Comment from Anderson, Scott, Comments made in capacity of a private citizen

I have the following comments about the Notice of Proposed Rulemaking (NPRM) that the Social Security Administration (SSA) published concerning proposed amendments to its hearings and appeals regulations. 73 Fed. Reg. 33,745 (June 13, 2008). Generally, I believe that it is helpful for SSA to expressly state the standard of proof for its administrative proceedings relating to benefit claims. I also agree that a preponderance of the evidence standard is appropriate. However, I am concerned that the manner in which the proposed regulatory changes are written could create an ambiguity as to who has the burden of proof. The text of the proposed rule changes generally states that SSA’s determinations and decisions will be “based on the preponderance of the evidence.” Although the term “preponderance of the evidence” is a well known standard of proof, its context in the proposed rule looks more like a standard of review. Rather, the determinations and decisions of SSA should be based on substantial evidence. It is instead the burden of a party to provide proof by a preponderance of the evidence. I am concerned that given SSA’s responsibility in disability cases to fully develop the medical record, the proposed regulatory language could appear to further shift the burden of proof in disability cases to SSA by requiring that whatever SSA’s decisions is to be, it must be based on a preponderance of the evidence. This could mean that SSA would have to show that it is more likely than not that the claimant was not disabled. SSA does not bear the burden of proof in disability cases until step 5 of the sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). SSA made this clear in its preamble to final rule changes involving 20 C.F.R. §§ 404.1500ff, when it stated: “Under the Act and Sec. Sec. 404.1512 and 416.912 of our regulations, you generally have the burden of proving your disability. You must furnish medical and other evidence we can use to reach conclusions about your impairment(s) and its effect on your ability to work on a sustained basis. Our responsibility is to make every reasonable effort to develop your complete medical history. That includes arranging for consultative examinations, if necessary, and making every reasonable effort to get medical reports from your own medical sources. We are responsible for helping you produce evidence that shows whether you are disabled. Our administrative process was designed to be nonadversarial. (See Sec. Sec. 404.900(b) and 416.1400(b) of our regulations; Richardson v. Perales, 402 U.S. 389, 403 (1971); Sims v. Apfel, 120 S. Ct. 2080, 2083-85, 2086 (2000).) In addressing burdens of proof, it is critical to keep in mind that we are using a term in our nonadversarial administrative process that describes a process normally used in adversarial litigation. ``Burdens of proof'' operate differently in the disability determination process than in a traditional lawsuit. In the administrative process, the burden of proof generally encompasses both a burden of production of evidence and a burden of persuasion about what the evidence shows. (Director, OWCP v. Greenwich Collieries, 512 U.S. 267, 273 (1994) (citing Powers v. Russell, 30 Mass. 69, 76 (1833).) You shoulder the dual burdens of production and persuasion through step 4 of the sequential evaluation process. (See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).) Although you generally bear the burden of proving disability throughout the sequential evaluation process, there is a limited shift in the burden of proof to us ``only if the sequential evaluation process proceeds to the fifth step * * *.'' Bowen v. Yuckert, id. When the process proceeds to the fifth step, this means that you have demonstrated the existence of a severe impairment(s) resulting in an RFC that prevents the performance of past relevant work. When we decide that you are not disabled at step 5, this means that we have determined that there is other work you can do. To make this finding, we must provide evidence that demonstrates that jobs exist in significant numbers in the national economy that you can do, given your RFC, age, education, and work experience. In legal terms, this is a burden of production of evidence. This burden shifts to us because, once you establish that you are unable to do any past relevant work, it would be unreasonable to require you to produce vocational evidence showing that there are no jobs in the national economy that you can perform, given your RFC. However, as stated by the Supreme Court, ``It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so.'' Bowen v. Yuckert, id. Thus, the only burden shift that occurs at step 5 is that we are required to prove that there is other work that you can do, given your RFC, age, education, and work experience. That shift does not place on us the burden of proving RFC. When the burden of production of evidence shifts to us at step 5, our role is to obtain evidence to assist in impartially determining whether there is a significant number of jobs in the national economy you can do. Thus, we have a burden of proof even though our primary interest in the outcome of the claim is that it be decided correctly. As required by the Act, the ultimate burden of persuasion to prove disability, however, remains with you.” 68 Fed. Reg. 51,153, 51,155-51156 (August 26, 2003). Although the preamble was clear, the actual regulations as less precise. I suggest that SSA consider redrafting the proposed regulatory changes to clearly state who has the burden of proof at each step of the sequential evaluation process. The proposed changes should also make it clear that the party with the burden of proof, whether the claimant or SSA, ultimately has the burden of proving the elements required of each step of the sequential evaluation process by a preponderance of the evidence. Of course, with regard to the claimant, SSA would consider favorable evidence it develops as part of its duty to fully develop the record when deciding whether the claimant met the burden under the preponderance of the evidence standard. By modifying the proposed regulation, SSA could place claimants on notice of their burden of proof and ensure that SSA does not inadvertently increase its burden of proving that a claimant is not disabled.