Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI): Proposed Changes to the Disability Determination and Appeals Processes

Congressional research reportApr 24, 2006

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Social Security Disability Insurance (SSDI) and

Supplemental Security Income (SSI): Proposed

Changes to the Disability Determination and

Appeals Processes

Updated April 24, 2006

Scott Szymendera

Analyst in Social Security

Domestic Social Policy Division

Congressional Research Service ˜ The Library of Congress

Social Security Disability: Proposed Changes to the

Disability Determination and Appeals Processes

Summary

The Social Security Administration (SSA) maintains multi-stage determination

and appeals processes for applications to the Social Security Disability Insurance

(SSDI) and Supplemental Security Income (SSI) programs. These processes begin

with an initial determination of disability by a state agency, followed by multiple

opportunities for administrative appeals. Unsuccessful applicants are also entitled

to appeal their decisions to the federal courts.

These processes have been criticized by the SSA, the Social Security Advisory

Board, the Governmental Accountability Office, and others for the timeliness of the

final decision, for rendering initial decisions that are reversed on appeal, and for

inconsistency across states.

In response to these criticisms, the SSA recently proposed changes to the

disability determination and appeals processes. These changes would allow clearly

disabled applicants to get a final decision in 20 days and would bring in-line and endof-line quality reviews into the processes. The reconsideration stage would be

replaced with a review by a federal official and the Appeals Council would be

replaced by a board that would review cases likely to contain errors.

Critics of these reforms have expressed concerns that the changes would put

additional procedural burdens on persons with disabilities and make it more difficult

for them to navigate the system and have all of the evidence in support of their cases

heard.

On March 31, 2006, the SSA issued final rules governing the disability

determination and appeals processes. These final rules will go into effect in the SSA

Boston region on August 1, 2006, with a national implementation expected after a

period of at least one year. The final rules deviate only slightly from the proposed

rules. For a complete overview and analysis of the final rules, see CRS Report

RL33374, Social Security Disability Insurance (SSDI) and Supplemental Security

Income (SSI): The Disability Determination and Appeals Process, by Scott

Szymendera.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Social Security Disability Insurance and Supplemental Security Income . . . . . . . 3

The Disability Determination and Appeals Processes . . . . . . . . . . . . . . . . . . . . . . 4

Initial Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Hearings and Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Reconsideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Administrative Law Judge Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Appeals Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Federal Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issues Surrounding the Current Processes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Accuracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Inconsistency Across States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Proposed Changes to the Disability Determination and Appeals Processes . . . . 14

Timetable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Proposed Quick Disability Determination (QDD) . . . . . . . . . . . . . . . . . . . . 14

Proposed Federal Expert Unit (FEU) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Proposed Initial Disability Determination . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Proposed Federal Reviewing Official (RO) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Proposed Closing of the Record After the ALJ Hearing . . . . . . . . . . . . . . . 15

Proposed Decision Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Proposed Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Issues Surrounding the Proposed Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Proposed Additional Time Limits for Applicants . . . . . . . . . . . . . . . . . . . . 17

Proposed Evidentiary Time Limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Proposed Changes to the Right of a Claimant to Have a Case

Reopened After an ALJ Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Proposed Replacement of the Appeals Council with the Decision

Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rights of Claimants to Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Own Motion Authority of the SSA . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Evidence Rules and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Final Rules and Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

List of Figures

Figure 1. The Five-Step Disability Determination Process . . . . . . . . . . . . . . . . . 5

Figure 2. SSDI and SSI Appeals, FY2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Figure 3. Average Case Processing Times, FY2004 . . . . . . . . . . . . . . . . . . . . . . 11

Figure 4. Proposed Disability Determination and Appeals Processes . . . . . . . . 22

List of Tables

Table 1. Reason for Final Medical Allowance, 2002 . . . . . . . . . . . . . . . . . . . . . . 6

Table 2. Reason for Final Medical Denial, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . 7

Table 3. Allowance Rates at Each Adjudicative Level, 2002 . . . . . . . . . . . . . . . . 9

Table 4. State Variation in Disability Allowance and Reversal Rates, 2000 . . . 13

Table 5. State Variation in Disability Examiner Pay and Productivity . . . . . . . . 13

Social Security Disability: Proposed

Changes to the Disability Determination and

Appeals Processes

Introduction

This report explains the large and complex system used by the Social Security

Administration (SSA) to determine eligibility for disability benefit programs and to

adjudicate disputes that arise from these determinations. Persons with disabilities in

each congressional district are affected by this system. In addition, the fact that

initial decisions are often reversed on appeal and the length of the appeals process

places burdens on the Social Security Disability Insurance Trust Fund and the general

revenue of the United States.

The disability determination and appeals processes used by the SSA have been

called the “largest system of administrative adjudication in the Western world.”1 In

Fiscal Year (FY) 2004, the SSA and its network of state disability determination

services processed more than 2.4 million initial Social Security Disability Insurance

(SSDI) applications and more than 2.2 million applications for Supplemental

Security Income (SSI) benefits. That same year, the 944 SSA Administrative Law

Judges issued rulings on 495,029 appeals of initial disability determinations and the

SSA Appeals Council ruled on 97,701 appeals of Administrative Law Judge

decisions.2

The number of cases appealed, and the number of these cases that result in a

reversal of the initial determination, indicate that in many cases, persons with

disabilities who meet the statutory eligibility requirements for the SSDI or SSI

programs may not receive the benefits to which they are entitled. These claimants

are then forced into the complex and multi-layered appeals system with its own

procedural rules and quasi-judicial framework. For some applicants, a final decision

on their claim can take several years.

Decisions that are reversed on appeal and the length and complexity of the

appeals process increase the administrative costs paid by the SSA. In the case of

SSDI applicants, these costs are paid out of the Social Security Disability Trust Fund

and are funded by payroll taxes whereas SSI administrative costs come from the

general revenue of the United States. In FY2005, SSDI administrative costs are

Lance Liebman, Disability Appeals in Social Security Programs (Washington: Federal

Judicial Center, 1985), p. 1.

Social Security Administration, Annual Statistical Supplement to the Social Security

Bulletin, 2005, 2005, pp. 2. F5, 2.F6, 2.F8, 2.F9, 2.F11.

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budgeted to be 2.6% of benefit payments whereas SSI administrative costs are

budgeted to be 7.8% of benefit payments.3

The number of initial decisions reversed on appeal and the length and

complexity of the disability appeals process also have a public policy impact. In

establishing the SSDI and SSI programs, Congress set requirements for program

participation and the receipt of benefits and charged the SSA with the task of

providing that persons who meet these standards are given the benefits to which they

are entitled. However, in many cases, this is either not occurring or occurring only

after a lengthy delay and deserving beneficiaries, who by the very nature of their

disability and work status are often among the least well-off in society, are forced to

navigate a long and difficult process to receive their benefits. In other cases, persons

who do not meet the statutory definition of disability are receiving benefits because

of inaccurate determinations or appellate decisions.

To best provide readers with an understanding of the current disability

determination and appeals processes as well as the changes to these processes

proposed by the SSA, this report is organized into the following five major sections:

The first section is an overview of the SSDI and SSI programs;

The second section describes, in detail, the current disability

determination and appeals processes;

The third section provides a discussion of the issues surrounding

these processes that have been raised by observers;

The fourth section describes, in detail, the changes to these systems

proposed by the SSA; and

The final section provides a discussion of some of the issues raised

regarding these proposed changes.

On March 31, 2006, the SSA issued final rules governing the disability

determination and appeals processes. These final rules will go into effect in the SSA

Boston region on August 1, 2006, with a national implementation expected after a

period of at least one year. The final rules deviate only slightly from the proposed

rules. For a complete overview and analysis of the final rules, see CRS Report

RL33374, Social Security Disability Insurance (SSDI) and Supplemental Security

Income (SSI): The Disability Determination and Appeals Process, by Scott

Szymendera.

Data taken from the Social Security Administration FY2005 President’s Budget, available

at [http://www.ssa.gov/budget/FactCard2005.pdf].

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Social Security Disability Insurance and

Supplemental Security Income

The SSA administers two programs, SSDI and SSI, that provide income and

benefits to persons unable to work because of serious disabling conditions.4 In both

programs, disabled individuals must pass the same statutory test of disability as

outlined in Titles II and XVI of the Social Security Act.5

The SSDI program pays benefits to disabled individuals under the provisions

of Title II of the Social Security Act. SSDI benefits are paid to those who meet the

statutory test of disability and have completed a five-month waiting period from the

onset of disability.6 Program beneficiaries must have a sufficient work history in

employment covered by Social Security to qualify for benefits.7 Benefits and

administrative costs are paid out of the Social Security Disability Insurance Trust

Fund, which is funded by a portion of the payroll taxes collected on earnings. There

is no means test for the SSDI program. The SSDI program pays monthly benefits

based on past earnings and, after two years, participants are eligible to receive

Medicare hospitalization insurance (Part A) and purchase Medicare supplemental

insurance (Part B) or enroll in a Medicare Advantage Plan.8

Under the provisions of Title XVI of the Social Security Act, disabled

individuals and those 65 and older are entitled to benefits from the SSI program if

they meet the statutory test of disability and have income and assets that fall below

levels set by program guidelines. SSI benefits are paid out of the general revenue of

For more information on the SSDI and SSI programs, see CRS Report RL32279, Primer

on Disability Benefits: Social Security Disability Insurance (SSDI) and Supplemental

Security Income (SSI), by April Grady and Julie M. Whittaker.

42 U.S.C. §§ 423(d)(1) and 1382c. A person is disabled under the terms of the statute if

he or she is unable to engage in any Substantial Gainful Activity (SGA, for 2005 earnings

of $830 per month for non-blind persons and $1,380 per month for blind persons) because

of a medically determinable physical or mental impairment. This impairment must be

expected to result in the impaired person’s death, or be expected to last at least 12

consecutive months. In addition, this impairment must prevent a person from engaging in

his or her previous work or in any other work that exists in the national economy. The

Supreme Court held in Barnhart v. Thomas 124 S. Ct. 376 (2003) that the previous work test

does not require that an individual’s prior job exists in the national economy.

For more information on the five-month waiting period, see CRS Report RS22220, Social

Security Disability Insurance: The Five-Month Waiting Period for SSDI Benefits, by Scott

Szymendera.

A detailed explanation of the insurance requirements can be found at [http://www.ssa.gov/

dibplan/dqualify3.htm] and in CRS Report RL32279, Primer on Disability Benefits: Social

Security Disability Insurance (SSDI) and Supplemental Security Income (SSI), by April

Grady and Julie M. Whittaker.

For more information, see CRS Report RS22195, Social Security Disability Insurance

(SSDI) and Medicare: The 24-Month Waiting Period for SSDI Beneficiaries Under Age of

65, by Julie M. Whittaker.

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the United States and all participants receive the same basic monthly benefit.9 In

most states, adults who collect SSI are automatically entitled to coverage under the

Medicaid health insurance program.10

The Disability Determination and

Appeals Processes

Decisions on applications to SSDI and SSI require that evaluations be made

about the severity of reported disabling conditions. These tasks are complicated by

the fact that scholars and advocates continue to struggle to define the concept of

disability, the nature of impairment, and how different conditions can limit essential

life and work activities.11 This differs from the Social Security retirement program,

which needs only to confirm an applicant’s age and insured status before paying out

benefits.

Initial Determination

The disabled worker submits an application to the SSA. The evaluation of

disability takes place in the appropriate state Disability Determination Services

(DDS) office. The DDS is a state agency with state employees who evaluate SSDI

and SSI applications according to federal guidelines. The DDS determines whether

someone is disabled according to a five-step sequential evaluation process. Current

work activity, severity of impairment, and vocational factors are assessed in that

order. An applicant may be denied benefits at any step in the sequential process even

if the applicant may meet a later criterion. For example, a worker that meets the

medical listings for disability but earns an amount exceeding the Substantial Gainful

Activity (SGA) earnings limit would be denied benefits at Step 1. The five steps are

as follows and are depicted in Figure 1.

The basic monthly federal benefit amount for 2005 is $579 for a single person and $869

for a couple. This amount is supplemented by 44 states and the District of Columbia.

Arizona, Georgia, Kansas, Mississippi, the Commonwealth of the Northern Mariana Islands,

Tennessee, and West Virginia do not offer a state supplement. A participant in the SSI

program receives the federal benefit amount, plus any state supplement, minus any

countable income. SSI benefits are not available to residents of Puerto Rico, Guam, or the

United States Virgin Islands. Residents of these jurisdictions are eligible to receive federal

benefits from their commonwealth or territorial government under provisions of Title XIV

and Title XVI of the Social Security Act. These benefits are administered by the

Department of Health and Human Services.

Thirty-nine states, the District of Columbia, and the Commonwealth of the Northern

Mariana Islands grant Medicaid eligibility to all adult SSI recipients, or have Medicaid

eligibility rules that are the same as those of the SSI program. For more information, see

[http://www.ssa.gov/work/ResourcesToolkit/Health/medicaid.html].

For an overview of this debate, see Barbara M. Altman, “Disability Definitions, Models,

Classification Schemes, and Applications,” in Gary L. Albrecht, Katherine D. Seelman, and

Michael Bury, Handbook of Disability Studies (Thousand Oaks, CA: Sage Publications,

2001).

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Step 1. Work test. Is the individual working and earning over SGA?

If yes, the application is denied. If no, the application moves to Step

Step 2. Severity test. Is the applicant’s condition severe enough to

limit basic life activities for at least one year? If yes, the application

moves to Step 3. If not, the application is denied.

Step 3. Medical listings test. Does the condition meet SSA’s

medical listings, or is the condition equal in severity to one found on

the medical listings?12 If yes, the application is accepted and

benefits are awarded. If no, the application moves to Step 4.

Step 4. Previous work test. Can the applicant do the work he or she

had done in the past? If yes, the application is denied. If not, the

application moves to Step 5.13

Step 5. Any work test. Does the applicant’s condition prevent him

or her from performing any other work that exists in the national

economy? If yes, the application is accepted and benefits are

awarded. If no, the application is denied.

Figure 1. The Five-Step Disability Determination Process

Source: The Congressional Research Service (CRS).

The medical listings can be found in the Social Security Administration publication

Disability Evaluation Under Social Security, available at [http://www.ssa.gov/disability/

professionals/bluebook/Entire-Publication1-2005.pdf]. This publication is commonly

referred to as the SSA Blue Book. (Hereafter cited as SSA Blue Book.)

Cases of children applying for SSI benefits are not subject to the work test but instead to

a test of functional capacity.

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Meeting or exceeding the medical listings is the most common reason why

applications to the SSDI and SSI programs are accepted. In 2002, over 44% of SSDI

applicants and 53% of SSI applicants were admitted to the disability rolls because of

successfully meeting the medical listing test (Step 3 of the five step evaluation

process). Among those denied entry into the programs, the most common reason was

for failing the any work test found in Step 5 with over 30% of all SSDI denials and

24% of all SSI denials occurring at this stage.14 Table 1 summarizes the reasons for

final medical allowances. For example, 37.3% of those admitted into the SSDI

program met the severity of the medical listings and an additional 7% of those

admitted were judged to have a condition that is equal in severity to one found in the

medical listings.

Table 1. Reason for Final Medical Allowance, 2002

(by year of application)

Program

Meets Severity

of Listings

Equals

Severity of

Listingsa

Medical and

Vocational

Factors

Combined

Otherb

Social Security Disability

Insurance (SSDI)

37.3%

7.0%

38.9%

16.8%

Supplemental Security Income

(SSI)

38.8%

15.7%

24.4%

21.0%

Source: Table prepared by the Congressional Research Service (CRS) from data provided by Social

Security Administration, Annual Statistical Report on the Social Security Disability Insurance

Program, 2003, 2004, p. 137; SSI Annual Statistical Report, 2003, 2004, p. 123.

a. Includes SSI child cases that functionally equal the level of severity of listings.

b. Includes cases in which a disability was previously established or for which no information is

available.

Table 2 summarizes the reasons for final medical denials. For example, 16.9%

of those denied entry into the SSDI program were denied because their impairments

were not judged to be sufficiently severe.

Social Security Administration, Annual Statistical Report on the Social Security Disability

Insurance Program, 2003, 2004, pp. 137-138; SSI Annual Statistical Report, 2003, 2004,

pp. 123-124.

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Table 2. Reason for Final Medical Denial, 2002

(by year of application)

Program

Impairment

Did Not or Is

Does Not

Impairment

Not Expected

Cause Severe

Not Severe

to Last 12

Functional

Months

Limitationsa

Able to

Do past

Workb

Able to

Do Other

Otherc

Type

Workb

Social Security

Disability

Insurance (SSDI)

9.1%

16.9%

—

27.9%

30.2%

16.0%

Supplemental

Security Income

(SSI)

5.8%

12.6%

17.8%

15.7%

24.2%

23.9%

Source: Table prepared by the Congressional Research Service (CRS) from data provided by Social

Security Administration, Annual Statistical Report on the Social Security Disability Insurance

Program, 2003 (Washington: GPO, 2004), p. 138; SSI Annual Statistical Report, 2003 (Washington:

GPO, 2004), p. 125.

a. Used only for SSI applicants under the age of 18.

b. Applies only to SSI applicants over the age of 18 and all SSDI applicants.

c. Includes cases denied for reasons of substance abuse, cases in which an applicant did not supply

sufficient information or failed to cooperate with regulations, cases in which an applicant

returned to work during processing, and cases denied for unspecified reasons.

Hearings and Appeals

Applicants to the SSI and SSDI programs who are dissatisfied with the decisions

of the DDS may appeal their cases. In FY2004, approximately 63% of applications

to the SSI and SSDI programs were denied and nearly 35% of those denied filed an

appeal of their denial.15 The appeals process begins with a reconsideration of the

decision, followed by an Administrative Law Judge hearing, a decision by the

Appeals Council, and a hearing in the federal court system.

Reconsideration. After the initial denial by the DDS, an applicant may ask

for a reconsideration by a different DDS officer in his or her state. During this first

appellate stage, the entire application and record of the applicant is reviewed as if it

were a new case. The SSA is currently running a prototype project in 10 states that

eliminates this reconsideration step.16 In FY2004, approximately 14% of cases

reconsidered by the DDS resulted in a reversal of the previous denial of benefits.

Administrative Law Judge Hearing. If the applicant is not satisfied with

the decision at the reconsideration stage, he or she may ask for a hearing before an

SSA Administrative Law Judge (ALJ) within 60 days of the reconsideration decision.

Data taken from the website of the Social Security Administration and available at

[http://www.ssa.gov/disability/disability_process_welcome_2004.htm].

The Disability Redesign Prototype began in 1999 and is currently operating statewide in

Alabama, Alaska, Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York

and Pennsylvania; and in the Los Angeles area of California.

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During this hearing, held either in person or via video conference, the applicant has

the opportunity to present his or her case and any evidence to support the appeal.

The SSA is not represented at this hearing and can not contest the applicant or the

evidence. Although a case is officially closed after the decision of the ALJ, the ALJ

does have some authority to reopen a case if new evidence is presented. In FY2004,

63% of cases heard by an ALJ resulted in a favorable decision for the claimant.

Appeals Council. The decision of the ALJ may be appealed by the applicant

to the SSA Appeals Council within 60 days. The Appeals Council may either review

a case or let the decision of the ALJ stand. The Appeals Council conducts a review

of the ALJ hearing and decision and though the applicant may be present and give

a statement, the Appeals Council does not conduct a formal hearing. The Appeals

Council can decide to let the previous decision stand, remand the case back to an ALJ

for a new decision, or reverse the decision of the ALJ. In FY2004, the Appeals

Council ruled on only 4% of all initial applications and awarded benefits in 25% of

these cases.

Federal Courts. The Appeals Council is the final administrative step in the

SSA appeals process. Applicants dissatisfied with the decision of the Appeals

Council or ALJ may file a case in the United States District Court within 60 days of

the decision; an unfavorable decision in the District Court can be appealed to the

United States Court of Appeals and United States Supreme Court. Less than 1% of

all applications for benefits end up in the federal court system and only a handful of

cases are appealed to the United States Court of Appeals.17 The last petition for the

writ of certiorari of a disability determination case granted by the United States

Supreme Court came in 2003 in the case of Barnhart v. Thomas, and the denial of

benefits in this case was upheld by the Court.18

Figure 2 summarizes the number of cases appealed at each stage of the process

and is based on aggregate data for FY2004. During this fiscal year, 37 out of every

100 applications resulted in a favorable decision at the initial determination stage of

the process. Of these 100 applicants, 22 appealed their initial denial to the

reconsideration stage where 3 applications were accepted. Of the initial 100

applicants, 19 appealed to the ALJ stage and 4 appealed to the Appeals Council.

Ultimately, of these 100 applications, 53 were awarded benefits, with 37 of those

awards coming at the initial determination stage, 3 at the reconsideration stage, 12

at the ALJ stage, and 1 at the Appeals Council stage.

Administrative Office of the United States Courts, Federal Judicial Caseload Statistics,

March 31, 2004, 2005, pp. 30-34, 43-44.

124 S. Ct. 376 (2003).

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Figure 2. SSDI and SSI Appeals, FY2004

100

Percentage of Cases

Allowances

Denials

22 APPEAL

19 APPEAL

4 APPEAL

Initial Claims

Reconsiderations

Hearings

Appeals Council

Review

Source: The Congressional Research Service (CRS). Data taken from the SSA website at

[http://www.ssa.gov/disability/disability_process_welcome_2004.htm].

Note: Aggregate data for FY2004, not a tracking of individual cases.

Table 3 summarizes the allowance rate at each stage of the process for 2002.

During that year, nearly 78% of SSDI and just over 64% of SSI cases heard by ALJ’s

resulted in allowances.

Table 3. Allowance Rates at Each Adjudicative Level, 2002

Program

Initial DDS

Reconsideration

ALJ Hearing

and Above

Social Security Disability Insurance

(SSDI)

38.2%

10.5%

77.9%

Supplemental Security Income (SSI)

36.7%

10.1%

64.1%

Source: Table prepared by the Congressional Research Service (CRS) from data provided by Social

Security Administration, Annual Statistical Report on the Social Security Disability Insurance

Program, 2003, 2004, pp. 136-138; SSI Annual Statistical Report, 2003, 2004, pp. 117-119.

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Issues Surrounding the Current Processes

Researchers and others, including the nonpartisan Social Security Advisory

Board,19 have raised the following issues with respect to the disability determination

and appeals process:

timeliness,

accuracy, and

national consistency of the decisions made.

In addition, the Commissioner of Social Security has testified about the

problems caused by the lack of timeliness and the number of initial decision reversed

on appeal in the current processes.20

Timeliness

Some observers, including the Social Security Advisory Board, are concerned

about the length of time involved in the entire disability determination and appeals

processes.21 In addition, the Government Accountability Office (GAO) and others

have commented that the length of the determination and appeals process is a

contributing factor to the historically low return to work rates of SSDI and SSI

beneficiaries.22 Although successful applicants can receive benefits retroactive to the

The Social Security Advisory Board was created in 1994 with the passage of the Social

Security Independence and Program Improvements Act of 1994, P.L. 103-296. The board

is made up of seven members who serve six year staggered terms. Three members of the

board are appointed by the President with the advice and consent of the Senate with no more

than two of these members being from the same political party. Two members, one from

each party are appointed by the President pro tempore of the Senate with the advice of the

chairman and ranking member of the Committee on Finance. Two members, one from each

party, are appointed by the Speaker of the House with the advice of the chairman and

ranking member of the Committee on Ways and Means.

U.S. Congress, House Committee on Ways and Means, Testimony Social Security

Commissioner, Jo Anne B. Barnhart, Social Security Administration’s Management of the

Office of Hearings and Appeals, hearings, 108th Cong. (2003).

General Accounting Office, SSA Disability Redesign: Focus Needed on Incentives Most

Crucial to Reducing Costs and Time, GAO /HEHS-97-20, 1997; General Accounting Office,

Social Security Disability: Disappointing Results from SSA’s Efforts to Improve the

Disability Claims Process Warrant Immediate Attention, 2002; Social Security Advisory

Board, How SSA’s Disability Programs Can be Improved, 1998.

Monroe Berkowitz, “Improving the Return to Work of Social Security Disability

Beneficiaries,” in Jerry L. Mashaw, et al., Disability Work and Cash Benefits (Kalamazoo,

MI: W. E. Upjohn Institute for Employment Research, 1996); Richard V. Burkhauser and

David Wittenburg, “How Current Disability Transfer Policies Discourage Work: Analysis

from the 1990 SIPP,” Journal of Vocational Rehabilitation, vol. 7 (1996), pp. 9-27; General

Accounting Office, SSA Disability: Program Redesign Necessary to Encourage Return to

Work, GAO/HEHS 96-62, 1996; General Accounting Office, Social Security: Disability

Programs Lag in Promoting Return to Work, GAO/HEHS-97-46, 1997; Joann Sim,

(continued...)

CRS-11

date of application, during the determination and appeals processes they are not

working and receive no medical or cash benefits through the SSDI or SSI programs.

In FY2004, applicants waited an average of 95 days for an initial determination

of their disability status from the state DDS agency. Reconsiderations by the DDS

took an average of 97 additional days. After requesting a hearing before an ALJ,

claimants waited an average of 394 days before getting a decision and the wait or a

decision from the Appeals Council took an average of 251 additional days. When

time spent on due process concerns and making appointments is included, a disability

claim that was considered at each stage of the determination and appeals processes

averaged 1,048 days to be resolved by the SSA.23

Figure 3. Average Case Processing Times, FY2004

1200

1100

1000

900

Total 1048 Days

Due

Process/Appointments

211 Days

800

DAYS

700

Appeals Council

251 Days

600

500

400

ALJ Hearing 394 Days

300

200

100

Reconsideration 97

Days

Initial Decision 95

Days

Source: CRS figure from data provided by Social Security Administration, Fiscal Year 2004

Performance and Accountability Report (Washington: GPO, 2005), p. 17.

Note: Due Process/Appointments includes time taken by applicants to file appeals and make

appointments and can occur at any stage in the process.

(...continued)

“Improving Return-to-Work Strategies in the United States Disability Programs, With

Analysis of Program Practices in Germany and Sweden,” Social Security Bulletin, vol. 59,

no. 3 (1999), pp. 41-50.

Social Security Administration, Fiscal Year 2004 Performance and Accountability Report,

2005, p. 17.

CRS-12

Accuracy

Ensuring that initial and appellate disability decisions, both allowances and

denials, are accurate is one of the key goals identified by the SSA in its FY2004

Performance and Accountability Report. Using data from its own internal quality

assurance system, which re-examines a sample of decided cases, the SSA estimates

that 96.5% of initial disability determinations were accurate based on the evidence

presented at the time of the determination. The SSA also reports that the accuracy

rate for decisions made by Administrative Law Judges is 90%.24 Despite this

assertion, in 2003, Administrative Law Judges, the Appeals Council, and the Federal

Courts reversed initial decisions in over 78% of the SSDI cases they heard and 64%

of the SSI cases they heard.25 In many cases, this is due to additional evidence not

presented at the initial determination stage.

Some researchers have suggested that SSA disability decisions are not as

accurate as the agency claims they are. An external study commissioned by the SSA

in 1994 found serious flaws in the quality assurance process at the agency.26 In

addition, a 2004 report that used self-reported disability data to examine the accuracy

of initial and appellate decisions between 1992 and 1996 concluded that

approximately 20% of SSI and SSDI applicants from that time period who ultimately

received benefits were not disabled, while 60% of those ultimately denied benefits

were disabled.27

Inconsistency Across States

Initial disability determinations for SSDI and SSI applicants are made by

independent state DDS offices. Although these offices are funded by the SSA,

disability determinations are made by state employees. These state employees make

determination decisions based on the statutory definition of disability found in Titles

II and XVI of the Social Security Act and the Social Security publication Disability

Evaluation Under Social Security.28 Despite this federal guidance, the Social

Security Advisory Board has found inconsistencies across the states in

DDS allowance rates;

Social Security Administration, FY2004 Performance and Accountability Report, 2005,

pp. 91-92.

Social Security Administration, Annual Statistical Report on the Social Security Disability

Insurance Program, 2003, 2004, pp. 134-136; SSI Annual Statistical Report, 2003, 2004,

pp. 117-122.

The Lewin Group, Inc., Paul Ettinger McCarthy Associates, L.L.C., and Cornell

University, Evaluation of SSA’s Disability Quality Assurance (QA) Processes and

Development of QA Options That Will Support the Long-Term Management of the Disability

Program: Final Report (Falls Church, VA: The Lewin Group, Inc., 2001).

Hugo Benitez-Silva, Moshe Buchinsky, and John Rust, How Large Are the Classification

Errors in the Social Security Awards Process?, National Bureau of Economic Research,

Working Paper no. 10219, 2004.

SSA Blue Book.

CRS-13

rates of reversal of DDS decisions on appeal; and

DDS employee pay and productivity.

Although there is evidence that disability rates vary by state, differences in the

reversal rates on appeal of state DDS decisions point to some inconsistencies at the

initial determination level.29 Data on state variation in DDS determinations and

reversal rates can be found in Table 4. For example, 59% of SSI applications were

approved in the initial decision stage by the DDS in New Hampshire, compared to

27% in West Virginia.

Table 4. State Variation in Disability Allowance and

Reversal Rates, 2000

SSI Initial Decision

Allowance Rate

Highest state

Median

Lowest state

SSDI Initial Decision

Allowance Rate

Administrative Law

Judge Reversal Rate

59% (NH)

65% (NH)

86% (ME)

39%

45%

66%

27% (WV)

31% (TX)

35% (DC)

Source: The Congressional Research Service (CRS). Data taken from Social Security Advisory

Board, Disability Decision Making, Data and Materials (Washington: GPO, 2001), pp. 51, 70.

Note: Reversal rates do not account for dismissed cases.

Table 5 provides data on DDS pay and productivity. In the table, disability

examiners in Connecticut were the highest paid in the country with average salaries

of $70,000.

Table 5. State Variation in Disability Examiner

Pay and Productivity

Average Disability Examiner

Annual Salary, FY1999

Highest State

National Average

Lowest State

Decisions per Staff Year,

FY2000

$70,000 (CT)

356 (MS)

$45,000

250

$30,000 (SD)

196 (MI)

Source: The Congressional Research Service (CRS). Data taken from Social Security Advisory

Board, Disability Decision Making, Data and Materials (Washington: GPO, 2001), pp. 64, 67.

Note: Decisions per staff year is calculated as total number of decisions made divided by the number

of employees.

John L. McCoy, Miles Davis, and Russell E. Hudson, “Geographic Patterns of Disability

in the United States,” Social Security Bulletin, vol. 57, no. 1, (1994), pp. 25-36; William J.

Nelson, Jr., “Disability Trends in the United States: A National and Regional Perspective,”

Social Security Bulletin, vol. 57, no. 3 (1994), pp. 27-41.

CRS-14

Proposed Changes to the Disability Determination

and Appeals Processes

On May 25, 2003, Commissioner of Social Security, Jo Anne B. Barnhart,

announced in testimony to the House Committee on Ways and Means that the SSA

would undertake fundamental reform of the disability determination and appeals

processes. This reform effort has two stated goals: (1) to make the right decision as

early in the process as possible; and (2) to foster return to work at all stages of the

process.30

After announcing this new reform effort, the Commissioner met with several

Members of Congress and organizations representing people with disabilities,

beneficiaries, claimants’ attorneys, and SSA and DDS employees. Based on these

meetings, the initial reform plan discussed in 2003 was slightly revised and new rules

were proposed. These proposed new rules would make a series of changes to the

current Social Security disability determination and appeals processes used by

applicants to the SSI and SSDI programs. Figure 4, in the Appendix, contains a

graphical overview of the proposed disability adjudication and appeals processes.

Timetable

The proposed changes to the disability determination and appeals processes

were formally introduced, in the form of a Notice of Proposed Rulemaking, in the

Federal Register on July 27, 2005. As required by the Administrative Procedures

Act,31 the SSA gave the public 90 days from the date of the NPRM to submit

comments on the rules. This public comment period ended on October 25, 2005. In

her hearing testimony, the Commissioner indicated that the SSA will review these

comments and expects to announce final rules that incorporate them sometime in

January, 2006. These rules would then be implemented during the Spring of 2006.

The NPRM states that this implementation would begin in one of the smaller of the

SSA’s geographical regions. The Commissioner testified that the SSA would wait

at least one year after implementation in one region before implementing the new

rules nationwide and would use this time to evaluate the impact of the new rules.

Each stage of the proposed new processes is discussed in detail below.

Proposed Quick Disability Determination (QDD)

All initial disability claims would be screened by the SSA, and those deemed

likely to meet the statutory definition of disability and to have readily available

supporting evidence would be transferred to a Quick Disability Determination (QDD)

unit established in each state. The unit would have 20 days to evaluate each case and

either award benefits or transfer the case back to the state DDS for standard

Testimony of Social Security Commissioner Jo Anne B. Barnhart, in U.S. Congress,

House Committee on Ways and Means, Social Security Administration’s Management of

the Office of Hearings and Appeals, hearings, 108th Cong., 1st sess., Sept. 25, 2003, Serial

No. 108-40 (Washington: GPO, 2003).

5 U.S.C. § 553.

CRS-15

processing. All positive determinations made by this unit would be made in

consultation with a medical or psychological expert who meets a set of standards

established by the SSA. This differs from the current process, which has no

expedited system for handling cases likely to meet the definition of disability.

Proposed Federal Expert Unit (FEU)

A Federal Expert Unit (FEU) would be established to assist with disability

determinations at all levels of the administrative process. The FEU would be

operated by the SSA and would oversee a national network of medical and vocational

experts that would meet specific standards set by the SSA. The FEU, or experts from

the national network, would serve as consultants at all levels of the administrative

process. Experts currently employed by DDS agencies would be eligible to join the

national network if they meet the standards set by the SSA. The goal of the FEU and

the national network is to ensure that decision-makers at all stages of the

determination and appeals processes have access to experts who meet one set of

consistent national standards. This differs from the current process in which each

DDS agency is free to use their own experts who do not have to meet any national

standards.

Proposed Initial Disability Determination

Cases not decided by the Quick Disability Determination Unit would be

processed by state disability determination services agencies. With the exception of

the assistance of the FEU, this process would remain unchanged.

Proposed Federal Reviewing Official (RO)

The current reconsideration step would be eliminated and replaced with a review

by a Federal Reviewing Official (RO). The RO would be a lawyer and an employee

of the SSA. An applicant dissatisfied with the decision of the state DDS would be

able to request a review by the RO. The RO would review the decision of the DDS

but would not hold a hearing or meet with the applicant in person. The RO could

collect evidence and order a consultative examination with the assistance of the FEU.

The RO could reverse, remand, modify, or affirm the decision of the DDS. In cases

where the RO would reverse the decision of the DDS, the evidence in the case would

have to be reviewed by the FEU. All decisions made by the RO would have to be in

writing and would be sent to the DDS and used by the SSA for quality control

purposes.

Proposed Closing of the Record After the ALJ Hearing

Applicants dissatisfied with the decision of the RO would continue to be able

to request a hearing before an ALJ. As is currently the case, this would be a de novo

hearing in which the applicant could bring forward any new evidence that he or she

feels is material. However, an applicant would be required to present all evidence

to the ALJ no later than 20 days before the date of the hearing. In most cases, the

decision of the ALJ would be final and would close the record. With limited

exceptions, no new evidence could be considered after the decision of the ALJ had

CRS-16

been made. The decision of the ALJ would have to be in writing and would have to

specify why the ALJ agrees or disagrees with the decision of the RO.

Proposed Decision Review Board

The Appeals Council would be eliminated and replaced by a Decision Review

Board made up of experienced ALJs and other adjudicators appointed to staggered

terms by the SSA. The Decision Review Board would not review cases decided by

ALJs on appeal, but would use a computer screening model to identify ALJ decisions

likely to contain errors or likely to result in a review by the federal courts. The

Decision Review Board would have the authority to affirm, modify, or reverse the

decisions of ALJs, even when those decisions were favorable to applicants. Cases

dismissed by the ALJ would be heard by the Decision Review Board on appeal

because these cases are not subject to review by the federal courts.32 The decision of

the Decision Review Board would be in writing and would specify the reasons for

the decision. The Decision Review Board would have 90 days to rule on any case.

After 90 days, if no ruling is made, the decision of the ALJ stands.

Proposed Judicial Review

A claimant dissatisfied with the decisions of either the ALJ or the Decision

Review Board would retain his or her current right to ask for a judicial review of the

SSA’s decision in the United States District Court. Claimants would have 90 days

from the date of the ALJ decision, rather than the current 60 days, to file for this

review.

Issues Surrounding the Proposed Rules

On September 27, 2005, the Subcommittees on Human Resources and Social

Security of the House Committee on Ways and Means held a joint hearing on the

proposed changes to the disability determination and appeals processes.33

Representatives from the judicial, disability advocacy, and legal communities

testified as to the strengths and weaknesses of the proposed changes.34 This

testimony, and the public statements of the groups, raised three dominant issues as

having the potential to negatively affect persons with disabilities as they navigate the

proposed determination and appeals processes. The issues include

The ALJ may make a decision on a case or dismiss it entirely. Dismissals can not be

appealed to the federal courts.

U.S. Congress, House Committee on Ways and Means, Subcommittee on Human

Resources and the Subcommittee on Social Security, Joint Hearing on Commissioner of

Social Security’s Proposed Improvements to the Disability Determination Process, 109th

Cong., 1st sess., Sept. 27, 2005 (not yet available).

A complete list of witnesses and copies of all testimony is available on the website of the

House Committee on Ways and Means at [http://waysandmeans.house.gov/hearings.asp?

formmode=detail&hearing=442&comm=4].

CRS-17

the imposition of additional time limits on applicants;

the closing of the record after the ALJ hearing; and

the elimination of the Appeals Council.

Proposed Additional Time Limits for Applicants

The proposed rules include several binding time limits that applicants would

have to follow; otherwise, they would lose the right to pursue their appeals or present

evidence in support of their cases. Although these time limits are designed to shorten

the length of the appeals process, they could limit the current flexibility applicants

have to schedule hearings and prepare their cases. The National Organization of

Social Security Claimants’ Representatives (NOSSCR), a group that represents

lawyers who handle disability appeals, fears that these time limits could become

“procedural traps” for claimants who do not have legal representation.35

The proposed rules would add the following time limits:

10 days from the receipt of a notice of the date of an ALJ hearing to

object to the time or place of the hearing;36

10 days to object to the issues specified in the notice of the ALJ

hearing;37

20 days before the date of an ALJ hearing to request that witnesses

be subpoenaed;38

10 days to submit new evidence after the decision of the ALJ;39

10 days after a case is dismissed to ask the ALJ to vacate the

dismissal;40 and

10 days from the receipt of a notice that the Decision Review Board

will review a case to submit a written statement to the Decision

Review Board.41

None of the proposed time limits could be waived by an ALJ, and none of the

proposed rules include any provisions for a good cause or other extension.

National Organization of Social Security Claimants Representatives, NOSSCR Comments

on Proposed Changes to Disability Claim Review Process, Oct. 25, 2005, available on

NOSSCR’s website at [http://www.nosscr.org/NOSSCRdibfinal.pdf].

20 CFR § 405.317 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

Ibid.

20 CFR § 405.332 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

20 CFR § 405.373 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

20 CFR § 405.382 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

20 CFR § 405.425 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

CRS-18

Proposed Evidentiary Time Limit. In addition to the time limits mentioned

above, the new rules propose a time limit for the submission of evidence to an ALJ.

Section 205 of the Social Security Act provides that the decision of an ALJ shall be

made “on the basis of evidence adduced at the hearing.”42 Current regulations do not

specify any timetable for the submission of evidence and allow the ALJ to make a

judgement based on evidence presented before a hearing or during the hearing itself.

The proposed rules would require that all evidence be submitted by a claimant

no later than 20 days before the date of an ALJ hearing. Under this proposed rule,

a claimant would not be given the opportunity to present new evidence at the hearing

and evidence submitted after the 20-day deadline would not be considered unless the

ALJ believes that the claimant had good cause, as specified in the new rules, for

missing the deadline.

The Consortium for Citizens with Disabilities and NOSSCR both raised

concerns at the hearing that claimants could be penalized for an inability to gather

medical evidence in time, even if this delay was through no fault of their own.43 In

addition to the procedural burden this deadline might place on a claimant, NOSSCR

believes that this rule violates the “adducement” clause of the Social Security Act and

previous rulings of the United States Court of Appeals that have required ALJ’s to

fully develop the record of a case before making a decision.44

Proposed Changes to the Right of a Claimant to

Have a Case Reopened After an ALJ Decision

The new disability determination and appeals processes proposed in the NPRM

would significantly change the rights of claimants to have their cases reopened after

the decision of an ALJ, with the goal of bringing some finality to the administrative

phase of the appeals process. Several witnesses at the hearing testified as to the

hardship this could place on applicants who have legitimate claims for benefits but

who are unable to submit evidence in time to have it considered.45

405 U.S.C. 405(b)(1).

Statements of Marty Ford, Consortium for Citizens with Disabilities and Thomas D.

Sutton, National Organization of Social Security Claimants' Representatives, Commissioner

of Social Security’s Proposed Improvements to the Disability Determination Process, Joint

Hearing Before the Subcommittee on Human Resources and the Subcommittee on Social

Security, House Committee on Ways and Means, 109th Cong. (2005).

National Organization of Social Security Claimants Representatives, NOSSCR Comments

on Proposed Changes to Disability Claim Review Process, October 25, 2005, available on

NOSSCR’s website at [http://www.nosscr.org/NOSSCRdibfinal.pdf].

Statements of Marty Ford, Consortium for Citizens with Disabilities; Thomas D. Sutton,

National Organization of Social Security Claimants' Representatives; and Frank S. Bloch,

Vanderbilt University School of Law, Commissioner of Social Security’s Proposed

Improvements to the Disability Determination Process, Joint Hearing Before the

Subcommittee on Human Resources and the Subcommittee on Social Security, House

Committee on Ways and Means, 109th Cong. (2005).

CRS-19

Current Rules to Reopen a Case.46 Under the current rules, the decision

of the ALJ can be reopened either at the request of the SSA or the claimant. The

SSA or the claimant can request that an ALJ reopen a case for any reason if the

request is made within 12 months of the initial ALJ decision. In addition, the SSA

or the claimant can request that an ALJ reopen a case at any time, up to four years

after the initial decision, if there is good cause as defined in the regulations. “Good

cause” is defined as occurring when one of the following has occurred:

New and material evidence is furnished;

A clerical error in the computation of benefits was made; or

The evidence clearly shows that an error was made.

Proposed Rules to Reopen a Case.47 The rules proposed by the SSA

would restrict the rights of claimants to request that cases be reopened after the

decision of the ALJ. Claimants would have a much shorter time in which to ask for

a reopening and would only be able to submit new evidence if their conditions

changed after the hearing. New evidence relating to a disability that existed at the

time of the hearing would not be sufficient to reopen a case.

Under the proposed rules, claimants would have 10 days from the date of the

ALJ decision to request that a case be reopened. In addition, the claimant must show

that one of the following circumstances has occurred:

An unforeseen and material change in the applicant’s condition

between the end of the hearing and the date of the decision;

At the hearing the ALJ allowed the applicant to submit evidence

after the decision; or

The applicant had good cause for missing the deadline to submit

evidence to the ALJ.

For the purposes of this proposed rule, “good cause” is defined as occurring

when one of the following has occurred:

The actions of the SSA were misleading;

The applicant has a physical, mental, educational, or linguistic

limitation that would prevent a reasonable person from compliance;

Some other unusual or unavoidable circumstance beyond the control

of the applicant prevented compliance.

Claimants unable to get their cases reopened by the ALJ would have to appeal

to the federal courts or reapply for benefits.

20 CFR §§ 404.987-404.989.

20 CFR §§ 405.20, 405.373 (proposed in Administrative Review Process for Adjudicating

Initial Disability Claims, 70 Federal Register 43590, July 27, 2005).

CRS-20

Proposed Replacement of the Appeals Council

with the Decision Review Board

The proposed rules would replace the existing Appeals Council with the

Decision Review Board and would limit the right of claimants to appeal decisions

made by ALJs to this new board, with the goal of bringing finality to the appeals

process after the decision of the ALJ. The Decision Review Board would retain the

own-motion authority to review favorable and unfavorable ALJ decisions.

The Judicial Conference of the United States, made up of federal judges, has

expressed concern that eliminating the Appeals Council will increase the number of

cases being filed in the United States District Courts. Because the federal courts lack

the specific expertise and experience in handling disability cases that the Appeals

Council has, the Conference recommends that the Appeals Council, in its current

form, be retained to serve as a final level of administrative appeal for claimants

dissatisfied with the decision of an ALJ.48

Rights of Claimants to Appeal.

Current Rules, the Appeals Council.49 Under the current rules, the final

administrative appeal offered to claimants is a review by the Appeals Council.

Claimants dissatisfied with the decision of an ALJ or with the dismissal of their case

by an ALJ have up to 60 days from the date of the decision to request a review of

their case by the Appeals Council. Unlike the ALJ, the Appeals Council is not

required to hear all appeals that are filed and can select the cases that it wishes to

consider.

Proposed Rules, the Decision Review Board.50 Under the proposed

rules, the Appeals Council would be replaced by a Decision Review Board, which

would constitute the final administrative appeal offered to claimants. However,

unlike the Appeals Council, claimants dissatisfied with the decision of an ALJ would

not have the right to request a review by the Decision Review Board. Only claimants

whose cases were dismissed by an ALJ would have the right to request a review.

Similar to the Appeals Council, the Decision Review Board would set its own docket

and not be required to rule on all cases presented to it on appeal.

Statement of the Honorable Judge Howard D. McKibben, Judicial Conference of the

United States, Commissioner of Social Security’s Proposed Improvements to the Disability

Determination Process, Joint Hearing Before the Subcommittee on Human Resources and

the Subcommittee on Social Security, House Committee on Ways and Means, 109th Cong.

(2005).

20 CFR §§ 404.911, 404.968.

20 CFR §§ 405.382, 405.405 (proposed in Administrative Review Process for

Adjudicating Initial Disability Claims, 70 Federal Register 43590, July 27, 2005).

CRS-21

Own Motion Authority of the SSA.

Current Rules, the Appeals Council.51 Under the current rules, the

Appeals Council has the authority to review cases that have not been appealed by

claimants. These cases can include decisions of an ALJ that were favorable to

claimants. However, in such cases, the claimant can be paid interim benefits while

the Appeals Council considers the case.

Proposed Rules, the Decision Review Board.52 Like the Appeals

Council, the Decision Review Board would have the authority to review ALJ

decisions, including those decisions that were favorable to claimants. However, no

provision exists in the proposed rules for interim payments to claimants while their

cases are being reviewed by the Disability Review Board.

Evidence Rules and Procedures.

Current Rules, the Appeals Council.53 Under the current rules, the

Appeals Council considers all evidence previously presented to the ALJ and any new

evidence that relates to the period before the ALJ hearing. Claimants may request

to appear before the Appeals Council and present an oral argument in support of their

case.

Proposed Rules, the Decision Review Board.54 Because the record is

considered closed after the decision of the ALJ, the Decision Review Board could

only consider evidence presented to the ALJ and could not consider new evidence.

Claimants would not be permitted to present an oral argument to the Decision

Review Board but could request permission to submit a brief written statement.

Final Rules and Implementation

On March 31, 2006, the SSA issued final rules governing the disability

determination and appeals processes. These final rules will go into effect in the SSA

Boston region on August 1, 2006, with a national implementation expected after a

period of at least one year. The final rules deviate only slightly from the proposed

rules. For a complete overview and analysis of the final rules, see CRS Report

RL33374, Social Security Disability Insurance (SSDI) and Supplemental Security

Income (SSI): The Disability Determination and Appeals Process, by Scott

Szymendera.

20 CFR § 404.969.

20 CFR §§ 405.410, 405.415 (proposed in Administrative Review Process for

Adjudicating Initial Disability Claims, 70 Federal Register 43590, July 27, 2005).

20 CFR § 404.976.

20 CFR § 405.425 (proposed in Administrative Review Process for Adjudicating Initial

Disability Claims, 70 Federal Register 43590, July 27, 2005).

CRS-22

Appendix

Figure 4. Proposed Disability Determination and

Appeals Processes

appeal

In-Line Quality Assurance and/or End-of-Line Quality Control Will Be Used At All Stages

Medical

Review

Source: The Social Security Administration, available at

[http://www.ssa.gov/disability-new-approach/NewApproachFlowchart.pdf].

Note: A detailed diagram of the existing determination and appeals processes is available on the SSA

website at [http://www.ssa.gov/disability/disability_process_files/od_process.pdf].

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.