62676 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 

1 20 CFR 404.900 and 416.1400. 

2 20 CFR 404.1615(c)(1) and 416.1015(c)(1). 

3 20 CFR 404.1615(c)(2) and 416.1015(c)(2). In 

some States, we are testing a modification to the 

disability determination procedures that allows 

State agency disability examiners called ‘‘single 

decisionmakers’’ (SDM) to make both favorable and 

unfavorable determinations alone in some cases; 

that is, without working in a team with a medical 

or psychological consultant. 20 CFR 404.906(b)(2) 

and 416.1406(b)(2). We are continuing that testing. 

However, the changes in these final rules apply in 

all States, including SDM States. They allow SDMs 

and other disability examiners to make fully 

favorable determinations alone in QDD and 

compassionate allowance claims. 

4 20 CFR 404.1619 and 416.1019. Our data 

demonstrate that the model is working as we 

intend. See, for example, ‘‘Good Practices in Social 

Security: The Quick Disability Determination (QDD) 

and Compassionate Allowances (CAL) Initiatives: A 

case of the Social Security Administration,’’ 

International Social Security Association (ISSA), 

2009, available at: http://www.issa.int/aiss/ 

Observatory/Good-Practices/The-Quick-DisabilityDetermination-QDD-and-CompassionateAllowances-CAL-Initiatives. In that paper, we 

reported to ISSA that the processing time for QDD 

allowances is about 12 days. 

5 20 CFR part 404 subpart P appendix 1, which 

also applies to title XVI under 20 CFR 416.925. 

6 20 CFR 404.1520(a)(4)(iii) and (d) and 

416.920(a)(4)(iii) and (d). 

7See, generally, http://www.socialsecurity.gov/ 

compassionateallowances/. In October 2008, we 

issued an initial list of 50 conditions that we 

consider for compassionate allowance. See http:// 

www.socialsecurity.gov/compassionateallowances/ 

conditions.htm. We created this list based on input 

List of Subjects 

15 CFR Part 772 

Exports. 

15 CFR Part 774 

Exports, Reporting and recordkeeping 

requirements. 

■ Accordingly, Parts 772 and 774 of the 

Export Administration Regulations (15 

CFR Parts 730–774) are amended as 

follows: 

PART 772—[AMENDED] 

■ 1. The authority citation for Part 772 

continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; E.O. 13222, 66 FR 44025, 

3 CFR, 2001 Comp., p. 783; Notice of August 

12, 2010, 75 FR 50681 (August 16, 2010). 

■ 2. Section 772.1 is amended by adding 

the phrase ‘‘subclasses of energetic 

materials.’’ to the end of the definition 

for ‘‘Energetic materials.’’ 

PART 774—[AMENDED] 

■ 3. The authority citation for Part 774 

continues to read as follows: 

Authority: 50 U.S.C. app. 2401 et seq.; 50 

U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. 

7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 

seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 

42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 

1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 

U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 

13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 

228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 

Comp., p. 783; Notice of August 12, 2010, 75 

FR 50681 (August 16, 2010). 

■ 4. In Supplement No. 1 to Part 774 

(the Commerce Control List): 

■ a. Category 6 Sensors, ECCN 6A005 is 

amended by removing the reference 

‘‘6.A.5.d.1.d’’ and adding in its place 

‘‘6A005.d.1.d’’ in paragraph d.1.e in the 

Items paragraph of the List of Items 

Controlled section. 

■ b. Category 6—Sensors, ECCN 6A008 

is amended by removing the Note from 

paragraph f in the Items paragraph of 

the List of Items Controlled section. 

■ c. Category 9, Aerospace and 

Propulsion, ECCN 9A001 is amended by 

revising the introductory text of 

paragraph (a) in the Items paragraph of 

the List of Items Controlled section to 

read as follows: 

Supplement No. 1 to Part 774—The 

Commerce Control List 

* * * * * 

9A001 Aero gas turbine engines having 

any of the following (see List of Items 

Controlled). 

* * * * * 

List of Items Controlled 

* * * * * 

Items: 

a. Incorporating any of the technologies 

controlled by 9E003.a or 9E003.h; or 

* * * * * 

Bernard Kritzer, 

Director, Office of Exporter Services. 

[FR Doc. 2010–25554 Filed 10–12–10; 8:45 am] 

BILLING CODE 3510–33–P 

SOCIAL SECURITY ADMINISTRATION 

20 CFR Parts 404 and 416 

[Docket No. SSA–2008–0041] 

RIN 0960–AG87 

Disability Determinations by State 

Agency Disability Examiners 

AGENCY: Social Security Administration. 

ACTION: Final rules. 

SUMMARY: We are revising our rules on 

a temporary basis to permit State agency 

disability examiners to make fully 

favorable determinations in certain 

claims for disability benefits under titles 

II and XVI of the Social Security Act 

(Act) without the approval of a State 

agency medical or psychological 

consultant. These changes apply only to 

claims we consider under our rules for 

quick disability determinations (QDD) 

or under our compassionate allowance 

initiative. 

DATES: These final rules are effective on 

November 12, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Schoenberg, Office of 

Compassionate Allowances and 

Disability Outreach, Social Security 

Administration, 4692 Annex, 6401 

Security Boulevard, Baltimore, MD 

21235–6401, (410) 966–9408, for 

information about this notice. 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: 

Electronic Version 

The electronic file of this document is 

available on the date of publication in 

the Federal Register at http:// 

www.gpoaccess.gov/fr/index.html. 

Our Current Rules 

Under our current rules, a State 

agency disability examiner and a State 

agency medical or psychological 

consultant generally work together to 

make a disability determination at the 

first two levels of the administrative 

review process for adjudicating 

disability claims under titles II and XVI 

of the Act.1 The members of the team 

are jointly responsible for the 

determination.2 Except in prototype 

States, a State agency disability 

examiner may solely make a disability 

determination, without consulting a 

medical consultant, only when there is 

no medical evidence to evaluate and the 

claimant fails or refuses, without a good 

reason, to undergo a consultative 

examination.3

Although we evaluate all disability 

claims using the same criteria, we have 

developed two methods for expediting 

certain claims where there is a high 

probability that we will find the 

claimant disabled. In the QDD process, 

we use a computer-based predictive 

model to analyze specific elements of 

data in electronic claim files. The 

predictive model identifies claims in 

which there is a high potential that the 

claimant is disabled and in which we 

can quickly and easily obtain evidence 

supporting the claimant’s allegations.4

In the compassionate allowance 

initiative, we use a list of conditions to 

quickly identify diseases and other 

medical conditions that invariably 

qualify under the Listing of Impairments 

(‘‘listings’’) in our regulations 5 at step 3 

of the sequential evaluation process for 

initial claims 6 based on minimal, but 

sufficient, objective medical 

information.7


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 62677 

from a variety of sources, including the public. See, 

for example, 72 FR 41649 (2007), 73 FR 10715 

(2008), and 73 FR 66563 (2008). On March 1, 2010, 

we added another 38 conditions. See http:// 

www.socialsecurity.gov/compassionateallowances/ 

newconditions.htm. We plan to obtain more public 

input to determine whether and how to expand the 

list over time. 

8See Social Security Administration Strategic 

Plan 2008–2013, Strategic Goal 2, http:// 

www.ssa.gov/asp/StrategicGoal2.pdf. 

9 72 FR 51173 (Sept. 6, 2007). 

10 Id. at 51175. 

11 20 CFR 404.1526(c) and 416.926(c). 

12 20 CFR 404.1520(a)(4) and 416.920(a)(4). Fully 

favorable determinations based on medical 

equivalence or at step 5 are only a relatively small 

fraction of the QDD and compassionate allowance 

determinations we have made so far. 

13Section 1614(a)(3)(I) of the Act and 20 CFR 

416.903(f) and 416.1015(e). 

New QDD and Compassionate 

Allowance Rules 

These final rules allow disability 

examiners to make certain fully 

favorable determinations under our 

QDD rules or under our compassionate 

allowance initiative without the 

approval of a medical or psychological 

consultant. This change is consistent 

with our goal to allow cases that should 

be allowed as quickly as possible.8 It 

will also help us to process cases more 

efficiently because it will give State 

agency medical and psychological 

consultants more time to work on those 

complex cases for which we need their 

expertise. To accommodate this change, 

we are redesignating current 20 CFR 

404.1615(c)(3) and 416.1015(c)(3) as 

(c)(4) and adding new paragraphs 20 

CFR 404.1615(c)(3) and 416.1015(c)(3). 

This revision is a change from our 

prior position. When we published final 

rules extending the QDD process to all 

States,9 we declined to adopt a 

comment to allow disability examiners 

to make determinations without a 

medical or psychological consultant’s 

involvement.10 However, we now have 

about 3 years of experience using the 

QDD process nationally, and even 

longer experience in our Boston region. 

In light of our experience adjudicating 

QDD and compassionate allowance 

cases and our quality assurance reviews 

of determinations made in States that 

use single decisionmakers (SDMs), we 

believe it is appropriate to allow 

disability examiners to make some fully 

favorable determinations without a 

medical or psychological consultation. 

Our quality assurance reviews for the 

past 2 fiscal years show that the 

accuracy rates in the States that use 

SDMs are comparable to, if not higher 

than, the accuracy rates in those States 

that do not use SDMs. Moreover, many 

of the determinations included in our 

quality assurance reviews are more 

complex than QDD and compassionate 

allowance determinations. 

For these reasons, we expect that the 

accuracy rates of QDDs and 

compassionate allowance 

determinations made solely by State 

agency disability examiners will be 

comparable to the accuracy rate of the 

determinations now made in 

consultation with medical examiners. 

We will also have measures in place, in 

addition to quality assurance reviews, 

that will provide us with information 

about the quality of QDDs and 

compassionate allowance 

determinations. Therefore, we will be 

monitoring these determinations made 

by State agency disability examiners. 

We are also including a 3-year ‘‘sunset 

date,’’ after which final sections 

404.1615(c)(3) and 416.1015(c)(3) will 

no longer be effective, unless we 

terminate the rules earlier or extend 

them beyond that date by notice of a 

final rule in the Federal Register. 

State agency disability examiners who 

make fully favorable determinations 

under these final rules will still have the 

option of consulting with State agency 

medical and psychological consultants 

when they deem it necessary. We will 

continue to require State agency 

disability examiners to consult with 

State agency medical or psychological 

consultants before they make a fully 

favorable determination based on a 

claimant’s impairment(s) medically 

equaling the severity of a listing at step 

3.11 Further, to make a fully favorable 

determination at step 5, adjudicators 

generally must first determine that a 

claimant does not have an 

impairment(s) that meets or medically 

equals a listing. In these cases, they will 

have also had to consult with a medical 

or psychological consultant to 

determine that there were no 

impairments that medically equaled a 

listing.12 Regardless of whether the State 

agency disability examiner chooses to 

consult with a State agency medical or 

psychological consultant or is required 

to do so, the disability examiner is 

solely responsible for the determination. 

These final rules do not apply to 

claims for supplemental security 

income payments under title XVI for 

persons under age 18. The Act requires 

us to make reasonable efforts to ensure 

that a qualified pediatrician or other 

medical professional who specializes in 

a field of medicine appropriate to the 

child’s medical impairment(s) evaluates 

the child’s case.13 We interpret this 

statutory requirement to mean that a 

medical or psychological consultant 

must participate as part of a team in all 

State agency determinations of 

childhood disability under title XVI, 

including fully favorable 

determinations. 

Other Changes 

These final rules apply only to claims 

adjudicated under the QDD process or 

the compassionate allowance initiative. 

Our current regulations explain the 

QDD process but not the compassionate 

allowance initiative. Therefore, we are 

adding a definition of ‘‘compassionate 

allowance’’ in 20 CFR 404.1602 and 

416.1002, the sections of part 404 

subpart Q and part 416 subpart J that 

provide definitions of terms. 

We are also making a number of 

conforming changes to our rules to 

reflect our QDD and compassionate 

allowance rules in final 20 CFR 

404.1615(c)(3) and 416.1015(c)(3). For 

example, we are revising 20 CFR 

404.1546 and 416.946 to recognize that 

it is possible in some cases for a State 

agency disability examiner to be 

responsible for assessing a claimant’s 

residual functional capacity. We are also 

revising 20 CFR 404.1512, 404.1527, 

416.912, and 416.927 to account for 

situations in which State agency 

disability examiners will weigh State 

agency medical or psychological 

consultant input as opinion evidence. 

These rules are similar to our current 

rules for administrative law judges 

(ALJs) and the Appeals Council (when 

the Appeals Council makes a decision). 

We are revising 20 CFR 404.1520a and 

416.920a to authorize State agency 

disability examiners to evaluate the 

severity of mental impairment(s), and to 

complete the standard document 

showing how the disability examiner 

applied the special technique required 

by that section, in cases in which they 

make fully favorable QDD and 

compassionate allowance 

determinations when claimants have a 

mental impairment(s). While we did not 

propose specific revisions to 20 CFR 

404.1520a and 416.920a in the NPRM, 

these revisions are consistent with our 

proposal to allow State agency disability 

examiners to decide QDD and 

compassionate allowance cases without 

the approval of a medical or 

psychological consultant. Because the 

current QDD model and the current list 

of compassionate allowance conditions 

include mental impairments, we need to 

make these revisions to allow State 

agency disability examiners to decide 

those cases alone, as we proposed. 

These final rules include revisions to 

rules that relate to both the initial and 

reconsideration levels of the 

administrative review process under 20 

CFR 404.1602 and 416.1002. We are 

making these revisions because: 


jdjones on DSK8KYBLC1PROD with RULES
62678 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 

14 20 CFR 404.907 and 416.1407. 15Sections 221(c)(3) and 1633(e)(2) of the Act. 16See footnote 3, above. 

(1) Unlike the QDD process, the 

compassionate allowance initiative is 

not limited to the initial level of 

administrative review; and (2) any 

claimant who is dissatisfied with our 

determination—even a determination 

allowing a claimant’s claim in full—may 

request a reconsideration.14

Finally, we are making minor 

editorial changes to several rules to 

recognize that State agency medical 

consultants are not always physicians. 

These changes will conform these rules 

to current 20 CFR 404.1616 and 

416.1016. We also are correcting a 

grammatical error in 20 CFR 

404.1619(b)(2) and 416.1019(b)(2) and 

making other minor editorial changes 

throughout these final rules. 

Relationship of These Rules to Notice of 

Proposed Rulemaking ‘‘Reestablishing 

Uniform National Disability 

Adjudication Provisions’’ 

We published a notice of proposed 

rulemaking (NPRM) ‘‘Reestablishing 

Uniform National Disability 

Adjudication Provisions’’ in the Federal 

Register on December 4, 2009. 74 FR 

63688. We proposed different revisions 

to several of the regulatory sections 

revised by these final rules. The 

language in these final rules is 

controlling. We are still evaluating the 

comments on the December 4, 2009, 

NPRM. 

Public Comments 

We published a NPRM in the Federal 

Register on March 4, 2010, and we gave 

the public 30 days to comment on the 

NPRM. 75 FR 9821. We received 

comments from five persons and 

organizations during this period. We 

carefully read and considered each of 

them. They are available for public 

viewing at http://www.regulations.gov. 

Because some of the comments were 

long, we have condensed, summarized, 

and paraphrased them. We have tried to 

summarize the commenters’ views 

accurately and to respond to the 

significant issues raised by the 

commenters that were within the scope 

of these rules. 

Comment: Four of the commenters 

supported our proposed rules, but one 

commenter opposed them based on his 

experience working as a medical 

consultant in a State agency. He said 

that his State agency’s attempt to have 

disability examiners make 

determinations without medical 

consultant involvement or approval 

failed and would fail again. The 

commenter generally questioned the 

qualifications of disability examiners, 

State agency managers, and quality 

control personnel. The commenter said 

that our ‘‘[p]ilot studies with tight 

controls and everybody acting on good 

behavior’’ would not be representative of 

the deterioration in quality that he 

thought would occur over time under 

our proposed rules. He preferred that 

State agency disability examiners 

continue to work with State agency 

medical consultants on all claims to 

achieve a balance in quality and resist 

possible ‘‘corruption of the 

[decisionmaking] process.’’ 

Response: We disagree with this 

comment. We are confident that 

disability examiners are competent and 

able to make these fully favorable 

determinations. Our confidence is 

bolstered by the success of the pilot. We 

simply do not agree with the 

commenter’s assessment of the skills 

and competence of disability examiners, 

managers, and quality control 

personnel. We believe they are highlyskilled and capable employees who do 

a fine job for us. 

Moreover, the commenter’s personal 

experience with one State agency ended 

almost 20 years ago. His personal 

experience does not take into account 

our more recent experience with the 

SDM initiatives. Our more recent 

experience, which involves the 

adjudication of tens of thousands of 

cases in 20 State agencies, does not 

show the types of problems cited by the 

commenter. 

Furthermore, these final rules allow 

State agency disability examiners to 

make only fully favorable QDD and 

compassionate allowance 

determinations. Our procedures for the 

two initiatives ensure that we select 

cases that we are very likely to allow. In 

fact, we make fully favorable 

determinations in the great majority of 

cases we identify for QDD and 

compassionate allowances. Given our 

program experience using these 

initiatives, we believe that we do not 

need State agency medical or 

psychological consultants to approve 

these determinations and that the State 

agencies can better use the services of 

their medical and psychological 

consultants for more complex cases in 

which we need their medical expertise. 

Moreover, we are confident that we 

will be able to quickly detect and 

correct any quality issues, should they 

occur, through our quality assurance 

reviews. We are also required by statute 

to review at least 50 percent of all State 

agency allowances,15 and this sample 

includes QDD and compassionate 

allowance determinations. To further 

ensure that these final rules do not 

result in any unforeseen or unintended 

consequences, we are including in final 

sections 404.1615(c)(3) and 

416.1015(c)(3) a 3-year sunset date and 

a provision that allows us to terminate 

the new process even sooner if we 

determine that it would be appropriate 

to do so. 

Comment: The same commenter also 

said that our NPRM was ‘‘unbalanced’’ 

because we authorized State agency 

disability examiners to make only fully 

favorable determinations. The 

commenter asserted that this restriction 

indicated that we believed that State 

agency disability examiners were more 

competent to make allowance 

determinations than denials and that 

claimants deserve professional medical 

input before being denied benefits. 

Another commenter thought our NPRM 

was too restrictive and asked us to 

authorize State agency disability 

examiners to also make partially 

favorable determinations, such as 

favorable determinations with onset 

dates later than claimants allege. 

Response: We disagree with the first 

commenter. We want to make fully 

favorable determinations as quickly as 

possible for claimants who should 

receive them. We have determined that 

State agency disability examiners are 

capable of making fully favorable QDD 

and compassionate allowance 

determinations. 

The first commenter seems to have 

also misunderstood the intent of our 

proposal. We proposed, and decided to 

adopt, rules that apply only to a subset 

of our allowance determinations, not all 

allowances. As we explain above, we 

have been and are still conducting 

another project that authorizes State 

agency disability examiners to make 

both more complex favorable 

determinations and unfavorable 

determinations.16

We also did not adopt the second 

comment to authorize State agency 

disability examiners to make partially 

favorable determinations. These 

determinations require findings that a 

claimant was either disabled at a later 

onset date than the claimant alleged or 

that the claimant had a ‘‘closed’’ period 

of disability and is no longer disabled. 

Thus, the same considerations that led 

us to exclude unfavorable 

determinations and continuing 

disability reviews also apply to partially 

favorable determinations. We proposed 

to authorize State agency disability 

examiners to make only what are 

essentially some of the most obvious 

allowance determinations in our 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 62679 

17 ‘‘Attorney Advisor Program Sunset Date 

Extension,’’ 74 FR 33327. 

18 75 FR at 9822. 

caseload. At this time, we are not 

expanding that authority to partially 

favorable or unfavorable determinations. 

Comment: We received two comments 

about the sunset date from commenters 

who supported the NPRM. One 

commenter asked why we included a 

sunset date and suggested that we make 

these rules permanent. Another 

commenter supported the sunset date in 

case we find that the process is not 

working satisfactorily. 

Response: We decided to include a 

sunset date for these rules because we 

believe that we need to evaluate how 

the rules work in practice. If we decide 

based on that evaluation that the 

process is not working satisfactorily, the 

sunset date will allow us to let the 

program expire without the need for an 

additional change to our rules. The 

sunset date requires us only to publish 

a final rule in the Federal Register to 

notify the public if we decide to extend 

the process beyond the 3-year period or 

to terminate it before the expiration of 

that period. We do not need to publish 

new regulations or propose changes if 

we want the process to end at the 

expiration of the 3-year period. We have 

used sunset dates in some of our other 

rules, and we have extended them when 

we have determined that they are 

working well. For example, on July 13, 

2009, we extended our rules that allow 

attorney advisors in hearing offices to 

conduct prehearing proceedings, which 

include issuing fully favorable decisions 

at the ALJ hearing level.17

Comment: One commenter disagreed 

with the statement in our preamble that 

said: ‘‘We would also require State 

agency disability examiners to consult 

with State agency medical or 

psychological consultants before they 

make a fully favorable determination 

based on medical equivalence to a 

listing at step 3 or based on a finding of 

inability to do other work at step 5 of 

our sequential evaluation process.’’ 18

The commenter wanted us to authorize 

State agency disability examiners to 

make fully favorable determinations 

based on medical equivalence without 

needing to first obtain ‘‘approval’’ from 

State agency medical or psychological 

consultants. The commenter believed 

that the requirement we described 

would severely restrict disability 

examiner authority in QDD and 

compassionate allowance claims and 

make the rules ‘‘almost impractical.’’ 

Response: We believe the commenter 

may have misunderstood our proposed 

rule. We did not say that State agency 

disability examiners would need 

approval from a State agency medical or 

psychological consultant before issuing 

a fully favorable determination in this 

process. We simply explained that State 

agency disability examiners who are 

solely responsible for QDD and 

compassionate allowance 

determinations would be subject to the 

same rules about determining medical 

equivalence as other decisionmakers at 

other levels of our administrative review 

process when we cannot allow a case as 

a QDD or compassionate allowance. 

Under our longstanding regulations, 

all adjudicators at all levels of the 

administrative review process must 

consider the opinion of ‘‘one or more 

medical or psychological consultants 

designated by the Commissioner’’ 

whenever they make a finding that an 

impairment(s) does or does not 

medically equal a listing. 20 CFR 

404.1526(c) and 416.926(c). 

These requirements apply to State 

agency disability examiners. At the 

initial and reconsideration levels of the 

administrative review process, the 

requirement for medical or 

psychological consultant input is 

normally satisfied because a State 

agency medical or psychological 

consultant is part of a team that makes 

the determination. 

We disagree with the commenter’s 

opinion that requiring State agency 

disability examiners to follow the same 

rule as other adjudicators would make 

our proposal impractical. Most 

claimants who qualify under the QDD 

and compassionate allowance initiatives 

have impairments that meet listings, 

and these rules do not require disability 

examiners to consult with a medical or 

psychological consultant before 

determining that a claimant’s 

impairment(s) meets a listing. 

Under the new process in these final 

rules, State agency disability examiners 

will be solely responsible for their fully 

favorable QDD and compassionate 

allowance determinations. Nevertheless, 

if in QDD and compassionate allowance 

cases, disability examiners are not able 

to find that a claimant’s impairment(s) 

meets the severity of a listed 

impairment, they will need to follow the 

longstanding requirement to obtain an 

opinion about medical equivalence from 

medical or psychological consultants. 

Although they must obtain and review 

such opinions, State agency disability 

examiners are not bound to accept them 

as binding, and the State agency 

medical or psychological consultants 

will not need to ‘‘approve’’ the 

determinations. 

Also, these final rules do not require 

a State agency disability examiner to 

obtain an opinion about residual 

functional capacity before making a 

fully favorable determination. In the 

NPRM’s preamble, we were explaining 

only that, to allow a case at step 5 of the 

sequential evaluation process, a State 

agency disability examiner will 

necessarily have had to obtain a State 

agency medical or psychological 

consultant’s opinion about medical 

equivalence at step 3. 

Authority for These Final Rules 

Under the Act, we have full power 

and authority to make rules and 

regulations and to establish necessary or 

appropriate procedures to carry out the 

provisions of the Act. Sections 205(a), 

702(a)(5), and 1631(d)(1). In addition, 

we have the power to promulgate 

regulations that establish the procedures 

State agencies must follow when 

performing the disability determination 

function for us. Sections 221(a)(2) and 

1633. 

Regulatory Procedures 

Executive Order 12866 

We consulted with the Office of 

Management and Budget (OMB) and 

determined that these final rules meet 

the criteria for a significant regulatory 

action under Executive Order 12866. 

Thus, OMB reviewed them. 

The Office of the Chief Actuary 

provided two estimates of the effects of 

these final rules, due to uncertainty over 

the extent to which the compassionate 

allowance initiative and the predictive 

model underlying the QDD process can 

be enhanced. The first estimate assumes 

the percent of cases designated QDD or 

compassionate allowance remains at the 

recent level (3.8%). The second estimate 

assumes that we will adjudicate 6% of 

all cases under the QDD or 

compassionate allowance models by the 

end of fiscal year (FY) 2012. The 

following table presents the year-by-year 

estimates of the effect of these final 

rules on OASDI benefit payments and 

Federal SSI payments for the fiscal year 

period 2010–2019 under these two sets 

of assumptions. All estimates are based 

on the assumptions underlying the 

President’s FY 2010 Budget and assume 

these final rules are effective July 1, 

2010. The estimates reflect projected 

costs should the changes be extended 

through 2019. 


jdjones on DSK8KYBLC1PROD with RULES
62680 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 

TABLE 1—ESTIMATED INCREASES IN

OASDI BENEFITS AND FEDERAL SSI 

PAYMENTS—RETAIN QDD AND

COMPASSIONATE ALLOWANCE AT

3.8% OF ALL INITIAL RECEIPTS

[In millions] 

Fiscal year OASDI SSI Total 

2010 ....................... * * * 

2011 ....................... * * * 

2012 ....................... $1 * $1 

2013 ....................... 1 * 1 

2014 ....................... 1 * 1 

2015 ....................... 1 * 1 

2016 ....................... 1 * 1 

2017 ....................... 1 * 1 

2018 ....................... 1 * 2 

2019 ....................... 2 * 2 

Totals: 

2010–14 ............. 2 * 3 

2010–19 ............. 9 1 10 

* Increase in OASDI benefit payments or 

Federal SSI payments of less than $500,000. 

(Totals may not equal the sum of components 

due to rounding.) 

TABLE 2—ESTIMATED INCREASES IN

OASDI BENEFITS AND FEDERAL SSI 

PAYMENTS—EXPAND QDD AND

COMPASSIONATE ALLOWANCE TO

6% OF ALL INITIAL RECEIPTS

[In millions] 

Fiscal year OASDI SSI Total 

2010 ....................... * * * 

2011 ....................... * * $1 

2012 ....................... $1 * 1 

2013 ....................... 2 * 2 

2014 ....................... 2 * 2 

2015 ....................... 2 * 3 

2016 ....................... 3 * 3 

2017 ....................... 3 * 3 

2018 ....................... 3 * 4 

2019 ....................... 4 $1 4 

Totals: 

2010–14 ............. 5 1 6 

2010–19 ............. 20 3 23 

* Increase in OASDI benefit payments or 

Federal SSI payments of less than $500,000. 

(Totals may not equal the sum of components 

due to rounding.) 

Regulatory Flexibility Act 

We certify that these final rules do not 

have a significant economic impact on 

a substantial number of small entities as 

they affect only States and individuals. 

Therefore, the Regulatory Flexibility 

Act, as amended, does not require us to 

make a regulatory flexibility analysis. 

Paperwork Reduction Act 

These final rules do not create any 

new or affect any existing collections. 

They do not require Office of 

Management and Budget approval 

under the Paperwork Reduction Act. 

(Catalog of Federal Domestic Assistance 

Program No 96.001, Social Security— 

Disability Insurance; 96.002, Social 

Security—Retirement Insurance; 96.004, 

Social Security—Survivors Insurance; 

96.006, Supplemental Security Income) 

List of Subjects 

20 CFR Part 404 

Administrative practice and 

procedure, Blind, Disability benefits, 

Old-age, Survivors and Disability 

Insurance, Reporting and recordkeeping 

requirements, Social Security. 

20 CFR Part 416 

Administrative practice and 

procedure, 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 20 CFR part 

404 subparts P and Q and part 416 

subparts I and J 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 removing the 

word ‘‘and’’ from the end of paragraph 

(b)(5), redesignating paragraph (b)(6) as 

paragraph (b)(8) and revising 

redesignated paragraph (b)(8), and 

adding new paragraphs (b)(6) and (b)(7) 

to read as follows: 

§ 404.1512 Evidence. 

* * * * * 

(b) * * * 

(6) At the initial level of the 

administrative review process, when a 

State agency disability examiner makes 

the initial determination alone (see 

§ 404.1615(c)(3)), opinions provided by 

State agency medical and psychological 

consultants based on their review of the 

evidence in your case record (see 

§ 404.1527(f)(1)(ii)); 

(7) At the reconsideration level of the 

administrative review process, when a 

State agency disability examiner makes 

the determination alone (see 

§ 404.1615(c)(3)), findings, other than 

the ultimate determination about 

whether you are disabled, made by State 

agency medical or psychological 

consultants and other program 

physicians, psychologists, or other 

medical specialists at the initial level of 

the administrative review process, and 

other opinions they provide based on 

their review of the evidence in your case 

record at the initial and reconsideration 

levels (see § 404.1527(f)(1)(iii)); and 

(8) At the administrative law judge 

and Appeals Council levels (including 

the administrative law judge and 

Decision Review Board levels in claims 

adjudicated under the procedures in 

part 405 of this chapter), 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, or other 

medical specialists, and opinions 

expressed by medical experts or 

psychological experts that we consult 

based on their review of the evidence in 

your case record. See §§ 404.1527(f)(2)– 

(3). 

* * * * * 

■ 3. Amend § 404.1520a by adding a 

third sentence to the introductory text of 

paragraph (e), revising paragraph (e)(1), 

redesignating paragraphs (e)(2) and 

(e)(3) as paragraphs (e)(4) and (e)(5), and 

adding new paragraphs (e)(2) and (e)(3) 

to read as follows: 

§ 404.1520a Evaluation of mental 

impairments. 

* * * * * 

(e) Documenting application of the 

technique. * * * The following rules 

apply: 

(1) When a State agency medical or 

psychological consultant makes the 

determination together with a State 

agency disability examiner at the initial 

or reconsideration level of the 

administrative review process as 

provided in § 404.1615(c)(1), the State 

agency medical or psychological 

consultant has overall responsibility for 

assessing medical severity. At the initial 

level in claims adjudicated under the 

procedures in part 405 of this chapter, 

a medical or psychological expert (as 

defined in § 405.5 of this chapter) has 

overall responsibility for assessing 

medical severity. A State agency 

disability examiner may assist in 

preparing the standard document. 

However, our medical or psychological 

consultant (or the medical or 

psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) must review 

and sign the document to attest that it 

is complete and that he or she is 

responsible for its content, including the 

findings of fact and any discussion of 

supporting evidence. 


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Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 62681 

(2) When a State agency disability 

examiner makes the determination 

alone as provided in § 404.1615(c)(3), 

the State agency disability examiner has 

overall responsibility for assessing 

medical severity and for completing and 

signing the standard document. 

(3) When a disability hearing officer 

makes a reconsideration determination 

as provided in § 404.1615(c)(4), the 

determination must document 

application of the technique, 

incorporating the disability hearing 

officer’s pertinent findings and 

conclusions based on this technique. 

* * * * * 

■ 4. Amend § 404.1527 by revising 

paragraph (f)(1), and revising paragraphs 

(f)(2)(i) and (f)(2)(ii) to read as follows: 

§ 404.1527 Evaluating opinion evidence. 

* * * * * 

(f) * * * 

(1) In claims adjudicated by the State 

agency, a State agency medical or 

psychological consultant (or a medical 

or psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) may make the 

determination of disability together with 

a State agency disability examiner or 

provide one or more medical opinions 

to a State agency disability examiner 

when the disability examiner makes the 

initial or reconsideration determination 

alone (see § 404.1615(c)). The following 

rules apply: 

(i) When a State agency medical or 

psychological consultant makes the 

determination together with a State 

agency disability examiner at the initial 

or reconsideration level of the 

administrative review process as 

provided in § 404.1615(c)(1), he or she 

will consider the evidence in your case 

record and make findings of fact about 

the medical issues, including, but not 

limited to, the existence and severity of 

your impairment(s), the existence and 

severity of your symptoms, whether 

your impairment(s) meets or medically 

equals the requirements for any 

impairment listed in appendix 1 to this 

subpart, and your residual functional 

capacity. These administrative findings 

of fact are based on the evidence in your 

case but are not in themselves evidence 

at the level of the administrative review 

process at which they are made. 

(ii) When a State agency disability 

examiner makes the initial 

determination alone as provided in 

§ 404.1615(c)(3), he or she may obtain 

the opinion of a State agency medical or 

psychological consultant about one or 

more of the medical issues listed in 

paragraph (f)(1)(i) of this section. In 

these cases, the State agency disability 

examiner will consider the opinion of 

the State agency medical or 

psychological consultant as opinion 

evidence and weigh this evidence using 

the relevant factors in paragraphs (a) 

through (e) of this section. 

(iii) When a State agency disability 

examiner makes a reconsideration 

determination alone as provided in 

§ 404.1615(c)(3), he or she will consider 

findings made by a State agency medical 

or psychological consultant at the initial 

level of the administrative review 

process and any opinions provided by 

such consultants at the initial and 

reconsideration levels as opinion 

evidence and weigh this evidence using 

the relevant factors in paragraphs (a) 

through (e) of this section. 

(2) * * * 

(i) Administrative law judges are not 

bound by any findings made by State 

agency medical or psychological 

consultants, or other program 

physicians or psychologists. State 

agency medical and psychological 

consultants and other program 

physicians, psychologists, and other 

medical specialists are highly qualified 

physicians, psychologists, and other 

medical specialists who are also experts 

in Social Security disability evaluation. 

Therefore, administrative law judges 

must consider findings and other 

opinions of State agency medical and 

psychological consultants and other 

program physicians, psychologists, and 

other medical specialists as opinion 

evidence, except for the ultimate 

determination about whether you are 

disabled (see § 404.1512(b)(8)). 

(ii) When an administrative law judge 

considers findings of a State agency 

medical or psychological consultant or 

other program physician, psychologist, 

or other medical specialist, the 

administrative law judge will evaluate 

the findings using the relevant factors in 

paragraphs (a) through (e) of this 

section, such as the consultant’s 

medical specialty and expertise in our 

rules, the supporting evidence in the 

case record, supporting explanations the 

medical or psychological consultant 

provides, and any other factors relevant 

to the weighing of the opinions. Unless 

a treating source’s opinion is given 

controlling weight, 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, 

psychologist, or other medical 

specialist, as the administrative law 

judge must do for any opinions from 

treating sources, nontreating sources, 

and other nonexamining sources who 

do not work for us. 

* * * * * 

■ 5. Amend § 404.1529 by removing 

‘‘§§ 404.1512(b)(2) through (6)’’ in the 

third sentence of paragraph (a) and 

adding ‘‘§§ 404.1512(b)(2) through (8)’’ 

in its place, and by revising the third 

sentence of paragraph (b), to read as 

follows: 

§ 404.1529 How we evaluate symptoms, 

including pain. 

* * * * * 

(b) * * * In cases decided by a State 

agency (except in disability hearings 

under §§ 404.914 through 404.918 and 

in fully favorable determinations made 

by State agency disability examiners 

alone under § 404.1615(c)(3)), a State 

agency medical or psychological 

consultant or other medical or 

psychological consultant designated by 

the Commissioner (or a medical or 

psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) directly 

participates in determining whether 

your medically determinable 

impairment(s) could reasonably be 

expected to produce your alleged 

symptoms. * * * 

* * * * * 

■ 6. Revise § 404.1546(a) to read as 

follows: 

§ 404.1546 Responsibility for assessing 

your residual functional capacity. 

(a) Responsibility for assessing 

residual functional capacity at the State 

agency. 

When a State agency medical or 

psychological consultant and a State 

agency disability examiner make the 

disability determination as provided in 

§ 404.1615(c)(1), a State agency medical 

or psychological consultant(s) (or a 

medical or psychological expert (as 

defined in § 405.5 of this chapter) in 

claims adjudicated under the 

procedures in part 405 of this chapter) 

is responsible for assessing your 

residual functional capacity. When a 

State agency disability examiner makes 

a disability determination alone as 

provided in § 404.1615(c)(3), the 

disability examiner is responsible for 

assessing your residual functional 

capacity. 

* * * * * 

Subpart Q—[Amended] 

■ 7. The authority citation for subpart Q 

of part 404 continues to read as follows: 

Authority: Secs. 205(a), 221, and 702(a)(5) 

of the Social Security Act (42 U.S.C. 405(a), 

421, and 902(a)(5)). 


jdjones on DSK8KYBLC1PROD with RULES
62682 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 

■ 8. Amend § 404.1602 by adding a 

definition of ‘‘compassionate allowance’’ 

in alphabetical order to read as follows: 

§ 404.1602 Definitions. 

* * * * * 

Compassionate allowance means a 

determination or decision we make 

under a process that identifies for 

expedited handling claims that involve 

impairments that invariably qualify 

under the Listing of Impairments in 

appendix 1 to subpart P based on 

minimal, but sufficient, objective 

medical evidence. 

* * * * * 

■ 9. Amend § 404.1615 by revising the 

introductory text of paragraph (c), 

removing the word ‘‘or’’ at the end of 

paragraph (c)(2), redesignating 

paragraph (c)(3) as paragraph (c)(4), and 

adding a new paragraph (c)(3) to read as 

follows: 

§ 404.1615 Making disability 

determinations. 

* * * * * 

(c) Disability determinations will be 

made by: 

* * * * * 

(3) A State agency disability examiner 

alone if the claim is adjudicated under 

the quick disability determination 

process (see § 404.1619) or as a 

compassionate allowance (see 

§ 404.1602), and the initial or 

reconsidered determination is fully 

favorable to you. This paragraph will no 

longer be effective on November 12, 

2013 unless we terminate it earlier or 

extend it beyond that date by 

publication of a final rule in the Federal 

Register; or 

* * * * * 

■ 10. Amend § 404.1619 by revising 

paragraphs (b) introductory text, (b)(1), 

(b)(2), and (c) to read as follows: 

§ 404.1619 Quick disability determination 

process. 

* * * * * 

(b) If we refer a claim to the State 

agency for a quick disability 

determination, a designated quick 

disability determination examiner must 

do all of the following: 

(1) Subject to the provisions in 

paragraph (c) of this section, make the 

disability determination after consulting 

with a State agency medical or 

psychological consultant if the State 

agency disability examiner determines 

consultation is appropriate or if 

consultation is required under 

§ 404.1526(c). The State agency may 

certify the disability determination 

forms to us without the signature of the 

medical or psychological consultant. 

(2) Make the quick disability 

determination based only on the 

medical and nonmedical evidence in 

the file. 

* * * * * 

(c) If the quick disability 

determination examiner cannot make a 

determination that is fully favorable, or 

if there is an unresolved disagreement 

between the disability examiner and the 

medical or psychological consultant 

(except when a disability examiner 

makes the determination alone under 

§ 404.1615(c)(3)), the State agency will 

adjudicate the claim using the regularly 

applicable procedures in this subpart. 

PART 416—SUPPLEMENTAL 

SECURITY INCOME FOR THE AGED, 

BLIND, AND DISABLED 

Subpart I—[Amended] 

■ 11. The authority citation for subpart 

I of part 416 is revised 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). 

■ 12. Amend § 416.912 by removing the 

word ‘‘and’’ from the end of paragraph 

(b)(5), redesignating paragraph (b)(6) as 

paragraph (b)(8) and revising 

redesignated paragraph (b)(8), and 

adding new paragraphs (b)(6) and (b)(7) 

to read as follows: 

§ 416.912 Evidence. 

* * * * * 

(b) * * * 

(6) At the initial level of the 

administrative review process, when a 

State agency disability examiner makes 

the initial determination alone (see 

§ 416.1015(c)(3)), opinions provided by 

State agency medical and psychological 

consultants based on their review of the 

evidence in your case record (see 

§ 416.927(f)(1)(ii)); 

(7) At the reconsideration level of the 

administrative review process, when a 

State agency disability examiner makes 

the determination alone (see 

§ 416.1015(c)(3)), findings, other than 

the ultimate determination about 

whether you are disabled, made by State 

agency medical or psychological 

consultants and other program 

physicians, psychologists, or other 

medical specialists at the initial level of 

the administrative review process, and 

other opinions they provide based on 

their review of the evidence in your case 

record at the initial and reconsideration 

levels (see § 416.927(f)(1)(iii)); and 

(8) At the administrative law judge 

and Appeals Council levels (including 

the administrative law judge and 

Decision Review Board levels in claims 

adjudicated under the procedures in 

part 405 of this chapter), 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, or other 

medical specialists, and opinions 

expressed by medical experts or 

psychological experts that we consult 

based on their review of the evidence in 

your case record. See §§ 416.927(f)(2)– 

(3). 

* * * * * 

■ 13. Amend § 416.920a by adding a 

third sentence to the introductory text of 

paragraph (e), revising paragraph (e)(1), 

redesignating paragraphs (e)(2) and 

(e)(3) as paragraphs (e)(4) and (e)(5), and 

adding new paragraphs (e)(2) and (e)(3) 

to read as follows: 

§ 416.920a Evaluation of mental 

impairments. 

* * * * * 

(e) Documenting application of the 

technique. * * * The following rules 

apply: 

(1) When a State agency medical or 

psychological consultant makes the 

determination together with a State 

agency disability examiner at the initial 

or reconsideration level of the 

administrative review process as 

provided in § 416.1015(c)(1), the State 

agency medical or psychological 

consultant has overall responsibility for 

assessing medical severity. At the initial 

level in claims adjudicated under the 

procedures in part 405 of this chapter, 

a medical or psychological expert (as 

defined in § 405.5 of this chapter) has 

overall responsibility for assessing 

medical severity. A State agency 

disability examiner may assist in 

preparing the standard document. 

However, our medical or psychological 

consultant (or the medical or 

psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) must review 

and sign the document to attest that it 

is complete and that he or she is 

responsible for its content, including the 

findings of fact and any discussion of 

supporting evidence. 

(2) When a State agency disability 

examiner makes the determination 

alone as provided in § 416.1015(c)(3), 

the State agency disability examiner has 

overall responsibility for assessing 


jdjones on DSK8KYBLC1PROD with RULES
Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 62683 

medical severity and for completing and 

signing the standard document. 

(3) When a disability hearing officer 

makes a reconsideration determination 

as provided in § 416.1015(c)(4), the 

determination must document 

application of the technique, 

incorporating the disability hearing 

officer’s pertinent findings and 

conclusions based on this technique. 

* * * * * 

■ 14. Amend § 416.927 by revising 

paragraph (f)(1), and revising paragraphs 

(f)(2)(i) and (f)(2)(ii) to read as follows: 

§ 416.927 Evaluating opinion evidence. 

* * * * * 

(f) * * * 

(1) In claims adjudicated by the State 

agency, a State agency medical or 

psychological consultant (or a medical 

or psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) may make the 

determination of disability together with 

a State agency disability examiner or 

provide one or more medical opinions 

to a State agency disability examiner 

when the disability examiner makes the 

initial or reconsideration determination 

alone (see § 416.1015(c)). The following 

rules apply: 

(i) When a State agency medical or 

psychological consultant makes the 

determination together with a State 

agency disability examiner at the initial 

or reconsideration level of the 

administrative review process as 

provided in § 416.1015(c)(1), he or she 

will consider the evidence in your case 

record and make findings of fact about 

the medical issues, including, but not 

limited to, the existence and severity of 

your impairment(s), the existence and 

severity of your symptoms, whether 

your impairment(s) meets or medically 

equals the requirements for any 

impairment listed in appendix 1 to 

subpart P of part 404 of this chapter, 

and your residual functional capacity. 

These administrative findings of fact are 

based on the evidence in your case but 

are not in themselves evidence at the 

level of the administrative review 

process at which they are made. 

(ii) When a State agency disability 

examiner makes the initial 

determination alone as provided in 

§ 416.1015(c)(3), he or she may obtain 

the opinion of a State agency medical or 

psychological consultant about one or 

more of the medical issues listed in 

paragraph (f)(1)(i) of this section. In 

these cases, the State agency disability 

examiner will consider the opinion of 

the State agency medical or 

psychological consultant as opinion 

evidence and weigh this evidence using 

the relevant factors in paragraphs (a) 

through (e) of this section. 

(iii) When a State agency disability 

examiner makes a reconsideration 

determination alone as provided in 

§ 416.1015(c)(3), he or she will consider 

findings made by a State agency medical 

or psychological consultant at the initial 

level of the administrative review 

process and any opinions provided by 

such consultants at the initial and 

reconsideration levels as opinion 

evidence and weigh this evidence using 

the relevant factors in paragraphs (a) 

through (e) of this section. 

(2) * * * 

(i) Administrative law judges are not 

bound by any findings made by State 

agency medical or psychological 

consultants, or other program 

physicians or psychologists. State 

agency medical and psychological 

consultants and other program 

physicians, psychologists, and other 

medical specialists are highly qualified 

physicians, psychologists, and other 

medical specialists who are also experts 

in Social Security disability evaluation. 

Therefore, administrative law judges 

must consider findings and other 

opinions of State agency medical and 

psychological consultants and other 

program physicians, psychologists, and 

other medical specialists as opinion 

evidence, except for the ultimate 

determination about whether you are 

disabled (see § 416.912(b)(8)). 

(ii) When an administrative law judge 

considers findings of a State agency 

medical or psychological consultant or 

other program physician, psychologist, 

or other medical specialist, the 

administrative law judge will evaluate 

the findings using the relevant factors in 

paragraphs (a) through (e) of this 

section, such as the consultant’s 

medical specialty and expertise in our 

rules, the supporting evidence in the 

case record, supporting explanations the 

medical or psychological consultant 

provides, and any other factors relevant 

to the weighing of the opinions. Unless 

a treating source’s opinion is given 

controlling weight, 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, 

psychologist, or other medical 

specialist, as the administrative law 

judge must do for any opinions from 

treating sources, nontreating sources, 

and other nonexamining sources who 

do not work for us. 

* * * * * 

■ 15. Amend § 416.929 by removing 

‘‘§§ 416.912(b)(2) through (6)’’ in the 

third sentence of paragraph (a) and 

adding ‘‘§§ 416.912(b)(2) through (8)’’ in 

its place, and by revising the third 

sentence of paragraph (b), to read as 

follows: 

§ 416.929 How we evaluate symptoms, 

including pain. 

* * * * * 

(b) * * * In cases decided by a State 

agency (except in disability hearings 

under §§ 416.1414 through 416.1418 

and in fully favorable determinations 

made by State agency disability 

examiners alone under § 416.1015(c)(3)), 

a State agency medical or psychological 

consultant or other medical or 

psychological consultant designated by 

the Commissioner (or a medical or 

psychological expert (as defined in 

§ 405.5 of this chapter) in claims 

adjudicated under the procedures in 

part 405 of this chapter) directly 

participates in determining whether 

your medically determinable 

impairment(s) could reasonably be 

expected to produce your alleged 

symptoms. * * * 

* * * * * 

■ 16. Revise § 416.946(a) to read as 

follows: 

§ 416.946 Responsibility for assessing 

your residual functional capacity. 

(a) Responsibility for assessing 

residual functional capacity at the State 

agency. When a State agency medical or 

psychological consultant and a State 

agency disability examiner make the 

disability determination as provided in 

§ 416.1015(c)(1), a State agency medical 

or psychological consultant(s) (or a 

medical or psychological expert (as 

defined in § 405.5 of this chapter) in 

claims adjudicated under the 

procedures in part 405 of this chapter) 

is responsible for assessing your 

residual functional capacity. When a 

State agency disability examiner makes 

a disability determination alone as 

provided in § 416.1015(c)(3), the 

disability examiner is responsible for 

assessing your residual functional 

capacity. 

* * * * * 

Subpart J—[Amended] 

■ 17. The authority citation for subpart 

J of part 416 continues to read as 

follows: 

Authority: Secs. 702(a)(5), 1614, 1631, and 

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

902(a)(5), 1382c, 1383, and 1383b). 

■ 18. Amend § 416.1002 by adding a 

definition of ‘‘compassionate allowance’’ 

in alphabetical order to read as follows: 


jdjones on DSK8KYBLC1PROD with RULES
62684 Federal Register / Vol. 75, No. 197 / Wednesday, October 13, 2010 / Rules and Regulations 

§ 416.1002 Definitions. 

* * * * * 

Compassionate allowance means a 

determination or decision we make 

under a process that identifies for 

expedited handling claims that involve 

impairments that invariably qualify 

under the Listing of Impairments in 

appendix 1 to subpart P of part 404 of 

this chapter based on minimal, but 

sufficient, objective medical evidence. 

* * * * * 

■ 19. Amend § 416.1015 by revising the 

introductory text of paragraph (c), 

removing the word ‘‘or’’ at the end of 

paragraph (c)(2), redesignating 

paragraph (c)(3) as paragraph (c)(4), and 

adding a new paragraph (c)(3) to read as 

follows: 

§ 416.1015 Making disability 

determinations. 

* * * * * 

(c) Disability determinations will be 

made by: 

* * * * * 

(3) A State agency disability examiner 

alone if you are not a child (a person 

who has not attained age 18), and the 

claim is adjudicated under the quick 

disability determination process (see 

§ 416.1019) or as a compassionate 

allowance (see § 416.1002), and the 

initial or reconsidered determination is 

fully favorable to you. This paragraph 

will no longer be effective on November 

12, 2013 unless we terminate it earlier 

or extend it beyond that date by 

publication of a final rule in the Federal 

Register; or 

* * * * * 

■ 20. Amend § 416.1019 by revising 

paragraphs (b) introductory text, (b)(1), 

(b)(2), and (c) to read as follows: 

§ 416.1019 Quick disability determination 

process. 

* * * * * 

(b) If we refer a claim to the State 

agency for a quick disability 

determination, a designated quick 

disability determination examiner must 

do all of the following: 

(1) Subject to the provisions in 

paragraph (c) of this section, make the 

disability determination after consulting 

with a State agency medical or 

psychological consultant if the State 

agency disability examiner determines 

consultation is appropriate or if 

consultation is required under 

§ 416.926(c). The State agency may 

certify the disability determination 

forms to us without the signature of the 

medical or psychological consultant. 

(2) Make the quick disability 

determination based only on the 

medical and nonmedical evidence in 

the file. 

* * * * * 

(c) If the quick disability 

determination examiner cannot make a 

determination that is fully favorable, or 

if there is an unresolved disagreement 

between the disability examiner and the 

medical or psychological consultant 

(except when a disability examiner 

makes the determination alone under 

§ 416.1015(c)(3)), the State agency will 

adjudicate the claim using the regularly 

applicable procedures in this subpart. 

[FR Doc. 2010–25502 Filed 10–12–10; 8:45 am] 

BILLING CODE 4191–02–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the Secretary 

45 CFR Part 162 

[CMS–0009–N] 

RIN 0938–AM50 

Health Insurance Reform; 

Announcement of Maintenance 

Changes to Electronic Data 

Transaction Standards Adopted Under 

the Health Insurance Portability and 

Accountability Act of 1996 

AGENCY: Office of the Secretary, HHS. 

ACTION: Notification. 

SUMMARY: This document announces 

maintenance changes to some of the 

Health Insurance Portability and 

Accountability Act of 1996 standards 

made by the Designated Standard 

Maintenance Organizations. The 

maintenance changes are nonsubstantive changes to correct minor 

errors, such as typographical errors, or 

to provide clarifications of the standards 

adopted in our regulations entitled 

‘‘Health Insurance Reform; 

Modifications to the Health Insurance 

Portability and Accountability Act 

(HIPAA) Electronic Transaction 

Standards,’’ published in the Federal 

Register on January 16, 2009. This 

document also instructs interested 

persons on how to obtain the 

corrections. 

FOR FURTHER INFORMATION CONTACT: 

Denise Buenning, (410) 786–6711 

Gladys Wheeler, (410) 786–0273 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Health Insurance Portability and 

Accountability Act of 1996 (HIPAA) 

mandated the adoption of standards for 

electronically conducting certain health 

care administrative transactions 

between certain entities. Through 

subtitle F of title II of HIPAA, the 

Congress added to title XI of the Social 

Security Act (the Act) a new Part C, 

entitled ‘‘Administrative 

Simplification.’’ Part C of title XI of the 

Act consists of sections 1171 through 

1180. These sections define various 

terms and impose several requirements 

on the Department of Health & Human 

Services (HHS), health plans, health 

care clearinghouses, and certain health 

care providers concerning the electronic 

transmission of health information. 

On August 17, 2000, we published a 

final rule in the Federal Register (65 FR 

50312) entitled ‘‘Health Insurance 

Reform: Standards for Electronic 

Transactions’’ (hereinafter referred to as 

the Transactions and Code Sets rule). 

That rule implemented some of the 

HIPAA Administrative Simplification 

requirements by adopting standards 

developed by standard setting 

organizations (SSOs) for eight electronic 

transactions, and code sets to be used in 

those transactions. The SSOs are 

organizations that are accredited by the 

American National Standards Institute 

(ANSI), and that develop industry 

standards for, among others, the HIPAA 

transactions. We adopted standards 

developed by the Accredited Standards 

Committee X12 (hereinafter referred to 

as ASC X12) and the National Council 

for Prescription Drug Programs 

(NCPDP). We defined those transactions 

and specified the adopted standards at 

45 CFR part 162, subparts I and K 

through R. Designated Standard 

Maintenance Organizations (DSMOs) 

receive, manage, and process requested 

changes to the adopted standards in 

accordance with the process identified 

in the HIPAA regulations at § 162.900. 

A description of the DSMO process can 

be found in the May 31, 2002 proposed 

rule (67 FR 38050). Both ASC X12 and 

NCPDP are DSMOs. 

On August 22, 2008, we published a 

proposed rule in the Federal Register 

(73 FR 49742) entitled ‘‘Health 

Insurance Reform: Modifications to 

Electronic Data Transactions Standards 

and Code Sets’’ (hereinafter referred to 

as the Modifications proposed rule) 

proposing to modify the HIPAA 

transaction standards by adopting 

updated versions of the standards. On 

January 16, 2009, we published a final 

rule in the Federal Register (74 FR 

3296) entitled Health Insurance Reform; 

Modifications to the Health Insurance 

Portability and Accountability Act 

(HIPAA) Electronic Transaction 

Standards (hereinafter referred to as the 

Modifications final rule), that adopted 

updated versions of the standards for 


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