[Code of Federal Regulations]
[Title 20, Volume 2, Parts 400 to 499]
[Revised as of April 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 20CFR404]
[Page 334-495]
TITLE 20--EMPLOYEES' BENEFITS
CHAPTER III--SOCIAL SECURITY ADMINISTRATION
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )--Table of Contents
Subpart P--Determining Disability and Blindness
Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) and
(i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 422(c),
423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105,
2189.
Source: 45 FR 55584, Aug. 20, 1980, unless otherwise noted.
[[Page 335]]
General
Sec. 404.1501 Scope of subpart.
In order for you to become entitled to any benefits based upon
disability or blindness or to have a period of disability established,
you must be disabled or blind as defined in title II of the Social
Security Act. This subpart explains how we determine whether you are
disabled or blind. We discuss a period of disability in subpart D of
this part. We have organized the rules in the following way.
(a) We define general terms, then discuss who makes our disability
determinations and state that disability determinations made under other
programs are not binding on our determinations.
(b) We explain the term disability and note some of the major
factors that are considered in determining whether you are disabled in
Secs. 404.1505 through 404.1510.
(c) Sections 404.1512 through 404.1518 contain our rules on
evidence. We explain your responsibilities for submitting evidence of
your impairment, state what we consider to be acceptable sources of
medical evidence, and describe what information should be included in
medical reports.
(d) Our general rules on evaluating disability if you are filing a
new application are stated in Secs. 404.1520 through 404.1523. We
describe the steps that we go through and the order in which they are
considered.
(e) Our rules on medical considerations are found in Secs. 404.1525
through 404.1530. We explain in these rules--
(1) The purpose of the Listing of Impairments found in appendix 1 of
this subpart and how to use it;
(2) What we mean by the term medical equivalence and how we
determine medical equivalence;
(3) The effect of a conclusion by your physician that you are
disabled;
(4) What we mean by symptoms, signs, and laboratory findings;
(5) How we evaluate pain and other symptoms; and
(6) The effect on your benefits if you fail to follow treatment that
is expected to restore your ability to work, and how we apply the rule.
(f) In Secs. 404.1545 through 404.1546 we explain what we mean by
the term residual functional capacity, state when an assessment of
residual functional capacity is required, and who may make it.
(g) Our rules on vocational considerations are found in
Secs. 404.1560 through 404.1569a. We explain when vocational factors
must be considered along with the medical evidence, discuss the role of
residual functional capacity in evaluating your ability to work, discuss
the vocational factors of age, education, and work experience, describe
what we mean by work which exists in the national economy, discuss the
amount of exertion and the type of skill required for work, describe and
tell how to use the Medical-Vocational Guidelines in appendix 2 of this
subpart, and explain when, for purposes of applying the guidelines in
appendix 2, we consider the limitations or restrictions imposed by your
impairment(s) and related symptoms to be exertional, nonexertional, or a
combination of both.
(h) Our rules on substantial gainful activity are found in
Secs. 404.1571 through 404.1574. These explain what we mean by
substantial gainful activity and how we evaluate your work activity.
(i) In Secs. 404.1577, 404.1578, and 404.1579, we explain the
special rules covering disability for widows, widowers, and surviving
divorced spouses for monthly benefits payable for months prior to
January 1991, and in Secs. 404.1581 through 404.1587 we discuss
disability due to blindness.
(j) Our rules on when disability continues and stops are contained
in Sec. 404.1579 and Secs. 404.1588 through 404.1598. We explain what
your responsibilities are in telling us of any events that may cause a
change in your disability status, when you may have a trial work period,
and when we will review to see if you are still disabled. We also
explain how we consider the issue of medical improvement (and the
exceptions to medical improvement) in deciding whether you are still
disabled.
[45 FR 55584, Aug. 20, 1980, as amended at 50 FR 50126, Dec. 6, 1985; 56
FR 57941, Nov. 14, 1991; 57 FR 30120, July 8, 1992]
[[Page 336]]
Sec. 404.1502 General definitions and terms for this subpart.
As used in the subpart--
Medical sources refers to treating sources, sources of record, and
consultative examiners for us. See Sec. 404.1513.
Secretary means the Secretary of Health and Human Services.
Source of record means a hospital, clinic or other source that has
provided you with medical treatment or evaluation, as well as a
physician or psychologist who has treated or evaluated you but does not
have or did not have an ongoing treatment relationship with you.
State agency means that agency of a State which has been designated
by the State to carry out the disability or blindness determination
function.
Treating source means your own physician or psychologist who has
provided you with medical treatment or evaluation and who has or has had
an ongoing treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with a physician or
psychologist when the medical evidence establishes that you see or have
seen the physician or psychologist with a frequency consistent with
accepted medical practice for the type of treatment and evaluation
required for your medical condition(s). We may consider a physician or
psychologist who has treated you only a few times or only after long
intervals (e.g., twice a year) to be your treating source if the nature
and frequency of the treatment is typical for your condition(s). We will
not consider a physician or psychologist to be your treating physician
if your relationship with the physician or psychologist is not based on
your need for treatment, but solely on your need to obtain a report in
support of your claim for disability. In such a case, we will consider
the physician or psychologist to be a consulting physician or
psychologist.
We or us refers to either the Social Security Administration or the
State agency making the disability or blindness determination.
You refers to the person who has applied for benefits or for a
period of disability or is receiving benefits based on disability or
blindness.
[56 FR 36954, Aug. 1, 1991]
Determinations
Sec. 404.1503 Who makes disability and blindness determinations.
(a) State agencies. State agencies make disability and blindness
determinations for the Secretary for most persons living in the State.
State agencies make these disability and blindness determinations under
regulations containing performance standards and other administrative
requirements relating to the disability and blindness determination
function. States have the option of turning the function over to the
Federal Government if they no longer want to make disability
determinations. Also, the Secretary may take the function away from any
State which has substantially failed to make disability and blindness
determinations in accordance with these regulations. Subpart Q of this
part contains the rules the States must follow in making disability and
blindness determinations.
(b) Social Security Administration. The Social Security
Administration will make disability and blindness determinations for the
Secretary for--
(1) Any person living in a State which is not making for the
Secretary any disability and blindness determinations or which is not
making those determinations for the class of claimants to which that
person belongs; and
(2) Any person living outside the United States.
(c) What determinations are authorized. The Secretary has authorized
the State agencies and the Social Security Administration to make
determinations about--
(1) Whether you are disabled or blind;
(2) The date your disability or blindness began; and
(3) The date your disability or blindness stopped.
(d) Review of State Agency determinations. On review of a State
agency determination or redetermination of disability or blindness we
may find that--
(1) You are, or are not, disabled or blind, regardless of what the
State agency found;
[[Page 337]]
(2) Your disability or blindness began earlier or later than the
date found by the State agency; and
(3) Your disability or blindness stopped earlier or later than the
date found by the State agency.
(e) Initial determinations for mental impairments. An initial
determination by a State agency or the Social Security Administration
that you are not disabled (or a Social Security Administration review of
a State agency's initial determination), in any case where there is
evidence which indicates the existence of a mental impairment, will be
made only after every reasonable effort has been made to ensure that a
qualified psychiatrist or psychologist has completed the medical portion
of the case review and any applicable residual functional capacity
assessment. (See Sec. 404.1616 for the qualifications we consider
necessary for a psychologist to be a psychological consultant and
Sec. 404.1617 for what we consider reasonable effort.) If the services
of qualified psychiatrists or psychologists cannot be obtained because
of impediments at the State level, the Secretary may contract directly
for the services. In a case where there is evidence of mental and
nonmental impairments and a qualified psychologist serves as a
psychological consultant, the psychologist will evaluate only the mental
impairment, and a physician will evaluate the nonmental impairment. The
overall determination of impairment severity in combined mental and
nonmental impairment cases will be made by a medical consultant and not
a psychological consultant unless the mental impairment alone would
justify a finding of disability.
[46 FR 29204, May 29, 1981, as amended at 52 FR 33926, Sept. 9, 1987]
Sec. 404.1503a Program integrity.
We will not use in our program any individual or entity, except to
provide existing medical evidence, who is currently excluded, suspended,
or otherwise barred from participation in the Medicare or Medicaid
programs, or any other Federal or Federally-assisted program; whose
license to provide health care services is currently revoked or
suspended by any State licensing authority pursuant to adequate due
process procedures for reasons bearing on professional competence,
professional conduct, or financial integrity; or who, until a final
determination is made, has surrendered such a license while formal
disciplinary proceedings involving professional conduct are pending. By
individual or entity we mean a medical or psychological consultant,
consultative examination provider, or diagnostic test facility. Also see
Secs. 404.1519 and 404.1519g(b).
[56 FR 36954, Aug. 1, 1991]
Sec. 404.1504 Determinations by other organizations and agencies.
A decision by any nongovernmental agency or any other governmental
agency about whether you are disabled or blind is based on its rules and
is not our decision about whether you are disabled or blind. We must
make a disability or blindness determination based on social security
law. Therefore, a determination made by another agency that you are
disabled or blind is not binding on us.
Definition of Disability
Sec. 404.1505 Basic definition of disability.
(a) The law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable
physical or mental impairmentich can be expected to result in death or
which has lasted or can be expected to last for a continuous period of
not less than 12 months. To meet this definition, you must have a severe
impairment, which makes you unable to do your previous work or any other
substantial gainful activity which exists in the national economy. To
determine whether you are able to do any other work, we consider your
residual functional capacity and your age, education, and work
experience. We will use this definition of disability if you are
applying for a period of disability, or disability insurance benefits as
a disabled worker, or child's insurance benefits based on disability
before age 22 or, with respect to disability benefits payable for months
after December 1990, as a widow, widower, or surviving divorced spouse.
[[Page 338]]
(b) There are different rules for determining disability for
individuals who are statutorily blind. We discuss these in
Secs. 404.1581 through 404.1587. There are also different rules for
determining disability for widows, widowers, and surviving divorced
spouses for monthly benefits for months prior to January 1991. We
discuss these rules in Secs. 404.1577, 404.1578, and 404.1579.
[45 FR 55584, Aug. 20, 1980, as amended at 51 FR 10616, Mar. 28, 1986;
57 FR 30120, July 8, 1992]
Sec. 404.1506 When we will not consider your impairment.
(a) Permanent exclusion of felony-related impairment. In determining
whether you are under a disability, we will not consider any physical or
mental impairment, or any increase in severity (aggravation) of a
preexisting impairment, which arises in connection with your commission
of a felony after October 19, 1980, if you are subsequently convicted of
this crime.Your subsequent conviction will invalidate any prior
determination establishing disability if that determination was based
upon any impairment, or aggravation, which we must exclude under this
rule.
(b) Limited use of impairment arising in prison. In determining
whether you are under a disability for purposes of benefit payments, we
will not consider any physical or mental impairment, or any increase in
severity (aggravation) of a preexisting impairment, which arises in
connection with your confinement in a jail, prison, or other penal
institution or correctional facility for conviction of a felony
committed after October 19, 1980. The exclusion of the impairment, or
aggravation, applies in determining disability for benefits payable for
any month during which you are confined. This rule does not preclude the
establishment of a period of disability based upon the impairment or
aggravation. You may become entitled to benefits upon release from
prison provided that you apply and are under a disability at the time.
(c) Felonious offenses. We will consider an offense a felony if--
(1) It is a felony under applicable law; or
(2) In a jurisdiction which does not classify any crime as a felony,
it is an offense punishable by death or imprisonment for a term
exceeding one year.
(d) Confinement. In general, a jail, prison, or other penal
institution or correctional facility is a facility which is under the
control and jurisdiction of the agency in charge of the penal system or
in which convicted criminals can be incarcerated. Confinement in such a
facility continues as long as you are under a sentence of confinement
and have not been released due to parole or pardon. You are considered
confined even though you are temporarily or intermittently outside of
the facility (e.g., on work release, attending school, or hospitalized).
[48 FR 5714, Feb. 8, 1983]
Sec. 404.1508 What is needed to show an impairment.
If you are not doing substantial gainful activity, we always look
first at your physical or mental impairment(s) to determine whether you
are disabled or blind. Your impairment must result from anatomical,
physiological, or psychological abnormalities which can be shown by
medically acceptable clinical and laboratory diagnostic techniques. A
physical or mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not only by your
statement of symptoms (see Sec. 404.1527). (See Sec. 404.1528 for
further information about what we mean by symptoms, signs, and
laboratory findings.)
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36954, Aug. 1, 1991]
Sec. 404.1509 How long the impairment must last.
Unless your impairment is expected to result in death, it must have
lasted or must be expected to last for a continuous period of at least
12 months. We call this the duration requirement.
Sec. 404.1510 Meaning of substantial gainful activity.
Substantial gainful activity means work that--
(a) Involves doing significant and productive physical or mental
duties; and
[[Page 339]]
(b) Is done (or intended) for pay or profit.
(See Sec. 404.1572 for further details about what we mean by
substantial gainful activity.)
Sec. 404.1511 Definition of a disabling impairment.
(a) Disabled workers, persons disabled since childhood and, for
months after December 1990, disabled widows, widowers, and surviving
divorced spouses. If you are entitled to disability cash benefits as a
disabled worker, or to child's insurance benefits, or, for monthly
benefits payable after December 1990, to widow's, widower's, or
surviving divorced spouse's monthly benefits, a disabling impairment is
an impairment (or combination of impairments) which, of itself, is so
severe that it meets or equals a set of criteria in the Listing of
Impairments in appendix 1 of this subpart or which, when considered with
your age, education, and work experience, would result in a finding that
you are disabled under Sec. 404.1594. In determining whether you have a
disabling impairment, earnings are not considered.
(b) Disabled widows, widowers, and surviving divorced spouses, for
monthly benefits for months prior to January 1991. If you have been
entitled to disability benefits as a disabled widow, widower, or
surviving divorced spouse and we must decide whether you had a disabling
impairment for any time prior to January 1991, a disabling impairment is
an impairment (or combination of impairments) which, of itself, was so
severe that it met or equaled a set of criteria in the Listing of
Impairments in appendix 1 of this subpart, or results in a finding that
you were disabled under Sec. 404.1579. In determining whether you had a
disabling impairment, earnings are not considered.
[57 FR 30120, July 8, 1992]
Evidence
Sec. 404.1512 Evidence of your impairment.
(a) General. In general, you have to prove to us that you are blind
or disabled. Therefore, you must bring to our attention everything that
shows that you are blind or disabled. 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 blind or disabled, its effect on your ability to work on
a sustained basis. We will consider only impairment(s) you say you have
or about which we receive evidence.
(b) What we mean by ``evidence.'' Evidence is anything you or anyone
else submits to us or that we obtain that relates to your claim. This
includes, but is not limited to:
(1) Objective medical evidence, that is, medical signs and
laboratory findings as defined in Sec. 404.1528 (b) and (c);
(2) Other evidence from medical sources, such as medical history,
opinions, and statements about treatment you have received;
(3) Statements you or others make about your impairment(s), your
restrictions, your daily activities, your efforts to work, or any other
relevant statements you make to medical sources during the course of
examination or treatment, or to us during interviews, on applications,
in letters, and in testimony in our administrative proceedings;
(4) Information from other sources, as described in
Sec. 404.1513(e);
(5) Decisions by any governmental or nongovernmental agency about
whether you are disabled or blind; and
(6) At the administrative law judge and Appeals Council levels,
certain findings, other than the ultimate determination about whether
you are disabled, made by State agency medical or psychological
consultants and other program physicians or psychologists, and opinions
expressed by medical advisors based on their review of the evidence in
your case record. See Sec. 404.1527(f) (2) and (3).
(c) Your responsibility. You must provide medical evidence showing
that you have an impairment(s) and how severe it is during the time you
say that you are disabled. If we ask you, you must also provide evidence
about:
(1) Your age;
(2) Your education and training;
(3) Your work experience;
[[Page 340]]
(4) Your daily activities both before and after the date you say
that you became disabled;
(5) Your efforts to work; and
(6) Any other factors showing how your impairment(s) affects your
ability to work. In Secs. 404.1560 through 404.1569, we discuss in more
detail the evidence we need when we consider vocational factors.
(d) Our responsibility. Before we make a determination that you are
not disabled, we will 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. We will make every
reasonable effort to help you get medical reports from your own medical
sources when you give us permission to request the reports.
(1) ``Every reasonable effort'' means that we will make an initial
request for evidence from your medical source and, at any time between
10 and 20 calendar days after the initial request, if the evidence has
not been received, we will make one followup request to obtain the
medical evidence necessary to make a determination. The medical source
will have a minimum of 10 calendar days from the date of our followup
request to reply, unless our experience with that source indicates that
a longer period is advisable in a particular case.
(2) By ``complete medical history,'' we mean the records of your
medical source(s) covering at least the 12 months preceding the month in
which you file your application. If you say that your disability began
less than 12 months before you filed your application, we will develop
your complete medical history beginning with the month you say your
disability began unless we have reason to believe your disability began
earlier. If applicable, we will develop your complete medical history
for the 12-month period prior to (1) the month you were last insured for
disability insurance benefits (see Sec. 404.130), (2) the month ending
the 7-year period you may have to establish your disability and you are
applying for widow's or widower's benefits based on disability (see
Sec. 404.335(c)(1)), or (3) the month you attain age 22 and you are
applying for child's benefits based on disability (see Sec. 404.350(e)).
(e) Recontacting medical sources. When the evidence we receive from
your treating physician or psychologist or other medical source is
inadequate for us to determine whether you are disabled, we will need
additional information to reach a determination or a decision. To obtain
the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist
or other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your medical
source contains a conflict or ambiguity that must be resolved, the
report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. We may do this by requesting copies of your
medical source's records, a new report, or a more detailed report from
your medical source, including your treating source, or by telephoning
your medical source. In every instance where medical evidence is
obtained over the telephone, the telephone report will be sent to the
source for review, signature and return.
(2) We may not seek additional evidence or clarification from a
medical source when we know from past experience that the source either
cannot or will not provide the necessary findings.
(f) Need for consultative examination. If the information we need is
not readily available from the records of your medical treatment source,
or we are unable to seek clarification from your medical source, we will
ask you to attend one or more consultative examinations at our expense.
See Secs. 404.1517 through 404.1519t for the rules governing the
consultative examination process. Generally, we will not request a
consultative examination until we have made every reasonable effort to
obtain evidence from your own medical sources. However, in some
instances, such as when a source is known to be unable to
[[Page 341]]
provide certain tests or procedures or is known to be nonproductive or
uncooperative, we may order a consultative examination while awaiting
receipt of medical source evidence. We will not evaluate this evidence
until we have made every reasonable effort to obtain evidence from your
medical sources.
[56 FR 36954, Aug. 1, 1991]
Sec. 404.1513 Medical evidence of your impairment.
(a) Acceptable sources. We need reports about your impairments from
acceptable medical sources. Acceptable medical sources are--
(1) Licensed physicians;
(2) Licensed osteopaths;
(3) Licensed or certified psychologists;
(4) Licensed optometrists for the measurement of visual acuity and
visual fields (we may need a report from a physician to determine other
aspects of eye diseases); and
(5) Persons authorized to send us a copy or summary of the medical
records of a hospital, clinic, sanitorium, medical institution, or
health care facility. Generally, the copy or summary should be certified
as accurate by the custodian or by any authorized employee of the Social
Security Administration, Veterans' Administration, or State agency.
However, we will not return an uncertified copy or summary for
certification unless there is some question about the document.
(b) Medical reports. Medical reports should include--
(1) Medical history;
(2) Clinical findings (such as the results of physical or mental
status examinations);
(3) Laboratory findings (such as blood pressure, x-rays);
(4) Diagnosis (statement of disease or injury based on its signs and
symptoms);
(5) Treatment prescribed with response, and prognosis; and
(6) A statement about what you can still do despite your
impairment(s) based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section (except in
statutory blindness claims). Although we will request a medical source
statement about what you can still do despite your impairment(s), the
lack of the medical source statement will not make the report
incomplete. See Sec. 404.1527.
(c) Statements about what you can still do. Statements about what
you can still do (based on the medical source's findings on the factors
under paragraphs (b)(1) through (b)(5) of this section) should describe,
but are not limited to, the kinds of physical and mental capabilities
listed below. See Secs. 404.1527 and 404.1545(c).
(1) The medical source's opinion about your ability, despite your
impairment(s), to do work-related activities such as sitting, standing,
walking, lifting, carrying, handling objects, hearing, speaking, and
traveling; and
(2) In cases of mental impairment(s), the medical source's opinion
about your ability to understand, to carry out and remember
instructions, and to respond appropriately to supervision, coworkers,
and work pressures in a work setting.
(d) Completeness. The medical evidence, including the clinical and
laboratory findings, must be complete and detailed enough to allow us to
make a determination about whether you are disabled or blind. It must
allow us to determine--
(1) The nature and limiting effects of your impairment(s) for any
period in question;
(2) The probable duration of your impairment; and
(3) Your residual functional capacity to do work-related physical
and mental activities.
(e) Information from other sources. Information from other sources
may also help us to understand how your impairment affects your ability
to work. Other sources include--
(1) Public and private social welfare agencies;
(2) Observations by non-medical sources; and
(3) Other practitioners (for example, naturopaths, chiropractors,
audiologists, etc.).
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 36955, Aug. 1, 1991]
[[Page 342]]
Sec. 404.1514 When we will purchase existing evidence.
We need specific medical evidence to determine whether you are
disabled or blind. You are responsible for providing that evidence.
However, we will pay physicians not employed by the Federal government
and other non-Federal providers of medical services for the reasonable
cost of providing us with existing medical evidence that we need and ask
for after November 30, 1980.
[46 FR 45757, Sept. 15, 1981]
Sec. 404.1515 Where and how to submit evidence.
You may give us evidence about your impairment at any of our offices
or at the office of any State agency authorized to make disability
determinations. You may also give evidence to one of our employees
authorized to accept evidence at another place. For more information
about this, see subpart H of this part.
Sec. 404.1516 If you fail to submit medical and other evidence.
If you do not give us the medical and other evidence that we need
and request, we will have to make a decision based on information
available in your case. We will not excuse you from giving us evidence
because you have religious or personal reasons against medical
examinations, tests, or treatment.
Sec. 404.1517 Consultative examination at our expense.
If your medical sources cannot or will not give us sufficient
medical evidence about your impairment for us to determine whether you
are disabled or blind, we may ask you to have one or more physical or
mental examinations or tests. We will pay for these examinations.
However, we will not pay for any medical examination arranged by you or
your representative without our advance approval. If we arrange for the
examination or test, we will give you reasonable notice of the date,
time, and place the examination or test will be given, and the name of
the person or facility who will do it. We will also give the examiner
any necessary background information about your condition.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1518 If you do not appear at a consultative examination.
(a) General. If you are applying for benefits and do not have a good
reason for failing or refusing to take part in a consultative
examination or test which we arrange for you to get information we need
to determine your disability or blindness, we may find that you are not
disabled or blind. If you are already receiving benefits and do not have
a good reason for failing or refusing to take part in a consultative
examination or test which we arranged for you, we may determine that
your disability or blindness has stopped because of your failure or
refusal. Therefore, if you have any reason why you cannot go for the
scheduled appointment, you should tell us about this as soon as possible
before the examination date. If you have a good reason, we will schedule
another examination. We will consider your physical, mental,
educational, and linguistic limitations (including any lack of facility
with the English language) when determining if you have a good reason
for failing to attend a consultative examination.
(b) Examples of good reasons for failure to appear. Some examples of
what we consider good reasons for not going to a scheduled examination
include--
(1) Illness on the date of the scheduled examination or test;
(2) Not receiving timely notice of the scheduled examination or
test, or receiving no notice at all;
(3) Being furnished incorrect or incomplete information, or being
given incorrect information about the physician involved or the time or
place of the examination or test, or;
(4) Having had death or serious illness occur in your immediate
family.
(c) Objections by your physician. If any of your treating physicians
tell you that you should not take the examination or test, you should
tell us at once. In many cases, we may be able to get the information we
need in another
[[Page 343]]
way. Your physician may agree to another type of examination for the
same purpose.
[45 FR 55584, Aug. 20, 1980, as amended at 59 FR 1635, Jan. 12, 1994]
Standards To Be Used in Determining When a Consultative Examination Will
Be Obtained in Connection With Disability Determinations
Sec. 404.1519 The consultative examination.
A consultative examination is a physical or mental examination or
test purchased for you at our request and expense from a treating
physician or psychologist, another source of record, or an independent
source, including a pediatrician when appropriate. The decision to
purchase a consultative examination will be made on an individual case
basis in accordance with the provisions of Secs. 404.1519a through
404.1519f. Selection of the source for the examination will be
consistent with the provisions of Sec. 404.1503a and Secs. 404.1519g
through 404.1519j. The rules and procedures for requesting consultative
examinations set forth in Secs. 404.1519a and 404.1519b are applicable
at the reconsideration and hearing levels of review, as well as the
initial level of determination.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519a When we will purchase a consultative examination and how
we will use it.
(a)(1) General. The decision to purchase a consultative examination
for you will be made after we have given full consideration to whether
the additional information needed (e.g., clinical findings, laboratory
tests, diagnosis, and prognosis) is readily available from the records
of your medical sources. See Sec. 404.1512 for the procedures we will
follow to obtain evidence from your medical sources. 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.
(2) When we purchase a consultative examination, we will use the
report from the consultative examination to try to resolve a conflict or
ambiguity if one exists. We will also use a consultative examination to
secure needed medical evidence the file does not contain such as
clinical findings, laboratory tests, a diagnosis or prognosis necessary
for decision.
(b) Situations requiring a consultative examination. A consultative
examination may be purchased when the evidence as a whole, both medical
and nonmedical, is not sufficient to support a decision on your claim.
Other situations, including but not limited to the situations listed
below, will normally require a consultative examination:
(1) The additional evidence needed is not contained in the records
of your medical sources;
(2) The evidence that may have been available from your treating or
other medical sources cannot be obtained for reasons beyond your
control, such as death or noncooperation of a medical source;
(3) Highly technical or specialized medical evidence that we need is
not available from your treating or other medical sources;
(4) A conflict, inconsistency, ambiguity or insufficiency in the
evidence must be resolved, and we are unable to do so by recontacting
your medical source; or
(5) There is an indication of a change in your condition that is
likely to affect your ability to work, but the current severity of your
impairment is not established.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519b When we will not purchase a consultative examination.
We will not purchase a consultative examination in situations
including, but not limited to, the following situations:
(a) In period of disability and disability insurance benefit claims,
when you do not meet the insured status requirement in the calendar
quarter you allege you became disabled or later and there is no
possibility of establishing an earlier onset;
(b) In claims for widow's or widower's benefits based on disability,
when your alleged month of disability is after the end of the 7-year
period specified in
[[Page 344]]
Sec. 404.335(c)(1) and there is no possibility of establishing an
earlier onset date, or when the 7-year period expired in the past and
there is no possibility of establishing an onset date prior to the date
the 7-year period expired;
(c) In disability insurance benefit claims, when your insured status
expired in the past and there is no possibility of establishing an onset
date prior to the date your insured status expired;
(d) When any issues about your actual performance of substantial
gainful activity or gainful activity have not been resolved;
(e) In claims for child's benefits based on disability, when it is
determined that your alleged disability did not begin before the month
you attained age 22, and there is no possibility of establishing an
onset date earlier than the month in which you attained age 22;
(f) In claims for child's benefits based on disability that are
filed concurrently with the insured individual's claim and entitlement
cannot be established for the insured individual;
(g) In claims for child's benefits based on disability where
entitlement is precluded based on other nondisability factors.
[56 FR 36956, Aug. 1, 1991]
Standards for the Type of Referral and for Report Content
Sec. 404.1519f Type of purchased examinations.
We will purchase only the specific examinations and tests we need to
make a determination in your claim. For example, we will not authorize a
comprehensive medical examination when the only evidence we need is a
special test, such as an X-ray, blood studies, or an electrocardiogram.
[56 FR 36956, Aug. 1, 1991]
Sec. 404.1519g Who we will select to perform a consultative
examination.
(a) We will purchase a consultative examination only from a
qualified medical source. The medical source may be your own physician
or psychologist, or another source. If you are a child, the medical
source we choose may be a pediatrician. For a more complete list of
medical sources, see Sec. 404.1513(a).
(b) By ``qualified,'' we mean that the medical source must be
currently licensed in the State and have the training and experience to
perform the type of examination or test we will request; the medical
source must not be barred from participation in our programs under the
provisions of Sec. 404.1503a. The medical source must also have the
equipment required to provide an adequate assessment and record of the
existence and level of severity of your alleged impairments.
(c) The physician or psychologist we choose may use support staff to
help perform the consultative examination. Any such support staff (e.g.,
X-ray technician, nurse) must meet appropriate licensing or
certification requirements of the State. See Sec. 404.1503a.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519h Your treating physician or psychologist.
When in our judgment your treating physician or psychologist is
qualified, equipped, and willing to perform the additional examination
or tests for the fee schedule payment, and generally furnishes complete
and timely reports, your treating physician or psychologist will be the
preferred source to do the purchased examination. Even if only a
supplemental test is required, your treating physician or psychologist
is ordinarily the preferred source.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519i Other sources for consultative examinations.
We will use a source other than your treating physician or
psychologist for a purchased examination or test in situations
including, but not limited to, the following situations:
(a) Your treating physician or psychologist prefers not to perform
such an examination or does not have the equipment to provide the
specific data needed;
(b) There are conflicts or inconsistencies in your file that cannot
be resolved by going back to your treating physician or psychologist;
(c) You prefer a source other than your treating physician or
psychologist
[[Page 345]]
and have a good reason for your preference;
(d) We know from prior experience that your treating physician or
psychologist may not be a productive source, e.g., he or she has
consistently failed to provide complete or timely reports.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519j Objections to the designated physician or psychologist.
You or your representative may object to your being examined by a
designated physician or psychologist. If there is a good reason for the
objection, we will schedule the examination with another physician or
psychologist. A good reason may be that the consultative examination
physician or psychologist had previously represented an interest adverse
to you. For example, the physician or psychologist may have represented
your employer in a workers' compensation case or may have been involved
in an insurance claim or legal action adverse to you. Other things we
will consider include: the presence of a language barrier, the
physician's or psychologist's office location (e.g., 2nd floor, no
elevator), travel restrictions, and whether the physician or
psychologist had examined you in connection with a previous disability
determination or decision that was unfavorable to you. If your objection
is because a physician or psychologist allegedly ``lacks objectivity''
in general, but not in relation to you personally, we will review the
allegations. See Sec. 404.1519s. To avoid a delay in processing your
claim, the consultative examination in your case will be changed to
another physician or psychologist while a review is being conducted. We
will handle any objection to use of the substitute physician or
psychologist in the same manner. However, if we had previously conducted
such a review and found that the reports of the consultative physician
or psychologist in question conformed to our guidelines, we will not
change your examination.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519k Purchase of medical examinations, laboratory tests, and
other services.
We may purchase medical examinations, including psychiatric and
psychological examinations, X-rays and laboratory tests (including
specialized tests such as pulmonary function studies,
electrocardiograms, stress tests, etc.) from a licensed physician or
psychologist, hospital or clinic.
(a) The rate of payment to be used for purchasing medical or other
services necessary to make determinations of disability may not exceed
the highest rate paid by Federal or public agencies in the State for the
same or similar types of service. See Secs. 404.1624 and 404.1626.
(b) If a physician's bill or a request for payment for a physician's
services includes a charge for a laboratory test for which payment may
be made under this part, the amount payable with respect to the test
shall be determined as follows:
(1) If the bill or request for payment indicates that the test was
personally performed or supervised by the physician who submitted the
bill (or for whose services the request for payment was made) or by
another physician with whom that physician shares his or her practice,
the payment will be based on the physician's usual and customary charge
for the test or the rates of payment which the State uses for purchasing
such services, whichever is the lesser amount.
(2) If the bill or request for payment indicates that the test was
performed by an independent laboratory, the amount of reimbursement will
not exceed the billed cost of the independent laboratory or the rate of
payment which the State uses for purchasing such services, whichever is
the lesser amount. A nominal payment may be made to the physician for
collecting, handling and shipping a specimen to the laboratory if the
physician bills for such a service. The total reimbursement may not
exceed the rate of payment which the State uses for purchasing such
services.
(c) The State will assure that it can support the rate of payment it
uses. The State shall also be responsible for monitoring and overseeing
the rate of
[[Page 346]]
payment it uses to ensure compliance with paragraphs (a) and (b) of this
section.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519m Diagnostic tests or procedures.
We will request the results of any diagnostic tests or procedures
that have been performed as part of a workup by your treating physician
or psychologist or other medical source and will use the results to help
us evaluate impairment severity or prognosis. However, we will not order
diagnostic tests or procedures that involve significant risk to you,
such as myelograms, arteriograms, or cardiac catheterizations for the
evaluation of disability under the Social Security program. Also, a
State agency medical consultant must approve the ordering of any
diagnostic test or procedure when there is a chance it may involve
significant risk. The responsibility for deciding whether to perform the
examination rests with the consultative examining physician or
psychologist.
[56 FR 36957, Aug. 1, 1991]
Sec. 404.1519n Informing the examining physician or psychologist of
examination scheduling, report content, and signature
requirements.
The physicians or psychologists who perform consultative
examinations will have a good understanding of our disability programs
and their evidentiary requirements. They will be made fully aware of
their responsibilities and obligations regarding confidentiality as
described in Sec. 401.105(e). We will fully inform consulting physicians
or psychologists at the time we first contact them, and at subsequent
appropriate intervals, of the following obligations:
(a) In scheduling full consultative examinations, sufficient time
should be allowed to permit the examining physician or psychologist to
take a case history and perform the examination, including any needed
tests. The following minimum scheduling intervals (i.e., time set aside
for the individual, not the actual duration of the consultative
examination) should be used.
(1) Comprehensive general medical examination--at least 30 minutes;
(2) Comprehensive musculoskeletal or neurological examination--at
least 20 minutes;
(3) Comprehensive psychiatric examination--at least 40 minutes;
(4) Psychological examination--at least 60 minutes (Additional time
may be required depending on types of psychological tests administered);
and
(5) All others--at least 30 minutes, or in accordance with accepted
medical practices.
We recognize that actual practice will dictate that some examinations
may require longer scheduling intervals depending on the circumstances
in a particular situation. We also recognize that these minimum
intervals may have to be adjusted to allow for those claimants who do
not attend their scheduled examination. The purpose of these minimum
scheduling timeframes is to ensure that such examinations are complete
and that sufficient time is made available to obtain the information
needed to make an accurate determination in your case. State agencies
will monitor the scheduling of examinations (through their normal
consultative examination oversight activities) to ensure that any
overscheduling is avoided, as overscheduling may lead to examinations
that are not thorough.
(b) Report content. The reported results of your medical history,
examination, requested laboratory findings, discussions and conclusions
must conform to accepted professional standards and practices in the
medical field for a complete and competent examination. The facts in a
particular case and the information and findings already reported in the
medical and other evidence of record will dictate the extent of detail
needed in the consultative examination report for that case. Thus, the
detail and format for reporting the results of a purchased examination
will vary depending upon the type of examination or testing requested.
The reporting of information will differ from one type of examination to
another when the requested examination relates to the performance of
tests such as ventilatory function tests, treadmill exercise tests, or
audiological tests. The medical report must be complete
[[Page 347]]
enough to help us determine the nature, severity, and duration of the
impairment, and residual functional capacity. The report should reflect
your statements of your symptoms, not simply the physician's or
psychologist's statements or conclusions. The examining physician's or
psychologist's report of the consultative examination should include the
objective medical facts as well as observations and opinions.
(c) Elements of a complete consultative examination. A complete
consultative examination is one which involves all the elements of a
standard examination in the applicable medical specialty. When the
report of a complete consultative examination is involved, the report
should include the following elements:
(1) Your major or chief complaint(s);
(2) A detailed description, within the area of specialty of the
examination, of the history of your major complaint(s);
(3) A description, and disposition, of pertinent ``positive'' and
``negative'' detailed findings based on the history, examination and
laboratory tests related to the major complaint(s), and any other
abnormalities or lack thereof reported or found during examination or
laboratory testing;
(4) The results of laboratory and other tests (e.g., X-rays)
performed according to the requirements stated in the Listing of
Impairments (see appendix 1 of this subpart P);
(5) The diagnosis and prognosis for your impairment(s);
(6) A statement about what you can still do despite your
impairment(s), unless the claim is based on statutory blindness. This
statement should describe the opinion of the consultative physician or
psychologist about your ability, despite your impairment(s), to do work-
related activities such as sitting, standing, walking, lifting,
carrying, handling objects, hearing, speaking, and traveling; and, in
cases of mental impairment(s), the opinion of the consultative physician
or psychologist about your ability to understand, to carry out and
remember instructions, and to respond appropriately to supervision,
coworkers and work pressures in a work setting; and
(7) In addition, the consultative physician or psychologist will
consider, and provide some explanation or comment on, your major
complaint(s) and any other abnormalities found during the history and
examination or reported from the laboratory tests. The history,
examination, evaluation of laboratory test results, and the conclusions
will represent the information provided by the physician or psychologist
who signs the report.
(d) When a complete consultative examination is not required. When
the evidence we need does not require a complete consultative
examination (for example, we need only a specific laboratory test result
to complete the record), we may not require a report containing all of
the elements in paragraph (c).
(e) Signature requirements. All consultative examination reports
will be personally reviewed and signed by the physician or psychologist
who actually performed the examination. This attests to the fact that
the physician or psychologist doing the examination or testing is solely
responsible for the report contents and for the conclusions,
explanations or comments provided with respect to the history,
examination and evaluation of laboratory test results. The signature of
the examining physician or psychologist on a report annotated ``not
proofed'' or ``dictated but not read'' is not acceptable. A rubber stamp
signature of a physician or psychologist or the physician's or
psychologist's signature entered by any other person is not acceptable.
[56 FR 36958, Aug. 1, 1991]
Sec. 404.1519o When a properly signed consultative examination report
has not been received.
If a consultative examination report is received unsigned or
improperly signed we will take the following action.
(a) When we will make determinations and decisions without a
properly signed report. We will make a determination or decision in the
circumstances specified in paragraphs (a)(1) and (a)(2) of this section
without waiting for a properly signed consultative examination report.
After we have made the determination or decision, we will obtain a
[[Page 348]]
properly signed report and include it in the file unless the physician
or psychologist who performed the original consultative examination has
died.
(1) Continuous period of disability allowance with an onset date as
alleged or earlier than alleged; or
(2) Continuance of disability.
(b) When we will not make determinations and decisions without a
properly signed report. We will not use an unsigned or improperly signed
consultative examination report to make the determinations or decisions
specified in paragraphs (b)(1), (b)(2), (b)(3), and (b)(4) of this
section. When we need a properly signed consultative examination report
to make these determinations or decisions, we must obtain such a report.
If the signature of the physician or psychologist who performed the
original examination cannot be obtained because the physician or
psychologist is out of the country for an extended period of time, on an
extended vacation, seriously ill, deceased, or for any other reason, the
consultative examination will be rescheduled with another physician or
psychologist.
(1) Denial; or
(2) Cessation; or
(3) Allowance of a period of disability which has ended; or
(4) Allowance with an onset date later than alleged.
[56 FR 36958, Aug. 1, 1991]
Sec. 404.1519p Reviewing reports of consultative examinations.
(a) We will review the report of the consultative examination to
determine whether the specific information requested has been furnished.
We will consider the following factors in reviewing the report:
(1) Whether the report provides evidence which serves as an adequate
basis for decisionmaking in terms of the impairment it assesses;
(2) Whether the report is internally consistent; Whether all the
diseases, impairments and complaints described in the history are
adequately assessed and reported in the clinical findings; Whether the
conclusions correlate the findings from your medical history, clinical
examination and laboratory tests and explain all abnormalities;
(3) Whether the report is consistent with the other information
available to us within the specialty of the examination requested;
Whether the report fails to mention an important or relevant complaint
within that specialty that is noted in other evidence in the file (e.g.,
your blindness in one eye, amputations, pain, alcoholism, depression);
(4) Whether this is an adequate report of examination as compared to
standards set out in the course of a medical education; and
(5) Whether the report is properly signed.
(b) If the report is inadequate or incomplete, we will contact the
examining consultative physician or psychologist, give an explanation of
our evidentiary needs, and ask that the physician or psychologist
furnish the missing information or prepare a revised report.
(c) With your permission, or where the examination discloses new
diagnostic information or test results that reveal potentially life-
threatening situations, we will refer the consultative examination
report to your treating physician or psychologist. When we refer the
consultative examination report to your treating physician or
psychologist without your permission, we will notify you that we have
done so.
(d) We will perform ongoing special management studies on the
quality of consultative examinations purchased from major medical
sources and the appropriateness of the examinations authorized.
(e) We will take steps to ensure that consultative examinations are
scheduled only with medical sources who have access to the equipment
required to provide an adequate assessment and record of the existence
and level of severity of your alleged impairments.
[56 FR 36959, Aug. 1, 1991]
Sec. 404.1519q Conflict of interest.
All implications of possible conflict of interest between medical or
psychological consultants and their medical or psychological practices
will be avoided. Such consultants are not only those physicians and
psychologists who work for us directly but are also those who do review
and adjudication work
[[Page 349]]
in the State agencies. Physicians and psychologists who work for us
directly as employees or under contract will not work concurrently for a
State agency. Physicians and psychologists who do review work for us
will not perform consultative examinations for us without our prior
approval. In such situations, the physician or psychologist will
disassociate himself or herself from further involvement in the case and
will not participate in the evaluation, decision, or appeal actions. In
addition, neither they, nor any member of their families, will acquire
or maintain, either directly or indirectly, any financial interest in a
medical partnership, corporation, or similar relationship in which
consultative examinations are provided. Sometimes physicians and
psychologists who do review work for us will have prior knowledge of a
case; for example, when the claimant was a patient. Where this is so,
the physician or psychologist will not participate in the review or
determination of the case. This does not preclude the physician or
psychologist from submitting medical evidence based on treatment or
examination of the claimant.
[56 FR 36959, Aug. 1, 1991]
Authorizing and Monitoring the Referral Process
Sec. 404.1519s Authorizing and monitoring the consultative examination.
(a) Day-to-day responsibility for the consultative examination
process rests with the State agencies that make disability
determinations for us.
(b) The State agency will maintain a good working relationship with
the medical community in order to recruit sufficient numbers of
physicians and other providers of medical services to ensure ready
availability of consultative examination providers.
(c) Consistent with Federal and State laws, the State agency
administrator will work to achieve appropriate rates of payment for
purchased medical services.
(d) Each State agency will be responsible for comprehensive
oversight management of its consultative examination program, with
special emphasis on key providers.
(e) A key consultative examination provider is a provider that meets
at least one of the following conditions:
(1) Any consultative examination provider with an estimated annual
billing to the Social Security disability programs of at least $100,000;
or
(2) Any consultative examination provider with a practice of
medicine, osteopathy, or psychology directed primarily towards
evaluation examinations rather than the treatment of patients; or
(3) Any consultative examination provider that does not meet the
above criteria, but is one of the top five consultative examination
providers in the State by dollar volume, as evidenced by prior year
data.
(f) State agencies have flexibility in managing their consultative
examination programs, but at a minimum will provide:
(1) An ongoing active recruitment program for consultative
examination providers;
(2) A process for orientation, training, and review of new
consultative examination providers, with respect to SSA's program
requirements involving consultative examination report content and not
with respect to medical techniques;
(3) Procedures for control of scheduling consultative examinations;
(4) Procedures to ensure that close attention is given to specific
evaluation issues involved in each case;
(5) Procedures to ensure that only required examinations and tests
are authorized in accordance with the standards set forth in this
subpart;
(6) Procedures for providing medical or supervisory approval for the
authorization or purchase of consultative examinations and for
additional tests or studies requested by consulting physicians and
psychologists. This includes physician approval for the ordering of any
diagnostic test or procedure where the question of significant risk to
the claimant/beneficiary might be raised. See Sec. 404.1519m.
(7) Procedures for the ongoing review of consultative examination
results to ensure compliance with written guidelines;
[[Page 350]]
(8) Procedures to encourage active participation by physicians in
the consultative examination oversight program;
(9) Procedures for handling complaints;
(10) Procedures for evaluating claimant reactions to key providers;
and
(11) A program of systematic, onsite reviews of key providers that
will include annual onsite reviews of such providers when claimants are
present for examinations. This provision does not contemplate that such
reviews will involve participation in the actual examinations but,
rather, offer an opportunity to talk with claimants at the provider's
site before and after the examination and to review the provider's
overall operation.
(g) The State agencies will cooperate with us when we conduct
monitoring activities in connection with their oversight management of
their consultative examination programs.
[56 FR 36959, Aug. 1, 1991]
Procedures To Monitor the Consultative Examination
Sec. 404.1519t Consultative examination oversight.
(a) We will ensure that referrals for consultative examinations and
purchases of consultative examinations are made in accordance with our
policies. We will also monitor both the referral processes and the
product of the consultative examinations obtained. This monitoring may
include reviews by independent medical specialists under direct contract
with SSA.
(b) Through our regional offices, we will undertake periodic
comprehensive reviews of each State agency to evaluate each State's
management of the consultative examination process. The review will
involve visits to key providers, with State staff participating,
including a program physician when the visit will deal with medical
techniques or judgment, or factors that go to the core of medical
professionalism.
(c) We will also perform ongoing special management studies of the
quality of consultative examinations purchased from key providers and
other sources and the appropriateness of the examinations authorized.
[56 FR 36960, Aug. 1, 1991]
Evaluation of Disability
Sec. 404.1520 Evaluation of disability in general.
(a) Steps in evaluating disability. We consider all evidence in your
case record when we make a determination or decision whether you are
disabled. When you file a claim for a period of disability and/or
disability insurance benefits or for child's benefits based on
disability, we use the following evaluation process. If you are doing
substantial gainful activity, we will determine that you are not
disabled. If you are not doing substantial gainful activity, we will
first consider the effect of your physical or mental impairment; if you
have more than one impairment, we will also consider the combined effect
of your impairments. Your impairment(s) must be severe and meet the
duration requirement before we can find you to be disabled. We follow a
set order to determine whether you are disabled. We review any current
work activity, the severity of your impairment(s), your residual
functional capacity, your past work, and your age, education, and work
experience. If we can find that you are disabled or not disabled at any
point in the review, we do not review your claim further. Once you have
been found entitled to disability benefits, we follow a somewhat
different order of evaluation to determine whether your entitlement
continues, as explained in Sec. 404.1594(f)(6).
(b) If you are working. If you are working and the work you are
doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition or your age, education,
and work experience.
(c) You must have a severe impairment. If you do not have any
impairment or combination of impairments which significantly limits your
physical or mental ability to do basic work activities, we will find
that you do not have a severe impairment and are, therefore, not
disabled. We will not consider your age, education, and work experience.
However, it is possible for you to have a period of disability for a
time in the
[[Page 351]]
past even though you do not now have a severe impairment.
(d) When your impairment(s) meets or equals a listed impairment in
appendix 1. If you have an impairment(s) which meets the duration
requirement and is listed in appendix 1 or is equal to a listed
impairment(s), we will find you disabled without considering your age,
education, and work experience.
(e) Your impairments(s) must prevent you from doing past relevant
work. If we cannot make a decision based on your current work activity
or on medical facts alone, and you have a severe impairment(s), we then
review your residual functional capacity and the physical and mental
demands of the work you have done in the past. If you can still do this
kind of work, we will find that you are not disabled.
(f) Your impairment(s) must prevent you from doing any other work.
(1) If you cannot do any work you have done in the past because you have
a severe impairment(s), we will consider your residual functional
capacity and your age, education, and past work experience to see if you
can do other work. If you cannot, we will find you disabled.
(2) If you have only a marginal education, and long work experience
(i.e., 35 years or more) where you only did arduous unskilled physical
labor, and you can no longer do this kind of work, we use a different
rule (see Sec. 404.1562).
[50 FR 8727, Mar. 5, 1985; 50 FR 19164, May 7, 1985, as amended at 56 FR
36960, Aug. 1, 1991]
Sec. 404.1520a Evaluation of mental impairments.
(a) General. The steps outlined in Sec. 404.1520 apply to the
evaluation of physical and mental impairments. In addition, in
evaluating the severity of mental impairments for adults (persons age 18
and over) and in persons under age 18 when Part A of the Listing of
Impairments is used, a special procedure must be followed by us at each
level of adminstrative review. Following this procedure will assist us
in:
(1) Identifying additional evidence necessary for the determination
of impairment severity;
(2) Considering and evaluating aspects of the mental disorder(s)
relevant to your ability to work; and
(3) Organizing and presenting the findings in a clear, concise, and
consistent manner.
(b) Use of the procedure to record pertinent findings and rate the
degree of functional loss. (1) This procedure requires us to record the
pertinent signs, symptoms, findings, functional limitations, and effects
of treatment contained in your case record. This will assist us in
determining if a mental impairment(s) exists. Whether or not a mental
impairment(s) exists is decided in the same way the question of a
physical impairment is decided, i.e., the evidence must be carefully
reviewed and conclusions supported by it. The mental status examination
and psychiatric history will ordinarily provide the needed information.
(See Sec. 404.1508 for further information about what is needed to show
an impairment.)
(2) If we determine that a mental impairment(s) exists, this
procedure then requires us to indicate whether certain medical findings
which have been found especially relevant to the ability to work are
present or absent.
(3) The procedure then requires us to rate the degree of functional
loss resulting from the impairment(s). Four areas of function considered
by us as essential to work have been identified, and the degree of
functional loss in those areas must be rated on a scale that ranges from
no limitation to a level of severity which is incompatible with the
ability to perform those work-related functions. For the first two areas
(activities of daily living and social functioning), the rating of
limitation must be done based upon the following five point scale: none,
slight, moderate, marked, and extreme. For the third area
(concentration, persistence, or pace) the following five point scale
must be used: never, seldom, often, frequent, and constant. For the
fourth area (deterioration or decompensation in work or work-like
settings), the following four point scale must be used: never, once or
twice, repeated (three or more), and continual. The last two points for
each of these scales represent a degree of limitation which is
incompatible with the ability to perform the work-related function.
[[Page 352]]
(c) Use of the procedure to evaluate mental impairments. Following
the rating of the degree of functional loss resulting from the
impairment, we must then determine the severity of the mental
impairment(s).
(1) If the four areas considered by us as essential to work have
been rated to indicate a degree of limitation as none or slight in the
first and second areas, never or seldom in the third area, and never in
the fourth area, we can generally conclude that the impairment is not
severe, unless the evidence otherwise indicates there is significant
limitation of your mental ability to do basic work activities (see
Sec. 404.1521).
(2) If your mental impairment(s) is severe, we must then determine
if it meets or equals a listed mental disorder. This is done by
comparing our prior conclusions based on this procedure (i.e., the
presence of certain medical findings considered by us as especially
relevant to your ability to work and our rating of functional loss
resulting from the mental impairment(s)) against the paragraph A and B
criteria of the appropriate listed mental disorder(s). If we determine
that paragraph C criteria will be used in lieu of paragraph B criteria
(see listings 12.03 and 12.06), we will, by following this procedure,
indicate on the document whether the evidence is sufficient to establish
the presence or absence of the criteria. (See paragraph (d) of this
section).
(3) If you have a severe impairment(s), but the impairment(s)
neither meets nor equals the listings, we must then do a residual
functional capacity assessment.
(4) At all adjudicative levels we must, in each case, incorporate
the pertinent findings and conclusions based on this procedure in our
decision rationale. Our rationale must show the significant history,
including examination, laboratory findings, and functional limitations
that we considered in reaching conclusions about the severity of the
mental impairment(s).
(d) Preparation of the document. A standard document outlining the
steps of this procedure must be completed by us in each case at the
initial, reconsideration, administrative law judge hearing, and Appeals
Council levels (when the Appeals Council issues a decision).
(1) At the initial and reconsideration levels the standard document
must be completed and signed by our medical consultant. At the
administrative law judge hearing level, several options are available:
(i) The administrative law judge may complete the document without
the assistance of a medical advisor;
(ii) The administrative law judge may call a medical advisor for
assistance in preparing the document; or
(iii) Where new evidence is received that is not merely cumulative
of evidence already in your case file or where the issue of a mental
impairment arises for the first time at the administrative law judge
hearing level, the administrative law judge may decide to remand the
case to the State agency for completion of the document and a new
determination. Remand may also be made in situations where the services
of a medical advisor are determined necessary but unavailable to the
administrative law judge. In such circumstances, however, a remand may
ordinarily be made only once.
(2) For all cases involving mental disorders at the administrative
law judge hearing or Appeals Council levels, the standard document will
be appended to the decision.
(Approved by the Office of Management and Budget under control number
0960-0413)
[50 FR 35065, Aug. 28, 1985, as amended at 55 FR 51229, Dec. 12, 1990;
57 FR 30120, July 8, 1992]
Sec. 404.1521 What we mean by an impairment(s) that is not severe.
(a) Non-severe impairment(s). An impairment or combination of
impairments is not severe if it does not significantly limit your
physical or mental ability to do basic work activities.
(b) Basic work activities. When we talk about basic work activities,
we mean the abilities and aptitudes necessary to do most jobs. Examples
of these include--
(1) Physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling;
[[Page 353]]
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple
instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual
work situations; and
(6) Dealing with changes in a routine work setting.
[50 FR 8728, Mar. 5, 1985]
Sec. 404.1522 When you have two or more unrelated impairments--initial
claims.
(a) Unrelated severe impairments. We cannot combine two or more
unrelated severe impairments to meet the 12-month duration test. If you
have a severe impairment(s) and then develop another unrelated severe
impairment(s) but neither one is expected to last for 12 months, we
cannot find you disabled, even though the two impairments in combination
last for 12 months.
(b) Concurrent impairments. If you have two or more concurrent
impairments which, when considered in combination, are severe, we must
also determine whether the combined effect of your impairments can be
expected to continue to be severe for 12 months. If one or more of your
impairments improves or is expected to improve within 12 months, so that
the combined effect of your remaining impairments is no longer severe,
we will find that you do not meet the 12-month duration test.
[50 FR 8728, Mar. 5, 1985]
Sec. 404.1523 Multiple impairments.
In determining whether your physical or mental impairment or
impairments are of a sufficient medical severity that such impairment or
impairments could be the basis of eligibility under the law, we will
consider the combined effect of all of your impairments without regard
to whether any such impairment, if considered separately, would be of
sufficient severity. If we do find a medically severe combination of
impairments, the combined impact of the impairments will be considered
throughout the disability determination process. If we do not find that
you have a medically severe combination of impairments, we will
determine that you are not disabled (see Sec. 404.1520).
[50 FR 8728, Mar. 5, 1985]
Medical Considerations
Sec. 404.1525 Listing of Impairments in appendix 1.
(a) Purpose of the Listing of Impairments. The Listing of
Impairments describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from doing any
gainful activity. Most of the listed impairments are permanent or
expected to result in death, or a specific statement of duration is
made. For all others, the evidence must show that the impairment has
lasted or is expected to last for a continuous period of at least 12
months.
(b) Adult and childhood diseases. The Listing of Impairments
consists of two parts:
(1) Part A contains medical criteria that apply to adult persons age
18 and over. The medical criteria in part A may also be applied in
evaluating impairments in persons under age 18 if the disease processes
have a similar effect on adults and younger persons.
(2) Part B contains additional medical criteria that apply only to
the evaluation of impairments of persons under age 18. Certain criteria
in part A do not give appropriate consideration to the particular
effects of the disease processes in childhood; i.e., when the disease
process is generally found only in children or when the disease process
differs in its effect on children than on adults. Additional criteria
are included in part B, and the impairment categories are, to the extent
possible, numbered to maintain a relationship with their counterparts in
part A. In evaluating disability for a person under age 18, part B will
be used first. If the medical criteria in part B do not apply, then the
medical criteria in part A will be used.
(c) How to use the Listing of Impairments. Each section of the
Listing of Impairments has a general introduction containing definitions
of key concepts used in that section. Certain specific medical findings,
some of which are required in establishing a diagnosis
[[Page 354]]
or in confirming the existence of an impairment for the purpose of this
Listing, are also given in the narrative introduction. If the medical
findings needed to support a diagnosis are not given in the introduction
or elsewhere in the listing, the diagnosis must still be established on
the basis of medically acceptable clinical and laboratory diagnostic
techniques. Following the introduction in each section, the required
level of severity of impairment is shown under ``Category of
Impairments'' by one or more sets of medical findings. The medical
findings consist of symptoms, signs, and laboratory findings.
(d) Diagnosis of impairments. We will not consider your impairment
to be one listed in appendix 1 solely because it has the diagnosis of a
listed impairment. It must also have the findings shown in the Listing
of that impairment.
(e) Addiction to alcohol or drugs. If you have a condition diagnosed
as addiction to alcohol or drugs, this will not, by itself, be a basis
for determining whether you are, or are not, disabled. As with any other
medical condition, we will decide whether you are disabled based on
symptoms, signs, and laboratory findings.
(f) Symptoms as criteria of listed impairment(s). Some listed
impairment(s) include symptoms usually associated with those
impairment(s) as criteria. Generally, when a symptom is one of the
criteria in a listed impairment, it is only necessary that the symptom
be present in combination with the other criteria. It is not necessary,
unless the listing specifically states otherwise, to provide information
about the intensity, persistence or limiting effects of the symptom as
long as all other findings required by the specific listing are present.
[45 FR 55584, Aug. 20, 1980, as amended at 56 FR 57941, Nov. 14, 1991]
Sec. 404.1526 Medical equivalence.
(a) How medical equivalence is determined. We will decide that your
impairment(s) is medically equivalent to a listed impairment in appendix
1 if the medical findings are at least equal in severity and duration to
the listed findings. We will compare the symptoms, signs, and laboratory
findings about your impairment(s), as shown in the medical evidence we
have about your claim, with the medical criteria shown with the listed
impairment. If your impairment is not listed, we will consider the
listed impairment most like your impairment to decide whether your
impairment is medically equal. If you have more than one impairment, and
none of them meets or equals a listed impairment, we will review the
symptoms, signs, and laboratory findings about your impairments to
determine whether the combination of your impairments is medically equal
to any listed impairment.
(b) Medical equivalence must be based on medical findings. We will
always base our decision about whether your impairment(s) is medically
equal to a listed impairment on medical evidence only. Any medical
findings in the evidence must be supported by medically acceptable
clinical and laboratory diagnostic techniques. We will also consider the
medical opinion given by one or more medical or psychological
consultants designated by the Secretary in deciding medical equivalence.
(See Sec. 404.1616.)
(c) Who is a designated medical or psychological consultant. A
medical or psychological consultant designated by the Secretary includes
any medical or psychological consultant employed or engaged to make
medical judgments by the Social Security Administration, the Railroad
Retirement Board, or a State agency authorized to make disability
determinations. A medical consultant must be a physician. A
psychological consultant used in cases where there is evidence of a
mental impairment must be a qualified psychologist. (See Sec. 404.1616
for the qualifications we consider necessary for a psychologist to be a
consultant.)