SSA Seeks Big Changes to Appeals

The Social Security Administration (SSA) has proposed major changes in its appeals process for both disability and non-disability issues. 72 Fed. Reg. 61218 (Oct. 29, 2007). The proposed rules would affect the Administrative Law Judge (ALJ) and Appeals Council stages as well as remands from the district courts. The changes include restrictions on the introduction of new evidence during the appeals process and a limit on the time period covered in a hearing on remand to the time period covered by the first ALJ decision. The proposed rule incorporates many of the provisions that former Commissioner Barnhart implemented for disability appeals in New England last year but differs in significant respects as well. It is estimated that adoption of these rules would result in $1.5 billion less benefits being paid over the next ten years.

ALJ Hearings

Changes at the ALJ stage include the following:

--If disability is an issue, the claimant would be required to include in the hearing request a statement of the medically determinable impairment(s) that prevents the claimant from working.

--The ALJ must notify an individual of the time and place of the hearing at least 75 days before the hearing, unless shorter notice is agreed to.

-- Objections to the time or place of the hearing must be sent to the ALJ in writing as soon as possible, no later than 30 days after receipt of the notice of hearing.

--Objections to the issues to be decided must be sent to the ALJ in writing no later than 5 business days before the hearing.

--All evidence must be submitted at least 5 business days before the hearing unless: (1) SSA misled the individual; (2) the individual had a physical, mental, educational, or linguistic limitation that prevented earlier submission; or (3) some other unusual, unexpected, or unavoidable circumstance beyond the individual’s control prevented earlier submission of the evidence.

--Evidence can be submitted after the hearing but before the hearing decision only if one of the three aforementioned requirements for late submission of evidence is met and in addition there is a reasonable possibility that the evidence would affect the outcome.

--There is a specific provision for prehearing statements either at the initiative of the claimant or the request of the ALJ.

--As at present, the ALJ may require attendance at prehearing and/or posthearing conferences, which would generally be conducted by telephone.

--As under the present rules the ALJ can determine whether the hearing will be in person or by video teleconference, except that the hearing will be rescheduled if the individual objects to appearing by video teleconference. However, the proposed rule allows an ALJ to require a witness to appear by teleconference if use of the technology would be more efficient and there is no other reason why a video hearing should not be conducted. It would also allow the ALJ to require the claimant to appear by telephone under extraordinary circumstances where appearing in person is not possible and video teleconference is not available such as when an individual is incarcerated in a facility without video teleconferencing that does not allow hearings to be held on the premises.

Review Board

This new entity would replace both the Appeals Council and the Decision Review Board currently in use in the New England region. The NPRM analogizes its function to that of a federal court of appeals. Like the Appeals Council, it would be composed of administrative appeals judges. However, in a significant departure from the current rules and from the rules governing the Decision Review Board in New England, the Review Board would not have the option to decline review. Any party to a hearing would have the right to appeal a hearing decision or dismissal to the Review Board and have the Review Board review the case.

Other provisions relating to the Review Board include the following:

--Additional evidence can be submitted to the Review Board by a claimant only if it relates to the period before the first decision by an ALJ and if all the requirements for late submission of evidence at the hearing level are met and then only if there is a reasonable probability that it would change the outcome.

--If the Review Board believes additional evidence is needed, 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.

--Factual findings of the ALJ would be reviewed under the substantial evidence standard.

--Legal questions would be reviewed de novo.

--The Review Board would apply what it refers to as a “harmless error” rule in considering errors relating to admission or exclusion of evidence or any error, defect, or omission in any ruling or decision of the ALJ. Under this rule, the claimant would have to demonstrate a reasonable probability that the results would be changed.

--The Review Board would have three options for disposition. It could: (1) issue a new decision affirming, modifying, or reversing the decision of the ALJ; (2) remand to the ALJ for further proceedings; or (3) summarily affirm the decision and analysis of the ALJ without issuing a separate opinion of its own.

Reopening

New and material evidence would no longer be a basis for reopening any decision made at the hearing or Review Board levels on a claim for benefits based on disability.

Changes in Condition

In a major change from current rules, any appeal to the Review Board and any subsequent administrative proceedings on remand from the Review Board or a federal court will only consider the claimant’s eligibility on or before the date of the first ALJ hearing decision on the claim. Thus, in a disability claim, if the claimant’s condition has worsened, as is often the case, the claimant’s current condition cannot be considered. Thus it is imperative that claimants be advised to file a new application immediately after an unfavorable ALJ decision even if they are pursuing an appeal. Of course, this is of limited help to those who no longer meet the disability insured status requirement for Social Security Disability Insurance (SSDI).

Comments on the proposed rules are due no later than December 28, 2007. The NPRM contains a helpful side by side table comparing current policy on various points with the proposed policy. 72 Fed. Reg. at 61223 - 25.

For further information, contact Gerald McIntyre in the NSCLC Los Angeles office.