Proposed Regulations: Amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals Levels, 72

Note -  these Proposed Regulations  this publication do not affect the FedRO step.  We are still waiting for SSA to publish final regs suspending the FedRO step!   

Also note  -  these are PROPOSED regs - the comment period does not close until 12/28/07 - so nothing is going to change until sometime next year  after the publication of final regulations.  This means that in Region 1, the DSI ALJ evidence restrictions and the DRB apply for initial disability applications filed on or after 8/1/2006 until the final regulations are published. 

The ground rules:

1.  When  published as final  regulations, these  ALJ/DRB changes will apply nationwide.

2.  They will apply to BOTH disability and nondisability cases. 

3.  SSA's main  stated justification for the changes is to make the hearing process more efficient and reduce the ODAR backlogs - which, SSA states, have reached historic proportions.  SSA also blames late submisison of evidence for part of the backlogs. 

Proposed Changes to the  ALJ RULES

1 .  SSA proposes to extend the DSI ALJ evidence submission rules to the rest of the nation (and to nondisability cases):

a.  All evidence must be submitted within 5 business days of the date of the scheduled hearing, unless an exception applies.

b. The exceptions are: i) SSA action mislead claimant; ii) physical, mental, educational or linguistic limitations prevented earlier evidence submission;  or  iii) some other unusual, unexpected or unavoidable circumstance prevented earlier evidence submission.

c.  At hearing, ALJ retains discretion to hold the record open for for a specific amount amount of time to receive additional evidence.

d.  After the hearing but before ALJ submission - if one of the 3 exceptions in 4.b. above applies and claimant can demonstrate a reasonable possibility that the evidence would affect the outcome. 

2 .  The Commissioner also proposes to extend DSI notice and objection rules nationwide: 

a.  75 days advance notice of hearing;
b.  claimant must object to time and place with in 30  days; and
c. Objections to issues noticed must be made before 5 business days prior to hearing.

3 .  The proposed regulations provide that claimant  should include a statement of the medically determinable impairments that she believes prevent her from
working.   This seems to be a change from the current rules.  

4 .  The proposed rules provide for pre   hearing and post hearing conferences.  There seems to be a change in the notice requirement - from 7 days in advance to "reasonable notice."     The proposed rule also states that these will ordinarily occur by ordinarily by telephone unless  the  " ALJ decides it's more efficient & effective to do it differently." 

5 .  If  the claimant objects to  a  video teleconference hearing,  the  ALJ  will reschedule for  an  in person  hearing.  But,  the  ALJ  can direct that a witness other than the individual who requested it appear by video teleconference.

6. The ALJ may direct individuals who cannot  attend  in person to have  their hearing by phone.  The example given is where the claimant is in a prison which will not allow an in person hearing and  where video teleconferencing  is not available.  This seems to be new.

Proposed changes to the  AC, DRB RULES

1. The proposed rules would replace the Appeals Council and the Decision Review Board with a new entity - the Review Board.

2 .  Claimants would have the right to appeal to the Review Board.

3 .  New evidence submissions to the Review Board would be limited to those situations where one of the exceptions  in 4.b., above, applies and  where  there is a reasonable probability that  the evidence would change the outcome.

4 .  New evidence  must relate to period under consideration by ALJ.

5 .  The Review Board may seek new evidence itself  or remand  the case to the ALJ to obtain it.

6   The Review Board can not decline review.

7.  The Review Board would be able to issue new decision, remand to ALJ, or affirm  the ALJ decision,  where  there are no significant legal or factual
issues.

8 .  The standard of review would be substantial evidence and error of law.  Where the Review Board finds errors that are considered "harmless error, the Review Board may affirm the ALJ decision.  The Commissioner states that this more efficient and make the Review Board more like appellate review.

9 .  Perhaps the biggest and most harmful change is the proposed rule that would close the evidentiary record  with the first ALJ hearing or Review Board decision.  This means that on remand from the Review Board only the period before the ALJ at first hearing is considered (to do otherwise is inefficient, says the Commissioner)  - and the only evidence that can be considered is that that was before the ALJ or which made the exceptions grade for later submission.  (Note that evidence submission rules at federal district court are somewhat less restrictive - new, material,  not merely cumulative and good cause for not having submitting it earlier.)  Claimants who have the misfortune to be denied at the ALJ level will have to reapply in order to receive ongoing benefits,
because the most they would get from an appeal would be "time limited benefits" up the date of the ALJ denial.The comment period for these proposed regs ends 12/28/07.

Comments can be mailed to Commissioner of Social Security, P.O. Bpx 17703, Baltimore, MD  21235-7703. Comments can be faxed to 410-966-2830. Comments can be sent via the federal rulemaking portal at www.regulations.gov  In the search 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 to the Comments Add/Due By column.