50270 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

to review a case is established by its

issuance of the notice of review. If it is

unable to decide within the applicable

60-day period whether to review a

decision or a dismissal, the Appeals

Council may consider the case to

determine if the decision or dismissal

should be reopened pursuant to

§ 404.987.

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND, AND DISABLED

20 CFR part 416, subpart N, is

amended as follows:

1. The authority citation for subpart N

is revised to read as follows:

Authority: Sec. 702(a)(5), 1631, and 1633

of the Social Security Act (42 U.S.C.

902(a)(5), 1383, and 1383b); sec. 304(g), Pub.

L. 96–265, 94 Stat. 456 (42 U.S.C. 421 note).

2. Section 416.1469 is revised to read

as follows:

§ 416.1469 Appeals Council initiates

review.

(a) General. Anytime within 60 days

after the date of a decision or dismissal

that is subject to review under this

section, the Appeals Council may

decide on its own motion to review the

action that was taken in your case. We

may refer your case to the Appeals

Council for it to consider reviewing

under this authority.

(b) Identification of cases. We will

identify a case for referral to the

Appeals Council for possible review

under its own-motion authority before

we effectuate a decision in the case. We

will identify cases for referral to the

Appeals Council through random and

selective sampling techniques, which

we may use in association with

examination of the cases identified by

sampling. We will also identify cases for

referral to the Appeals Council through

the evaluation of cases we conduct in

order to effectuate decisions.

(1) Random and selective sampling

and case examinations. We may use

random and selective sampling to

identify cases involving any type of

action (i.e., wholly or partially favorable

decisions, unfavorable decisions, or

dismissals) and any type of benefits (i.e.,

benefits based on disability and benefits

not based on disability). We will use

selective sampling to identify cases that

exhibit problematic issues or fact

patterns that increase the likelihood of

error. Our selective sampling

procedures will not identify cases based

on the identity of the decisionmaker or

the identity of the office issuing the

decision. We may examine cases that

have been identified through random or

selective sampling to refine the

identification of cases in which the

action taken may not be supported by

the record.

(2) Identification as a result of the

effectuation process. We may refer a

case requiring effectuation to the

Appeals Council if the decision cannot

be effectuated because it contains a

clerical error affecting the outcome of

the claim; the decision is clearly

inconsistent with the Social Security

Act, the regulations, or a published

ruling; or the decision is unclear

regarding a matter that affects the

claim’s outcome.

(c) Referral of cases. We will make

referrals that occur as the result of a case

examination or the effectuation process

in writing. The written referral based on

the results of such a case examination

or the effectuation process will state the

referring component’s reasons for

believing that the Appeals Council

should review the case on its own

motion. Referrals that result from

selective sampling without a case

examination may be accompanied by a

written statement identifying the

issue(s) or fact pattern that caused the

referral. Referrals that result from

random sampling without a case

examination will only identify the case

as a random sample case.

(d) Appeals Council’s action. If the

Appeals Council decides to review a

decision or dismissal on its own motion,

it will mail a notice of review to all the

parties as provided in § 416.1473. The

Appeals Council will include with that

notice a copy of any written referral it

has received under paragraph (c) of this

section. The Appeals Council’s decision

to review a case is established by its

issuance of the notice of review. If it is

unable to decide within the applicable

60-day period whether to review a

decision or dismissal, the Appeals

Council may consider the case to

determine if the decision or dismissal

should be reopened pursuant to

§ 416.1487.

[FR Doc. 97–25365 Filed 9–24–97; 8:45 am]

BILLING CODE 4190–29–U

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Regulations Nos. 4 and 16]

RIN 0960–AE56

Federal Old-Age, Survivors, and

Disability Insurance and Supplemental

Security Income for the Aged, Blind,

and Disabled; Evaluating Opinion

Evidence

AGENCY: Social Security Administration.

ACTION: Proposed rules.

SUMMARY: We propose to revise the

Social Security and supplemental

security income (SSI) regulations about

the evaluation of medical opinions to

clarify how administrative law judges

and the Appeals Council are to consider

opinion evidence from State agency

medical and psychological consultants,

other program physicians and

psychologists, and medical experts we

consult in claims for disability benefits

under titles II and XVI of the Social

Security Act (the Act). We also propose

to define or clarify several terms used in

our regulations and to delete other

terms.

DATES: To be sure that your comments

are considered, we must receive them

no later than November 24, 1997.

ADDRESSES: Comments should be

submitted in writing to the

Commissioner of Social Security, P.O.

Box 1585, Baltimore, MD 21235, sent by

telefax to (410) 966–2830, sent by E-mail

to ‘‘regulations@ssa.gov,’’ or delivered

to the Division of Regulations and

Rulings, Social Security Administration,

3–B–1 Operations Building, 6401

Security Boulevard, Baltimore, MD

21235, between 8:00 a.m. and 4:30 p.m.

on regular business days. Comments

may be inspected during these same

hours by making arrangements with the

contact person shown below.

FOR FURTHER INFORMATION CONTACT:

Richard M. Bresnick, Legal Assistant,

Division of Regulations and Rulings,

Social Security Administration, 6401

Security Boulevard, Baltimore, MD

21235, (410) 965–1758 for information

about these rules. For information on

eligibility or filing for benefits, call our

national toll-free number, 1–800–772–

1213.

SUPPLEMENTARY INFORMATION: The Act

provides, in title II, for the payment of

disability benefits to persons insured

under the Act. Title II also provides,

under certain circumstances, for the

payment of child’s insurance benefits

based on disability and widow’s and

widower’s insurance benefits for

disabled widows, widowers, and

surviving divorced spouses of insured

persons. In addition, the Act provides,

in title XVI, for SSI payments to persons

who are aged, blind, or disabled and

who have limited income and resources.

For adults under both the title II and

title XVI programs (including persons

claiming child’s insurance benefits

based on disability under title II),

‘‘disability’’ means the inability to

engage in any substantial gainful

activity. For an individual under age 18

claiming SSI benefits based on
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules 50271

disability, ‘‘disability’’ means that an

impairment(s) causes ‘‘marked and

severe functional limitations.’’ Under

both title II and title XVI, disability

must be the result of a medically

determinable physical or mental

impairment(s) that can be expected to

result in death or that has lasted or can

be expected to last for a continuous

period of at least 12 months.

Explanation of Proposed Revisions

Proposals To Simplify and Clarify

Terms

The current regulations use several

terms to refer to sources of medical

evidence. Regulations §§ 404.1502 and

416.902, ‘‘General definitions and terms

for this subpart,’’ define the terms

‘‘source of record,’’ ‘‘medical sources’’

(which include ‘‘consultative

examiners’’), and ‘‘treating source.’’

These terms are used in various sections

of the regulations in subpart P of part

404 and subpart I of part 416, chiefly

§§ 404.1527 and 416.927, ‘‘Evaluating

medical opinions about your

impairment(s) or disability.’’ In

addition, §§ 404.1519 and 416.919 use

the phrase ‘‘a treating physician or

psychologist, another source of record,

or an independent source.’’ Regulations

§§ 404.1527 and 416.927 also employ

the terms ‘‘nontreating source’’ and

‘‘nonexamining source.’’

In paragraph (a) of §§ 404.1513 and

416.913 of our regulations, we say that

we need reports about the individual’s

impairments from ‘‘acceptable medical

sources’’ and we identify the sources

who are acceptable medical sources. We

need various terms for acceptable

medical sources in only three, specific

instances: (1) When we explain the

preference we give to obtaining

evidence from treating sources, (2) when

we explain the preference we give to

treating sources to perform consultative

examinations, and (3) in our rules for

weighing opinions from acceptable

medical sources. In the first two cases,

the only definition that is needed is the

definition of a ‘‘treating source.’’ In the

last case, relevant distinctions are

needed between treating sources,

nontreating sources (i.e., acceptable

medical sources, such as some

consultative examiners, who have

examined an individual but not

provided treatment), and nonexamining

sources (i.e., acceptable medical sources

who have provided opinion evidence

but who have not treated or examined

the individual).

Therefore, we propose to simplify and

clarify the terms we use to describe

various acceptable medical sources of

evidence, including medical opinion

evidence (i.e., opinions on the nature

and severity of an individual’s

impairment(s)—see current

§§ 404.1527(a)(2) and 416.927(a)(2)) and

other opinions (e.g., opinions on issues

reserved to the Commissioner—see

current §§ 404.1527(e) and 416.927(e)),

by using only four terms: Treating

source, nontreating source,

nonexamining source, and an overall

term, ‘‘acceptable medical source,’’

which would include all three types of

sources. These proposals would not

change our current policy, but are only

intended to clarify our intent.

To do this, we propose to define the

term ‘‘acceptable medical source’’ in

§§ 404.1502 and 416.902. This is a term

we have used for many years in

§§ 404.1513(a) and 416.913(a). We also

propose to redefine the term ‘‘medical

sources’’ to mean acceptable medical

sources, or other health care providers

who are not ‘‘acceptable medical

sources,’’ to clarify our intent in certain

regulations sections. For instance, under

the rules in §§ 404.1519, 404.1519g,

416.919, and 416.919g, we may select a

qualified medical source who is not an

‘‘acceptable medical source’’ to perform

a consultative examination; e.g., an

audiologist or speech and language

pathologist.

We also propose to add definitions for

the terms ‘‘nonexamining source’’ and

‘‘nontreating source,’’ now used in

§§ 404.1527 and 416.927, which are not

currently defined in regulations. We

propose to clarify the definition of

‘‘treating source’’ to include the other

acceptable medical sources identified in

§§ 404.1513(a) and 416.913(a) in

addition to licensed physicians or

licensed or certified psychologists, and,

consistent with use of the word

‘‘evaluation’’ in the first sentence of the

current definition in §§ 404.1502 and

416.902, to clarify that a source who

only examines and evaluates an

individual on an ongoing basis, but who

does not provide any treatment, may

also be a ‘‘treating source.’’

We propose to delete the term ‘‘source

of record’’ because sources previously

included in the definition of that term

are included in the definition of the

terms ‘‘acceptable medical source’’ or

‘‘medical source’’ and the term ‘‘source

of record’’ is not needed.

Clarification of §§ 404.1527 and 416.927

We propose to clarify, consistent with

our original intent, paragraph (f) of

§§ 404.1527 and 416.927. As we

explained in the preamble to the current

rules published in the Federal Register

on August 1, 1991 (56 FR 36932, 36937),

the purpose of paragraph (f) is to: (1)

Explain how we consider evidence from

various kinds of nonexamining sources

(e.g., State agency medical and

psychological consultants, other

program physicians and psychologists,

and medical advisors—now called

‘‘medical experts’’—at the

administrative law judge hearings and

Appeals Council levels of

administrative review), (2) clarify the

role of the State agency medical and

psychological consultant at the various

levels of the administrative review

process, and (3) codify in regulations

our longstanding policy that, because

State agency medical and psychological

consultants are highly qualified

physicians and psychologists who are

also experts in Social Security disability

evaluation, administrative law judges

will consider their findings with regard

to the nature and severity of an

individual’s impairment as opinions of

nonexamining physicians and

psychologists.

Sections 404.1527(f) and 416.927(f) of

the current regulations state that

administrative law judges and the

Appeals Council are required to

consider State agency medical and

psychological consultant findings about

the existence and severity of an

individual’s impairment(s), the

existence and severity of an individual’s

symptoms, whether an individual’s

impairment(s) meets or equals the

requirements for any impairment listed

in appendix 1 to subpart P of part 404,

and an individual’s residual functional

capacity. We recently restated and

clarified these provisions of the

regulations in Social Security Ruling

(SSR) 96–6p, ‘‘Titles II and XVI:

Consideration of Administrative

Findings of Fact by State Agency

Medical and Psychological Consultants

and Other Program Physicians and

Psychologists at the Administrative Law

Judge and Appeals Council Levels of

Administrative Review; Medical

Equivalence.’’ (61 FR 34466, July 2,

1996.)

Consistent with our statements in the

1991 preamble to the current regulations

and the clarifications in SSR 96–6p, we

propose the following revisions to

paragraph (f) of §§ 404.1527 and

416.927. We also propose conforming

revisions to paragraphs (d)(6) and (e).

None of these proposed revisions is

intended to change our current policies.

Because paragraph (f) refers to the

rules in paragraphs (a) through (e) of

§§ 404.1527 and 416.927, which

collectively address both medical

opinions (as described in paragraph

(a)(2) of §§ 404.1527 and 416.927) and

opinions on issues reserved to the

Commissioner of Social Security (the

Commissioner), it is inaccurate to refer
50272 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

in paragraph (f) solely to opinions on

the ‘‘nature and severity of a person’s

impairment(s).’’ Therefore, we propose

to delete the phrase ‘‘on the nature and

severity of your impairments’’ from the

introductory text of paragraph (f). We

also propose to revise paragraph (f)(2) to

provide more detail on how

administrative law judges are to

consider the opinions of State agency

medical and psychological consultants,

other program physicians and

psychologists, and medical experts we

consult. The proposal would divide

paragraph (f)(2) into an introductory

paragraph and new paragraphs (f)(2)(i)

through (f)(2)(iii), which would provide

a more detailed explanation of how

opinions from these sources are to be

evaluated. The introductory text of

paragraph (f)(2) and, when appropriate,

paragraphs (f)(2)(i) through (f)(2)(iii),

include reference to ‘‘other program

physicians and psychologists’’ and the

term ‘‘medical expert’’ for consistency

with the current or proposed language

in paragraph (b)(6) of §§ 404.1512 and

416.912.

We propose to clarify in new

paragraph (f)(2)(i) that, because State

agency medical and psychological

consultants and other program

physicians and psychologists are highly

qualified physicians and psychologists

who are also experts in Social Security

disability evaluation, administrative law

judges must consider findings of these

experts, except for the ultimate

determination of disability, when they

make their disability decisions. We

propose to state in new paragraph

(f)(2)(ii) that when administrative law

judges evaluate the findings of these

experts, they will use the relevant

factors set forth in paragraphs (a)

through (e) of §§ 404.1527 and 416.927.

In paragraph (f)(2)(ii) we also propose

to provide examples of the kinds of

factors that an administrative law judge

must consider when evaluating the

findings of State agency medical and

psychological consultants or other

program physicians and psychologists.

We also propose to clarify that

administrative law judges are required

to explain in their decisions the weight

given to any opinion of a State agency

medical or psychological consultant or

other program physician or

psychologist, as they must do for any

opinions from treating sources,

nontreating sources, and nonexamining

sources who do not work for us.

In new paragraph (f)(2)(iii), we

propose to substitute the term ‘‘medical

expert’’ for ‘‘medical advisor’’ for the

reason explained below about paragraph

(b)(6) of §§ 404.1512 and 416.912. We

also propose to make it clear in new

paragraph (f)(2)(iii) that when

administrative law judges consider

opinions from medical experts they

consult they will use the rules in

paragraphs (a) through (e) of

§§ 404.1527 and 416.927.

We also propose to amend paragraph

(d)(6) of §§ 404.1527 and 416.927 by

adding two examples of other factors

that can affect the weight we give to a

medical opinion. The amount of Social

Security disability programs expertise

an acceptable medical source has is a

relevant factor that is consistent with

the examples we propose to provide in

paragraph (f)(2)(ii). This would include

acceptable medical sources who are

currently medical or psychological

consultants and those who had been

medical or psychological consultants, or

other program physicians or

psychologists, in the past. Another

relevant factor is whether a source

reviewed the individual’s entire case

record before providing a medical

opinion. Both of these are relevant

factors that we will consider in deciding

the weight to give to a medical opinion

from any acceptable medical source.

We also propose to amend paragraph

(e) of §§ 404.1527 and 416.927 by

adding an introductory paragraph to

distinguish opinions on issues reserved

to the Commissioner from medical

opinions, and by designating the last

sentence of paragraph (e)(2) as new

paragraph (e)(3) to make it clear that the

rule in new paragraph (e)(3) applies to

an opinion about disability described in

paragraph (e)(1) as well as to an opinion

on any issue reserved to the

Commissioner described in paragraph

(e)(2).

Other Changes

Sections 404.1502 and 416.902

General Definitions and Terms for This

Subpart

In §§ 404.1502 and 416.902, we

propose to clarify, consistent with

current §§ 404.602 and 416.302, the

definition of the term ‘‘you’’ to more

accurately indicate that the definition

includes the person for whom an

application is filed because the person

who files an application may be filing

it on behalf of another person.

Also, in keeping with the President’s

goal of streamlining and simplifying

regulations, we propose to delete the

term ‘‘Secretary’’ and its definition from

§ 404.1502 and to delete the terms

‘‘Commissioner’’ (see 62 FR 6408,

February 11, 1997) and ‘‘Secretary’’

from § 416.902 because we define these

terms for the entire parts 404 and 416

in §§ 404.2(b) and 416.120(b).

Sections 404.1512 and 416.912

Evidence of Your Impairment

We propose to amend §§ 404.1512

and 416.912 by revising paragraph (b)(6)

to delete the word ‘‘certain’’ to clarify

that every finding made by State agency

medical or psychological consultants

and other program physicians or

psychologists and the opinions of

medical experts, other than the ultimate

determination about whether an

individual is disabled, is evidence that

an administrative law judge and the

Appeals Council must consider at the

administrative law judge and Appeals

Council levels of review. We also

propose to change the term ‘‘medical

advisor’’ to ‘‘medical expert’’ because

the latter is the term we currently use

to describe these nonexamining sources

we consult at the administrative law

judge and Appeals Council levels.

Sections 404.1513 and 416.913

Medical Evidence of Your Impairment

We propose to revise paragraph (c) of

§§ 404.1513 and 416.913 to codify our

policy interpretation that, at the

administrative law judge and Appeals

Council levels of review, ‘‘statements

about what you can still do,’’ which we

also call ‘‘medical source statements,’’

include residual functional capacity

assessments made by State agency

medical and psychological consultants

and other program physicians and

psychologists. This is because they

become opinion evidence of

nonexamining physicians and

psychologists at the hearings and

appeals levels. (See SSR 96–6p, 61 FR

34466, 34468.)

Because paragraphs (b) and (c) relate

to the reports about an individual’s

impairment(s) needed from acceptable

medical sources described in paragraph

(a), we propose to clarify paragraphs

(b)(6), (c)(1) and (c)(2) of § 404.1513 and

paragraphs (b)(6), (c)(1), (c)(2), and (c)(3)

of § 416.913 to refer to findings and

opinions of the ‘‘acceptable medical

source,’’ rather than findings and

opinions of the ‘‘medical source.’’ We

also propose to clarify paragraphs (c)(1)

and (c)(2) of § 416.913 by indicating that

they pertain only to adults, to make the

construction of these paragraphs

parallel to that of paragraph (c)(3),

which pertains only to children.

Sections 404.1519 and 416.919 The

Consultative Examination

We propose to revise §§ 404.1519 and

416.919 to substitute the terms ‘‘treating

source’’ and ‘‘medical source’’ for the

terms ‘‘treating physician or

psychologist,’’ ‘‘source of record’’ and
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules 50273

‘‘independent source’’ in the first

sentence.

Sections 404.1519g and 416.919g Who

We Will Select To Perform a

Consultative Examination

We propose to revise paragraph (a) to

refer in the last sentence to §§ 404.1513

and 416.913, rather than §§ 404.1513(a)

and 416.913(a), for the reasons

explained above about the proposed

revised definition of ‘‘medical source’’

in §§ 404.1502 and 416.902. For the

same reason, we would also change the

phrase ‘‘physician or psychologist’’ in

the first sentence of paragraph (c) to

‘‘medical source.’’

Sections 404.1519h and 416.919h

Your Treating Physician or Psychologist

We propose to revise the heading and

text of these sections to substitute the

term ‘‘treating source’’ for the term

‘‘treating physician or psychologist.’’

Sections 404.1519i and 416.919i Other

Sources for Consultative Examinations

We propose to revise the text of these

sections to substitute the term ‘‘treating

source’’ for the term ‘‘treating physician

or psychologist.’’

Sections 404.1519j and 416.919j

Objections to the Designated Physician

or Psychologist

We propose to revise the heading and

text of these sections to use the term

‘‘medical source,’’ rather than the

phrase ‘‘physician or psychologist,’’ for

the reasons explained above.

Sections 404.1519k and 416.919k

Purchase of Medical Examinations,

Laboratory Tests, and Other Services

We propose to revise the introductory

paragraph of these sections to use the

term ‘‘medical source,’’ rather than the

phrase ‘‘licensed physician or

psychologist, hospital or clinic’’ for the

reasons explained above.

Sections 404.1519m and 416.919m

Diagnostic Tests or Procedures

We propose to revise the first

sentence of these sections to substitute

the term ‘‘treating source’’ for the term

‘‘treating physician or psychologist.’’

We also propose to revise the last

sentence to use the term ‘‘medical

source,’’ rather than the phrase

‘‘physician or psychologist,’’ for the

reasons explained above.

Sections 404.1519n and 416.919n

Informing the Examining Physician or

Psychologist of Examination

Scheduling, Report Content, and

Signature Requirements

We propose to revise the heading,

introductory paragraph, and paragraphs

(a), (b), (c), and (e) to use the term

‘‘medical source,’’ rather than the

phrase ‘‘physician or psychologist,’’ for

the reasons explained above. We would

also add a heading to paragraph (a) for

consistency with the other paragraphs

in this section. In addition, we would

revise paragraph (c)(6) to insert language

that we intended to include, as

explained in our statements in the 1991

preamble (56 FR 36932, 36934, August

1, 1991) to the current regulations, but

inadvertently omitted, to ensure that

although medical source statements

about what an individual can still do

despite his or her impairment(s) should

ordinarily be requested as part of the

consultative examination process, the

absence of such a statement in a

consultative examination report does

not make the report incomplete.

Sections 404.1519o and 416.919o

When a Properly Signed Consultative

Examination Report Has Not Been

Received

We propose to revise paragraphs (a)

and (b) to use the term ‘‘medical

source,’’ rather than the phrase

‘‘physician or psychologist,’’ for the

reasons explained above.

Sections 404.1519p and 416.919p

Reviewing Reports of Consultative

Examinations

We propose to revise paragraph (b) to

use the term ‘‘medical source,’’ rather

than the phrase ‘‘physician or

psychologist,’’ for the reasons explained

above. We would revise paragraph (c) to

correct the grammar in the first sentence

by substituting the word ‘‘when’’ for the

word ‘‘where.’’ We also propose to

substitute the term ‘‘treating source’’ for

the term ‘‘treating physician or

psychologist.’’

Sections 404.1519s and 416.919s

Authorizing and Monitoring the

Consultative Examination

We propose to revise paragraph (e)(2)

to refer to a consultative examination

provider’s ‘‘practice,’’ rather than to a

‘‘practice of medicine, osteopathy, or

psychology,’’ for the reasons explained

above about the definition of ‘‘medical

source.’’ For the same reasons, we

would also use the term ‘‘medical

sources’’ in paragraph (f)(6), rather than

the phrase ‘‘physicians and

psychologists.’’

Sections 404.1527 and 416.927

Evaluating Medical Opinions About

Your Impairment(s) or Disability

We propose to change the heading of

§§ 404.1527 and 416.927 from

‘‘Evaluating medical opinions about

your impairment(s) or disability’’ to

‘‘Evaluating opinion evidence’’ to more

accurately identify the content of these

sections. Under current

§§ 404.1527(a)(2) and 416.927(a)(2), the

term ‘‘medical opinion’’ means

statements from acceptable medical

sources that reflect judgments about the

nature and severity of an individual’s

impairments, but §§ 404.1527 and

416.927 address other types of opinions,

too.

We propose to revise the third

sentence of paragraph (d)(2) of

§§ 404.1527 and 416.927 to clarify that

the ‘‘other factors’’ referenced in

paragraph (d)(6) will be considered

along with the factors in paragraphs

(d)(2) (i) and (ii) and paragraphs (d)(3)

through (d)(5) of this section when we

do not give a treating source’s medical

opinion controlling weight. As

indicated by the current introductory

text to §§ 404.1527(d) and 416.927(d),

exclusion of reference to paragraph

(d)(6) was an inadvertent omission

when the current rule was published.

(56 FR 36932, August 1, 1991.)

We propose to change the heading of

paragraph (e) in §§ 404.1527 and

416.927 to reflect that the

Commissioner, not the Secretary of

Health and Human Services, has the

authority on these issues pursuant to

section 702(a)(5) of the Act as amended

by section 102 of the Social Security

Independence and Program

Improvements Act of 1994, Public Law

103–296, enacted on August 15, 1994.

We also propose to change the second

sentence of paragraph (e)(2) to substitute

the term ‘‘medical sources’’ for the

phrase ‘‘treating and examining

sources’’ to be consistent with the use

of the term ‘‘medical sources’’ in the

first sentence of paragraph (e)(2) and to

clarify that we consider opinions from

all medical sources on the issues

described in the second sentence.

We also propose to shorten the

heading of paragraph (f) of §§ 404.1527

and 416.927 to ‘‘Opinions of

nonexamining sources,’’ consistent with

the proposed definitions in §§ 404.1502

and 416.902. For the same reason, we

propose to substitute the term

‘‘nonexamining sources’’ for

‘‘nonexamining physicians and

psychologists’’ in the first sentence of

paragraph (f).

Electronic Versions

The electronic file of this document is

available on the Federal Bulletin Board

(FBB) at 9:00 a.m. on the date of

publication in the Federal Register. To

download the file, modem dial (202)

512–1387. The FBB instructions will

explain how to download the file and

the fee. This file is in WordPerfect and
50274 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

will remain on the FBB during the

comment period.

Regulatory Procedures

Executive Order 12866

We have consulted with the Office of

Management and Budget (OMB) and

determined that these proposed rules do

not meet the criteria for a significant

regulatory action under Executive Order

12866. Therefore, they are not subject to

OMB review.

Regulatory Flexibility Act

We certify that these proposed

regulations will not have a significant

economic impact on a substantial

number of small entities because they

affect only individuals. Therefore, a

regulatory flexibility analysis as

provided in the Regulatory Flexibility

Act, as amended, is not required.

Paperwork Reduction Act

These proposed regulations impose

no additional reporting or

recordkeeping requirements subject to

OMB clearance.

(Catalog of Federal Domestic Assistance

Program Nos. 96.001, Social SecurityDisability Insurance; 96.002, Social SecurityRetirement 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,

Supplemental Security Income (SSI),

Reporting and recordkeeping

requirements.

Dated: September 12, 1997.

John J. Callahan,

Acting Commissioner of Social Security.

For the reasons set out in the

preamble, we propose to amend subpart

P of part 404 and subpart I of part 416

of 20 CFR chapter III as set forth below:

PART 404—FEDERAL OLD-AGE,

SURVIVORS AND DISABILITY

INSURANCE (1950– )

Subpart P—[Amended]

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.

2. Section 404.1502 is amended by

removing the term ‘‘Source of record’’

and its definition, revising the

definitions of ‘‘Medical sources’’ and

‘‘Treating source,’’ changing the term

‘‘You’’ to ‘‘You or your’’ and revising its

definition, and adding definitions in the

appropriate alphabetical order for the

terms ‘‘Acceptable medical source,’’

‘‘Nonexamining source,’’ and

‘‘Nontreating source’’ to read as follows:

§ 404.1502 General definitions and terms

for this subpart.

As used in the subpart—

Acceptable medical source refers to

one of the sources described in

§ 404.1513(a) who provides evidence

about your impairments. It includes

treating sources, nontreating sources,

and nonexamining sources.

Medical sources refers to acceptable

medical sources, or other health care

providers who are not acceptable

medical sources.

Nonexamining source means a

physician, psychologist, or other

acceptable medical source who has not

examined you but provides a medical or

other opinion in your case. At the

administrative law judge hearing and

Appeals Council levels of the

administrative review process, it

includes State agency medical and

psychological consultants, other

program physicians and psychologists,

and medical experts we consult. See

§ 404.1527.

Nontreating source means a

physician, psychologist, or other

acceptable medical source who has

examined you but does not have, or did

not have, an ongoing treatment

relationship with you. The term

includes an acceptable medical source

who is a consultative examiner for us,

when the consultative examiner is not

your treating source. See § 404.1527.

* * * * *

Treating source means your own

physician, psychologist, or other

acceptable medical source who provides

you, or has provided you, with medical

treatment or evaluation and who has, or

has had, an ongoing treatment

relationship with you. Generally, we

will consider that you have an ongoing

treatment relationship with an

acceptable medical source when the

medical evidence establishes that you

see, or have seen, the source with a

frequency consistent with accepted

medical practice for the type of

treatment and/or evaluation required for

your medical condition(s). We may

consider an acceptable medical source

who has treated or evaluated you only

a few times or only after long intervals

(e.g., twice a year) to be your treating

source if the nature and frequency of the

treatment or evaluation is typical for

your condition(s). We will not consider

an acceptable medical source to be your

treating source if your relationship with

the source is not based on your medical

need for treatment or evaluation, but

solely on your need to obtain a report

in support of your claim for disability.

In such a case, we will consider the

acceptable medical source to be a

nontreating source.

* * * * *

You or your means, as appropriate,

the person who applies for benefits or

for a period of disability, the person for

whom an application is filed, or the

person who is receiving benefits based

on disability or blindness.

3. Section 404.1512 is amended by

revising paragraph (b)(6) to read as

follows:

§ 404.1512 Evidence of your impairment.

* * * * *

(b) * * *

(6) At the administrative law judge

and Appeals Council levels, findings,

other than the ultimate determination

about whether you are disabled, made

by State agency medical or

psychological consultants and other

program physicians or psychologists,

and opinions expressed by medical

experts we consult based on their

review of the evidence in your case

record. See §§ 404.1527(f)(2) and (f)(3).

* * * * *

4. Section 404.1513 is amended by

revising the first sentence of paragraph

(b)(6) and paragraph (c) to read as

follows:

§ 404.1513 Medical evidence of your

impairment.

* * * * *

(b) * * *

(6) A statement about what you can

still do despite your impairment(s)

based on the acceptable medical

source’s findings on the factors under

paragraphs (b)(1) through (b)(5) of this

section (except in statutory blindness

claims). * * *

(c) Statements about what you can

still do. At the administrative law judge

and Appeals Council levels, we will

consider residual functional capacity

assessments made by State agency

medical and psychological consultants

and other program physicians and

psychologists to be ‘‘statements about

what you can still do’’ made by

nonexamining physicians and
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules 50275

psychologists based on their review of

the evidence in the case record.

Statements about what you can still do

(based on the acceptable medical

source’s findings on the factors under

paragraphs (b)(1) through (b)(5) of this

section) should describe, but are not

limited to, the kinds of physical and

mental capabilities listed below. See

§§ 404.1527 and 404.1545(c).

(1) The acceptable medical source’s

opinion about your ability, despite your

impairment(s), to do work-related

activities such as sitting, standing,

walking, lifting, carrying, handling

objects, hearing, speaking, and traveling;

and

(2) In cases of mental impairment(s),

the acceptable medical source’s opinion

about your ability to understand, to

carry out and remember instructions,

and to respond appropriately to

supervision, coworkers, and work

pressures in a work setting.

* * * * *

5. Section 404.1519 is amended by

revising the first sentence to read as

follows:

§ 404.1519 The consultative examination.

A consultative examination is a

physical or mental examination or test

purchased for you at our request and

expense from a treating source or

another medical source, including a

pediatrician when appropriate. * * *

6. Section 404.1519g is amended by

revising the last sentence of paragraph

(a) and the first sentence of paragraph

(c) to read as follows:

§ 404.1519g Who we will select to perform

a consultative examination.

(a) * * * For a more complete list of

medical sources, see § 404.1513.

* * * * *

(c) The medical source we choose

may use support staff to help perform

the consultative examination. * * *

7. Section 404.1519h is revised to

read as follows:

§ 404.1519h Your treating source.

When in our judgment your treating

source is qualified, equipped, and

willing to perform the additional

examination or tests for the fee schedule

payment, and generally furnishes

complete and timely reports, your

treating source will be the preferred

source to do the purchased examination.

Even if only a supplemental test is

required, your treating source is

ordinarily the preferred source.

8. Section 404.1519i is revised to read

as follows:

§ 404.1519i Other sources for consultative

examinations.

We will use a source other than your

treating source for a purchased

examination or test in situations

including, but not limited to, the

following situations:

(a) Your treating source prefers not to

perform such an examination or does

not have the equipment to provide the

specific data needed;

(b) There are conflicts or

inconsistencies in your file that cannot

be resolved by going back to your

treating source;

(c) You prefer a source other than

your treating source and have a good

reason for your preference;

(d) We know from prior experience

that your treating source may not be a

productive source, e.g., he or she has

consistently failed to provide complete

or timely reports.

9. Section 404.1519j is revised to read

as follows:

§ 404.1519j Objections to the medical

source designated to perform the

consultative examination.

You or your representative may object

to your being examined by a medical

source we have designated to perform a

consultative examination. If there is a

good reason for the objection, we will

schedule the examination with another

medical source. A good reason may be

that the medical source we designated

had previously represented an interest

adverse to you. For example, the

medical source may have represented

your employer in a workers’

compensation case or may have been

involved in an insurance claim or legal

action adverse to you. Other things we

will consider include: The presence of

a language barrier, the medical source’s

office location (e.g., 2nd floor, no

elevator), travel restrictions, and

whether the medical source had

examined you in connection with a

previous disability determination or

decision that was unfavorable to you. If

your objection is that a medical source

allegedly ‘‘lacks objectivity’’ in general,

but not in relation to you personally, we

will review the allegations. See

§ 404.1519s. To avoid a delay in

processing your claim, the consultative

examination in your case will be

changed to another medical source

while a review is being conducted. We

will handle any objection to use of the

substitute medical source in the same

manner. However, if we had previously

conducted such a review and found that

the reports of the medical source in

question conformed to our guidelines,

we will not change your examination.

10. Section 404.1519k is amended by

revising the introductory paragraph to

read as follows:

§ 404.1519k Purchase of medical

examinations, laboratory tests, and other

services.

We may purchase medical

examinations, including psychiatric and

psychological examinations, X-rays and

laboratory tests (including specialized

tests, such as pulmonary function

studies, electrocardiograms, and stress

tests) from a medical source.

* * * * *

11. Section 404.1519m is amended by

revising the first and last sentences to

read as follows:

§ 404.1519m Diagnostic tests or

procedures.

We will request the results of any

diagnostic tests or procedures that have

been performed as part of a workup by

your treating source or other medical

source and will use the results to help

us evaluate impairment severity or

prognosis. * * * The responsibility for

deciding whether to perform the

examination rests with the consultative

examining medical source.

12. Section 404.1519n is amended by

revising the heading and the first and

last sentences of the introductory

paragraph, adding a heading to and

revising the first sentence of paragraph

(a), revising the last two sentences of

paragraph (b), revising the second

sentence of and adding third and fourth

sentences to paragraph (c)(6), and

revising paragraphs (c)(7) and (e) to read

as follows:

§ 404.1519n Informing the medical source

of examination scheduling, report content,

and signature requirements.

The medical sources who perform

consultative examinations will have a

good understanding of our disability

programs and their evidentiary

requirements. * * * We will fully inform

medical sources who perform

consultative examinations at the time

we first contact them, and at subsequent

appropriate intervals, of the following

obligations:

(a) Scheduling. In scheduling full

consultative examinations, sufficient

time should be allowed to permit the

medical source to take a case history

and perform the examination, including

any needed tests. * * *

(b) Report content. * * * The report

should reflect your statement of your

symptoms, not simply the medical

source’s statements or conclusions. The

examining medical source’s report of

the consultative examination should

include the objective medical facts as

well as observations and opinions.
50276 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

(c) * * *

(6) * * * This statement should

describe the opinion of the medical

source about your ability, despite your

impairment(s), to do work-related

activities, such as sitting, standing,

walking, lifting, carrying, handling

objects, hearing, speaking, and traveling;

and, in cases of mental impairment(s),

the opinion of the medical source about

your ability to understand, to carry out

and remember instructions, and to

respond appropriately to supervision,

coworkers and work pressures in a work

setting. Although we will ordinarily

request, as part of the consultative

examination process, a medical source

statement about what you can still do

despite your impairment(s), the absence

of such a statement in a consultative

examination report will not make the

report incomplete. See § 404.1527; and

(7) In addition, the medical source

will consider, and provide some

explanation or comment on, your major

complaint(s) and any other

abnormalities found during the history

and examination or reported from the

laboratory tests. The history,

examination, evaluation of laboratory

test results, and the conclusions will

represent the information provided by

the medical source who signs the report.

* * * * *

(e) Signature requirements. All

consultative examination reports will be

personally reviewed and signed by the

medical source who actually performed

the examination. This attests to the fact

that the medical source doing the

examination or testing is solely

responsible for the report contents and

for the conclusions, explanations or

comments provided with respect to the

history, examination and evaluation of

laboratory test results. The signature of

the medical source on a report

annotated ‘‘not proofed’’ or ‘‘dictated

but not read’’ is not acceptable. A rubber

stamp signature of a medical source or

the medical source’s signature entered

by any other person is not acceptable.

13. Section 404.1519o is amended by

revising the second sentence of

paragraph (a) and the third sentence of

paragraph (b) to read as follows:

§ 404.1519o When a properly signed

consultative examination report has not

been received.

* * * * *

(a) When we will make determinations

and decisions without a properly signed

report. * * * After we have made the

determination or decision, we will

obtain a properly signed report and

include it in the file unless the medical

source who performed the original

consultative examination has died.

* * * * *

(b) When we will not make

determinations and decisions without a

properly signed report. * * * If the

signature of the medical source who

performed the original examination

cannot be obtained because the medical

source is out of the country for an

extended period of time, or on an

extended vacation, seriously ill,

deceased, or for any other reason, the

consultative examination will be

rescheduled with another medical

source.

* * * * *

14. Section 404.1519p is amended by

revising paragraphs (b) and (c) to read

as follows:

§ 404.1519p Reviewing reports of

consultative examinations.

* * * * *

(b) If the report is inadequate or

incomplete, we will contact the medical

source who performed the consultative

examination, give an explanation of our

evidentiary needs, and ask that the

medical source furnish the missing

information or prepare a revised report.

(c) With your permission, or when the

examination discloses new diagnostic

information or test results that reveal

potentially life-threatening situations,

we will refer the consultative

examination report to your treating

source. When we refer the consultative

examination report to your treating

source without your permission, we will

notify you that we have done so.

* * * * *

15. Section 404.1519s is amended by

revising paragraph (e)(2) and the first

sentence of paragraph (f)(6) to read as

follows:

§ 404.1519s Authorizing and monitoring

the consultative examination.

* * * * *

(e) * * *

(2) Any consultative examination

provider with a practice directed

primarily towards evaluation

examinations rather than the treatment

of patients; or

* * * * *

(f) * * *

(6) Procedures for providing medical

or supervisory approval for the

authorization or purchase of

consultative examinations and for

additional tests or studies requested by

consulting medical sources. * * *

* * * * *

16. Section 404.1527 is amended by

revising the section heading, the third

sentence of paragraph (d)(2), the

heading of paragraph (e), paragraph

(e)(2), the heading and introductory text

of paragraph (f), and paragraph (f)(2), by

adding a sentence to paragraph (d)(6),

by adding introductory text to paragraph

(e), and by adding paragraph (e)(3) to

read as follows:

§ 404.1527 Evaluating opinion evidence.

* * * * *

(d) * * *

(2) Treatment relationship. * * *

When we do not give the treating

source’s opinion controlling weight, we

apply the factors listed below, as well as

the factors in paragraphs (d)(3) through

(d)(6) of this section in determining the

weight to give the opinion. * * *

* * * * *

(6) Other factors. * * * For example,

the amount of Social Security disability

programs expertise an acceptable

medical source has and whether an

acceptable medical source reviewed the

individual’s entire case record before

providing a medical opinion are

relevant factors that we will consider in

deciding the weight to give to a medical

opinion.

(e) Medical source opinions on issues

reserved to the Commissioner. Opinions

on some issues, such as the examples

that follow, are not medical opinions, as

described in paragraph (a)(2) of this

section, but are, instead, opinions on

issues reserved to the Commissioner

because they are administrative findings

that are dispositive of a case; i.e., that

would direct the determination or

decision of disability.

* * * * *

(2) Other opinions on issues reserved

to the Commissioner. We use medical

sources, including your treating source,

to provide evidence, including

opinions, on the nature and severity of

your impairment(s). Although we

consider opinions from medical sources

on issues such as whether your

impairment(s) meets or equals the

requirements of any impairment(s) in

the Listing of Impairments in appendix

1 to this subpart, your residual

functional capacity (see §§ 404.1545 and

404.1546), or the application of

vocational factors, the final

responsibility for deciding these issues

is reserved to the Commissioner.

(3) We will not give any special

significance to the source of an opinion

on issues reserved to the Commissioner

described in paragraphs (e)(1) and (e)(2)

of this section.

(f) Opinions of nonexamining sources.

We consider all evidence from

nonexamining sources to be opinion

evidence. When we consider the

opinions of nonexamining sources, we
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules 50277

apply the rules in paragraphs (a)

through (e) of this section. In addition,

the following rules apply to State

agency medical and psychological

consultants, other program physicians

and psychologists, and medical experts

we consult in connection with

administrative law judge hearings and

Appeals Council review.

* * * * *

(2) Administrative law judges are

responsible for reviewing the evidence

and making findings of fact and

conclusions of law. They will consider

opinions of State agency medical or

psychological consultants, other

program physicians and psychologists,

and medical experts as follows:

(i) Administrative law judges are not

bound by any findings made by State

agency medical or psychological

consultants, or other program

physicians or psychologists. However,

State agency medical and psychological

consultants and other program

physicians and psychologists are highly

qualified physicians and psychologists

who are also experts in Social Security

disability evaluation. Therefore,

administrative law judges must consider

findings of State agency medical and

psychological consultants or other

program physicians or psychologists,

except for the ultimate determination

about whether you are disabled. See

§ 404.1512(b)(6).

(ii) When administrative law judges

consider findings of State agency

medical or psychological consultants or

other program physicians or

psychologists, they will evaluate the

findings using relevant factors in

paragraphs (a) through (e) of this

section, such as the medical or

psychological consultants’, or other

program physicians’ or psychologists’,

medical specialty and expertise in our

rules, the evidence reviewed by the

consultants or other program physicians

or psychologists, supporting

explanations provided by the

consultants or other program physicians

or psychologists, and any other factors

relevant to the weighing of the opinions.

he administrative law judge must

explain in the decision the weight given

to the opinions of a State agency

medical or psychological consultant or

other program physician or

psychologist, as the administrative law

judge must do for any opinions from

treating sources, nontreating sources,

and nonexamining sources who do not

work for us.

(iii) Administrative law judges may

also ask for and consider opinions from

medical experts on the nature and

severity of your impairment(s) and on

whether your impairment(s) equals the

requirements of any impairment listed

in appendix 1 to this subpart. When

administrative law judges consider

these opinions, they will evaluate them

using the rules in paragraphs (a) through

(e) of this section.

* * * * *

PART 416—SUPPLEMENTAL

SECURITY INCOME FOR THE AGED,

BLIND, AND DISABLED

Subpart I—[Amended]

17. 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), and (d)(1), and 1633 of the

Social Security Act (42 U.S.C. 902(a)(5),

1382, 1382c, 1382h, 1383(a), (c), and (d)(1),

and 1383b); secs. 4(c) and 5, 6(c)–(e), 14(a)

and 15, Pub. L. 98–460, 98 Stat. 1794, 1801,

1802, and 1808 (42 U.S.C. 421 note, 423 note,

1382h note).

18. Section 416.902 is amended by

removing the terms ‘‘Commissioner,’’

‘‘Secretary,’’ and ‘‘Source of record’’ and

their definitions, revising the definitions

of ‘‘Medical sources’’ and ‘‘Treating

source,’’ changing the term ‘‘You’’ to

‘‘You or your’’ and revising its

definition, and adding definitions in the

appropriate alphabetical order for the

terms ‘‘Acceptable medical source,’’

‘‘Nonexamining source,’’ and

‘‘Nontreating source’’ to read as follows:

§ 416.902 General definitions and terms

for this subpart.

As used in the subpart—

Acceptable medical source refers to

one of the sources described in

§ 416.913(a) who provides evidence

about your impairments. It includes

treating sources, nontreating sources,

and nonexamining sources.

* * * * *

Medical sources refers to acceptable

medical sources, or other health care

providers who are not acceptable

medical sources.

Nonexamining source means a

physician, psychologist, or other

acceptable medical source who has not

examined you but provides a medical or

other opinion in your case. At the

administrative law judge hearing and

Appeals Council levels of the

administrative review process, it

includes State agency medical and

psychological consultants, other

program physicians and psychologists,

and medical experts we consult. See

§ 416.927.

Nontreating source means a

physician, psychologist, or other

acceptable medical source who has

examined you but does not have, or did

not have, an ongoing treatment

relationship with you. The term

includes an acceptable medical source

who is a consultative examiner for us,

when the consultative examiner is not

your treating source. See § 416.927.

* * * * *

Treating source means your own

physician, psychologist, or other

acceptable medical source who provides

you, or has provided you, with medical

treatment or evaluation and who has, or

has had, an ongoing treatment

relationship with you. Generally, we

will consider that you have an ongoing

treatment relationship with an

acceptable medical source when the

medical evidence establishes that you

see, or have seen, the source with a

frequency consistent with accepted

medical practice for the type of

treatment and/or evaluation required for

your medical condition(s). We may

consider an acceptable medical source

who has treated or evaluated you only

a few times or only after long intervals

(e.g., twice a year) to be your treating

source if the nature and frequency of the

treatment or evaluation is typical for

your condition(s). We will not consider

an acceptable medical source to be your

treating source if your relationship with

the source is not based on your medical

need for treatment or evaluation, but

solely on your need to obtain a report

in support of your claim for disability.

In such a case, we will consider the

acceptable medical source to be a

nontreating source.

* * * * *

You or your means, as appropriate,

the person who applies for benefits, the

person for whom an application is filed,

or the person who is receiving benefits

based on disability or blindness.

19. Section 416.912 is amended by

revising paragraph (b)(6) to read as

follows:

§ 416.912 Evidence of your impairment.

* * * * *

(b) * * *

(6) At the administrative law judge

and Appeals Council levels, findings,

other than the ultimate determination

about whether you are disabled, made

by State agency medical or

psychological consultants and other

program physicians or psychologists,

and opinions expressed by medical

experts we consult based on their

review of the evidence in your case

record. See §§ 416.927(f)(2) and (f)(3).

* * * * *

20. Section 416.913 is amended by

revising the first sentence of paragraph
50278 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

(b)(6) and paragraph (c) to read as

follows:

§ 416.913 Medical evidence of your

impairment.

* * * * *

(b) * * *

(6) A statement about what you can

still do despite your impairment(s)

based on the acceptable medical

source’s findings on the factors under

paragraphs (b)(1) through (b)(5) of this

section (except in statutory blindness

claims). * * *

(c) Statements about what you can

still do. At the administrative law judge

and Appeals Council levels, we will

consider residual functional capacity

assessments made by State agency

medical and psychological consultants

and other program physicians and

psychologists to be ‘‘statements about

what you can still do’’ made by

nonexamining physicians and

psychologists based on their review of

the evidence in the case record.

Statements about what you can still do

(based on the acceptable medical

source’s findings on the factors under

paragraphs (b)(1) through (b)(5) of this

section) should describe, but are not

limited to, the kinds of physical and

mental capabilities listed below. See

§§ 416.927 and 416.945(c).

(1) If you are an adult, the acceptable

medical source’s opinion about your

ability, despite your impairment(s), to

do work-related activities such as

sitting, standing, walking, lifting,

carrying, handling objects, hearing,

speaking, and traveling; and

(2) If you are an adult, in cases of

mental impairment(s), the acceptable

medical source’s opinion about your

ability to understand, to carry out and

remember instructions, and to respond

appropriately to supervision, coworkers,

and work pressures in a work setting.

(3) If you are a child, the acceptable

medical source’s opinion about your

functional limitations in learning, motor

functioning, performing self-care

activities, communicating, socializing,

and completing tasks (and, if you are a

newborn or young infant from birth to

age 1, responsiveness to stimuli).

* * * * *

21. Section 416.919 is amended by

revising the first sentence to read as

follows:

§ 416.919 The consultative examination.

A consultative examination is a

physical or mental examination or test

purchased for you at our request and

expense from a treating source or

another medical source, including a

pediatrician when appropriate. * * *

22. Section 416.919g is amended by

revising the last sentence of paragraph

(a) and the first sentence of paragraph

(c) to read as follows:

§ 416.919g Who we will select to perform

a consultative examination.

(a) * * * For a more complete list of

medical sources, see § 416.913.

* * * * *

(c) The medical source we choose

may use support staff to help perform

the consultative examination. * * *

23. Section 416.919h is revised to

read as follows:

§ 416.919h Your treating source.

When in our judgment your treating

source is qualified, equipped, and

willing to perform the additional

examination or tests for the fee schedule

payment, and generally furnishes

complete and timely reports, your

treating source will be the preferred

source to do the purchased examination.

Even if only a supplemental test is

required, your treating source is

ordinarily the preferred source.

24. Section 416.919i is revised to read

as follows:

§ 416.919i Other sources for consultative

examinations.

We will use a source other than your

treating source for a purchased

examination or test in situations

including, but not limited to, the

following situations:

(a) Your treating source prefers not to

perform such an examination or does

not have the equipment to provide the

specific data needed;

(b) There are conflicts or

inconsistencies in your file that cannot

be resolved by going back to your

treating source;

(c) You prefer a source other than

your treating source and have a good

reason for your preference;

(d) We know from prior experience

that your treating source may not be a

productive source, e.g., he or she has

consistently failed to provide complete

or timely reports.

25. Section 416.919j is revised to read

as follows:

§ 416.919j Objections to the medical

source designated to perform a

consultative examination.

You or your representative may object

to your being examined by a medical

source we have designated to perform a

consultative examination. If there is a

good reason for the objection, we will

schedule the examination with another

medical source. A good reason may be

that the medical source we designated

had previously represented an interest

adverse to you. For example, the

medical source may have represented

your employer in a workers’

compensation case or may have been

involved in an insurance claim or legal

action adverse to you. Other things we

will consider include: The presence of

a language barrier, the medical source’s

office location (e.g., 2nd floor, no

elevator), travel restrictions, and

whether the medical source had

examined you in connection with a

previous disability determination or

decision that was unfavorable to you. If

your objection is that a medical source

allegedly ‘‘lacks objectivity’’ in general,

but not in relation to you personally, we

will review the allegations. See

§ 416.919s. To avoid a delay in

processing your claim, the consultative

examination in your case will be

changed to another medical source

while a review is being conducted. We

will handle any objection to use of the

substitute medical source in the same

manner. However, if we had previously

conducted such a review and found that

the reports of the medical source in

question conformed to our guidelines,

we will not change your examination.

26. Section 416.919k is amended by

revising the introductory paragraph to

read as follows:

§ 416.919k Purchase of medical

examinations, laboratory tests, and other

services.

We may purchase medical

examinations, including psychiatric and

psychological examinations, X-rays and

laboratory tests (including specialized

tests, such as pulmonary function

studies, electrocardiograms, and stress

tests) from a medical source.

* * * * *

27. Section 416.919m is amended by

revising the first and last sentences to

read as follows:

§ 416.919m Diagnostic tests or

procedures.

We will request the results of any

diagnostic tests or procedures that have

been performed as part of a workup by

your treating source or other medical

source and will use the results to help

us evaluate impairment severity or

prognosis. * * * The responsibility for

deciding whether to perform the

examination rests with the consultative

examining medical source.

28. Section 416.919n is amended by

revising the heading and the first and

last sentences of the introductory

paragraph, adding a heading to and

revising the first sentence of paragraph

(a), revising the last two sentences of

paragraph (b), revising the second and

third sentences of and adding fourth

and fifth sentences to paragraph (c)(6),
Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules 50279

and revising paragraphs (c)(7) and (e) to

read as follows:

§ 416.919n Informing the medical source

of examination scheduling, report content,

and signature requirements.

The medical sources who perform

consultative examinations will have a

good understanding of our disability

programs and their evidentiary

requirements. * * * We will fully

inform medical sources who perform

consultative examinations at the time

we first contact them, and at subsequent

appropriate intervals, of the following

obligations:

(a) Scheduling. In scheduling full

consultative examinations, sufficient

time should be allowed to permit the

medical source to take a case history

and perform the examination, including

any needed tests. * * *

* * * * *

(b) Report content. * * * The report

should reflect your statement of your

symptoms, not simply the medical

source’s statements or conclusions. The

examining medical source’s report of

the consultative examination should

include the objective medical facts as

well as observations and opinions.

(c) * * *

* * * * *

(6) * * * If you are an adult, this

statement should describe the opinion

of the medical source about your ability,

despite your impairment(s), to do workrelated activities, such as sitting,

standing, walking, lifting, carrying,

handling objects, hearing, speaking, and

traveling; and, in cases of mental

impairment(s), the opinion of the

medical source about your ability to

understand, to carry out and remember

instructions, and to respond

appropriately to supervision, coworkers

and work pressures in a work setting. If

you are a child, this statement should

describe the opinion of the medical

source about your functional limitations

in learning, motor functioning,

performing self-care activities,

communicating, socializing, and

completing tasks (and, if you are a

newborn or young infant from birth to

age 1, responsiveness to stimuli).

Although we will ordinarily request, as

part of the consultative examination

process, a medical source statement

about what you can still do despite your

impairment(s), the absence of such a

statement in a consultative examination

report will not make the report

incomplete. See § 416.927; and

(7) In addition, the medical source

will consider, and provide some

explanation or comment on, your major

complaint(s) and any other

abnormalities found during the history

and examination or reported from the

laboratory tests. The history,

examination, evaluation of laboratory

test results, and the conclusions will

represent the information provided by

the medical source who signs the report.

* * * * *

(e) Signature requirements. All

consultative examination reports will be

personally reviewed and signed by the

medical source who actually performed

the examination. This attests to the fact

that the medical source doing the

examination or testing is solely

responsible for the report contents and

for the conclusions, explanations or

comments provided with respect to the

history, examination and evaluation of

laboratory test results. The signature of

the medical source on a report

annotated ‘‘not proofed’’ or ‘‘dictated

but not read’’ is not acceptable. A rubber

stamp signature of a medical source or

the medical source’s signature entered

by any other person is not acceptable.

29. Section 416.919o is amended by

revising the second sentence of

paragraph (a) and the third sentence of

paragraph (b) to read as follows:

§ 416.919o When a properly signed

consultative examination report has not

been received.

* * * * *

(a) When we will make determinations

and decisions without a properly signed

report. * * * After we have made the

determination or decision, we will

obtain a properly signed report and

include it in the file unless the medical

source who performed the original

consultative examination has died.

* * * * *

(b) When we will not make

determinations and decisions without a

properly signed report. * * * If the

signature of the medical source who

performed the original examination

cannot be obtained because the medical

source is out of the country for an

extended period of time, or on an

extended vacation, seriously ill,

deceased, or for any other reason, the

consultative examination will be

rescheduled with another medical

source.

* * * * *

30. Section 416.919p is amended by

revising paragraphs (b) and (c) to read

as follows:

§ 416.919p Reviewing reports of

consultative examinations.

* * * * *

(b) If the report is inadequate or

incomplete, we will contact the medical

source who performed the consultative

examination, give an explanation of our

evidentiary needs, and ask that the

medical source furnish the missing

information or prepare a revised report.

(c) With your permission, or when the

examination discloses new diagnostic

information or test results that reveal

potentially life-threatening situations,

we will refer the consultative

examination report to your treating

source. When we refer the consultative

examination report to your treating

source without your permission, we will

notify you that we have done so.

* * * * *

31. Section 416.919s is amended by

revising paragraph (e)(2) and the first

sentence of paragraph (f)(6) to read as

follows:

§ 416.919s Authorizing and monitoring the

consultative examination.

* * * * *

(e) * * *

(2) Any consultative examination

provider with a practice directed

primarily towards evaluation

examinations rather than the treatment

of patients; or

* * * * *

(f) * * *

(6) Procedures for providing medical

or supervisory approval for the

authorization or purchase of

consultative examinations and for

additional tests or studies requested by

consulting medical sources. * * *

* * * * *

32. Section 416.927 is amended by

revising the section heading, the third

sentence of paragraph (d)(2), the

heading of paragraph (e), paragraph

(e)(2), the heading and introductory text

of paragraph (f), and paragraph (f)(2), by

adding a sentence to paragraph (d)(6),

by adding introductory text to paragraph

(e), and by adding paragraph (e)(3) to

read as follows:

§ 416.927 Evaluating opinion evidence.

* * * * *

(d) * * *

(2) Treatment relationship. * * *

When we do not give the treating

source’s opinion controlling weight, we

apply the factors listed below, as well as

the factors in paragraphs (d)(3) through

(d)(6) of this section in determining the

weight to give the opinion. * * *

* * * * *

(6) Other factors. * * * For example,

the amount of Social Security disability

programs expertise an acceptable

medical source has and whether an

acceptable medical source reviewed the

individual’s entire case record before

providing a medical opinion are

relevant factors that we will consider in

deciding the weight to give to a medical

opinion.
50280 Federal Register / Vol. 62, No. 186 / Thursday, September 25, 1997 / Proposed Rules

(e) Medical source opinions on issues

reserved to the Commissioner. Opinions

on some issues, such as the examples

that follow, are not medical opinions, as

described in paragraph (a)(2) of this

section, but are, instead, opinions on

issues reserved to the Commissioner

because they are administrative findings

that are dispositive of a case; i.e., that

would direct the determination or

decision of disability.

* * * * *

(2) Other opinions on issues reserved

to the Commissioner. We use medical

sources, including your treating source,

to provide evidence, including

opinions, on the nature and severity of

your impairment(s). Although we

consider opinions from medical sources

on issues such as whether your

impairment(s) meets or equals the

requirements of any impairment(s) in

the Listing of Impairments in appendix

1 to subpart P of part 404 of this

chapter, your residual functional

capacity (see §§ 416.945 and 416.946),

or the application of vocational factors,

the final responsibility for deciding

these issues is reserved to the

Commissioner.

(3) We will not give any special

significance to the source of an opinion

on issues reserved to the Commissioner

described in paragraphs (e)(1) and (e)(2)

of this section.

(f) Opinions of nonexamining sources.

We consider all evidence from

nonexamining sources to be opinion

evidence. When we consider the

opinions of nonexamining sources, we

apply the rules in paragraphs (a)

through (e) of this section. In addition,

the following rules apply to State

agency medical and psychological

consultants, other program physicians

and psychologists, and medical experts

we consult in connection with

administrative law judge hearings and

Appeals Council review.

* * * * *

(2) Administrative law judges are

responsible for reviewing the evidence

and making findings of fact and

conclusions of law. They will consider

opinions of State agency medical or

psychological consultants, other

program physicians and psychologists,

and medical experts as follows:

(i) Administrative law judges are not

bound by any findings made by State

agency medical or psychological

consultants, or other program

physicians or psychologists. However,

State agency medical and psychological

consultants and other program

physicians and psychologists are highly

qualified physicians and psychologists

who are also experts in Social Security

disability evaluation. Therefore,

administrative law judges must consider

findings of State agency medical and

psychological consultants or other

program physicians or psychologists,

except for the ultimate determination

about whether you are disabled. See

§ 416.912(b)(6).

(ii) When administrative law judges

consider findings of State agency

medical or psychological consultants or

other program physicians or

psychologists, they will evaluate the

findings using relevant factors in

paragraphs (a) through (e) of this

section, such as the medical or

psychological consultants’, or other

program physicians’ or psychologists’,

medical specialty and expertise in our

rules, the evidence reviewed by the

consultants or other program physicians

or psychologists, supporting

explanations provided by the

consultants or other program physicians

or psychologists, and any other factors

relevant to the weighing of the opinions.

The administrative law judge must

explain in the decision the weight given

to the opinions of a State agency

medical or psychological consultant or

other program physician or

psychologist, as the administrative law

judge must do for any opinions from

treating sources, nontreating sources,

and nonexamining sources who do not

work for us.

(iii) Administrative law judges may

also ask for and consider opinions from

medical experts on the nature and

severity of your impairment(s) and on

whether your impairment(s) equals the

requirements of any impairment listed

in appendix 1 to subpart P of part 404

of this chapter. When administrative

law judges consider these opinions, they

will evaluate them using the rules in

paragraphs (a) through (e) of this

section.

* * * * *

[FR Doc. 97–25366 Filed 9–24–97; 8:45 am]

BILLING CODE 4190–29–U

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 175

[CGD 97–059]

Recreational Boating Safety—Federal

Requirements for Wearing Personal

Flotation Devices

AGENCY: Coast Guard, DOT.

ACTION: Notice of request for comments.

SUMMARY: The Coast Guard seeks

comments from interested people,

groups, and businesses about the need

for, and alternatives to, Federal

requirements or incentives for boaters to

wear lifejackets. It will consider all

comments, and consult with the

National Boating Safety Advisory

Council (NBSAC) in determining how

best to reduce the number of boaters

who drown.

DATES: Comments must reach the Coast

Guard on or before February 2, 1998.

ADDRESSES: You may mail comments to

the Executive Secretary, Marine Safety

Council (G–LRA, 3406) [CGD 97–059],

U.S. Coast Guard Headquarters, 2100

Second Street SW, Washington, DC

20593–0001, or deliver them to room

3406 at the same address between 9:30

a.m. and 2 p.m., Monday through

Friday, except Federal holidays. The

telephone number is 202–267–1477.

The Executive Secretary maintains the

public docket for this notice. Comments,

and documents as indicated in this

preamble, will become part of this

docket and will be available for

inspection or copying at room 3406,

U.S. Coast Guard Headquarters, between

9:30 a.m. and 2 p.m., Monday through

Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Carlton Perry, Project Manager, Office of

Boating Safety, Program Management

Division, (202) 267–0979. You may

obtain a copy of this notice by calling

the U.S. Coast Guard Infoline at 1–800–

368–5647, or read it on the Internet, at

the Web Site for the Office of Boating

Safety, at URL address

www.uscgboating.org/.

SUPPLEMENTARY INFORMATION:

Background and Purpose

Most people who die in recreational

boating accidents drown; but most of

the victims would have survived if they

had worn lifejackets. Through its

Recreational Boating Safety Program,

the Coast Guard tries to reduce the

number of recreational boating

accidents. Although recreational use of

water has caused fewer and fewer

deaths over the last 20 years, boating

accidents still cause more deaths than

any other transportation related activity

except use of roads. Boating accidents

caused over 800 deaths in 1995, over

600 of them through drowning.

Although 68 victims drowned while

wearing lifejackets, 561 victims

drowned while not wearing them.

Nobody knows how many of the 561

victims would have survived if they had

worn lifejackets. There is evidence to

suggest that factors other than drowning

were the primary cause of death for

most of the 68 victims who died

wearing lifejackets. On the contrary, the