SSA Issues Final Rules For New Disability Apeeals Process

The Social Security Administration published final rules on March 31, 2006 for a new administrative appeals process for appeals from initial determinations of disability in the SSDI and SSI programs.

The Social Security Administration published final rules for a new administrative appeals process for appeals from initial determinations of disability in the SSDI and SSI programs. 71 Fed. Reg.16424 (March 31, 2006).

The new rules represent the most significant change in the administrative appeals process since the program began and, for the most part, follow the proposed rules published by the agency last year. 70 Fed. Reg. 43590 (July 27, 2005). The changes include elimination of the Appeals Council, replacement of reconsideration at the state agency level with a Federal Reviewing Official and closing the administrative record after the ALJ decision. The final rule establishes a new Part 405 of the regulations entitled "Administrative Review Process for Adjudicating Initial Disability Claims." The Commissioner stated that the new disability determination process will be rolled out gradually, beginning in the Boston Region on August 1 of this year and that it will not be extended to another region until at least a year after that. It should be emphasized that these changes, at least for now, apply only to appeals from initial disability determinations and not to appeals from a determination after a continuing disability review (CDR) or to non-disability appeals.

Features of the new disability process include:

--Establishment of a Quick Disability Determination (QDD) process in a special QDD unit of the state agency which will be responsible for making disability determinations in 20 days or less where a claim has been identified as having a high probability of disability. The expectation is that a very small number of claims would be selected for this process at the start but that the number would increase as SSA refines its selection criteria. 20 CFR §§ 405.101, 405.105.

--Establishment of a new Federal Expert Unit (FEU)to provide medical, psychological and vocational expertise at all stages of the administrative process. § 405.10. The FEU will also oversee a new national network of medical and vocational experts who will be required to meet qualifications to be established by the Commissioner. § 405.15. Experts called by an ALJ to testify at a hearing must be part of this network.

--Replacement of reconsideration at the state agency with review by a Federal Reviewing Official (RO) who will issue a written decision based on the record. §§ 405.201 - 405.230. According to the Supplementary Information accompanying the proposed rule, the RO will be an attorney.

--A requirement that ALJs state the reasons why they agree or disagree with the RO decision. § 405.370(a).

--Changes in the quality assurance system.

From the claimant’s perspective the new rules contain a mix of positive and negative elements. On the positive side the Quick Disability Determination process has the potential, not only for providing a prompt determination for those selected for the QDD process, but also has the potential for speeding up the process for other claimants by reducing the volume of remaining claims.

Among the areas of concern for claimants are the decision to close the administrative record after the ALJ decision except in extremely limited circumstances and the decision to abolish the Appeals Council. While elimination of the Appeals Council has the benefit of enabling claimants to obtain federal court review much sooner, this is likely to be outweighed by some claimants simply foregoing any appeal of an adverse ALJ decision and by an increased volume of appeals to the district courts which may produce a renewed clamor for the establishment of a specialized Social Security court in place of review by an Article III court.

The final rules are a definite improvement from the proposed rules published last July in that the final rules do not contain the same extremely stringent time limits for submission of evidence that the proposed rules contained. For further information, contact Gerald McIntyre in the NSCLC Los Angeles office.