SSA has published a Notice of Acquiescence Ruling regarding Howard on behalf of Wolff v. Barnhart, 341 F.3d 1006 (9th Cir. 2003).
Pursuant to Section 1614(a)(3)(I) of the Social Security Act, in making “any determination” under title XVI of the Act “with respect to the disability of an individual who has not attained the age of 18,” the Commissioner “shall make reasonable efforts to ensure that a qualified pediatrician or other individual who specializes in a field of medicine appropriate to the disability of the individual “evaluates the case” of the individual.”
The Court of Appeals held that this section requires the ALJ to make reasonable efforts to obtain a case evaluation, based on the record in its entirety, from a pediatrician or other appropriate specialist, rather than simply evaluating the evidence in the case record on his or her own.
SSA notes that this interpretation is at odds with their understanding with the meaning of the word “determination”:
Our regulations make clear that section 1614(a)(3)(I) of the Act, 42 U.S.C. 1382c(a)(3)(I), applies only to determinations made by a State agency and not to decisions made by ALJs or AAJs (when the Appeals Council makes a decision). The words “determination” and “decision” are terms of art in our program, defined in our regulations at 20 C.F.R. 416.1401. This regulation explains that the word “determination” means the initial determination or reconsidered determination, while the term “decision” means the decision made by the ALJ or the Appeals Council. Our regulations that implement section 1614(a)(3)(I) of the Act maintain this distinction . . . “
AR 04-1(9) applies only to ALJ and AC decisions in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington).
It is effective April 26, 2004.
69 FR 22578-22580 (April 26, 2004)
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