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Electronic Substitutions for Form SSA-538

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Social Security Administration.


Final rule with request for comments.


We are revising our regulations to reflect our use of electronic case processing at the initial and reconsideration levels of our administrative review process. Our prior rule required adjudicators at these levels to complete a Form SSA-538, Childhood Disability Evaluation Form, in all cases of children alleging disability or continuing disability under title XVI of the Social Security Act (Act). However, we developed and now use a Web-based tool that assists our adjudicators in making disability determinations in several States, and we plan to expand its use to other States. We are revising our regulation to reflect the new tool. We are not changing the requirement that State agency medical and psychological consultants must affirm the accuracy and completeness of their findings of fact and discussion of the supporting evidence, only the manner in which they may provide the required findings and affirmation. We expect that this revision will improve our efficiency by increasing our use of electronic resources.


These rules are effective on July 15, 2011. Comment Date: To ensure that your comments are considered, we must receive them no later than September 13, 2011.


You may submit comments by any one of three methods—Internet, fax, mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2009-0027 so that we may associate your comments with the correct regulation.

Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

  • Internet: We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at Use the Search function to find docket number SSA-2009-0027. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.
  • Fax: Fax comments to (410) 966-2830.Start Printed Page 41686
  • Mail: Address your comments to the Office of Regulations, Social Security Administration, 107 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

Comments are available for public viewing on the Federal eRulemaking portal at or in person, during regular business hours, by arranging with the contact person identified below.

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Cheryl Williams, Office of Medical Listings Improvement, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at

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What revision are we making?

We are revising paragraph (g) in § 416.924 of our regulations. This paragraph explains how adjudicators at each level of our administrative review process must explain their findings about whether a child is disabled or continues to be disabled under the Supplemental Security Income (SSI) program. As currently drafted, that paragraph requires us to complete a standard Form SSA-538, Childhood Disability Evaluation Form, when we make an initial or reconsideration determination. The form outlines the steps of the sequential evaluation process for children under SSI, and we use it to explain our findings.

We are removing the requirement that we complete a specific form, the SSA-538. Instead, we are revising § 416.924(g) to provide that adjudicators at the initial and reconsideration levels will indicate their findings “in writing in a manner that we prescribe.”

Why are we making this revision?

We are making this revision because we process some of our cases electronically, and we plan eventually to process all of our cases electronically. The State agencies that are already processing cases electronically use a web-based tool we developed to indicate their findings. The web-based tool does not include an exact copy of our paper Form SSA-538,[1] although it includes all of the major elements of the SSA-538 at appropriate points as the program leads adjudicators (including State agency medical and psychological consultants) through the decisionmaking process in SSI childhood cases. Both the SSA-538 and the web-based tool include choices of possible case dispositions and space in which to explain the disposition. When a functional assessment is required, both the SSA-538 and the web-based tool provide: (1) Space for explaining the assessment of the child's limitation in each of the six functional domains (§ 416.926a(b)(1)); (2) choices for indicating the severity of the limitation of any affected domains; and (3) selections for whether a child's impairment or combination of impairments functionally equals the listings. They also require the State agency medical or psychological consultant with overall responsibility for the findings to affirm that:

  • He or she considered essential policy factors and evidence,[2] and
  • The determination is accurate and complete.

The tool also requires affirmations from any other medical or psychological consultant(s) who provided input for the findings.

Since we do not yet use electronic programs to process cases in all State agencies, we are not eliminating the Form SSA-538, only removing reference to it from § 416.924(g). We are revising the paragraph only to provide us with the flexibility we need to use electronic programs in making disability determinations for children under SSI.

Regulatory Procedures

We follow the Administrative Procedure Act (APA) rulemaking procedures specified in 5 U.S.C. 553 when we develop regulations. Social Security Act, section 702(a)(5). The APA provides exceptions to its notice and public comment procedures when an agency finds that there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest.

We find that there is good cause under 5 U.S.C. 553(b)(B) for dispensing with notice and public comment procedures because notice and public comment are unnecessary. As we indicated above, the only change we are making in these rules is to remove our requirement to use a specific paper form, which will allow State agency adjudicators to show, explain, and affirm their findings in other ways. We are not making any substantive changes to the information they must provide or to our signature requirements. As we explained in more detail earlier in this preamble, the web-based tool includes all of the essential elements of the SSA-538; it simply does not include an electronic version of a “Form SSA-538” or contain web pages that look exactly like the paper form.

For the same reason, we also find good cause for dispensing with the 30-day delay in the effective date of a final rule under 5 U.S.C. 553(d). The change represents merely another option for recording and affirming our findings and does not change the substance of what we require adjudicators to record. Therefore, we find that it is unnecessary to delay the effective date of these rules.

Executive Order 12866, as supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

We certify that this final rule does not have a significant economic impact on a substantial number of small entities because it affects only persons or States. Thus, a regulatory flexibility analysis as provided in the Regulatory Flexibility Act, as amended, is not required.

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.

(Catalog of Federal Domestic Program No. 96.006, Supplemental Security Income.)

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List of Subjects in 20 CFR Part 416

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Michael J. Astrue,

Commissioner of Social Security.

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For the reasons set out in the preamble, we amend title 20 of the Code of Federal Regulations, chapter III, part 416, subpart I as follows:

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Subpart I—[Amended]

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1. The authority citation for subpart I of part 416 continues to read as follows:

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Authority: Secs. 221(m), 702(a) (5), 1611, 1614, 1619, 1631(a), (c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, and 1382h note).

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2. Amend § 416.924 by revising paragraph (g) to read as follows:

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How we determine disability for children.
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(g) How we will explain our findings. When we make a determination or decision whether you are disabled under this section or whether your disability continues under § 416.994a, we will indicate our findings at each step of the sequential evaluation process as we explain in this paragraph. At the initial and reconsideration levels of the administrative review process, State agency medical and psychological consultants will indicate their findings in writing in a manner that we prescribe. The State agency medical or psychological consultant (see § 416.1016) or other designee of the Commissioner has overall responsibility for completing the prescribed writing and must sign the prescribed writing to attest that it is complete, including the findings of fact and any discussion of supporting evidence. Disability hearing officers, administrative law judges and the administrative appeals judges on the Appeals Council (when the Appeals Council makes a decision) will indicate their findings at each step of the sequential evaluation process in their determinations or decisions. In claims adjudicated under the procedures in part 405 of this chapter, administrative law judges will also indicate their findings at each step of the sequential evaluation process in their decisions.

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1.  In some cases, adjudicators still complete the paper Form SSA-538 and include a scanned copy of the form in the electronic case record. We plan eventually to end this practice and to use only the electronic tool.

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2.  We list the same factors in the web-based tool that we list on form SSA-538.

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[FR Doc. 2011-17859 Filed 7-14-11; 8:45 am]