[Federal Register Volume 72, Number 40 (Thursday, March 1, 2007)]
[Rules and Regulations]
[Pages 9239-9242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3577]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2006-0085]
RIN 0960-AG05


Optometrists as ``Acceptable Medical Sources'' To Establish a 
Medically Determinable Impairment

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are revising the Social Security and Supplemental Security 
Income (SSI) disability regulations regarding sources of evidence for 
establishing a medically determinable impairment under titles II and 
XVI of the Social Security Act (the Act). The revised regulations 
expand the situations in which we consider licensed optometrists to be 
``acceptable medical sources.''

DATES: These rules are effective April 2, 2007.

FOR FURTHER INFORMATION CONTACT: Art Spencer, Director, Office of 
Disability Evaluation Policy, Social Security Administration, 4465 
Annex Building, 6401 Security Boulevard, Baltimore, MD 21235-6401, 
(410) 966-5766 or TTY (410) 966-5609. 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 Web site, Social 
Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: 

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

What is an ``acceptable medical source?''

    Our rules provide that you must show that you have a medically 
determinable impairment with evidence from an ``acceptable medical 
source.'' An ``acceptable medical source'' is an individual who has the 
training and expertise to provide us with the signs and laboratory 
findings based on medically acceptable clinical and laboratory 
diagnostic techniques that establish a medically determinable physical 
or mental impairment. Our regulations identify professionals whom we 
consider to be ``acceptable medical sources.'' (See Sec. Sec.  
404.1513(a) and 416.913(a).) In our prior rules, these sections 
provided that a licensed optometrist was an ``acceptable medical 
source,'' but only for the measurement of visual acuity and visual 
fields. They further indicated that, for claims under title II, we 
might need a report from a physician to determine other aspects of eye 
diseases.
    Our rules in Sec. Sec.  404.1513(d) and 416.913(d) provide that, 
once we have established that you have a medically determinable 
impairment, we consider all other relevant evidence from other medical 
and non-medical sources, including your own statements, to determine 
its severity and how it affects you.

Why are we changing our rules?

    In the early 1990s, we discussed expanding the role of optometrists 
as ``acceptable medical sources'' with the American Optometric 
Association (AOA). However, because licensing requirements and scope of 
practice varied considerably among jurisdictions at that time, we found 
that it was not feasible for us to revise our policy.
    More recently, we again met with representatives of the AOA and 
obtained information about the education, qualifications, and State 
scope-of-practice requirements related to optometrists. Based on our 
review of accreditation and practice requirements, we have determined 
that, with the exception of the U.S. Virgin Islands, the licensing 
requirements, scope of treatment, and diagnostic protocols for licensed 
optometrists are sufficient to qualify all licensed optometrists as 
``acceptable medical sources'' for visual disorders. Therefore, it is 
now appropriate to revise our regulations to authorize licensed 
optometrists to be ``acceptable medical sources'' for visual disorders 
in all jurisdictions but the U.S. Virgin Islands.\1\
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    \1\ The U.S. Virgin Islands does not allow optometrists to 
administer or prescribe pharmaceuticals, including topical 
application of pharmaceuticals for diagnostic or treatment purposes. 
Because a complete evaluation of the eye includes the use of 
diagnostic pharmaceuticals, optometrists in the U.S. Virgin Islands 
are not qualified to perform a complete evaluation of the eye.
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    The revised regulations expand the situations in which we consider 
licensed optometrists to be ``acceptable medical sources.'' These 
revised regulations will allow us to make more decisions based on 
medical evidence supplied to us solely from optometrists, rather than 
having to purchase time-consuming and expensive consultative 
examinations with ophthalmologists. Therefore, these regulations will 
help some individuals with visual disorders qualify for benefits more 
quickly.

[[Page 9240]]

What rules are we revising?

    We are revising Sec. Sec.  404.1513(a)(3) and 416.913(a)(3) to 
provide that, except in the U.S. Virgin Islands, licensed optometrists 
are ``acceptable medical sources'' for purposes of establishing a 
medically determinable impairment for visual disorders only. However, 
we are maintaining our current rules for licensed optometrists in the 
U.S. Virgin Islands, where these individuals will continue to be 
``acceptable medical sources'' for measurement of visual acuity and 
visual fields only.

What programs do these revised regulations affect?

    These revised rules affect disability and blindness determinations 
and decisions that we make under titles II and XVI of the Act. In 
addition, to the extent that Medicare entitlement and Medicaid 
eligibility are based on whether you qualify for disability benefits 
under title II or disability or blindness under title XVI, these rules 
affect the Medicare and Medicaid programs.

Who can get disability benefits?

    Under title II of the Act, we provide for the payment of disability 
benefits if you are disabled and belong to one of the following three 
groups:
    <bullet> Workers insured under the Act,
    <bullet> Children of insured workers, and
    <bullet> Widows, widowers, and surviving divorced spouses (see 
Sec.  404.336) of insured workers.
    Under title II of the Act, you may qualify for a period of 
disability if you are insured for disability under Social Security and 
have a disability as defined in section 216(i)(1) of the Act. That 
section defines disability to include statutory blindness, for purposes 
of establishing a period of disability under title II. If we find that 
you are blind and you meet the insured status requirement, we may 
establish a period of disability for you regardless of whether you can 
do substantial gainful activity (SGA). A period of disability protects 
your earnings record under Social Security so that the time you are 
disabled will not count against you in determining whether you will 
have worked long enough to qualify for benefits and the amount of your 
benefits. See Sec. Sec.  404.320, 404.1505, 404.1581, and 404.1582.
    Under title XVI of the Act, we provide for SSI payments on the 
basis of disability or blindness if you are disabled or blind and have 
limited income and resources.

How do we define blindness?

    For both the title II and title XVI programs, the Act defines 
blindness as ``central visual acuity of 20/200 or less in the better 
eye with the use of a correcting lens. An eye which is accompanied by a 
limitation in the fields of vision such that the widest diameter of the 
visual field subtends an angle no greater than 20 degrees shall be 
considered * * * as having a central visual acuity of 20/200 or less.'' 
(See sections 216(i)(1) and 1614(a)(2) of the Act.)
    Title II of the Act does not provide a separate category of 
benefits based on blindness. However, you may be entitled to benefits 
based on disability under title II of the Act if you are blind.
    By contrast, title XVI of the Act provides for a category of 
payments based on blindness as well as a category of payments based on 
disability. If you are blind and meet the SSI income and resources 
requirements, you may be eligible for SSI payments based on blindness. 
Your blindness does not have to meet a 12-month duration requirement 
for you to be eligible for these payments. Also, there is no 
requirement that you must be unable to do any SGA. However, if you are 
working, we will consider your earnings to determine if you are 
eligible for SSI payments.

How do we decide whether you are disabled?

    If you are applying for disability benefits under title II of the 
Act, Sec.  404.1513(a) of our regulations provides that we need 
evidence from ``acceptable medical sources'' to establish whether you 
have a medically determinable impairment(s). Therefore, in general, to 
be entitled to disability benefits under title II, your blindness must 
result from a medically determinable impairment and meet the 12-month 
duration requirement. (See Sec. Sec.  404.1508, 404.1513, and 
404.1581.) Also, if you are under age 55, you must be unable to do any 
SGA. (See Sec. Sec.  404.1582 and 404.1584(b).) Even though you are 
doing SGA, we may still find that you are entitled to title II 
disability benefits if--
    <bullet> You are blind;
    <bullet> You are age 55 or older; and
    <bullet> You are unable to use skills or abilities like the ones 
you used in any SGA which you did regularly and for a substantial 
period of time. However, we will not pay you any cash benefits for any 
month in which you are doing SGA. (See Sec. Sec.  404.1583 and 
404.1584(c).)
    Section 416.913(a) of our regulations provides that if you are 
claiming benefits under title XVI on the basis of disability, not 
blindness, your disability must result from a medically determinable 
impairment documented by ``acceptable medical sources.'' However, 
blindness is treated differently under title XVI of the Act. Under 
title XVI, blindness and disability are separate categories of SSI 
payments, and the requirements for eligibility based on blindness are 
different from the requirements for eligibility based on disability. 
Under title XVI, the only evidence we need to establish statutory 
blindness is evidence showing that your visual acuity or visual field, 
in the better eye, meets the criteria described in Sec.  416.981 of our 
regulations, provided that those measurements are consistent with the 
other evidence in your case record. We do not need to determine the 
cause of your blindness for you to be eligible for SSI payments based 
on blindness. Also, as provided in Sec.  416.983, there is no duration 
requirement for statutory blindness under title XVI. Section 416.913(f) 
provides that if you are applying for benefits under title XVI on the 
basis of statutory blindness, we will require an examination by a 
physician skilled in diseases of the eye or by an optometrist, 
whichever you may select.

What is a ``medically determinable impairment?''

    We will not consider you to be disabled or blind unless you furnish 
medical and other evidence that we need to show that you are disabled 
or blind. (See sections 223(d)(5)(A) and 1614(a)(3)(H)(i) of the Act 
and Sec. Sec.  404.1512(a) and 416.912(a) of our regulations.) The Act 
requires that you show that your disability results from a medically 
determinable physical or mental impairment. A physical or mental 
impairment is an impairment that results from anatomical, 
physiological, or psychological abnormalities which are demonstrable by 
medically acceptable clinical and laboratory diagnostic techniques. 
(See sections 223(d)(3) and 1614(a)(3)(D) of the Act.) Our regulations 
provide that a physical or mental impairment must be established by 
medical evidence consisting of signs, symptoms, and laboratory 
findings. (See Sec. Sec.  404.1508 and 416.908.)

What is our authority to make rules and set procedures for determining 
whether a person is disabled under the statutory definition?

    Section 205(a) of the Act and, by reference to section 205(a), 
section 1631(d)(1) provide that:


[[Page 9241]]


    The Commissioner of Social Security shall have full power and 
authority to make rules and regulations and to establish procedures, 
not inconsistent with the provisions of this title, which are 
necessary or appropriate to carry out such provisions, and shall 
adopt reasonable and proper rules and regulations to regulate and 
provide for the nature and extent of the proofs and evidence and the 
method of taking and furnishing the same in order to establish the 
right to benefits hereunder.

What do we mean by ``final rules'' and ``prior rules?''

    Even though these rules will not go into effect until 30 days after 
publication of this notice, for clarity we refer to the changes we are 
making here as the ``final rules'' and to the rules that will be 
changed by these final rules as the ``prior rules.''

When will we start to use these final rules?

    We will use these rules on their effective date. We will continue 
to use our prior rules until the effective date of these final rules. 
When the final rules become effective, we will apply them to new 
applications filed on or after the effective date of these rules and to 
claims pending before us, as we describe below.
    As is our usual practice when we make changes to our regulations, 
we will apply these final rules on or after their effective date 
whenever we make a determination or decision, including in those claims 
in which we make a determination or decision after remand to us from a 
Federal court. With respect to claims in which we have made a final 
decision and that are pending judicial review in Federal court, we 
expect that the court's review of the Commissioner's final decision 
would be made in accordance with the rules in effect at the time the 
final decision of the Commissioner was issued. If a court reverses the 
Commissioner's final decision and remands the case for further 
administrative proceedings after the effective date of these final 
rules, we will apply the provisions of these final rules to the entire 
period at issue in the claim in our new decision issued pursuant to the 
court's remand.

Public Comments

    In the notice of proposed rulemaking (NPRM) we published in the 
Federal Register on March 1, 2006 (71 FR 10456), we provided the public 
with a 60-day comment period that ended on May 1, 2006.
    We received 25 sets of comments. The commenters included medical 
organizations, a professional association of individuals who evaluate 
and adjudicate Social Security disability claims, optometrists, and 
other individuals.
    Twenty-three commenters supported the proposed rules. Since these 
commenters did not recommend any changes to these rules, we have not 
summarized or responded to their comments below. Because some of the 
remaining comments were long, we have condensed, summarized, and 
paraphrased them below. We have tried to present the commenters' views 
adequately and to respond to the issues raised by the commenters that 
were within the scope of the rulemaking. We provide our reasons for 
adopting or not adopting the recommendations in the summaries of the 
comments and our responses below.
    Comment: A commenter disagreed with our proposed changes on the 
basis that licensed optometrists have less training than 
ophthalmologists. This commenter was concerned that the expansion of 
the definition of ``acceptable medical sources'' to include licensed 
optometrists might not be appropriate.
    Response: As we indicated in the NPRM, and as noted above, we 
obtained information about the education, qualifications, and States' 
scope-of-practice requirements related to optometrists. Based on our 
careful review of this information, we have determined that, with the 
exception of the U.S. Virgin Islands, the licensing requirements, scope 
of treatment, and diagnostic protocols for licensed optometrists are 
sufficient to qualify all licensed optometrists as ``acceptable medical 
sources'' for establishing the existence of visual disorders under our 
disability programs. Therefore, we have determined that it is 
appropriate to revise our regulations to make licensed optometrists 
``acceptable medical sources'' for establishing visual disorders in all 
jurisdictions but the U.S. Virgin Islands.
    With this change, we will be able to make more decisions based on 
existing medical evidence, without having to purchase time-consuming 
and expensive consultative examinations, thereby allowing some 
individuals with visual disorders to qualify for benefits more quickly. 
While we respect the knowledge, skills, and education of 
ophthalmologists, our research shows that optometrists are capable of 
providing the evidence, including the signs and laboratory findings, 
that we need to establish a medically determinable visual disorder.
    Comment: Two commenters disagreed with our proposed changes because 
the law and our regulations require that a disability be ``medically 
determinable.'' They believed that this meant that we should continue 
to require an examination by a treating or consulting ophthalmologist 
(M.D. or D.O.) to diagnose and establish the pathology of disorder 
causing visual impairment. One of these commenters noted the 
differences between the criteria in titles II and XVI and indicated 
that in the case of title II disability findings related to blindness, 
the evidence must show, and an ``acceptable medical source'' must 
agree, that a medical condition caused the claimant's blindness. This 
commenter believed that optometrists are not qualified to identify or 
evaluate the underlying medical cause of blindness, or to monitor, 
treat, and provide prognoses for many eye diseases that could lead to 
disabling vision loss or the likely outcomes from those interventions, 
because they are not fully knowledgeable of the potential treatments 
and lack the medical training, knowledge, and expertise needed to 
interpret the clinical and laboratory findings that would be necessary 
to diagnose a medically determinable impairment.
    Response: While we agree that title II requires that a visual 
disorder must be established by evidence from an ``acceptable medical 
source,'' the Act does not define who is an ``acceptable medical 
source.'' Instead, and as we noted in the NPRM (71 FR at 10458) and 
earlier in this preamble, Congress gave the Commissioner the authority 
to make rules and regulations that provide for ``the nature and extent 
of the proofs and evidence and the method of taking and furnishing the 
same in order to establish the right to benefits * * *.'' See sections 
205(a) and 1631(d)(1) of the Act. Under that authority, we have 
determined that, with the exception of the U.S. Virgin Islands, the 
licensing requirements, scope of treatment, and diagnostic protocols 
for licensed optometrists are sufficient to qualify all licensed 
optometrists as ``acceptable medical sources'' for establishing the 
existence of visual disorders for purposes of our disability programs, 
including for purposes of benefits under title II. We do not agree with 
these commenters that we also need evidence from a physician in these 
cases.
    Comment: One commenter questioned the differences between the 
eligibility requirements for benefits based on blindness under title 
XVI and benefits based on disability under title II and title XVI. This 
commenter noted that it is not necessary to establish the cause of the 
blindness in order to receive benefits based on blindness under title 
XVI, but it is necessary to establish the

[[Page 9242]]

cause of any visual loss in order to receive disability benefits under 
either title XVI or title II, including disability benefits based on 
blindness under title II. The commenter indicated that these 
differences, as well as the fact that there is no duration requirement 
for benefits based on blindness under title XVI while there is such a 
requirement under title II, penalize individuals who receive title II 
disability benefits based on blindness. The commenter also recommended 
that if the title XVI eligibility requirements are statutory and cannot 
be changed, we should apply them when we determine whether individuals 
are disabled based on blindness under title II.
    Response: These rules are required by the Act. ``Blindness'' and 
``disability'' are separate categories under title XVI, whereas under 
title II blindness is considered a type of ``disability.'' The 
statutory requirements for eligibility based on blindness under title 
XVI are different from the statutory requirements for eligibility based 
on disability under title II and title XVI. As a matter of law, we 
cannot apply the title XVI eligibility requirements for statutory 
blindness to title II claims for disability.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules meet the requirements for a significant 
regulatory action under Executive Order 12866, as amended by Executive 
Order 13258. Thus, they were subject to OMB review.

Regulatory Flexibility Act

    We certify that these rules will not have a significant economic 
impact on a substantial number of small entities because they will 
affect only individuals. Thus, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These rules do not impose any new or revised reporting or 
recordkeeping requirements on the public.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income.)

List of Subjects

20 CFR Part 404

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

20 CFR Part 416

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

    Dated: November 27, 2006.
Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart P of 
part 404 and subpart I of part 416 of chapter III of title 20 of the 
Code of Federal Regulations as set forth below:

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

Subpart P--[Amended]

0
1. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) 
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 
Stat. 2105, 2189.


0
2. Revise Sec.  404.1513(a)(3) to read as follows:


Sec.  404.1513  Medical and other evidence of your impairment(s).

    (a) * * *
    (3) Licensed optometrists, for purposes of establishing visual 
disorders only (except, in the U.S. Virgin Islands, licensed 
optometrists, for the measurement of visual acuity and visual fields 
only);
* * * * *

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

Subpart I--[Amended]

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

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


0
4. Revise Sec.  416.913(a)(3) to read as follows:


Sec.  416.913  Medical and other evidence of your impairment(s).

    (a) * * *
    (3) Licensed optometrists, for purposes of establishing visual 
disorders only (except, in the U.S. Virgin Islands, licensed 
optometrists, for the measurement of visual acuity and visual fields 
only). (See paragraph (f) of this section for the evidence needed for 
statutory blindness);
* * * * *
[FR Doc. E7-3577 Filed 2-28-07; 8:45 am]
BILLING CODE 4191-02-P