Federal Register, Volume 75 Issue 140 (Thursday, July 22, 2010)

[Federal Register Volume 75, Number 140 (Thursday, July 22, 2010)]
[Proposed Rules]
[Pages 42639-42643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-17896]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2007-0092]
RIN 0960-AG72

Amendments to Procedures for Certain Determinations and Decisions

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We propose to revise the procedures for how claimants who
request hearings before administrative law judges (ALJs) may seek
further review of their fully favorable revised determinations based on
prehearing case reviews or fully favorable attorney advisor decisions.
We also propose to notify claimants who receive partially favorable
determinations based on prehearing case reviews that an ALJ will still
hold a hearing unless all parties to the hearing tell us in writing
that we should dismiss the hearing requests. We expect that these
changes will simplify the process and free up scarce administrative
resources that we can better use to reduce the hearings level case
backlog.

DATES: To ensure that your comments are considered, we must receive
them no later than September 20, 2010.

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-2007-0092 so
that we can associate your comments with the correct regulation:
Caution: You should be careful to include in your comments only
information that 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 Search function of the Web page to find
docket number SSA-2007-0092 and then submit your comment. 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 as we must manually post each comment. It may take up to a
week for your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Address your comments to the Office of Regulations, Social
Security Administration, 137 Altmeyer 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: Joshua Silverman, Office of
Regulations, Social Security Administration, 6401 Security Boulevard,
Baltimore, MD 21235-6401, (410) 594-2128. 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:

Electronic Version

The electronic file of this document is available on the date of
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Background

In most cases, we decide claims for benefits using an
administrative review process that consists of four levels: Initial
determination, reconsideration, hearing, and appeal. 20 CFR 404.900 and
416.1400. We make an initial determination at the first level. A
claimant who is dissatisfied with the initial determination may request

[[Page 42640]]

reconsideration.\1\ A claimant dissatisfied with the reconsidered
determination may request a hearing before an ALJ. Finally, if
dissatisfied with the ALJ's decision, a claimant may request that the
Appeals Council review that decision.\2\ After a claimant has completed
these administrative steps and received our final decision, he or she
may request judicial review of the final decision in Federal district
court.
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\1\ For disability claims, ten States participate in a
``prototype'' test under 20 CFR 404.906 and 416.1406. In these
States, we eliminated the reconsideration step of the administrative
review process. Claimants and other parties who are dissatisfied
with the initial determinations on their disability cases may
request a hearing before an ALJ. The ten States are: Alabama,
Alaska, California (Los Angeles North and West Branches), Colorado,
Louisiana, Michigan, Missouri, New Hampshire, New York, and
Pennsylvania.
\2\ We define the words ``determination'' and ``decision'' in 20
CFR 404.901 and 416.1401. At the initial and reconsideration levels
of the administrative review process, we issue ``determinations.''
ALJs issue ``decisions,'' as does the Appeals Council when it
reviews an ALJ's decision.
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We handle requests for ALJ hearings in several ways. Most claimants
receive a decision from an ALJ.\3\ An ALJ may hold a hearing and issue
a fully favorable, partially favorable, or unfavorable decision. An ALJ
may issue a decision without holding an oral hearing if the claimant
and any other parties waive their right to appear at a hearing or if
the decision is fully favorable.
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\3\ An ALJ may also send the case to the Appeals Council with a
recommended decision or dismiss a request for a hearing. 20 CFR
404.953(c), 404.957, 416.1453(d), and 416.1457.
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At the ALJ hearing level, there are two other ways we may issue
favorable determinations or decisions without holding hearings. A State
agency or one of our components may issue a fully favorable revised
determination under the prehearing case review process in 20 CFR
404.941 and 416.1441. An attorney advisor may issue a fully favorable
decision under the attorney advisor process in 20 CFR 404.942 and
416.1442. These processes help us adjudicate cases pending at the
hearing level more quickly while preserving claimants' right to a
hearing before an ALJ.

Current Prehearing Case Review

The prehearing case review process allows us to refer a case back
to the component that issued the determination under review. That
component decides whether to revise its determination and issue a fully
or partially favorable revised determination. We may conduct a
prehearing case review if:
1. Additional 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 the
prior determination may be revised.
20 CFR 404.941(b), 416.1441(b).
Our current regulations state that, if we issue a fully favorable
revised determination, we notify the claimant and all other parties
that the ALJ will dismiss the hearing request unless a party requests
that the hearing proceed. The claimant or other party must make this
request in writing within 30 days after the date we mail the notice of
the revised determination.
If we issue a partially favorable revised determination, we notify
the claimant and all other parties that we will continue with the ALJ
hearing unless the claimant and all other parties agree to dismiss the
hearing request. However, our current regulations do not specify how
the claimant and all other parties must tell us that they agree to
dismiss this hearing request.

Current Prehearing Decisions by Attorney Advisors

Attorney advisors in our Office of Disability Adjudication and
Review may conduct specific prehearing proceedings and, if appropriate,
make fully favorable decisions based on the record. Attorney advisors
may conduct prehearing proceedings under circumstances similar to those
under which we conduct prehearing case reviews. 20 CFR 404.942(b) and
416.1442(b). If an attorney advisor issues a fully favorable decision,
we wait 30 days before we dismiss the hearing request. We created the
30-day period to allow time for a claimant or other party to ask us to
proceed with the hearing.

Proposed Changes

Our adjudicative experience shows that claimants who receive a
fully favorable determination or decision rarely ask us to continue
with a hearing. Our experience shows that claimants may become confused
when they receive a notice dismissing their request for a hearing
several weeks after they received a fully favorable determination or
decision on their claim. As a result, we spend administrative
resources: (1) Processing the dismissals of requests for hearing
because we must wait until the 30-day period ends before we dismiss the
request for hearing; (2) answering claimants' questions; and (3)
explaining what the dismissal notice means.
We believe that changing our procedures would both simplify the
process and free scarce administrative resources that we can better use
to reduce the hearings level case backlog.
Therefore, we propose to revise the way claimants can obtain
further review fully favorable and partially favorable prehearing case
review determinations and fully favorable attorney advisor decisions.
The proposed changes preserve a claimant's right to have an ALJ
hearing, even when we have issued a fully favorable determination or
decision under one of these processes.
As is our current policy, whenever a claimant or other party seeks
further review of a favorable determination or decision, we consider
the entire case record and determination or decision. Further review of
a favorable determination or decision may result in a determination or
decision that is less favorable or unfavorable to a claimant.

Proposed Procedures for Prehearing Case Reviews

If we issue a fully favorable revised determination in the
prehearing case review process, we propose that an ALJ will dismiss a
request for a hearing soon after the reviewing component issues the
fully favorable determination. The notice accompanying the ALJ's order
of dismissal will advise all parties that they have 60 days from the
date they receive the notice to request that the ALJ vacate the
dismissal of the hearing request. The administrative law judge will
extend the 60-day time limit if a party making a request shows that he
or she had good cause for missing the deadline. If a party timely
requests that the ALJ vacate the dismissal, the ALJ will vacate the
dismissal, reinstate the request for a hearing, and offer all parties
an opportunity for a hearing.
If we issue a partially favorable determination in the prehearing
case review process, we propose that an ALJ will proceed to hold a
hearing unless all parties to the hearing tell us in writing that they
agree to dismiss the hearing request. If we receive a written
statement(s) agreeing to a dismissal before an ALJ mails a notice of
his or her decision, we will dismiss the request for a hearing.
We propose to include these changes in 20 CFR 404.941, 404.960,
416.1441, and 416.1460.

Proposed Procedures for Attorney Advisor Prehearing Decisions

If an attorney advisor issues a fully favorable decision, we
propose to consider the decision to be a hearing-level decision, and we
will not issue a notice of dismissal of the hearing request. We propose
that if a party to the hearing disagrees with the attorney advisor's
decision for any reason, the

[[Page 42641]]

party will have 60 days after receiving notice of the decision to
request that an ALJ reinstate the request for a hearing. The ALJ will
extend the 60-day time limit if the party making the request shows that
he or she had good cause for missing the deadline. If a party timely
requests that the ALJ reinstate the request for a hearing, the ALJ will
reinstate the request for a hearing and offer all parties to the
hearing an opportunity for a hearing. We will process the fully
favorable attorney advisor's decision while the hearing proceeds
normally.
We propose to include these changes in 20 CFR 404.942 and 416.1442.

Other Changes

We propose to change ``wholly favorable'' to ``fully favorable'' in
20 CFR 404.941, 404.948, 416.1441, and 416.1448. We also propose to
make additional changes for clarity in 20 CFR 404.948, 404.960,
416.1448, and 416.1460. These minor changes would make the language in
these sections consistent with other related sections but would not
alter their meaning.
Finally, if we issue these proposed rules as final rules, we will
review and determine whether we need to revise Social Security Ruling
97-2p, which explains our current procedures for prehearing case
reviews when new medical evidence is submitted.

Clarity of These Proposed Rules

Executive Order (E.O.) 12866 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 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 rules contain technical language or jargon that is
not clear?
Would a different format make the rules easier to
understand, e.g., grouping and order of sections, use of headings,
paragraphing?

When Will We Start To Use These Rules?

We will not use these rules until we evaluate public comments and
publish final rules in the Federal Register. All final rules we issue
include an effective date. We will continue to use our current rules
until that date. If we publish final rules, we will include a summary
of relevant comments we received, responses to them, and an explanation
of how we will apply the new rules.

Regulatory Procedures

Executive Order 12866

We consulted with the Office of Management and Budget (OMB) and
determined that these proposed rules meet the criteria for a
significant regulatory action under Executive Order 12866. Thus, OMB
reviewed them.

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
only affect individuals. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.

Paperwork Reduction Act

These regulations impose no new reporting or recordkeeping
requirements and are not subject to OMB clearance.

(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; 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).

Michael J. Astrue,
Commissioner of Social Security.
For the reasons set forth in the preamble, we propose to amend
title 20 of the Code of Federal Regulations part 404 subpart J and part
416 subpart N 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 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. Amend Sec. 404.941 by revising paragraphs (c), (d), and, (e) to
read as follows:

Sec. 404.941 Prehearing case review.

* * * * *
(c) Notice of a prehearing revised determination. If we revise the
determination in a prehearing case review, we will mail a written
notice of the revised determination to all parties at their last known
addresses. We will state the basis for the revised determination and
advise all parties of the effect of the revised determination on the
request for a hearing.
(d) Effect of a fully favorable revised determination. If the
revised determination is fully favorable to you, we will tell you in
the notice that an administrative law judge will dismiss the request
for a hearing. When the administrative law judge dismisses the request
for a hearing, the notice of dismissal will tell you that, if you or
another party to the hearing disagrees with the revised determination
for any reason, you or another party may request that the
administrative law judge vacate the dismissal and reinstate your
request for a hearing. If you wish to request that the administrative
law judge vacate the dismissal and reinstate your hearing request, you
must do so within 60 days after you receive the dismissal notice. The
administrative law judge will extend the time limit if you show that
you had good cause for missing the deadline. The administrative law
judge will use the standards in Sec. 404.911 to determine whether good
cause exists. If the request is timely, an administrative law judge
will vacate the dismissal, reinstate the request for a hearing, and
offer you an opportunity for a hearing.
(e) Effect of a partially favorable revised determination. If the
revised determination is partially favorable to you, we will tell you
in the notice what was not favorable. We will also tell you that an
administrative law judge will proceed to hold the hearing you requested
unless you and all other parties to the hearing agree in writing to
dismissal of the request for a hearing. If we receive the written
statement(s) agreeing to dismissal of the request for a hearing before
an administrative law judge mails a notice of his or her

[[Page 42642]]

hearing decision, an administrative law judge will dismiss the request
for a hearing.
3. Amend Sec. 404.942 by revising paragraphs (d), (e) introductory
text, (e)(1), and (f)(3) to read as follows:

Sec. 404.942 Prehearing proceedings and decisions by attorney
advisors.

* * * * *
(d) Notice of a decision by an attorney advisor. If the attorney
advisor issues a fully favorable decision under this section, we will
mail a written notice of the decision to all parties at their last
known addresses. We will state the basis for the decision and advise
all parties that, if a party disagrees with the decision for any
reason, the party may request that an administrative law judge
reinstate the request for a hearing. If a party wishes to request that
the administrative law judge reinstate the hearing request, the party
must do so within 60 days after receiving notice of the decision. The
administrative law judge will extend the time limit if you show that
you had good cause for missing the deadline. The administrative law
judge will use the standards in Sec. 404.911 to determine whether good
cause exists. If the request is timely, an administrative law judge
will reinstate the request for a hearing and offer you an opportunity
for a hearing.
(e) Effect of an attorney advisor's decision. An attorney advisor's
decision under this section is binding unless--
(1) You or another party to the hearing submits a timely request
that an administrative law judge reinstate the request for a hearing
under paragraph (d) of this section;
* * * * *
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of
this section subject to review by the Appeals Council if the Appeals
Council decides to review the decision of the attorney advisor anytime
within 60 days after the date of the decision under Sec. 404.969.
* * * * *
4. Amend Sec. 404.948 by revising the second sentence of paragraph
(a), and paragraph (b)(1)(ii), to read as follows:

Sec. 404.948 Deciding a case without an oral hearing before an
administrative law judge.

(a) Decision fully favorable. * * * The notice of the decision will
state that you have the right to an oral hearing and to examine the
evidence on which the ALJ based the decision.
(b) * * *
(1) * * *
(ii) You live outside the United States, you do not inform us that
you wish to appear, and there are no other parties who wish to appear.
* * * * *
5. Revise Sec. 404.960 to read as follows:

Sec. 404.960 Vacating a dismissal of a request for a hearing before
an administrative law judge.

(a) Except as provided in paragraph (b) of this section, an
administrative law judge or the Appeals Council may vacate a dismissal
of a request for a hearing if, within 60 days after the date you
receive the dismissal notice, you request that we vacate the dismissal
and show good cause why we should not have dismissed the request for a
hearing. The Appeals Council may decide to vacate a dismissal on its
own initiative within 60 days after we mail the notice of dismissal.
The Appeals Council will inform you in writing if it vacates the
dismissal.
(b) If an administrative law judge dismissed your request for a
hearing because you received a fully favorable revised determination
under the prehearing case review process in Sec. 404.941, but you
still wish to proceed with the hearing, then you must follow the
procedure in Sec. 404.941(d) to request that an administrative law
judge vacate his or her order dismissing your request for a hearing.

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

Subpart N--[Amended]

6. 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).

7. Amend Sec. 416.1441 by revising paragraphs (c), (d), and, (e)
to read as follows:

Sec. 416.1441 Prehearing case review.

* * * * *
(c) Notice of a prehearing revised determination. If we revise the
determination in a prehearing case review, we will mail a written
notice of the revised determination to all parties at their last known
addresses. We will state the basis for the revised determination and
advise all parties of the effect of the revised determination on the
request for a hearing.
(d) Effect of a fully favorable revised determination. If the
revised determination is fully favorable to you, we will tell you in
the notice that an administrative law judge will dismiss the request
for a hearing. When the administrative law judge dismisses the request
for a hearing, the notice of dismissal will tell you that, if you or
another party to the hearing disagrees with the revised determination
for any reason, you or another party may request that the
administrative law judge vacate the dismissal and reinstate your
request for a hearing. If you wish to request that the administrative
law judge vacate the dismissal and reinstate your hearing request, you
must do so within 60 days after you receive the dismissal notice. The
administrative law judge will extend the time limit if you show that
you had good cause for missing the deadline. The administrative law
judge will use the standards in Sec. 416.1411 to determine whether
good cause exists. If the request is timely, an administrative law
judge will vacate the dismissal, reinstate the request for a hearing,
and offer you an opportunity for a hearing.
(e) Effect of a partially favorable revised determination. If the
revised determination is partially favorable to you, we will tell you
in the notice what was not favorable. We will also tell you that an
administrative law judge will proceed to hold the hearing you requested
unless you and all other parties to the hearing agree in writing to
dismissal of the request for a hearing. If we receive the written
statement(s) agreeing to dismissal of the request for a hearing before
an administrative law judge mails a notice of his or her hearing
decision, an administrative law judge will dismiss the request for a
hearing.
8. Amend Sec. 416.1442 by revising paragraphs (d), (e)
introductory text, (e)(1), and (f)(3) to read as follows:

Sec. 416.1442 Prehearing proceedings and decisions by attorney
advisors.

[[Page 42643]]

whether good cause exists. If the request is timely, an administrative
law judge will reinstate the request for a hearing and offer you an
opportunity for a hearing.
(e) Effect of an attorney advisor's decision. An attorney advisor's
decision under this section is binding unless--
(1) You or another party to the hearing submits a timely request
that an administrative law judge reinstate the request for a hearing
under paragraph (d) of this section;
* * * * *
(f) * * *
(3) Make the decision of an attorney advisor under paragraph (d) of
this section subject to review by the Appeals Council if the Appeals
Council decides to review the decision of the attorney advisor anytime
within 60 days after the date of the decision under Sec. 416.1469.
* * * * *
9. Amend Sec. 416.1448 by revising the second sentence of
paragraph (a), and paragraph (b)(1)(ii), to read as follows:

Sec. 416.1448 Deciding a case without an oral hearing before an
administrative law judge.

Sec. 416.1460 Vacating a dismissal of a request for a hearing before
an administrative law judge.

(a) Except as provided in paragraph (b) of this section, an
administrative law judge or the Appeals Council may vacate a dismissal
of a request for a hearing if, within 60 days after the date you
receive the dismissal notice, you request that we vacate the dismissal
and show good cause why we should not have dismissed the request for a
hearing. The Appeals Council may decide to vacate a dismissal on its
own initiative within 60 days after we mail the notice of dismissal.
The Appeals Council will inform you in writing if it vacates the
dismissal.
(b) If an administrative law judge dismissed your request for a
hearing because you received a fully favorable revised determination
under the prehearing case review process in Sec. 416.1441, but you
still wish to proceed with the hearing, then you must follow the
procedure in Sec. 416.1441(d) to request that an administrative law
judge vacate his or her order dismissing your request for a hearing.

[FR Doc. 2010-17896 Filed 7-21-10; 8:45 am]
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