capacity, the ability of claimants to perform their past
relevant work, and the ability of claimants to adjust to other work
considering their residual functional capacity together with their age,
education, and work experience. However, in response to the comments, we
have also added language to §§ 404.1527(e)(2) and 416.927(e)(2)
to indicate that we will never disregard an opinion about an issue that is
reserved to the Secretary. Furthermore, as we will do in any case in which
we have a treating source opinion that is not otherwise controlling and
that requires further explanation, we will attempt to recontact the
treating source who offers an opinion on any of these issues for
additional evidence or explanation whenever necessary. We will always
provide an explanation in our notice of determination or decision of our
reason why we have not adopted a treating source's opinion.
Comment:
One commenter noted that §§ 404.1527(e) and 416.927(e) addressed
opinions about meeting the Listings but failed to acknowledge our own
provisions for evaluating equivalencies.
Response:
The commenter was correct. We have included equivalency in our revision of
§§ 404.1527(e) and 416.927(e).
Comment:
Two commenters argued, in identical language, that the proposed rules in
§§ 404.1527(e) and 416.927(e) would permit us simply to
disregard a treating source's opinion about whether a claimant's
impairment(s) meets or equals the Listings and stated that the proposal
"ignores one of the most important sources of expert testimony"
on whether a claimant's impairments are equivalent to the requirements for
any listed impairment. A third commenter submitted what appeared to be a
paraphrase of the comment submitted by the other two commenters. All three
urged that the provision be withdrawn.
Response:
As we have indicated in previous responses, it was not our intention to
create a rule that would permit adjudicators to "disregard" or
"ignore" any treating source opinions for any reason. We have
revised the language of §§ 404.1527(e) and 416.927(e) to make
this clear.
However, we did intend to restate in the regulations our policy that
determinations of meeting the Listings and equivalency are reserved to the
Secretary. We agree with the commenters that meeting the Listings is more
a question of medical fact than a question of medical opinion. In most
instances, the requirements of listed impairments are objective, and
whether an individual manifests these requirements is simply a matter of
documentation. To the extent that treating sources are usually the best
sources of this documentation, we look to them for evidence with which we
can determine whether an individual's impairment meets the Listings, and
such evidence can have great weight in our determination. When a treating
source provides an opinion based on evidence that demonstrates that an
individual has an impairment that meets a listing, we will ordinarily
adopt the opinion unless we have a good reason to doubt it. However, since
meeting the Listings is an ultimate conclusion about disability, it is our
responsibility and we cannot give any special weight to treating source or
any other medical source opinion about whether an individual's impairment
meets the requirements of the Listings of Impairments.
We do not agree with the comment which suggests that the concept of
equivalency is strictly medical and, therefore, within the expertise of
treating sources. When we address equivalency as a "medical
consideration" in §§ 404.1526 and 416.926, and as a
determination "based...on medical facts alone" in §§
404.1520(e) and 416.920(e), we mean to distinguish Listings determinations
from determinations which consider the
nonmedical factors of past work
experience, age, and education. In fact, determinations of equivalency are
not solely medical; they also require familiarity with our regulations,
with which most physicians lack expertise. They involve findings not only
about the nature and severity of medical impairments, including associated
signs, symptoms and laboratory findings, but also about whether the
findings comport with a legal standard of severity that is not generally
understood by most physicians who are not employed by the Social Security
Administration; Social Security's concept of "equivalency" is
not taught in medical school, and it is not part of the normal practice of
medicine.
We do consider treating sources to be important sources of expert
testimony on the nature and severity of a claimant's impairments.
Moreover, we will always carefully consider treating source opinions about
whether a claimant's impairment(s) meets or equals the requirements of the
Listings. However, although treating source opinions that an impairment(s)
meets or equals the Listings may be considered to be important expert
testimony, we do not consider them to be controlling. Such an opinion, if
controlling, would amount to a determination that a claimant is under a
disability. Under the law, only the State agency or the Secretary can make
that determination. Moreover, as the first two commenters pointed out in a
separate comment, "[v]ery few treating physicians are experts at the
complexities of the Social Security disability standards."
When a treating source offers an opinion that a claimant's impairment or
impairments are equivalent in severity to an impairment in the Listings,
we will evaluate all of the evidence to determine if it supports that
opinion. If the evidence does not support the opinion and we cannot
ascertain from the record the basis of the treating source's opinion, we
will make every reasonable effort to recontact the source for
clarification of the reasons for the opinion. Also, if after the recontact
we do not agree with the opinion, we will provide an explanation of our
reasons for not adopting the opinion in our notice of determination or
decision, as we will do whenever we do not give a treating source's
opinion controlling weight. When we weigh the opinion, we will apply all
of the applicable rules in §§ 404.1527(d) and 416.927(d), which
may require us to give deference to treating source opinions on issues
which relate to the ultimate conclusion of whether a claimant's
impairment(s) is equivalent to a listed impairment, such as issues about
diagnosis, symptoms, and prognosis; but we will not give special weight to
any opinion on the ultimate conclusion regarding whether the impairment(s)
is equivalent.
Comment:
In connection with Example 2 in proposed §§ 404.1527(e) and
416.927(e), two commenters questioned the propriety of entrusting the
responsibility for assessing residual functional capacity to State agency
physicians and psychologists. Both suggested that treating sources should
be asked to provide the assessments; one requested that we amend our rules
to require State agencies to obtain such assessments from treating sources
whenever appropriate. Both commenters indicated that residual functional
capacity assessments made by nonexamining medical sources or other
personnel are given little or no weight by the courts. One of the
commenters also questioned how assessments of residual functional capacity
made by disability hearing officers, administrative law judges, and the
Appeals Council, all of whom are nonmedical adjudicators, could override
an opinion about a claimant's work capabilities submitted by a treating
source.
Response:
We have deleted both of the examples we proposed and have revised and
expanded the text of the rules.
Our regulations contain provisions describing two kinds of assessments of
what a person can do despite the presence of a severe impairment(s). One
assessment, described in §§ 404.1513(b) and (c) and 416.913(b)
and (c), is the "statement about what you can still do"
submitted by medical sources, including treating sources and consulting
examiners. Medical sources offer these statements based upon their own
records and examinations to express opinions about claimants' abilities to
perform work-related activities on a sustained basis. Although we will not
consider reports from medical sources to be incomplete without such
statements, these final rules provide that we will always request the
statements.
The second kind of assessment is the residual functional capacity
assessment. "Residual functional capacity assessment" is a term
of art in §§ 404.1545 and 416.945 and 404.1546 and 416.946
intended to describe the ultimate finding about a person's ability to do
work-related activities. It is a determination made by an adjudicator
based upon his or her review of the entire case record. Residual
functional capacity assessments are based upon consideration of all
relevant evidence in the case record, including medical evidence of which
an individual treating source may not be aware, and relevant nonmedical
evidence, such as observations of lay witnesses of a claimant's apparent
symptomatology, a claimant's own statement of what he or she is able or
unable to do, and many other factors that could help an adjudicator
determine the most reasonable findings in light of all of the
evidence.
Thus, a medical source's statement about what an individual can still do
is opinion evidence that an adjudicator considers together with all of the
other evidence when assessing a claimant's residual functional capacity.
However, a State agency medical or psychological consultant's assessment
constitutes the findings of an adjudicator based on all the evidence in
file and cannot be considered evidence by the State agency. It cannot be
weighed against the opinion of a medical source in the case file at the
initial and reconsideration levels, since the State agency medical or
psychological consultant is participating in the determination at those
levels.
The administrative determination of a claimant's residual functional
capacity may be the most critical finding contributing to the final
decision. We do ask treating sources to provide us with their opinions
about their patients' functional abilities based upon the information they
are competent to assess, their own knowledge of their patients, and we
weigh these opinions carefully. However, we would be abrogating our
responsibility under the law to decide cases independently if we were to
adopt the suggestion that we ask treating sources to make the ultimate
determination of residual functional capacity for us. The State agency
medical or psychological consultant, the administrative law judge, or the
Appeals Council is responsible for assessing residual functional
capacity.
We follow a special procedure at the hearing and appeals levels. Since
administrative law judges consider the issues that are before them
de
novo, that is, as though the cases
were being decided for the first time, findings made by State agency
medical or psychological consultants are not binding on them. Because
State agency medical or psychological consultants are highly qualified
physicians or psychologists and are experts on our program, administrative
law judges may not ignore their findings; instead, we require
administrative law judges to give consideration to these findings and to
evaluate them using the same rules as apply to the evaluation of opinions
of nonexamining medical sources. Of course, since administrative law
judges decide the issues of disability
de
novo, they will not consider any
State agency findings about whether an individual is or is not disabled,
except for opinions about whether the individual has an impairment(s)
equivalent to any listed impairment as required by §§ 404.1526
and 416.926. The same rules apply to the Appeals Council when it issues a
decision. We have added new §§ 404.1512(b)(6) and 416.912(b)(6)
and a new paragraph (f) to §§ 404.1527 and 416.927 to explain
these longstanding policies.
We agree with the commenters that it is probably true that the courts
usually give less weight to the opinions of nonexamining sources than to
the opinions of treating or other examining medical sources. In fact,
these final regulations take this into account. The regulations provide
progressively less rigorous tests for weighing opinions as the ties
between the medical source and the claimant become progressively stronger.
We generally give the most weight to the opinions of treating sources who
have known their patients for long periods or who otherwise have expert
knowledge of their patients that cannot be obtained through single
examinations or a brief relationship. The opinions of physicians or
psychologists who do not have a treatment relationship with the claimant
are weighed by stricter standards, based to a greater degree on medical
evidence, qualifications, and explanations for the opinions than are
required of treating sources or other examining sources. The opinions of
nonexamining sources can be given weight only insofar as they are
supported by evidence in the case record. This is not to say that opinions
from nonexamining sources cannot outweigh the opinions of treating
sources; rather, that we require adjudicators to have solid,
well-articulated reasons when they determine that the opinions of
nonexamining sources are entitled to greater weight than the opinions of
treating sources;
§§ 404.1545/416.945
Your residual functional capacity.
No comments were directed to this section.
§§ 404.1546/416.946
Responsibility for assessing and determining residual functional capacity.
Comment:
Several commenters suggested amending this section to be consistent with
work simplification initiatives, to have the residual functional capacity
assessment prepared by a disability examiner for review and approval by
the State agency medical consultant. One commenter said that evidence from
workshops and psychologists should be recognized and included in preparing
residual functional capacity assessments instead of restricting it to
medical evidence.
Response:
The work simplification initiative referred to in the comment has been
discontinued. There will be no change in the regulatory language because
the State agency medical consultant is the person responsible for
assessing residual functional capacity. A residual functional capacity
assessment is based on all of the medical and other relevant evidence
included in an individual's case file. Therefore, if evidence from a
workshop or psychologist is in the individual's case file, it will be
considered along with the other evidence of record. Observations of the
individual's work limitations in addition to those usually made during
formal medical examinations may also be used.
§§ 404.1593/416.993
Medical evidence in continuing disability review cases.
Comment:
One commenter stated that this section should be revised to be consistent
with other related sections of the regulations. This same commenter stated
that the termination of benefits should not occur if a beneficiary
unsuccessfully attempts to obtain reports from treating sources.
Response:
The rules for development of medical evidence that apply in determining
initial disability also apply to that portion of the continuing disability
review which involves consideration of the individual's current
impairments. We have revised this section to be consistent with
§§ 404.1512 and 416.912 of the regulations. We make special
efforts to ensure against ceasing benefits solely because the beneficiary
is unable to furnish evidence from a source for reasons beyond the
beneficiary's control.