RE: Docket Number SSA-2007-0044
Upon review of the proposed regulations for hearings and appeals, we have several concerns. While we applaud SSA’s desire to expedite the agency’s processing times, we are fearful that the steps implemented in order to accelerate the process will come at the sacrifice of fair and accurate decision making.
1) The proposed changes to the regulations transform the program from an informal, non- adversarial one into a complex, legalistic, formal one. This transformation comes with many pitfalls along the way. For example, there are more time limitations in the process. Failure to comply with the strict time limitations can result in dismissal. The unrepresented claimant is especially vulnerable.
The new requirement that the request for hearing include a statement that lists the "medically determinable impairments" is unduly restrictive. Does this limit the impairments that can be considered by the ALJ? Claimants should not be limited only to those impairments listed at the time of their appeal.
The new proposal eliminates the criteria in the current regulations which direct when the ALJ is required to change the time/and or place of hearing. It also severely limits the good cause factors for rescheduling and gives nearly total discretion to the ALJ. Without these guidelines, there will be cases dismissed inappropriately and many claimants will have little, if any, recourse.
2) New restrictions on the submission of evidence violate the Social Security Act and are fundamentally unfair.
The proposal requires that all evidence must be filed five (5) business days before the hearing date or it is considered "late" and is subject to new rules. Similar proposals were advanced years ago but were abandoned for a variety of reasons. SSA itself previously discarded such a proposal because it appeared to close the record in contravention of the statute. Congress reviewed the issue and concluded that limitations on the introduction of evidence overlook the reality that it is often difficult, if not impossible, to obtain evidence in a timely fashion, and that, in some instances these limitations may conflict with the statute.
In addition, the proposed changes conflict with the ALJ’s obligation to fully and fairly develop the record. It is well established in case law that an ALJ has a duty to develop the record. This duty is heightened in cases where the claimant is unrepresented. This duty would be negated by the time limits for submitting evidence. These changes will result in ALJs making decisions based upon an incomplete record.
While we support the submission of evidence as early in the process as possible, to the extent that important and relevant evidence becomes available at a later point in the process, the claimant should not be precluded from submitting it, since this is not an adversarial process but a "truth-seeking" one. There are many practical reasons why the record should not be closed before the hearing. For example, in many instances, claimants seek representation after the hearing has been scheduled. In many of these cases, there is simply insufficient time to obtain the records. Even if the full 75 days notice is available, that is not always sufficient. Medical providers are frequently uncooperative in providing the records in an expeditious fashion. Some ALJs refuse to issue subpoenas and even in cases where the ALJ agrees to issue the subpoena, they do not have the power to enforce same.
Finally, this new proposal would precipitate more court filings. Under 42 U.S.C. §405(g) a federal court may remand a case and require SSA to consider additional evidence if (1) it is new and material; and (2) there is good cause for the failure to submit it earlier. The proposed requirement for submission of evidence is more restrictive than the Act, and would create conflict. Claimants will be forced to file appeals to federal courts in order to have SSA consider evidence that was improperly excluded. The district court judge will be asked to decide whether the ALJ or Review Board was wrong to refuse to consider evidence. As a result, the new time limits will create unnecessary litigation and will cause an increase in federal court filings.
3) The proposal regarding administrative review significantly limits the claimant’s right to review erroneous ALJ decisions.
The proposed change is inconsistent with the Social Security Act and raises some troublesome legal issues. For example, what if the court reverses and specifically states in its remand order that the agency consider new evidence? Does the proposed change attempt to limit the court’s power by restricting the scope of review it can order for remand proceedings?
Moreover, this proposal is ambiguous and can be interpreted as establishing time limited benefits. On remand, the ALJ would not be allowed to consider an increase in severity of the original impairment or the development of a new impairment. At best, the proposal means that a claimant, on remand, will be limited to establishing disability no later that the date of the first ALJ decision. But, at worst, the proposal could be interpreted to mean that the claimant could be found disabled for a period, ending no later than the date of the original ALJ decision. Under either scenario, the claimant would be forced to file a new application for any change in his/her condition that occurs after the date of the original ALJ decision. Both interpretations will have an adverse impact on claimants and the fallout from this includes, inter alia, loss of access to health care benefits and loss of protection from the medical improvement standard.
4) Forcing claimants to file multiple applications is not fair or efficient. By closing the record to new evidence and limiting the period that can be considered to determine eligibility, claimants would be forced to file multiple applications. This, in turn, raises other concerns. Claimants may jeopardize eligibility by reapplying. There are consequences to reapplying in lieu of appealing. Congress recognized this years ago. One can’t help but wonder why SSA would force a claimant to file an additional application when the claim for disability could be resolved by making a decision based upon a complete record.
5) The new restrictions on re-opening prior applications are unfair. Under current law, reopening for good cause may occur within two years (SSI) or four years (Title II) on the initial determination if there is "new and material evidence". Reopening is discretionary and cannot be required but it can be used to correct unjust determinations. The proposed regulations eliminate ALJ discretion to reopen a previous decision where new and material evidence demonstrates that the claimant was disabled at an earlier time. The rationale for this is that claimants should not be able to circumvent the new time limits for submitting evidence after the record is closed. This proposal is unfair for claimants in many situations. It is especially unfair for claimants who were unrepresented and whose cases were poorly developed. It is also particularly unfair for mentally challenged claimants whose limitations prevent or interfere with their ability to cooperate with the development. There are many instances in which this proposal could lead to an injustice which could not be corrected. In cases where insured status has expired, the individual could be left without recourse.
6) The proposed standard of review before the Review Board is too vague. The proposal includes a new "harmless error" rule and states that the Review Board will only act on "significant errors of law". There is no further clarification.
The above comments touch upon some of our concerns. Again, we are grateful that SSA is looking for solutions which will expedite the administrative process. While a more expeditious process is desired, the principles of fairness and justice cannot be compromised. We implore you to reconsider these proposals and work toward creating a new proposal that will accelerate the process without sacrificing due process and fundamental fairness.
Thank you for your time and consideration.
VTY,
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