Commissioner's Proposed Regulations

[testtaker]

I took a look at the first 4 pages of this board to see if this was being discussed anywhere. It seems nearly all the topics are for those in the ALJ interview process, etc. I assume that this board is also in regard to other matters relevant to ALJs. Just wanted to start a new thread on something other than the interview process, etc. This one is in reference to the Commissioner's proposed regulations regarding amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals levels in the disability process. These regs will affect how things operate at the hearing level, so really everyone on this board should be interested in them. As a disability law practitioner, I tend to agree with the comments issued by the House Ways and Means Committee. Wondering what other private practitioners think and what the ALJs think.

The proposed regulations can be found here:
waysandmeans.house.gov/media/pdf/110/SSRK/Copy%20of%20SSAs%20proposal.pdf

Below is a summary of what the House Ways and Means Committee put out. If you want a copy of the entire letter, you can get it here: waysandmeans.house.gov/media/pdf/110/SSRK/Final%20Comment%20ltr%20re%20Evidence%20and%20Appeals%20NPRM%2012-20-07.pdf
(cut and paste this entire address)

****************************
House Committee on Ways and Means

For Immediate Release: Thursday, December 20, 2007

Proposed SSA Change Would Cut Benefits for Disabled Individuals
Restricting appeals process would deny many eligible applicants their Social Security, Medicare, Medicaid and SSI benefits

Rangel Contact: Matthew Beck or J. Jioni Palmer [phone]
Dingell Contact: Jodi Seth [phone]
Conyers Contact: Melanie Roussell [phone] or Jonathan Godfrey [phone]
Waxman Contact: Karen Lightfoot [phone]

WASHINGTON, DC – The Social Security Administration is proposing to sharply restrict appeal rights for severely disabled individuals applying for Social Security, Supplemental Security Income (SSI), Medicare and Medicaid benefits.


If the proposed regulation is adopted, severely disabled persons will be denied access to over $2.0 billion in benefits over the next ten years – not because they do not meet the eligibility criteria in the law, but because they could not successfully navigate the complex new procedural requirements established by the proposed rule.


Nearly two decades ago, the Social Security Administration attempted to put forth a similar rule restricting appeal rights and instituting new procedural complexities. It was quickly abandoned in the face of public outcry.


Today, a letter objecting to the regulation was filed by eleven House Committee and Subcommittee chairs, including the chairs of the Committee on Ways and Means, the Committee on Energy and Commerce, the Committee on the Judiciary, and the Committee on Oversight and Government Reform. Please click here to read the letter. Please click here to read the proposed regulation.

Ways and Means Committee Chairman Charles Rangel:
"It would be grossly unfair to deny critical benefits to severely disabled people simply because they lack the sophistication and legal expertise to navigate the complex new appeals rules and limitations the Social Security Administration is proposing," said Ways and Means Committee Chairman Charles B. Rangel (D-NY). "No one should lose out on an appeal because of procedural technicalities. The Committee on Ways and Means intends to further investigate the impact of this regulation on people with disabilities early in the next session of Congress."


Energy and Commerce Committee Chairman John Dingell:“We should be making it easier, not more difficult, for disabled individuals to access the benefits they need,” said Energy and Commerce Committee Chairman John D. Dingell (D-MI). “The proposed rule would create cumbersome and unnecessary obstacles for those seeking an appeal. The most vulnerable among us deserve better, and my Committee will be working to ensure that this regulation does not become a roadblock for disabled individuals seeking health care and support services.”


Judiciary Committee Chairman John Conyers:
"We must ensure that the hearing and appeals process for disabled persons seeking Medicare and Medicaid benefits is fair and equitable," said House Judiciary Committee Chairman John Conyers, Jr. (D-MI). "By proposing a rule that would essentially reduce access to benefits, the Social Security Administration is ignoring the real reason for the administrative backlog they now face, which is the severe and chronic underfunding of the agency."


Oversight and Government Reform Committee Chairman Henry Waxman: “We have a critical problem of a backlog in the hearings and appeals process at the Social Security Administration,” said Oversight and Government Reform Committee Chairman Henry A. Waxman (D-CA). “That backlog effectively denies benefits and rights to disabled persons. But Social Security is moving in the wrong direction with these proposals. Cutting claimants’ rights, and adding procedural barriers, will only compound the damage. Mere administrative efficiency can’t trump the obligation of SSA to fully and fairly consider the claims.”

[extang]

Talk is cheap. Congress is responsible for the failure to fund SSA adequately. If they want a generous and well-administered program, then the first thing they have to do is be willing to pay for it. Otherwise it is hard to take their concern about the backlog seriously.

[aljsouth]

On the whole I like the regulations as proposed. I fail to see how not closing the record and demanding a perfect hearing standard serves the American people. I do see how it benefits those whose business it is to represent claimants.

No other system allows the record to be open forever with reps submitting medical exams to the district court two years after the ALJ hearing. What is so evil about a harmless error doctrine used by all other appellate systems. The ALJ still has the burden to develop the record for a claimant which protects unrepresented claimants.

We will see if the COSS has any fortitude or is just talk. Cases never end under the present rules and that does contribute to the backlog. Congress is responsible for the underfunding with complicity from SSA officials who never pointed out the obvious to congress.

[yogibear]

ALJSouth, I also believe that closing the record and using the harmless error standard will benefit the system. As the system stands now, medical evidence can be produced in the future with new diagnoses unrelated to the initial application. The case sits in queue on appeal much longer than it would take to file a new application. The case is remanded to the ALJ, and if at the District Court, the case is remanded to the AC (DRB) then to the ALJ and all this takes extra time and consideration and presents an overly complicated picture. Then the end result at the ALJ level is often a fair finding of later onset or a negotiated onset. But the claimant took the long road to benefits.

Whereas, if the record had been closed, they would have simply filed a NEW APPLICATION. The prior application is automatically retrieved and it's contents made available for consideration (with electronic folders, this will be even easier). And if that New Diagnosis rendered the applicant disabled, they would hopefully receive benefits at the state level or at least at the ALJ level. If appealed to the ALJ, it could also be picked up by the ALJ or a Senior Attorney and paid on-the-record (which means without a hearing). The person would be receiving benefits quicker and would be in a much better position.

Now just suppose the individual felt that the new diagnosis was a misdiagnosed impairment that was the cause of their earlier ailments. Well, when you file the new application, use the earlier onset date that covers the previously adjudicated time period. The states are known for granting onsets at the time of filing (especially with SSI) or granted as of the day after the prior ALJ denial, then simply appeal the ONSET date back to the ALJ level, while receiving benefits. The individual is in a much better position financially and timewise and eligible to receive the health benefits and dependent payments that accompany most grants of disability. ALJs look seriously at previous adjudications and reopenings and revisions of prior determinations are consistently found in connection with NEW AND MATERIAL evidence.

So in my opinion, reopening the record will benefit the applicants and bring fairness and timeliness to the disability adjudication process. I believe it will also be helpful to the ALJs, who do their best to make a fair decision the first time.

One last point: The ALJ does have the responsibility to complete the file, but the Applicant has the burden of proof until step 5 of the sequential evaluation process. Generally, unrepresented applicants and even represented applicants are given incredible amounts of leeway is completing this burden and it really comes down to identifying all treating sources and/or going to consultative examinations when there is no treating source (as in a homeless individual with no regular medical care). The ALJ can only do so much to fulfill this responsibility. And the ALJs go out of their way to identify disabled individuals and grant benefits or SSI payments. Closing the record will have no impact on the ALJs factfinding responsibilities.

In summary, I also believe that closing the record will only benefit the hearing process and those who are most important: the claimants.

Yogi

[morgullord]

A point on funding: SSA operations, including personnel costs, are paid for out of trust fund proceeds. Traditionally, the annual cost of running the entire Social Security Administration has been less than 1% of the annual proceeds of the trust fund.

[Propmaster]

yogibear said:

[snip]
Whereas, if the record had been closed, they would have simply filed a NEW APPLICATION. The prior application is automatically retrieved and it's contents made available for consideration (with electronic folders, this will be even easier). And if that New Diagnosis rendered the applicant disabled, they would hopefully receive benefits at the state level or at least at the ALJ level. If appealed to the ALJ, it could also be picked up by the ALJ or a Senior Attorney and paid on-the-record (which means without a hearing). The person would be receiving benefits quicker and would be in a much better position.

Now just suppose the individual felt that the new diagnosis was a misdiagnosed impairment that was the cause of their earlier ailments. Well, when you file the new application, use the earlier onset date that covers the previously adjudicated time period. The states are known for granting onsets at the time of filing (especially with SSI) or granted as of the day after the prior ALJ denial, then simply appeal the ONSET date back to the ALJ level, while receiving benefits. The individual is in a much better position financially and timewise and eligible to receive the health benefits and dependent payments that accompany most grants of disability. ALJs look seriously at previous adjudications and reopenings and revisions of prior determinations are consistently found in connection with NEW AND MATERIAL evidence.
[snip]
Yogi

I have two comments. First, the prior file is not generally associated with the current file in the three ODAR offices with which I am most familiar. Electronic files have made it worse (at least for the short term) because the prior file was likely paper and no one ever gets it.

Second, the new regs make reopening much harder - so your idea that someone can argue in connection with a new application for an earlier onset date seems flawed.

[morgullord]

There are, sadly, some representatives who let SSA/ODAR do virtually all of the development through the hearing, then go out and "sharp-shoot" the ALJ by sending the Appeals Council or Courts medical evidence that was extant at the time of the hearing but not part of the record (for whatever reason). The fact is that most favorable remand decisions would have been favorable the first time around if the judge had had all of the record.

There needs to be a "culture change" among representatives, too. Closing the record will be a big start in that direction.

[testtaker]

While I do believe that some reps do not do their jobs regarding developing the record, I must note that it can be quite difficult to get records from certain sources and even more difficult to get opinion evidence. That should be considered, especially for the unrepresented claimant.

The other thing that should be considered is that filing a new application is not always possible, especially when a DLI is involved. A new application instead of appeal, in certain instances might result in the preclusion of benefits because insured status has expired.

I think that the most important consideration here is the claimant.

[yogibear]

The application for title II in a DLI expired scenario is still taken as long as the alleged onset is "prior" to the DLI. So, I don't see that being a deterant in filing a new application. It happens all the time.

As noted, there are reps who do great jobs, and unfortunately reps who don't do great jobs. Some sources are more difficult than others to collect information from, but I still see representatives who are able to collect that information. If there is a complication or problem getting records from a source, that is the time and place for the rep to communicate that information to the ALJ. ALJs are not out to close the record for the sake of closing the record. There are extensions and in really tough cases, the ALJ can work together with the rep to request the medical records through different methods: regular request, subpeona of records or request physician attendance at the hearing. If the records are still not forthcoming, other altnerative avenues can be taken depending on the circumstances. So here the issue is whether the rep communicated with the ALJ to serve the claimant, or not?

While ALJs do not have enforcement power or power of contempt, most medical sources do respond to a subpeona with client release forms all in order whether or not it packs a punch. And if the medical records are not forthcoming, the ALJ considers that in their analysis of disability.

I have to look more into the statement about making it harder to reopen and revise a prior claim with the new regs. But in my opinion, if a rep did his/her job (including communicate any problems collecting evidence and working together to serve the claimant) or the individual was not homeless or mentally incapacitated and not represented, then I don't see any reason why it shouldn't be harder to reopen and revise prior applications upon filing a new claim.

I don't mean to be argumentative, and I respect the opinions against closing the record. But I think some of it is a knee jerk response and maybe a fear of how things will change if the record closes at the ALJ level. But in actuality, not much will change, except to provide better and timelier service to the applicants. Yes, practice before SSA will have to change a bit, but it won't change how most representatives practice before the ALJs (producing medical records in a timely manner). And the safeguards for the unrepresented and mentally incapacitated will remain in effect.

[yogibear]

I forgot to respond about the electronic folders versus paper. I agree that there are problems with associating old paper folders, but that will be phased out. However, most of the paper folders are still found and associated just fine. Everyone has their own experience with the electronic files depending on well they get along with updated technologies.

In my experience they make reviewing the claim at SSA much easier and much more efficient. Personally, I love the electronic files. I've heard mixed opinions of how the hearings proceed with electronic folders, because it depends on the individuals. But I'd like to hear from other reps and ALJs what their experiences have been: good and bad. Maybe this an issue for another topic.

[morgullord]

I am the king's man: I love the electronic folder.

The e-folder is above our likes and dislikes. It is here, like it or not. The successful will adapt to the new dynamic.

[testtaker]

A few comments:

First, I love the electronic folder, but the independent contractors don't always do a good job. I recently submitted evidence twice to the State Agency and neither time was it associated with the electronic file. When I reviewed the CD, I found evidence for TWO other claimants attached to exhibits in my clients electronic folder. Guess they are still working out the bugs. [Luckily, the records indicated who they were initially sent to and I called those analysts and faxed the claimants' evidence to them directly for association with their respective files.]

Second, my concerns with the changes to the regs are mostly for those claimants without representatives. They are the ones who really get caught up in this. Please do take a look at the reopening provisions. There are many a time that unrepresented claimants come to us after a denial and filing a new applications with remote DLIs and no hope of reopening would result in a res judicata situation and the claimant loses out. Please read the Ways and Means comments above.

[aljsouth]

testtaker said:

A few comments:

First, I love the electronic folder, but the independent contractors don't always do a good job. I recently submitted evidence twice to the State Agency and neither time was it associated with the electronic file. When I reviewed the CD, I found evidence for TWO other claimants attached to exhibits in my clients electronic folder. Guess they are still working out the bugs. [Luckily, the records indicated who they were initially sent to and I called those analysts and faxed the claimants' evidence to them directly for association with their respective files.]

Second, my concerns with the changes to the regs are mostly for those claimants without representatives. They are the ones who really get caught up in this. Please do take a look at the reopening provisions. There are many a time that unrepresented claimants come to us after a denial and filing a new applications with remote DLIs and no hope of reopening would result in a res judicata situation and the claimant loses out. Please read the Ways and Means comments above.

Every other adjudicative system has some form of res judicata and unrepresented litigants are disadvantaged in all of them. The constitution does not require perfection. It doesn't matter anyway, with the congressional interest the proposed regs have probably already been flushed away. It will be business as usual as reps send claimants to doctors after the hearing and get remands because of new evidence.

[southerner]

I agree with Commissioner's new regs re closing the record. Other agencies have used this system and I see no reason to leave the record open ad infinitum. At some point, there needs to be closing. As ALJSouth noted, we can not have perfection, but perfection is not required. ODAR has permitted the open record as long as I remember, but other adjudicative bodies have done quite well with closing records.

[Pixie]

ALJSouth you are probably almost right about the regs being flushed, but one part won't be flushed: the section that requires sixty five day notice will remain! Pix.

[oldtimer]

Right! Now that NOSSCR has spoken, every bleeding-heart liberal Democrat in Congress must immediately leap to attention and salute his/her new orders.

Give me a break; I'm no Judge Dredd and probably pay a higher percentage of disability claims than most of my colleagues, but what a load of hooey. These same idiots in Congress, who instinctively refer to "the disabled," rather than claimants for disability benefits, and who prefer to continue with the fiction that this is some sort of mom-and-pop system rather than bothering to learn that the overwhelming majority of claimants are, in fact, represented at hearings (hello, NOSSCR), will be the first to call for scheduling Congressional hearings when they learn how much the disability program's budget is!

Thanks for allowing me my daily rant!

[and, by the way, you obviously meant 75 days, right?]

[aljsouth]

Yeah, the reason for the extended 75 day notice rule was to allow reps and claimants time to get medicals or notify the judge about the medicals in time for a hearing with a closed record. Since the closed record is DOA, naturally the Baltimorons will still adopt the longer notice period. What an agency.

[Pixie]

Yes, Oldtimer, I meant 75 days. Just a slip of the pixie finger. Pix.

[oldtimer]

Yeah, the reason for the extended 75 day notice rule was to allow reps and claimants time to get medicals or notify the judge about the medicals in time for a hearing with a closed record. Since the closed record is DOA, naturally the Baltimorons will still adopt the longer notice period. What an agency.

Of course, because that is what NOSSCR wishes (check out their comments on the proposed regs; essentially, keep the 75 days' notice, but eliminate the 5-day evidence submission and closed record provisions).

[baseball14]

It's going to take me a while to adapt to the paperless file. On a personal basis, I have a bad neck and I get a little sore looking at the computer for hours...(I'm not "ergonomically savy")......BUT....that said, I also feel it takes longer FOR ME to review the file on a computer. After 4 years, I know what I want to look at when I get the paper file. Accessing the file on the PC, scrolling, clicking, making notes, circling and copying a few pages, and making notes while online, TO ME, takes more time, but I'm going to master it with time. It's an attitude....I love the job and it's not much of a problem to make the change. Of course, you can accesss it at the hearing on the disk you get. I just find that turning a page is faster than clicking and scrolling a page.