42 U.S.C. § 421 : US Code - Section 421: Disability determinations

Search 42 U.S.C. § 421 : US Code - Section 421: Disability determinations

(a) State agencies
(1) In the case of any individual, the determination of whether
or not he is under a disability (as defined in section 416(i) or
423(d) of this title) and of the day such disability began, and the
determination of the day on which such disability ceases, shall be
made by a State agency, notwithstanding any other provision of law,
in any State that notifies the Commissioner of Social Security in
writing that it wishes to make such disability determinations
commencing with such month as the Commissioner of Social Security
and the State agree upon, but only if (A) the Commissioner of
Social Security has not found, under subsection (b)(1) of this
section, that the State agency has substantially failed to make
disability determinations in accordance with the applicable
provisions of this section or rules issued thereunder, and (B) the
State has not notified the Commissioner of Social Security, under
subsection (b)(2) of this section, that it does not wish to make
such determinations. If the Commissioner of Social Security once
makes the finding described in clause (A) of the preceding
sentence, or the State gives the notice referred to in clause (B)
of such sentence, the Commissioner of Social Security may
thereafter determine whether (and, if so, beginning with which
month and under what conditions) the State may again make
disability determinations under this paragraph.
(2) The disability determinations described in paragraph (1) made
by a State agency shall be made in accordance with the pertinent
provisions of this subchapter and the standards and criteria
contained in regulations or other written guidelines of the
Commissioner of Social Security pertaining to matters such as
disability determinations, the class or classes of individuals with
respect to which a State may make disability determinations (if it
does not wish to do so with respect to all individuals in the
State), and the conditions under which it may choose not to make
all such determinations. In addition, the Commissioner of Social
Security shall promulgate regulations specifying, in such detail as
the Commissioner deems appropriate, performance standards and
administrative requirements and procedures to be followed in
performing the disability determination function in order to assure
effective and uniform administration of the disability insurance
program throughout the United States. The regulations may, for
example, specify matters such as -
(A) the administrative structure and the relationship between
various units of the State agency responsible for disability
determinations,
(B) the physical location of and relationship among agency
staff units, and other individuals or organizations performing
tasks for the State agency, and standards for the availability to
applicants and beneficiaries of facilities for making disability
determinations,
(C) State agency performance criteria, including the rate of
accuracy of decisions, the time periods within which
determinations must be made, the procedures for and the scope of
review by the Commissioner of Social Security, and, as the
Commissioner finds appropriate, by the State, of its performance
in individual cases and in classes of cases, and rules governing
access of appropriate Federal officials to State offices and to
State records relating to its administration of the disability
determination function,
(D) fiscal control procedures that the State agency may be
required to adopt, and
(E) the submission of reports and other data, in such form and
at such time as the Commissioner of Social Security may require,
concerning the State agency's activities relating to the
disability determination.
Nothing in this section shall be construed to authorize the
Commissioner of Social Security to take any action except pursuant
to law or to regulations promulgated pursuant to law.
(b) Determinations by Commissioner
(1) If the Commissioner of Social Security finds, after notice
and opportunity for a hearing, that a State agency is substantially
failing to make disability determinations in a manner consistent
with the Commissioner's regulations and other written guidelines,
the Commissioner of Social Security shall, not earlier than 180
days following the Commissioner's finding, and after the
Commissioner has complied with the requirements of paragraph (3),
make the disability determinations referred to in subsection (a)(1)
of this section.
(2) If a State, having notified the Commissioner of Social
Security of its intent to make disability determinations under
subsection (a)(1) of this section, no longer wishes to make such
determinations, it shall notify the Commissioner of Social Security
in writing of that fact, and, if an agency of the State is making
disability determinations at the time such notice is given, it
shall continue to do so for not less than 180 days, or (if later)
until the Commissioner of Social Security has complied with the
requirements of paragraph (3). Thereafter, the Commissioner of
Social Security shall make the disability determinations referred
to in subsection (a)(1) of this section.
(3)(A) The Commissioner of Social Security shall develop and
initiate all appropriate procedures to implement a plan with
respect to any partial or complete assumption by the Commissioner
of Social Security of the disability determination function from a
State agency, as provided in this section, under which employees of
the affected State agency who are capable of performing duties in
the disability determination process for the Commissioner of Social
Security shall, notwithstanding any other provision of law, have a
preference over any other individual in filling an appropriate
employment position with the Commissioner of Social Security
(subject to any system established by the Commissioner of Social
Security for determining hiring priority among such employees of
the State agency) unless any such employee is the administrator,
the deputy administrator, or assistant administrator (or his
equivalent) of the State agency, in which case the Commissioner of
Social Security may accord such priority to such employee.
(B) The Commissioner of Social Security shall not make such
assumption of the disability determination function until such time
as the Secretary of Labor determines that, with respect to
employees of such State agency who will be displaced from their
employment on account of such assumption by the Commissioner of
Social Security and who will not be hired by the Commissioner of
Social Security to perform duties in the disability determination
process, the State has made fair and equitable arrangements to
protect the interests of employees so displaced. Such protective
arrangements shall include only those provisions which are provided
under all applicable Federal, State and local statutes including,
but not limited to, (i) the preservation of rights, privileges, and
benefits (including continuation of pension rights and benefits)
under existing collective-bargaining agreements; (ii) the
continuation of collective-bargaining rights; (iii) the assignment
of affected employees to other jobs or to retraining programs; (iv)
the protection of individual employees against a worsening of their
positions with respect to their employment; (v) the protection of
health benefits and other fringe benefits; and (vi) the provision
of severance pay, as may be necessary.
(c) Review of determination by Commissioner
(1) The Commissioner of Social Security may on the Commissioner's
own motion or as required under paragraphs (2) and (3) review a
determination, made by a State agency under this section, that an
individual is or is not under a disability (as defined in section
416(i) or 423(d) of this title) and, as a result of such review,
may modify such agency's determination and determine that such
individual either is or is not under a disability (as so defined)
or that such individual's disability began on a day earlier or
later than that determined by such agency, or that such disability
ceased on a day earlier or later than that determined by such
agency. A review by the Commissioner of Social Security on the
Commissioner's own motion of a State agency determination under
this paragraph may be made before or after any action is taken to
implement such determination.
(2) The Commissioner of Social Security (in accordance with
paragraph (3)) shall review determinations, made by State agencies
pursuant to this section, that individuals are under disabilities
(as defined in section 416(i) or 423(d) of this title). Any review
by the Commissioner of Social Security of a State agency
determination under this paragraph shall be made before any action
is taken to implement such determination.
(3)(A) In carrying out the provisions of paragraph (2) with
respect to the review of determinations made by State agencies
pursuant to this section that individuals are under disabilities
(as defined in section 416(i) or 423(d) of this title), the
Commissioner of Social Security shall review -
(i) at least 50 percent of all such determinations made by
State agencies on applications for benefits under this
subchapter, and
(ii) other determinations made by State agencies pursuant to
this section to the extent necessary to assure a high level of
accuracy in such other determinations.
(B) In conducting reviews pursuant to subparagraph (A), the
Commissioner of Social Security shall, to the extent feasible,
select for review those determinations which the Commissioner of
Social Security identifies as being the most likely to be
incorrect.
(C) Not later than April 1, 1992, and annually thereafter, the
Commissioner of Social Security shall submit to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate a written report setting forth the number of
reviews conducted under subparagraph (A)(ii) during the preceding
fiscal year and the findings of the Commissioner of Social Security
based on such reviews of the accuracy of the determinations made by
State agencies pursuant to this section.
(d) Hearings and judicial review
Any individual dissatisfied with any determination under
subsection (a), (b), (c), or (g) of this section shall be entitled
to a hearing thereon by the Commissioner of Social Security to the
same extent as is provided in section 405(b) of this title with
respect to decisions of the Commissioner of Social Security, and to
judicial review of the Commissioner's final decision after such
hearing as is provided in section 405(g) of this title.
(e) State's right to cost from Trust Funds
Each State which is making disability determinations under
subsection (a)(1) of this section shall be entitled to receive from
the Trust Funds, in advance or by way of reimbursement, as
determined by the Commissioner of Social Security, the cost to the
State of making disability determinations under subsection (a)(1)
of this section. The Commissioner of Social Security shall from
time to time certify such amount as is necessary for this purpose
to the Managing Trustee, reduced or increased, as the case may be,
by any sum (for which adjustment hereunder has not previously been
made) by which the amount certified for any prior period was
greater or less than the amount which should have been paid to the
State under this subsection for such period; and the Managing
Trustee, prior to audit or settlement by the Government
Accountability Office, shall make payment from the Trust Funds at
the time or times fixed by the Commissioner of Social Security, in
accordance with such certification. Appropriate adjustments between
the Federal Old-Age and Survivors Insurance Trust Fund and the
Federal Disability Insurance Trust Fund with respect to the
payments made under this subsection shall be made in accordance
with paragraph (1) of subsection (g) of section 401 of this title
(but taking into account any refunds under subsection (f) of this
section) to insure that the Federal Disability Insurance Trust Fund
is charged with all expenses incurred which are attributable to the
administration of section 423 of this title and the Federal Old-Age
and Survivors Insurance Trust Fund is charged with all other
expenses.
(f) Use of funds
All money paid to a State under this section shall be used solely
for the purposes for which it is paid; and any money so paid which
is not used for such purposes shall be returned to the Treasury of
the United States for deposit in the Trust Funds.
(g) Regulations governing determinations in certain cases
In the case of individuals in a State which does not undertake to
perform disability determinations under subsection (a)(1) of this
section, or which has been found by the Commissioner of Social
Security to have substantially failed to make disability
determinations in a manner consistent with the Commissioner's
regulations and guidelines, in the case of individuals outside the
United States, and in the case of any class or classes of
individuals for whom no State undertakes to make disability
determinations, the determinations referred to in subsection (a) of
this section shall be made by the Commissioner of Social Security
in accordance with regulations prescribed by the Commissioner.
(h) Evaluation of mental impairments by qualified medical
professionals
An initial determination under subsection (a), (c), (g), or (i)
of this section that an individual is not under a disability, in
any case where there is evidence which indicates the existence of a
mental impairment, shall be made only if the Commissioner of Social
Security has made every reasonable effort to ensure that a
qualified psychiatrist or psychologist has completed the medical
portion of the case review and any applicable residual functional
capacity assessment.
(i) Review of disability cases to determine continuing eligibility;
permanent disability cases; appropriate number of cases reviewed;
reporting requirements
(1) In any case where an individual is or has been determined to
be under a disability, the case shall be reviewed by the applicable
State agency or the Commissioner of Social Security (as may be
appropriate), for purposes of continuing eligibility, at least once
every 3 years, subject to paragraph (2); except that where a
finding has been made that such disability is permanent, such
reviews shall be made at such times as the Commissioner of Social
Security determines to be appropriate. Reviews of cases under the
preceding sentence shall be in addition to, and shall not be
considered as a substitute for, any other reviews which are
required or provided for under or in the administration of this
subchapter.
(2) The requirement of paragraph (1) that cases be reviewed at
least every 3 years shall not apply to the extent that the
Commissioner of Social Security determines, on a State-by-State
basis, that such requirement should be waived to insure that only
the appropriate number of such cases are reviewed. The Commissioner
of Social Security shall determine the appropriate number of cases
to be reviewed in each State after consultation with the State
agency performing such reviews, based upon the backlog of pending
reviews, the projected number of new applications for disability
insurance benefits, and the current and projected staffing levels
of the State agency, but the Commissioner of Social Security shall
provide for a waiver of such requirement only in the case of a
State which makes a good faith effort to meet proper staffing
requirements for the State agency and to process case reviews in a
timely fashion. The Commissioner of Social Security shall report
annually to the Committee on Finance of the Senate and the
Committee on Ways and Means of the House of Representatives with
respect to the determinations made by the Commissioner of Social
Security under the preceding sentence.
(3) The Commissioner of Social Security shall report annually to
the Committee on Finance of the Senate and the Committee on Ways
and Means of the House of Representatives with respect to the
number of reviews of continuing disability carried out under
paragraph (1), the number of such reviews which result in an
initial termination of benefits, the number of requests for
reconsideration of such initial termination or for a hearing with
respect to such termination under subsection (d) of this section,
or both, and the number of such initial terminations which are
overturned as the result of a reconsideration or hearing.
(4) In any case in which the Commissioner of Social Security
initiates a review under this subsection of the case of an
individual who has been determined to be under a disability, the
Commissioner of Social Security shall notify such individual of the
nature of the review to be carried out, the possibility that such
review could result in the termination of benefits, and the right
of the individual to provide medical evidence with respect to such
review.
(5) For suspension of reviews under this subsection in the case
of an individual using a ticket to work and self-sufficiency, see
section 1320b-19(i) of this title.
(j) Rules and regulations; consultative examinations
The Commissioner of Social Security shall prescribe regulations
which set forth, in detail -
(1) the standards to be utilized by State disability
determination services and Federal personnel in determining when
a consultative examination should be obtained in connection with
disability determinations;
(2) standards for the type of referral to be made; and
(3) procedures by which the Commissioner of Social Security
will monitor both the referral processes used and the product of
professionals to whom cases are referred.
Nothing in this subsection shall be construed to preclude the
issuance, in accordance with section 553(b)(A) of title 5, of
interpretive rules, general statements of policy, and rules of
agency organization relating to consultative examinations if such
rules and statements are consistent with such regulations.
(k) Establishment of uniform standards for determination of
disability
(1) The Commissioner of Social Security shall establish by
regulation uniform standards which shall be applied at all levels
of determination, review, and adjudication in determining whether
individuals are under disabilities as defined in section 416(i) or
423(d) of this title.
(2) Regulations promulgated under paragraph (1) shall be subject
to the rulemaking procedures established under section 553 of title
5.
(l) Special notice to blind individuals with respect to hearings
and other official actions
(1) In any case where an individual who is applying for or
receiving benefits under this subchapter on the basis of disability
by reason of blindness is entitled to receive notice from the
Commissioner of Social Security of any decision or determination
made or other action taken or proposed to be taken with respect to
his or her rights under this subchapter, such individual shall at
his or her election be entitled either (A) to receive a
supplementary notice of such decision, determination, or action, by
telephone, within 5 working days after the initial notice is
mailed, (B) to receive the initial notice in the form of a
certified letter, or (C) to receive notification by some
alternative procedure established by the Commissioner of Social
Security and agreed to by the individual.
(2) The election under paragraph (1) may be made at any time, but
an opportunity to make such an election shall in any event be
given, to every individual who is an applicant for benefits under
this subchapter on the basis of disability by reason of blindness,
at the time of his or her application. Such an election, once made
by an individual, shall apply with respect to all notices of
decisions, determinations, and actions which such individual may
thereafter be entitled to receive under this subchapter until such
time as it is revoked or changed.
(m) Work activity as basis for review
(1) In any case where an individual entitled to disability
insurance benefits under section 423 of this title or to monthly
insurance benefits under section 402 of this title based on such
individual's disability (as defined in section 423(d) of this
title) has received such benefits for at least 24 months -
(A) no continuing disability review conducted by the
Commissioner may be scheduled for the individual solely as a
result of the individual's work activity;
(B) no work activity engaged in by the individual may be used
as evidence that the individual is no longer disabled; and
(C) no cessation of work activity by the individual may give
rise to a presumption that the individual is unable to engage in
work.
(2) An individual to which paragraph (1) applies shall continue
to be subject to -
(A) continuing disability reviews on a regularly scheduled
basis that is not triggered by work; and
(B) termination of benefits under this subchapter in the event
that the individual has earnings that exceed the level of
earnings established by the Commissioner to represent substantial
gainful activity.