[Federal Register: October 29, 2007 (Volume 72, Number 208)]
[Proposed Rules]
[Page 61217-61245]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc07-21]
[[Page 61217]]
-----------------------------------------------------------------------
Part II
Social Security Administration
-----------------------------------------------------------------------
20 CFR Parts 404, 405, and 416
Amendments to the Administrative Law Judge, Appeals Council, and
Decision Review Board Appeals Levels; Proposed Rule
[[Page 61218]]
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA 2007-0044]
20 CFR Parts 404, 405, and 416
RIN 0960-AG52
Amendments to the Administrative Law Judge, Appeals Council, and
Decision Review Board Appeals Levels
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: 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 non-disability 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.
DATES: To be sure that we consider your comments, we must receive them
no later than December 28, 2007.
ADDRESSES: You may submit comments by any of the following methods.
Regardless of which method you choose, to ensure that we can associate
your comments with the correct regulation for consideration, you must
state that your comments refer to Docket No. SSA-2007-0044:
Federal eRulemaking Portal at http://www.regulations.gov.
(This is the preferred method for submitting your comments.) In the
Search Documents section, select ``Social Security Administration''
from the agency drop-down menu, then click ``submit''. In the Docket ID
Column, locate SSA-2007-0044 and then click ``Add Comments'' in the
``Comments Add/Due By'' column.
Telefax to (410) 966-2830.
Letter to the Commissioner of Social Security, P.O. Box
17703, Baltimore, MD 21235-7703.
Deliver your comments to the Office of Regulations, Social
Security Administration, 922 Altmeyer Building, 6401 Security
Boulevard, Baltimore, MD 21235-6401, between 8 a.m. and 4:30 p.m. on
regular business days.
Comments are posted on the Federal eRulemaking portal, or you may
inspect them on regular business days by making arrangements with the
contact person shown in this preamble.
FOR FURTHER INFORMATION CONTACT: Brent Hillman, Social Security
Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, (703)
605-8280 for information about this notice. For information on
eligibility or filing for benefits, call our national toll-free number,
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site,
Social Security Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY 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
.
Introduction
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 decision-making process and change the final step in our
four-tiered 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 disability-prone 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 16434-16437.
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
[[Page 61219]]
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 non-disability 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 5-day 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.
[[Page 61220]]
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
[[Page 61221]]
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 evidence relates to the period on or before the date
of that first decision by an ALJ;
[[Page 61222]]
The party shows that there is a reasonable probability
that the evidence, alone or when considered with the other evidence of
record, would change the outcome of the decision; and
Either our action misled the party, the party had a
physical, mental, educational, or linguistic limitation that prevented
the party from submitting the evidence earlier, or some other unusual,
unexpected, or unavoidable circumstance beyond the party's control
prevented the earlier submission of the evidence.
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 open-ended 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 decision--or while the case is
pending on remand--may 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
[[Page 61223]]
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.
------------------------------------------------------------------------
Current policy
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:
Issue new
decision
Remand to
ALJ
Summarily
affirm ALJ
decision.
[[Page 61225]]
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
jurisdiction. The
Appeals Council may
assume jurisdiction
based on a
claimant's written
exceptions or on
its own motion.
If no exceptions are
filed, or the
Appeals Council
does not assume
jurisdiction based
on exceptions or on
its own motion, a
claimant may seek
court review of the
final decision
after remand..
------------------------------------------------------------------------
Transitional Rules
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:
Have we organized the material to suit your needs?
Are the requirements in the rules clearly stated?
Do the rules contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rules easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rules easier to
understand?
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, and Decision Review Board Appeals Levels, Fiscal Years 2008-17
[In millions]
----------------------------------------------------------------------------------------------------------------
Fiscal year OASDI SSI Total
--------------------------------------------------------------------------------------------------
2008.............................................. $15 $6 $21
2009.............................................. -32 -14 -46
2010.............................................. -117 -48 -166
2011.............................................. -138 -63 -201
2012.............................................. -154 -60 -215
[[Page 61226]]
2013.............................................. -171 -70 -241
2014.............................................. -159 -69 -228
2015.............................................. -142 -65 -206
2016.............................................. -101 -59 -160
2017.............................................. -48 -42 -90
-------------------------------------------------------------
Totals:
2008-2012................................. -427 -180 -607
2008-2017................................. -1,047 -484 -1,531
----------------------------------------------------------------------------------------------------------------
(Totals may not equal the sum of components due to rounding.)
Regarding the estimates in the above table, we note that this NPRM
would have two principal effects relative to the baseline under current
rules. First, the closing of the record after the initial decision by
an ALJ would be accelerated relative to the baseline. Under the
baseline in the FY 2008 Budget and the Mid-Session Review, we assumed
that DSI would be phased in one region per year over a 10-year period.
Included in that implementation is a closing of the record that is very
similar to that in the NPRM. The difference is that the NPRM would
implement this change for all regions immediately. This acceleration of
the closure of the record is estimated to provide significant
reductions in cost through reduced allowances over the next 10 years or
so.
The second principal effect would be from establishing immediately
the Review Board (RB) for all regions. Under current rules, the Appeals
Council (AC) is assumed to be replaced one region at a time by the
Decision Review Board (DRB) over the 10-year period. Thus, implementing
the RB essentially immediately would at first largely replace the AC
with RB, but over the next 10 years, it would be the DRB that would be
effectively replaced by the RB. We estimate that the RB would not
function much differently from the AC. But because we have assumed the
DRB would be more restrictive than the current AC in the future,
replacing the DRB with the RB would be less restrictive and would thus
result in more allowances and cost. But this cost would only gradually
grow through the next 10 years.
The combination of these two principal effects would initially
reduce allowances (via immediate closure of the record). But this
initial effect would gradually diminish because the current rule would
also affect closure of the record, but more gradually. However, just as
the reduction in allowances from the first effect is diminishing, the
increase in allowances from having the RB instead of the DRB would be
gradually rising. By the end of 10 years, the net annual reductions in
costs would have diminished substantially.
There is substantial uncertainty associated with estimated effects
of the provisions in this NPRM. We have attempted to develop estimates
reflecting the most likely outcome. We believe we are very likely to
have properly assessed the direction of change from each of the
principal changes. But the magnitude of the effect could be different.
It may be useful to think in terms of a plausible range where the
impact of all provisions were either 50 percent higher or 50 percent
lower than assumed for our estimate. In this case, the overall annual
costs estimated would be 50 percent higher or 50 percent lower,
respectively. While it is not possible to assign a specific probability
that actual program cost effects will fall in this range, we believe
the probability is high.
As indicated above, the two principal effects of this NPRM would
tend to have opposite impacts on program cost. The effect of lowering
program cost by accelerating the implementation of closure of the
record would be temporary, lasting for only a short time after the end
of the 10-year budget period. However, the effect of changing
ultimately from the Decision Review Board in current rules to the
Review Board in this NPRM would have persistent effects beyond 10
years, resulting in sustained small increases in allowances and thus in
program cost. The magnitude of this persistent effect on long-range
program cost is expected to be negligible (i.e., less than 0.005
percent of taxable payroll).
Table 2.--Accounting Statement: Estimated Economic Impact of Amending
the Administrative Law Judge, Appeals Council and Decision Review Board
Appeals Level From 2008-2017 in 2007 Dollars
------------------------------------------------------------------------
Category Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers......... $127.3 million (7% discount
rate).
$131.1 million (3% discount
rate).
From Whom To Whom?..................... From SSA beneficiaries to the
Social Security trust fund and
the general fund.
------------------------------------------------------------------------
Regulatory Flexibility Act
We certify that this proposed rule, if published in final, will not
have a significant economic impact on a substantial number of small
entities as it affects only individuals. Therefore, a regulatory
flexibility analysis as provided in the Regulatory Flexibility Act, as
amended, is not required.
Paperwork Reduction Act
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.
[[Page 61227]]
This change will expand those rules nationwide and apply them to
hearings on both disability and non-disability matters. 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 appeals court when it reviews the decision of a lower
court that has been appealed to it, 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.''
Requests for information from the public for the hearings process
and the associated collection of evidence/documents are paperwork
burdens that require clearance under the Paperwork Reduction Act of
1995. The chart below outlines those sections in this proposed rule
that contain the paperwork burdens. The changes to the majority of the
sections are minor. Also, most of the paperwork burdens for these rules
have already been cleared by OMB and are accounted for under separate
OMB numbers. Consequently, we show a 1-hour placeholder for these
burdens. Respondents to these collections are individuals who request
an appeal of a hearing decision or an unfavorable decision on their
claims.
Part 404--Federal Old-Age, Survivors and Disability Insurance
Part 416--Supplemental Security Income for the Aged, Blind, and
Disabled
----------------------------------------------------------------------------------------------------------------
Average
Title/section & collection Annual number Frequency of burden per Estimated annual burden
description of response response (hours)
respondents (minutes)
----------------------------------------------------------------------------------------------------------------
404.933(a)-(d), 416.1433(a)-(d). .............. .............. .............. 1 hour place holder burden
How to request a hearing--you must (covered by OMB No. 0960-
request a hearing by filing a 0269, Request for Hearing
written request. by Administrative Law
Judge, 20 CFR 404.967-
.981, 416.1467-.1481).
404.933(a)(4), 416.1433(a)(4). If 493,155 1 5 41,096.
disability is an issue, a
statement of the medically
determinable impairment should be
included in the written request
for a hearing.
404.933(d), 416.1433(d). Extension 10,959 1 10 1,827.
of time to request a hearing--you
may ask us for more time to
request a hearing.
404.933(e), 416.1433(e). Waiver of .............. .............. .............. 1 hour place holder burden
right to appear--you may ask the (covered by OMB No.
administrative law judge to decide 0960.0284, Waiver of your
your case without a hearing. right to a personal
appearance before an
administrative law judge).
404.935(a)-(c), 416.1435(a)-(c). 547,950 1 60 547,950.
Submitting evidence to an
administrative law judge.
404.935(d)(1) & (2), 416.1435(d)(1) 3,750 1 30 1,875.
& (2). Subpoena--you must file a
written request for a subpoena.
404.935(d)(4), 416.1435(d)(4). 10 1 30 5.
Subpoena--you may ask the
administrative law judge to
withdraw or limit the scope of the
subpoena.
404.938(c), 416.1438(c). .............. .............. .............. 1 hour placeholder burden
Acknowledging the notice of (covered by OMB No. 0960-
hearing--we will ask you to return 0671, Acknowledgement of
a form to let us know that you Receipt (Notice of
received the notice. Hearing), Part 404,
Subpart J, 404.936, .938,
.950, Part 416, Subpart N.
404.939(a), 416.1439(a). 18,265 1 30 9,132.
Objections--you should notify the
administrative law judge in
writing if you object to the time
and place of your hearing.
404.939(b), 416.1439(b). 10 1 30 5.
Objections--you should notify the
administrative law judge in
writing if you believe that issues
in the hearing notice are
incorrect.
404.948(b), 416.1448(b). Deciding a .............. .............. .............. 1 hour place holder burden
case without a hearing before and (covered by OMB No.
administrative law judge--You 0960.0284, Waiver of your
state in writing that you do not right to a personal
wish to appear at a hearing. appearance before an
administrative law judge).
404.950(a), 416.1450(a). Presenting .............. .............. .............. 1 hour placeholder burden
evidence at a hearing before an (covered by OMB No. 0960-
administrative law judge. 0671, Acknowledgement of
Receipt (Notice of
Hearing), Part 404,
Subpart J, 404.936, .938,
.950, Part 416, Subpart N.
404.961(b), 416.1461(b). Prehearing 36,500 1 30 18,250.
and posthearing proceedings--you
may submit a prehearing statement
describing why you disagree with
the reconsidered determination.
[[Page 61228]]
404.969(a)-(b), 416.1469(a)-(b). .............. .............. .............. 1 hour placeholder burden
How to appeal to the Review Board-- (covered by OMB NO. 0960-
to begin your appeal you must file 0277, Request for Review
a notice of appeal. of Hearing Decision/Order,
20 CFR 404.967-.981,
416.1467-.1481).
404.969(b)(2), 416.1469(b)(2). How 2,000 1 10 334.
to appeal to the Review Board--you
may ask that the time for filing a
notice of appeal be extended.
404.969(c), 416.1469(c). Contents 93,461 1 60 93,461.
of the Appeal--you should include
with your notice of appeal a
written statement.
404.974(a), 416.1474(a). Procedures 45,000 1 10 7,500.
before the board, obtaining copies
of evidence--you may request and
receive copies or a statement of
documents and other written
evidence.
404.974(b), 416.1474(b). Filing 45,000 1 60 45,000.
briefs with the Review Board--you
may file a brief or other written
statement.
404.974(e), 416.1474(e). Oral 300 1 10 50.
arguments--you may ask to appear
before the review board to present
an oral argument.
404.976(a)(4), 416.1476(a)(4). 600 1 10 100.
Dismissal by Review Board--you may
file a written request for
dismissal.
404.976(a)(5), 416.1476(a)(5). 20 1 20 7.
Dismissal by Review Board--a
person other than the claimant may
file a written appeal.
404.977(d)(1), 416.1477(d)(1). 20 1 60 20.
Filing briefs with the Review
Board--you may file briefs or
other written statements with the
Review Board.
404.982(b), 416.1482(b). Review of 1,475 1 10 245.
final decisions in Federal
District Court--you may request an
extension in time for filing an
action in Federal District Court.
----------------------------------------------------------------------------
Total.......................... 805,320 .............. .............. 725,761.
----------------------------------------------------------------------------------------------------------------
An Information Collection Request has been submitted to OMB for
clearance. We are soliciting comments on the burden estimate; the need
for the information; its practical utility; ways to enhance its
quality, utility and clarity; and on ways to minimize the burden on
respondents, including the use of automated collection techniques or
other forms of information technology. Comments should be sent to OMB
by fax or by e-mail to:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, E-mail address: OIRA_Submission@omb.eop.gov.
Comments on the paperwork burdens associated with this rule can be
received for up to 60 days after publication of this notice and will be
most useful if received within 30 days of publication. This does not
affect the deadline for the public to comment to SSA on the proposed
regulations. These information collection requirements will not become
effective until approved by OMB. When OMB has approved these
information collection requirements, SSA will publish a notice in the
Federal Register. To receive a copy of the OMB clearance package,
please contact the Reports Clearance Officer at OPLM.RCO@ssa.gov.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice and procedure; Blind; Disability benefits;
Old-Age, Survivors, and Disability Insurance; Reporting and
recordkeeping requirements; Social Security.
20 CFR Part 405
Administrative practice and procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability Insurance; Public assistance
programs; Reporting and recordkeeping requirements; Social Security;
Supplemental Security Income (SSI).
20 CFR Part 416
Administrative practice and procedure; Aged, Blind, Disability
benefits, Public Assistance programs; Reporting and recordkeeping
requirements; Supplemental Security Income (SSI).
Dated: October 15, 2007.
Michael J. Astrue,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend
subpart J of part 404, part 405, and subpart N of part 416 as set forth
below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart J--[Amended]
1. The authority citation for subpart J of part 404 continues to
read as follows:
[[Page 61229]]
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. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
2. Amend Sec. 404.900 by revising paragraphs (a)(4) and (b) to
read as follows:
Sec. 404.900 Introduction.
(a) * * *
(4) Appeal to the Review Board. If you are dissatisfied with the
decision of the administrative law judge, you may appeal that decision
to the Review Board.
* * * * *
(b) Nature of the administrative review process. In making a
determination or decision in your case, we conduct the administrative
review process in an informal, nonadversarial manner. Subject to the
limitations in Sec. Sec. 404.935 and 404.973 on submitting evidence at
the administrative law judge and Review Board levels, you may present
any information you feel may be helpful to your case. You may present
the information yourself or have someone represent you, including an
attorney. At each step of the review process, we will consider all
relevant evidence that has been made part of the record. If you are
dissatisfied with our decision in the review process, but do not take
the next step within the stated time period, you will lose your right
to further administrative review and your right to judicial review
unless you can show us that there was good cause for your failure to
pursue the next step of our review process in a timely manner.
Sec. 404.901 [Amended]
3. Amend Sec. 404.901 by removing the words ``Appeals Council''
and adding, in their place, the words ``Review Board''.
4. Amend Sec. 404.911 by revising paragraph (b)(5) to read as
follows:
Sec. 404.911 Good cause for missing the deadline to request review.
* * * * *
(b) * * *
(5) You asked us for additional information explaining our action
within the time limit, and within 60 days of receiving the explanation
you requested reconsideration or a hearing, or within 30 days of
receiving the explanation you filed a notice of appeal to the Review
Board or filed a civil suit.
* * * * *
5. Amend Sec. 404.924 by revising paragraph (a) to read as
follows:
Sec. 404.924 When the expedited appeals process may be used.
* * * * *
(a) We have made an initial and a reconsidered determination; an
administrative law judge has made a hearing decision; or a decision has
been appealed to the Review Board, but a final decision has not been
issued.
* * * * *
6. Amend Sec. 404.925 by revising paragraph (a)(4) to read as
follows:
Sec. 404.925 How to request expedited appeals process.
(a) * * *
(4) At any time after you have filed a timely notice of appeal to
the Review Board, but before the Review Board has issued a decision.
* * * * *
Sec. 404.928 [Amended]
7. Amend Sec. 404.928 by removing the words ``Appeals Council
review'' and adding, in their place, the words ``a notice of appeal to
the Review Board''.
8. Revise Sec. 404.929 to read as follows:
Sec. 404.929 Hearing before an administrative law judge-general.
(a) If you are dissatisfied with one of the determinations or
decisions listed in Sec. 404.930 you may request a hearing. We will
appoint an administrative law judge to conduct the hearing proceedings.
If circumstances warrant after making the appointment (for example, if
the administrative law judge becomes unavailable), we may assign your
case to another administrative law judge.
(b) You may examine the evidence used in making the reconsidered
determination, submit evidence, appear at the hearing, and present and
question witnesses. The administrative law judge may ask you questions
and will issue a decision based on the hearing record. If you waive
your right to appear at the hearing, the administrative law judge will
make a decision based on the evidence that is in the file, on any new
evidence that is timely submitted, and on any evidence that the
administrative law judge obtains.
9. Revise Sec. 404.933 to read as follows:
Sec. 404.933 How to request a hearing before an administrative law
judge.
(a) Written request. You must request a hearing by filing a written
request. You should include in your request--
(1) Your name and social security number,
(2) If your case concerns your benefits under an account other than
your own, the name and social security number of the wage earner under
whose account you are filing,
(3) The specific reasons you disagree with the reconsidered
determination,
(4) If disability is an issue in your case, a statement of the
medically determinable impairment(s) that you believe prevents you from
working,
(5) Additional evidence that you have available to you, and
(6) The name and address of your representative, if any.
(b) Time limit for filing request. An administrative law judge will
hear your case if you request a hearing in writing no later than 60
days after the date you receive notice of the reconsidered
determination (or within the extended time period if we extend the time
as provided in paragraph (d) of this section). The administrative law
judge may decide your case without an oral hearing under the
circumstances described in Sec. 404.948.
(c) Place for filing request. You should submit a written request
for a hearing at one of our offices. In addition, if you have a
disability claim, you may also file the request at the Veterans Affairs
regional office in the Philippines, or if you have 10 or more years of
service, or at least 5 years of service accruing after December 31,
1995, in the railroad industry, an office of the Railroad Retirement
Board.
(d) Extension of time to request a hearing. You may ask us for more
time to request a hearing. Your request for an extension of time must
be in writing and must give the reasons the hearing request was not
filed, or cannot be filed, in time. If you show us that you have good
cause for missing the deadline, we will extend the time period. To
determine whether good cause exists, we use the standards explained in
Sec. 404.911 of this part.
(e) Waiver of the right to appear. After you submit your request
for a hearing, you may ask the administrative law judge to decide your
case without a hearing, as described in Sec. 404.948(b). The
administrative law judge may grant the request unless he or she
believes that a hearing is necessary. You may withdraw this waiver of
your right to appear at a hearing any time before notice of the hearing
decision is mailed to you, and we will schedule a hearing as soon as
practicable.
10. Revise Sec. 404.935 to read as follows:
Sec. 404.935 Submitting evidence to an administrative law judge.
(a) General. You should submit with your request for hearing any
evidence that you have available to you. All documents prepared and
submitted by
[[Page 61230]]
you (i.e., not including medical or other evidence that is prepared by
someone other than you or your representative) should clearly designate
your name and the last four digits of your social security number. All
such documents must be clear and legible to the fullest extent
practicable and delivered or mailed to the administrative law judge
within the time frames in paragraph (b) of this section, unless the
administrative law judge allows additional time for submitting
evidence.
(b) Time for submitting evidence. Any documents that you wish to
have considered at the hearing must be submitted no later than 5
business days before the date of the scheduled hearing. If you do not
comply with this requirement, the administrative law judge may decline
to consider the evidence unless the circumstances described in
paragraph (c) of this section apply.
(c) Late submission of evidence. (1) If you miss the deadline
described in paragraph (b) of this section and you wish to submit
evidence during the 5 business days before the hearing or at the
hearing, the administrative law judge will accept the evidence if you
show that:
(i) Our action misled you;
(ii) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from submitting the evidence earlier;
or
(iii) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from submitting the evidence earlier.
(2) If you miss the deadline described in paragraph (b) of this
section and you wish to submit evidence after the hearing and before
the hearing decision is issued, the administrative law judge will
accept the evidence if you show that there is a reasonable possibility
that the evidence, alone or when considered with the other evidence of
record, would affect the outcome of your case, and:
(i) Our action misled you;
(ii) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from submitting the evidence earlier;
or
(iii) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from submitting the evidence earlier.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge may, on his or her
own initiative or at your request, issue subpoenas for the appearance
and testimony of witnesses and for the production of any documents that
are relevant to an issue at the hearing.
(2) To have documents or witnesses subpoenaed, you must file a
written request for a subpoena with the administrative law judge at
least 20 days before the hearing date. The written request must:
(i) Give the names of the witnesses or describe the documents to be
produced;
(ii) Describe the address or location of the witnesses or documents
with sufficient detail to find them;
(iii) State the important facts that the witness or document is
expected to show; and
(iv) Indicate why these facts could not be shown without that
witness or document.
(3) We will pay the cost of issuing the subpoena and pay subpoenaed
witnesses the same fees and mileage they would receive if they had been
subpoenaed by a Federal district court.
(4) Within 5 days of receipt of a subpoena, but no later than the
date of the hearing, the person against whom the subpoena is directed
may ask the administrative law judge to withdraw or limit the scope of
the subpoena and must set forth the reasons why the subpoena should be
withdrawn or why it should be limited in scope.
(5) Upon failure of any person to comply with a subpoena, the
Office of the General Counsel may seek enforcement of the subpoena
under section 205(e) of the Act.
11. Revise Sec. 404.936 to read as follows:
Sec. 404.936 Time and place for a hearing before an administrative
law judge.
(a) General. The administrative law judge sets the time and place
for the hearing. The administrative law judge will notify you of the
time and place of the hearing at least 75 days before the date of the
hearing, unless you agree to a shorter notice period. If it is
necessary, the administrative law judge may change the time and place
of the hearing. If the administrative law judge changes the time and
place of the hearing, he or she will send you reasonable notice of the
change.
(b) Where we hold hearings. We hold hearings in the 50 States, the
District of Columbia, American Samoa, Guam, the Northern Mariana
Islands, the Commonwealth of Puerto Rico, and the United States Virgin
Islands.
(c) Determination regarding in-person, telephonic, or video
teleconference appearance of witnesses at the hearing. (1) In setting
the time and place of the hearing, the administrative law judge will
determine whether you will appear at the hearing in person or by video
teleconference or, under certain extraordinary circumstances, by
telephone. If you object to appearing personally by video
teleconference, we will re-schedule the hearing to a time and place at
which you may appear in person before the administrative law judge. The
administrative law judge may direct you to appear by telephone when:
(i) Your appearance in person is not possible, such as if you are
incarcerated and the facility will not allow a hearing to be held at
the facility, and
(ii) Video teleconference is not available.
(2) In setting the time and place of the hearing, the
administrative law judge will determine whether any other person will
appear at the hearing in person, by telephone, or by video
teleconference. If you object to any other person appearing by
telephone or video teleconference, the administrative law judge will
decide whether to have that person appear in person, by telephone, or
by video teleconference. The administrative law judge will direct a
person, other than you if you object to your appearing by video
teleconference, to appear by video teleconference when:
(i) Video teleconference technology is available,
(ii) Use of video teleconference technology would be more efficient
than conducting an examination of a witness in person, and
(iii) The administrative law judge determines that there is no
other reason why video teleconference should not be used.
12. Revise Sec. 404.938 to read as follows:
Sec. 404.938 Notice of a hearing before an administrative law judge.
(a) Issuing the notice. After the administrative law judge sets the
time and place of the hearing, we will mail notice of the hearing to
you at your last known address or give the notice to you by personal
service. We will mail or serve the notice at least 75 days before the
date of the hearing, unless you agree to a shorter notice period.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided,
(2) That you may designate a person to represent you during the
proceedings,
(3) How to request that we change the time or place of your
hearing,
(4) That your hearing request may be dismissed if you fail to
appear at your scheduled hearing without good reason under Sec.
404.911,
(5) Whether your appearance will be in person or by video
teleconference (or, in exceptional circumstances, by
[[Page 61231]]
telephone) and whether any witness's appearance will be in person, by
telephone, or by video teleconference, and
(6) That you must submit all evidence that you wish to have
considered at the hearing no later than 5 business days before the date
of the scheduled hearing, unless you show that your circumstances meet
the conditions described in Sec. 404.935(c) for missing the deadline.
(c) Acknowledging the notice of hearing. In the notice of hearing,
we will ask you to return a form, within 5 days of the date you receive
the notice, to let us know that you received the notice. If you or your
representative does not acknowledge receipt of the notice of hearing,
we will attempt to contact you to see if you received it. If you let us
know that you did not receive the notice of hearing, we will send you
an amended notice by certified mail.
13. Revise Sec. 404.939 to read as follows:
Sec. 404.939 Objections.
(a) Time and Place. (1) If you object to the time or place of your
hearing, you must notify the administrative law judge in writing at the
earliest possible opportunity before the date set for the hearing, but
no later than 30 days after receiving notice of the hearing. You must
state the reason(s) for your objection and propose a time and place you
want the hearing to be held.
(2) The administrative law judge will consider your reason(s) for
requesting the change and the impact of the proposed change on the
efficient administration of the hearing process. Factors affecting the
impact of the change include, but are not limited to, the effect on the
processing of other scheduled hearings, delays which might occur in
rescheduling your hearing, and whether we previously granted to you any
changes in the time or place of your hearing.
(b) Issues. If you believe that the issues contained in the hearing
notice are incorrect, you should notify the administrative law judge in
writing at the earliest possible opportunity, but must notify him or
her no later than 5 business days before the date set for the hearing.
You must state the reason(s) for your objection. The administrative law
judge will make a decision on your objection either at the hearing or
in writing before the hearing.
Sec. 404.940 [Amended]
14. Amend Sec. 404.940 by removing the words ``Associate
Commissioner for Hearings and Appeals'' and adding, in their place, the
word ``we'', and by removing the words ``Appeals Council'' and, in
their place, adding the words ``Review Board''.
Sec. 404.943 [Removed and Reserved]
15. Remove and reserve Sec. 404.943.
16. Revise Sec. 404.944 to read as follows:
Sec. 404.944 Administrative law judge hearing procedures--general.
(a) General. A hearing is open only to you and to other persons the
administrative law judge considers necessary and proper. The
administrative law judge will conduct the proceedings in an orderly and
efficient manner. At the hearing, the administrative law judge will
look fully into all of the issues raised in your case, will question
you and the other witnesses, and will accept any evidence relating to
your case that you submit in accordance with Sec. 404.935.
(b) Conducting the hearing. The administrative law judge will
decide the order in which the evidence will be presented. The
administrative law judge may stop the hearing temporarily and continue
it at a later date if he or she decides that there is evidence missing
from the record that must be obtained before the hearing may continue.
At any time before the notice of the decision is sent to you, the
administrative law judge may hold a supplemental hearing in order to
receive additional evidence, consistent with the procedures described
in Sec. Sec. 404.946 through 404.961.
17. Revise Sec. 404.946 to read as follows:
Sec. 404.946 Issues before an administrative law judge.
(a) General. The issues before the administrative law judge include
all the issues raised in your case, regardless of whether or not the
issues may have already been decided in your favor.
(b) New issues. Any time after receiving the hearing request and
before mailing notice of the hearing decision, the administrative law
judge may consider a new issue if he or she, before deciding the issue,
provides you an opportunity to address it. The administrative law judge
or any party may raise a new issue. An issue may be raised even though
it arose after the request for a hearing and even though it has not
been considered in an initial or reconsidered determination.
(c) Collateral estoppel--issues previously decided. We already may
have decided a fact that is an issue before the administrative law
judge in one of our previous and final determinations or decisions
involving you, but arising under a different title of the Act or under
the Federal Coal Mine Health and Safety Act. If this happens, the
administrative law judge will not consider the issue again, but will
accept the factual finding made in the previous determination or
decision, unless he or she has reason to believe that it was wrong, or
reopens the previous determination or decision under Sec. 404.987.
18. Revise Sec. 404.948 to read as follows:
Sec. 404.948 Deciding a case without a hearing before an
administrative law judge.
(a) Decision wholly favorable. If the evidence in the record
supports a decision wholly in your favor, the administrative law judge
may issue a decision without holding a hearing. However, the notice of
the decision will inform you that you have the right to a hearing and
that you have a right to examine the evidence on which the decision is
based.
(b) You do not wish to appear. The administrative law judge may
decide a case on the record and not conduct a hearing if--
(1) You state in writing that you do not wish to appear at a
hearing, or
(2) You live outside the United States and you do not inform us
that you want to appear.
(c) When a hearing is not held, the administrative law judge will
make a record of the evidence, which, except for the transcript of the
hearing, will contain the material described in Sec. 404.951. The
decision of the administrative law judge must be based on this record.
Sec. 404.949 [Removed and Reserved]
19. Remove and reserve Sec. 404.949.
20. Revise Sec. 404.950 to read as follows:
Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge.
(a) The right to appear and present evidence. You have a right to
appear before the administrative law judge, either in person or, when
the administrative law judge determines that the conditions in Sec.
404.936(c) exist, by telephone or video teleconference, to present
evidence and to state your position. You also may appear by means of a
designated representative.
(b) Admissible evidence. Subject to Sec. 404.935, the
administrative law judge may receive any evidence at the hearing that
he or she believes relates to your case.
(c) Witnesses at a hearing. Witnesses may appear at a hearing in
person, by telephone, or by video teleconference.
[[Page 61232]]
Witnesses who appear at a hearing shall testify under oath or by
affirmation, unless the administrative law judge finds an important
reason to excuse them from taking an oath or making an affirmation. The
administrative law judge, you, or your representative may ask the
witnesses any questions relating to your case.
(d) Closing statements. You or your representative may present a
closing statement to the administrative law judge--
(1) Orally at the end of the hearing,
(2) In writing after the hearing and within a reasonable time
period set by the administrative law judge, or
(3) By using both methods under paragraphs (d)(1) and (2).
21. Revise Sec. 404.951 to read as follows:
Sec. 404.951 Official record.
(a) All hearings will be recorded. All evidence upon which the
administrative law judge relies for the decision must be contained in
the record, either directly or through administrative notice, if
appropriate. The official record will include the applications, written
statements, certificates, reports, affidavits, medical records, and
other documents that were used in making the determination under review
and any additional evidence or written statements that the
administrative law judge admits into the record under Sec. Sec.
404.935 and 404.944. All admitted evidence must be incorporated into
the record. The official record of your case will contain all of the
admitted evidence and a verbatim recording of all testimony offered at
the hearing. It also will include any prior initial determinations or
decisions relevant to your case. Subject to Sec. 404.973, the official
record closes once the administrative law judge issues his or her
decision, regardless of whether it becomes our final decision.
(b) The recording of the hearing will be prepared as a typed copy
of the proceedings if--
(1) The case is sent to the Review Board without a decision, or
with a recommended decision as ordered by the Review Board, by the
administrative law judge;
(2) You seek judicial review of your case by filing an action in a
Federal district court within the stated time period, unless we request
the court to remand the case; or
(3) An administrative law judge or the Review Board asks for a
written record of the proceedings in cases remanded by a Federal
district court.
22. Revise Sec. 404.952 to read as follows:
Sec. 404.952 Consolidated hearing before an administrative law judge.
(a) General. (1) We may hold a consolidated hearing if--
(i) You have requested a hearing to decide your case, and
(ii) One or more of the issues to be considered at your hearing is
the same as an issue involved in another case you have pending before
us.
(2) If the administrative law judge consolidates the cases, he or
she will decide both cases, even if we have not yet made an initial
determination or a reconsidered determination in the other case.
(b) Record, evidence, and decision. There will be a single record
at a consolidated hearing. This means that the evidence introduced at
the hearing becomes the evidence of record in each case adjudicated.
The administrative law judge may issue either a consolidated decision
or separate decisions for each case.
23. Revise Sec. 404.953 to read as follows:
Sec. 404.953 Decision by the administrative law judge.
(a) The administrative law judge will make a decision based on all
of the evidence, including the testimony at the hearing. The
administrative law judge will prepare a written decision that explains
in clear and understandable language the reasons for the decision.
(b) During the hearing, in certain categories of cases that we
identify in advance, the administrative law judge may orally explain in
clear and understandable language the reasons for, and enter into the
record, a wholly favorable decision. The administrative law judge will
include in the record a document that sets forth the key data, findings
of fact, and narrative rationale for the decision. Within 5 days after
the hearing, if there are no subsequent changes to the analysis in the
oral decision, we will send you a written decision that incorporates
such oral decision by reference and that explains why the
administrative law judge agrees or disagrees with the substantive
findings and overall rationale of the reconsidered determination. If
there is a change in the administrative law judge's analysis or
decision, we will send you a written decision that is consistent with
paragraph (a) of this section. Upon written request, we will provide
you a record of the oral decision.
24. Revise Sec. 404.955 to read as follows:
Sec. 404.955 The effect of the administrative law judge's decision.
The decision of the administrative law judge is binding on all
parties to the hearing unless--
(a) You or another party to the hearing appeals the decision to the
Review Board;
(b) The Review Board decides to review the decision on its own
motion, as provided in Sec. 404.970; or
(c) The decision is a recommended decision to the Review Board as
ordered by the Review Board; or
(d) The decision is revised by an administrative law judge or the
Review Board under the procedures explained in Sec. 404.987.
Sec. 404.956 [Amended]
25. Amend Sec. 404.956 by removing the words ``Appeals Council''
and, in their place, adding the words ``Review Board''.
26. Revise Sec. 404.957 to read as follows:
Sec. 404.957 Dismissal of a request for a hearing before an
administrative law judge.
An administrative law judge may dismiss a request for a hearing:
(a) At any time before notice of the hearing decision is mailed,
when you withdraw the request orally on the record at the hearing or in
writing;
(b)(1) If neither you nor the person you designate to act as your
representative appears at the hearing or at the prehearing conference,
we notified you previously that your request for hearing may be
dismissed if you did not appear, and you do not give a good reason for
failing to appear; or
(2) If neither you nor the person you designate to act as your
representative appears at the hearing or at the prehearing conference,
we had not notified you previously that your request for hearing may be
dismissed if you did not appear, and within 10 days after we send you a
notice asking why you did not appear, you do not give a good reason for
failing to appear.
(3) In determining whether you had a good reason under this
paragraph, we will consider the factors described in Sec. 404.911 of
this part.
(4) If neither you nor the person you designate to act as your
representative appears at the prehearing conference but the provisions
of Sec. 404.948(b) apply, the administrative law judge will issue a
decision without holding a hearing.
(c) If the doctrine of res judicata applies because we have made a
previous determination or decision in your case on the same facts and
on the same issue or issues, and this previous determination or
decision has become final;
[[Page 61233]]
(d) If you have no right to a hearing under Sec. 404.930;
(e) If you did not request a hearing in time and we have not
extended the time for requesting a hearing; or
(f) If you die and your estate or any person to whom an
underpayment may be distributed under Sec. 404.503 or Sec. 416.542 of
this chapter has not pursued your case.
27. Revise the second sentence of Sec. 404.958 to read as follows:
Sec. 404.958 Notice of dismissal of a request for hearing before an
administrative law judge.
* * * The notice will state that you have the right to appeal the
dismissal to the Review Board.
Sec. 404.959 [Amended]
28. Amend Sec. 404.959 by removing the words ``Appeals Council''
and, in their place, adding the words ``Review Board''.
Sec. 404.960 [Amended]
29. Amend Sec. 404.960 by removing the words ``Appeals Council''
and, in their place, adding the words ``Review Board''.
30. Revise Sec. 404.961 to read as follows:
Sec. 404.961 Prehearing and posthearing proceedings.
(a) Prehearing conferences. (1) The administrative law judge, on
his or her own initiative or at your request, may decide to conduct a
prehearing conference if he or she finds that such a conference would
facilitate the hearing or the decision in your case. A prehearing
conference normally will be held by telephone, unless the
administrative law judge decides that conducting it in another manner
would be more efficient and effective in addressing the issues raised
at the conference. We will give you reasonable notice of the time,
place, and manner of the conference.
(2) At the conference, the administrative law judge may consider
matters such as simplifying or amending the issues, obtaining and
submitting evidence, and any other matters that may expedite the
hearing.
(3) The administrative law judge will summarize in writing, or on
the record at the hearing, the actions taken or to be taken as a result
of the conference.
(4) Subject to Sec. 404.957(b)(4), if neither you nor the person
you designate to act as your representative appears at the prehearing
conference, and under Sec. 404.957(b) you do not have a good reason
for failing to appear, we may dismiss the hearing request.
(b) Prehearing statements. (1) At any time before the hearing
begins, you may submit, or the administrative law judge may request
that you submit, a prehearing statement describing why you disagree
with the reconsidered determination.
(2) Unless otherwise requested by the administrative law judge, a
prehearing statement should discuss briefly the following matters:
(i) Issues involved in the proceeding,
(ii) Facts,
(iii) Witnesses,
(iv) The evidentiary and legal basis upon which you believe the
administrative law judge should decide the case in your favor, and
(v) Any other comments, suggestions, or information that might
assist the administrative law judge in preparing for the hearing.
(c) Posthearing conferences. (1) The administrative law judge may
decide, on his or her own initiative or at your request, to hold a
posthearing conference to facilitate the hearing decision. A
posthearing conference normally will be held by telephone unless the
administrative law judge decides that conducting it in another manner
would be more efficient and effective in addressing the issues raised.
We will give you reasonable notice of the time, place, and manner of
the conference. The administrative law judge will place in the record a
written summary describing the actions taken or to be taken as a result
of the conference.
(2) If neither you nor the person you designate to act as your
representative appears at the posthearing conference, and under Sec.
404.957(b) you do not have a good reason for failing to appear, we will
issue a decision based on the information available in your case.
31. Remove the undesignated center heading ``APPEALS COUNCIL
REVIEW'' preceding Sec. 404.966.
Sec. Sec. 404.966 through 404.984 [Removed]
32. Remove existing Sec. Sec. 404.966 through 404.984 and the
undesignated center heading preceding Sec. 404.983.
33. Add a new undesignated center heading and Sec. Sec. 404.967
through 404.977 and Sec. Sec. 404.982 and 404.983 to read as follows:
Appeals to the Review Board
Sec. 404.967 The Review Board.
(a) The Review Board is composed of administrative appeals judges
whom we appoint. It is responsible for reviewing decisions made by
administrative law judges in cases where you or another party to the
proceedings has filed a notice of appeal of the administrative law
judge's decision. A party also may appeal an administrative law judge's
dismissal of a request for hearing to the Review Board.
(b) The Review Board may choose to review a decision by an
administrative law judge even if no party has filed an appeal of that
decision. The circumstances in which the Review Board may initiate such
a review, and the procedures it will follow, are described in Sec.
404.970.
(c) The Review Board also may identify issues that impede
consistent adjudication at any or all levels of the administrative
review process and may recommend appropriate changes in policies and
procedures to address those impediments. This advisory function will be
performed separately from the Review Board's adjudicative function.
Sec. 404.968 Appeal to the Review Board--general.
(a) If you or any other party is dissatisfied with a hearing
decision that is unfavorable, in whole or in part, or with the
dismissal of a hearing request, you may appeal that action to the
Review Board. The Review Board will consider your appeal and either:
(1) Affirm, reverse, or modify the decision of the administrative
law judge;
(2) Remand the case to an administrative law judge for further
proceedings; or
(3) Dismiss your appeal pursuant to Sec. 404.976.
(b) The Review Board will notify the parties at their last known
addresses of the action it has taken.
Sec. 404.969 How to appeal to the Review Board.
(a) Right to appeal to the Review Board. If you are a party to the
administrative proceedings in a case and an administrative law judge
has issued a hearing decision or dismissal that is unfavorable to you,
in whole or in part, you have the right to appeal that action by the
administrative law judge to the Review Board.
(b) Time limit on appeals to the Review Board. (1) To begin your
appeal, you must file a notice of appeal within 60 days after the date
you receive notice of the administrative law judge hearing decision or
dismissal, unless we have extended the time period as provided in
paragraph (b)(2) of this section.
(2) You or any party to a hearing decision may ask that the time
for filing a notice of appeal to the Review Board be extended. The
request for additional time must be in writing, must be filed with the
Review Board, and must give the reasons why the notice of appeal was
not filed, or cannot be filed, within
[[Page 61234]]
the 60-day period provided by paragraph (b)(1). If you show that you
have good cause for missing the 60-day deadline, we will grant you
additional time to file the notice of appeal. We use the standards in
Sec. 404.911 to determine whether you had good cause.
(c) Contents of the appeal. Your notice of appeal must be in
writing and must clearly indicate that you are appealing a specific
unfavorable administrative law judge hearing decision or dismissal. Any
documents or other evidence you wish to have considered by the Review
Board should be submitted with your notice of appeal. You also should
include with your notice of appeal a written statement that identifies
any errors you believe the administrative law judge made, explains why
those alleged errors require reversal or modification of the
administrative law judge's hearing decision or dismissal under the
standards of review described in Sec. 404.971, and cites applicable
law and specific facts in the administrative record to support your
contentions.
(d) Where to file your notice of appeal. You may file your notice
of appeal at one of our offices. If you have a disability claim, you
may also file your notice of appeal at the Veterans Affairs regional
office in the Philippines or, if you have 10 or more years of service,
or at least 5 years of service accruing after December 31, 1995, in the
railroad industry, at an office of the Railroad Retirement Board.
Sec. 404.970 Review Board initiates review.
(a) General. Anytime within 60 days after the date of a decision or
dismissal that is subject to review under this section, the Review
Board may decide on its own motion to review the action that was taken
in your case. We may refer your case to the Review Board and ask that
it review your case under this authority.
(b) Identification of cases. We will identify a case for referral
to the Review Board for possible review under this section before we
effectuate the decision in the case. We will identify cases for
referral to the Review Board through random and selective sampling
techniques, which we may use in association with examination of the
cases identified by sampling. We also will identify cases for referral
to the Review Board through the evaluation of cases we conduct in order
to effectuate decisions.
(1) Random and selective sampling and case examinations. We may use
random and selective sampling to identify cases involving any type of
action (e.g., wholly or par