Administrative Review Process, Prehearing Proceedings and Decisions by Attorney Advisors

Federal RegisterApr 14, 1995

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

RIN 0960-AE10

Administrative Review Process, Prehearing Proceedings and

Decisions by Attorney Advisors

AGENCY: Social Security Administration.

ACTION: Proposed rule.

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SUMMARY: We propose to amend our regulations to provide, on a temporary

basis, that in claims for Social Security or Supplemental Security

Income (SSI) benefits based on disability, attorney advisors in our

Office of Hearings and Appeals (OHA) will have authority to conduct

certain prehearing proceedings, and where the record developed as a

result of these proceedings warrants, to [[Page 19009]] issue decisions

that are wholly favorable to the parties to the hearing.

Because requests for an administrative law judge (ALJ) hearing have

increased dramatically in recent years, and cases pending in our

hearing offices have reached unprecedented levels, we have taken a

number of actions designed to help us hear and decide these cases more

efficiently. The rules we are proposing in this notice of proposed

rulemaking are an important part of our efforts in this regard.

DATES: To be sure that your comments are considered, we must receive

them no later than May 15, 1995.

ADDRESSES: Comments should be submitted in writing to the Commissioner

of Social Security, P.O. Box 1585, Baltimore, Maryland 21235, sent by

telefax to (410) 966-2830, sent by E-mail to ``[email protected]'',

or delivered to the Division of Regulations and Rulings, Social

Security Administration, 3-A-3 Operations Building, 6401 Security

Boulevard, Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m.

on regular business days. Comments received may be inspected during

these same hours by making arrangements with the contact person shown

below. The electronic file of this document is available on the Federal

Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the

Federal Register. To download the file, modem dial (202) 512-1387. The

FBB instructions will explain how to download the file and the fee.

This file is in Wordperfect and will remain on the FBB during the

comment period.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,

Division of Regulations and Rulings, Social Security Administration,

Social Security Boulevard, Baltimore, Maryland 21235, (410) 965-6243.

SUPPLEMENTARY INFORMATION:

Background

The Social Security Administration (SSA) decides claims for Social

Security benefits under title II of the Social Security Act (the Act)

and for SSI benefits under title XVI of the Act in an administrative

review process that generally consists of four steps. Claimants who are

not satisfied with the initial determination we make on a claim may

request reconsideration. Claimants who are not satisfied with our

reconsidered determination may request a hearing before an ALJ, and

claimants who are dissatisfied with an ALJ's decision may request

review by the Appeals Council. Claimants who have completed these

steps, and who are not satisfied with our final decision, may request

judicial review of the decision in the Federal courts.

Generally, when a claim is filed for Social Security or SSI

benefits based on disability, a State agency makes the initial and

reconsideration disability determination for us. A hearing requested

after we have made a reconsideration determination is conducted by an

ALJ in one of the 132 hearing offices we have nationwide.

Applications for Social Security and SSI benefits based on

disability have risen dramatically in recent years. The number of new

disability claims SSA received in Fiscal Year (FY) 1994--3.56 million--

represented a 40 percent increase over the number received in FY 1990.

Requests for an ALJ hearing also have increased dramatically. In FY

1994, our hearing offices had almost 540,000 hearing receipts and most

of these were related to requests for a hearing filed by persons

claiming disability benefits. In that year, the number of hearing

receipts we received exceeded the number of receipts we received in FY

1990 by more than 70 percent.

Despite management initiatives that resulted in a record increase

in ALJ productivity in FY 1994, and the hiring of more than 200 new

ALJs and more than 800 new support staff in that year, the number of

cases pending in our hearing offices has reached unprecedented levels--

more than 480,000 at the end of FY 1994.

On September 19, 1994, the Commissioner of Social Security

published a Plan for a New Disability Claim Process in the Federal

for redesigning and fundamentally improving the overall disability

claim process. On a separate track from that longer term plan, we have

developed short term initiatives to reduce the number of cases pending

in our hearing offices. As part of our short term disability process

improvements, we are issuing this notice of proposed rulemaking (NPRM)

regarding a temporary change in our administrative review procedures.

Under the proposed rule, attorney advisors would conduct certain

prehearing proceedings and, where appropriate, issue decisions that are

wholly favorable to the claimant and any other party to the hearing. We

are proposing that this procedure remain in effect for a period of time

not to exceed two years from the effective date of a final rule

authorizing the procedure unless the rule is extended by the

Commissioner of Social Security by publication of a final rule in the

Federal Register.

Regulatory Provisions

We propose to add new Secs. 404.942 and 416.1442 to our regulations

to authorize attorney advisors in OHA to conduct certain prehearing

proceedings and, where appropriate, make decisions based on the

documentary record that are wholly favorable to the parties. Our

purpose in proposing these regulations is to expedite the processing of

cases pending at OHA without infringing on the right of a claimant to a

hearing before an ALJ.

The authority of an attorney advisor to conduct prehearing

proceedings and to make decisions would be temporary, and it would

apply only in the limited circumstances described below. Also, the

attorney advisor's conduct of certain prehearing proceedings would not

delay the scheduling of a hearing before an ALJ. If the prehearing

proceedings were not concluded before the hearing date, the case would

be sent to the ALJ unless a decision wholly favorable to the claimant

and all other parties was in process, or the claimant and all other

parties to the hearing agreed in writing to delay the hearing until the

prehearing proceedings are completed.

Prehearing proceedings could be conducted by the attorney advisor

under the proposed rule if new and material evidence is submitted;

there is an indication that additional evidence is available; there is

a change in the law or regulations; or there is an error in the file or

some other indication that a wholly favorable decision could be issued.

A decision by an attorney advisor would be mailed to all parties. The

notice of decision would state the basis for the decision and advise

the parties that an ALJ will dismiss the hearing request unless a

request to proceed with the hearing was made by a party within 30 days

after the date the notice of the decision was mailed.

We believe that these temporary procedures will enable us to manage

our pending hearing requests in a more timely manner. They also may

provide information that can help us better identify cases that can be

decided without a hearing before an ALJ and improve our ability to

narrow the issues that must be resolved before a decision can be made.

In view of the salutary effect we expect the rules to have on our

ability to improve our service to claimants, and the importance we

place on ensuring that we adjudicate claims timely and accurately, we

are providing a 30-day comment period for these rules rather than the

60-day comment period we usually provide. We believe that in this

instance a 30-day period is sufficiently [[Page 19010]] long to allow

the public a meaningful opportunity to comment on the proposed rules,

in accordance with Executive Order 12866.

Regulatory Procedures

Executive Order No. 12866

We have consulted with the Office of Management and Budget (OMB)

and determined that this rule does not meet the criteria for a

significant regulatory action under Executive Order 12866. Thus, the

rule is not subject to OMB review.

Regulatory Flexibility Act

We certify that these regulations will not have a significant

economic impact on a substantial number of small entities because they

affect only individuals. Therefore, a regulatory flexibility analysis

as provided in Pub. L. 96-354, the Regulatory Flexibility Act, is not

required.

Paperwork Reduction Act

These regulations impose no new reporting or recordkeeping

requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social

Security-Disability Insurance; 93.807, Supplemental Security Income)

List of Subjects

20 CFR Part 404

Administrative practice and procedure, Death benefits, Disability

benefits, Old-Age, Survivors and Disability Insurance, Reporting and

recordkeeping requirements, Social Security.

20 CFR Part 416

Administrative practice and procedure, Aged, Blind, Disability

benefits, Public assistance programs, Supplemental Security Income

(SSI), Reporting and recordkeeping requirements.

Dated: April 5, 1995.

Shirley S. Chater,

Commissioner of Social Security.

For the reasons set out in the preamble, subpart J of part 404 and

subpart N of part 416 of chapter III of title 20 of the Code of Federal

Regulations are amended as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

(1950- )

1. The authority citation for subpart J of part 404 continues to

read as follows:

Authority: Secs. 201(j), 205 (a), (b), and (d)-(h), 221(d), 225

and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C.

401(j), 405 (a), (b), and (d)-(h), 421(d), 425 and 1302; sec. 5 of

Pub. L. 97-455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat.

1802.

2. New Sec. 404.942 is added under the undesignated center heading

``Hearing Before an Administrative Law Judge'' to read as follows:

Sec. 404.942 Prehearing proceedings and decisions by attorney

advisors.

(a) General. After a hearing is requested but before it is held, an

attorney advisor in our Office of Hearings and Appeals may conduct

prehearing proceedings as set out in paragraph (c) of this section. If

upon the completion of these proceedings, a decision that is wholly

favorable to you and all other parties may be made, an attorney

advisor, instead of an administrative law judge, may issue such a

decision. The conduct of the prehearing proceedings by the attorney

advisor will not delay the scheduling of a hearing. If the prehearing

proceedings are not completed before the date of the hearing, the case

will be sent to the administrative law judge unless a wholly favorable

decision is in process or you and all other parties to the hearing

agree in writing to delay the hearing until the proceedings are

completed.

(b) When prehearing proceedings may be conducted by an attorney

advisor. An attorney advisor may conduct prehearing proceedings if you

have filed a claim for benefits based on disability and--

(1) New and material evidence is submitted;

(2) There is an indication that additional evidence is available;

(3) There is a change in the law or regulations; or

(4) There is an error in the file or some other indication that a

wholly favorable decision may be issued.

an attorney advisor. As part of the prehearing proceedings, the

attorney advisor, in addition to reviewing the existing record, may--

(1) Request additional evidence that may be relevant to the claim,

including medical evidence; and

(2) If necessary to clarify the record for the purpose of

determining if a wholly favorable decision is warranted, schedule a

conference with the parties.

(d) Notice of a decision by an attorney advisor. If the attorney

advisor issues a wholly favorable decision under this section, we shall

mail a written notice of the decision to all parties at their last

known address. We shall state the basis for the decision and advise all

parties that an administrative law judge will dismiss the hearing

request unless a party requests that the hearing proceed. A request to

proceed with the hearing must be made in writing within 30 days after

the date the notice of the decision of the attorney advisor is mailed.

(e) Effect of actions under this section. If under this section, an

administrative law judge dismisses a request for a hearing, the

dismissal is binding in accordance with Sec. 404.959 unless it is

vacated by an administrative law judge or the Appeals Council pursuant

to Sec. 404.960. A decision made by an attorney advisor under this

section is binding unless--

(1) A party files a request to proceed with the hearing pursuant to

paragraph (d) of this section and an administrative law judge makes a

decision;

(2) The Appeals Council reviews the decision on its own motion

pursuant to Sec. 404.969 as explained in paragraph (f)(3) of this

section; or

(3) The decision of the attorney advisor is revised under the

procedures explained in Sec. 404.987.

(f) Ancillary provisions. For the purposes of the procedures

authorized by this section, the regulations of part 404 shall apply

to--

(1) Authorize an attorney advisor to exercise the functions

performed by an administrative law judge under Secs. 404.1520a and

404.1546;

(2) Define the term ``decision'' to include a decision made by an

attorney advisor, as well as the decisions identified in Sec. 404.901;

and

(3) Make the decision of an attorney advisor subject to review by

the Appeals Council under Sec. 404.969 if an administrative law judge

dismisses the request for a hearing following issuance of the decision,

and the Appeals Council decides to review the decision of the attorney

advisor anytime within 60 days after the date of the dismissal.

(g) Sunset provision. The provisions of this section will no longer

be effective on (insert date two years after the date the final rule is

published in the Federal Register) unless they are extended by the

Commissioner of Social Security by publication of a final rule in the

Federal Register.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND

DISABLED

1. The authority citation for subpart N of part 416 continues to

read as follows:

Authority: Sec. 1102, 1631, and 1633 of the Social Security Act;

42 U.S.C. 1302, 1383, and 1383b.

2. New Sec. 416.1442 is added under the undesignated center heading

``Hearing [[Page 19011]] Before an Administrative Law Judge'' to read

as follows:

Sec. 416.1442 Prehearing proceedings and decisions by attorney