Rule2024-21777
Evidence of Disability
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 25, 2024
Effective
November 25, 2024
Issuing agencies
Railroad Retirement Board
Abstract
The Railroad Retirement Board (RRB) amends its regulations regarding the submission of evidence in disability claims to require you to inform us or submit all evidence known to you that "relates to" your disability claim, with exceptions for privileged communications and duplicates. This requirement includes the duty to submit all evidence obtained from any source in its entirety, subject to one of these exceptions. These clarifications to our regulations describe in more detail the requirement for you to submit all evidence that relates to your disability claim, enables us to have a more complete case record which will allow us to make more accurate determinations of your disability status, and aligns our disability evidence requirements with regulations of the Social Security Administration (SSA).
Full Text
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<title>Federal Register, Volume 89 Issue 186 (Wednesday, September 25, 2024)</title>
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[Federal Register Volume 89, Number 186 (Wednesday, September 25, 2024)]
[Rules and Regulations]
[Pages 78235-78239]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-21777]
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RAILROAD RETIREMENT BOARD
20 CFR Part 220
RIN 3220-AB68
Evidence of Disability
AGENCY: Railroad Retirement Board.
ACTION: Final rule.
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SUMMARY: The Railroad Retirement Board (RRB) amends its regulations
regarding the submission of evidence in disability claims to require
you to inform us or submit all evidence known to you that ``relates
to'' your disability claim, with exceptions for privileged
communications and duplicates. This requirement includes the duty to
submit all evidence obtained from any source in its entirety, subject
to one of these exceptions. These clarifications to our regulations
describe in more detail the requirement for you to submit all evidence
that relates to your disability claim, enables us to have a more
complete case record which will allow us to make more accurate
determinations of your disability status, and aligns our disability
evidence requirements with regulations of the Social Security
Administration (SSA).
DATES: This rule is effective November 25, 2024.
FOR FURTHER INFORMATION CONTACT: Peter J. Orlowicz, Senior Counsel,
(312) 751-4922, TTD (312) 751-4701, <a href="/cdn-cgi/l/email-protection#c292a7b6a7b0ec8db0aeadb5aba1b882b0b0a0eca5adb4"><span class="__cf_email__" data-cfemail="85d5e0f1e0f7abcaf7e9eaf2ece6ffc5f7f7e7abe2eaf3">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background Information
The RRB published a Notice of Proposed Rulemaking (NPRM) in the
Federal Register on November 9, 2016 (81 FR 78757). The preamble to the
NPRM discussed the changes from our current rules and our reasons for
proposing those changes. In the NPRM, we proposed to clarify our
regulations to require you to inform us about or submit all evidence
known to you that relates to your disability claim, subject to two
exceptions for certain privileged communications. We explained that
this requirement would include the duty to submit all evidence from any
source in its entirety, unless subject to one of these exceptions. We
also proposed to require your representative to help you obtain the
information or evidence that
[[Page 78236]]
we would require you to submit under our regulations.
We provided 60 days for the public to comment on the NPRM. We
received four comments: two comments were submitted anonymously, and
two comments were from individual members of the public. All four
comments focused on the requirement to submit all evidence that relates
to an individual's disability claim. None of the four comments
discussed the exceptions for material protected by attorney-client
privilege or attorney work product doctrine. We provide summaries of
the significant comments that were relevant to this rulemaking and our
responses to those comments in Part II below. One comment was entirely
supportive of the proposed changes. We appreciate that comment but have
not summarized or responded to it below because it does not require a
response.
In the process of reviewing the public comments to the NPRM, we
independently determined that one change in the proposed rule would
unintentionally increase the burden on us and on individuals claiming
benefits to require development of a complete medical history covering
at least the full 12 months prior to the application filing date, even
when a fully favorable adjudication of the application is supported by
medical evidence without development of the full 12 months of medical
history. As explained in Part III below, we are modifying the final
rule to keep existing language and eliminate this unintended effect.
After carefully considering the public comments, we are otherwise
adopting the proposed rule revisions without change.
II. Public Comments
Comment: One commenter advocated for a standardized form or
template for medical sources to use when submitting medical evidence,
to allow medical sources to simply fill out the form rather than write
an opinion letter. The commenter also suggested that evidence should
only consist of formal, official medical documents, not oral or
unofficial written material. Finally, the commenter suggested the rule
contain more explanation of the type of benefits a disabled employee
can receive in the workplace.
Response: We did not adopt these suggestions. We disagree that a
standardized form is needed for submitting medical evidence. The
obligation to submit evidence described by this rule extends beyond
opinion letters or medical source's assessments of an individual's
capacity to work. Instead, medical evidence as described in our
regulations at 20 CFR 220.46 encompasses office and progress notes,
prior medical history, clinical findings such as the results of
physical and mental examinations, laboratory findings, diagnosis,
prescribed treatment, and other types of evidence that would be
maintained in a medical source's file, in addition to statements about
the claimant's ability to work despite the claimant's impairment. These
records may be generated and maintained by many different medical
providers, each with their own electronic or manual medical record
system. Requiring all providers to submit these widely varying types of
evidence in a standardized common form would be much more burdensome on
providers than simply accepting copies of the medical records as they
are already maintained by the providers in a native format and
increases the risk that important evidence might be omitted in the
process of transcribing records from their native format into the
standardized common form. Additionally, medical providers have already
widely adopted the SOAP (Subjective, Objective, Assessment and Plan)
structure for documenting health care, which promotes effective
communication between medical providers by organizing the most
important information in an easily recognizable way and an easy to find
location.\1\ This commonly used technique for organizing information in
medical notes also assists our adjudicators to review medical evidence
effectively even in the absence of a specific RRB-required form. In
comparison to the burdens and risks imposed by requiring a specific
RRB-required form, the gains in efficiency and ease of reviewing
medical evidence in such a standardized common form are marginal and do
not justify imposing such a requirement.
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\1\ Podder V, Lew V, Ghassemzadeh S. SOAP Notes. [Updated 2023
Aug 28]. In: StatPearls [internet]. Treasure Island (FL): StatPearls
Publishing; 2024 Jan-. Available from: <a href="https://www.ncbi.nlm.nih.gov/books/NBK482263/">https://www.ncbi.nlm.nih.gov/books/NBK482263/</a>.
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We also disagree that evidence must be contained in a formal or
official document to be considered. The rule as proposed does not
expand or restrict the existing definition of ``evidence'' for purposes
of evaluating disability claims under the Railroad Retirement Act. Our
regulations at Sec. 220.46 explain we may use information from other
sources to understand how an impairment affects a claimant's ability to
work, including observations by nonmedical sources. For many of the
same reasons explained above for why we decline to require a
standardized form for submitting medical evidence, we decline to impose
a threshold requirement of formality on receiving and considering
medical or nonmedical evidence. Although receiving such evidence in the
form of formal written documents may be preferable in many
circumstances, we will not reject or decline to consider evidence that
is submitted merely because it is submitted in an oral or informal
written manner.
Finally, we disagree with the need to explain more expansively what
sort of benefits a disabled employee can receive in the workplace. The
requirement to submit all evidence related to an individual's
disability claim applies only to claims for disability under the
Railroad Retirement Act for work in an employee's regular railroad
occupation and disability under the Railroad Retirement Act for any
regular employment. Other benefits that an employee may or may not be
entitled to in connection with a disability are outside the scope of
this rule and may not even be administered by the RRB. Therefore, such
other benefits need not be addressed here.
Comment: One commenter criticized the existing regulations as not
requiring claimants to provide evidence of age, education, work
experience, or daily activities, and suggested requiring this evidence
would reduce fraud.
Response: We believe this comment is based on an inaccurate factual
premise, and the proposed rule need not be modified to address it. The
existing regulation already provides that we may ask claimants to
provide evidence about age, education, work experience, and daily
activities when the facts of a specific case require it. While every
claim for disability under the Railroad Retirement Act will require
medical evidence to adjudicate the claim, not every claim will require
all categories of vocational and other evidence articulated in the
regulation. For example, when finding that an individual is medically
disabled as explained in 20 CFR 220.110, we will not consider the
individual's residual functional capacity, age, education, or work
experience because those factors are not relevant to the determination.
The proposed changes to 20 CFR 220.45 preserve our right to request
necessary information about these non-medical factors when it is
necessary to adjudicate a claim. This information is usually gathered
initially as part of the application for disability, as approved by the
Office of Management and Budget under control number 3220-0002. This
collection has been approved without changes since 1990. The
[[Page 78237]]
changes proposed by the NPRM do not affect or modify that information
collection. Therefore, we do not believe any changes to the proposed
rule are required to address this concern.
Comment: One commenter criticized the proposed rule as creating an
undue burden on disabled claimants by requiring submission of evidence
that is not relevant to the determination of disability status. The
commenter also stated requiring all known evidence to be submitted is
more likely to necessitate additional investigation based on extraneous
information. The commenter advocated for leaving the existing rule in
place without changes.
Response: We disagree with the commenter. Unless the context
indicates otherwise, we generally intend for the words we use in our
regulations to be construed according to their ordinary meaning. In
this rule, we intend for the word ``relates'' to have its ordinary
meaning, which is to show or establish a logical or causal connection
between two things. Although this meaning is broad and includes
anything that has a logical or causal connection to the disability
claim (including unfavorable evidence), evidence that is entirely
irrelevant to the determination of disability would not ``relate[s]
to'' the claimed disability. It is also important to note that we
consider all of a claimant's impairments for which we have evidence or
may develop evidence, not just the ones alleged, and we consider the
combined effect of all impairments.\2\ We are also required, subject to
certain exceptions, to develop a complete medical history for at least
the 12 months preceding the date of the disability application.\3\
Therefore, evidence of treatment for conditions other than the one
alleged by the claimant could relate to the disability claim. For
example, if a claimant alleged a back impairment, the treatment records
from health care providers other than the treating orthopedic surgeon
(for example, from a family doctor who has rendered treatment for a
condition other than the one alleged) may contain related information.
Therefore, we may ask the claimant if they saw other providers during
the period at issue. In addition, if the back impairment arose out of
an injury at work, we would expect the claimant, upon our request, to
inform us whether they filed a worker's compensation claim or personal
injury lawsuit under the Federal Employers Liability Act (45 U.S.C. 51-
60). If so, we may obtain the records from that claim, because they may
contain evidence that ``relates'' to the claim for disability.
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\2\ 20 CFR 220.104.
\3\ 20 CFR 220.45(b).
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Because the commenter discussed the burden of submitting all
evidence, we also considered whether this requirement is consistent
with Executive Order 14058, Transforming Federal Customer Experience
and Service Delivery to Rebuild Trust in Government, 86 FR 71357 (Dec.
16, 2021). The order establishes an executive branch policy for
agencies to effectively reduce administrative burdens and minimize
``time taxes'' to more directly meet the needs of the people of the
United States. We do not believe that clarifying the requirement to
submit all evidence known to the claimant that relates to the claimed
disability will result in a substantially increased burden on
claimants. The rule does not require the claimant to create or obtain
new evidence, only to inform the RRB of evidence that the claimant is
aware of. The rule requires the RRB to assist the claimant in obtaining
the required evidence if necessary. If the claimant informs the RRB
about the existence of evidence, and the RRB is unable to obtain the
evidence, the claimant has fulfilled the claimant's obligation and the
RRB will not penalize the claimant or make any negative inference about
the claimant's disability because of the inability to obtain evidence.
When the claimant receives evidence from another source (for example,
if the claimant obtains a copy of medical records from a primary care
provider), the final rule requires the claimant to submit a complete
copy rather than selectively choose which portions to submit. This
should require less work on the part of the claimant or the claimant's
representative by removing the need to exercise judgment over which
portions of medical records should be submitted. Finally, the
requirement to submit all evidence will enable us to obtain more
complete case records and adjudicate claims more accurately, serving
both a program integrity function (to ensure we do not improperly pay
benefits) and the claimant's interest in receiving an accurate
determination. In some cases, receiving complete copies of medical
evidence and being informed of all evidence related to a particular
claim will avoid the need for us to obtain consultative examinations of
the claimant as explained in 20 CFR Subpart G, and this will facilitate
prompt adjudications and save the claimant the burden of time and
travel to attend such a consultative examination. These benefits
outweigh the minimal additional burden that may result from this
requirement.
III. Correction to Proposed Rule Based on Internal Review
In reviewing the submitted public comments, we independently
determined one of the proposed changes to 20 CFR 220.45(b) would
increase the burden on us and on individuals claiming benefits in a way
we did not intend and do not believe is necessary or beneficial.
Currently, our regulations require us to develop a complete medical
history covering at least the full 12 months preceding your application
for benefits before we can decide that you are not disabled, unless you
tell us your disability began less than 12 months before you filed your
application. This language allows our adjudicators to make fully
favorable allowance determinations without awaiting receipt of, or
continuing to follow up on, requests for evidence that in the judgment
of the adjudicator should not affect the allowance determination, if
the evidence we possess is complete and detailed enough to support such
a decision.\4\ This standard is consistent with Social Security
Administration regulations and policy regarding evaluation of
disability claims.\5\
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\4\ 20 CFR 220.46(c); U.S. R.R. Ret. Brd. Gen. Couns. Op. L-
2017-59 (Dec. 8, 2017).
\5\ 20 CFR 404.1512(b); Program Operations Manual System DI
24515.020.
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In the NPRM, we proposed to change the language in 20 CFR 220.45(b)
to state we will develop that complete medical history covering the
preceding 12 months before making any determination on your disability
status. If implemented, this change would eliminate our discretion to
make a fully favorable allowance decision based on less than 12 months
of medical history, even when the evidence is complete and detailed
enough to support a fully favorable decision. Favorable decisions could
be delayed as a result while we wait for additional evidence or
responses that we do not expect will change the result of the case. We
did not intend to foreclose the use of discretion in this category of
cases when we published the NPRM. As a result, we are modifying the
language in the final rule to maintain the existing standard that
permits fully favorable decisions with less than 12 months of medical
history, if the evidence in our possession is complete and detailed
enough to fully support the favorable decision. We also identified and
fixed a small number of typographical and grammatical errors
[[Page 78238]]
that do not affect the substance of the rule.
Regulatory Analysis
Executive Order 12866, as Supplemented by Executive Order 13563
The RRB, with the Office of Management and Budget, has determined
that this is not a significant regulatory action under Executive Order
12866, as supplemented by Executive Order 13563. Therefore, no
regulatory impact analysis is required.
Executive Order 13132 (Federalism)
This proposed rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the RRB believes that this proposed rule will
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
Regulatory Flexibility Act
The RRB certifies that this rule will not have a significant
economic impact on a substantial number of small entities because the
rulemaking affects individuals only. Therefore, a regulatory
flexibility analysis is not required under the Regulatory Flexibility
Act, as amended.
Paperwork Reduction Act
This rule does not create any new or affect any existing
collections and, therefore, does not require Office of Management and
Budget approval under the Paperwork Reduction Act.
List of Subjects in 20 CFR Part 220
Disability benefits, Railroad employees, Railroad retirement.
For the reasons set out in the preamble, the Railroad Retirement
Board proposes to amend 20 CFR part 220 as follows:
PART 220--DETERMINING DISABILITY
0
1. The authority citation for part 220 continues to read as follows:
Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.
0
2. Revise Sec. 220.45 to read as follows:
Sec. 220.45 Providing evidence of disability.
(a) General. You are responsible for providing all evidence of the
claimed disability and the effect of the disability on your ability to
work. You must inform the Board about or submit all evidence known to
you that relates to the claimed disability. This duty is ongoing and
requires you to disclose any additional related evidence about which
you become aware. This duty applies at each level of the administrative
review process, including the appeals level, if the evidence relates to
the period on or before the date of the hearings officer's decision.
The Board will assist you, when necessary, in obtaining the required
evidence. At its discretion, the Board will arrange for an examination
by a consultant at the expense of the Board as explained in Sec. Sec.
220.50 and 220.51.
(b) Kind of evidence. (1) You must provide medical evidence proving
that you have an impairment(s) and how severe it is during the time you
claim to be disabled. The Board will consider only impairment(s) you
claim to have or about which the Board receives evidence. Before
deciding that you are not disabled, the Board will develop a complete
medical history (i.e., evidence from the records of your medical
sources) covering at least the preceding 12 months, unless you say that
your disability began less than 12 months before you filed an
application. The Board will make every reasonable effort to help you in
getting medical reports from your own medical sources when you give the
Board permission to request them. Every reasonable effort means that
the Board will make an initial request and, after 20 days, one follow-
up request to your medical source to obtain the medical evidence
necessary to make a determination before the Board evaluates medical
evidence obtained from another source on a consultative basis. The
medical source will have 10 days from the follow-up request to reply
(unless experience indicates that a longer period is advisable in a
particular case). In order to expedite processing, the Board may order
a consultative exam from a non-treating source while awaiting receipt
of medical source evidence. If the Board asks you to do so, you must
contact the medical sources to help us get the medical reports.
(2) Exceptions. Notwithstanding paragraph (a) of this section,
evidence does not include:
(i) Oral or written communications between you and your
representative that are subject to the attorney-client privilege,
unless you voluntarily disclose the communications to us; or
(ii) Your representative's analysis of your claim, unless you or
your representative voluntarily disclose it to us. Your
representative's ``analysis of your claim'' means information that is
subject to the attorney work product doctrine, but it does not include
medical evidence, medical source opinions, or any other factual matter
that we may consider in determining whether or not you are entitled to
benefits (see paragraph (b)(2)(iv) of this section).
(iii) The provisions of paragraph (b)(2)(i) of this section apply
to communications between you and your non-attorney representative only
if the communications would be subject to the attorney-client privilege
if your non-attorney representative were an attorney. The provisions of
paragraph (b)(2)(ii) of this section apply to the analysis of your
claim by your non-attorney representative only if the analysis of your
claim would be subject to the attorney work product doctrine if your
non-attorney representative were an attorney.
(iv) The attorney-client privilege generally protects confidential
communications between an attorney and the attorney's client that are
related to providing or obtaining legal advice. The attorney work
product doctrine generally protects an attorney's analysis, theories,
mental impressions, and notes. In the context of your disability claim,
neither the attorney-client privilege nor the attorney work product
doctrine allows you to withhold factual information, medical source
opinions, or other medical evidence that we may consider in determining
whether or not you are entitled to benefits. For example, if you tell
your representative about the medical sources you have seen, your
representative cannot refuse to disclose the identity of those medical
sources to us based on the attorney-client privilege. As another
example, if your representative asks a medical source to complete an
opinion form related to your impairment(s), symptoms, or limitations,
your representative cannot withhold the completed opinion form from us
based on the attorney work product doctrine. The attorney work product
doctrine would not protect the source's opinions on the completed form,
regardless of whether or not your representative used the form in an
analysis of your claim or made handwritten notes on the face of the
report.
(c) Your responsibility. You must inform us about or submit all
evidence known to you that relates to whether or not you are blind or
disabled. When you submit evidence received from another source, you
must submit that evidence in its entirety, unless you previously
submitted the same evidence to us or we instruct you otherwise. The
Board may also ask you to provide evidence about:
[[Page 78239]]
(1) Your age;
(2) Your education and training;
(3) Your work experience;
(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 evidence showing how your impairment(s) affects your
ability to work. (In Sec. Sec. 220.125 through 220.134, we discuss in
more detail the evidence the Board needs when it considers vocational
factors.)
Dated: September 19, 2024.
By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2024-21777 Filed 9-24-24; 8:45 am]
BILLING CODE 7905-01-P
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