[Federal Register Volume 83, Number 241 (Monday, December 17, 2018)]
[Proposed Rules]
[Pages 64493-64495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27169]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2018-0017]
RIN 0960-AI35


Consideration of Pain in the Disability Determination Process

AGENCY: Social Security Administration.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: We are soliciting public input to ensure that the manner in 
which we consider pain in adult and child disability claims under 
titles II and XVI of the Social Security Act (Act) remains aligned with 
contemporary medicine and health care delivery practices. Specifically, 
we are requesting public comments and supporting data related to the 
consideration of pain and documentation of pain in the medical evidence 
we use in connection with claims for benefits. We will use the 
responses to the questions below and any relevant research and data we 
obtain or receive to determine whether and how we should propose 
revisions to our current policy regarding the evaluation of pain.

DATES: To be sure that we consider your comments, we must receive them 
no later than February 15, 2019.

ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2018-0017 so 
that we may associate your comments with this ANPRM.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number 
SSA-

[[Page 64494]]

2018-0017. Once you submit your comment, the system will issue a 
tracking number to confirm your submission. You will not be able to 
view your comment immediately because we must post each comment 
manually. It may take up to a week for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Disability 
Policy, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 597-1632. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Background

    The Act defines ``disability'' for titles II and XVI as the 
inability to engage in any substantial gainful activity by reason of 
any medically determinable physical or mental impairment which can be 
expected to result in death or which has lasted or can be expected to 
last for a continuous period of not less than 12 months.\1\ We use a 
five-step sequential evaluation process to determine whether a claimant 
who files an initial claim for benefits is disabled under the Act.\2\ 
If we can make a determination or decision that a claimant is disabled 
or not disabled at a step, we do not go on to the next step.\3\ If we 
cannot make a determination or decision at a step, we continue to the 
next step in the sequential evaluation process.\4\ At various steps of 
the sequential evaluation process, we will consider both the medical 
evidence of an impairment and the claimant's descriptions of his or her 
symptoms, including pain.\5\
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    \1\ 42 U.S.C. 423(d)(1)(A) and 1382c(a)(3)(A); see also 20 CFR 
404.1505(a) and 416.905(a).
    \2\ 20 CFR 404.1520(a)(4), 416.920(a)(4), and 416.924.
    \3\ Id.
    \4\ Id.
    \5\ 20 CFR 404.1529 and 416.929.
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    Our current regulations prescribe a two-stage process for 
evaluating a claimant's pain.\6\ At stage one, we determine whether 
there is objective medical evidence showing the existence of a 
medically determinable impairment that could reasonably be expected to 
produce the pain.\7\ When the medical signs or laboratory findings show 
that a claimant has a medically determinable impairment(s) that could 
reasonably be expected to produce the pain, we proceed to stage two and 
evaluate the intensity and persistence of a claimant's pain based on 
all the evidence in the record. We consider several factors at this 
second stage, including:
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    \6\ Id.
    \7\ 20 CFR 404.1529(b) and 416.929(b).
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    <bullet> The objective medical evidence;
    <bullet> the claimant's medical history, the clinical signs and 
laboratory findings, and statements about the pain's effect on the 
claimant;
    <bullet> the claimant's daily activities;
    <bullet> the location, duration, frequency, and intensity of the 
pain;
    <bullet> any precipitating or aggravating factors;
    <bullet> the type, dosage, effectiveness, and side effects of 
medication;
    <bullet> any treatments, other than medication, the claimant 
receives or has received for relief of pain;
    <bullet> any measures the claimant uses or has used to relieve pain 
(e.g., lying flat on the back, standing for 15 to 20 minutes every 
hour, sleeping on a board, etc.); and
    <bullet> any other factors concerning functional limitations and 
restrictions due to pain.\8\
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    \8\ 20 CFR 404.1529(a), (c) and 416.929(a), (c).
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What is the purpose of this ANPRM?

    We are soliciting public comments about our rules for evaluating 
the intensity and persistence of pain and documentation of pain in the 
medical evidence as part of the disability determination process. In 
addition to seeking public input on the specific questions below, we 
are also asking for public input to help identify research and data 
that will help us ensure our policy on the evaluation of pain remains 
aligned with contemporary medicine and health care delivery practices. 
We will use the responses to the questions below and any relevant 
research and data we obtain or receive to determine whether and how we 
should propose revisions to our current policy regarding the evaluation 
of pain.

What will we consider when we decide whether to propose revisions to 
our rules?

    We will consider the public comments and any research or data 
identified in response to this solicitation. We will also consider any 
information we obtain through research or other activities intended to 
inform our policy decisions in this area, such as the National 
Disability Forum.\9\
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    \9\ Information regarding the National Disability Forum is 
available on our internet site at: https://www.ssa.gov/ndf/.
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What should you comment about?

    When we evaluate the intensity and persistence of a claimant's 
pain, we consider all of the available evidence, including the types of 
evidence discussed above. We are soliciting public input, research, and 
data about the following:
    1. Are there changes that we should consider about how we consider 
pain in the disability evaluation process? If so, what changes do you 
suggest we make? Please provide data, research, or any other evidence 
supporting your suggestions where applicable.
    2. Within the United States, which standard scales, questionnaires, 
or other methods to evaluate the intensity and persistence of pain that 
are commonly accepted in the medical community do you recommend we 
consider and why? What information exists about the efficacy or 
accuracy of those scales, questionnaires, or other methods?
    3. How is pain and documentation of pain in the medical evidence 
assessed in other Federal, State, and private disability programs?
    4. Should we evaluate chronic \10\ pain differently than acute \11\ 
pain? If so, why and how?
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    \10\ Pain that ``persist[s] over a long period of time.'' 
Chronic, Dorland's Illustrated Medical Dictionary (31st ed. 2007).
    \11\ ``[A] short and relatively severe course'' of pain. Acute, 
Dorland's Illustrated Medical Dictionary (31st ed. 2007).
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    5. Should we evaluate nociceptive \12\ pain differently than 
neuropathic \13\ pain? If so, why and how? Please submit research or 
data that support your recommendation.
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    \12\ Pain that pertains to a nociceptor, which is a receptor for 
pain caused by injury to body tissues from physical chemical 
stimuli. Nociceptive, Nociceptor, Dorland's Illustrated Medical 
Dictionary (31stth ed. 2007).
    \13\ Pain that pertains to, or is characterized by, a functional 
disturbance or pathological change in the peripheral nervous system. 
Neuropathic, Neuropathy, Dorland's Illustrated Medical Dictionary 
(31st ed. 2007).
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    6. What information and evidence is available on the effectiveness 
and side effects of the traditional and alternative

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modalities for treating pain that we should consider?
    7. Can health care utilization and treatment regimens employed by 
physicians to manage patient pain provide objective insights into the 
intensity and persistence of pain? When should those regimens not be an 
indication of the severity of an individual's pain?
    8. Is there any additional information that we should consider when 
we evaluate pain in our disability program?

Will we respond to your comments?

    We will consider all relevant public comments we receive in 
response to this notice, but we will not respond directly to them. If 
we decide to propose specific revisions to our rules, we will publish a 
notice of proposed rulemaking in the Federal Register, and you will 
have a chance to comment on any revisions we propose.

List of Subjects

20 CFR Part 404

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

List of Subjects in 20 CFR Part 416

    Administrative practice and procedure, Blind, Disability benefits, 
Supplemental Security Income, Reporting and recordkeeping requirements, 
Social Security.

Nancy A. Berryhill,
Acting Commissioner of Social Security.
[FR Doc. 2018-27169 Filed 12-14-18; 8:45 am]
 BILLING CODE 4191-02-P