2024-21777. Evidence of Disability

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Railroad Retirement Board

1. 20 CFR Part 220
2. RIN 3220-AB68

AGENCY:

Railroad Retirement Board.

ACTION:

Final rule.

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, [phone], TTD [phone], [e-mail].

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 ( print 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.

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 § 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 ( print 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.

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]

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 ( print 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

1. The authority citation for part 220 continues to read as follows:

Authority: 45 U.S.C. 231a; 45 U.S.C. 231f.

2. Revise § 220.45 to read as follows:

§ 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 §§ 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: ( print 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 §§ 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.

Footnotes

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: https://www.ncbi.nlm.nih.gov/​books/​NBK482263/​.

2.  20 CFR 220.104.

3.  20 CFR 220.45(b).

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.