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Federal Register / Vol. 86, No. 139 / Friday, July 23, 2021 / Rules and Regulations You may submit comments by any one of three methodsinternet, fax, or 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.
SSA20210010 so that we may associate your comments with the correct rule.
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.
1. Internet: We strongly recommend that you submit your comments via the internet. Please visit the Federal eRulemaking portal at http
www.regulations.gov. Use the search function to find docket number SSA
20210010. 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 comments to be viewable.
2. Fax: Fax comments to 410 966
2830.
3. Mail: Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 212356401.
Comments are available for public viewing on the Federal eRulemaking portal at http www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified in FOR FURTHER
INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT:
Edward Sosar, Office of Regulations and Reports Clearance, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 212356401, 410 9662341. For information on eligibility or filing for benefits, call our national toll-free number, 1800772
1213 or TTY 18003250778, or visit our internet site, Social Security Online, at http www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: The Secretary of Health and Human Services issued a determination under section 319 of the Public Health Service Act on January 31, 2020 that a national public health emergency exists as of January 27, 2020 because of the COVID19
pandemic.1 The Secretary has renewed his determination several times since
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ADDRESSES:

1 https www.phe.gov/emergency/news/
healthactions/phe/Pages/2019-nCoV.aspx.

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then, most recently on July 19, 2021
effective July 20, 2021.2 We are issuing this temporary final rule to address the ongoing effects of the COVID19
national public health emergency. The effective date of this temporary final rule will help us ensure that we provide affected claimants with the benefit of the flexibilities offered by this rule. On April 1, 2021, we instructed our adjudicators to temporarily hold claims in which all elements of musculoskeletal disorders listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20C, 101.20D, 101.22, or 101.23 were present within a consecutive 12-month period, but not within a consecutive 4-month period, and it was not possible to process a fully favorable determination or decision in some other way. By holding claims that would benefit from the flexibilities in this rule, we will process claims affected by this rule on or after the effective date of this rule. As we explain in more detail below, we will continue to apply this rule until 6
months after effective date of a determination by the Secretary of Health and Human Services under section 319
of the Public Health Service Act that the national public health emergency related to the COVID19 pandemic no longer exists.
Background On December 3, 2020, we published the final rule, Revised Medical Criteria for Evaluating Musculoskeletal Disorders, which became effective on April 2, 2021, revising the criteria in the listings that we use to evaluate disability claims involving musculoskeletal disorders in adults and children at the third step of our sequential evaluation process under titles II and XVI of the Social Security Act Act.3 The final rule, among other things, revised the listings in response to the decision in Radford v. Colvin, 734
F.3d 288 4th Cir. 2013. The final rule required that, for the purposes of applying certain listings,4 all of the required medical criteria must be present simultaneously, or within a close proximity of time, to satisfy the level of severity needed to meet the listing.5 We defined the phrase within a close proximity of time to mean that all of the relevant criteria must appear in the medical record within a 2 https www.phe.gov/emergency/news/
healthactions/phe/Pages/COVID-19July2021.aspx.
3 85 FR 78164 2020.
4 Listings 1.15, 1.16, 1.17, 1.18, 1.20C, 1.20D, 1.22, 1.23, 101.15, 101.16, 101.17, 101.18, 101.20D, 101.22, and 101.23.
5 See 20 CFR appendix 1 to subpart P of part 404
1.00C7b and 101.00C7b.

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consecutive 4-month period emphasis in original.6 We also provided that when the criterion is imaging, we mean that we could reasonably expect the findings on imaging to have been present at the date of impairment or date of onset. 7
We established the consecutive 4month period as a criterion to meet the level of severity in the listings based on our extensive research of relevant medical literature and clinical guidelines. In our notice of proposed rulemaking, we also specifically asked interested members of the public to comment on this issue and provide us with any studies and data that supported their comments; 8 however, no studies or data were submitted. In the final rule, we concluded that the consecutive 4-month period is consistent with instructions providers receive for scheduling patients,9 the general standard of care,10 and the frequency of healthcare visits by individuals with musculoskeletal conditions.11 At the same time, the consecutive 4-month period in the rules provides some leeway for the claimant, because the standard for patient revisits is once every 3 months.12 Our rules recognize that one visit alone may not ensure all necessary criteria required for a medical listing will be appropriately documented; however, the consecutive 4-month time period provides a sufficient period to ensure the criteria are present within a close proximity of time and that the claimants 6 Id.
7 Id.
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FR 20646, 20647 May 7, 2018.
FR at 78169 n.37 citing Bavafa, H., Savin, S., & Terwiesch, C. 2019. Redesigning Primary Care Delivery: Customized Office Revisit Intervals and E-Visits. https dx.doi.org/10.2139/
ssrn.2363685. Paper referenced by Bavafa:
Schectman, G., G. Barnas, P. Laud, L. Cantwell, M.
Horton, E.J. Zarling. 2005. Prolonging the return visit interval in primary care. The American Journal of Medicine, 1184 393399.
10 85 FR at 78169 n.34 citing Gore, M., Sadosky, A., Stacey, B.R., Tai, K.S., & Leslie, D. 2012. The burden of chronic low back pain: Clinical comorbidities, treatment patterns, and health care costs in usual care settings. Spine, 3711, E668
E677. https doi.org/10.1097/
BRS.0b013e318241e5de.
11 85 FR at 78169 n.35 citing BMUS: The Burden of Musculoskeletal Diseases in the United States. In:
BMUS: The Burden of Musculoskeletal Diseases in the United States internet. cited 15 July 2020.
https www.boneandjointburden.org/fourthedition/viiic2/utilization-condition-group.
12 See 85 FR at 78169 n.36 citing J Gen Intern Med. 1999 Apr; 144: 230235. doi: 10.1046/
j.15251497.1999.00322.x Lisa M Schwartz, MD, MS, Steven Woloshin, MD, MS, John H Wasson, MD, Roger A Renfrew, MD, and H Gilbert Welch, MD, MPH, Dartmouth Primary Care Cooperative Research Network.
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