83_FR_49807 83 FR 49616 - Social Security Ruling, SSR 18-3p; Titles II and XVI: Failure To Follow Prescribed Treatment

83 FR 49616 - Social Security Ruling, SSR 18-3p; Titles II and XVI: Failure To Follow Prescribed Treatment

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 83, Issue 191 (October 2, 2018)

Page Range49616-49621
FR Document2018-21359

We are providing notice of SSR 18-3p. This Ruling provides guidance about how we apply our failure to follow prescribed treatment policy in disability and blindness claims under Titles II and XVI of the Social Security Act (Act).

Federal Register, Volume 83 Issue 191 (Tuesday, October 2, 2018) 
[Federal Register Volume 83, Number 191 (Tuesday, October 2, 2018)]
[Notices]
[Pages 49616-49621]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21359]


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SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA-2016-0034]


Social Security Ruling, SSR 18-3p; Titles II and XVI: Failure To 
Follow Prescribed Treatment

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Ruling (SSR).

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SUMMARY: We are providing notice of SSR 18-3p. This Ruling provides 
guidance about how we apply our failure to follow prescribed treatment 
policy in disability and blindness claims under Titles II and XVI of 
the Social Security Act (Act).

DATES: We will apply this notice on October 29, 2018.

FOR FURTHER INFORMATION CONTACT: Dan O'Brien, Office of Vocational, 
Evaluation, and Process Policy in the Office of Disability Policy, 
Social Security Administration, 6401 Security Boulevard, Baltimore, MD 
21235-6401, 410-597-1632. For information on eligibility or filing for 
benefits, call our national toll-free number at 1-800-772-1213, or 
visit our internet site, Social Security online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do 
not require us to publish this SSR, we are publishing it in accordance 
with 20 CFR 402.35(b)(1).
    We use SSRs to make available to the public precedential decisions 
relating to the Federal old age, survivors, disability, supplemental 
security income, and special veterans benefits programs. We may base 
SSRs on determinations or decisions made in our administrative review 
process, Federal court decisions, decisions of our Commissioner, 
opinions from our Office of the General Counsel, or other 
interpretations of law and regulations.
    Although SSRs do not have the same force and effect as law, they 
are binding on all components of the Social Security Administration in 
accordance with 20

[[Page 49617]]

CFR 402.35(b)(1), and are binding as precedents in adjudicating cases.
    This SSR will remain in effect until we publish a notice in the 
Federal Register that rescinds it, or until we publish a new SSR in the 
Federal Register that rescinds and replaces or modifies it.

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

Nancy A. Berryhill,
Acting Commissioner of Social Security.

Policy Interpretation Ruling

Titles II and XVI: Failure To Follow Prescribed Treatment

    This Social Security Ruling (SSR) rescinds and replaces SSR 82-59: 
``Titles II and XVI: Failure to Follow Prescribed Treatment.''
    Purpose: To provide guidance on how we apply our failure to follow 
prescribed treatment policy in disability and blindness claims under 
titles II and XVI of the Social Security Act (Act).
    Citations (Authority): Sections 216(i), 223(d) and (f), and 1614(a) 
of the Act, as amended; 20 CFR 404.1530 and 416.930.
    Dates: We will apply this notice on October 29, 2018.\1\
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    \1\ Our adjudicators will apply this ruling when we make 
determinations and decisions on or after October 29, 2018. When a 
Federal court reviews our final decision in a claim, we expect the 
court will review the final decision using the rules that were in 
effect at the time we issued the decision under review. If a court 
finds reversible error and remands a case for further administrative 
proceedings on or after October 29, 2018, the applicable date of 
this ruling, we will apply this ruling to the entire period at issue 
in the decision we make after the court's remand. Our regulations on 
failure to follow prescribed treatment are unchanged.
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Overview

A. Background
B. When we decide whether the failure to follow prescribed treatment 
policy may apply in an initial claim
    Condition 1: The individual is otherwise entitled to disability or 
statutory blindness benefits under titles II or XVI of the Act
    Condition 2: There is evidence that an individual's own medical 
source(s) prescribed treatment for the medically determinable 
impairment(s) upon which the disability finding is based
    Condition 3: There is evidence that the individual did not follow 
the prescribed treatment
C. How we will make a failure to follow prescribed treatment 
determination
    Assessment 1: We assess whether the prescribed treatment, if 
followed, would be expected to restore the individual's ability to 
engage in substantial gainful activity (SGA)
    Assessment 2: We assess whether the individual has good cause for 
not following the prescribed treatment
D. Development procedures
E. Required written statement of failure to follow prescribed treatment 
determination
F. When we make a failure to follow prescribed treatment determination 
within the sequential evaluation process
    Adult claims that meet or equal a listing at step 3
    Title XVI child claims that meet, medically equal, or functionally 
equal the listings at step 3
    Adult claims finding disability at step 5
    G. Reopening a determination or decision
H. Continuing Disability Reviews (CDR)
I. Duration in disability and Title II blindness claims
J. Duration in Title XVI blindness claims
K. Claims involving both drug addiction and alcoholism (DAA) and 
failure to follow prescribed treatment

A. Background

    Under the Act, an individual who meets the requirements to receive 
disability or blindness benefits will not be entitled to these benefits 
if the individual fails, without good cause, to follow prescribed 
treatment that we expect would restore his or her ability to engage in 
substantial gainful activity (SGA).\2\
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    \2\ Sections 223(f) and 1614(a) of the Act. The ability to 
engage in SGA is the standard in adult disability claims. However, 
when this policy is applied in title XVI child disability claims, 
the standard is ``the prescribed treatment is expected to eliminate 
or improve the child's impairment so that it no longer results in 
marked and severe functional limitations.'' Similarly, for claims 
based on statutory blindness, the standard is the prescribed 
treatment would be expected to ``restore vision to the extent that 
the individual will no longer be blind.''
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    We apply the failure to follow prescribed treatment policy at all 
levels of our administrative review process when we decide an initial 
claim for benefits based on disability or blindness. We also apply the 
policy when we reopen a prior determination or decision involving a 
claim for benefits based on disability or blindness, when we conduct an 
age-18 redetermination, and when we conduct a continuing disability 
review (CDR) under titles II or XVI of the Act.
    This SSR explains the policy and procedures we follow when we 
decide whether an individual has failed to follow prescribed treatment 
as required by the Act and our regulations.\3\
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    \3\ See 20 CFR 404.1530 and 416.930.
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B. When We Decide Whether the Failure To Follow Prescribed Treatment 
Policy May Apply in an Initial Claim

    We will determine whether an individual has failed to follow 
prescribed treatment only if all three of the following conditions 
exist:
    1. The individual would otherwise be entitled to benefits based on 
disability or eligible for blindness benefits under titles II or XVI of 
the Act;
    2. We have evidence that an individual's own medical source(s) 
prescribed treatment for the medically determinable impairment(s) upon 
which the disability finding is based; and
    3. We have evidence that the individual did not follow the 
prescribed treatment. If all three conditions exist, we will determine 
whether the individual failed to follow prescribed treatment, as 
explained below.\4\
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    \4\ There are two exceptions at step 3 of the sequential 
evaluation process, explained in section F (below), when we will not 
make a failure to follow prescribed treatment determination even if 
these three conditions are met.
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Condition 1: The Individual Is Otherwise Entitled to Disability or 
Statutory Blindness Benefits Under Titles II or XVI of the Act

    We only perform the failure to follow prescribed treatment analysis 
discussed in this SSR after we find that an individual is entitled to 
disability or eligible for statutory blindness benefits under titles II 
or XVI of the Act, regardless of whether the individual followed the 
prescribed treatment. We will not determine whether an individual 
failed to follow prescribed treatment if we find the individual is not 
disabled, not blind, or otherwise not entitled to or eligible for 
benefits under titles II or XVI of the Act.

Condition 2: There Is Evidence That an Individual's Own Medical 
Source(s) Prescribed Treatment for the Medically Determinable 
Impairment(s) Upon Which the Disability Finding Is Based

    If we find that the individual is otherwise entitled to disability 
or eligible for statutory blindness benefits under titles II or XVI of 
the Act, we will only determine if the individual has failed to follow 
prescribed treatment for the medically determinable impairment(s) upon 
which the disability finding is based if the individual's own medical 
source(s) prescribed the

[[Page 49618]]

treatment.\5\ We will not determine whether the individual failed to 
follow prescribed treatment if the treatment was prescribed only by a 
consultative examiner (CE), medical consultant (MC), psychological 
consultant (PC), medical expert (ME), or by a medical source during an 
evaluation conducted solely to determine eligibility to any State or 
Federal benefit.
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    \5\ See 20 CFR 404.1502 and 416.902 for the definition of 
``medical source.''
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    Prescribed treatment means any medication, surgery, therapy, use of 
durable medical equipment, or use of assistive devices. Prescribed 
treatment does not include lifestyle modifications, such as dieting, 
exercise, or smoking cessation. We will consider any evidence of 
prescribed treatment, whether it appears on prescription forms or is 
otherwise indicated within a medical source's records.
    We will consider treatment a medical source prescribed in the past 
if that treatment is still relevant to the individual's medically 
determinable impairments that are present during the potential period 
of entitlement or eligibility and upon which the disability finding was 
based. We will evaluate whether the individual failed to follow the 
prescribed treatment, and whether there is good cause for this failure, 
only for the period(s) during which the individual may be entitled to 
benefits under the Act.
    For example: On January 2, 2017, an individual filed for disability 
benefits based on an impairment related to a lower-extremity 
amputation. The individual is no longer wearing a prosthesis that her 
medical source prescribed in 2015. We determine that the individual 
meets all of the other criteria for disability. In this scenario, we 
will evaluate whether the individual is failing to follow the 
prescribed treatment to wear the prosthesis during the potential 
entitlement period and whether the individual has good cause for not 
following the prescribed treatment during this period. However, we will 
not consider whether the individual failed to follow prescribed 
treatment prior to the first possible date of entitlement.

Condition 3: There Is Evidence That the Individual Did Not Follow the 
Prescribed Treatment

    If we have any evidence that the individual is not following the 
prescribed treatment, this condition is satisfied. For example, a 
medical source may include in a treatment note that the patient has not 
been compliant with a prescribed medication regimen.

C. How We Will Make a Failure To Follow Prescribed Treatment 
Determination

    If all three conditions exist, we will determine whether the 
individual has failed to follow prescribed treatment in the claim. To 
make a failure to follow prescribed treatment determination, we will:
    1. Assess whether the prescribed treatment, if followed, would be 
expected to restore the individual's ability to engage in SGA.
    2. Assess whether the individual has good cause for not following 
the prescribed treatment.
    We may make either assessment first. If we first assess that the 
prescribed treatment, if followed, would not be expected to restore the 
individual's ability to engage in SGA, then it is unnecessary for us to 
assess whether the individual had good cause. Similarly, if we first 
assess that an individual has good cause for not following the 
prescribed treatment, then it is unnecessary for us to assess whether 
the prescribed treatment, if followed, would be expected to restore the 
individual's ability to engage in SGA.

Assessment 1: We Assess Whether the Prescribed Treatment, if Followed, 
Would Be Expected To Restore the Individual's Ability To Engage in SGA

    This assessment focuses on the prescribed treatment. We will 
determine whether we would expect the prescribed treatment, if 
followed, to restore the individual's ability to engage in SGA. We are 
responsible for making this assessment, and we will consider all the 
relevant evidence in the record. At the initial and reconsideration 
levels of the administrative review process, an MC or PC will make this 
assessment. At the hearings and Appeals Council (AC) levels, the 
adjudicator(s) will make this assessment. Although the conclusion of 
this assessment ultimately rests with us, we will consider the 
prescribing medical source's prognosis.
    If we first determine that following the prescribed treatment would 
not be expected to restore the individual's ability to engage in SGA, 
then it is unnecessary for us to assess whether the individual had good 
cause for failing to follow the prescribed treatment. If we determine 
that following the prescribed treatment would restore the individual's 
ability to engage in SGA, we will then assess whether the individual 
has good cause for not following the prescribed treatment.

Assessment 2: We Assess Whether the Individual Has Good Cause for Not 
Following the Prescribed Treatment

    This assessment focuses on whether the individual has good cause 
for not following the prescribed treatment.
    In adult claims, the individual has the burden to provide evidence 
showing that he or she has good cause for failing to follow prescribed 
treatment.
    In child claims, the parent or guardian has the burden to provide 
evidence showing that the child has good cause for failing to follow 
prescribed treatment. If the child has a representative payee and the 
parent, guardian, or child asserts that the child would have followed 
prescribed treatment but for the actions of the representative payee, 
we will determine whether to obtain a new representative payee. If we 
decide to obtain a new representative payee, we will provide additional 
time for the child to follow the prescribed treatment before we 
continue considering the claim.
    To assess good cause in both adult and child claims, we will 
develop the claim according to the instructions in the Development 
procedures section below. The following are examples of acceptable good 
cause reasons for not following prescribed treatment:
    1. Religion: The established teaching and tenets of the 
individual's religion prohibit him or her from following the prescribed 
treatment. The individual must identify the religion, provide evidence 
of the individual's membership in or affiliation to his or her 
religion, and provide evidence that the religion's teachings do not 
permit the individual to follow the prescribed treatment.
    2. Cost: The individual is unable to afford prescribed treatment, 
which he or she is willing to follow, but for which affordable or free 
community resources are unavailable. Some individuals can obtain free 
or subsidized health insurance plans or healthcare from a clinic or 
other provider. In these instances, the individual must demonstrate why 
he or she does not have health insurance that pays for the prescribed 
treatment or why he or she failed to obtain treatment at the free or 
subsidized healthcare provider.
    3. Incapacity: The individual is unable to understand the 
consequences of failing to follow prescribed treatment.
    4. Medical disagreement: When the individual's own medical sources 
disagree about whether the individual should follow a prescribed 
treatment, the individual has good cause to not follow the prescribed 
treatment. Similarly, when an individual chooses

[[Page 49619]]

to follow one kind of treatment prescribed by one medical source to the 
simultaneous exclusion of an alternate treatment prescribed by another 
medical source, the individual has good cause not to follow the 
alternate treatment.
    5. Intense fear of surgery: The individual's fear of surgery is so 
intense that it is a contraindication to having the surgery. We require 
a written statement from an individual's own medical source affirming 
that the individual's intense fear of surgery is in fact a 
contraindication to having the surgery. We will not consider an 
individual's refusal of surgery as good cause for failing to follow 
prescribed treatment if it is based on the individual's assertion that 
success is not guaranteed or that the individual knows of someone else 
for whom the treatment was not successful.
    6. Prior history: The individual previously had major surgery for 
the same impairment with unsuccessful results and the same or similar 
additional major surgery is now prescribed.
    7. High risk of loss of life or limb: The treatment involves a high 
risk for loss of life or limb. Treatments in this category include:
    [cir] Surgeries with a risk of death, such as open-heart surgery or 
organ transplant.
    [cir] Cataract surgery in one eye with a documented, unusually 
high-risk of serious surgical complications when the individual also 
has a severe visual impairment of the other eye that cannot be improved 
through treatment.
    [cir] Amputation of an extremity or a major part of an extremity.
    8. Risk of addiction to opioid medication: The prescribed treatment 
is for opioid medication.
    9. Other: If the individual offers another reason for failing to 
follow prescribed treatment, we will determine whether it is reasonably 
justified on a case-by-case basis.
    We will not consider as good cause an individual's allegation that 
he or she was unaware that his or her own medical source prescribed the 
treatment, unless the individual shows incapacity as described above. 
Similarly, mere assertions or allegations about the effectiveness of 
the treatment are insufficient to meet the individual's burden to show 
good cause for not following the prescribed treatment.

D. Development Procedures

    If evidence we already have in a claim is insufficient to make the 
required assessment(s) in the failure to follow prescribed treatment 
determination, we may develop the evidence, as appropriate. This 
development could include contacting the individual's medical source(s) 
or the individual to ask why he or she did not follow the prescribed 
treatment. Although it may be helpful to have evidence from a CE or ME, 
we are not required to purchase a CE or obtain testimony from an ME to 
help us determine whether we expect a prescribed treatment, if 
followed, would restore the ability to engage in SGA. We are 
responsible for resolving any conflicts in the evidence, including 
inconsistencies between statements made by the individual and 
information received from his or her medical source(s). We may also 
evaluate the claim using the procedures for fraud or similar fault, if 
appropriate.

E. Required Written Statement of Failure To Follow Prescribed Treatment 
Determination

    When we make a failure to follow prescribed treatment 
determination, we will explain the basis for our findings in our 
determination or decision.

F. When We Make a Failure To Follow Prescribed Treatment Determination 
Within the Sequential Evaluation Process for Initial Claims

Adult Claims That Meet or Equal a Listing at Step 3

    Generally, if we find that an individual's impairment(s) meets or 
medically equals a listing at step 3 of the sequential evaluation 
process, and there is evidence of all three conditions listed in 
Section B above, we will determine whether the individual failed to 
follow prescribed treatment. We will determine whether an individual 
would still meet or medically equal a listing had he or she followed 
the prescribed treatment. If we determine the individual would no 
longer meet or medically equal the listing had he or she followed 
prescribed treatment, we will assess whether there is good cause for 
not following the prescribed treatment. We will determine that the 
individual is disabled if we find that he or she has good cause for not 
following the prescribed treatment. If we do not find good cause, we 
will continue to evaluate the claim using the sequential evaluation 
process by determining the individual's residual functional capacity 
(RFC).\6\
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    \6\ See 20 CFR 404.1545 and 416.945.
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    There are two instances when we will not make a failure to follow 
prescribed treatment determination at step 3 of the sequential 
evaluation process, even if there is evidence that an individual did 
not follow prescribed treatment. First, we will not make a failure to 
follow prescribed treatment determination when we find the individual 
disabled based on a listing that requires only the presence of 
laboratory findings. In these claims, treatment would have no effect on 
the disability determination or decision. Second, we will not make a 
failure to follow prescribed treatment determination when we find the 
individual is disabled based on a listed impairment(s) which requires 
us to consider whether the individual was following that specific 
treatment as part of the required listing analysis. If either of these 
exceptions apply, we will find the individual is disabled without 
making a failure to follow prescribed treatment determination.

Title XVI Child Claims That Meet, Medically Equal, or Functionally 
Equal the Listings at Step 3

    Generally, if we find that a child's impairment(s) meets, medically 
equals, or functionally equals the listings at step 3 of the sequential 
evaluation process, and there is evidence of all three conditions 
listed in Section B above, we will determine whether there has been a 
failure to follow prescribed treatment. We will determine whether the 
child's impairment(s) would still meet, medically equal, or 
functionally equal the listings had he or she followed the prescribed 
treatment. If we determine the child's impairment(s) would no longer 
meet, medically equal, or functionally equal the listings had he or she 
followed prescribed treatment, we will assess whether there is good 
cause for not following the prescribed treatment. We will find the 
child is disabled if we determine that he or she has good cause for not 
following the prescribed treatment. If we determine that there is not 
good cause for failing to following the prescribed treatment, we will 
find the child is not disabled.
    There are two instances when we will not make a failure to follow 
prescribed treatment determination at step 3 of sequential evaluation 
process even if there is evidence that a child did not follow 
prescribed treatment. First, we will not make a failure to follow 
prescribed treatment determination when we find the child is disabled 
based on a listing that requires only the presence of laboratory 
findings. In these claims, treatment would have no impact on the 
disability determination or decision. Second, we will not make a 
failure to follow prescribed treatment determination when we find the 
child is disabled based on a listed impairment(s) which requires us to 
consider whether the child was following that specific treatment as 
part of the required listing

[[Page 49620]]

analysis. If either of these exceptions apply, we will find the child 
is disabled without making a failure to follow prescribed treatment 
determination.

Adult Claims Finding Disability at Step 5

    If we find that an individual is disabled at step 5 of the 
sequential evaluation process and there is evidence the individual is 
not following treatment prescribed by his or her own medical source(s), 
before we find the individual is disabled, we will assess whether the 
individual would still be disabled if he or she were following the 
prescribed treatment.
    We will determine what the individual's residual functional 
capacity (RFC) would be had he or she followed the prescribed 
treatment. We will then use that RFC to reevaluate steps 4 and 5 of the 
sequential evaluation process to determine whether the individual could 
perform his or her past relevant work at step 4 or adjust to other work 
at step 5. We will find the individual is disabled if we determine that 
the individual would remain unable to engage in SGA, even if the 
individual had followed the prescribed treatment. We will also find the 
individual is disabled if we find the individual had good cause for not 
following the prescribed treatment. However, we will find the 
individual is not disabled if the individual does not have good cause 
for not following the prescribed treatment and we determine that, had 
the individual followed the prescribed treatment, he or she could 
perform past relevant work or engage in other SGA.

G. Reopening a Determination or Decision

    As permitted by our regulations, we may reopen a favorable 
determination or decision if we discover we did not apply the failure 
to follow prescribed treatment policy correctly.\7\ We may base our 
reopening on the evidence we had in the folder at the time we made our 
determination or decision or based on new evidence we receive. When we 
reopen a disability or blindness determination or decision and find 
that an individual does not have good cause for failing to follow 
prescribed treatment, we will issue a predetermination notice and offer 
the individual an opportunity to respond before we terminate benefits.
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    \7\ See 20 CFR 404.988, 404.989, 416.1488, and 416.1489.
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H. Continuing Disability Reviews (CDR)

    When we conduct a CDR, we will make a failure to follow prescribed 
treatment determination when the individual's own medical source(s) 
prescribed a new treatment for the disabling impairment(s) since the 
last favorable determination or decision and the individual did not 
follow the prescribed treatment.
    We will also make a failure to follow prescribed treatment 
determination during a CDR if we find that an individual would continue 
to be entitled to disability or blindness benefits based upon an 
impairment first alleged during the CDR and there is evidence that the 
individual has not followed his or her own medical source's prescribed 
treatment for that impairment.
    If we determine an individual does not have good cause for failing 
to follow the prescribed treatment that we have determined would 
restore the individual's ability engage in SGA, we will issue a 
predetermination notice and, because benefits may be terminated, offer 
the individual an opportunity to respond before terminating benefits. 
Individuals are entitled to benefits while we develop evidence to 
determine whether they failed to follow prescribed treatment. If we 
determine that an individual failed to follow prescribed treatment 
without good cause in either situation, we will cease benefits two 
months after the month of the determination or decision that the 
individual is no longer disabled or statutorily blind.

I. Duration in Disability and Title II Blindness Claims

    If an individual failed to follow the prescribed treatment without 
good cause within 12 months of onset of disability or blindness, we 
will find the individual is not disabled because the duration 
requirement is not met.\8\ However, if an individual failed to follow 
prescribed treatment without good cause more than 12 months after onset 
of disability or blindness and is otherwise disabled, we will find the 
individual is disabled with a closed period that ends when the 
individual failed to follow the prescribed treatment. In this 
situation, we will continue to pay benefits as usual through the second 
month after the month disability or blindness ends.
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    \8\ See 20 CFR 404.1509 and 416.909.
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J. Duration in Title XVI Blindness Claims

    Because title XVI blindness entitlement does not have a duration 
requirement, an individual meeting the title XVI blindness requirements 
may be entitled to benefits beginning the month after he or she applies 
for benefits.\9\ If we determine an individual failed to follow 
prescribed treatment without good cause any time before the first day 
of the month after filing, we will find the individual is not disabled. 
However, if we determine the individual failed to follow prescribed 
treatment without good cause any time after the first day of the month 
after filing, we will find the individual is disabled with a closed 
period from the date of entitlement until the date we determined the 
individual failed to follow the prescribed treatment without good 
cause. In this situation, we will continue to pay benefits as usual 
through the second month after the month blindness ends.
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    \9\ Section 216(i)(1)(B) of the Act.
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    If we need further development to determine whether a title XVI 
blind individual failed to follow prescribed treatment without good 
cause, the individual is entitled to benefits while we conduct the 
additional development. At the hearing and Appeals Council levels, we 
will refer the claim to the effectuating component to develop the 
evidence necessary to make a failure to follow prescribed treatment 
determination.

K. Claims Involving Both Drug Addiction and Alcoholism (DAA) and 
Failure To Follow Prescribed Treatment

    In a claim that may involve both DAA and failure to follow a 
prescribed treatment for an impairment other than DAA, we will first 
make the DAA determination.\10\ If we find that the individual is 
disabled considering all impairments including the DAA and that DAA is 
material to our determination of disability, we will deny the claim and 
not make a failure to follow prescribed treatment determination. If we 
find that the individual is disabled considering all impairments 
including the DAA, but the DAA is not material to our determination of 
disability, we will then make the failure to follow prescribed 
treatment determination for the impairment(s) other than DAA. Even if 
the prescribed treatment for the other impairment(s) may also have 
beneficial effect on the DAA, we do not reevaluate for DAA materiality 
a second time.
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    \10\ See SSR 13-2p: Titles II and XVI: Evaluating Cases 
Involving Drug Addiction and Alcoholism (DAA), 78 FR 11939 (Mar. 22, 
2013).
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    For example, we cannot find that an individual has failed to follow 
prescribed treatment for liver disease based on a failure to follow 
treatment prescribed for alcohol dependence. If the cessation of 
drinking alcohol would

[[Page 49621]]

be expected to improve the individual's functioning so that he or she 
is not disabled, we would find that DAA is material to the 
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determination of disability and deny the claim for that reason.

[FR Doc. 2018-21359 Filed 10-1-18; 8:45 am]
 BILLING CODE 4191-02-P

49616 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices written questions to be answered under combined impairments first caused the that Federal courts will review our final oath or penalty of perjury). The decision claimant to meet the statutory definition decisions using the rules that were in to call on the services of an ME is of disability. effect at the time we issued the always at the ALJ’s discretion. Neither decisions. If a court reverses our final II. What are some special the claimant nor his or her decision and remands a case for further considerations related to the EOD? representative can require an ALJ to call administrative proceedings after the on the services of an ME to assist in A. How does work activity affect our applicable date of this SSR, we will inferring the date that the claimant first determination of the EOD? apply this SSR to the entire period at met the statutory definition of disability. We consider the date the claimant issue in appropriate cases when we The Appeals Council may review the make a decision after the court’s stopped performing substantial gainful ALJ’s finding regarding when the remand. activity (SGA) when we establish the claimant first met the statutory [FR Doc. 2018–21368 Filed 10–1–18; 8:45 am] EOD. SGA is work that involves doing definition of disability, or any other significant and productive physical or BILLING CODE 4191–02–P finding of the ALJ, by granting a mental duties and is done (or intended) claimant’s request for review or on its for pay or profit.25 If medical and other own motion authority.22 The Appeals SOCIAL SECURITY ADMINISTRATION evidence indicates the claimant’s Council may also exercise its removal disability began on the last day he or [Docket No. SSA–2016–0034] authority and assume responsibility of she performed SGA, we can establish an the request for hearing. The Appeals EOD on that date, even if the claimant Social Security Ruling, SSR 18–3p; Council will review a case if there is an worked a full day. Generally, we may Titles II and XVI: Failure To Follow error of law; the actions, findings, or not determine a claimant’s EOD to be Prescribed Treatment conclusions of the ALJ are not before the last day that he or she supported by substantial evidence; there AGENCY: Social Security Administration. performed SGA. appears to be an abuse of discretion by ACTION: Notice of Social Security Ruling We may, however, determine a the ALJ; or there is a broad policy or (SSR). claimant’s EOD to be before or during a procedural issue that may affect the period that we determine to be an SUMMARY: We are providing notice of general public interest.23 The Appeals unsuccessful work attempt (UWA). A SSR 18–3p. This Ruling provides Council will also review a case if it UWA is an effort to do work that guidance about how we apply our receives additional evidence that meets discontinues or reduces to the non-SGA failure to follow prescribed treatment certain requirements.24 If the Appeals level after a short time (no more than six policy in disability and blindness Council grants review, it will issue its months) because of the impairment or claims under Titles II and XVI of the own decision or return the case to the the removal of special conditions Social Security Act (Act). ALJ for further proceedings, which may related to the impairment that are include obtaining evidence regarding DATES: We will apply this notice on essential for the further performance of when the claimant first met the October 29, 2018. work.26 statutory definition of disability. If the FOR FURTHER INFORMATION CONTACT: Dan Appeals Council issues a decision, it B. May we determine the EOD to be in O’Brien, Office of Vocational, will consider the totality of the evidence a previously adjudicated period? Evaluation, and Process Policy in the (subject to the limitations on Appeals Yes, if our rules for reopening are Office of Disability Policy, Social Council consideration of additional met 27 and the claimant meets the Security Administration, 6401 Security evidence in 20 CFR 404.970 and statutory definition of disability and the Boulevard, Baltimore, MD 21235–6401, 416.1470) and establish the date that the applicable non-medical requirements 410–597–1632. For information on claimant first met the statutory during the previously adjudicated eligibility or filing for benefits, call our definition of disability, which is both period.28 Reopening, however, is at the national toll-free number at 1–800–772– supported by the evidence and discretion of the adjudicator.29 1213, or visit our internet site, Social consistent with the nature of the Security online, at http:// impairment(s). III. When is this SSR applicable? www.socialsecurity.gov. 3. How do we determine when a This SSR is applicable on October 2, SUPPLEMENTARY INFORMATION: Although claimant with more than one type of 2018. We will use this SSR beginning on 5 U.S.C. 552(a)(1) and (a)(2) do not impairment first met the statutory its applicable date. We will apply this require us to publish this SSR, we are definition of disability? SSR to new applications filed on or after publishing it in accordance with 20 CFR the applicable date of the SSR and to 402.35(b)(1). If a claimant has a traumatic claims that are pending on and after the impairment and a non-traumatic or We use SSRs to make available to the applicable date. This means that we will public precedential decisions relating to exacerbating and remitting impairment, use this SSR on and after its applicable we will consider all of the impairments the Federal old age, survivors, date, in any case in which we make a disability, supplemental security in combination when determining when determination or decision. We expect the claimant first met the statutory income, and special veterans benefits definition of disability. We will programs. We may base SSRs on 25 20 CFR 404.1510, 416.910. consider the date of the traumatic event 26 20 determinations or decisions made in our CFR 404.1574(a)(1), (c) and 416.974(a)(1), as well as the evidence pertaining to the (c). administrative review process, Federal court decisions, decisions of our amozie on DSK3GDR082PROD with NOTICES1 non-traumatic or exacerbating and 27 20 CFR 404.988, 404.989, 416.1488, 416.1489. remitting impairment and will 28 See also Program Operations Manual System Commissioner, opinions from our Office determine the date on which the (POMS) DI 25501.250.A.5 (explaining when a of the General Counsel, or other period of disability may begin during a previously interpretations of law and regulations. adjudicated period). Although SSRs do not have the same 22 20 CFR 404.969, 416.1469. 29 20 CFR 404.988, 416.1488 (stating that ‘‘[a] 23 20 CFR 404.970, 416.1470. determination, revised determination, decision, or force and effect as law, they are binding 24 20 CFR 404.970(a)(5), (b) and 416.1470(a)(5), revised decision may be reopened . . .’’) (emphasis on all components of the Social Security (b). added). Administration in accordance with 20 VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1

Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices 49617 CFR 402.35(b)(1), and are binding as prescribed treatment, if followed, follow prescribed treatment as required precedents in adjudicating cases. would be expected to restore the by the Act and our regulations.3 This SSR will remain in effect until individual’s ability to engage in we publish a notice in the Federal B. When We Decide Whether the substantial gainful activity (SGA) Register that rescinds it, or until we Failure To Follow Prescribed Assessment 2: We assess whether the publish a new SSR in the Federal Treatment Policy May Apply in an individual has good cause for not Register that rescinds and replaces or Initial Claim following the prescribed treatment modifies it. D. Development procedures We will determine whether an (Catalog of Federal Domestic Assistance, E. Required written statement of failure individual has failed to follow Programs Nos. 96.001, Social Security— to follow prescribed treatment prescribed treatment only if all three of Disability Insurance; 96.002, Social determination the following conditions exist: Security— Retirement Insurance; 96.004, F. When we make a failure to follow Social Security—Survivors Insurance; 1. The individual would otherwise be prescribed treatment determination 96.006—Supplemental Security Income.) entitled to benefits based on disability within the sequential evaluation or eligible for blindness benefits under Nancy A. Berryhill, process titles II or XVI of the Act; Acting Commissioner of Social Security. Adult claims that meet or equal a listing at step 3 2. We have evidence that an Policy Interpretation Ruling Title XVI child claims that meet, individual’s own medical source(s) medically equal, or functionally prescribed treatment for the medically Titles II and XVI: Failure To Follow equal the listings at step 3 determinable impairment(s) upon which Prescribed Treatment Adult claims finding disability at step the disability finding is based; and This Social Security Ruling (SSR) 5 3. We have evidence that the rescinds and replaces SSR 82–59: G. Reopening a determination or individual did not follow the prescribed ‘‘Titles II and XVI: Failure to Follow decision treatment. If all three conditions exist, Prescribed Treatment.’’ H. Continuing Disability Reviews (CDR) we will determine whether the Purpose: To provide guidance on how I. Duration in disability and Title II individual failed to follow prescribed we apply our failure to follow blindness claims treatment, as explained below.4 prescribed treatment policy in disability J. Duration in Title XVI blindness claims and blindness claims under titles II and K. Claims involving both drug addiction Condition 1: The Individual Is XVI of the Social Security Act (Act). and alcoholism (DAA) and failure Otherwise Entitled to Disability or Citations (Authority): Sections 216(i), to follow prescribed treatment Statutory Blindness Benefits Under 223(d) and (f), and 1614(a) of the Act, Titles II or XVI of the Act as amended; 20 CFR 404.1530 and A. Background 416.930. We only perform the failure to follow Under the Act, an individual who prescribed treatment analysis discussed Dates: We will apply this notice on meets the requirements to receive October 29, 2018.1 in this SSR after we find that an disability or blindness benefits will not individual is entitled to disability or Overview be entitled to these benefits if the eligible for statutory blindness benefits individual fails, without good cause, to under titles II or XVI of the Act, A. Background B. When we decide whether the failure follow prescribed treatment that we regardless of whether the individual to follow prescribed treatment expect would restore his or her ability followed the prescribed treatment. We policy may apply in an initial claim to engage in substantial gainful activity will not determine whether an Condition 1: The individual is (SGA).2 individual failed to follow prescribed otherwise entitled to disability or We apply the failure to follow treatment if we find the individual is statutory blindness benefits under prescribed treatment policy at all levels not disabled, not blind, or otherwise not titles II or XVI of the Act of our administrative review process entitled to or eligible for benefits under Condition 2: There is evidence that an when we decide an initial claim for titles II or XVI of the Act. individual’s own medical source(s) benefits based on disability or prescribed treatment for the blindness. We also apply the policy Condition 2: There Is Evidence That an medically determinable when we reopen a prior determination Individual’s Own Medical Source(s) impairment(s) upon which the or decision involving a claim for Prescribed Treatment for the Medically disability finding is based benefits based on disability or Determinable Impairment(s) Upon Condition 3: There is evidence that blindness, when we conduct an age-18 Which the Disability Finding Is Based the individual did not follow the redetermination, and when we conduct If we find that the individual is prescribed treatment a continuing disability review (CDR) otherwise entitled to disability or C. How we will make a failure to follow under titles II or XVI of the Act. eligible for statutory blindness benefits prescribed treatment determination This SSR explains the policy and under titles II or XVI of the Act, we will Assessment 1: We assess whether the procedures we follow when we decide only determine if the individual has whether an individual has failed to 1 Our adjudicators will apply this ruling when we failed to follow prescribed treatment for make determinations and decisions on or after 2 Sections 223(f) and 1614(a) of the Act. The the medically determinable October 29, 2018. When a Federal court reviews our ability to engage in SGA is the standard in adult impairment(s) upon which the disability final decision in a claim, we expect the court will disability claims. However, when this policy is finding is based if the individual’s own amozie on DSK3GDR082PROD with NOTICES1 review the final decision using the rules that were applied in title XVI child disability claims, the medical source(s) prescribed the in effect at the time we issued the decision under standard is ‘‘the prescribed treatment is expected to review. If a court finds reversible error and remands eliminate or improve the child’s impairment so that 3 See 20 CFR 404.1530 and 416.930. a case for further administrative proceedings on or it no longer results in marked and severe functional after October 29, 2018, the applicable date of this limitations.’’ Similarly, for claims based on 4 There are two exceptions at step 3 of the ruling, we will apply this ruling to the entire period statutory blindness, the standard is the prescribed sequential evaluation process, explained in section at issue in the decision we make after the court’s treatment would be expected to ‘‘restore vision to F (below), when we will not make a failure to remand. Our regulations on failure to follow the extent that the individual will no longer be follow prescribed treatment determination even if prescribed treatment are unchanged. blind.’’ these three conditions are met. 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49618 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices treatment.5 We will not determine C. How We Will Make a Failure To Assessment 2: We Assess Whether the whether the individual failed to follow Follow Prescribed Treatment Individual Has Good Cause for Not prescribed treatment if the treatment Determination Following the Prescribed Treatment was prescribed only by a consultative This assessment focuses on whether examiner (CE), medical consultant (MC), If all three conditions exist, we will determine whether the individual has the individual has good cause for not psychological consultant (PC), medical following the prescribed treatment. expert (ME), or by a medical source failed to follow prescribed treatment in In adult claims, the individual has the during an evaluation conducted solely the claim. To make a failure to follow burden to provide evidence showing to determine eligibility to any State or prescribed treatment determination, we that he or she has good cause for failing Federal benefit. will: to follow prescribed treatment. Prescribed treatment means any 1. Assess whether the prescribed In child claims, the parent or guardian medication, surgery, therapy, use of treatment, if followed, would be has the burden to provide evidence durable medical equipment, or use of expected to restore the individual’s showing that the child has good cause assistive devices. Prescribed treatment ability to engage in SGA. for failing to follow prescribed does not include lifestyle modifications, 2. Assess whether the individual has treatment. If the child has a such as dieting, exercise, or smoking good cause for not following the representative payee and the parent, cessation. We will consider any prescribed treatment. guardian, or child asserts that the child evidence of prescribed treatment, would have followed prescribed whether it appears on prescription We may make either assessment first. treatment but for the actions of the forms or is otherwise indicated within If we first assess that the prescribed representative payee, we will determine a medical source’s records. treatment, if followed, would not be We will consider treatment a medical whether to obtain a new representative expected to restore the individual’s payee. If we decide to obtain a new source prescribed in the past if that ability to engage in SGA, then it is treatment is still relevant to the representative payee, we will provide unnecessary for us to assess whether the additional time for the child to follow individual’s medically determinable individual had good cause. Similarly, if impairments that are present during the the prescribed treatment before we we first assess that an individual has continue considering the claim. potential period of entitlement or good cause for not following the To assess good cause in both adult eligibility and upon which the disability prescribed treatment, then it is and child claims, we will develop the finding was based. We will evaluate unnecessary for us to assess whether the claim according to the instructions in whether the individual failed to follow prescribed treatment, if followed, would the Development procedures section the prescribed treatment, and whether be expected to restore the individual’s below. The following are examples of there is good cause for this failure, only ability to engage in SGA. acceptable good cause reasons for not for the period(s) during which the following prescribed treatment: individual may be entitled to benefits Assessment 1: We Assess Whether the 1. Religion: The established teaching under the Act. Prescribed Treatment, if Followed, For example: On January 2, 2017, an and tenets of the individual’s religion Would Be Expected To Restore the individual filed for disability benefits prohibit him or her from following the Individual’s Ability To Engage in SGA prescribed treatment. The individual based on an impairment related to a lower-extremity amputation. The This assessment focuses on the must identify the religion, provide individual is no longer wearing a prescribed treatment. We will determine evidence of the individual’s prosthesis that her medical source whether we would expect the membership in or affiliation to his or prescribed in 2015. We determine that prescribed treatment, if followed, to her religion, and provide evidence that the individual meets all of the other restore the individual’s ability to engage the religion’s teachings do not permit criteria for disability. In this scenario, in SGA. We are responsible for making the individual to follow the prescribed we will evaluate whether the individual this assessment, and we will consider treatment. is failing to follow the prescribed all the relevant evidence in the record. 2. Cost: The individual is unable to treatment to wear the prosthesis during At the initial and reconsideration levels afford prescribed treatment, which he or the potential entitlement period and she is willing to follow, but for which of the administrative review process, an whether the individual has good cause affordable or free community resources MC or PC will make this assessment. At for not following the prescribed are unavailable. Some individuals can the hearings and Appeals Council (AC) treatment during this period. However, obtain free or subsidized health levels, the adjudicator(s) will make this we will not consider whether the insurance plans or healthcare from a assessment. Although the conclusion of individual failed to follow prescribed clinic or other provider. In these this assessment ultimately rests with us, treatment prior to the first possible date instances, the individual must we will consider the prescribing of entitlement. demonstrate why he or she does not medical source’s prognosis. have health insurance that pays for the Condition 3: There Is Evidence That the If we first determine that following prescribed treatment or why he or she Individual Did Not Follow the the prescribed treatment would not be failed to obtain treatment at the free or Prescribed Treatment expected to restore the individual’s subsidized healthcare provider. If we have any evidence that the ability to engage in SGA, then it is 3. Incapacity: The individual is individual is not following the unnecessary for us to assess whether the unable to understand the consequences prescribed treatment, this condition is individual had good cause for failing to of failing to follow prescribed treatment. amozie on DSK3GDR082PROD with NOTICES1 satisfied. For example, a medical source follow the prescribed treatment. If we 4. Medical disagreement: When the may include in a treatment note that the determine that following the prescribed individual’s own medical sources patient has not been compliant with a treatment would restore the individual’s disagree about whether the individual prescribed medication regimen. ability to engage in SGA, we will then should follow a prescribed treatment, assess whether the individual has good the individual has good cause to not 5 See 20 CFR 404.1502 and 416.902 for the cause for not following the prescribed follow the prescribed treatment. definition of ‘‘medical source.’’ treatment. 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Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices 49619 to follow one kind of treatment appropriate. This development could we will not make a failure to follow prescribed by one medical source to the include contacting the individual’s prescribed treatment determination simultaneous exclusion of an alternate medical source(s) or the individual to when we find the individual disabled treatment prescribed by another medical ask why he or she did not follow the based on a listing that requires only the source, the individual has good cause prescribed treatment. Although it may presence of laboratory findings. In these not to follow the alternate treatment. be helpful to have evidence from a CE claims, treatment would have no effect 5. Intense fear of surgery: The or ME, we are not required to purchase on the disability determination or individual’s fear of surgery is so intense a CE or obtain testimony from an ME to decision. Second, we will not make a that it is a contraindication to having help us determine whether we expect a failure to follow prescribed treatment the surgery. We require a written prescribed treatment, if followed, would determination when we find the statement from an individual’s own restore the ability to engage in SGA. We individual is disabled based on a listed medical source affirming that the are responsible for resolving any impairment(s) which requires us to individual’s intense fear of surgery is in conflicts in the evidence, including consider whether the individual was fact a contraindication to having the inconsistencies between statements following that specific treatment as part surgery. We will not consider an made by the individual and information of the required listing analysis. If either individual’s refusal of surgery as good received from his or her medical of these exceptions apply, we will find cause for failing to follow prescribed source(s). We may also evaluate the the individual is disabled without treatment if it is based on the claim using the procedures for fraud or making a failure to follow prescribed individual’s assertion that success is not similar fault, if appropriate. treatment determination. guaranteed or that the individual knows Title XVI Child Claims That Meet, of someone else for whom the treatment E. Required Written Statement of Failure To Follow Prescribed Medically Equal, or Functionally Equal was not successful. the Listings at Step 3 6. Prior history: The individual Treatment Determination previously had major surgery for the When we make a failure to follow Generally, if we find that a child’s same impairment with unsuccessful prescribed treatment determination, we impairment(s) meets, medically equals, results and the same or similar will explain the basis for our findings in or functionally equals the listings at step additional major surgery is now our determination or decision. 3 of the sequential evaluation process, prescribed. and there is evidence of all three 7. High risk of loss of life or limb: The F. When We Make a Failure To Follow conditions listed in Section B above, we treatment involves a high risk for loss of Prescribed Treatment Determination will determine whether there has been life or limb. Treatments in this category Within the Sequential Evaluation a failure to follow prescribed treatment. include: Process for Initial Claims We will determine whether the child’s Æ Surgeries with a risk of death, such Adult Claims That Meet or Equal a impairment(s) would still meet, as open-heart surgery or organ Listing at Step 3 medically equal, or functionally equal transplant. the listings had he or she followed the Æ Cataract surgery in one eye with a Generally, if we find that an prescribed treatment. If we determine documented, unusually high-risk of individual’s impairment(s) meets or the child’s impairment(s) would no serious surgical complications when the medically equals a listing at step 3 of longer meet, medically equal, or individual also has a severe visual the sequential evaluation process, and functionally equal the listings had he or impairment of the other eye that cannot there is evidence of all three conditions she followed prescribed treatment, we be improved through treatment. listed in Section B above, we will will assess whether there is good cause Æ Amputation of an extremity or a determine whether the individual failed for not following the prescribed major part of an extremity. to follow prescribed treatment. We will treatment. We will find the child is 8. Risk of addiction to opioid determine whether an individual would disabled if we determine that he or she medication: The prescribed treatment is still meet or medically equal a listing has good cause for not following the for opioid medication. had he or she followed the prescribed prescribed treatment. If we determine 9. Other: If the individual offers treatment. If we determine the that there is not good cause for failing another reason for failing to follow individual would no longer meet or to following the prescribed treatment, prescribed treatment, we will determine medically equal the listing had he or she we will find the child is not disabled. whether it is reasonably justified on a followed prescribed treatment, we will There are two instances when we will case-by-case basis. assess whether there is good cause for not make a failure to follow prescribed We will not consider as good cause an not following the prescribed treatment. treatment determination at step 3 of individual’s allegation that he or she We will determine that the individual is sequential evaluation process even if was unaware that his or her own disabled if we find that he or she has there is evidence that a child did not medical source prescribed the good cause for not following the follow prescribed treatment. First, we treatment, unless the individual shows prescribed treatment. If we do not find will not make a failure to follow incapacity as described above. good cause, we will continue to evaluate prescribed treatment determination Similarly, mere assertions or allegations the claim using the sequential when we find the child is disabled about the effectiveness of the treatment evaluation process by determining the based on a listing that requires only the are insufficient to meet the individual’s individual’s residual functional capacity presence of laboratory findings. In these burden to show good cause for not (RFC).6 claims, treatment would have no impact following the prescribed treatment. There are two instances when we will on the disability determination or amozie on DSK3GDR082PROD with NOTICES1 not make a failure to follow prescribed decision. Second, we will not make a D. Development Procedures treatment determination at step 3 of the failure to follow prescribed treatment If evidence we already have in a claim sequential evaluation process, even if determination when we find the child is is insufficient to make the required there is evidence that an individual did disabled based on a listed impairment(s) assessment(s) in the failure to follow not follow prescribed treatment. First, which requires us to consider whether prescribed treatment determination, we the child was following that specific may develop the evidence, as 6 See 20 CFR 404.1545 and 416.945. treatment as part of the required listing VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1

49620 Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices analysis. If either of these exceptions treatment determination when the after he or she applies for benefits.9 If apply, we will find the child is disabled individual’s own medical source(s) we determine an individual failed to without making a failure to follow prescribed a new treatment for the follow prescribed treatment without prescribed treatment determination. disabling impairment(s) since the last good cause any time before the first day favorable determination or decision and of the month after filing, we will find Adult Claims Finding Disability at the individual did not follow the the individual is not disabled. However, Step 5 prescribed treatment. if we determine the individual failed to If we find that an individual is We will also make a failure to follow follow prescribed treatment without disabled at step 5 of the sequential prescribed treatment determination good cause any time after the first day evaluation process and there is evidence during a CDR if we find that an of the month after filing, we will find the individual is not following individual would continue to be the individual is disabled with a closed treatment prescribed by his or her own entitled to disability or blindness period from the date of entitlement until medical source(s), before we find the benefits based upon an impairment first the date we determined the individual individual is disabled, we will assess alleged during the CDR and there is failed to follow the prescribed treatment whether the individual would still be evidence that the individual has not without good cause. In this situation, we disabled if he or she were following the followed his or her own medical will continue to pay benefits as usual prescribed treatment. source’s prescribed treatment for that through the second month after the We will determine what the impairment. month blindness ends. individual’s residual functional capacity If we determine an individual does If we need further development to (RFC) would be had he or she followed not have good cause for failing to follow determine whether a title XVI blind the prescribed treatment. We will then the prescribed treatment that we have individual failed to follow prescribed use that RFC to reevaluate steps 4 and determined would restore the treatment without good cause, the 5 of the sequential evaluation process to individual’s ability engage in SGA, we individual is entitled to benefits while determine whether the individual could will issue a predetermination notice we conduct the additional development. perform his or her past relevant work at and, because benefits may be At the hearing and Appeals Council step 4 or adjust to other work at step 5. terminated, offer the individual an levels, we will refer the claim to the We will find the individual is disabled opportunity to respond before effectuating component to develop the if we determine that the individual terminating benefits. Individuals are evidence necessary to make a failure to would remain unable to engage in SGA, entitled to benefits while we develop follow prescribed treatment even if the individual had followed the evidence to determine whether they determination. prescribed treatment. We will also find failed to follow prescribed treatment. If the individual is disabled if we find the we determine that an individual failed K. Claims Involving Both Drug individual had good cause for not to follow prescribed treatment without Addiction and Alcoholism (DAA) and following the prescribed treatment. good cause in either situation, we will Failure To Follow Prescribed However, we will find the individual is cease benefits two months after the Treatment not disabled if the individual does not month of the determination or decision In a claim that may involve both DAA have good cause for not following the that the individual is no longer disabled and failure to follow a prescribed prescribed treatment and we determine or statutorily blind. treatment for an impairment other than that, had the individual followed the I. Duration in Disability and Title II DAA, we will first make the DAA prescribed treatment, he or she could Blindness Claims determination.10 If we find that the perform past relevant work or engage in individual is disabled considering all other SGA. If an individual failed to follow the impairments including the DAA and prescribed treatment without good that DAA is material to our G. Reopening a Determination or cause within 12 months of onset of determination of disability, we will Decision disability or blindness, we will find the deny the claim and not make a failure As permitted by our regulations, we individual is not disabled because the to follow prescribed treatment may reopen a favorable determination or duration requirement is not met.8 determination. If we find that the decision if we discover we did not However, if an individual failed to individual is disabled considering all apply the failure to follow prescribed follow prescribed treatment without impairments including the DAA, but the treatment policy correctly.7 We may good cause more than 12 months after DAA is not material to our base our reopening on the evidence we onset of disability or blindness and is determination of disability, we will then had in the folder at the time we made otherwise disabled, we will find the make the failure to follow prescribed our determination or decision or based individual is disabled with a closed treatment determination for the on new evidence we receive. When we period that ends when the individual impairment(s) other than DAA. Even if reopen a disability or blindness failed to follow the prescribed the prescribed treatment for the other determination or decision and find that treatment. In this situation, we will impairment(s) may also have beneficial an individual does not have good cause continue to pay benefits as usual effect on the DAA, we do not reevaluate for failing to follow prescribed through the second month after the for DAA materiality a second time. treatment, we will issue a month disability or blindness ends. For example, we cannot find that an predetermination notice and offer the J. Duration in Title XVI Blindness individual has failed to follow individual an opportunity to respond Claims prescribed treatment for liver disease amozie on DSK3GDR082PROD with NOTICES1 before we terminate benefits. based on a failure to follow treatment Because title XVI blindness H. Continuing Disability Reviews (CDR) prescribed for alcohol dependence. If entitlement does not have a duration the cessation of drinking alcohol would When we conduct a CDR, we will requirement, an individual meeting the make a failure to follow prescribed title XVI blindness requirements may be 9 Section216(i)(1)(B) of the Act. entitled to benefits beginning the month 10 SeeSSR 13–2p: Titles II and XVI: Evaluating 7 See 20 CFR 404.988, 404.989, 416.1488, and Cases Involving Drug Addiction and Alcoholism 416.1489. 8 See 20 CFR 404.1509 and 416.909. (DAA), 78 FR 11939 (Mar. 22, 2013). VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1

Federal Register / Vol. 83, No. 191 / Tuesday, October 2, 2018 / Notices 49621 be expected to improve the individual’s Although SSRs do not have the force by his or her application, we then functioning so that he or she is not and effect of law, they are binding on all determine the claimant’s EOD. The EOD disabled, we would find that DAA is components of the Social Security is the earliest date that the claimant material to the determination of Administration in accordance with 20 meets both the relevant definitions and disability and deny the claim for that CFR 402.35(b)(1). non-medical requirements during the reason. This SSR will remain in effect until period covered by his or her [FR Doc. 2018–21359 Filed 10–1–18; 8:45 am] we publish a notice in the Federal application. Register that rescinds it, or until we BILLING CODE 4191–02–P publish a new SSR in the Federal Outline Register that rescinds and replaces or I. What is the EOD? SOCIAL SECURITY ADMINISTRATION modifies it. A. What is the statutory definition of (Catalog of Federal Domestic Assistance, blindness? Program Nos. 96.001, Social Security— B. What are the statutory definitions [Docket No. SSA–2018–0011] Disability Insurance; 96.002, Social of disability for blind claimants and Social Security Ruling, SSR 18–02p; Security—Retirement Insurance; 96.004, when do they apply? Titles II and XVI: Determining the Social Security—Survivors Insurance; 1. What is the statutory definition of Established Onset Date (EOD) in 96.006, Supplemental Security Income) disability for a title II blind Blindness Claims claimant who is younger than 55? Nancy A. Berryhill, 2. What is the statutory definition of AGENCY: Social Security Administration. Acting Commissioner of Social Security. disability for a title II blind ACTION: Notice of Social Security Ruling Policy Interpretation Ruling claimant who is age 55 or older? (SSR). C. What are the non-medical Titles II and XVI: Determining the requirements? SUMMARY: We are providing notice of Established Onset Date (EOD) in II. What are some special considerations SSR 18–02p, which rescinds and Blindness Claims related to the EOD? replaces the following sections of SSR We are providing notice of SSR 18– A. What if a claimant meets all the 83–20, ‘‘Titles II and XVI: Onset of 02p which rescinds and replaces the requirements for DI benefits or SSI Disability,’’—(1) ‘‘Title II: Blindness following sections of SSR 83–20: ‘‘Titles payments based on blindness and Cases,’’ and (2) ‘‘Title XVI—Specific II and XVI: Onset of Disability,’’—(1) based on another impairment? Onset is Necessary,’’ as it applies to ‘‘Title II: Blindness Cases,’’ and (2) B. What happens when a claimant blindness claims. Specifically, this SSR ‘‘Title XVI—Specific Onset is applies for DI benefits under title II addresses how we determine the EOD in Necessary,’’ as it applies to blindness and meets the statutory definition blindness claims under titles II and XVI claims. Concurrently, we published a of blindness, but continues to work? of the Social Security Act (Act). We separate SSR, SSR 18–01p, ‘‘Titles II III. When is this SSR applicable? concurrently published a separate SSR, and XVI: Determining the Established Discussion SSR 18–01p, ‘‘Titles II and XVI: Onset Date (EOD) in Disability Claims,’’ Determining the Established Onset Date which rescinded and replaced all other I. What is the EOD? (EOD) in Disability Claims,’’ which parts of SSR 83–20. Therefore, as of For title II blindness claims, the EOD rescinded and replaced all other parts of October 2, 2018, the date this SSR was is the earliest date that the claimant SSR 83–20. Therefore, SSR 83–20 is published in the Federal Register, SSR meets the statutory definitions of completely rescinded and replaced by 83–20 is completely rescinded and blindness and disability 1 and the SSR 18–01p and SSR 18–02p. replaced by SSR 18–01p and SSR 18– applicable non-medical requirements 2 DATES: We will apply this notice on 02p. for entitlement to benefits during the October 2, 2018. Purpose: This SSR explains how we period covered by his or her determine the EOD in blindness claims application. For title XVI blindness FOR FURTHER INFORMATION CONTACT: Dan under titles II and XVI of the Social claims, the EOD is the earliest date that O’Brien, (410) 597–1632, Dan.OBrien@ Security Act (Act). ssa.gov. For information on eligibility or the claimant meets the statutory Citations: Sections 216, 220, 223, definition of blindness 3 and the filing for benefits, call our national toll- 1602, 1611, and 1614 of the Act, as free number at 1–800–772–1213, or visit amended; Public Law 108–203, 118 1 42 U.S.C. 416(i)(1)(B) (defining blindness), our internet site, Social Security online, STAT. 535; 20 CFR 404.110, 404.130, 423(d)(1)(A) (defining disability for blind at http://www.socialsecurity.gov. 404.303, 404.315–.316, 404.320–.321, individuals younger than age 55), 423(d)(1)(B) SUPPLEMENTARY INFORMATION: Although (defining disability for statutorily blind individuals 404.335–.336, 404.350–.351, 404.1505, age 55 and older); 20 CFR 404.1581 (defining 5 U.S.C. 552(a)(1) and (a)(2) do not 404.1510, 404.1512, 404.1572, blindness), 404.1582 (explaining how we determine require us to publish this SSR, we are 404.1581–.1584, 416.202, 416.305, a period of disability based on blindness), 404.1583 publishing it in accordance with 20 CFR 416.912, 416.981–.984. (explaining how we determine disability for blind 402.35(b)(1). Policy Interpretation: persons who are age 55 or older). 2 See, e.g., 20 CFR 404.315, 404.316, 404.320, We use SSRs to make available to the To be entitled to disability insurance 404.321 (setting forth some of the non-medical public precedential decisions relating to (DI) benefits under title II of the Act or requirements for title II DI benefits), 20 CFR the Federal old age, survivors, eligible for Supplemental Security 404.335, 404.336 (same for title II disabled disability, supplemental security Income (SSI) payments under title XVI widow(er)’s benefits (DWB)), 20 CFR 404.350, income, and special veterans benefits of the Act based on blindness, a 404.351 (same for title II childhood disability amozie on DSK3GDR082PROD with NOTICES1 benefits (CDB)). programs. We may base SSRs on claimant must file an application, meet 3 42 U.S.C. 1381a (‘‘Every aged, blind, or disabled determinations or decisions made in our the relevant statutory definition(s), and individual who is determined . . . to be eligible on administrative review process, Federal satisfy the applicable non-medical the basis of his income and resources shall, in court decisions, decisions of our requirements. If we find that a claimant accordance with and subject to the provisions of this title, be paid benefits by the Commissioner of Commissioner, opinions from our Office meets the relevant statutory definitions Social Security’’) (emphasis added), 1382(a) of the General Counsel, or other and meets the applicable non-medical (defining an eligible individual), 1382c(a)(2) interpretations of law and regulations. requirements during the period covered Continued VerDate Sep<11>2014 17:16 Oct 01, 2018 Jkt 247001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\02OCN1.SGM 02OCN1


Document Created: 2018-10-02 01:19:20
Document Modified: 2018-10-02 01:19:20
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice of Social Security Ruling (SSR).
DatesWe will apply this notice on October 29, 2018.
ContactDan O'Brien, Office of Vocational, Evaluation, and Process Policy in the Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 410-597-1632. For information on eligibility or filing for benefits, call our national toll-free number at 1-800-772-1213, or visit our internet site, Social Security online, at http:// www.socialsecurity.gov.
FR Citation83 FR 49616 
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