42 USC 421 - Disability determinations

Editorial Notes

Prior Provisions

A prior section 421, act Aug. 14, 1935, ch. 531, title II, § 221, as added July 18, 1952, ch. 945, § 3(e), 66 Stat. 772; amended by 1953 Reorg. Plan No. 1, § 5, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631, relating to disability determinations, ceased to be in effect at the close of June 30, 1953. See section 3(g) of act July 18, 1952, set out as an Effective and Termination Date of 1952 Amendment note under section 413 of this title.

Amendments

2015—Subsec. (h). Puspan. L. 114–74 amended subsec. (h) generally. Prior to amendment, text read as follows: “An initial determination under subsection (a), (c), (g), or (i) 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.”

2004—Subsec. (e). Puspan. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

1999—Subsec. (i)(5). Puspan. L. 106–170, § 101(span)(1)(A), added par. (5).

Subsec. (m). Puspan. L. 106–170, § 111(a), added subsec. (m).

1994—Puspan. L. 103–296 substituted “Commissioner of Social Security” for “Secretary” wherever appearing except where appearing before “of Labor” in subsec. (span)(3)(B) and substituted “the Commissioner deems” for “he deems” and “the Commissioner finds” for “he finds” in subsec. (a)(2), “the Commissioner’s” for “his” wherever appearing in subsecs. (span)(1), (c)(1), and (g), “the Commissioner has complied” for “he has complied” in subsec. (span)(1), “Commissioner’s” for “Secretary’s” in subsec. (d), and “prescribed by the Commissioner” for “prescribed by him” in subsec. (g).

1990—Subsec. (c)(3). Puspan. L. 101–508 amended par. (3) generally. Prior to amendment, par. (3) read as follows: “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 Secretary shall review—

“(A) at least 15 percent of all such determinations made by State agencies in the fiscal year 1981,

“(B) at least 35 percent of all such determinations made by State agencies in the fiscal year 1982, and

“(C) at least 65 percent of all such determinations made by State agencies in any fiscal year after the fiscal year 1982.”

1989—Subsec. (l). Puspan. L. 101–239 added subsec. (l).

1988—Subsec. (i)(3). Puspan. L. 100–647 substituted “semiannually” for “annually”.

1986—Subsec. (e). Puspan. L. 99–514 struck out “under this section” before “shall be entitled”.

1984—Subsec. (a)(1)(A). Puspan. L. 98–460, § 17(a)(2), (span), temporarily substituted “subsection (span)(1)(C)” for “subsection (span)(1)”. See Effective and Termination Dates of 1984 Amendments note below.

Subsec. (span)(1). Puspan. L. 98–460, § 17(a)(1), (span), temporarily amended par. (1) generally. Prior to amendment, par. (1) read as follows: “If the Secretary finds, after notice and opportunity for a hearing, that a State agency is substantially failing to make disability determinations in a manner consistent with his regulations and other written guidelines, the Secretary shall, not earlier than 180 days following his finding, and after he has complied with the requirements of paragraph (3), make the disability determinations referred to in subsection (a)(1).” See Effective and Termination Dates of 1984 Amendments note below.

Subsec. (span)(3). Puspan. L. 98–460, § 17(a)(3), (span), temporarily substituted “Except as provided in subparagraph (D)(i) of paragraph (1), the Secretary” for “The Secretary” in subpars. (A) and (B). See Effective and Termination Dates of 1984 Amendments note below.

Subsec. (d). Puspan. L. 98–460, § 17(a)(4), (span), temporarily substituted “Except as provided in subsection (span)(1)(D), any individual” for “Any individual”. See Effective and Termination Dates of 1984 Amendments note below.

Subsec. (e). Puspan. L. 98–369 substituted “Federal Disability Insurance Trust Fund is charged” for “Federal Disability Trust Fund is charged”.

Subsec. (h). Puspan. L. 98–460, § 8(a), added subsec. (h).

Subsec. (i)(4). Puspan. L. 98–460, § 6(a), added par. (4).

Subsec. (j). Puspan. L. 98–460, § 9(a)(1), added subsec. (j).

Subsec. (k). Puspan. L. 98–460, § 10(a), added subsec. (k).

1983—Subsec. (i). Puspan. L. 97–455 designated existing provisions as par. (1), inserted “, subject to paragraph (2)” after “at least once every 3 years”, and added pars. (2) and (3).

1980—Subsec. (a). Puspan. L. 96–265, § 304(a), completely revised provisions under which determinations are to be made by State agencies.

Subsec. (span). Puspan. L. 96–265, § 304(span), substituted provisions covering the making of disability determinations by the Secretary rather than by the State for provisions relating to agreements between the Secretary and the State under which the State would make disability determinations.

Subsec. (c). Puspan. L. 96–265, § 304(c), designated existing provisions as par. (1), inserted provision that a review by the Secretary on his own motion of a State agency determination may be made before or after any action is taken to implement that determination, and added pars. (2) and (3).

Subsec. (d). Puspan. L. 96–265, § 304(d), substituted “subsection (a), (span), (c), or (g)” for “subsection (a), (c), or (g)”.

Subsec. (e). Puspan. L. 96–265, § 304(e), substituted “which is making disability determinations under subsection (a)(1)” for “which has an agreement with the Secretary”, substituted “as determined by the Secretary” for “as may be mutually agreed upon”, and substituted “making disability determinations under subsection (a)(1)” for “carrying out the agreement under this section”.

Subsec. (g). Puspan. L. 96–265, § 304(f), substituted “does not undertake to perform disability determinations under subsection (a)(1), or which has been found by the Secretary to have substantially failed to make disability determinations in a manner consistent with his regulations and guidelines” for “has no agreement under subsection (span)” and “for whom no State undertakes to make disability determinations” for “not included in an agreement under subsection (span)”.

Subsec. (i). Puspan. L. 96–265, § 311(a), added subsec. (i).

1968—Subsec. (a). Puspan. L. 90–248, § 158(c)(3), substituted in first sentence reference to “423(d)” for “423(c)”.

Subsec. (c). Puspan. L. 90–248, § 158(c)(4), substituted reference to “423(d)” for “423(c)”.

1956—Subsec. (a). Act Aug. 1, 1956, § 103(c)(7), inserted reference to section 423(c) of this title.

Subsec. (c). Act Aug. 1, 1956, § 103(c)(8), restricted disability to definition of such term contained in section 416(i) or 423(c) of this title.

Subsec. (e). Act Aug. 1, 1956, § 103(h), substituted “Trust Funds” for “Trust Fund”, and provided for adjustments between the Federal Old-Age and Survivors Insurance Trust Fund and the Federal Disability Insurance Trust Fund with respect to payments made under this subsection.

Subsec. (f). Act Aug. 1, 1956, § 103(h), substituted “Trust Funds” for “Trust Fund”.

Statutory Notes and Related Subsidiaries

Effective Date of 2015 Amendment

Puspan. L. 114–74, title VIII, § 832(span), Nov. 2, 2015, 129 Stat. 613, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to determinations of disability made on or after the date that is 1 year after the date of the enactment of this Act [Nov. 2, 2015].”

Effective Date of 1999 Amendment

Amendment by section 101(span)(1)(A) of Puspan. L. 106–170 effective with the first month following one year after Dec. 17, 1999, subject to section 101(d) of Puspan. L. 106–170, see section 101(c) of Puspan. L. 106–170, set out as an Effective Date note under section 1320span–19 of this title.

Puspan. L. 106–170, title I, § 111(span), Dec. 17, 1999, 113 Stat. 1881, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on January 1, 2002.”

Effective Date of 1994 Amendment

Amendment by Puspan. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Puspan. L. 103–296, set out as a note under section 401 of this title.

Effective Date of 1990 Amendment

Puspan. L. 101–508, title V, § 5128(span), Nov. 5, 1990, 104 Stat. 1388–287, provided that: “The amendment made by subsection (a) [amending this section] shall apply with respect to determinations made by State agencies in fiscal years after fiscal year 1990.”

Effective Date of 1989 Amendment

Puspan. L. 101–239, title X, § 10306(a)(3), Dec. 19, 1989, 103 Stat. 2484, provided that: “The amendment made by this section [amending this section] shall apply with respect to notices issued on or after July 1, 1990.”

Effective Date of 1988 Amendment

Puspan. L. 100–647, title VIII, § 8012(span), Nov. 10, 1988, 102 Stat. 3789, provided that: “The amendment made by this section [amending this section] shall apply to reports required to be submitted after the date of the enactment of this Act [Nov. 10, 1988].”

Effective and Termination Dates of 1984 Amendment

Puspan. L. 98–460, § 8(c), Oct. 9, 1984, 98 Stat. 1804, provided that: “The amendments made by this section [amending this section and section 1382c of this title] shall apply to determinations made after 60 days after the date of the enactment of this Act [Oct. 9, 1984].”

Puspan. L. 98–460, § 17(span), Oct. 9, 1984, 98 Stat. 1812, provided that: “The amendments made by subsection (a) of this section [amending this section] shall become effective on the date of the enactment of this Act [Oct. 9, 1984] and shall expire on December 31, 1987. The provisions of the Social Security Act amended by subsection (a) of this section (as such provisions were in effect immediately before the date of the enactment of this Act) shall be effective after December 31, 1987.”

Amendment by Puspan. L. 98–369 effective July 18, 1984, but not to be construed as changing or affecting any right, liability, status, or interpretation which existed (under the provisions of law involved) before that date, see section 2664(span) of Puspan. L. 98–369, set out as a note under section 401 of this title.

Effective Date of 1983 Amendment

Puspan. L. 97–455, § 3(span), Jan. 12, 1983, 96 Stat. 2499, provided that: “The amendments made by subsection (a) [amending this section] shall become effective on the date of the enactment of this Act [Jan. 12, 1983].”

Effective Date of 1980 Amendment

Puspan. L. 96–265, title III, § 304(h), June 9, 1980, 94 Stat. 456, provided that: “The amendments made by subsections (a), (span), (d), (e), and (f) [amending this section] shall be effective beginning with the twelfth month following the month in which this Act is enacted [June 1980]. Any State that, on the effective date of the amendments made by this section, has in effect an agreement with the Secretary of Health and Human Services under section 221(a) of the Social Security Act [42 U.S.C. 421(a)] (as in effect prior to such amendments) will be deemed to have given to the Secretary the notice specified in section 221(a)(1) of such Act as amended by this section, in lieu of continuing such agreement in effect after the effective date of such amendments. Thereafter, a State may notify the Secretary in writing that it no longer wishes to make disability determinations, effective not less than 180 days after the notification is given.”

Puspan. L. 96–265, title III, § 311(span), June 9, 1980, 94 Stat. 460, provided that: “The amendment made by subsection (a) [amending this section] shall become effective on January 1, 1982.”

Effective Date of 1968 Amendment

Amendment by Puspan. L. 90–248 applicable with respect to application for disability insurance benefits under section 423 of this title and to disability determinations under section 416(i) of this title, see section 158(e) of Puspan. L. 90–248, set out as a note under section 423 of this title.

Expansion of Cooperative Disability Investigations Units

Puspan. L. 114–74, title VIII, § 811, Nov. 2, 2015, 129 Stat. 601, provided that:

“(a)In General.—Not later than October 1, 2022, the Commissioner of Social Security shall take any necessary actions, subject to the availability of appropriations, to ensure that cooperative disability investigations units have been established, in areas where there is cooperation with local law enforcement agencies, that would cover each of the 50 States, the District of Columbia, Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa.

“(span)Report.—Not later than 90 days after the date of the enactment of this Act [Nov. 2, 2015] and annually thereafter until the earlier of 2022 or the date on which nationwide coverage is achieved, 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 report describing a plan to implement the nationwide coverage described in subsection (a) and outlining areas where the Social Security Administration did not receive the cooperation of local law enforcement agencies.”

Report on Work-Related Continuing Disability Reviews

Puspan. L. 114–74, title VIII, § 845(span), Nov. 2, 2015, 129 Stat. 618, provided that:

“The Commissioner of Social Security shall annually submit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate a report on the number of work-related continuing disability reviews conducted each year to determine whether earnings derived from services demonstrate an individual’s ability to engage in substantial gainful activity. Such report shall include—

“(1) the number of individuals receiving benefits based on disability under title II of such Act [probably means title II of act Aug. 14, 1935, ch. 531, which is classified to 42 U.S.C. 401 et seq.] for whom reports of earnings were received from any source by the Commissioner in the previous calendar year, reported as a total number and separately by the source of the report;

“(2) the number of individuals for whom such reports resulted in a determination to conduct a work-related continuing disability review, and the basis on which such determinations were made;

“(3) in the case of a beneficiary selected for a work-related continuing disability review on the basis of a report of earnings from any source—

“(A) the average number of days—

“(i) between the receipt of the report and the initiation of the review;

“(ii) between the initiation and the completion of the review; and

“(iii) the average amount of overpayment, if any;

“(B) the number of such reviews completed during such calendar year, and the number of such reviews that resulted in a suspension or termination of benefits;

“(C) the number of such reviews initiated in the current year that had not been completed as of the end of such calendar year;

“(D) the number of such reviews initiated in a prior year that had not been completed as of the end of such calendar year;

“(4) the total savings to the Trust Funds and the Treasury generated from benefits suspended or terminated as a result of such reviews; and

“(5) with respect to individuals for whom a work-related continuing disability review was completed during such calendar year—

“(A) the number who participated in the Ticket to Work program under section 1148 [probably means section 1148 of act Aug. 14, 1935, ch. 531, which is classified to 42 U.S.C. 1319span–19] during such calendar year;

“(B) the number who used any program work incentives during such calendar year; and

“(C) the number who received vocational rehabilitation services during such calendar year with respect to which the Commissioner of Social Security reimbursed a State agency under section 222(d) [probably means section 222(d) of act Aug. 14, 1935, ch. 531, which is classified to 42 U.S.C. 422(d)].”

Election Under Subsection (l)(1) by Current Recipients

Puspan. L. 101–239, title X, § 10306(a)(2), Dec. 19, 1989, 103 Stat. 2484, provided that: “Not later than July 1, 1990, the Secretary of Health and Human Services shall provide every individual receiving benefits under title II of the Social Security Act [42 U.S.C. 401 et seq.] on the basis of disability by reason of blindness an opportunity to make an election under section 221(l)(1) of such Act [42 U.S.C. 421(l)(1)] (as added by paragraph (1)).”

Moratorium on Mental Impairment Reviews

Puspan. L. 98–460, § 5, Oct. 9, 1984, 98 Stat. 1801, provided that:

“(a) The Secretary of Health and Human Services (hereafter in this section referred to as the ‘Secretary’) shall revise the criteria embodied under the category ‘Mental Disorders’ in the ‘Listing of Impairments’ in effect on the date of the enactment of this Act [Oct. 9, 1984] under appendix 1 to subpart P of part 404 of title 20 of the Code of Federal Regulations. The revised criteria and listings, alone and in combination with assessments of the residual functional capacity of the individuals involved, shall be designed to realistically evaluate the ability of a mentally impaired individual to engage in substantial gainful activity in a competitive workplace environment. Regulations establishing such revised criteria and listings shall be published no later than 120 days after the date of the enactment of this Act.

“(span)

(1) Until such time as revised criteria have been established by regulation in accordance with subsection (a), no continuing eligibility review shall be carried out under section 221(i) of the Social Security Act [42 U.S.C. 421(i)], or under the corresponding requirements established for disability determinations and reviews under title XVI of such Act [42 U.S.C. 1381 et seq.], with respect to any individual previously determined to be under a disability by reason of a mental impairment, if—

“(A) no initial decision on such review has been rendered with respect to such individual prior to the date of the enactment of this Act, or

“(B) an initial decision on such review was rendered with respect to such individual prior to the date of the enactment of this Act but a timely appeal from such decision was filed or was pending on or after June 7, 1983.

For purposes of this paragraph and subsection (c)(1) the term ‘continuing eligibility review’, when used to refer to a review of a previous determination of disability, includes any reconsideration of or hearing on the initial decision rendered in such review as well as such initial decision itself, and any review by the Appeals Council of the hearing decision.

“(2) Paragraph (1) shall not apply in any case where the Secretary determines that fraud was involved in the prior determination, or where an individual (other than an individual eligible to receive benefits under section 1619 of the Social Security Act [42 U.S.C. 1382h]) is determined by the Secretary to be engaged in substantial gainful activity (or gainful activity, in the case of a widow, surviving divorced wife, widower, or surviving divorced husband for purposes of section 202(e) and (f) of such Act [42 U.S.C. 402(e), (f)]).

“(c)

(1) Any initial determination that an individual is not under a disability by reason of a mental impairment and any determination that an individual is not under a disability by reason of a mental impairment in a reconsideration of or hearing on an initial disability determination, made or held under title II or XVI of the Social Security Act [42 U.S.C. 401 et seq., 1381 et seq.] after the date of the enactment of this Act [Oct. 9, 1984] and prior to the date on which revised criteria are established by regulation in accordance with subsection (a), and any determination that an individual is not under a disability by reason of a mental impairment made under or in accordance with title II or XVI of such Act in a reconsideration of, hearing on, review by the Appeals Council of, or judicial review of a decision rendered in any continuing eligibility review to which subsection (span)(1) applies, shall be redetermined by the Secretary as soon as feasible after the date on which such criteria are so established, applying such revised criteria.

“(2) In the case of a redetermination under paragraph (1) of a prior action which found that an individual was not under a disability, if such individual is found on redetermination to be under a disability, such redetermination shall be applied as though it had been made at the time of such prior action.

“(3) Any individual with a mental impairment who was found to be not disabled pursuant to an initial disability determination or a continuing eligibility review between March 1, 1981, and the date of the enactment of this Act [Oct. 9, 1984], and who reapplies for benefits under title II or XVI of the Social Security Act, may be determined to be under a disability during the period considered in the most recent prior determination. Any reapplication under this paragraph must be filed within one year after the date of the enactment of this Act, and benefits payable as a result of the preceding sentence shall be paid only on the basis of the reapplication.”

Institution of Notification System

Puspan. L. 98–460, § 6(c), Oct. 9, 1984, 98 Stat. 1802, provided that: “The Secretary shall institute a system of notification required by the amendments made by subsections (a) and (span) [amending this section and section 1383span of this title] as soon as is practicable after the date of the enactment of this Act [Oct. 9, 1984].”

Demonstration Projects; Opportunity for Personal Appearance Prior to Disability Determinations; Report to Congressional Committees

Puspan. L. 98–460, § 6(d), (e), Oct. 9, 1984, 98 Stat. 1802, 1803, required the Secretary of Health and Human Services, as soon as practicable after Oct. 9, 1984, to implement demonstration projects in at least five States in which the opportunity for a personal appearance prior to a determination of ineligibility for disability benefits under 42 U.S.C. 421(i) or prior to initial disability determinations under 42 U.S.C. 421(a), (c), (g) and title XVI of the Social Security Act (42 U.S.C. 1381 et seq.) was substituted for the face to face evidentiary hearing required by 42 U.S.C. 405(span)(2), and to report to the appropriate committees of Congress by Dec. 31, 1986.

Promulgation of Regulations

Puspan. L. 98–460, § 9(a)(2), Oct. 9, 1984, 98 Stat. 1805, provided that: “The Secretary of Health and Human Services shall prescribe regulations required under section 221(j) of the Social Security Act [42 U.S.C. 421(j)] not later than 180 days after the date of the enactment of this Act [Oct. 9, 1984].”

Frequency of Continuing Eligibility Reviews

Puspan. L. 98–460, § 15, Oct. 9, 1984, 98 Stat. 1808, provided that: “The Secretary of Health and Human Services shall promulgate final regulations, within 180 days after the date of the enactment of this Act [Oct. 9, 1984], which establish the standards to be used by the Secretary in determining the frequency of reviews under section 221(i) of the Social Security Act [42 U.S.C. 421(j)]. Until such regulations have been issued as final regulations, no individual may be reviewed more than once under section 221(i) of the Social Security Act.”

Travel Expenses for Medical Examinations, Reconsideration Interviews, and Proceedings Before Administrative Law Judges

Provisions authorizing payment of travel expenses either on an actual cost or commuted basis, to an individual for travel incident to medical examinations, and to parties, their representatives and all reasonably necessary witnesses for travel within the United States, Puerto Rico, and the Virgin Islands, to reconsider interviews and to proceedings before administrative law judges under subchapters II, XVI, and XVIII of this chapter were contained in the following appropriation acts:

Oct. 18, 1978, Puspan. L. 95–480, title II, 92 Stat. 1582.

Sept. 30, 1976, Puspan. L. 94–439, title II, 90 Stat. 1432.

Jan. 28, 1976, Puspan. L. 94–206, title II, 90 Stat. 17.

Dec. 7, 1974, Puspan. L. 93–517, title II, 88 Stat. 1645.

Dec. 18, 1973, Puspan. L. 93–192, title II, 87 Stat. 759.

Aug. 10, 1971, Puspan. L. 92–80, title II, 85 Stat. 296.

Jan. 11, 1971, Puspan. L. 91–667, title II, 84 Stat. 2013.

Mar. 5, 1970, Puspan. L. 91–204, title II, 84 Stat. 41.

Oct. 11, 1968, Puspan. L. 90–557, title II, 82 Stat. 988.

Nov. 8, 1967, Puspan. L. 90–132, title II, 81 Stat. 402.

Nov. 7, 1966, Puspan. L. 89–787, title II, 80 Stat. 1395.

Aug. 31, 1965, Puspan. L. 89–156, title II, 79 Stat. 604.

Sept. 19, 1964, Puspan. L. 88–605, title II, 78 Stat. 974.

Oct. 11, 1963, Puspan. L. 88–136, title II, 77 Stat. 239.

Aug. 14, 1962, Puspan. L. 87–582, title II, 76 Stat. 375.

Sept. 22, 1961, Puspan. L. 87–290, title II, 75 Stat. 604.

Sept. 2, 1960, Puspan. L. 86–703, title II, 74 Stat. 769.

Aug. 14, 1959, Puspan. L. 86–158, title II, 73 Stat. 352.

Aug. 1, 1958, Puspan. L. 85–580, title II, 72 Stat. 471.

June 29, 1957, Puspan. L. 85–67, title II, 71 Stat. 221.

June 29, 1956, ch. 477, title II, 70 Stat. 434.

Aug. 1, 1955, ch. 437, title II, 69 Stat. 408.

Review of Decisions Rendered by Administrative Law Judges as Result of Disability Hearings; Report to Congress

Puspan. L. 96–265, title III, § 304(g), June 9, 1980, 94 Stat. 456, required the Secretary of Health and Human Services to implement a program of reviewing decisions rendered by administrative law judges based on hearings under subsec. (d) of this section and to report to Congress by Jan. 1, 1982, on its progress.

Assumption by Secretary of Functions and Operations of State Disability Determination Units

Puspan. L. 96–265, title III, § 304(i), June 9, 1980, 94 Stat. 457, directed Secretary of Health and Human Services to submit to Congress by July 1, 1980, a detailed plan on how he intended to assume functions and operations of a State disability determination unit when this became necessary under amendments made by this section [amending this section], and how he intended to meet requirements of section 221(span)(3) of Social Security Act [42 U.S.C. 421(span)(3)]. Such plan was to assume the uninterrupted operation of disability determination function and utilization of best qualified personnel to carry out such function, and was to include recommendations for any amendment of Federal law or regulation required to carry out such plan.