Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10651 

1The NPRM is available at: http://www.gpo.gov/ 

fdsys/pkg/FR-2011-04-12/pdf/2011-8388.pdf. 

Fees Applicable to Natural Gas Pipelines 

1. Pipeline certificate applications pursuant to 18 CFR 284.224. (18 CFR 381.207(b)) ................................................................ *1,000 

Fees Applicable to Cogenerators and Small Power Producers 

1. Certification of qualifying status as a small power production facility. (18 CFR 381.505(a)) .................................................. 21,380 

2. Certification of qualifying status as a cogeneration facility. (18 CFR 381.505(a)) ..................................................................... 24,200 

* This fee has not been changed. 

List of Subjects in 18 CFR Part 381 

Electric power plants, Electric 

utilities, Natural gas, Reporting and 

recordkeeping requirements. 

Dated: February 16, 2012. 

Charles H. Schneider, 

Executive Director. 

In consideration of the foregoing, the 

Commission amends Part 381, Chapter I, 

Title 18, Code of Federal Regulations, as 

set forth below. 

PART 381—FEES 

■ 1. The authority citation for Part 381 

continues to read as follows: 

Authority: 15 U.S.C. 717–717w; 16 U.S.C. 

791–828c, 2601–2645; 31 U.S.C. 9701; 42 

U.S.C. 7101–7352; 49 U.S.C. 60502; 49 App. 

U.S.C. 1–85. 

§ 381.302 [Amended] 

2. In § 381.302, paragraph (a) is 

amended by removing ‘‘$23,540’’ and 

adding ‘‘$24,860’’ in its place. 

§ 381.303 [Amended] 

3. In § 381.303, paragraph (a) is 

amended by removing ‘‘$34,370’’ and 

adding ‘‘$36,290’’ in its place. 

§ 381.304 [Amended] 

4. In § 381.304, paragraph (a) is 

amended by removing ‘‘$18,020’’ and 

adding ‘‘$19,030’’ in its place. 

§ 381.305 [Amended] 

5. In § 381.305, paragraph (a) is 

amended by removing ‘‘$ 6,750’’ and 

adding ‘‘$7,130’’ in its place. 

§ 381.403 [Amended] 

6. Section 381.403 is amended by 

removing ‘‘$11,720’’ and adding 

‘‘$12,370’’ in its place. 

§ 381.505 [Amended] 

7. In § 381.505, paragraph (a) is 

amended by removing ‘‘$20,240’’ and 

adding ‘‘$21,380’’ in its place and by 

removing ‘‘$22,920’’ and adding 

‘‘$24,200’’ in its place. 

[FR Doc. 2012–4146 Filed 2–22–12; 8:45 am] 

BILLING CODE 6717–01–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Docket No. SSA 2010–0044] 

RIN 0960–AG89 

How We Collect and Consider 

Evidence of Disability 

AGENCY: Social Security Administration 

(SSA). 

ACTION: Final rule. 

SUMMARY: We are modifying the 

requirement to recontact your medical 

source(s) first when we need to resolve 

an inconsistency or insufficiency in the 

evidence he or she provided. Depending 

on the nature of the inconsistency or 

insufficiency, there may be other, more 

appropriate sources from whom we 

could obtain the information we need. 

By giving adjudicators more flexibility 

in determining how best to obtain this 

information, we will be able to make a 

determination or decision on disability 

claims more quickly and efficiently in 

certain situations. Eventually, our need 

to recontact your medical source(s) in 

many situations will be significantly 

reduced as a result of our efforts to 

improve the evidence collection process 

through the increased use of Health 

Information Technology (HIT). 

DATES: These rules are effective March 

26, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Brian Rudick, Office of Regulations, 

Social Security Administration, 6401 

Security Boulevard, Baltimore, MD 

21235–6401, (410) 965–7102. For 

information on eligibility or filing for 

benefits, call our national toll-free 

number, 1–800–772–1213 or TTY 

1–800–325–0778, or visit our Internet 

site, Social Security Online, at http:// 

www.socialsecurity.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

We are making final the proposed 

changes to our rules regarding when we 

will recontact your medical source(s) to 

resolve an inconsistency or 

insufficiency in the evidence he or she 

provided. We proposed these changes in 

a Notice of Proposed Rulemaking 

(NPRM) we published in the Federal 

Register on April 12, 2011 (76 FR 

20282). The preamble to the NPRM 

discussed the changes from the current 

rules and our reasons for proposing 

those changes.1 Because we are 

adopting the proposed rules as 

published, we are not repeating that 

information here. 

Public Comments on the NPRM 

In the NPRM, we provided the public 

a 60-day comment period, which ended 

on June 13, 2011. We received 59 public 

comments. The comments came from a 

member of the public, members of the 

disability advocacy community, and 

several national groups of Social 

Security claimants’ representatives. 

We provide below summaries of the 

significant comments that were relevant 

to this rulemaking and our responses to 

those comments. We have tried to 

present the commenters’ concerns and 

suggestions accurately and completely. 

Comment: All of the commenters 

recommended that we keep our current 

requirement to recontact a person’s 

medical source(s) first when we need to 

resolve an inconsistency or 

insufficiency in the evidence he or she 

provided. Some of these commenters 

believed that the proposed modification 

of this requirement was inconsistent 

with sections 223(d)(5)(B) and 

1614(a)(3)(H) of the Social Security Act 

(Act), which require us to make ‘‘every 

reasonable effort to obtain from the 

individual’s treating physician (or other 

treating health care provider) all 

medical evidence, including diagnostic 

tests, necessary in order to properly 

make [a] determination, prior to 

evaluating medical evidence obtained 

from any other source on a consultative 

basis.’’ Other commenters believed that 

any modification of the current 

requirement would make it less likely 

that adjudicators would obtain evidence 

from a person’s medical source(s), and 

more likely that they would try and 

obtain evidence from a consultative 

examination (CE) instead. These 

commenters speculated that some 

adjudicators may even purchase CEs to 

undermine evidence provided by 


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2Those rules require us to generally give ‘‘more 

weight’’ to the opinions from a treating source and 

‘‘controlling weight’’ when the treating source’s 

opinions are well-supported and not inconsistent 

with other substantial evidence. See §§ 404.1527(d) 

and 416.927(d). 

3 76 FR 20283 (emphasis added). 

4 76 FR 20283. 

5See §§ 404.1512(d)(1) and 416.912(d)(1). 

6S. Rep. No. 98–466, at 26 (1984). 

7Sections 404.1512(f) and 416.912(f). See also 

§§ 404.1517 through 416.1519t and 404.917 through 

416.919t for our other rules governing the CE 

process. 

8Sections 404.1517 and 416.917. 

9Sections 404.1519a(a)(1) and 416.919a(a)(1). 

These regulations also state that, in addition to 

‘‘existing medical reports,’’ we will consider ‘‘the 

disability interview form containing your 

allegations as well as other pertinent evidence in 

your file’’ before purchasing a CE. 

10Sections 404.1519h and 416.919h. 11 76 FR 20283. 

treating sources and to circumvent our 

rules on how we weigh medical 

opinions from these sources.2 These 

commenters said that treating sources 

are usually the most knowledgeable 

about a person’s condition, and 

therefore, can provide the best evidence 

regarding disability. One of these 

commenters also said that recontacting 

treating sources is simpler and more 

effective than purchasing a CE, and 

another commenter noted that it is more 

convenient for claimants to see their 

treating sources than it is for them to 

attend CEs. 

Response: We did not adopt the 

comments. We disagree with the 

commenters’ concerns for several 

reasons. First, we disagree that 

modification of the requirement to 

recontact a person’s medical source(s) 

first when we need to resolve an 

inconsistency or insufficiency in the 

evidence he or she provided violates 

sections 223(d)(5)(B) and 1614(a)(3)(H) 

of the Act or our regulations. As we 

explained in the NPRM, the proposed 

change ‘‘would not alter our rules in 

§§ 404.1512(d) and 416.912(d) that 

require us to make every reasonable 

effort to help you get medical reports 

from your medical sources when you 

give us permission to request the 

reports. Rather, the proposed change 

would apply only after we have made 

those reasonable efforts.’’ 3

As we noted in the NPRM, the rules 

in §§ 404.1512(d) and 416.912(d) first 

require us to ‘‘make every reasonable 

effort’’ to develop ‘‘your complete 

medical history for at least the 12 

months preceding the month in which 

you file your application unless there is 

a reason to believe that development of 

an earlier period is necessary or unless 

you say that your disability began less 

than 12 months before you filed your 

application.’’ 4 Our regulations define 

‘‘every reasonable effort’’ to include ‘‘an 

initial request for evidence from your 

medical source’’ and ‘‘one follow-up 

request’’ at anytime ‘‘between 10 and 20 

calendar days after the initial request’’ 

if we did not receive the evidence.5 The 

recontact requirement applies only 

when we have already received 

evidence from a person’s medical 

source; therefore, the revisions we are 

making to our rules here do not change 

the adjudicator’s initial obligation to 

obtain medical evidence. 

Because these final rules do not alter 

an adjudicator’s obligations under 

§§ 404.1512(d) and 416.912(d), they are 

consistent with sections 223(d)(5)(B) 

and 1614(a)(3)(H) of the Act. Contrary to 

what some of the commenters seemed to 

assume, when Congress enacted 

sections 223(d)(5)(B) and 1614(a)(3)(H) 

of the Act in 1984, it did not intend to 

alter in any way the relative weight that 

we place on reports received from 

treating sources and consultative 

examiners or preclude us from obtaining 

consultative examinations when we find 

it necessary to obtain additional 

information or resolve conflicting 

evidence.6

Second, we disagree that these rules 

would permit adjudicators to purchase 

CEs rather than develop evidence from 

a person’s medical source(s). We have 

regulations that govern the purchase of 

CEs, and those regulations provide, in 

part, that ‘‘Generally, we will not 

request a consultative examination until 

we have made every reasonable effort to 

obtain evidence from your own medical 

sources.’’ 7 Other CE regulations 

underscore this point by providing that 

‘‘If your medical sources cannot or will 

not give us sufficient medical evidence 

about your impairment, we may ask you 

to have one or more physical or mental 

examinations.8 Our CE regulations also 

provide that before purchasing a CE, we 

will consider your ‘‘existing medical 

reports.’’ 9 It is also important to note 

that, subject to certain requirements, 

‘‘your treating source will be the 

preferred source to do the purchased 

examination.’’ 10 We believe these 

regulations provide sufficient safeguards 

against any potential abuse of the CE 

process. 

We agree with the commenters who 

stated that the treating source can be a 

valuable source of evidence about a 

person’s condition. As we explained in 

the NPRM, there are times when we 

would still expect adjudicators to 

recontact a person’s medical source 

first; that is, when recontact is the most 

effective and efficient way to obtain the 

information needed to resolve an 

inconsistency or insufficiency in the 

evidence received from that source. In 

the NPRM, we also gave two examples 

of situations where we would expect 

adjudicators to contact the medical 

source first, because the additional 

information needed is directly related to 

that source’s medical opinion.11 In fact, 

we expect that adjudicators will often 

contact a person’s medical source(s) first 

whenever the additional information 

sought pertains to findings, treatment, 

and functional capacity, because the 

treating source may be the best source 

regarding these issues. 

In further response to the 

commenters’ concerns, we plan to 

conduct training on these final rules and 

will provide additional guidance on 

when adjudicators should recontact a 

person’s medical source(s) first for 

additional information. In addition, we 

are currently conducting comprehensive 

training regarding the development of 

evidence from a person’s medical 

source(s) and related rules regarding the 

purchase of CEs. These training efforts 

are ongoing and for adjudicators at all 

levels of the disability determination 

process. 

Comment: Several commenters 

believed that the proposed modification 

to the recontact requirement will 

sacrifice the best evidence from a 

person’s medical source(s) for the sake 

of efficiency, and will, therefore, result 

in less accurate decision making by 

adjudicators. 

Response: We disagree with the 

commenters. As we pointed out in 

response to the comments above, 

modifying the recontact requirement 

does not alter how we comply with the 

provisions of the Act that require us to 

make ‘‘every reasonable effort’’ to obtain 

medical evidence from the individual’s 

treating physician ‘‘prior to evaluating 

medical evidence obtained from any 

other source on a consultative basis.’’ 

Therefore, the efficiencies we expect to 

achieve by the changes we are making 

in these rules will not come at the 

expense of those statutory provisions. 

As we also noted in response to 

previous comments, we expect 

adjudicators will often recontact treating 

sources first in some situations because 

they may be the best sources of 

information about a person’s medical 

condition. Accordingly, we do not 

believe the modification to our recontact 

requirement will cause a qualitative 

change in the medical evidence we 

consider or produce less accurate 

disability determinations and decisions. 

Comment: One commenter noted that 

in the preamble to the NPRM, we gave 

two examples of when we believed it 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10653 

12 76 FR 20283. 

13 76 FR 20283. 

14 76 FR 20283. 

15See §§ 404.1527 and 416.927 for our rules on 

how we weigh medical opinion evidence, including 

opinions from treating sources. 

16See §§ 404.1512(e)(2) and 416.912(e)(2). 

17See 76 FR 20283. 

18POMS DI 22505.008B. 

would be ‘‘inefficient and ineffective’’ to 

require recontact with a person’s 

medical source. In one example, the 

person’s medical source did not 

specialize in the area of the impairment 

alleged and we needed more evidence 

about its current severity.12 We 

indicated that we may supplement the 

evidence ‘‘by obtaining a CE with a 

specialist (such as a pulmonologist) who 

can perform the type of examination we 

need to determine disability under our 

rules.’’ 13 In the other example, the 

medical records received contain a 

reference that the claimant has returned 

to work; we explained that it may be 

more appropriate to verify this 

information with the claimant and 

obtain related information rather than 

recontact the medical source.14 The 

commenter suggested that we include 

some examples in the regulations, but 

believed the first example appears to 

absolve adjudicators of their obligation 

to recontact the medical source if that 

source is not a specialist. 

Response: We did not adopt this 

comment because whether to obtain 

additional evidence often depends on 

specific case facts, and because we 

believe it is better to present examples 

in training and other instructions. As we 

indicated in response to the comments 

above, we plan to conduct training on 

these final rules and will provide 

additional guidance on when 

adjudicators should recontact a person’s 

medical source(s) first for additional 

information. We disagree with the 

commenter that the first example about 

obtaining a CE with a specialist would 

absolve adjudicators of any recontact 

obligation if a person’s medical source 

is not a specialist. Depending on the 

nature of the impairment or the 

additional information we need, it may 

be more appropriate for us to recontact 

the person’s medical source(s) first 

before considering the purchase of a CE 

with a specialist. Because the situations 

when we need to obtain additional 

information are so variable, the type of 

guidance the commenter asked us to 

include would be too extensive to put 

in the regulation. 

Comment: Several commenters said 

the proposed modification to the 

recontact requirement eliminates the 

‘‘treating physician rule,’’ which relates 

to our regulations on how we weigh 

medical opinions from treating sources 

and the deference we give these 

opinions under certain circumstances.15

These commenters also said that the 

proposed modification would diminish 

the role and weight of medical opinion 

evidence we receive from treating 

sources in our determination of 

disability. 

Response: We did not propose any 

changes to our regulations on how we 

weigh treating source opinions in the 

NPRM. In addition, we disagree that 

modification of our recontact 

requirement diminishes the importance 

of medical evidence we receive from 

treating sources. As we described in 

response to the comments above, we 

have rules regarding how we obtain and 

consider evidence from a person’s 

medical source(s) and rules that govern 

the purchase and use of CEs. These 

rules explain how we apply the 

provisions of the Act that require us to 

make ‘‘every reasonable effort’’ to obtain 

medical evidence from the individual’s 

treating physician before we consider 

purchase of a CE. We believe these rules 

provide adequate safeguards against 

possible attempts to undermine the 

evidence received from a person’s 

medical source(s), and we expect our 

adjudicators to follow these rules. 

Comment: One commenter expressed 

concern about the impact our proposed 

modification of the recontact 

requirement could have at the hearings 

level. The commenter believed that 

giving administrative law judges the 

option of contacting someone other than 

a person’s treating source(s) for 

additional information would make the 

proceeding adversarial. The commenter 

pointed out that our judges have a duty 

to develop the record fully and fairly 

and should seek out the most reliable 

evidence which, the commenter said, is 

‘‘presumptively’’ from a treating source. 

Response: We do not believe that 

modifying the recontact requirement 

will change the non-adversarial format 

of our administrative hearings. We agree 

that our judges have a duty to develop 

the record fully and fairly. Our rules 

regarding the development of medical 

evidence from a person’s medical 

source(s) and the purchase of CEs apply 

equally to the judges. As we have 

discussed at length in our prior 

responses to comments, we believe 

these rules prevent both abuse of the CE 

process and any attempt to undermine 

the evidence received from treating 

sources at all levels of the disability 

determination process, including the 

hearings level. 

Comment: Several commenters said 

the proposed modification to our 

recontact requirement is unnecessary 

because there is already an exception to 

this requirement in our current 

regulations that will permit adjudicators 

to contact someone other than the 

person’s medical source first. 

Response: We disagree with the 

commenters. Currently, the only 

exception to the recontact requirement 

is if we know from past experience that 

the medical source either cannot or will 

not provide the additional information 

we need.16 We believe, however, that 

this exception is not always broad 

enough to cover other situations when 

contact with a different source first 

would be more appropriate. In the 

NPRM, we gave the example of evidence 

received from a medical source 

referencing a claimant’s return to 

work.17 Although the medical source 

may know something about this issue, 

the claimant would usually be a more 

appropriate source to contact first, 

because the claimant would be more 

likely to have all of the related 

information we need regarding work 

issues. Under our current rules, 

however, the adjudicator would first 

have to recontact the medical source for 

additional information, which could 

delay adjudicating the case. Therefore, 

we have found that our current 

requirement, even with its one 

exception, is simply too rigid at a time 

when our adjudicators need more 

flexibility in developing evidence as 

quickly and efficiently as possible. 

Comment: One commenter said that 

the proposed regulation does not require 

us to document the case record when 

we know from past experience that a 

medical source either cannot or will not 

provide the additional information we 

need. This commenter also said it is 

unfair for us to assume that a medical 

source will not respond to an inquiry 

just because that source has been 

uncooperative in the past. 

Response: Our current instructions 

require adjudicators to document the 

case development summary whenever 

they do not attempt to recontact a 

medical source because of past 

experience with that source.18 Although 

these instructions are sub-regulatory, we 

expect our adjudicators to follow them, 

and we do not expect to change this 

procedure when we publish these final 

rules. In response to the commenter’s 

other concern, we do not believe it is 

reasonable to require our adjudicators to 

attempt to recontact a medical source 


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10654 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

19 76 FR 20282. 

20 76 FR 20283. 

21 76 FR 20283. 

22 76 FR 20283. 

when we know from past experience 

that this source either cannot or will not 

provide the information we need. Of 

course, adjudicators may recontact such 

a source whenever they have reason to 

believe that the source may provide 

information for a particular claimant. To 

require recontact in all cases, however, 

on the chance that the source might be 

cooperative, would not promote 

efficient claims adjudication. 

Comment: Several commenters said 

that rather than modifying our recontact 

requirement, we should instead find 

better ways to develop the evidence we 

need from a person’s medical source(s). 

Some of these commenters 

recommended that we send a medical 

source statement form to elicit 

information targeted to our specific 

disability criteria or templates of 

condition-specific questions at the same 

time we send our general request for 

records to a person’s medical source(s). 

Other commenters suggested that we 

establish even more requirements for 

recontacting medical sources. For 

example, they suggested that we require 

adjudicators to contact the claimant, a 

family member, or the claimant’s 

representative for assistance in 

recontacting the medical source(s), or 

that we require adjudicators to make at 

least three attempts to recontact a 

medical source(s) before ordering a CE. 

One of these commenters also suggested 

that we wait 45 days for feedback from 

the claimant or claimant’s 

representative after requesting 

assistance in recontacting a medical 

source(s). Several commenters said that 

claimants’ representatives can assist our 

adjudicators in getting the information 

they need and said we should develop 

better lines of communication between 

them. Another commenter suggested 

that we might be able to improve our 

ability to obtain additional information 

from a person’s medical source(s) by 

finding out whether the claimant is 

receiving services or support from 

another source that could assist us in 

getting information from treating 

sources, or by establishing a telephone 

dictation system for medical sources 

that may not have clerical support, or by 

paying treating sources that are 

unwilling to provide additional 

information without some financial 

compensation. 

Response: We did not adopt the 

comments. We believe our adjudicators 

need more flexibility to conduct case 

development in the most efficient way 

possible. Requiring them to repeatedly 

contact the medical source(s), or 

requiring them to wait for feedback or 

to contact another source for assistance 

in recontacting the medical source(s), 

regardless of the nature of the 

inconsistency or insufficiency in the 

evidence received, would not serve 

these goals. As we explained in the 

NPRM, ‘‘[d]epending on the nature of 

the inconsistency or insufficiency, there 

may be other, more appropriate sources 

from whom we could obtain the 

information we need.’’ 19 Therefore, 

adjudicators need more, not less, 

discretion than our current recontact 

requirement provides to obtain the 

needed information from the most 

appropriate source. In addition, we are 

confident that we will be able to 

identify and correct any problems in the 

exercise of that discretion, should they 

occur, through our quality review 

process. 

In further response to the 

commenters’ suggestions, it is important 

to note that we are always striving to 

find better methods of collecting 

medical evidence, such as using Health 

Information Technology (HIT). As we 

explained in the NPRM, using HIT will 

enable our adjudicators to access a 

person’s complete medical records upon 

receipt of a claim and reduce the 

number of CEs.20 In addition, our 

adjudicators already use a variety of 

methods to obtain the evidence we need 

to determine disability, including the 

use of forms and tailored requests for 

information from treating sources, 

which several commenters suggested. 

Our adjudicators also routinely contact 

claimants, representatives, and third 

parties designated by claimants for 

assistance in obtaining evidence. We 

will continue to explore ways of 

improving the medical evidence 

collection process, but there are many 

factors, especially cost, which we must 

consider before we can require any 

particular method of obtaining medical 

evidence. 

Moreover, we believe there should be 

a variety of methods available to our 

adjudicators, and that they should have 

the flexibility to determine which 

method of development would be the 

most appropriate given the facts in each 

case. We do not believe there is any one 

method that is always the most suitable 

or efficient, and therefore, do not 

believe we should require any of the 

suggestions made by the commenters in 

all cases. 

Comment: Several commenters noted 

our reference to HIT in the NPRM and 

said that using HIT cannot justify 

modifying the recontact requirement, 

because HIT is not yet widespread. 

Response: We did not intend our 

reference to HIT in the NPRM to be a 

justification for the proposed change to 

the recontact requirement. Instead, we 

mentioned HIT simply to point out that 

we are engaging in other efforts to 

improve the medical evidence 

collection process. Many of the 

commenters encouraged such efforts, 

and several of these commenters agreed 

with our view that increased use of HIT 

will speed our review of medical 

evidence, reduce the need to recontact 

treating sources, and reduce the number 

of CEs we might otherwise need to 

purchase.21 Although HIT is still in the 

early phases, we are positioning our 

agency to take full advantage of this 

technology as it becomes more 

widespread in the medical community. 

Comment: One commenter thought 

the organization of the proposed 

changes to our regulations on how we 

collect and consider evidence of 

disability was confusing and would be 

clearer if we reorganized those changes. 

Response: We did not adopt the 

comment. We received many comments 

on the NPRM, and it appears that the 

commenters generally had a good 

understanding of how we proposed to 

modify the recontact requirement. In 

addition, as we noted in the NPRM, we 

combined our rules on how we collect 

and consider evidence into one new 

section (final §§ 404.1520b and 

416.1520b), ‘‘so that these rules are 

easier to understand and apply.’’ 22 We 

believe the consolidation of our rules 

into one section will achieve these 

goals. 

Regulatory Procedures 

Executive Order 12866 as 

Supplemented by Executive Order 

13563 

We have consulted with the Office of 

Management and Budget (OMB) and 

determined that this final rule meets the 

requirements for a significant regulatory 

action under Executive Order 12866 as 

supplemented by Executive Order 

13563. Thus, OMB reviewed the final 

rule. 

Regulatory Flexibility Act 

We certify that this final rule will not 

have a significant economic impact on 

a substantial number of small entities 

because it only affects individuals. 

Accordingly, a regulatory flexibility 

analysis as provided in the Regulatory 

Flexibility Act, as amended, is not 

required. 

Paperwork Reduction Act 

This rule does not create any new or 

affect any existing collections and, 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10655 

therefore, does not require Office of 

Management Budget approval under the 

Paperwork Reduction Act. 

(Catalog of Federal Domestic Assistance 

Program Nos. 96.001, Social Security— 

Disability Insurance; 96.002, Social 

Security—Retirement Insurance; 96.004, 

Social Security—Survivors Insurance; and 

96.006, Supplemental Security Income) 

List of Subjects 

20 CFR Part 404 

Administrative practice and 

procedure; Blind; Disability benefits; 

Old-age, Survivors, and Disability 

Insurance; Reporting and recordkeeping 

requirements; Social Security. 

20 CFR Part 416 

Administrative practice and 

procedure; Aged, Blind, Disability 

benefits, Public assistance programs; 

Reporting and recordkeeping 

requirements; Supplemental Security 

Income (SSI). 

Michael J. Astrue, 

Commissioner of Social Security. 

For the reasons set out in the 

preamble, we are amending subpart P of 

part 404 and subpart I of part 416 of 

chapter III of title 20 Code of Federal 

Regulations as set forth below: 

PART 404—FEDERAL OLD-AGE, 

SURVIVORS AND DISABILITY 

INSURANCE (1950– ) 

Subpart P—[Amended] 

■ 1. The authority citation for subpart P 

of part 404 is revised to read as follows: 

Authority: Secs. 202, 205(a)–(b) and (d)– 

(h), 216(i), 221(a), (i), and (j), 222(c), 223, 

225, and 702(a)(5) of the Social Security Act 

(42 U.S.C. 402, 405(a)–(b) and (d)–(h), 416(i), 

421(a), (i), and (j), 422(c), 423, 425, and 

902(a)(5)); sec. 211(b), Pub. L. 104–193, 110 

Stat. 2105, 2189; sec. 202, Pub. L. 108–203, 

118 Stat. 509 (42 U.S.C. 902 note). 

■ 2. Amend § 404.1512 by revising the 

third sentence of paragraph (a) and the 

last sentence of paragraph (b)(6), by 

removing paragraph (e), redesignating 

paragraph (f) as (e) and revising the 

heading and first sentence, and 

redesignating paragraph (g) as (f), to 

read as follows: 

§ 404.1512 Evidence. 

(a) * * * This means that you must 

furnish medical and other evidence that 

we can use to reach conclusions about 

your medical impairment(s) and, if 

material to the determination of whether 

you are disabled, its effect on your 

ability to work on a sustained basis. 

* * * 

(b) * * * 

(6) * * * See § 404.1527(e)(2)–(3). 

* * * * * 

(e) Obtaining a consultative 

examination. We may ask you to attend 

one or more consultative examinations 

at our expense. * * * 

* * * * * 

■ 3. Amend § 404.1519a by revising 

paragraph (a), revising paragraph (b) 

introductory text, adding ‘‘or’’ after the 

semi-colon in paragraph (b)(3), 

removing paragraph (b)(4), and 

redesignating paragraph (b)(5) as (b)(4), 

to read as follows: 

§ 404.1519a When we will purchase a 

consultative examination and how we will 

use it. 

(a) General. If we cannot get the 

information we need from your medical 

sources, we may decide to purchase a 

consultative examination. See 

§ 404.1512 for the procedures we will 

follow to obtain evidence from your 

medical sources and § 404.1520b for 

how we consider evidence. Before 

purchasing a consultative examination, 

we will consider not only existing 

medical reports, but also the disability 

interview form containing your 

allegations as well as other pertinent 

evidence in your file. 

(b) Situations that may require a 

consultative examination. We may 

purchase a consultative examination to 

try to resolve an inconsistency in the 

evidence, or when the evidence as a 

whole is insufficient to allow us to make 

a determination or decision on your 

claim. Some examples of when we 

might purchase a consultative 

examination to secure needed medical 

evidence, such as clinical findings, 

laboratory tests, a diagnosis, or 

prognosis, include but are not limited 

to: 

* * * * * 

■ 4. Amend § 404.1520 by adding a 

sentence to the end of paragraph (a)(3) 

to read as follows: 

§ 404.1520 Evaluation of disability in 

general. 

(a) * * * 

(3) * * * See § 404.1520b. 

* * * * * 

■ 5. Add § 404.1520b to read as follows: 

§ 404.1520b How we consider evidence. 

After we review all of the evidence 

relevant to your claim, including 

medical opinions (see § 404.1527), we 

make findings about what the evidence 

shows. In some situations, we may not 

be able to make these findings because 

the evidence in your case record is 

insufficient or inconsistent. We consider 

evidence to be insufficient when it does 

not contain all the information we need 

to make our determination or decision. 

We consider evidence to be inconsistent 

when it conflicts with other evidence, 

contains an internal conflict, is 

ambiguous, or when the medical 

evidence does not appear to be based on 

medically acceptable clinical or 

laboratory diagnostic techniques. If the 

evidence in your case record is 

insufficient or inconsistent, we may 

need to take additional actions, as we 

explain in paragraphs (b) and (c) of this 

section. 

(a) If all of the evidence we receive, 

including all medical opinion(s), is 

consistent and there is sufficient 

evidence for us to determine whether 

you are disabled, we will make our 

determination or decision based on that 

evidence. 

(b) If any of the evidence in your case 

record, including any medical 

opinion(s), is inconsistent, we will 

weigh the relevant evidence and see 

whether we can determine whether you 

are disabled based on the evidence we 

have. 

(c) If the evidence is consistent but we 

have insufficient evidence to determine 

whether you are disabled, or if after 

weighing the evidence we determine we 

cannot reach a conclusion about 

whether you are disabled, we will 

determine the best way to resolve the 

inconsistency or insufficiency. The 

action(s) we take will depend on the 

nature of the inconsistency or 

insufficiency. We will try to resolve the 

inconsistency or insufficiency by taking 

any one or more of the actions listed in 

paragraphs (c)(1) through (c)(4) of this 

section. We might not take all of the 

actions listed below. We will consider 

any additional evidence we receive 

together with the evidence we already 

have. 

(1) We may recontact your treating 

physician, psychologist, or other 

medical source. We may choose not to 

seek additional evidence or clarification 

from a medical source if we know from 

experience that the source either cannot 

or will not provide the necessary 

evidence. If we obtain medical evidence 

over the telephone, we will send the 

telephone report to the source for 

review, signature, and return; 

(2) We may request additional 

existing records (see § 404.1512); 

(3) We may ask you to undergo a 

consultative examination at our expense 

(see §§ 404.1517 through 404.1519t); or 

(4) We may ask you or others for more 

information. 

(d) When there are inconsistencies in 

the evidence that we cannot resolve or 

when, despite efforts to obtain 

additional evidence, the evidence is 


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10656 Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 

insufficient to determine whether you 

are disabled, we will make a 

determination or decision based on the 

evidence we have. 

■ 6. Amend § 404.1527 as follows: 

■ a. Revise paragraph (b); 

■ b. Remove paragraph (c); 

■ c. Redesignate paragraphs (d) through 

(f) as (c) through (e); 

■ d. In newly redesignated paragraph (c) 

introductory text remove ‘‘(d)(2)’’ and 

add in its place ‘‘(c)(2)’’; 

■ e. In newly redesignated paragraph 

(c)(2) introductory text remove ‘‘(d)(2)(i) 

and (d)(2)(ii)’’ and add in its place 

‘‘(c)(2)(i) and (c)(2)(ii)’’ and remove 

‘‘(d)(3) through (d)(6)’’ and add in its 

place ‘‘(c)(3) through (c)(6)’’; 

■ f. In newly redesignated paragraph 

(d)(3) remove ‘‘(e)(1) and (e)(2)’’ and add 

in its place ‘‘(d)(1) and (d)(2)’’; 

■ g. In newly redesignated paragraph (e) 

introductory text remove ‘‘(a) through 

(e)’’ and add in its place ‘‘(a) through 

(d)’’; 

■ h. In newly redesignated paragraph 

(e)(2)(ii) remove ‘‘(a) through (e)’’ and 

add in its place ‘‘(a) through (d)’’; and 

■ i. In newly redesignated paragraph 

(e)(2)(iii) remove ‘‘(a) through (e)’’ and 

add in its place ‘‘(a) through (d)’’, to 

read as follows: 

§ 404.1527 Evaluating opinion evidence. 

* * * * * 

(b) How we consider medical 

opinions. In determining whether you 

are disabled, we will always consider 

the medical opinions in your case 

record together with the rest of the 

relevant evidence we receive. See 

§ 404.1520b. 

* * * * * 

■ 7. Amend § 404.1545 by revising the 

fifth sentence of paragraph (a)(3) to read 

as follows: 

§ 404.1545 Your residual functional 

capacity. 

(a) * * * 

(3) * * * (See §§ 404.1512(d) through 

(e).) * * * 

* * * * * 

PART 416—SUPPLEMENTAL 

SECURITY INCOME FOR THE AGED, 

BLIND, AND DISABLED 

Subpart I—[Amended] 

■ 8. The authority citation for subpart I 

of part 416 continues to read as follows: 

Authority: Secs. 221(m), 702(a)(5), 1611, 

1614, 1619, 1631(a), (c), (d)(1), and (p), and 

1633 of the Social Security Act (42 U.S.C. 

421(m), 902(a)(5), 1382, 1382c, 1382h, 

1383(a), (c), (d)(1), and (p), and 1383b); secs. 

4(c) and 5, 6(c)–(e), 14(a), and 15, Pub. L. 98– 

460, 98 Stat. 1794, 1801, 1802, and 1808 (42 

U.S.C. 421 note, 423 note, and 1382h note). 

■ 9. Amend § 416.912 by revising the 

third sentence of paragraph (a) and the 

last sentence of paragraph (b)(6), by 

removing paragraph (e), redesignating 

paragraph (f) as (e) and revising the 

heading and first sentence, and 

redesignating paragraph (g) as (f), to 

read as follows: 

§ 416.912 Evidence. 

(a) * * * If material to the 

determination whether you are disabled, 

medical and other evidence must be 

furnished about the effects of your 

impairment(s) on your ability to work, 

or if you are a child, on your 

functioning, on a sustained basis. * * * 

(b) * * * 

(6) * * * See § 416.927(e)(2)–(3). 

* * * * * 

(e) Obtaining a consultative 

examination. We may ask you to attend 

one or more consultative examinations 

at our expense. * * * 

* * * * * 

■ 10. Amend § 416.919a by revising 

paragraph (a), revising paragraph (b) 

introductory text, adding ‘‘or’’ after the 

semi-colon in paragraph (b)(3), 

removing paragraph (b)(4), and 

redesignating paragraph (b)(5) as (b)(4), 

to read as follows: 

§ 416.919a When we will purchase a 

consultative examination and how we will 

use it. 

(a) General. If we cannot get the 

information we need from your medical 

sources, we may decide to purchase a 

consultative examination. See § 416.912 

for the procedures we will follow to 

obtain evidence from your medical 

sources and § 416.920b for how we 

consider evidence. Before purchasing a 

consultative examination, we will 

consider not only existing medical 

reports, but also the disability interview 

form containing your allegations as well 

as other pertinent evidence in your file. 

(b) Situations that may require a 

consultative examination. We may 

purchase a consultative examination to 

try to resolve an inconsistency in the 

evidence or when the evidence as a 

whole is insufficient to support a 

determination or decision on your 

claim. Some examples of when we 

might purchase a consultative 

examination to secure needed medical 

evidence, such as clinical findings, 

laboratory tests, a diagnosis, or 

prognosis, include but are not limited 

to: 

* * * * * 

■ 11. Amend § 416.920 by adding a 

sentence to the end of paragraph (a)(3) 

to read as follows: 

§ 416.920 Evaluation of disability in 

general. 

(a) * * * 

(3) * * * See § 416.920b. 

* * * * * 

■ 12. Add § 416.920b to read as follows: 

§ 416.920b How we consider evidence. 

After we review all of the evidence 

relevant to your claim, including 

medical opinions (see § 416.927), we 

make findings about what the evidence 

shows. In some situations, we may not 

be able to make these findings because 

the evidence in your case record is 

insufficient or inconsistent. We consider 

evidence to be insufficient when it does 

not contain all the information we need 

to make our determination or decision. 

We consider evidence to be inconsistent 

when it conflicts with other evidence, 

contains an internal conflict, is 

ambiguous, or when the medical 

evidence does not appear to be based on 

medically acceptable clinical or 

laboratory diagnostic techniques. If the 

evidence in your case record is 

insufficient or inconsistent, we may 

need to take additional actions, as we 

explain in paragraphs (b) and (c) of this 

section. 

(a) If all of the evidence we receive, 

including all medical opinion(s), is 

consistent and there is sufficient 

evidence for us to determine whether 

you are disabled, we will make our 

determination or decision based on that 

evidence. 

(b) If any of the evidence in your case 

record, including any medical 

opinion(s), is inconsistent, we will 

weigh the relevant evidence and see 

whether we can determine whether you 

are disabled based on the evidence we 

have. 

(c) If the evidence is consistent but we 

have insufficient evidence to determine 

whether you are disabled, or if after 

weighing the evidence we determine we 

cannot reach a conclusion about 

whether you are disabled, we will 

determine the best way to resolve the 

inconsistency or insufficiency. The 

action(s) we take will depend on the 

nature of the inconsistency or 

insufficiency. We will try to resolve the 

inconsistency or insufficiency by taking 

any one or more of the actions listed in 

paragraphs (c)(1) through (c)(4) of this 

section. We might not take all of the 

actions listed below. We will consider 

any additional evidence we receive 

together with the evidence we already 

have. 

(1) We may recontact your treating 

physician, psychologist, or other 

medical source. We may choose not to 

seek additional evidence or clarification 


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Federal Register / Vol. 77, No. 36 / Thursday, February 23, 2012 / Rules and Regulations 10657 

1The interim final rules are available at http:// 

www.regulations.gov/#!documentDetail;D=SSA2011-0008-0001. 

from a medical source if we know from 

experience that the source either cannot 

or will not provide the necessary 

evidence. If we obtain medical evidence 

over the telephone, we will send the 

telephone report to the source for 

review, signature, and return; 

(2) We may request additional 

existing records (see § 416.912); 

(3) We may ask you to undergo a 

consultative examination at our expense 

(see §§ 416.917 through 416.919t); or 

(4) We may ask you or others for more 

information. 

(d) When there are inconsistencies in 

the evidence that we cannot resolve or 

when, despite efforts to obtain 

additional evidence, the evidence is 

insufficient to determine whether you 

are disabled, we will make a 

determination or decision based on the 

evidence we have. 

■ 13. Amend § 416.927 as follows: 

■ a. Revise paragraph (b); 

■ b. Remove paragraph (c); 

■ c. Redesignate paragraphs (d) through 

(f) as (c) through (e); 

■ d. In newly redesignated paragraph (c) 

introductory text remove ‘‘(d)(2)’’ and 

add in its place ‘‘(c)(2)’’; 

■ e. In newly redesignated paragraph 

(c)(2) introductory text remove ‘‘(d)(2)(i) 

and (d)(2)(ii)’’ and add in its place 

‘‘(c)(2)(i) and (c)(2)(ii)’’ and remove 

‘‘(d)(3) through (d)(6)’’ and add in its 

place ‘‘(c)(3) through (c)(6)’’; 

■ f. In newly redesignated paragraph 

(d)(3) remove ‘‘(e)(1) and (e)(2)’’ and add 

in its place ‘‘(d)(1) and (d)(2)’’; 

■ g. In newly redesignated paragraph (e) 

introductory text remove ‘‘(a) through 

(e)’’ and add in its place ‘‘(a) through 

(d)’’; 

■ h. In newly redesignated paragraph 

(e)(2)(ii) remove ‘‘(a) through (e)’’ and 

add in its place ‘‘(a) through (d)’’; and 

■ i. In newly redesignated paragraph 

(e)(2)(iii) remove ‘‘(a) through (e)’’ and 

add in its place ‘‘(a) through (d)’’, to 

read as follows: 

§ 416.927 Evaluating opinion evidence. 

* * * * * 

(b) How we consider medical 

opinions. In determining whether you 

are disabled, we will always consider 

the medical opinions in your case 

record together with the rest of the 

relevant evidence we receive. See 

§ 416.920b. 

* * * * * 

■ 14. Amend § 416.945 by revising the 

fifth sentence of paragraph (a)(3) to read 

as follows: 

§ 416.945 Your residual functional 

capacity. 

(a) * * * 

(3) * * * (See §§ 416.912(d) through 

(e).) * * * 

* * * * * 

[FR Doc. 2012–4177 Filed 2–22–12; 8:45 am] 

BILLING CODE 4191–02–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Docket No. SSA–2011–0008] 

RIN 0960–AH29 

Protecting the Public and Our 

Employees in Our Hearing Process 

AGENCY: Social Security Administration. 

ACTION: Final rule. 

SUMMARY: We are clarifying our 

regulations to ensure the safety of the 

public and our employees in our 

hearing process. Due to increasing 

reports of threats to our hearing office 

employees, we are taking steps to 

explicitly increase the level of 

protection we provide to our staff and 

to the public during the hearing process. 

We expect these changes to result in a 

safer work environment for our 

employees, while at the same time 

ensuring that our claimants continue to 

receive a full and fair hearing on their 

claims for benefits. 

DATES: These final rules are effective 

February 23, 2012. 

FOR FURTHER INFORMATION CONTACT: Glen 

Colvin, Social Security Administration, 

5107 Leesburg Pike, Falls Church, VA 

22041–3260, 703–605–8444, for 

information about this final rule. For 

information on eligibility or filing for 

benefits, call our national toll-free 

number, 1–800–772–1213 or TTY 

1–800–325–0778, or visit our Internet 

site, Social Security Online, at http:// 

www.socialsecurity.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

With one minor change, we are 

making final the rules protecting the 

public and our employees in our 

hearing process that we published as 

interim final rules in the Federal 

Register on March 14, 2011 (76 FR 

13506). The preamble to the interim 

final rules discussed the new rules and 

our reasons for proposing those 

additions. Interested readers may refer 

to the preamble to the interim final 

rules.1

Explanation of Changes 

We are revising our regulations at 

§§ 404.937 and 416.1437 to further 

describe when the Hearing Office Chief 

Administrative Law Judge will find a 

claimant or other individual poses a 

reasonable threat to the safety of our 

employees or other participants in the 

hearing. We are making these changes to 

respond to public comments we 

received. 

Public Comments on the Interim Final 

Rules 

In the interim final rules, we provided 

the public a 60-day comment period, 

which ended on May 13, 2011. We 

received three public comments. Since 

the comments were long, we have 

condensed, summarized, and 

paraphrased them. We summarized the 

commenters’ views and responded to 

the significant issues raised by the 

commenters that were within the scope 

of this rule. 

Comment: Two commenters wanted 

to make sure that the regulation 

consistently used the term ‘‘poses a 

threat’’ instead of any reference to ‘‘has 

made a threat’’ as the grounds for 

applying the regulation. 

Response: We expanded this section 

to clarify that the Hearing Office Chief 

Administrative Judge will find that an 

individual poses a threat if the 

individual either has made a threat and 

there is reasonable likelihood that the 

claimant or other individual could act 

on the threat, or if evidence suggests 

that the claimant or other individual 

poses a threat. 

Comment: Another commenter agreed 

with the goal of our interim final rules, 

but wanted to make sure that the 

regulation will not result in 

discrimination against claimants based 

on their disabilities, national origin, or 

primary language. 

Response: These regulations are 

designed to protect our employees and 

the public we serve regardless of their 

disabilities, national origin or primary 

language. Nothing in these regulations 

increases the likelihood of 

discrimination against any claimant or 

other individual based disability, 

national origin or primary language. 

Rather, the regulations focus solely on 

the conduct of the individual posing a 

threat and the consequences of such 

activity. 

Regulatory Procedures 

Executive Order 12866 as 

Supplemented by Executive Order 

13563 

We consulted with the Office of 

Management and Budget (OMB) and 


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