2015-26747. Returning Evidence at the Appeals Council Level

AGENCY:

Social Security Administration.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

We propose to amend our regulations by revising our rules regarding the return of evidence at the Appeals Council (AC) level. Our current rules state that the AC will return to the claimant additional evidence it receives when the AC finds the evidence does not relate to the period on or before the date of the administrative law judge's (ALJ) hearing decision. We are proposing these revisions to give the AC discretion in returning additional evidence that it receives when the AC determines the additional evidence does not relate to the period on or before the date of the ALJ decision.

DATES:

To ensure that we consider your comments, we must receive them by no later than November 20, 2015.

ADDRESSES:

You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2013-0061 so that we may associate your comments with the correct regulation.

Caution: You should be careful to include in your comments only information you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

1. Internet: We strongly recommend this method for submitting your comments. Visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Web page's Search function to find docket number SSA-2013-0061. Once you submit your comment, the system will issue you a tracking number to confirm your submission. You will not be able to view your comment immediately because we post each comment manually. It may take up to a week for your comment to be viewable.

2. Fax: Fax comments to [phone].

3. Mail: Address your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

FOR FURTHER INFORMATION CONTACT:

Maren Weight, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, [phone]. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Background

The AC will consider new and material evidence submitted with a request for review when the evidence relates to the period on or before the date of the ALJ hearing decision.^[1] When the AC does not find that the additional evidence relates to the period on or before the date of the ALJ hearing decision, our current rules state that the AC will return the additional evidence to the claimant.^[2]

When we published it in 1987 (52 FR 4004, February 9, 1987), the rule requiring the AC to return the additional evidence to the claimant made sense because cases pending at the AC level involved paper claim(s) files. Returning evidence provided a public service because claimants often submitted original documentation to the AC. Our primary purpose in returning the original documentation was to allow the claimant to use the information if he or she filed a new application. Because the AC worked with paper claim(s) files, it was more administratively efficient and cost effective to return the evidence by mail directly to the claimant.

We now use many electronic services that make the practice of returning evidence unnecessary. For example, we now scan most of the medical evidence into the electronic claim(s) file or appointed representatives submit it through our Electronic Records Express system. This technology immediately uploads records into a claimant's electronic folder, making the records available for review in real time. It is neither administratively efficient nor cost effective for us to print out documents that have been submitted to us electronically by a claimant or appointed representative in order to return them to the claimant. Additionally, in the electronic folder, we are able to identify and retain the additional information in a part of the claim(s) file that is not part of the record associated with the current application. This means that all of the evidence submitted on a prior application is immediately available for review if the claimant files a subsequent application.

Most claimants have representation at and above the hearing level. In approximately 85% of the claims pending with an appointed representative at the hearing level, the representatives have online access to the electronic folder. This means that most representatives can determine in real time whether we received and associated evidence with the claim(s) file. It is impractical and unnecessary to return evidence in these claims because the appointed representative has immediate access to the additional evidence while the claim is pending before the AC.

The administrative burden of processing and returning evidence also has increased significantly over the last few years. As the number of appeals filed with the AC continues to increase, we have experienced a corresponding increase in the number of claims that involve the submission of additional evidence. Each year, the AC receives additional evidence submissions in approximately one-third of its pending cases, most of which are multi-page submissions.

In addition to the increased costs associated with printing a significant amount of electronically submitted documents, there are many other administrative and processing time costs to returning evidence. When the AC returns evidence, employees must separate the evidence returned from the other evidence in the electronic claim(s) file, remove the notice of action from the automated printing and mailing process, and manually print, package, and mail the evidence to the claimant. This process is time-consuming, uses our scarce administrative resources with little benefit either to the public or to us, requires action by multiple employees, and delays release of the AC action document. This delay is burdensome and unnecessary in most instances because the claimant already has copies of or access to the information.

We recognize that there may be some instances in which it would remain appropriate for the AC to return evidence to the claimant, such as when the submitted evidence is an original or a certified copy of a marriage or birth certificate. In evaluating whether returning the evidence is necessary, the AC considers who submitted the information and by what means, whether the claimant is represented, and whether the claimant otherwise has access to the information. Our sub-regulatory instructions will incorporate procedures that explain when the AC will return evidence. We are not changing how the AC considers additional evidence or when the AC will give protective filing based on the receipt of additional evidence.

Given the change in our operating environment since we first published these rules in 1987, both in terms of our administrative resources and the electronic availability of evidence, we believe it is no longer administratively efficient or cost effective to return additional evidence when the AC determines it does not relate to the period on or before the date of the ALJ decision. We expect these proposed changes will benefit the public by reducing the time it takes to release an AC action document.

Clarity of This Notice of Proposed Rulemaking

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand.

For example:

• Would more, but shorter, sections be better?
• Are the requirements in the proposed rules clearly stated?
• Have we organized the material to suit your needs?
• Could we improve clarity by adding tables, lists, or diagrams?
• What else could we do to make the rules easier to understand?
• Do the proposed rules contain technical language or jargon that is not clear?
• Would a different format make the proposed rules easier to understand, e.g. grouping and order of sections, use of headings, paragraphing?

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and determined that these proposed rules do not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Thus, OMB did not review these proposed rules.

Regulatory Flexibility Act

We certify that these proposed rules will not have a significant economic impact on a substantial number of small entities because they affect individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

Paperwork Reduction Act

These proposed rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; and 96.006, Supplemental Security Income)

List of Subjects

20 CFR Part 404

• Administrative practice and procedure
• Blind
• 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
• Reporting and recordkeeping requirements
• Supplemental Security Income (SSI)

Dated: September 14, 2015.

Carolyn W. Colvin,

Acting Commissioner of Social Security.

For the reasons stated in the preamble, we propose to amend 20 CFR chapter III parts 404 and 416 as set forth below:

PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- )

Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions

1. The authority citation for subpart J of part 404 continues to read as follows:

Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

2. In § 404.976, revise paragraph (b)(1) to read as follows:

§ 404.976

Procedures before Appeals Council on review.

* * * * *

(b) * * * (1) The Appeals Council will consider all the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it that relates to the period on or before the date of the administrative law judge hearing decision. If you submit evidence that does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will explain why it did not accept the additional evidence and will advise you of your right to file a new application. The notice will also advise you that if you file a new application within 6 months after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits in accordance with § 404.630. If you file a new application within 6 months of the date of this notice, we will use the date of the request for review as the filing date for your application.

* * * * *

PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED

Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions

3. The authority citation for subpart N of part 416 continues to read as follows:

Authority: Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

4. In § 416.1476, revise paragraph (b)(1) to read as follows:

§ 416.1476

Procedures before Appeals Council on review.

* * * * *

(b) * * * (1) In reviewing decisions based on an application for benefits, the Appeals Council will consider the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it that relates to the period on or before the date of the administrative law judge hearing decision. If you submit evidence that does not relate to the period on or before the date of the administrative law judge hearing decision, the Appeals Council will explain why it did not accept the additional evidence and will advise you of your right to file a new application. The notice will also advise you that if you file a new application within 60 days after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits in accordance with § 416.340. If you file a new application within 60 days of the date of this notice, we will use the date of the request for review as the filing date for your application.

* * * * *

Footnotes

1.  20 CFR 404.970(b) and 416.1470(b).

2.  20 CFR 404.976(b) and 416.1476(b).