Federal Register: October 29, 2007 (Volume 72, Number 208)
DOCID: fr29oc07-21 FR Doc E7-20690
SOCIAL SECURITY ADMINISTRATION
U.S. Citizenship and Immigration Services
CFR Citation: 20 CFR Parts 404, 405, and 416
Docket ID: [Docket No. SSA 2007-0044]
RIN ID: RIN 0960-AG52
NOTICE: Part II
DOCUMENT ACTION: Notice of proposed rulemaking.
Amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals Levels
DATES: To be sure that we consider your comments, we must receive them no later than December 28, 2007.
We propose to include in parts 404 and 416 of our rules many of the hearing level procedures now in place for disability cases in the Boston region. This change will expand those rules nationwide and apply them to hearings on both disability and nondisability matters. We expect these rules will make the hearings process more efficient and help us reduce the hearings backlog, which has reached historic proportions, thereby benefiting all individuals requesting a hearing. We also propose to amend our rules governing the final level of the administrative review process to make proceedings at that level more like those used by a Federal appellate court when it reviews the decision of a district court, to establish procedures for appeals to that level, and to change the name of the body that will hear such appeals from the ``Appeals Council,'' or the ``Decision Review Board'' in the Boston region, to the ``Review Board.'' Consistent with the change to a more truly appellate process, we suggest limiting the circumstances in which new evidence may be added to the record during the appeals process. We also propose circumscribing the time period covered in any subsequent administrative hearing on remand from the Review Board or a Federal court to the time period covered by the first administrative law judge's (ALJ) hearing decision in the case.
Social Security Administration,
The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html .
As part of our ongoing commitment to improve the way we process claims for benefits under the old age, survivors, and disability insurance programs under title II of the Social Security Act (Act) and the supplemental security income (SSI) program under title XVI of the Act, we propose to revise the procedures at the ALJ hearing level to improve the decisionmaking process and change the final step in our fourtiered administrative structure for adjudicating claims for benefits. Our workloads at the ALJ hearing level have continued to grow, as have requests for review of those hearing decisions. We expect even further increases in those workloads as the baby boom generation advances through their disabilityprone years. Along with our electronic disability (eDib) process, we anticipate that these changes will help us conduct hearings and issue decisions more effectively. We are continually reviewing our processes to find ways to handle these workloads more effectively, and this proposal is another step toward better service.
Our administrative procedures in parts 404 and 416 generally provide three levels of administrative review for individuals dissatisfied with the initial determination on their claims for Social Security benefits or SSI payments. First, the individual may request reconsideration, in which the State agency takes a fresh look at the initial determination. Second, the individual may request a hearing before an ALJ. Third, if the individual remains dissatisfied after the ALJ's hearing decision, our longstanding rules give the individual the right to request review of that decision by the Appeals Council. If the individual requests such a review, the Appeals Council may grant the request and issue the Agency's final decision in the case, grant the request and remand the case to an ALJ for further proceedings, or deny the request for review. If the Appeals Council denies the individual's request that it review the decision of the ALJ, the decision of the ALJ becomes our final decision.
In March 2006, we issued final rules that implemented a new administrative structure for adjudicating claims for disability benefits in the Boston region. Under those final rules in part 405 of our regulations, we provide two levels of administrative review of State agency initial determinations for individuals in the Boston region who are dissatisfied with the initial determination on their claims for Social Security benefits or SSI payments. First, the individual may request review by a Federal reviewing official. Second, if dissatisfied with the decision of the Federal reviewing official, the individual may request a hearing before an ALJ. Unless the ALJ's decision is selected for review by the Decision Review Board, as discussed below, the decision of the ALJ is our final decision in these cases.
The March 2006 final rules also implemented new ALJ hearing level procedures in the Boston region and included a new approach, the Decision Review Board, for the final level of our adjudicative structure. 70 FR 16424 (March 31, 2006). We received numerous public comments on our proposal for these new procedures, and we made various changes based on the public comments. For a discussion of the comments and our changes, see 71 FR 16424, 16428 and 1643416437.
Our experience has been that some aspects of the new procedures
have been beneficial, while others have not worked as well as we had
anticipated. Having thoroughly reviewed our entire administrative
adjudicative procedure, we believe that we need to modify some aspects
of those procedures, extend what is working well to the rest of the country, and make changes where we
can make our processes better. In this proposed rule, we propose to retain many of the March 2006 changes we made to the hearing level because we still believe they will make the hearings more efficient and allow us to provide better service to the increasing number of individuals who have requested ALJ hearings.
On the other hand, we propose to transform the Decision Review Board and the Appeals Council into the Review Board. Although we have limited experience with the Decision Review Board at this time because it has been in operation only in the Boston region and only for the past year, we are concerned that we will have to test it for many years before we are able to determine whether to roll it out nationwide. This concern arises primarily because of the difficulties in designing a predictive model that will identify the most problematic cases. In the Boston region, we committed to 100% review of all ALJ decisions by the Decision Review Board, which we obviously would not be able to sustain in a nationwide rollout, especially at a time when the number of cases pending at the hearing level exceeds 700,000, which is higher than it has ever been in our history. Consequently, we propose to end the Decision Review Board experiment in favor of allowing traditional appeals.
In this document, we address the ALJ hearing level and the final level of our administrative adjudicative process. If we finalize these rules, we plan to use these procedures nationwide and remove the corresponding provisions in part 405 of our regulations. (Part 405 describes the disability service improvement initiative that was implemented in our March 31, 2006 final rules.)
We propose to apply to all disability and nondisability cases nationwide many of the hearing level procedures we adopted for disability claims received after July 31, 2006 in the Boston region. We also propose to replace both the Appeals Council and the Decision Review Board with a new adjudicative body to be named the ``Review Board.'' In this notice of proposed rulemaking, we have included proposed regulation language that would accomplish the substantive changes we propose. We also have included the conforming changes we believe are needed in subpart J of part 404 and subpart N of part 416 of our regulations. We recognize that additional changes of a technical or ``housekeeping'' nature will be required throughout our regulations such as replacing references to the ``Appeals Council'' with references to the ``Review Board,'' and if we adopt these proposed changes as final rules, we will make those additional changes at that time. Submitting Evidence to the ALJ
One of the major changes that we are proposing addresses the time frames for submitting evidence to the ALJ. Our current rule states that, if possible, an individual should submit the evidence, or a summary of the evidence, within 10 days after filing the request for a hearing. In many cases, however, individuals submit evidence to us well after that time frame.
Our program experience has convinced us that the late submission of evidence to the ALJ significantly impedes our ability to issue hearing decisions in a timely manner. When new and voluminous medical evidence is presented at the hearing or shortly before the hearing, the ALJ and any other person who will be participating in the hearing, such as a medical or vocational expert, do not have the time needed to review the record and adequately prepare for the hearing. We often must reschedule the hearing, which not only delays the decision on that case, but also delays the hearings of other individuals.
To ensure individuals have adequate time in which to prepare for the hearing and meet the deadlines for submitting evidence, we propose requiring ALJs to notify an individual of the time and place of the hearing at least 75 days before the date of the hearing, unless the individual agrees to a shorter notice period. The notice of hearing also will specify the issues to be decided at the hearing. This proposed rule provides that if an individual objects to the time or place of the hearing, the individual should notify the ALJ in writing as soon as possible after receiving the notice of hearing, but no later than 30 days after receiving that notice. If the individual objects to the issues to be decided at the hearing, the individual would be required to notify the ALJ in writing at least 5 business days prior to the hearing date.
Individuals would be encouraged to submit evidence as soon as possible after they file their request for a hearing. Nevertheless, no later than 5 business days before the hearing, they must submit all of the evidence to be relied upon in a case. We believe this deadline is reasonable because we also propose to require the ALJ to notify the individual of the hearing date at least 75 days before the hearing.
The 5day time limit for submitting evidence would be subject to exceptions, depending on when the individual attempts to present the additional evidence. If the individual requests to submit evidence within the 5 business days immediately preceding the hearing, the ALJ would accept and consider the evidence if:
1. Our action misled the individual (for example, if the wrong notice was accidentally sent to you, or you were provided
misinformation over the phone);
2. The individual had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or
3. Some other unusual, unexpected, or unavoidable circumstance beyond the individual's control prevented the individual from submitting the evidence earlier.
If the individual requests to submit evidence after the hearing but before the hearing decision is issued, the ALJ would accept and consider the evidence if the individual makes one of the three showings above and there is a reasonable possibility that the evidence would affect the outcome of the case.
Requesting an ALJ Hearing
Our proposed rule slightly amends the list of things we request when an individual files a written request for a hearing. Our proposed rule provides that, if disability is an issue in the case, the individual should include a statement of the medically determinable impairment(s) that he or she believes prevents him or her from working. The proposed rule also specifies that the individual should include his or her name and social security number. Like the current rule, the proposed rule provides that the individual should include the name and social security number of the wage earner under whose account the claim is filed, any evidence that is available to the individual; and the name and address of the individual's representative, if any. Prehearing Statements and Conferences
Our proposed rule adds a provision for prehearing statements. At any time before the hearing begins, an individual could submit, or the ALJ could request the individual to submit, a prehearing statement on the issues arising in the case. In this statement, the individual should briefly discuss the issues; describe the supporting facts; identify witnesses; explain the evidentiary and legal basis upon which he or she believes the ALJ should find in his or her favor; and provide any other comments, suggestions, or information that might assist in preparing for the hearing.
Our proposed rule continues to provide for prehearing conferences. As under the current rule, the ALJ could decide on his or her own initiative or at an individual's request to conduct a prehearing conference if the ALJ believes that such a conference would facilitate the hearing or the decision in a case.
During these conferences, the ALJ would consider matters that may expedite the hearing, such as simplifying or amending issues or obtaining and submitting evidence. The ALJ would summarize in writing, or on the record at the hearing, the actions taken or to be taken as a result of the conference. The proposed rule also states that if neither the individual nor the representative appears for the prehearing conference and there is not a good reason for the failure to appear, such as a death or serious illness in your immediate family or the destruction of important records by fire or other accidental cause, the individual's hearing request might be dismissed.
The purpose of these provisions would be to ensure that each individual's hearing is as fair, timely, and comprehensive as possible. Both individuals and the Agency would have the responsibility to work toward this objective.
The main differences between our current rule on prehearing conferences and the proposed rule are the provisions for conference by telephone and the notice requirement. The proposed rule provides that prehearing conferences normally would be held by telephone, unless the ALJ were to decide that it would be more efficient and effective to conduct the prehearing conference in a different manner. Additionally, we propose to change the notice requirement to ``reasonable notice.'' It has been our experience that the current requirement (7 days notice unless the parties indicate in writing that they do not wish to receive written notice of the conference) is too rigid to accommodate many situations where a conference would be beneficial and the parties agree to the time and place of the conference.
Appearing at the ALJ Hearing
Like the current rule, this proposed rule provides that, when setting the time and place of the hearing, the ALJ would determine whether an individual would appear at the hearing in person or by video teleconference. Also like the current rule, this proposed rule provides that, if the individual who requested the hearing objects to appearing by video teleconference, the ALJ would reschedule the hearing to allow that individual to appear in person. The proposed rule differs from the current rule in that it specifies that the ALJ may direct a witness, other than the individual who requested the hearing, to appear by video teleconference if: (1) Video teleconference is available, (2) use of the technology would be more efficient than conducting an examination of a witness in person, and (3) the ALJ determines that there is no other reason why a video hearing should not be conducted. We believe that the ability to conduct hearings via video teleconference would provide us with greater flexibility in scheduling and holding hearings, improve hearing process efficiency, and extend another service delivery option to individuals requesting a hearing. Greater efficiency would be achieved through savings in ALJ travel time, faster case processing, and higher ratios of hearings held to hearings scheduled.
Our proposed rule also differs from the current rule by providing
that the ALJ may direct the individual who requested the hearing to
appear at the hearing by telephone under extraordinary circumstances
where appearing in person is not possible and video teleconference is
not available. For example, an ALJ may direct an individual who is
incarcerated to appear at the hearing by telephone if the facility in
which the individual is incarcerated will not allow a hearing to be held at the facility and the facility does not have video
teleconference technology. The proposed rule also provides that, if the individual who requested the hearing objects to any other person appearing by telephone, the ALJ could overrule the objection. Posthearing Conferences
Our proposed rule continues to provide for posthearing conferences. The individual could request, or the ALJ could decide, to hold a posthearing conference to facilitate the hearing decision. Like the prehearing conference proceedings, if neither the individual nor the representative were to appear at the posthearing conference and there was no good reason for failing to appear, the ALJ would make a decision based on the hearing record.
As in the prehearing conference provisions discussed above, the main differences between our current rule and the proposed rule are the provisions for conference by telephone and the notice requirement. The proposed rule provides that posthearing conferences normally would be held by telephone, unless the ALJ were to decide that it would be more efficient and effective to conduct the posthearing conference in a different manner. Additionally, we propose to change the notice requirement to ``reasonable notice,'' for the reasons discussed earlier in the section on prehearing statements and conferences.
Holding the Record Open
In addition, this proposed rule specifies that the ALJ would retain discretion at the time of the hearing to hold the record open for the submission of additional evidence. If an individual were aware of any additional evidence that the individual was unable to obtain and submit before or at the hearing or if the individual were scheduled to undergo additional medical evaluation after the hearing for any impairment that forms the basis of the case, the individual should inform the ALJ of the circumstances during the hearing. If the individual were to request additional time to submit the evidence, the ALJ could exercise discretion and choose to keep the record open for a defined period of time to give the individual the opportunity to obtain and submit the additional evidence. Once the additional evidence was received, or if no evidence was received during the defined period, the ALJ would close the record and issue a decision. The ALJ may also take other necessary action, such as holding a supplemental hearing to receive further testimony. These procedures are not new. The proposed rule merely formalizes them in our rules.
The ALJ Decision
Under our current rule, the ALJ must issue a written decision that gives the findings of fact and the reasons for the decision, may enter a wholly favorable oral decision into the record under certain circumstances, and may send a recommended decision to the Appeals Council. Our proposed rule would specify that the ALJ must explain, in clear and understandable language, the reasons for his or her decision. It would continue to allow the ALJ to enter a wholly favorable oral decision into the record under certain circumstances. It would remove the provision for recommended decisions, except on remand by direction of the Review Board. In our experience, issuance of a recommended decision is only rarely appropriate, and therefore its use should be permitted only where the Review Board directs.
The Review Board's Role
Our current regulations in parts 404 and 416 provide that an
individual who is dissatisfied with the decision of the ALJ on the claim can file a request
asking the Appeals Council to review the ALJ's decision. Those regulations further provide that the Appeals Council will grant the claimant's request and review the case if there appears to be an abuse of discretion by the ALJ, if there is an error of law, if the actions, findings, or conclusions of the ALJ are not supported by substantial evidence, or if there is a broad policy or procedural issue that may affect the general public. If the Appeals Council does review the case, it may issue a decision affirming, modifying, or reversing the ALJ's decision, or it may vacate the ALJ's decision and remand the case for further proceedings. If the Appeals Council determines that the criteria for granting review are not met, however, the Appeals Council may simply deny the claimant's request for review and allow the ALJ's decision to become the final decision of the Commissioner. The Appeals Council is composed of administrative appeals judges.
Our regulations in part 405 (governing the new process applicable to certain claims in the Boston region) replaced that Appeals Council step with a new body called the Decision Review Board. A claimant has no right to ask the Decision Review Board to review the ALJ decision in his or her case. Rather, the Decision Review Board selects the decisions it will review, with an emphasis on claims where there is an increased likelihood of error or that involve the application of new policies, rules, or procedures. (Because the procedures in part 405 are so new, however, the Decision Review Board initially has been selecting all ALJ hearing decisions for review.) If the Decision Review Board selects a case for review, it may either affirm the ALJ's decision, issue a new decision that affirms, reverses, or modifies the decision of the ALJ, or remand the case to an ALJ for further proceedings. Additionally, if the Decision Review Board does not complete its action on a case within 90 days of the date the claimant received notice that the ALJ's decision would be reviewed, the decision of the ALJ becomes the final decision of the Commissioner. The Decision Review Board is composed of both administrative appeals judges and ALJs.
We propose to replace both the Appeals Council and the Decision Review Board with a new body, the Review Board. Like the Appeals Council, the Review Board members will be administrative appeals judges (as defined in 20 CFR 405.5). In contrast to our current rules for the Appeals Council and the Decision Review Board, we propose to give any party who receives a hearing decision that is unfavorable, in whole or in part, or whose request for hearing was dismissed, the right to appeal that decision or dismissal to the Review Board and have the Review Board review their case. However, we are proposing changes to make the nature of the review at that level more like the review an appellate court would give to a district court decision that has been appealed to it. These changes would focus Agency resources on correcting significant errors that change the outcome of a case and avoid further administrative proceedings that serve only to correct harmless errors in an otherwise appropriate denial of benefits.
Specifically, we propose to extend the additional evidence requirements we are proposing for the hearing level to the Review Board level, with a further restriction that additional evidence offered by the individual may be accepted by the Review Board only if there is a reasonable probability that it, alone or when considered with the other evidence of record, would change the outcome of the decision.
We also propose that the Review Board will review the factual findings of the ALJ using the substantial evidence test. Under that test, the Review Board will accept a finding of fact made by the ALJ if a reasonable mind might accept that finding as adequately supported by the evidence in the case, even if a different conclusion of fact might also be supported by the evidence. We propose that the Review Board will review any purely legal questions, such as the proper interpretation of Agency regulations or policy, as if it were considering the question for the first time, without any deference to the ALJ's conclusion on the issue. We also propose a harmless error rule the Review Board would apply when considering error either in the admission or exclusion of evidence, or error, defect, or omission in any ruling or decision of the ALJ. Under this rule, no such error would be grounds for vacating, modifying, or reversing an otherwise appropriate ruling or decision of the ALJ unless, in the opinion of the Review Board, there is a reasonable probability that the error, alone or when considered with other aspects of the case, changed the outcome of the decision. The Review Board would notify the parties in writing of its action on the appeal and would explain the basis for its action in that notice.
In any case appealed to the Review Board, we propose that the Review Board will consider that appeal and either (1) issue a new decision affirming, modifying, or reversing the decision of the ALJ, (2) remand the matter to an ALJ for further proceedings, or (3) where the Review Board has concluded that there is no significant error in the ALJ's decision and no significant legal or factual issues that warrant additional discussion, summarily affirm the decision and analysis of the ALJ without issuing a separate opinion of its own. This differs from our current rules for the Appeals Council in that, unlike the Appeals Council, the Review Board may not simply decline the individual's request that it review the ALJ's decision. In these proposed rules, we describe the procedures for appealing an ALJ's hearing decision or dismissal to the Review Board, the procedures the Review Board will follow during the appeal, the possible actions the Review Board may take, and the effect of those actions.
Our intent with these changes is to make the Review Board's role
more analogous to that of an appellate court reviewing the decision of
the trial court. We believe that this approach will provide individuals
a full opportunity to have the Review Board address any significant
error by the ALJ that the individual believes led to a wrong decision
in the case, while still giving appropriate deference to the ALJ's
factual findings. Because this approach would allow the Review Board to
focus its efforts on significant errors that may have affected the
outcome of the case, we believe this approach represents the best use
of the Review Board's limited resources. Toward that end, our proposed
rules encourage, but do not require, parties to include with their
appeal a written statement that identifies the errors the party
believes were made by the ALJ, explains why the alleged errors warrant
action by the Review Board under the standards of review described
above, and cites applicable law or facts to support the party's position.
Closing the Evidentiary Record at the Time of the ALJ Decision
We propose to limit a party's ability to submit new evidence to the Review Board to the same extent the final rules published March 31, 2006 limited submission of new evidence following the first ALJ decision. Specifically, we propose that following the first ALJ decision in a case (whether that decision is subsequently overturned or not), we will accept additional evidence from a party only if:
The proposed rules differ somewhat from our current rules for submitting evidence to the Appeals Council. Under our current rules, the Appeals Council will accept new evidence only if it relates to the period on or before the date of the ALJ decision. The proposed rules contain the same restriction that the evidence must relate to the period on or before the date of the ALJ decision, but they also require the individual to show that there is a reasonable probability that the evidence would change the outcome of the decision and that there was some good reason, as described above, that the individual could not have submitted the evidence earlier.
This limitation would apply only to evidence offered by a party. Should the Review Board believe additional evidence is needed to decide the issues in the case, it will be able to obtain that evidence itself or remand the case to an ALJ to obtain the evidence, and any evidence so obtained would be made part of the evidentiary record.
Also, we propose to revise our rules on reopening to make them
consistent with these proposed limits on an individual's ability to
submit new evidence after a hearing decision or dismissal.
Specifically, we propose to remove ``new and material evidence'' as a
basis for reopening any decision made at the hearing or Review Board
levels on a claim for benefits based on disability. We believe this
change is necessary because without it, a claimant who submits
additional evidence to the Review Board that does not meet the standard
described above for admitting the evidence would be able to circumvent
our limits simply by asking to have our final decision reopened based on the additional evidence we declined to admit.
Limiting the Period of Time Covered by the Review Board's Adjudication and Adjudication Following Administrative or Court Remands
When cases are remanded for further proceedings, either from a Federal court or the Appeals Council, our current rules allow ALJs and the Appeals Council to consider changes in the individual's condition after the date of the first ALJ decision on the claim, such as an increase in severity of the claimant's original impairment(s) or the development of a new impairment. Under our current rules, for example, when the Appeals Council grants an individual's request that it review the decision made by an ALJ and finds reasons to reverse that decision and remand the case for further proceedings, it has typically ``vacated'' the decision of the ALJ. As a result, we consider the case during the subsequent proceedings on remand as if the earlier ALJ's decision had not been issued. This same situation may arise where a Federal court remands a case for further proceedings. In practical terms, this approach allowed individuals to continue to submit evidence freely throughout the subsequent proceedings or to attempt to establish an onset of disability even after the date of the first hearing decision.
It became possible, therefore, for the final decision on remand to be based on evidence submitted well after the evidentiary record should have closed, on evidence that related to a period of time after the date of the hearing decision that was reviewed, or even on evidence of a physical or mental impairment that did not begin until after the date of the hearing decision that was reviewed. This openended approach is administratively very inefficient, as we often are reviewing ALJ decisions based on evidence not presented to the ALJ.
The approach we are proposing in this rule would modify that process. We believe that the first ALJ hearing decision on a claim for benefits, regardless of whether that decision becomes our final decision, generally must close both the evidentiary record (as discussed above) and the period of time within which the claimant must establish entitlement to the benefits sought. Therefore, we propose in these rules that throughout any appeal to the Review Board, and during any subsequent administrative proceedings on remand from the Review Board or a Federal court, the proceedings will consider only the claimant's eligibility for benefits on or before the date of that first ALJ hearing decision on the claim for benefits.
We believe this proposed closing of the record will not unduly disadvantage claimants. Consistent with existing policy, claimants applying for disability benefits who experience a worsening of condition or new impairments during the intervening time between the ALJ decision and the Review Board's decisionor while the case is pending on remandmay file a new claim for benefits. The average processing time for initial determinations by State agencies is currently faster than the average processing time for Appeals Council review, particularly when cases are remanded. If these proposed rules become final, we plan to modify the notices we send to claimants when their cases are denied or remanded to ensure that claimants are aware that they can file new applications. We welcome comments from the public about how we can best ensure that claimants understand their right to file new applications while prior applications are pending review.
The changes we are proposing are consistent with the governing statute. Specifically, sections 202(j) and 223(b) of the Act provide that an individual's claim for benefits may be allowed only if the claimant satisfies the requirements for ``before a decision based upon the evidence adduced at the hearing is made (regardless of whether such decision becomes the final decision of the Commissioner of Social Security).'' This proposed approach would be consistent with the role we envision for the Review Board, which would be to review a decision that has already been made, based on a record that has already been developed, for the precise period of time considered by the ALJ who made the decision that is being reviewed.
Removal of Special Provision for Cases Remanded by a Court
Our current rules (Sec. Sec. 404.984 and 416.1484) contain a
separate process for further administrative review of hearing decisions
made after a remand by a Federal court. Under those rules, when a
Federal court has remanded a case to the Commissioner for further
proceedings, and the Appeals Council in turn has remanded the case to
an ALJ, the ALJ's decision on remand becomes the final decision of the
Commissioner unless, within 30 days of the date the claimant receives
notice of the decision, the claimant files written exceptions asking
the Appeals Council to review the ALJ's decision or, within 60 days of
the date of the ALJ's decision, the Appeals Council notifies the
claimant that it has taken jurisdiction of the case. That procedure
replaced earlier procedures which generally required ALJs to issue
recommended decisions in all court remands, even when the ALJ's
decision on remand was favorable to the claimant. Our intent when we
adopted the current process in 1989 was primarily to eliminate the requirement that ALJs issue recommended decisions
and thus permit favorable ALJ decisions on remand to be effectuated more quickly.
In the interests of administrative efficiency, we believe it is better to have one uniform appeal process for all of our cases. As discussed earlier, we are proposing to eliminate the option for ALJs to issue recommended decisions, except on remand by direction of the Review Board. Therefore, the rationale for our current special procedure for cases remanded by a Federal court no longer applies in cases where the ALJ's decision is favorable to the claimant. Those favorable decisions would be effectuated promptly under our proposed procedures, without the need for action by the Review Board. However, cases where the ALJ's decision on remand is unfavorable and the claimant continues to disagree are ones we believe the Review Board should see before the case goes back to court. We believe it is important to ensure that our policies have been applied consistently and that the problems identified by the court have been addressed before the case returns to Federal court. Therefore, we propose to remove Sec. Sec. 404.984 and 416.1484, and instead channel any further review of these hearing decisions through the Review Board appeal process described above.
Advisory Function for Review Board
The Review Board's primary function will be to adjudicate the cases that come before it pursuant to an appeal by the claimant or when the Review Board selects the case for review on its own initiative under the procedure described in proposed Sec. Sec. 404.970 and 416.1470. We anticipate that the Review Board's work also will provide its members with a unique and valuable perspective on the issues, policies, or procedures that may tend to impede the efficient and consistent adjudication of cases at all levels of our administrative adjudicative process. Therefore, we propose as an additional function of the Review Board that it may from time to time make recommendations for changes in policy or procedure that it believes may improve the efficiency and consistency of our adjudicative process. We do not intend to establish a specific process for this advisory function in the regulations themselves, as we believe the structure for such internal deliberations must be kept as flexible as possible. We currently anticipate that the Review Board would make such recommendations through the Deputy Commissioner for Disability Adjudication and Review or her designee, and would consider in its recommendations any anecdotal case experiences and any relevant statistical information that is available to the Review Board. However, we would welcome any suggestions as to how this advisory function might best be implemented.
Comparison of Current and Proposed Policy
The table below summarizes the changes we are proposing to make to
the hearings and appeals provisions discussed above. In the table, we
first summarize the current process and then describe the proposed process.
Topic (outside the Boston Proposed policy region)
Three Levels of Disability 1. Reconsideration 1. Reconsideration Appeals. (except in (unchanged). prototype states 2. ALJ hearing where no Notify claimant at reconsideration). least 75 days prior 2. ALJ Hearing to hearing. ``Time Notify claimant at and place'' least 20 days prior objections no later to hearing. than 30 days after Claimant makes any receipt of notice. ``time, place or ``Issues'' issue'' objections objections at least ``at the earliest 5 days before possible hearing. opportunity''. 3. Review Board. 3. Appeals Council..
Requesting an ALJ Hearing... Request must be in Request must be in writing and should writing and should include the name, include claimant's SSN of the wage name and SSN, the earner; the reasons name and SSN of the you disagree with wage earner if the the previous case concerns determination or benefits under decision; a another person's statement of account, the additional evidence specific reasons to be submitted and you disagree with the date it will be the reconsidered submitted; and the determination, name and address of description of any designated impairment (if representative. disability), any The request must be available evidence, filed within 60 name and address of days after the date representative, if claimant receives any.
notice of the The request must be previous filed within 60 determination or days after the date decision. The time claimant receives can be extended. notice of the Good cause applies.. reconsidered The ALJ may decide determination. The case without an time can be oral hearing if extended. Good claimant waives cause applies. right to appear.. The ALJ may decide case without an oral hearing if claimant waives right to appear. Submitting Evidence......... ALJ accepts evidence ALJ will accept up to and including evidence submitted day of hearing. ALJ at least 5 business may choose at days before the hearing to hold hearing. ALJ will record open for a accept evidence defined time period submitted within if claimant advises the 5 business days additional material before the hearing evidence if there is good forthcoming. ALJ cause for late may hold submission. ALJ supplemental will accept hearing or take evidence submitted other action. after the hearing In proceedings on but before the remand from the hearing decision is Appeals Council or issued if there is a Federal court, good cause for late ALJ accepts submission and evidence relating there is a to period following reasonable first ALJ decision.. possibility that Appeals Council the evidence would accepts new and affect the outcome material evidence of the case. ALJ relating to the may choose at period on or before hearing to hold the date of the ALJ record open for a hearing decision.. defined time period if claimant advises additional material evidence forthcoming. ALJ may hold supplemental hearing or take other action. In proceedings on remand from the Review Board or a Federal court, ALJ will not accept evidence relating to period following first ALJ decision. Review Board will accept evidence only if it relates to the period on or before the date of the first ALJ decision, there is a reasonable probability that the evidence would change the outcome of the case, and there is good cause for late submission. [[Page 61224]]
Prehearing Statements and Claimant can submit Claimant can submit, Conferences. a written summary or ALJ can request of the case or that claimant written statements submit, a about the facts and prehearing law material to the statement case. describing why the ALJ can decide on claimant disagrees his or her own, or with the at the request of reconsidered any party, to hold determination. a prehearing Statement should conference. The ALJ discuss briefly generally must tell issues involved in the parties of the the proceeding, time, place, and facts, witnesses, purpose of the the evidentiary and conference at least legal basis upon 7 days in advance. which claimant There is no believes the ALJ sanction if the should decide the claimant/ case in claimant's representative does favor, and any not appear. Current other comments, regulation is suggestions, or silent as to information that whether the might assist the conference is held ALJ in preparing in person or by for the hearing. telephone. A record ALJ can decide on of the conference his or her own, or is made.. at the claimant's request, to conduct a prehearing conference if the ALJ finds that a conference would facilitate the hearing or the decision. The ALJ will give claimant reasonable notice of the time, place, and manner of the conference. If neither claimant nor representative appears, hearing might be dismissed. Good cause applies. The conference will normally be held by telephone. The ALJ will summarize in writing, or on the record at the hearing, the actions taken or to be taken as a result of the conference. Appearance at Hearing....... ALJ determines ALJ determines whether claimant whether claimant or and any other any other witness witness will appear will appear in in person or by person, by VCT, or video by telephone. ALJ teleconference will only direct (VCT). Claimant can claimant to appear object to time or by telephone if place of the claimant's hearing. Objection appearance in must be made at the person is not earliest possible possible (e.g., opportunity before claimant is the hearing. ALJ incarcerated and will change time or facility will not place of hearing if allow a hearing at there is good cause the facility) and to do so. If VCT is not claimant objects to available. Claimant appearing by VCT, can object to time ALJ will reschedule or place of the hearing for in hearing. Objection person appearance. must be in writing and made no later than 30 days after receipt of notice of hearing. ALJ will consider claimant's reasons for requesting change and the impact of the proposed change on the efficient administration of the hearing process. If claimant objects to appearing by VCT, ALJ will reschedule hearing for in person appearance. If claimant objects to another witness appearing by VCT or telephone, ALJ will decide whether to have that person appear in person, by VCT, or by telephone. Posthearing Conferences..... ALJ can decide on ALJ can decide on his or her own, or his or her own, or at the request of at the claimant's any party, to hold request, to hold a a posthearing posthearing conference. The ALJ conference to generally must tell facilitate the the parties of the hearing decision. time, place, and The ALJ will give purpose of the claimant reasonable conference at least notice of the time, 7 days in advance. place, and manner Current regulation of the conference. is silent as to If neither claimant whether the nor representative conference is held appears and there in person or by is no good cause telephone. A record for failure to of the conference appear, ALJ will is made. decide on record. The ALJ Decision............ The ALJ must issue a ALJ must issue a written decision written decision which gives the that explains in findings of fact clear and and the reason for understandable the decision; made language the reason part of the record. for decision; made Exception is oral part of record. (bench) fully Exception is oral favorable decision (bench) fully issued at the favorable decision hearing; claimant issued at hearing; receives a notice claimant receives a incorporating the notice oral decision. incorporating the Notice advises oral decision. claimant can appeal Notice advises to Appeals Council. claimant can appeal to Review Board. Appeal to Review Board...... Appeals Council can Review Board must deny claimant's consider and issue request that it a decision in any review the ALJ's case that is decision. appealed to it Appeals Council timely. applies Review Board will ``substantial use ``substantial evidence'' test to evidence'' test, ALJ fact finding; consider any considers any question of law as question of law as if it were if it were considering it for considering it for the first time, the first time; apply ``harmless applies ``abuse of error'' test; discretion'' test applies ``abuse of to ALJ exercise of discretion'' test discretion.. to ALJ exercise of Claimant may submit discretion. ``new and material Additional evidence evidence'' which requirements relates to the similar to those at period on or before hearing level, with the date of ALJ the added decision. The AC requirement that will consider the evidence will be entire record accepted only if including any new the Review Board and material determines that evidence related to there is a the period on or reasonable before the date of probability that ALJ decision and the new evidence, will review the alone or in case if ALJ's consideration with action, findings, other evidence of or conclusion is record, would contrary to the change the outcome ``weight of the of the decision. evidence.''. Review Board can:
Removal of Special Provision When a case is Remove current in Court Remands. remanded by a process. Claimant court, the ALJ who is dissatisfied decision becomes with the hearing the final decision decision would have after remand unless to appeal to the the Appeals Council Review Board. assumes
Appeals Council may
based on a
exceptions or on
its own motion.
If no exceptions are
filed, or the
does not assume
on exceptions or on
its own motion, a
claimant may seek
court review of the
Our goal is to move as many cases to these new procedures as quickly as possible. Therefore, if we adopt these proposed rules, we plan to follow them with regard to any (1) cases for which a request for an ALJ hearing is made on or after the effective date of the final rules and (2) further review of ALJ hearing decisions or dismissals on or after the effective date of the final rules. On the effective date of the final rules, we also plan to transfer to the Review Board any cases then pending before the Decision Review Board or the Appeals Council, and to treat any pending request for review by the Appeals Council as a notice of appeal to the Review Board.
We recognize, however, that on the date the final rules become effective there will be pending cases in which the first ALJ decision on the claim had been issued prior to the effective date of these rules, perhaps even several years prior to the date the new rules take effect. We believe it would be unfair to those claimants if we were to apply strictly the new provision in these proposed rules that limits the period of time covered by the claim to the date of the first ALJ decision.
Therefore, for cases pending on the effective date of the final rules in which the first decision by an ALJ on the claim was issued prior to the effective date of the final rules, we propose to apply the new provision on limiting the period of time covered by the application for benefits in a different manner. For such cases, we will use the date of the first hearing or Review Board decision on the claim that is issued on or after the effective date of the final rules as the date by which entitlement must be established. For those cases, during the period between the effective date of the final rules and the date of the first hearing decision or dismissal or Review Board decision issued thereafter, we propose to apply the rest of these proposed rules to the extent practicable, but will accord the claimant the benefit of the prior procedures where necessary to avoid disadvantaging the claimant or any other party. For example, if the claimant has new evidence to submit that would not be admitted under the new rules we are proposing here, but would have been admissible under the rules previously in effect, we will accord the claimant the benefit of those earlier rules and accept the evidence.
Clarity of These Proposed Rules
Executive Order 12866, as amended, requires each agency to write
all rules in plain language. In addition to your substantive comments
on these proposed rules, we invite your comments on how to make them easier to understand. For example:
When Will We Start To Use These Rules?
We will not use these rules until we evaluate the public comments we receive on them, determine whether they should be issued as final rules, and issue final rules in the Federal Register. If we publish final rules, we will explain in the preamble how we will apply them, and summarize and respond to the public comments. Until the effective date of any final rules, we will continue to use our current rules. Regulatory Procedures
Executive Order 12866, as Amended
We have consulted with the Office of Management and Budget (OMB)
and determined that this proposed rule is subject to OMB review because
it meets the criteria for an economically significant regulatory action
under Executive Order 12866, as amended. The Office of the Chief
Actuary estimates that this proposed rule, if finalized, would reduce
the program costs of the Old Age, Survivors, and Disability Insurance
(OASDI) and the SSI programs by $1.5 billion. That Office estimates
that there would be a small increase in program costs in the first
year, followed by savings that increase at first but then begin to
decrease in 2013. Specifically, that Office estimates that program
costs would be reduced by the following amounts ($ in millions) if this proposed rule were adopted in a final rule.
Table 1.Estimated Effect on OASDI and Federal SSI Benefit Payments of a Proposed Regulation Making Amendments to the Administrative Law Judge, Appeals Council,
FOR FURTHER INFORMATION CONTACT
Brent Hillman, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 220413260, (703) 6058280 for information about this notice. For information on eligibility or filing for benefits, call our national tollfree number, 18007721213 or TTY 18003250778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.