To: Social Security Administration, United States Senator Robert P.
Casey, United States Senator Arlen Specter

From: Samantha Bogin, Esq. with Binder and Binder, Philadelphia, PA

Re: *Docket No. SSA-2007-0044*, Proposed Regulations for Hearings and
Appeals

Date: 12/13/2007

Please accept the following comments in response to the Notice of
Proposed Rulemaking[^1] (NPRM) published by the Social Security
Administration (SSA) on October 29, 2007.

[New Rules Regarding Submission of Evidence]{.underline}

The new general rule that SSA is proposing regarding the submission of
evidence states that new evidence must be filed five (5) business days
before the hearing date. This time constraint will be extremely
detrimental to claimants for several reasons.

Although the NPRM provides exceptions for late filing, the exceptions
are nearly impossible to meet. For example, evidence submitted within
five (5) business days of the hearing or at the hearing will only be
accepted as part of the record if 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.
Even more restrictive rules apply to evidence submitted after the
hearing but before the hearing decision and evidence submitted before
the Review Board (RB).

These extremely limited exceptions do not allow evidence to be submitted
when a claimant had difficult obtaining legal counsel to assist him/her
until close to the hearing date, when a claimant and/or claimant's
attorney has difficulty obtaining evidence from healthcare providers
despite numerous efforts, or when a claimant has difficulty paying to
receive a copy of his/her medical records. The exceptions also allow the
Administrative Law Judge (ALJ) too much discretion in deciding to
prevent the submission of any evidence received after 5 days before the
claimant's hearing. There is no definition of terms like "unusual"
circumstance and the NPRM does not provide guidance on how an ALJ should
apply these new rules.

In addition, the focus of SSA should be on discovering the truth and
providing a system that if fair and just in its decision making. It is
often the case that medical conditions change or are undiagnosed or
misdiagnosed for some time. Once the claimant has an explanation for
his/her symptoms from a healthcare provider, the claimant may not be
able to show the judge what is causing his/her symptoms and functional
limitations.

Furthermore, the NPRM's goal of providing a more efficient process will
most likely not be met due to the procedural problems that will be
caused by the new proposed rules. By placing extreme limitations on the
submission of relevant and important evidence at the hearing and Review
Board levels, many claimants will be forced to file an appeal in federal
court. Claimants who feel like the ALJ or RB did not properly apply the
new law regarding the submission of evidence will be forced to have
federal court judges decide this matter. This will be extremely
inefficient and taxing on the court system and will not further SSA's
goal of administrative efficiency.

The NPRM also eliminates "new and material evidence" as a basis for
reopening a decision by an ALJ or RB.[^2] The SSA is so adamant about
new evidence not being reviewed by a decision maker that it added this
rule for the sole purpose of preventing claimants from circumventing the
evidence submission rules. This illustrates the focus of the SSA in
drafting these unreasonable and unjust proposals which is to move cases
along rather than discover whether claimants are truly disabled under
the law and deserving of disability benefits.

[New Rules Regarding the Review of Erroneous ALJ Decisions]{.underline}

Another proposed rule that will negatively affect claimants is in
regards to the review of erroneous ALJ decisions. The NPRM states that
when an ALJ decision is vacated and remanded by the RB or federal court,
the ALJ at the new hearing can only consider the claimant's case "with
regard to the period ending on the date of the original \[ALJ\]
decision".[^3] If this rule were implemented, Title II claimants would
risk losing their opportunity to obtain any disability benefits if their
date last insured has expired. Additionally, Title II claimants have a
24-month waiting period prior to obtaining much needed Medicare
benefits. Since the ALJ will only be able to consider the time period
after the original ALJ decision was rendered rather than the claimant's
actual onset of disability date, the new proposed rule would delay many
Title II claimants from receiving their medical insurance benefits.

Both the new rules regarding the submission of evidence and the rules
regarding the review of erroneous ALJ decisions will most likely lead to
a large increase in claimants filing multiple applications. The stated
intent of the NPRM is to reduce benefit payments by \$1.5 billion over
the next ten years. In my opinion, a very inappropriate intent since the
intent should be deciding disability claims fairly, justly and
accurately. Putting that issue aside, forcing claimants to reapply
multiple times would increase the workload of the local Social Security
offices that are already overloaded with work[^4]. The logical
assumption is that more staff will need to be hired to handle this
increased workload and more money will be needed to pay for their
salaries rather than funds being distributed to deserving disabled
claimants. Overall, I do not understand how the idea of limiting
evidence and limiting the period that can be reviewed on remand will
save the government the money it is focused on not paying. The NPRM is
unfair, unjust and illogical.

[^1]: 72 Fed. Reg. 61218 (Oct. 29, 2007)

[^2]: See 72 Fed. Reg. 61222

[^3]: Proposed 20 C.F.R. § § 404.972 and 416.1472

[^4]: Speaking from personal experience, almost every time I call a
    local Social Security office I get a busy signal.