973-275-1175

CHLP Files Comments on Social Security Administration Amendments to ALJ


Comments to Notice of Proposed Rule Making

Docket No. SSA-2007-0044

Amendments to the Administrative Law Judge, Appeals Council andDecision Review Board Appeals Levels

Community Health Law Project

185 Valley Road

South Orange, N.J. 07079

(973) 275-1175

INTRODUCTION

The Community Health Law Project is a non-profit legal services organization which has, for 30 years, provided free representation to indigent people with disabilities in the State of New Jersey. Each year we represent approximately 4,000 individuals, and roughly 35% of the cases we accept involve matters before the Social Security Administration (SSA).

We, of course, agree that there is a major problem with the length of time that it takes for a disability claim to be decided. We are well aware of the frustrations and hardships experienced by those pursuing claims and of the challenging nature of your job in adjudicating medical and vocational issues.

We share in your goal to speed up the application and appeals process. However, we believe that many of the proposals offered in this NPRM are overly bureaucratic and legalistic and will hurt legitimate claimants in the name of administrative efficiency.In our view, what is truly needed to meet your goals of providing more timely, high quality adjudications is more resources. You have begun instituting commendable technological advances with your transition to electronic evidence folders and the judicious use of videoconferencing. These measures will clearly help. However, what is also desperately needed is more staff at all levels of SSA. We urge you to continue to press Congress and the President for more funding so that you can deliver high quality adjudications in a timely manner without imposing additional procedural barriers, particularly to unrepresented claimants. The government's failure to fund SSA adequately is undermining the critical safety net which the Social Security Act has historically served. SSA and the citizens who depend on its services should no longer be subjected to budgetary dismemberment. We respectfully submit the following detailed comments on the pending NPRM.

SSA SHOULD NOT IMPOSE THE PROPOSED NEW DEADLINES TO SUBMIT EVIDENCE THROUGHOUT THE APPEALS PROCESS

Submitting Evidence Five Days Before the ALJ Hearing

20 CFR §416.1435 and §404.935 currently provide that "if possible", evidence to be considered at a hearing should be submitted to the ALJ when the hearing is requested or within 10 days of filing the request. Further these regulations state that a claimant should exert "every effort" to supply material evidence to the ALJ by the time of hearing.

The proposed changes to the regulations would require that all evidence must be submitted within 5 business days of the hearing. If the claimant gives the evidence to the ALJ less than 5 business days prior to the hearing or at the hearing, it will be considered late and the ALJ may decline to accept the evidence unless the claimant shows as follows:

1. An action of the Social Security Administration misled the claimant. or

2. The claimant has a physical, mental, educational, or linguistic limitation preventing claimant from submitting the evidence at an earlier time, or

3. Some other unusual, unexpected, or unavoidable circumstance beyond the claimant's control, preventing him/her from submitting the evidence within the deadline.

Proposed 20 CFR §416.1435 and §404.935

We begin by joining in the observation of the National Organization of Social Security Claimants Representatives (NOSSCR) that the proposed changes to restrict the submission of evidence violate the Social Security Act. Under current law, the claimant has a right to a hearing with a decision based on "evidence adduced" at the hearing. 42 U.S.C. § 405(b)(1). While the current regulations comply with this provision of the Act, we believe that the proposed changes conflict with the statute.

Furthermore, as a matter of public policy, the proposed change is unfair to claimants . First, it should be noted that an insufficient number of ALJs has caused a significant backlog, resulting in claimants waiting approximately three years for a hearing. Regardless of the reasons (such as inadequate funding) for such inordinate delays by SSA, after "keeping the claimant waiting" for such inordinate periods, it is unfair to reject what may be critical evidence on the grounds that it is late by a matter of days. Giving ALJs the power (and additional burden) to decide whether or not to admit such evidence for good cause is sure to lead to some percentage of errors in excluding evidence.

The proposed five-day deadline may appear to simplify the proceedings, but will likely lead to more issues for appeal and is contrary to good judicial practice because the ALJ is still receiving other forms of critical evidence on the day of the hearing, ie. testimony by claimants and both lay and expert witnesses. Not yet having heard the testimony and assessed the demeanor and credibility of the witnesses, the ALJ is still be far from weighing the totality of the evidence on the day of the hearing, since the live testimony is such a critical feature of the hearing. Therefore, it seems to us impossible to justify the exclusion of what may be critical documentary evidence, just because it was not submitted five daysbefore the hearing. The current practice of permitting such evidence on the day of the hearing as a matter of right not only contributes to the ALJ's full consideration of all of the evidence, but it spares the ALJ the need to make additional findings as to whether good cause exists for such submissions by the claimant.

Furthermore, the proposed criteria which the ALJ is to consider in deciding whether to accept "late" evidence, is highly subjective and subject to abuse of discretion. For example, determining what constitutes an "unusual", "unavoidable", or "unexpected" circumstance is left up to the individual ALJ's interpretation. This is likely to lead to additional appeals further clogging the system, on the issue of whether an ALJ appropriately rejected evidence which, if considered, would have resulted in a favorable decision. Certainly SSA does not want to worsen an already unacceptable situation in which claimants must wait years for a hearing, and years more if an unfavorable decision must be appealed.

Submitting Evidence Between the ALJ Hearing and the ALJ Decision

Proposed §404.935 & §416.1435 (Submitting evidence to an administrative law judge) provides that the ALJ will accept and consider new evidence only if "(1) one of the three exceptions above is met and (2) that there is a "reasonable possibility" that the evidence, when considered alone or with the other evidence of record, would affect" the outcome of the claim.

Again, the three exceptions referred to are: 1) SSA's action misled the claimant; (2) the claimant has a physical, mental, educational, or linguistic limitation that prevented the claimant from submitting the evidence earlier; or (3) some other "unusual, unexpected, or unavoidable circumstance beyond the claimant's control" prevented earlier filing.

We have several concerns about the proposed new rule. First, we believe that the regulation should expressly permit the claimant to submit rebuttal evidence whenever there is testimony given by a vocational expert or medical advisor. Since this testimony is given for the first and only time during the hearing, it is impossible for the claimant to submit expert or other evidence rebutting this testimony until after the hearing. As a matter of fairness and basic due process, any such rebuttal evidence must be admitted as a matter of right, not merely in the discretion of the ALJ.

Additionally, making consideration of relevant evidence discretionary will inevitably result in the erroneous exclusion of evidence in some percentage of cases. This is particularly true in the case of unrepresented claimants, who, in addition to having mental and/or physical limitations, struggle to understand the complex regulations and laws governing SSA's adjudication of disability. Even where represented, the consequences for the claimant whose evidence has been excluded as late will be huge. It will require additional appeals and, thereby, create additional delays and additional financial hardships for claimants who already have waited for three years, on average, for the hearing decisions. In addition, such errors will create more work for SSA to process appeals to the Review Board and the federal courts, along with new applications by claimants whose evidence was excluded as untimely.

We would observe that, in order for the ALJ to decide whether to admit the evidence, under the second prong of the proposed rule, he or she must read it and determine whether there is a "reasonable possibility" that the evidence, when considered alone or with the other evidence of record, would affect the outcome of the claim. Once the ALJ has read and analyzed the proffered evidence to this extent, it should not be unduly burdensome to discuss it in the decision. If the proffered evidence is so immaterial or insubstantial as to not possibly affect the outcome, it can be incorporated into the decision and its rejection explained with relatively little additional work by the ALJ.

It should be emphasized that this proposal addresses the time period after the hearing, but before the ALJ has even written a decision. It is imperative that errors be avoided at this point in the adjudicative process. It is still possible to for the ALJ to adjust his or her analysis and issue a decision that reflects all of the available evidence and avoid an incorrect decision. While this places some small additional burden on the ALJ, it is essential, given the consequences, that tentative decisions be modified and the correct decision issued at the ALJ level.

Also, we are concerned that, on some occasions, an ALJ may abuse the discretion afforded by the NPRM to improperly preclude relevant evidence, in contravention of the overriding need to obtain a fair and accurate decision. While we have great respect for the hard work and integrity of the corps of ALJs as a whole, there are a small number of ALJs whose decisions are repeatedly reversed or whose treatment of claimants is unduly harsh or otherwise problematic. Complaints are lodged against some, although not all, of these problematic ALJs. For these ALJs, an abuse of the discretion proposed in the NPRM is all too predictable.

Submitting New Evidence to the Review Board

The proposed regulations creates an even stricter standard for the admission of newly obtained, relevant evidence to the Review Board after the ALJ decision. Proposed §404.973 & §416.1473 (Scope of Review -evidentiary record before the Review Board), provide that the Review Board will accept and consider new evidence only if one of the three exceptions ( SSA's action misled the claimant; the claimant has a physical, mental, educational, or linguistic limitation that prevented the claimant from submitting the evidence earlier; or that some other "unusual, unexpected, or unavoidable circumstances" exist beyond the claimant's control) is met and (2) there is a "reasonable probability" that the evidence, when considered alone or with the other evidence of record, would affect the outcome of the claim. Of course, this requirement is even more restrictive than that proposed for submission of evidence to the ALJ after the hearing, ( "reasonable probability" versus "reasonable possibility" that the evidence would affect the outcome of the case).All of the same concerns set forth above apply to this proposal. Again, we are concerned that in an effort to move cases more quickly, an important safeguard against incorrect decisions will be lost. As with ALJ reviews of post-hearing evidence, we believe that once the Review Board has read and analyzed the proffered evidence, in order to determine if there is a reasonable probability that the evidence would affect the outcome, it should not be unduly burdensome to fully consider such evidence and include it in the written decision of the Review Board, by integrating it with the rest of the evidentiary record. Compared to the effort involved in responding to federal court appeals and/or processing new applications, this can be accomplished with relatively little additional work. Your belief that it is advantageous to require a new application in order to have additional evidence considered creates a tremendous hardship for claimants and is contradicted by the additional SSA resources necessary to process a new application.

Impact on Federal Court Filings

Lastly, we join in NOSSCR's concern that these proposed rules are more restrictive than the Act sets forth for a federal court to remand a case back to SSA, where you failed to consider "new"and "material" evidence and "good cause" exists. 42 U.S.C. § 405 (g). Hence, the proposed rules are, particularly with regard to submissions after the hearing, more restrictive than Congress intended and will likely cause more court cases to be filed, increasing the burden on claimants and SSA alike.

In conclusion, we fear that the critical role that SSA plays in the social safety net of our citizens may well be jeopardized by making a necessarily complicated process even less flexible and more bureaucratic. We believe that the proposed rules creating stricter deadlines for the submission of evidence, while intended to make the system work faster, are likely to overtake the more critical goal of deciding cases based upon a complete and thorough analysis of the evidence. They fail to take into account the challenges that claimants, both represented and, even more so, unrepresented claimants, face in getting medical records and evaluations completed by overburdened medical clinics and other providers. This is particularly true in light of the fact that the severity and nature of physical and mental impairments of claimants change over time and, in particular, over the years that it takes for them to reach the ALJ and Review Board. As such, the need to obtain and pay for updated records is a huge and continuing obstacle for claimants with disabilities and dwindling financial resources.

We support the many technological improvements that you have undertaken, such as creating electronic evidence folders and the judicious use of videoconferencing in ALJ hearings. We believe that these measures, once they are fully implemented, will greatly improve the speed and efficiency of SSA adjudications in the future, without unduly burdening the accuracy of the decision-making process. However, we cannot support changes that jeopardize the accuracy of decisions and the opportunity of claimants to add to the evidentiary record as new medical evidence becomes available. The proposed concept of requiring new applications to document post-hearing changes in the medical condition of claimants is likely to cause unnecessary hardship to claimants. It will likely lead deserving claimants to become too worn down to continue a cycle of applications and appeals and ultimately cost them the benefits that they deserve. Ironically, these "administrative efficiencies" may well backfire and increase the workload of the agency.

SSA SHOULD NOT REQUIRE THAT CLAIMANTS LIST ALL IMPAIRMENTSAND SPECIFY ALL GROUNDS OF DISAGREEMENT IN THEREQUEST FOR HEARING

The proposed regulations require that in the Request for Hearing, a claimant to give "specific reasons" why he or she disagrees with the reconsideration decision. The regulations further provide that the Request for Hearing is to contain a statement of the medical impairments preventing the claimant from working.

Many claimants do not have representatives at the time they request a hearing. They often have linguistic limitations, and/or serious mental disabilities, learning disabilities and/or physical symptoms limiting their ability to complete lengthy forms. Furthermore most claimants are not fully versed in Social Security disability law. For such clients to articulate "specific reasons" why s/he disagrees with the reconsideration, implies more knowledge in Social Security law than the vast majority of claimants possess. Many claimants will likewise have difficulty in making a list of "medically determinable" impairments for the same reasons . Even if the claimant is represented, it is not uncommon in our agency to complete a Request for Hearing form, without full knowledge of all relevant impairments because claimants due to their disability, are not aware of or are forgetful of their numerous medical conditions which prevent them from working.

Given the likelihood that there will be significant inaccuracies in the Request for Hearing form for the reasons indicated above, the requirement for this added information will only make it more difficult for claimants to fill out this form without giving SSA any information that it can realistically use. Moreover the same information is included in the Disability Report, so that including this in the Request for Hearing is simply redundant and creates the additional burden of needless paperwork.

PRE-HEARING STATEMENTS AND CONFERENCES PROCEDURESSHOULD NOT BE CHANGED AS PROPOSED IN THE NPRM

The NPRM makes two significant changes to the existing regulations on pre-hearing statements and conferences to which we object. First, the current regulations require the ALJ to provide claimants with advance notice of at least seven days of the scheduling of pre- and post-hearing conferences. 20 C.F.R. §§ 404.961; 416.1461 .Under your proposed change to the regulations, the ALJ need only give 'reasonable notice of the time, place and manner of the conference'. Thus, the proposed rule change substitutes a vague 'reasonable notice' requirement for the current seven day minimum notice.

Second, unlike the existing regulations which impose no sanction for failure to appear, your proposed regulations provide for the dismissal of the hearing request for failure to appear at a pre-hearing or post-hearing conference, absent a finding of good cause. Proposed 20C.F.R. §§ 404.961(a)(4); 416.1461(a)(4).

We find the proposed changes extremely troublesome for several reasons. First, in light of the existing, relatively abbreviated advance notice requirement, the proposed notice changes don't advance any of the principal objectives cited in the Introduction to the NPRM. (improve the decision making process; improve how claims are processed; make the hearing process more efficient; reduce hearings backlog). 72 Fed .Reg. No.208, at 61218-19 (October 29, 2007) Rather the new rules would primarily serve the needs of bureaucratic efficiency and economy. Moreover, since the proposed rules grant virtually complete discretion in the ALJ to determine the reasonableness of the advance notice to be given and, where there is a failure to appear, the presence of good cause, the very fate of many appeals may rest with the claimant's or representative's ability to appear at a conference on what may, in many circumstances, constitute unreasonably short notice.

Our experience in representing claimants has long demonstrated that communicating with them on short notice is frequently impossible for a variety of reasons. These include homelessness (often contributed to by their impoverishment while awaiting an award of benefits); functional impairments, related to the individual's disability; linguistic barriers; and the lack of a telephone. As difficult as the current seven-day deadline can be, the proposal to authorize even less notice will inevitably result in more dismissals for circumstances beyond the control of the claimant.

These changes are particularly objectionable since the ALJ'S decision to dismiss a hearing request is virtually unreviewable (See 20 C.F.R. §§ 404.959 and 416.1459 as to the 'binding effect' of ALJ's dismissal decision unless vacated by ALJ or Appeals Council). In that respect, there will be instances in which these rules threaten a claimant with a kind of appellate death penalty for the primary purpose of streamlining the conference scheduling system. Whatever slight advantages may be achieved by the proposed changes do not justify granting ALJ's the power to dismiss appeals on this ground.

In this context, it is interesting to note that, in your introductory remarks, you seem to contemplate a less 'rigid' notice requirement in which "...the parties agree to the time and place of the conference" 72 Fed .Reg. No.208, at 61220 (October 29, 2007) (emphasis supplied). The proposed rules, however, provide for no such 'agreement'. They simply permit the ALJ to command the presence of the claimant or his representative on 'reasonable' (less than seven days) notice, the reasonableness to be determined solely by the ALJ.

Ultimately, rather than promote meaningful improvement in the hearing process, these proposed rules tend to exalt bureaucratic efficiency over fairness, sacrificing a claimant's basic rights at the altar of efficiency. Again, we submit that abandoning a fixed, short advance notice for conferences and permitting the dismissal of a hearing request under these circumstances is an inappropriate and extreme remedy to the problems which face the SSA.

THE PROPOSED CHANGES TO THE TIME, PLACE AND MANNER OF ALJ HEARINGS SHOULD NOT BE ADOPTED AS PROPOSED

The proposed rules would also authorize the ALJ to direct the claimant to appear at the hearing by telephone. Although the ALJ could direct telephonic participation only in "extraordinary" or "exceptional" circumstances (proposed 20 CFR §§ 936 (c)(1) and 938 (b) (5)), the new rules do not explicitly permit the claimant to object to such a process under such circumstances. Permitting an ALJ to determine that 'extraordinary circumstances' exist and conduct a telephone hearing without affording the claimant any possibility of raising an objection strikes at the very fairness of the hearing process.

We note that it may be possible to interpret the proposed regulations generally governing 'Time and Place' issues to include a claimant's right to object to the manner in which the hearing will be conducted (see, e.g.20 CFR §§ 404.936, 404.939; 416.1436; and 416.1439). Clarification, however, is needed on this point. To the extent the NPRM fails to expressly and minimally authorize a good cause objection to a telephone hearing, it does nothing to improve the hearing process. Claimants must be given the right to object.

Concerns associated with the lack of any ability to object are magnified by the fact that neither the text of the new rules nor the explanatory language in the "Introduction" to the NPRM offers anything more than scant guidance to the ALJ as to the meaning of "extraordinary" or "exceptional" circumstances warranting a telephone hearing. The only example given is "where your appearance is not possible, such as if you are incarcerated and the facility will not allow a hearing at the facility and videoconferencing is not available." Proposed § 404.936(c)(1)(I). See also §§ 404.936(c)(1); 404.938(b)(5); 416.1436(c)(1); 416.1438(b)(5); 72 Fed .Reg. No.208, at 61220 (October 29, 2007). Clearly, however, the parameters for an ALJ determination that the claimant's appearance is "not possible" is completely unfettered.

Further, even when the new rules clearly permit 'time and place' objections, the proposed standards impose little or no obligation on the ALJ to consider the claimant's capacity to meaningfully participate in the proceeding or receive a fair and full adjudication on the merits or substance of the appeal. Rather, the standards speak, in generalities and familiar bureaucratic catch-phrases and the 'efficient administration of the hearing process and delays in scheduling the hearing. "See 20 CFR §§ 404.939 (a)(2); 416.1439(a)(2).

Finally, the proposed rules restrict the time during which a claimant may object to the time and place of the hearing: no objection may be made later than 30 days after receiving notice of the hearing. We submit that these rules are manifestly unreasonable. In view of the new 75 day hearing notice provision (Proposed 20 CFR §§ 404.938(a) and 416.1438(a)), in most instances a claimant would be prevented from making any objection to the time and place of a hearing for any reason arising within 45 days of the scheduled hearing. This fails to recognize the very real possibility that events may occur within this 45 day period which constitute legitimate grounds for a change in the time or place of the hearing. Again, it is difficult to imagine what worthy objective is served by adopting such a rigid and inflexible rule.

THE PROPOSED "STANDARD OF REVIEW" AND PROCEDURES FOR THE REVIEW BOARD SHOULD NOT BE ADOPTED

Claimants Should Not be Charged for Copies of the Record or the Hearing Recording

Another concern that we have is the new requirement that claimants will be asked to pay the cost of copies of the record or the hearing recording, unless "good reason" is shown why the claimant should not pay. Proposed §§ 404.974; 416.1474. For most claimants, the payment of such costs will be a hardship. The Community Health Law Project represents hundreds of claimants per year and it is nearly universally true that our clients become impoverished while waiting the average three years for an administrative hearing. This is not unique to our practice. As described in a recent New York Times article, claimants are commonly evicted or have their homes foreclosed on while waiting for SSA to award benefits. State welfare programs are inundated with such claimants. The article indicates that " [t]he extended delays can also mean extra burdens for state welfare agencies. In New York State, about half the 38,000 people now waiting on disability appeals, for an average of 21 months, are receiving cash assistance from the state, said Michael Hayes, spokesman for the Office of Temporary and Disability Assistance." Eckholm, Eric, "Many Seeking Disability From Social Security Face Big Delays", New York Times, December 10, 2007.

We, therefore, oppose this deviation from SSA's long-standing practice of providing these materials without charge, which is an important measure to ensure fairness and due process to claimants. While some small percentage of claimants may have the means to pay for copies of the record or the hearing recording, we believe that the proposed new rule requiring claimants to show "good reason" (a standard that is not defined and subject to arbitrariness) for waiving these fees is unjustified, particularly at a time the average waiting period for ALJ hearings, let alone Review Board consideration, exceeds three years.

The Review Board Should Not Adopt the Proposed New Standard of Review

We also question the wisdom of the Review Board adopting a standard of review that essentially mirrors that employed by the courts when exercising judicial review of an SSA, or other administrative agency decision. Proposed §404.971 and §416.1471. As a final agency decision-maker, the Review Board is in a unique position to fully examine the ALJ decision and correct those that do not properly apply the Act to the facts of the individual's case. By adopting judicial principles such as the "harmless error rule" and the "substantial evidence" test, you are creating a much more deferential review of ALJ decisions than is appropriate. Again, our concern is that this will result in more hardship for claimants wrongfully denied benefits; more appeals to the courts; and more new applications for SSA to process. While affording a certain amount of deference to agency determinations is a well-established principle employed by federal courts, which hear all manner of civil and criminal cases, the rationale does not extend to Review Board consideration of ALJ decisions. The judicial principle is based upon a presumption of greater expertise in the technical matters regulated by the agency involved in a court case. However, no similar consideration applies when SSA's Review Board reviews the decision of one of its ALJs.

The adoption of these legalistic standards contravenes the intent of Congress and long history of Social Security proceedings being non-adversarial and informal, with the paramount goal of reaching the correct decision. It is only fair for a claimant waiting three, four or more years for a Review Board decision to have a full review of the ALJ decision by the Review Board.

We also propose that the standard of review ("abuse of discretion") that you have proposed for review of ALJ dismissals in proposed §404.971 (b) and §416.1471 (b)be modified toentitle the claimant to a reversal of a dismissal, where he or she had good cause for the events leading to dismissal. For example, we have seen cases in which claimants' mental illnesses have caused them to miss scheduled hearing(s). In such cases, a remand for a new hearing is warranted on basic constitutional grounds of due process and as a reasonable accommodation to the claimant's disability under the Rehabilitation Act, 29 U.S.C. 701, et seq. "Good cause" could be defined by your usual criteria , ie. SSA's action misled the claimant; the claimant has a physical, mental, educational, or linguistic limitation that prevented the claimant from submitting the evidence earlier; or some other "unusual, unexpected, or unavoidable circumstance beyond the claimant's control".

SSA SHOULD NOT IMPOSE NEW RESTRICTIONS ONREOPENING PRIOR APPLICATIONS

In the NPRM, you propose to severely limit a claimant's right to reopen prior applications during where a claimant is found disabled and evidence is presented for the onset of disability extending to earlier applications that were previously denied. You state that:

We believe this change is necessary because, without it, a claimant who submits additional evidence to the Review Board that does not meet the standard described above for admitting the evidence would be able to circumvent our limits simply by asking to have our final decision reopened based on the additional evidence that we declined to admit.

72 Fed .Reg. No.208, at 61222 (October 29, 2007)

As stated above, we oppose your proposed restrictions on the admission of new evidence to the ALJ and Review Board. However, even if your proposed restrictions are adopted, the proposed limit on reopening prior applications is unnecessary and will place a heavy burden on those claimants who are most deserving and least likely to have been trying to circumvent your rules.

In our experience, the reopening and award of benefits to claimants is not common. They are more the exception than the rule. They typically occur with clients with severe mental impairments; those who did not initially have access to adequate medical diagnosis and treatment (usually due to poverty and their disability); or those with unusually complex medical conditions that are unusually difficult to diagnose. It is not uncommon, under current regulations, for an such an individual to repeatedly file a new application for benefits rather than attempt to appeal an adverse decision, simply because they do not understand the ramifications of a new application date on their potential benefits, despite the language in denial notices attempting to explain this.

If a prior application is not reopened, it often means that a claimant's eligibility for Title II benefits is forfeited, as their insured status may have expired. This means not only the loss of cash benefits for the claimant and his or her dependents, but the loss of any Medicare benefit. Even in the case of an SSI recipient, the loss of Medicaid eligibility at an earlier date can mean that numerous outstanding medical bills cannot be paid.Such severe consequences are not necessary or appropriate to avoid efforts to circumvent your current proposal to limit the consideration of additional evidence by the Review Board. The biggest impact will be on the most impaired of your applicants, rather than those clever enough to attempt an end-run around your new rules.

SSA SHOULD NOT LIMIT THE TIME COVERED IN ALJ REMANDHEARINGS REQUIRED BY THE REVIEW BOARD OR COURTS

Many commenters have already stated their opposition to the proposed change to §404.977, §404.977, §416.1477 and §416.1483. These are the proposed changes limiting the ALJ conducting a remand hearing to consideration of the case only with regard to the period of time on or before the date of the first ALJ decision. The rationale for this change is that "[t]his "open-ended approach is administratively very inefficient, as we are often reviewing ALJ decisions based on evidence not presented to the ALJ". 72 Fed .Reg. No.208, at 61222 (October 29, 2007)

We strongly disagree with this conclusion and the adverse impact that it would have on claimants. We recognize that an ALJ cannot be expected to have considered evidence that was not before him or her and this may cause or contribute to a subsequent reversal and remand. However, these delays are inherent in the disability determination process, which is complicated by all of the factors that have been discussed previously, such as lack of access to good medical diagnosis and care; the inability to obtain medical records and opinions of treating sources; the progressive or variable severity of many diseases and conditions; and the onset of additional disabling conditions as time goes on.

All of these circumstances are familiar to SSA and to claimants' representatives. They make disability adjudication a challenging and untidy process, where the body of evidence proving disability often becomes convincing only as time passes and additional information is obtained. Claimants should not be faulted or penalized for this. Instead, an "open-ended process" is precisely what is needed to ensure that claimants are awarded benefits as soon as the record is contains enough cumulative evidence to establish their entitlement.

Your proposal to treat this open-ended process as "administratively inefficient" and to require claimants to file repeated applications whenever their condition worsens or new conditions arise will, in our view, prevent many deserving people with disabilities from collecting the benefits to which they are entitled, simply because they will be too worn down to file repeated applications for benefits. Although you point out that state DDS decisions are issued more quickly than current Appeals Council remand hearings, they are also mere paper reviews that result in initial and reconsideration denials of many deserving applicants. As a result, a majority of those who continue on to ALJ decisions are ultimately awarded benefits.

We, therefore, strongly oppose your proposal to limit ALJs, when conducting remand hearings, from considering relevant evidence arising after the date of the first hearing. Rather than accomplishing administrative efficiency, putting such artificial blinders on the ALJ is more likely to cause the unjust denial of benefits to deserving claimants.

THE RECORD SHOULD REFLECT THE REASONS FOR THE EXCLUSION OF WITNESSES FROM ALJ HEARINGS

A potential conflict exists between §404.929(b) and §404.944(a) in the NPRM which we believe needs to be clarified. The former informs the claimant that at the hearing level "you may...submit evidence, appear at the hearing, and present and question witnesses", yet the latter states "a hearing is open only to you and to other persons the administrative law judge considers necessary and proper."

It is not difficult to envision a scenario in which a claimant brings a witness to the hearing and the ALJ determines that the witness is not "necessary" and refuses to allow testimony. Unrepresented claimants are at a clear disadvantage in these proceedings as they do not know they have the right to object to such a refusal. In addition, decisions as to who is or is not allowed in the hearing room are always made before the hearing starts and are therefore "off the record." Therefore, we request you make clear that claimants have an absolute right to present witnesses, and that if an ALJ determines a person is not "necessary," the determination be made only after an on the record proffer and, further, that a rationale be provided in the written decision as to why the ALJ determined the witness to be unnecessary.

ALJ REVERSALS OF ISSUES PREVIOUSLY FAVORABLY DECIDED MUST BE BASED UPON EVIDENCE OF RECORDWe strongly object to the change in §404.946(a) regarding the issues that may be considered by ALJs. Currently, issues before an ALJ include all those "brought out in the initial, reconsidered or revised determination that were not decided entirely in your favor," except "if evidence presented before or during the hearing causes the administrative law judge to question a fully favorable determination, he or she will notify you and will consider it an issue at the hearing."

The proposed regulation reads "the issues before the administrative law judge include all the issues raised in your case, regardless of whether or not the issues may have already been decided in your favor" (emphasis added). 72 Fed .Reg. No.208, at 61231 (October 29, 2007)

Removing the perfectly reasonable and defensible requirement that there at least be evidence to reverse a prior favorable determination is disturbing and an apparent denial of due process of law. An individual should not fear loss of awarded benefits simply because an appeal was filed contesting an onset date, absent any evidence to justify such action and a fair opportunity for the claimant to gather and present rebuttal evidence.

Likewise a favorable determination in an overpayment waiver decision, based upon a finding that the claimant was without fault for the overpayment, should not be revisited or disturbed in the absence of contrary evidence. Benefits should not be lost or claimants punished simply for exercising their right to appeal a decision with which they disagree.

DISMISSALS SHOULD ONLY BE EXERCISED BY ALJs

Proposed §404.976 provides that the newly constituted Review Board may dismiss any proceedings pending before it if "the record shows that the administrative law judge who issued the hearing decision should have dismissed your request for hearing under §404.957" (emphasis added). ALJs are already acutely aware of the pressures to dispose of the pending backlog and use dismissal orders as a tool towards that end. It is reasonable to assume, then, that if a hearing is actually held and an unfavorable decision issued that the ALJ found that good cause existed for not dismissing the matter in the first place. We believe that this aspect of the ALJs decision should not be disturbed by the Review Board.

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