Addendum to the Supporting Statement - 0960-0662

Addendum to the Supporting Statement for

Form HA-1151 Medical Statement of Ability

To Do Work-Related Activities (Physical) and

Form HA-1152 Medical Statement of Ability

To Do Work-Related Activities (Mental)

20 CFR 404.1512-404.1513, 416.912-416.913, 404.1517, and 416.917

OMB No. 0960-0662

Minor Revisions to the Collection Instruments

SSA is making the following revisions:

• Change #1: We are revising the Privacy Act Statements on this collection.

Justification #1: SSA’s Office of the General Counsel is conducting a systematic review of SSA’s Privacy Act Statements on agency forms. As a result, SSA is updating the Privacy Act Statements on this collection.

Public Comments

We published the 60-day advance Federal Register Notice on April 23, 2024, at 89 FR 30428, and we received the following public comments from Community Legal Services of Philadelphia (CLS) and the Urban Justice Center’s Mental Health Project (UJC):

General Response to Comments from CLS and UJC

• SSA Response: Several comments received from CLS and UJC concerned the use of forms HA-1151 and HA-1152 in connection with consultative examinations (CE). However, these forms are not used solely in connection with CEs but can also be used to obtain opinions from other medical sources. Therefore, any changes to these forms that would be specific to consultative examiners were not adopted, as such changes would limit the use of the forms by other medical sources.
  
  

Comments from CLS:

• Comment #1: CLS recommends both the HA-1151 and HA-1152 include a section that states the time the exam started and ended with the examining doctor. This additional information would be beneficial when analyzing the information contained in the forms and ensuring transparency around exam norms and procedures. Some CEs have noted that part of the examination time is spent with non-medical staff answering questions. We do not think that this time should be included in the “exam” time or should be noted separately.

SSA Response #1: SSA acknowledges CLS’s concerns about the transparency and accuracy of the exam items recored on Forms HA-1151 and HA-1152. However, in cases where Forms HA-1151 and HA-1152 are used to obtain opinions from other medical sources, requiring the medical source to indicate the length of time of their examination would not be applicable. In addition, reporting the amount of time a consultative examiner spends with a claimant is not a required element of a complete CE report (20 CFR 404.1519n, 404.1519p, 416.919n, and 416.919p). While the regulations set forth minimum scheduling intervals for CEs, the regulations explicitly state that the intervals are the time set aside for the individual, not the actual duration of the CE (20 CFR 404.1519p and 416.919p).

• Comment #2: CLS states different jurisdictions have different rules and norms about how to disclose which, if any, evidence was reviewed as part of the exam. CLS recommends each form include a section where the consultative examiner acknowledges whether the examiner reviewed any forms completed by the claimant, any exhibits provided by the DDS, or any specific tests or laboratory results. CLS states in Pennsylvania, the claimants routinely complete forms with a full medical history, for example, and the consulting examiners rely on those forms to complete some reports but do not acknowledge that fact.

SSA Response #2: SSA acknowledges CLS’s concerns about the disclosure of reviewed evidence during exams. Forms HA-1151 and HA-1152 already require medical sources completing the form to identify the specific medical signs or laboratory findings that support their assessments. In addition, when these forms are used conjunction with CEs, the CE provider is required to include in their examination report a description of the medical records and any other documents reviewed during the course of the evaluation.

• Comment #3: CLS has concerns that SSA overestimates the burden related to MSS forms on the providers. CLS states they would like to think consultative examiners spent 30 minutes carefully evaluating claimants to complete the MSS given the impact these conclusions have on the case; we believe this is often not true. CLS (like many organizations) routinely surveys claimants after they attend CEs. One of the questions they always ask is the total length of time the CE spent with the claimant. Upon review of the surveys, none of the CEs spend 30 minutes with the claimant, which makes it unlikely they spent that much time completing this form. CLS’s surveys show that examination times are often only 10-15 minutes at most.

SSA Response #3: The burden estimate includes time spent reviewing medical records, preparing notes, and completing and submitting the form. It is not an estimate of how much time a medical source spends with the claimant. The current burden estimate is 15 minutes per form, which we believe to be an adequate estimate for the time spent completing these activities.

• Comment #4: CLS expressed concerns with SSR 16-3p, which provides that symptoms, including pain, must be considered when assessing work-related limitations in functioning, however; it is often unclear whether or how consultative examiners considered pain and other symptoms when reaching conclusions about work-related limitations. CLS suggests adding a question that asks whether and how pain and other symptoms contribute to the individual’s functional limitations.

SSA Response #4: Forms HA-1151 and HA-1152 already prompt medical sources completing the form to identify the medical or clinical findings that support their assessments. These forms specifically prompt the medical sources to identify symptoms including pain that support limitations on exertional and nonexertional activities.

• Comment #5: CLS states the mental abilities needed to perform any job include the ability to maintain concentration and attention for extended periods. CLS also states at the hearing level, vocational experts are frequently asked what amount of time off task and absenteeism employers tolerate in a competitive work setting. CLS would like SSA to bring the MSS forms fully up to date, and include questions about these key functional limitations.

SSA Response #5: Question (3) on Form HA-1152 prompts the medical source completing the form to assess whether the claimant’s ability to concentrate, persist, or maintain pace has been affected by their impairments and to identify the factors (e.g., the particular medical signs, laboratory findings, or other factors) that support their assessment. In addition, the question prompts the medical source to explain any limitations, which could include time off task and absenteeism. However, this comment has merit, and we will consider further revisions to the form in a future renewal to clarify question (3) with policy-compliant language.

• Comment #6: CLS expresses the need for an assistive device is an important component in assessing work-related limitations in functioning, but the current HA-1151 only includes questions about the use of a cane. CLS recommends expanding this question to capture other relevant information by asking whether the person uses any assistive devices, such as a cane or walker. They also recommend follow-up questions about which type of assistive device they use, and why the claimant needs it.

SSA Response #6: CLS makes a valid point regarding the specific prompt in section II of HA-1151 regarding whether the claimant requires the use of a cane for ambulation but not alternative assistive devices, such as walkers. SSA will consider further revisions to the form in a future renewal. However, the current language in section VIII of HA-1151 asks whether the claimant is able to ambulate without using a wheelchair, walker, two canes, or two crutches. Therefore, the form provides medical sources the opportunity to comment on additional assistive devices.

• Comment #7: CLS recommends removing questions about activities of daily living, they believe these questions are overly broad and do not provide sufficient information to reach any meaningful conclusion about an individual’s limitation in functioning. CLS also states responses do not allow for clarifications, for example that the person requires support or is only able to do the activities under certain circumstances. There are a variety of ways that many of these activities can be performed that could encompass a wide range of functioning.
  
  CLS provided the following example: the form asks if the person “can perform activities like shopping.” CLS first points out that it is unclear what activities “like shopping” would be included in this category. Second, CLS notes that a person might be able to go shopping at a local corner store where staff know them and provide assistance, or with the help of an assistive device, or with a family member, or only on days when their symptoms are manageable. CLS notes that shopping could also be interpreted to include online shopping, without giving the claimant the opportunity to explain that they are limited to online shopping due to their impairments. As another example, CLS states that the question “can the individual prepare a simple meal & feed himself/herself” also lacks sufficient specificity. The claimant could interpret “simple meal” in many different ways that would require different levels of functioning. They asked SSA to consider the differences in functioning required to pour cereal into a bowl as opposed to standing in front of the stove to fry an egg or cook pasta. CLS suggests replacing these questions with more specific questions about the underlying functional abilities rather than broad categories of tasks that can be interpreted and performed in a variety of ways.

SSA Response #7: SSA acknowledges the importance of considering all relevant evidence in the case records, including reports of daily activities. While the ability to perform daily activities does not directly correlate to the ability to perform work activities on a sustained basis in every case, it provides adjudicators with valuable insight when evaluating a claimant’s functional abilities. These questions in section VIII of HA-1151 prompt medical sources to assess the claimant’s ability to perform daily activities and to identify the medical evidence supporting their assessments. However, this response is not the only evidence of daily activities in record, and claimants and representatives have the opportunity to address assessments in this form.

• Comment #8: CLS recommends SSA clarify the assessment for how long a person can stand and walk, as it is cumulative. Some evaluators may not realize that if they say a person can stand for two hours per day and walk for two hours per day that means they are capable of being on their feet for a total of four hours per day. CLS recommends adding a question to each section to ask how long a person can be on their feet, either standing or walking, at one time without interruption, and during an eight-hour workday.

SSA Response #8: SSA acknowledge the concerns expressed; however, we believe this clarification to be unnecessary. Form HA-1151 prompts the medical source completing the form to specify how many hours the claimant can sit, stand, and walk both at one time and in total during an eight-hour workday. These assessments are recorded in separate boxes on separate lines, which makes it clear that each activity is considered individually. Moreover, adjudicators are well-versed in the physical exertional requirements of various categories of work as set forth in our regulations (see 20 CFR 404.1567 and 416.967).

• Comment #9: CLS proposes that SSA conduct additional research and consult medical professionals to address the lack of clinical support for certain conclusions in the MSS. CLS states it is unclear how examiners determine how much an individual can lift and carry. In addition, they state the abilities to lift and carry are not directly tested on exam, and the clinical support or process for reaching conclusions in the MSS form should be further researched and clarified.

SSA Response #9: SSA acknowledges the concern. Section I of Form HA-1151 directs the medical source completing the form to identify the particular medical or clinical findings supporting their assessment of the claimant’s ability to perform lifting and/or carrying, as well as why such findings support their assessment. SSA uses similar language on forms provided to the claimant, such as the SSA-3368, which asks the claimant to identify the weight they typically lifted and carried in prior jobs, as well as the SSA-3373, which asks the claimant to identify how their impairments affect their ability to lift and carry.

• Comment #10: CLS recommends that SSA restructure Section (1) [of HA-1152] which pertains to analyzing the claimant’s ability to understand, remember, and carry out instructions. CLS states that the way the categories are currently written presents them as confusing and duplicative. In addition, CLS suggests that SSA combine the six categories into two: one regarding simple instructions and one regarding the complex instructions. CLS provided examples to simple instructions category by listing: can understand, carry out, remember, and make judgments on simple-work-related instructions and decisions. For the complex instructions category, they suggest listing: can understand, carry out, remember, and make judgments on complex instructions and decisions. CLS states that by combining these statements, it will ease confusion as the topics overlap with each other and make room for new categories of questions that can better flush out understanding, remembering, and carrying out instructions.

SSA Response #10: Section (1) of HA-1152 roughly corresponds to the first “paragraph B” criteria used to evaluate a claimant’s mental impairments and provides adjudicators with valuable insight into the claimant’s ability to understand, remember, or apply information. This comment has merit, and we will consider further revisions to the form in a future renewal to align more closely with language in the regulations. However, the recommended options of “simple” and “complex” categories restricts responses to only unskilled or skilled instructions and tasks. Therefore, a third option for “detailed” instructions corresponding to semiskilled tasks would be beneficial.

However, SSA disagrees that there is any overlap in the categories as currently written. The six categories are separated into three categories addressing simple instructions and simple work-related decisions and three categories addressing complex instructions and complex work-related decisions. As they are currently written, these prompts allow a medical source to differentiate between limitations understanding and remembering complex instructions as opposed to carrying out those instructions, which allows an adjudicator to more accurately assess the residual functional capacity.

• Comment #11: CLS states in their experience, the portion of each Section (1) and (2) that states “identifying factors,” which include “laboratory findings” or “particular medical signs,” is often left blank or a diagnosis is scribbled at the bottom. In addition, CLS states, leaving it blank or reiterating a diagnosis found in the CE (or other medical records) is not helpful and renders this portion basically meaningless. CLS suggest placing specific questions with proposed answers which would require the examiner to write them down to avoid blank answers or writing a diagnosis. CLS proposes SSA work with a team of medical professionals to see what additional medical tests could be done to better flesh out a claimant's ability to understand, remember, and carry out instructions; interact with people; and concentrate, persist or maintain pace. Therefore, after the examiner performs the test, the reader of the HA-1152 form will understand what evidence supports their conclusions. Per CLS, failure to provide a written explanation for the assessment of the severity of limitations renders this opinion void. CLS proposes the medical professionals could create a hypothetical situation or perform more standardized tests. As of now, CLS maintains that the CE usually only contains recalling three objections immediately and after a delay, serial 3s, and serial 7s. These tests are not indicative of a claimant’s ability to understand, remember, and carry out simple and complex instructions; interact with people; and concentrate and maintain pace. CLS recommends that performing more standardize tests would not only create more reliable outcomes but be consistent as whole.

SSA Response #11: Providing a space for the medical source completing the form to narratively describe the clinical findings supporting their assessment provides greater flexibility. In addition, adjudicators must evaluate the persuasiveness of medical opinions in terms of consistency and supportability. Where a medical source leaves this section blank, their assessment may be inadequately supported and less persuasive.

• Comment #12: CLS states that often the content in the CE does not match the information checked in the HA-1152 form. CLS recommends that SSA put in safeguards to ensure that the examiner must provide consistent information in the CE and the HA-1152 form. This could be achieved by adding an instruction at the top of the HA-1152 form stating the following: If the examiner leaves blank any portion of the form, it undermines the supportability of the factors identified in 20 CFR 404.1527.

SSA Response #12: Adjudicators must evaluate the persuasiveness of medical opinions in terms of consistency and supportability. Where a medical source lists information in this section that contradicts information in another medical record, their assessment may be inconsistent and less persuasive.

• Comment #13: CLS recommends that SSA remove Section (5) regarding alcohol and/or substance abuse. They note that mental disorders often have symptoms that overlap or mimic those of substance abuse, and it is well known many people with mental disorders have “self-medicated” with drugs to reduce their symptoms. Since the examiner is only meeting with a claimant for at most, one hour, CLS recommends that the examiner is not in any qualified position to determine if the condition would improve enough for the claimant to work if they stopped using drugs or alcohol or if the medical condition is worsened or caused by alcohol or drug use. To get an accurate picture of a claimant’s sobriety or history of drug use, the medical record provided would provide a more accurate answer.

SSA Response #13: Adjudicators must consider whether drug addiction and alcoholism are material to the issue of disability. To that end, section (5) provides valuable insight into the effect of drug addiction and alcoholism on the claimant’s impairments.

• Comment #14: MSS forms request information about the ability to understand, remember, and carry out instructions, but the basis for these conclusions is not always clear. CLS notes that CEs that do not include any intelligence testing often include only a single line about cognitive functioning without any explanation about the basis for the assessment. CLS provides the following example: a report may simply state that cognitive functioning “appears borderline” or is “average.” CLS suggests SSA conduct additional research and consultations to clarify the clinical basis for conclusions about cognitive functioning and the ability to understand, remember, and carry out instructions.

SSA Response #14: In cases where form HA-1152 is used in conjunction with a CE and where the claimant’s intellectual functioning is at issue, an adjudicator can request specific examinations, including intelligence testing. Moreover, adjudicators must evaluate the persuasiveness of medical opinions in terms of consistency and supportability. Where the basis for a medical source’s opinion is not clear, their assessment may be inadequately supported and less persuasive.

Comments from UJC:

• Comment #1: UJC states the [burden] estimate for 15 minutes per form likely overestimates the time needed to complete this form, which is largely a choice of boxes to check and a small number of places to add limited comments.

SSA Response #1: The burden estimate includes time spent reviewing medical records, preparing notes, and completing and submitting the form. It is not an estimate of how much time a medical source spends with the claimant. The current burden estimate is 15 minutes per form, which we believe to be an adequate estimate for the time spent completing these activities.

• Comment #2: UJC suggests that SSA expand the use of Forms HA-1151 and HA-1152 to all levels of adjudication. They note that practice in New York is to use these forms, SSA-1151 and SSA-1152, when a consultative examination is ordered at the OHO or administrative law judge level of adjudication. The Federal Register notice also indicates the form is used for claimants whose claims are denied. UJC strongly urges SSA to require this form be used by all consultative examiners at all levels of adjudication.
  
  UJC also notes that the narrative form of a medical source statement used at the initial and reconsideration levels contains far less detail and far less precise terms. SSA has already paid for the CE examination, so UJC maintains it makes sense to have the result include as much detail as possible from a single examination. UJC notes that SSA’s recent annual expenditures for CE examinations exceeded $350 million for well over one million examinations. They ask why the agency wouldn’t want to get the most relevant information possible from this expenditure?

SSA Response #2: SSA acknowledges these concerns, and will consider where it is appropriate to expand the use of these forms in order to promote consistency across all levels of adjudication.

• Comment #3: UJC states that the HA-1152 should contain more specific references to the other functional domains for mental disorders, with a focus on the basic mental demands of work. The form has specific questions related to only two of the four functional domains for the mental impairments. Specifically, it has lists of questions/check boxes for the ability to understand, remember and carry out simple instructions and a set of questions/check boxes related to the ability to interact with others. It does not have questions and checkboxes for the abilities to concentrate and maintain pace or for the abilities to manage oneself or to adapt.

SSA Response #3: Question (3) of Form HA-1152 addresses the latter two functional domains or “paragraph B” criteria by asking the medical source completing the form whether other capabilities (such as the ability to concentrate, persist, or maintain pace and the ability to adapt or manage oneself) are affected by the claimant’s impairment. However, question (3) does not prompt the medical source completing the form to provide the same level of detail as in questions (1) and (2), which address the first two “paragraph B” criteria. SSA will consider further revisions to the form in a future renewal.

• Comment #4: UJC states that, at a minimum, the form should address the criteria that SSA uses for the basic mental demands of work and include questions about the ability to deal with changes in a routine work setting. They note that the currently combined question about the abilities to respond to typical situations and to changes in routine work settings should be broken out and each mental demand should appear separately.
  
  UJC provided the following example, which breaks apart these two mental demands:
  Respond appropriately to usual work situations
  Respond appropriately to changes in routine work situations
  
  Next, they suggest SSA add specific questions relevant to the ability to deal with routine work settings, including but not limited to:
  Sustain an ordinary routine at work
  Sustain regular attendance at work
  Change activities or work settings without being disruptive
  Distinguish between acceptable and unacceptable work performance
  
  UJC notes that these specific questions are drawn directly from 20 CFR Part 404, Subpart P, App A. at 12.00.E, which defines the functional domains for mental disorders.

SSA Response #4: The residual functional capacity assessment is derived from the analysis of all the various medical and non-medical sources and reports contained in the record, which can include objective medical evidence, medical opinion evidence, and other medical evidence (such as medical histories, examination reports, treatment histories, and recorded observations), as well as nonmedical evidence (such as testimony from the claimant and observations from witnesses). The current form HA-1152, along with additional evidence in the record and obtained at hearing, provides adjudicators with sufficient insight into the claimant’s degree of functional limitation with respect to responding appropriately to usual work situations and changes in a routine work setting to properly assess a residual functional capacity. However, this comment has merit, and we will consider further revisions.

• Comment #5: UJC suggests SSA add a requirement to both the SSA-1151 and SSA-1152 to report the start and end times for a consultative examination. UJC agrees with Community Legal Services of Philadelphia that this change will build transparency and improve oversight of the length of examinations which currently vary widely. UJC understands that New York examiners are under pressure to move through a substantial number of appointments a day. They note that, at times, their staff members have accompanied clients to consultative examinations and noted excessively short evaluation times and seen a quick turnover of other patients at the CE offices.

SSA Response #5: In cases where forms HA-1151 and HA-1152 are used to obtain opinions from medical sources other than consultative examiners, requiring the medical source to indicate the length of time of their examination would not be applicable. In cases where these forms are used in conjunction with CEs, the Disability Determination Services (DDS) ensures the quality of CE reports. Claimant feedback via routine surveys is an important aspect of this oversight and should include questions on the duration, completeness, and thoroughness of the examination. In addition, the DDS is required to investigate and treat seriously all claimant complaints regarding CE providers.

• Comment #6: UJC recommends SSA add requirements to both the SSA-1151 and SSA‑1152 that examiners acknowledge what, if any, other information was reviewed. UJC states each form should include a section where the consultative examiner acknowledges whether the examiner reviewed any forms completed by the claimant, any exhibits provided by the DDS, or any specific tests or laboratory results. UJC notes that in New York, the claimants routinely complete forms with a full medical history, for example, and the consultative examiners rely on those forms to complete some reports but do not acknowledge that fact. In Pennsylvania, those forms are attached to the final consultative report.

SSA Response #6: Forms HA-1151 and HA-1152 already require medical sources completing the form to identify the specific medical signs or laboratory findings that support their assessments.

• Comment #7: UJC proposes SSA eliminate references in the SSA-1151 to activities of daily living. They note this form addresses strength demands and other typical work-related physical demands, including environmental demands. It also includes questions related to daily living, including the abilities to: go shopping, prepare a simple meal, feed him or herself, or care for personal hygiene. UJC suggests SSA remove the daily living questions because they are not clearly related to work activities. For example, UJC questions how the ability to prepare a peanut butter and jelly sandwich is relevant to the ability to perform work activities that would not be better covered by prior questions on this form? Also, UJC suggests that the idea of “going shopping” has changed substantially since the form was last updated in 2009, and questions whether it includes placing an order on line, walking to a store, picking up groceries, carrying bags home, driving groceries home. Or if it considers whether the claimant completes this task with or without assistance. They also question whether this question means something different to the reviewer than it does to the individual completing the form. Lastly, the note that the daily living questions cover tasks that are done for a brief time during a day and sometimes cover activities that take multiple days to complete to allow for rest periods. They state that these brief tasks are not relevant to the ability to work an 8-hour workday on an ongoing and consistent basis. Yet, advocates consistently see cases denied when adjudicators conflate the ability to perform an activity of daily living for an hour or so each day with the ability to perform work activities for 8 hours each day.

SSA Response #7: When evaluating a claimant’s alleged symptoms, an adjudicator must consider all the relevant evidence in the case record, which includes reports of daily activities. While the ability to perform daily activities does not directly correlate to the ability to perform work activities on a sustained basis in every case, it provides adjudicators with valuable insight when evaluating a claimant’s functional abilities. These questions in section VIII of HA-1151 prompt medical sources to assess the claimant’s ability to perform daily activities and to identify the medical evidence supporting their assessments. However, this response is not the only evidence of daily activities in record, and claimants and representatives have the opportunity to address assessments in this form.

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