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SOCIAL SECURITY ADMINISTRATION
Social Security Administration
CFR Citation: 20 CFR Parts 404, 408, 416, and 422
Docket ID: [Docket No. SSA-2008-0005]
RIN ID: RIN 0960-AG75
NOTICE: PROPOSED RULES
DOCUMENT ACTION: Notice of Proposed Rulemaking.
SUBJECT CATEGORY: Clarification of Evidentiary Standard for Determinations and Decisions
DATES: To be sure that your comments are considered, we must receive them no later than August 12, 2008.
DOCUMENT SUMMARY: These proposed rules clarify that we apply the preponderance of the evidence standard when we make determinations and decisions at all levels of our administrative review processes. These proposed rules would not change our policy that the Appeals Council applies the substantial evidence standard when it reviews an administrative law judge's decision to determine whether to grant a request for review. We also propose to explicitly define substantial evidence and preponderance of the evidence in applying these rules.
SUMMARY: Clarification of Evidentiary Standard for Determinations and Decisions,
SUPPLEMENTAL INFORMATION
Electronic Version 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.
Explanation of Changes
Our Administrative Review Process
We currently decide claims for benefits using an administrative
review process that consists of four levels. See 20 CFR 404.900,
408.1000, and 416.1400. We make our initial determination at the first
level. In most States,\1\ if an individual is dissatisfied with our
initial determination, the individual may request reconsideration. If
an individual is dissatisfied with the reconsidered determination, the
individual may request a hearing before an administrative law judge
(ALJ).\2\ Finally, if an individual is dissatisfied with the ALJ's
decision,\3\ the individual may request that the Appeals Council review
the ALJ's decision. Once an individual has completed these
administrative steps and received our final decision, the individual
may request judicial review of the final decision in Federal district court.
\1\ For claims for disability benefits, there are ten States
that are participating in a ``prototype'' test under Sec. Sec.
404.906 and 416.1406. In these States, the second step for
individuals who are dissatisfied with their initial determinations
in disability cases is a hearing before an ALJ. The ten States are:
Alabama, Alaska, California (Los Angeles North and West Branches),
Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, and Pennsylvania.
\2\ In some cases, attorney advisors in our Office of Disability
Adjudication and Review may make wholly favorable decisions before
an ALJ hearing is conducted. See Sec. Sec. 404.942 and 416.1442.
\3\ The words ``determination'' and ``decision'' are terms that
are defined in Sec. Sec. 404.900 and 416.1400. At the initial and
reconsideration levels of the administrative review process, we
issue ``determinations.'' At the ALJ hearing and Appeals Council
levels (when the Appeals Council makes a decision), we issue ``decisions.''
At the initial, reconsideration, and ALJ levels of the
administrative review process, adjudicators make a new decision based
on the evidence in the case record.\4\ For example, ALJs do not review
the State agency's initial and reconsideration determinations to
determine whether they were supported or correctly made; rather, they make their own new decisions.
\4\ In some States, adjudicators must consider, and sometimes adopt, certain findings made in prior adjudications under
acquiescence rulings (ARs) we have issued to address circuit court
holdings. See AR 974(9), 62 FR 64308, available at: http://
www.socialsecurity.gov/OP_Home/rulings/ar/09/AR9704ar09.html; AR
983(6), 63 FR 29770, available at: http://www/socialsecurity.gov/
OPHome/rulings/ar/06/AR9803ar06.html.; AR984(6), 63 FR 29771,
corrected at 63 FR 31266, available at: http://
www.socialsecurity.gov/OP_Home/rulings/ar/06/AR9804ar06.html;
and AR 001(4), 65 FR 1936, available at: http:// www.socialsecurity.gov/OP_Homing/rulings/ar/04/AR200001ar
04.html.
However, when an individual is dissatisfied with an ALJ's decision and asks the Appeals Council to ``review'' that decision, the Appeals Council first considers the ALJ's decision and the evidence before the ALJ to determine whether to grant the request for review. If the Appeals Council does not grant the request for review, the ALJ's decision becomes our final decision.\5\ However, if the Appeals Council grants the request for review, it will generally either remand the case to an ALJ for additional proceedings and a new decision or issue its own decision affirming, modifying, or reversing the ALJ's decision. \5\ The Appeals Council may also dismiss the request for review either with or without granting the request first. It may also review a case on its own motion; that is, without an individual asking it to do so. See Sec. Sec. 404.967, 404.969, 404.984, 416.1467, 416.1469, and 416.1484. See also Sec. 408.1050, which incorporates the relevant provisions of Sec. Sec. 416.1467416.1482 by reference.
Our Standard of Evidence
Adjudicators at each level of the administrative review process use an evidentiary standard called the ``preponderance of the evidence'' when they make a determination or decision. As we state in proposed Sec. Sec. 404.901 and 416.1401 below, we define this standard as meaning ``such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.''
However, when the Appeals Council considers an ALJ's decision and whether to grant a request for review, it does not use a preponderance of the evidence standard. Instead, it considers four issues, including whether the action, findings, or conclusions of the ALJ are supported by substantial evidence. Sec. Sec. 404.970 and 416.1470. The substantial evidence standard is different from the preponderance of the evidence standard and is more deferential to the findings of the ALJ.
While our policy has been that the preponderance of the evidence standard applies when we make determinations or decisions on claims under parts 404, 408, and 416, we do not have any regulations that say this clearly. The absence of explicit language in parts 404, 408, and 416 explaining the standards we use at each level of the administrative process has caused some confusion about the applicable standard.\6\ \6\ Federal courts also consider whether the Agency's findings are supported by substantial evidence or whether there is an error of law. 42 U.S.C. 405(g), 1009(b), and 1383(c)(3).
Proposed Changes
We propose to revise several regulation sections in parts 404, 408, 416, and 422 to explicitly state that we use the preponderance of the evidence standard to adjudicate claims at all levels of the administrative review process. We also propose to add definitions of the terms ``preponderance of the evidence'' and ``substantial evidence'' in Sec. Sec. 404.901, 408.1001, and 416.1401.
The proposed definitions of ``preponderance of the evidence'' and ``substantial evidence'' are the same definitions we currently use in Sec. 405.5. We believe these clarifications will improve the accuracy and consistency of the decisionmaking process.
Sections 205(a), 702(a)(5), 810(a), and 1631(d)(1) of the Act authorize the Commissioner of Social Security to prescribe these rule changes.
Clarity of These Proposed Rules
Executive Order (E.O.) 12866, as amended, requires each agency to
write all rules in plain language. In addition to your substantive
comments on these final rules, we invite your comments on how to make them easier to understand.
For example:
Regulatory Procedures
Executive Order 12866, as Amended
We have consulted with the Office of Management and Budget (OMB) and determined that these proposed rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as amended. Thus, they were not subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant economic
[[Page 33747]]
impact on a substantial number of small entities as they affect
individuals only. Therefore, a regulatory flexibility analysis as
provided in the Regulatory Flexibility Act, as amended, is not required.
Paperwork Reduction Act
These rules would impose no additional reporting or recordkeeping requirements requiring OMB clearance.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
SecurityDisability Insurance; 96.002, Social SecurityRetirement
Insurance; 96.004, Social SecuritySurvivors Insurance; 96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind, Disability benefits; OldAge, Survivors, and Disability Insurance; Reporting and recordkeeping requirements; Social Security.
20 CFR Part 408
Administrative practice and procedure; Aged; Reporting and recordkeeping requirements; Social Security; Supplemental Security Income (SSI); Veterans.
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability benefits; Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).
20 CFR Part 422
Administrative practice and procedure; Organization and functions
(Government agencies); Reporting and recordkeeping requirements; Social Security.
Dated: June 6, 2008.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set forth in the preamble, we propose to amend
subpart J of part 404, subpart J of part 408, subpart N of part 416,
and subparts B and C of part 422 of chapter III of title 20 of the Code of Federal Regulations as set forth below:
PART 404FEDERAL OLDAGE, SURVIVORS AND DISABILITY INSURANCE (1950)
Subpart J[Amended]
1. The authority citation for subpart J of part 404 continues to read as follows:
Authority: Secs. 201(j), 204(f), 205(a), (b), (d)(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a), (b), (d)(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)(e), and 15, Pub. L. 98460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108203, 118 Stat. 509 (42 U.S.C. 902 note).
2. Amend Sec. 404.901 by adding the definitions for
``Preponderance of the evidence'' and ``Substantial evidence'' in alphabetical order to read as follows:
Sec. 404.901 Definitions.
* * * * *
Preponderance of the evidence means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.
* * * * *
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
* * * * *
3. Amend Sec. 404.902 by revising the second sentence in the undesignated first paragraph to read as follows:
Sec. 404.902 Administrative actions that are initial determinations.
* * * The initial determination will state the important facts,
give the reasons for our conclusions, and be based on the preponderance of the evidence. * * *
* * * * *
4. Amend Sec. 404.917 by revising the second sentence of paragraph (b) to read as follows:
Sec. 404.917 Disability hearingdisability hearing officer's reconsidered determination.
* * * * *
(b) * * * The reconsidered determination must be based on the
preponderance of the evidence offered at the disability hearing or otherwise included in your case file.
* * * * *
5. Revise Sec. 404.920 to read as follows:
Sec. 404.920 Reconsidered determination.
After you or another person requests a reconsideration, we will review the evidence considered in making the initial determination and any other evidence we receive. We will make our determination based on the preponderance of the evidence.
6. Amend Sec. 404.941 by revising the second sentence of paragraph (a) to read as follows:
Sec. 404.941 Prehearing case review.
(a) * * * That component will decide whether the determination may
be revised based on the preponderance of the evidence. * * * * * * * *
7. Amend Sec. 404.942 by revising the second sentence of paragraph (a) to read as follows:
Sec. 404.942 Prehearing proceedings and decisions by attorney advisors.
(a) * * * If upon the completion of these proceedings, a decision
that is wholly favorable to you and all other parties may be made based
on the preponderance of the evidence, an attorney advisor, instead of
an administrative law judge, may issue such a decision. * * * * * * * *
8. Amend Sec. 404.948 by revising the first sentence of paragraph (a) to read as follows:
Sec. 404.948 Deciding a case without an oral hearing before an administrative law judge.
(a) * * * If the evidence in the hearing record supports a finding
in favor of you and all the parties on every issue, the administrative
law judge may issue a hearing decision based on a preponderance of the evidence without holding an oral hearing. * * *
* * * * *
9. Amend Sec. 404.953 by revising the second sentence of paragraph
(a), the first sentence in paragraph (b), and the first sentence of paragraph (c) to read as follows:
Sec. 404.953 The decision of an administrative law judge.
(a) * * * The decision must be based on the preponderance of the
evidence offered at the hearing or otherwise included in the record. * * *
(b) * * * The administrative law judge may enter a wholly favorable
oral decision based on the preponderance of the evidence into the record of the hearing proceedings. * * *
(c) * * * Although an administrative law judge will usually make a
decision, where appropriate, he or she may send the case to the Appeals
Council with a recommended decision based on a preponderance of the evidence. * * *
10. Amend Sec. 404.979 by adding a new third sentence to read as follows:
Sec. 404.979 Decision of Appeals Council.
* * * If the Appeals Council issues its own decision, the decision
will be based upon the preponderance of the evidence. * * *
11. Amend Sec. 404.984 by revising the last sentence in paragraph
(a), the second sentence of paragraph (b)(3), and the last sentence in paragraph (c) to read as follows:
[[Page 33748]]
Sec. 404.984 Appeals Council review of administrative law judge decision in a case remanded by a Federal court.
(a) * * * The Appeals Council will either make a new, independent
decision based on the preponderance of the evidence in the record that
will be the final decision of the Commissioner after remand, or remand
the case to an administrative law judge for further proceedings. (b) * * *
(3) * * * If the Appeals Council assumes jurisdiction, it will make
a new, independent decision based on the preponderance of the evidence
in the entire record affirming, modifying, or reversing the decision of
the administrative law judge, or remand the case to an administrative
law judge for further proceedings, including a new decision. * * *
(c) * * * After the briefs or other written statements have been
received or the time allowed (usually 30 days) for submitting them has
expired, the Appeals Council will either issue a final decision of the
Commissioner based on the preponderance of the evidence affirming,
modifying, or reversing the decision of the administrative law judge,
or remand the case to an administrative law judge for further proceedings, including a new decision.
* * * * *
PART 408SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS
Subpart J[Amended]
12. The authority citation for subpart J of part 408 continues to read as follows:
Authority: Secs. 702(a)(5) and 809 of the Social Security Act (42 U.S.C. 902(a)(5) and 1009).
13. Amend Sec. 408.1001 by adding the definition ``Preponderance of the evidence'' in alphabetical order to read as follows: Sec. 408.1001 Definitions.
* * * * *
Preponderance of the evidence means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.
* * * * *
14. Amend Sec. 408.1002 by adding a new third sentence to read as follows:
Sec. 408.1002 What is an initial determination?
* * * Initial determinations are based on the preponderance of the evidence.
15. Amend the second sentence in Sec. 408.1020 by revising it to read as follows:
Sec. 408.1020 How do we make our reconsidered determination?
* * * We will make our determination based on the preponderance of the evidence in the record. * * *
PART 416SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED
Subpart N[Amended]
16. The authority citation for subpart N of part 416 continues to read as follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108203, 118 Stat. 509 (42 U.S.C. 902 note).
17. Amend Sec. 416.1401 by adding the definitions for
``Preponderance of the evidence'' and ``Substantial evidence'' in alphabetical order to read as follows:
Sec. 416.1401 Definitions.
* * * * *
Preponderance of the evidence means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.
* * * * *
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
* * * * *
18. Amend Sec. 416.1402 by revising the second sentence in the undesignated first paragraph to read as follows:
Sec. 416.1402 Administrative actions that are initial determinations.
* * * The initial determination will state the important facts,
give the reasons for our conclusions, and be based on the preponderance of the evidence. * * *
* * * * *
19. Amend Sec. 416.1417 by revising the second sentence of paragraph (b) to read as follows:
Sec. 416.1417 Disability hearingdisability hearing officer's reconsidered determination.
* * * * *
(b) * * * The reconsidered determination must be based on the
preponderance of the evidence offered at the disability hearing or otherwise included in your case file.
* * * * *
20. Revise Sec. 416.1420 to read as follows:
Sec. 416.1420 Reconsidered determination.
After you or another person requests a reconsideration, we will review the evidence considered in making the initial determination and any other evidence we receive. We will make our determination based on the preponderance of the evidence. The person who makes the reconsidered determination will have had no prior involvement with the initial determination.
21. Amend Sec. 416.1441 by revising the second sentence of paragraph (a) to read as follows:
Sec. 416.1441 Prehearing case review.
(a) * * * That component will decide whether the determination may
be revised based on the preponderance of the evidence. * * * * * * * *
22. Amend Sec. 416.1442 by revising the second sentence of paragraph (a) to read as follows:
Sec. 416.1442 Prehearing proceedings and decisions by attorney advisors.
(a) * * * If upon the completion of these proceedings, a decision
that is wholly favorable to you and all other parties may be made based
on the preponderance of the evidence, an attorney advisor, instead of
an administrative law judge, may issue such a decision. * * * * * * * *
23. Amend Sec. 416.1448 by revising the first sentence of paragraph (a) to read as follows:
Sec. 416.1448 Deciding a case without an oral hearing before an administrative law judge.
(a) * * * If the evidence in the hearing record supports a finding
in favor of you and all the parties on every issue, the administrative
law judge may issue a hearing decision based on a preponderance of the evidence without holding an oral hearing. * * *
* * * * *
24. Amend Sec. 416.1453 by revising the second sentence of
paragraph (a), the first sentence of paragraph (b), and the first sentence of paragraph (d) to read as follows:
Sec. 416.1453 The decision of an administrative law judge.
(a) * * * The decision must be based on the preponderance of the
evidence offered at the hearing or otherwise included in the record. * * *
(b) * * * The administrative law judge may enter a wholly favorable
oral decision based on the preponderance of the evidence into the record of the hearing proceedings. * * *
* * * * *
(d) * * *Although an administrative law judge will usually make a decision, where appropriate, he or she may send
[[Page 33749]]
the case to the Appeals Council with a recommended decision based on a preponderance of the evidence. * * *
25. Amend Sec. 416.1479 by adding a new third sentence to read as follows:
Sec. 416.1479 Decision of Appeals Council.
* * * If the Appeals Council issues its own decision, the decision
will be based upon the preponderance of the evidence. * * *
26. Amend Sec. 416.1484 by revising the last sentence in paragraph
(a), the second sentence of paragraph (b)(3), and the last sentence in paragraph (c) to read as follows:
Sec. 416.1484 Appeals Council review of administrative law judge decision in a case remanded by a Federal court.
(a) * * * The Appeals Council will either make a new, independent
decision based on the preponderance of the evidence in the record that
will be the final decision of the Commissioner after remand, or remand
the case to an administrative law judge for further proceedings. (b) * * *
(3) * * * If the Appeals Council assumes jurisdiction, it will make
a new, independent decision based on the preponderance of the evidence
in the entire record affirming, modifying, or reversing the decision of
the administrative law judge, or remand the case to an administrative
law judge for further proceedings, including a new decision. * * *
(c) * * * After the briefs or other written statements have been
received or the time allowed (usually 30 days) for submitting them has
expired, the Appeals Council will either issue a final decision of the
Commissioner based on the preponderance of the evidence affirming,
modifying, or reversing the decision of the administrative law judge,
or remand the case to an administrative law judge for further proceedings, including a new decision.
* * * * *
PART 422ORGANIZATION AND PROCEDURES
Subpart B[Amended]
27. The authority citation for subpart B of part 422 continues to read as follows:
Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b1, and 1320b13), and sec. 7213(a)(1)(A) of Pub. L. 108458.
28. Amend Sec. 422.130 by revising the first sentence of paragraph (c) to read as follows:
Sec. 422.130 Claim procedure.
* * * * *
(c) * * * In the case of an application for benefits, the
establishment of a period of disability, a lumpsum death payment, a
recomputation of a primary insurance amount, or entitlement to hospital
insurance benefits or supplementary medical insurance benefits, the
Social Security Administration, after obtaining the necessary evidence,
will make a determination based on the preponderance of the evidence
(see Sec. Sec. 404.901 and 416.1401) as to the entitlement of the
individual claiming or for whom is claimed such benefits, and will
notify the applicant of the determination and of his right to appeal. * * *
Subpart C[Amended]
29. The authority citation for subpart C of part 422 continues to read as follows:
Authority: Secs. 205, 221, and 702(a)(5) of the Social Security Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).
30. Revise the last sentence of Sec. 422.203(c) to read as follows:
Sec. 422.203 Hearings.
* * * * *
(c) * * * Hearing decisions must be based on the preponderance of
the evidence of record, under applicable provisions of the law and regulations and appropriate precedents.
[FR Doc. E813282 Filed 61208; 8:45 am]
BILLING CODE 419102P
FOR FURTHER INFORMATION CONTACT Joshua Silverman, Office of
Regulations, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 212356401, (410) 5942128, for information about these
rules. For information on eligibility or filing for benefits, call our
national tollfree number, 18007721213 or TTY 18003250778, or visit our Internet site,
[[Page 33746]]
Social Security Online, at http://www.socialsecurity.gov.
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