[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Rules and Regulations]
[Pages 34126-34132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16138]
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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: Final rules.
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SUMMARY: We are adding new rules which modify, on a temporary basis,
the prehearing procedures we follow in claims for Social Security or
Supplemental Security Income (SSI) benefits based on disability. Under
the final rules, attorney advisors in our Office of Hearings and
Appeals (OHA) have the authority to conduct certain prehearing
proceedings, and where the documentary record developed as a result of
these proceedings warrants, to 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 decide these cases more efficiently. These final rules are an
important part of our efforts in this regard.
EFFECTIVE DATE: June 30, 1995.
FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant,
Division of Regulations and Rulings, Social Security Administration,
6401 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 conducted
after we have made a reconsideration determination is held 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 the
overwhelming majority 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. We expect hearing receipts
to increase to more than 590,000 in FY 1995.
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 650 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 and more than 540,000 at the
end of May 1995.
On September 19, 1994, the Commissioner of Social Security
published a Plan for a New Disability Claim Process in the Federal
Register (59 FR 47887). That document sets forth our long term plans
for redesigning and fundamentally improving the overall disability
claim process. On a separate track from that longer term plan, we have
developed a number of short term initiatives to process cases more
efficiently and, therefore, to reduce the number of cases pending in
our hearing offices. As part of our short term disability process
improvements, we are issuing these final regulations that make a
temporary change in our administrative review procedures.
Under these final rules, attorney advisors will conduct certain
prehearing proceedings and, where appropriate, issue decisions that are
wholly favorable to the claimant and any other party to the hearing.
These procedures will remain in effect for a period of time not to
exceed two years from the effective date of these final rules unless
they are extended by the Commissioner of Social Security by publication
of a final rule in the Federal Register.
[[Page 34127]]
Regulatory Provisions
We have added 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 to the
hearing. Our purpose in issuing these rules is to expedite the
processing of cases pending at OHA without infringing on a claimant's
right to a hearing before an ALJ.
The authority of an attorney advisor to conduct prehearing
proceedings and to make wholly favorable decisions under these final
rules is temporary, and applies only in the limited circumstances
described below. Also, the attorney advisor's conduct of certain
prehearing proceedings will not delay the scheduling of a hearing
before an ALJ. If the prehearing proceedings are not concluded before
the hearing date, the case will be sent to the ALJ unless a decision
wholly favorable to the claimant and all other parties is in process,
or the claimant and all other parties to the hearing agree in writing
to delay the hearing until the prehearing proceedings are completed.
Prehearing proceedings may be conducted by the attorney advisor
under this 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 may be issued. A decision
by an attorney advisor will be mailed to all parties. The notice of
decision will 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 is made by a party within 30 days after the
date the notice of the decision is 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.
The attorney advisor's functions are not designed to change in any
significant way the overall rate at which we allow claims for benefits
when an individual requests a hearing before an ALJ. In order to assure
that no unacceptable change in the overall allowance rate occurs, the
Commissioner of Social Security will review management and quality
assurance information on an ongoing basis. If there is evidence that
the overall allowance rate increases or decreases unacceptably, the
Commissioner will curtail use of, or make appropriate adjustments to
the attorney advisor procedures, consistent with this regulatory
authority.
We find good cause for dispensing in this case with the 30-day
delay in the effective date of a substantive rule, provided for by 5
U.S.C. 553(d). As explained above, and in the notice of proposed
rulemaking (NPRM), the number of hearing requests pending at OHA has
reached unprecedented levels. In light of the record number of pending
hearing requests, the importance we place on ensuring that we
adjudicate claims timely and accurately, and the beneficial effect we
expect these final rules to have on our ability to provide better
service to claimants, we find that it is in the public interest to make
these final rules effective upon publication.
Public Comments
These regulatory provisions were published in the Federal Register
as an NPRM on April 14, 1995 (60 FR 19008). We provided interested
parties with a 30 day comment period. We received 82 letters
representing the views of over 125 individuals. Most of the comments we
received were from individuals employed either as attorney advisors or
ALJs in OHA. However, we also received comments from a variety of other
sources, including private citizens, claimant representatives, State
agencies which make disability determinations for us, and union
representatives. After carefully considering the comments received, we
have decided to adopt the proposed rule essentially without change.
In general, the comments either strongly supported or strongly
opposed adoption of the proposed rule. Only a few of the comments were
in any way equivocal, and even these can be properly categorized as
either basically supporting or opposing the proposed rule.
Almost all of the comments supporting adoption of the proposed rule
did so without recommending changes. While the comments which
recommended against adoption of the proposed rule more frequently
suggested changes, the changes suggested were generally so substantive
that they effectively constituted expressions of disagreement with the
concept of the rule as proposed, rather than proposals to change the
rule to make it function more effectively. Some of the comments we
received were outside the scope of the proposed rule, and therefore
have not been addressed. The substantive comments made by the
commenters and our responses are summarized below. Because some of the
comments were detailed, we had to condense, summarize or paraphrase
them. We have, however, tried to summarize the commenters views
accurately and to respond to all of the significant issues raise by the
commenters.
The comments from individuals employed as attorney advisors
unanimously supported adoption of the proposed rule; all but one of the
comments from individuals employed as ALJs recommended against adoption
of the proposed rule. Most of the remaining comments, including most of
those received from private citizens, claimant representatives, and
union representatives, supported adoption of the proposed rule.
The comments supporting the adoption of the proposed rule generally
did so based on the view that the contemplated changes would result in
quicker, more cost-effective service to the public. We agree with these
comments; our intent in these final rules is to enhance our ability to
decide cases more quickly during the period in which these rules will
be effective and, therefore, to improve the level of service we provide
to claimants.
The comments from individuals who supported adoption of the
proposed rule also stressed the serious detrimental effects the number
of pending claims has on both claimants and our hearing offices. These
comments also stressed that making fuller use of the experience and
expertise of the attorney advisors in OHA constitutes the most
effective way that SSA can promptly apply existing resources to process
the number of cases pending at OHA in the most expeditious manner. We
also agree with these comments.
A number of the commenters who supported adoption of the proposed
rule also indicated that the procedures described in the proposed rule
should be viewed as a logical and natural extension of the prehearing
conference program OHA has already successfully conducted under
existing regulatory authority. Many of these comments stressed the
importance of the procedures contained in these final rules in
preserving the time and skill of the ALJs for use in cases that cannot
be decided without a hearing. These comments further noted that the
proposed rule would provide the ALJ with the benefit of a better
developed record in cases in which an ALJ held a hearing. We concur in
these comments.
[[Page 34128]]
The comments received from individuals who opposed adoption of the
proposed rule also reflected a number of common themes and views. These
comments recommended against adoption of the proposed rule on five
principal bases: (1) that the proposed rule violated the Administrative
Procedure Act (APA) or the Act; (2) that it denied claimants their
constitutional rights of due process and equal protection; (3) that it
was impractical; (4) that it is unnecessary because of the availability
of preferable alternatives; and (5) that it would result in decisions
which inappropriately found that claimants were disabled and therefore
would result in increased program costs. Our responses to these
comments, and to the other comments we received regarding the substance
of the rule, are set out in detail below.
Comment: A number of comments received, primarily from individuals
employed as ALJs, expressed the view that, for a number of reasons, the
proposed rule violated either the APA or the Act and improperly
delegated decision making authority to individuals who are not
appointed as ALJs. Another commenter expressed the view, however, that
the proposed rule was fully consistent with the Act and the APA.
Response: We do not agree that these final rules violate either the
APA or the Act. The Act directs the Commissioner of Social Security to
make decisions as to the rights of any individuals applying for
disability benefits. The Act also provides that the Commissioner shall
provide an individual who makes a showing in writing that his or her
rights may be prejudiced by any decision that the Commissioner has
rendered, with an opportunity for a ``hearing'' regarding his or her
right to benefits. Currently, by regulation, the Commissioner has
provided that such a ``hearing'' shall be before an ALJ who shall issue
the hearing decision.
These final rules augment this process by authorizing attorney
advisors to make fully favorable decisions in claims for disability
benefits when there is no need for a hearing. No provision of the Act
requires the Commissioner to utilize an ALJ when issuing a decision,
nor does the APA require an agency to hold an ALJ hearing when there
are no material facts in dispute, and the agency has decided that it is
appropriate to issue a fully favorable decision with respect to a
specific claim. The Act only requires that the Commissioner provide an
individual with the opportunity for a hearing when the individual makes
the requisite showing that his or her rights may be prejudiced by any
decision that the Commissioner has rendered. That process is not being
changed; the final rules explicitly preserve the individual's right to
a hearing which will be conducted by an ALJ if the individual is
dissatisfied with the decision made by the attorney advisor. Under
SSA's regulations as amended by these final rules, either an attorney
advisor or an ALJ may issue a fully favorable decision without a
hearing in a claim for disability benefits, but if a hearing is to be
held, the ALJ will conduct that hearing and issue a decision. This
process is fully in accord with the Act and in no way violates the APA.
Comment: One commenter stated the view that the proposed rule
violated the settlement agreement between the parties in the 1979 case,
Bono, et al. v. United States of America Social Security
Administration, et al., Civil Action No. 77-0819-CV-W-4 (W.D. Mo.),
regarding the rotational assignment of cases to ALJs. Another
commenter, however, expressed the opinion that the proposed rule did
not violate the Bono settlement agreement.
Response: We disagree that these final rules violate the settlement
agreement in Bono. Without conceding that any particular aspect of the
Bono settlement is applicable here, under the Bono settlement
agreement, OHA reserved the right to modify or change the agreed-upon
policies after appropriate consultation with the ALJs. The Bono
agreement also specified that the Agency could consider the number of
cases pending before an ALJ in determining the extent to which the
rotational assignment of cases to an ALJ immediately upon their receipt
in the hearing office was practicable. Under our existing procedures,
cases remain on the master docket of the hearing office until several
prehearing procedures have been completed. The prehearing procedures we
are adopting in these final rules represent further modifications to
our procedures undertaken and proposed with appropriate consultation
with our ALJs.
Comment: Two of the commenters thought the proposed rule would
violate a claimant's right to due process and equal protection under
the Constitution. However, several other commenters stated that the
proposed rule protected a claimant's right to due process under the
Constitution.
Response: We do not agree that these rules violate a claimant's
right to due process or equal protection under the Constitution in any
way. These final rules do not impair or interfere with a claimant's
right to a hearing before an ALJ. Rather, the claimant's right to a
hearing conducted by an ALJ is explicitly preserved if the individual
is dissatisfied with the decision made by an attorney advisor. The
preservation of the claimant's right to an ALJ hearing fully comports
with due process and equal protection under the Constitution.
Comment: Some of the commenters stated that the proposed rule was
impractical and would not work because the effect of the rule would be
to divert needed resources away from ALJs.
Response: Our intent is to identify those cases meeting the
statutory definition of disability as early in the administrative
review process as possible. By promptly identifying these cases--
preferably before a hearing is held--SSA can avoid the costs, in terms
of staff resources and time, of scheduling and holding unnecessary
hearings.
Some of the procedures we are implementing under these rules are
based on prehearing conference and screening procedures we fully tested
based on existing regulatory authority during a pilot study completed
in 1993. The results of that study, which collected data from more than
40,000 cases, showed that hearing offices could significantly reduce
average case processing time by more effectively identifying and
processing claims in which a hearing decision could be issued ``on-the-
record'' under our current regulations (i.e., without holding an oral
hearing).
The data analysis also showed that, in addition to avoiding
unnecessary hearings, the procedures tested did not increase the time
needed to process claims that required a hearing. The results of the
pilot study also demonstrated that the prehearing conference and
screening procedures did not lower hearing office productivity.
Further, we found that the considerable savings realized in ALJ and
staff time by avoiding unnecessary hearings more than offset the time
spent in prehearing analysis and development.
Although under these final rules some attorney advisors may draft
fewer hearing decisions in cases in which a hearing before an ALJ is
held, and provide less professional assistance to ALJs, there are a
number of initiatives already underway that are designed to provide
hearing offices with additional case preparation and decision writing
support during the course of this initiative. In addition, not all
attorney advisors assigned to hearing offices will be authorized to
conduct prehearing proceedings and issue fully favorable decisions in
appropriate cases under the
[[Page 34129]]
authority contained in these final rules. Many attorney advisors, as
well as our paralegal specialists, will be available to provide ALJs
with research and decision drafting support.
Comment: As an alternative to authorizing attorney advisors to
conduct certain prehearing proceedings and issue wholly favorable
decisions in appropriate cases, several commenters suggested that the
proposed rule should be modified to allow OHA attorney advisors to
conduct prehearing proceedings under the direction of an ALJ and make
recommended decisions that the ALJ could approve or disapprove. One
commenter suggested several specific modifications to the text of the
proposed rule to address this issue.
Response: We have not adopted this comment. Under current
procedures conducted under existing regulatory authority, ALJs may
authorize attorney advisors to review cases pending before the ALJ
before a hearing is scheduled in order to conduct certain prehearing
proceedings and recommend wholly favorable decisions or the scheduling
of a hearing, as appropriate. Our experience under the 1993 pilot study
was that ALJs agreed with and accepted the recommendations made by
attorney advisors with very few exceptions. The procedures we are
implementing under these final rules will allow us to process cases
more efficiently by authorizing the attorney advisors, during the
period in which these rules will be effective, to issue decisions which
are wholly favorable to the claimant and any other party to the hearing
in appropriate cases, obviating the need for duplicative review by an
ALJ. These final rules take full advantage of the experience and
expertise of the attorney advisor and will allow ALJs to better focus
upon the complex cases that require their skills.
Comment: One commenter suggested that the proposed rule be modified
to authorize other individuals, such as adjudicators who make
disability determinations for us in the State agencies at the initial
and reconsideration steps of the administrative review process, to make
revised determinations on the same basis as these final rules authorize
attorney advisors to make decisions.
Response: We have not adopted this comment. The provisions we are
establishing in these final rules complement, but do not supersede, the
provisions of Secs. 404.941 and 416.1441 of our regulations. These
provisions allow us to refer a case after a hearing is requested, but
before it is held, to the component that issued the determination being
reviewed (including a State agency) so that it may conduct a prehearing
case review to determine if a wholly or partially favorable revised
determination should be made. The conditions for conducting prehearing
case reviews are essentially identical to those under which attorney
advisors may conduct prehearing proceedings under these final rules. We
would not expect, however, that a case would be subject to both
prehearing proceedings by an attorney advisor and a prehearing case
review by the component that issued the determination being reviewed.
The establishment of temporary procedures authorizing attorney advisors
to conduct such proceedings does not limit our authority to refer cases
for a prehearing case review under Secs. 404.941 and 416.1441.
Furthermore, on June 9, 1995, we published an NPRM proposing to
establish the authority to test implementation of the position of an
adjudication officer who, under the disability redesign plan, would be
the focal point for all prehearing activities when a request for
hearing before an ALJ is filed (60 FR 30482). Under the tests proposed
in the NPRM, the adjudication officer would be authorized to take a
number of actions, including issuing a wholly favorable decision when
warranted by the evidence in the record. The rule as proposed for
testing permits the adjudication officer to be a qualified employee of
SSA or a State agency that makes disability determinations for us.
Consequently, we believe that the more appropriate course of action
would be to address the concerns raised by this commenter in the
context of our adjudication officer rulemaking initiative.
Comment: A few commenters suggested other alternatives to the
proposed rule to address the increasing number of claims pending at
OHA, including providing ALJs with more support, hiring more ALJs and
increasing the role of the claimant's representative in the
administrative review process.
Response: As discussed above in our response to the comment
concerning the practicality of the proposed rule, we are devoting
appropriate, additional resources to provide staff support to the ALJs
in connection with our short term initiatives to reduce the time
required to process the cases awaiting a hearing.
We have no current plans to increase the number of ALJs we employ
in any substantial way. However, we expect to hire enough additional
ALJs so that the number on duty should, with allowances for expected
attrition, increase slightly during this fiscal year (from 1,045 at the
end of October 1994 to about 1,050 at the end of FY 95).
One of our short term initiatives to process cases awaiting an ALJ
hearing more efficiently is to encourage claimants and representatives
to submit proposed decisional language. Under that initiative, OHA
currently advises claimants and representatives early in the hearing
process of the opportunity to submit arguments in the form of a
recommended decision.
Comment: A few commenters expressed the view that the proposed rule
should be modified to provide adequate quality assurance review
procedures, as an alternative to or in addition to review by the
Appeals Council, as provided for in the proposed rule.
Response: No change in these final rules or in other regulations is
required to allow us to subject the decisions made by attorney advisors
to quality assurance review procedures, in addition to the reviews the
final rules authorize the Appeals Council to conduct on its own motion.
We are establishing an intensive quality assurance review program that
will supplement own motion reviews by the Appeals Council in assuring
the accuracy of the decisions made by the attorney advisors.
Comment: A number of commenters expressed concern that the proposed
rule would encourage adjudicators to allow claims, and therefore would
increase the allowance rate for cases decided at the hearing step of
the administrative review process and increase program costs.
Response: The attorney advisor's functions are not designed to
increase (or decrease) in a significant way the overall rates at which
we allow claims for benefits when an individual requests a hearing
before an ALJ. Based on our experience with the 1993 pilot study, we
anticipate no significant change in overall allowance rates in claims
in which a hearing has been requested. However, we will monitor the
impact of these final rules on overall allowance rates and decisional
accuracy and will curtail use of, or make appropriate adjustments to
the attorney advisor procedures consistent with this regulatory
authority, if we determine that there is evidence of any unacceptable
change in the rates at which we allow claims for benefits when an
individual requests a hearing before an ALJ.
Other Comments
Other comments involved suggestions for changing the rule in
specific ways.
[[Page 34130]]
Comment: One commenter recommended that SSA should adopt procedures
to ensure that the ALJ does not know if review by an attorney advisor
has occurred.
Response: We have not adopted this comment. We do not believe such
procedures could be devised or that they are required. ALJs are
typically aware that another adjudicator has not made a wholly
favorable determination or decision in a specific case. It has not been
our experience that such knowledge compromises the ability of ALJs to
hold hearings and decide cases in a fair, impartial manner. We believe
that the attorney advisor's performance of the functions authorized by
these final rules does not materially affect the ability of our ALJs to
hold hearings and make decisions fairly and impartially.
Comment: One commenter suggested that part 422 of 20 C.F.R. may
need to be amended to give the attorney advisors decisionmaking
authority.
Response: We disagree with this comment. We do not believe that
giving attorney advisors the temporary decisionmaking authority
provided in new Secs. 404.942 and 416.1442 of our regulations requires
amendment of part 422. The applicable regulations in part 422,
Secs. 422.130 and 422.203, generally describe either our overall claims
adjudication process (Sec. 422.130) or procedures followed by OHA
(Sec. 422.203). However, Sec. 422.201 explicitly refers to the
regulations in Secs. 404.929 through 404.983 of this chapter and
Secs. 416.1429 through 416.1483 of this chapter for ``detailed
provisions related to'' the hearings process. The regulations in part
422, therefore, are intended only to describe in general terms the
overall procedures followed by OHA. They are not intended to describe
each provision contained in the applicable regulations of subpart J of
part 404 of this chapter or subpart N of part 416 of this chapter.
Consequently, we do not believe that we need to amend any provision of
part 422 of this chapter to refer specifically to the provisions of
these final rules.
Comment: One commenter stated that the proposed rule should be
clarified to establish that attorney advisors would be able to make
fully favorable decisions in claims involving drug addiction and
alcoholism where the claimant agrees that drug addiction and/or
alcoholism is a contributing factor material to the finding of
disability.
Response: The final rules give attorney advisors authority to make
decisions which are wholly favorable to the claimant and all other
parties in cases in which a claimant has filed a claim for benefits
based on disability under title II and/or title XVI. For the purposes
of new Secs. 404.942 and 416.1442, a ``wholly favorable'' decision is
intended to have the same definition as it is under the current
regulations that authorize ALJs to make such a decision, Secs. 404.948
and 416.1448. A wholly favorable decision is a decision that makes a
finding in favor of the claimant and all the parties on every issue.
Criteria for determining if any particular decision is wholly favorable
would not be appropriately included in Secs. 404.942 and 416.1442.
However, we expect that this issue will be addressed in the
instructions we plan to issue to implement these final rules.
Comment: Two commenters suggested extending the provisions of the
proposed rule to include other categories of claims, including claims
arising under the Old Age and Survivors program under title II of the
Act and claims adjudicated by OHA on behalf of the Health Care
Financing Administration under Parts A and B of the Medicare program
under title XVIII of the Act.
Response: The overwhelming majority of cases pending at OHA involve
claims for benefits based on disability. For the purposes of this short
term initiative, we decided that it would be best to focus these final
rules on increasing the efficiency with which we can process the
largest group of pending cases. Cases involving other types of claims,
however, will benefit from the general increase in efficiency at OHA
resulting from implementation of these rules.
Comment: One comment expressed the view that Secs. 404.957 and
416.1457 of subparts J and N of parts 404 and 416 of our regulations
should be amended to specify that a claimant's agreement to postpone a
hearing will constitute good cause for a failure to appear at a
scheduled hearing.
Response: This comment assumes that a case will have been assigned
to an ALJ before an attorney advisor conducts prehearing proceedings
under the authority contained in these rules. As discussed above,
however, that is not our intent. The prehearing proceedings conducted
under these provisions will not delay the scheduling of a hearing
because those proceedings will be conducted before the case would be
scheduled for a hearing, considering the number of cases awaiting
hearings and our general practice of scheduling hearings according to
the request for hearing date. The provisions concerning claimant
agreement to delay the hearing would apply if the prehearing
proceedings can not be completed before the case is ready to be
scheduled for a hearing.
Comment: Two commenters also recommended that Secs. 404.957 and
416.1457 of our regulations be revised to clarify that an ALJ may
dismiss a request for hearing when an attorney advisor issues a wholly
favorable decision under Secs. 404.942 or 416.1442.
Response: An ALJ's authority to dismiss a request for hearing under
the circumstances set forth under Secs. 404.942 and 416.1442 is
sufficiently well established by the provisions of these final rules.
For many years, ALJs have exercised the authority to dismiss requests
for hearing when revised determinations are made under the prehearing
case review regulations found at Secs. 404.941 and 416.1441, even
though such authority is not expressly set forth in the provisions of
Secs. 404.957 and 416.1457. The same principles apply with respect to
the similar, but temporary, provisions being established in these final
rules.
Comment: One commenter suggested that the proposed rule should be
clarified to state whether the ALJ's dismissal of the request for
hearing is required or only permitted after the attorney advisor issues
a decision, and no party requests that the hearing continue.
Response: We have not adopted this comment. An ALJ is required to
dismiss a hearing request when the attorney advisor issues a wholly
favorable decision and no party makes a written request to proceed with
the hearing within 30 days of the date the notice of the decision of
the attorney advisor is mailed. Under these rules, the attorney
advisor's notice of decision will advise the claimant that the ALJ
``will'' dismiss the request for hearing under those circumstances.
Comment: Several commenters also suggested that the proposed rule
should be amended to provide that issuance of a wholly favorable
decision by an attorney advisor would result in immediate dismissal of
the request for a hearing.
Response: We have not adopted this comment. For the purposes of
this temporary procedure, we believe it is more appropriate to make
dismissal of the request for hearing contingent on the failure of any
party to request to proceed with the hearing within 30 days after the
date the notice of the attorney advisor's decision is mailed. That
requirement clearly establishes that our intent in these temporary
provisions is to expedite the processing of cases without infringing on
a claimant's right to a hearing before an ALJ.
Comment: Several comments stated that the criteria in the proposed
rule under which attorney advisors in OHA
[[Page 34131]]
could conduct prehearing proceedings were too broad. One commenter
suggested that the criteria in the proposed rule under which attorney
advisors could conduct prehearing proceedings if new and material
evidence was submitted was vague and should be clarified.
Response: We have not adopted these comments. Restricting the
criteria under which an attorney advisor can conduct prehearing
proceedings would, in our judgment, unnecessarily preclude the most
prompt action possible on some cases. Moreover, in our experience,
there has been no confusion over nor excessive use of the regulations
found at Secs. 404.941 and 416.1441, which allow prehearing case
reviews under conditions substantially the same as those set forth in
new Secs. 404.942 and 416.1442.
Comment: One commenter suggested changes to the proposed rules to
clarify in several places in the regulations that attorney advisors may
only issue fully favorable decisions.
Response: We believe the regulations clearly limit the attorney
advisors to making only wholly favorable decisions, and do not require
further clarification, as suggested by the commenter.
Comment: Two commenters suggested that the proposed rule be revised
to clarify whether the attorney advisor can request vocational
evidence, in addition to medical evidence, as part of the prehearing
proceedings.
Response: The final rules state that the attorney advisor may
``[r]equest additional evidence that may be relevant to the claim,
including medical evidence. * * *'' That language is sufficiently broad
to allow the attorney advisor to request vocational evidence in
appropriate cases. It should be noted, however, that the attorney
advisor's ability to request additional evidence must be exercised in
accordance with the purpose of Secs. 404.942 and 416.1442 to facilitate
the identification and prompt processing of cases in which a wholly
favorable decision may be made without the need for an ALJ hearing.
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. 96.001, Social
Security-Disability Insurance; 96.006, 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: June 26, 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- )
Subpart J--[Amended]
1. The authority citation for subpart J of part 404 is revised to
read as follows:
Authority: Secs. 201(j), 205(a), (b), and (d)-(h), 221(d), 225
and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 405(a),
(b), and (d)-(h), 421(d), 425 and 902(a)(5)); 31 U.S.C. 3720A.
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.
(c) Nature of the prehearing proceedings that may be conducted by
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--
[[Page 34132]]
(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 June 30, 1997 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
Subpart N--[Amended]
1. The authority citation for subpart N of part 416 is revised to
read as follows:
Authority: Sec. 702(a)(5), 1631, and 1633 of the Social Security
Act (42 U.S.C. 902(a)(5), 1383, and 1383b).
2. New Sec. 416.1442 is added under the undesignated center heading
``Hearing Before an Administrative Law Judge'' to read as follows:
Sec. 416.1442 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 SSI 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.
(c) Nature of the prehearing proceedings that may be conducted by
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. 416.1459 unless it is
vacated by an administrative law judge or the Appeals Council pursuant
to Sec. 416.1460. 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. 416.1469 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. 416.1487.
(f) Ancillary provisions. For the purposes of the procedures
authorized by this section, the regulations of part 416 shall apply
to--
(1) Authorize an attorney advisor to exercise the functions
performed by an administrative law judge under Secs. 416.920a,
416.924d(b), and 416.946;
(2) Define the term ``decision'' to include a decision made by an
attorney advisor, as well as the decisions identified in Sec. 416.1401;
and
(3) Make the decision of an attorney advisor subject to review by
the Appeals Council under Sec. 416.1469 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 June 30, 1997 unless they are extended by the
Commissioner of Social Security by publication of a final rule in the
Federal Register.
[FR Doc. 95-16138 Filed 6-29-95; 8:45 am]
BILLING CODE 4190-29-P
