10/23/2005 13:58 FAX 4787451754 Westmoreland Patterson 002

> [westmoreland, patterson, moseley]{.smallcaps} *&* [hinson,
> l.l.p.]{.smallcaps}
>
> ATTORNEYS AT LAW
>
> CARL E. WESTMORELAND\*\' BRADLEY O. PYLES 201 SECOND STREET, SUITE
> 115C
>
> RUDOLPH N. PATTERSON DIANE M. FLYNN POST OFFICE BOX 1797
>
> J.WAYNE MOSELEY WM. J. CAMP MACON, GEORGIA 312024797
>
> THOMAS H. HINSON JEFFREY YAZINSKI 478/745-1651 800/6884651
>
> ROXANNE M. HINSON CARMEL W. SANDERS FAX 478/7454754
>
> THOMAS W. HERMAN WILLIAM C. HEARD
>
> SHELLEY DAVIDSON JAMES E. PATTERSON OFFICES ALSO IN WARNER ROBINS
>
> October 23, 2005 AND ALBANY
>
> \*OF COUNSEL
>
> **[FAX NO. 410-966-2830]{.underline}**
>
> The Honorable Jo Anne Barnhart
>
> Commissioner
>
> Social Security Administration
>
> P.O. Box 17703
>
> Baltimore, MD 21235-7703.
>
> Submitted to: [regulations@ssa.gov]{.underline}
>
> Re: Comments on the Notice of Proposed Rulemaking (Administrative
> Review Process for Adjudicating Initial Disability Claims, 70 Fed.
> Reg. 43591 July 27, 2005).
>
> Dear Commissioner Barnhart:
>
> Below are comments of the lawyers of Westmoreland, Patterson, Moseley
> and Hinson on the above-referenced Social Security Administration
> (SSA) proposed rules. We have been handling Social Security cases of
> all types for almost 40 years. We have done business with many, many
> district offices and hearing sites. When Supplemental Security Income
> cases began in 1974 we started handling those types of cases also. We
> have seen many changes come and go. We have worked with you and
> previous commissioners in an effort to improve the process in every
> way.
>
> Unfortunately some commissioners have been motivated to make changes
> in the system because of political pressures rather than a real need.
> Ultimately, those types of decisions cause unnecessary delay and
> expense to the system and hardship to the claimants. I concluded after
> many years of experience and observation that we needed the Social
> Security Administration to be independent of political intervention.
> The recent legislation doing this and establishing you as the
> commissioner of this independent body has proven we were right.
>
> The example of what you have been able to do with the Appeals Council
> is perfect to show what a person with your skills can do, if left
> alone and given the time to accomplish the desired result \[in this
> case expediting the processing of the work load\].

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> **From what we hear, it is obvious your management style has resulted
> in expediting the process time at the Appeals Council, without
> significant changes in the regulations dealing with those appeals. I
> hope the numbers I hear are correct, in the reduced time necessary for
> the Appeals Council to receive, process and issue a decision. The
> review I heard went like this:**
>
> **In fiscal year 2002 the processing time at the Appeals Council was
> 408 days, as compared to fiscal year 2005, when it only took 242 days.
> [As of September 2005 the processing time is now a terrific 196
> days.]{.underline}**
>
> **We are not aware of any commissioner or anyone else within SSA who
> has made such important and dramatic changes in processing time at any
> level.**
>
> If management restructuring under your leadership is working this well
> **now,** would not it be better to continue this outstanding
> improvement at **all** levels of the social security process? I
> believe you have shown without equivocation that \"accountability\" is
> what has been missing. By requiring all work to be done as prescribed,
> timely and correctly, you have proven a major overall of the
> disability process is not what is needed. You have proven there are
> many good employees within the agency. They just needed leadership
> that required them to do their job.
>
> What internal management changes are needed? When a hearing is to be
> held before an ALJ. We try to secure a copy of the file as soon as
> possible. The files have not been developed by the agency. The files
> come to OHA in total disarray and valuable time by OHA personnel is
> used putting the 6-part folder in order. A review of the file shows
> very little work has been done and usually the only agency evidence is
> a form completed by the 1st or 2nd level person and is minimal quality
> at best. There are very brief answers to the medical and vocational
> assessments. There are no factual statements to support denials.
>
> The medical/vocational assessments could better be referred to as
> trash rather than something to be relied on by an adjudicator. These
> RFC form refer to terminal cancer as something that will get well
> within 12 months and sick people weighing 80 pounds can lift and carry
> 50 pounds frequently or occasionally all day long. Does this type of
> review increase the processing time? I believe President Bush would
> find that this could partially answer his questions.
>
> What happens before the claimant sees an ALJ? The claimant goes to the
> Field Office and files a claim. The claimant submits medical records
> and the Field Office seeks to help him/her get records from the
> medical sources. A claimant
>
> 14:00 FAX 4787451754 Westmoreland Patterson 004
>
> usually does not have an attorney or representative at this point. The
> only helper is a claims representative from SSA who has about 20 to 30
> other things to do for other claimants. They are truly miracle workers
> with more work than they can do.
>
> An attorney or representative usually is hired after the claim is
> denied the 2nd time. From this point on we know why the ALJ hearing is
> going to be vastly different from the process up to this point.
> Someone now has the time to develop the file.
>
> Should we compromise the de novo hearing? No! Someone trained in the
> law and with experience in trying cases should be retained to assess
> credibility, ask questions, help claimants remember information that
> is incredibly important, but no one has ever asked the question.
> Remember cases are not decided based on medical evidence alone, but a
> combination of medical evidence, vocational evidence, time
> requirements, and truthfulness just to name a few of the elements.
>
> Before I discuss the proposed changes, I would like to encourage you
> to apply the strict rules of accountability to all of your employees
> first, then, if that does not work go to the revision proposed. Go to
> district offices yourself and see what a gigantic workload your
> employees carry [every]{.underline} day. They are truly overloaded.
> Social Security needs more workers in the field.
>
> We congratulate you on the progress you have made as Commissioner. I
> have enjoyed working with you and your staff on these particular
> matters for almost 5 years.
>
> If it is decided to proceed with these proposed rules, rather than set
> bench marks of acceptable job performance and accept no less from all
> employees we would like to take this time to comment on those proposed
> rules.
>
> Increasing efficiency and production of the SSA employees, while
> trying to provide claimants with a fair and impartial process for the
> administration of applications is difficult Virtually all of your
> field employees do more than a 1-2 step functional job. They need help
> In the offices and even though it cost money to hire employees,
> increased efficiency and accuracy saves money.

We urge the continued strengthening of the due process de novo hearing,
rather than decreasing the same. These need to be heard by a fair and
impartial ALJ. Complaints against an ALJ or an attorney should be
investigated quickly and thoroughly with a response to the complainant
within 30 days. This would greatly diffuse the idea that nothing is done
with a complaint. A bad apple can in fact create a bad situation and
reputation for all concerned.

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> Let me state that I have had the opportunity to travel around the
> country and I have visited many DOs and OHAs. I can honestly say the
> taxpayers get their money\'s worth from most of these employees. You
> know better than I, that one bad employee can make a whole office look
> bad. There are some offices in dire need of more help. The program is
> almost 25% larger now than 20 years ago and you have to do the job
> with 25% less employees.
>
> We hope the final revision will place emphasis on claimants and not
> solely on expediency. It should not be forgotten claimants are real
> people- with real disabilities, who, in addition to their illnesses,
> may not be educated enough to understand and perform to the desired
> level of the proposed regulation changes. Many claimants cannot read
> or write and do not even have the capacity to cooperate and comply
> with the request of their own attorney. We hope consideration will be
> given to the fact that many claimants are not represented and will do
> not have the mental and/or physical capacity to comply with the
> existing or proposed requirements.
>
> We refer you to the recent comments sent to you by ABA President
> Michael S. Greco on September 28, 2005. President Greco restated the
> ABA\'s support of the Social Security program and its leadership.
> However, he did point out several suggestions that the ABA has
> previously made that would assist the public\'s need to understand
> this process:
>
> a\. Educate the medical community about the eligibility criteria used
> in the\
> Disability program and nature of medical evidence needed;
>
> b\. Urged SSA to consult treating sources, compensate them adequately\
> For providing relevant medical information and give special weight to\
> Report from treating physicians;
>
> c\. That the process be improve and that **all** professionals be held
> to the highest standards;
>
> d\. Improve SSA communication with claimants and their
> representatives;
>
> e\. Quick disability determinations (QDD);
>
> e\. Face to face interview with a decision-maker (RO) who could
> explain
>
> f\. The process and provide claimant with an opportunity to submit\
> further evidence;
>
> g\. The ABA recently adopted policy against closing the record prior
> to the\
> Hearing when the appeal is for Medicare benefits, rule changes to the\
> Black Lung program that would prevent an ALJ from reopening the\
> record or admitting additional evidence at the hearing level for good\
> cause shown;

h\. The ABA recognizes that SSA wants ethical representatives and

> attorneys representing a claimant seeking disability benefits. The ABA
> has shown clearly by its actions and letters such as President
> Greco\'s that the proposed regulations will encourage a conflict
> between ethical

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> attorneys and the professional rules of the jurisdiction in which the
> lawyer is licensed to practice. **As he said: \"The current
> regulations on this issue well serve the agency, the claimant, and the
> claimant\'s legal counsel, and we urge that they be retained.\"**
>
> See p. 5 of his letter dated September 27, 2005. This is in reference
> to requiring the attorney to yield and supply all information that SSA
> \"thinks\" might be relevant and important and how often would this be
> requested.
>
> Please remember the ALJ and claimant or attorney has no way of
> investigating the \"bought evidence\" \[whether it appears from the
> agency side or the claimant\'s side\]. There have been instances where
> doctors who had lost their license were doing consultative exams for
> DDS. There are times when there appears to be no medical evidence to
> support the disability language rendered by the government doctors or
> claimant\'s doctors. The ALJ and claimant\'s lawyer do this job for
> the administration.
>
> All of this has to be sorted out by a neutral ALJ. THIS IS THE GREAT
> PART ABOUT A [DE NOVO]{.underline} HEARING. BOTH THE GOVERNMENT AND
> CLAIMANT ENTER THE SCENE WITH NO PRESUMPTION FOR OR AGAINST THEM. The
> law and evidence control everyone.
>
> The ALJ must act impartially. Isn\'t that what the APA and
> Commissioner assures us?
>
> The agency has on occasions used \'VOCATIONAL EXPERTS\" who had no
> job, no office and did nothing but be a professional witness for SSA.
> These types of experts make thousands of dollars, testifying every day
> of many weeks. They are not vocational placement advisers. They are
> paid professional witnesses who have one master they must keep
> happy\--SSA.
>
> We need independent ALJs, vocational experts and medical sources. It
> is an old says but still true: \"The object of all legal investigation
> is the discovery of the truth\".
>
> We are not accusing anyone of bias. I am proud of the SSA. There is no
> other business and certainly no other part of the government that does
> the job they do and operate on less than 1% of its income.
>
> However, in this case, I believe the proposed rules miss the target.
> They are dealing with the unluckiest people in America. [The
> Disabled.]{.underline} They are broken spirited and/or just plain
> broke. The need an oasis. That oasis is a fair system that allows them
> to appear before an ALJ who is not constrained in any way, but to seek
> the truth as to their claim. Not a system, that requires Hugh

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> expenditures of money they do not have to do things such as pay
> someone to interpret medical records and type them in\" 12 point
> font\".
>
> We should not seek ways to subvert the needs of unfortunate people who
> have lost their greatest asset\--their good health. To deny them
> assistance in proving their claim, to deny them the right to correct a
> mistake in a previous claim by denying them the right to re-open a
> previously denied claim or to deny them equal access to decision
> makers at all levels is contrary to laws and conscience of this
> country and our oaths we took when we became lawyers and public
> servants.
>
> The current system, beginning at the hearing level should be preserved
> with some corrections. These corrections do not include the reduction
> of the ALJ\'s discretion or ability to assist a claimant if assistance
> is needed. There is a point in time to \"dose the record\", **BUT the
> ALJ should continue to have the discretion to allow new and material
> evidence, be it for or against the claimant.**
>
> I will stop here. Yes, I am passionate about this. When you have seen
> people lose everything, including their life, or that of a mother,
> father, son or daughter because of a \"regulation\" or absence of an
> independent authority that could have made the difference in living or
> dying, then you will understand the need of a structured process that
> possess the ability to act with independence and fairness as the law
> is applied.
>
> **[THE NEW RULES;]{.underline}**

1.  §§405.101-110 **This proposed rule to establish a Quick Disability\
    Determination process through which State agencies will expedite\
    initial determinations for claimants who are clearly disabled is an\
    excellent concept.** This initiative with the corresponding emphasis
    on impartial\
    decision-making by ALJs should lead to an improved process.

2.  **§405.10 The proposed rule to create a Federal Expert Unit (FEU)
    to\
    augment and strengthen medical and vocational expertise for
    disability\
    adjudicators at all levels of the disability determination
    process.**

> We support the concept of providing officials and ALJs with highly
> qualified impartial experts who will present their independent
> interpretations and conclusions of medical and vocational evidence for
> the adjudicator to consider. While it makes sense to provide a pool of
> qualified impartial medical and vocational experts to assist the
> adjudicators due to the limited number of experts available through
> out the country, everyone is concerned that the proposed creation of
> the Federal Expert Unit (FEU) could limit the discretion of

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> Administrative Law Judges (ALJs) by [requiring them to call experts or
> even worse, to call certain experts.]{.underline} **From experience,
> our lawyers and others we know have found there is a potential for
> such \"official\" experts to function less as impartial experts than
> as employed government experts, who, might see their role as being
> tied to a perceived government position, particularly if they are
> trained and paid by the agency-** Should you determine to go forward
> with the proposed unit, many believe the following should be addressed
> before implementation:
>
> **Qualifications-** how will FEU members\' qualifications, procedures
> for certification, and the body that will do the certification be
> established? These tasks should be the subject of full disclosure and
> allow for the opportunity for all interested parties to comment on
> these issues before adoption. Currently, we believe too many of the
> \"experts\" have no current professional \"hands on\" experience and
> also do not perform as unbiased expert witnesses.
>
> **Membership selection---Will** all experts have to meet certain
> qualifications and Will the FEU have a limited membership? Will it be
> open to any willing, and qualified provider? All the requirements for
> selection should be clearly identified at the earliest possible date.
> Would all FEU persons testify by video/phone? Will the FEU person be
> assigned to a geographic location or be a national expert only?
>
> **Selection of an expert for a particular case-** The decision whether
> an expert(s) is needed and what type(s) should be totally within the
> discretion of the adjudicator (RO??) or ALJ with procedures left for
> the claimant to object to any selected experts) chosen or refusal to
> call one. **Further, the selection of experts from this list should
> not preclude the presentation of other experts by claimant.**
>
> Opportunity for additional expert testimony---The **proposed rule
> specifies that experts will have to be certified. Is this rule
> intended to foreclose the claimant from presenting testimony or
> evidence from another certified member of the unit, or other outside
> qualified professionals. Will the rules of evidence require a Daubert
> exam of the FEU and/or claimant\'s expert before testimony? (See** the
> US court system\'s treatment of scientific and other expert testimony
> under the standards set for by the [Supreme Court in Daubert v.
> Merrill Dow Pharmaceuticals. Inc.~r~]{.underline} 509 U.S. 579, 595
> (1933). Daubert announced a four-part test to determine admissibility
> of an expert witness\'s testimony. It asks:
>
> • Is the witness an expert in the sense of having credentials or
> experience?

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-   Does the testimony have a basis in fact?

-   Is it relevant and reliable?

> • Are there other factors that bear upon the question of
> admissibility?
>
> **Relationship with the Decision Review Board (DRB)-** Should the same
> FEU teams be subject to testify or assist the DRB? In the private
> world this would be seen as a conflict or would give the appearance of
> impropriety. This process if adopted must be above reproach.
>
> **Compensation---There** is no problem in securing the number of FEU
> teams needed if you follow the current procedure. The medical portion
> should not be completed by a medical source and/or do an examination
> of a person unless they and the claimant speak the same language or in
> the alternative have an interpreter present at the times of the
> meeting. The reasons for this are obvious. Would any severely ill
> person want a doctor if they could not communicate with him or her?
> Would a conscientious doctor want to be legally responsible for the
> health and treatment of a patient if they had no way of communicating?
>
> **3. The rule would eliminate the State agency reconsideration step
> in\
> the appeals process.**
>
> Removal of this step is a progressive move.
>
> 4\. §405.201-230 **The rules would establish federal \"Reviewing
> Officials\"\
> to review State agency initial determinations upon the request of\
> claimants.**
>
> We understand the rationale for eliminating reconsideration at the
> state level and substituting a review by a federal Reviewing Officer
> (RO) is intended to provide more accurate and consistent decisions,
> and agree that attorneys are more suited to this position. However, we
> believe the role of the RO as a decision maker between the initial
> decision level and the ALJ hearing needs to be thought out more
> carefully. While it is important to allocate additional resources to
> this phase of the process, the effort here should be to consolidate
> the ALJ hearing as the single administrative de novo step.
>
> The proposed rules seem to envision the RO as a sort of intermediate
> decision maker, in effect a substitute for the abandoned
> reconsideration stage. The RO should be given the resources and
> authority necessary to develop records and move claims quickly,
> especially in those cases where benefits could be granted without a
> full administrative hearing. It is our understanding the SSA\'s
> position is to oppose creating an adversarial action. **To use the
> term \"counselor\" etc. causes one to envision the return of the
> \"government representative\" concept *vs.* the \"Reviewing Officer\".
> Counselor implies someone who is there to take a position, while the
> Reviewing Officer implies someone**

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> **who is going to review and try to accommodate the purpose. This is
> an entitlement/benefits program and not litigation, The claimant is
> making a claim for a benefit they have paid for with weekly deductions
> from their checks. This was never envisioned as a \"us vs. them\"
> proceeding.**
>
> We also note that the RO is required to have a qualified expert from
> the FEU evaluate the evidence if the reviewing official disagrees with
> the state agency\'s determination of disability. The RO should be
> given the authority to process the claim at his/her discretion without
> the use of a qualified expert from the FEU. If the issue is dear to
> the RO, waiting for the expert to be available is a waste of time.
>
> 5\. §405.315 **This rule would preserve the right of claimants to
> request and be provided a de novo hearing, which will be conducted by
> an administrative law judge.**
>
> We strongly support preserving the de novo hearings provided by an ALJ
> as an essential part of a fair administrative procedure. **We are,
> however, opposed to the requirement that the ALJ \"provide an
> explanation as to why the administrative law judge agrees or disagrees
> with the rational articulate in the reviewing officer\'s decision.\"**
> Proposed Regulation 405.370(a). **No rule or regulation should give
> the appearance of SSA trying to control the outcome of a claim.**
>
> Our concern about imposing a specific requirement that the ALJ respond
> to the specific rationale of the RO (other than that inherent in the
> judicial evaluation of the evidence) is grounded in the nature of a de
> novo hearing and the efficient use of judicial time. Any ALJ order
> issued pursuant to this section necessarily would contain a cogent
> rationale, an evaluation of the evidence, and specific reasons for the
> ALJ\'s decision that ordinarily would explain any differences with the
> RO. To require the ALJ to devote additional time to identifying and
> cataloguing the differences In evidence, particularly when the
> administrative record has not been carefully constructed, is an
> unnecessary burden when a primary goal of the process is to provide
> speedy adjudication.
>
> To the extent that the ALJ\'s specific review of that official\'s work
> is also expected to provide quality management or similar information,
> it is inconsistent with the role of ALJ in hearing and deciding cases
> based on the evidence and the law cases, and an inappropriate
> consideration in a judicial opinion. It further confuses and dilutes
> the purpose of the hearing, which is to determine whether the claimant
> is eligible or entitled to receive benefits in accordance with the APA
> and not to determine if an employee is performing his/her job
> functions.

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> **6. §405.373 This rule would close the record after the
> administrative law judge issues a decision, but allow for the
> consideration of new and material evidence under certain limited
> circumstances.**
>
> The proposed rules contain some overly complex requirements concerning
> the submission of evidence and closing of the record at the ALJ
> hearing. For example, evidence must be submitted at least 20 days
> before the hearing-with limited exceptions left to the discretion of
> the ALJ. Submission of evidence after the hearing is also left to the
> discretion of the ALJ. Finally, evidence obtained after the hearing,
> even if it relates to an unforeseen change in medical condition that
> occurred after the hearing, must be submitted within 10 days of
> receiving the decision, with no \"good cause\" exception. (Unless the
> case is selected for review by the DRB and in that instance the
> claimant must submit the evidence and provide an explanation of good
> cause to the DRB within 10 days of receiving the ALJ\'s decision
> proposed rules at page 43597) And there is also a strict 10-day rule
> for objecting to the time and place of the hearing and the issues to
> be decided on appeal. This is unreasonable and very prejudicial to the
> claimant. At the present time, even though most evidence is filed by
> the date of the hearing or shortly thereafter, there are still many
> dated materials that are mailed or received later than 10 days from
> the date shown on the material. There is another problem for the
> claimant/attorney as found in the new required information to be
> included in the ALJ decision.
>
> Proposed §405.371 provides that if the ALJ decision is not \"the final
> decision\" the decision will explain that the DRB has taken review of
> the claim. When is all of this action going to take place? It is
> reasonable to believe that it will create timeliness action if the ALJ
> has to submit every decision made to the DRB? Is there any other way
> to explain this section **except it requires the ALJ to get permission
> to issue a FINAL DECISION?** Is this to say the ALJ must get approval
> from the DRB before issuing the \"fair and impartial\" decision
> guaranteed by the APA? Are there members of SSA who still believe the
> APA does not apply to social security hearings or SSA administrative
> law judges?
>
> We are concerned that these rules mark a departure from the current
> rules and practice that provide for acceptance into the record any and
> all evidence offered at the hearing. We agree with the concern
> expressed that in practice they may provide an unintended trap for
> claimants. This could especially be the case for unrepresented
> claimants. Claimants should not be restricted from submitting any
> relevant evidence at any time. The current regulations dealing with
> \"reopening\" are sufficient and should be retained as currently
> written. These give the ALJ the discretion necessary to avoid
> frivolous actions.
>
> The comments to be made here should be that the acceptance of evidence
> into the record and the determination of when the record should be
> closed should be

10

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> within the discretion of the ALJ. This then preserves the issue for
> appeal. Also we must address the need to provide for reopening of
> prior decisions as is the law & regulation now. We must also address
> the requirement that the claimant and/or the attorney must transcribe
> documents etc to the \"\...fullest extent practicable\" and \"\...must
> use type face no smaller than 12 point font\". Proposed §405.333. This
> section could be interpreted by some to require entire medical charts,
> doctor\'s notes etc to be transcribed and typed before submission.
> This is not only an impossible task, but it also opens the door for
> exorbitant expense and \"misinterpretation\" of the original facts in
> those records.
>
> 9\. §§ 405.601-630 **Reopening and revising determination and
> decisions**
>
> Since \"reopening and redeterminations\" take place throughout the
> entire process of an application we must address those issue. The
> proposed rules provide Social Security will remove the one (1) year
> and (4) years rules that allow them to reopen or redetermine a
> determination or decision within one (1) year of the date of the
> notice of the initial determination for any reason\" and (4) years for
> good cause. These rules are to be changed to delete \"\... new and
> material evidence\...\" as a basis or finding good cause to reopen and
> that evidence filed, but not considered will not be a basis for
> reopening.
>
> Sec. 405.605 Conditions for reopening.
>
> \(c\) We will not find good cause to reopen the determination or
> decision if the only reason for reopening is:

(1) A change of legal interpretation or administrative ruling\..., or

```{=html}
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(1) The existence of new evidence that was not considered in making the\
    determination or decision.

> The process of reopening and redetermination is and should be present
> throughout the entire process. **WHY? BECAUSE WE ARE DEALING WITH
> PEOPLE. When we refer to people [we are referring to the claimant and
> ]{.underline}**[*also* **those who are involved *in* the adjudication
> process as well as the lowest clerk.**]{.underline} **Everyone is
> subject to making a mistake and the record should be reopened for the
> correction of error for the benefit of a sick, disabled and/or dying
> person.**
>
> We submit that Claimants are real people. Medical science is not
> perfect. Corrected and/or discovered diseases or impairments after an
> unfavorable decision are not unusual. This is a critical issue for a
> severely impaired individual seeking benefits including Medicare
> and/or Medicaid. The personnel of SSA at all levels are real people
> and can make an honest mistake that needs correcting. Shouldn\'t
> SSA/OHA employees and claimants be treated fairly, if one or the other
> makes a mistake or misplaces that causes an improper judgment to be
> made?
>
> 11

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> In other administrative proceedings does not the government allow
> reopening for new and material evidence in cases before other federal
> agencies such as: OSHA, EPA, VA, CHRO, OWCP, DEPARTMENT OF COMMERCE,
> FEDERAL COAL MINDERS HEALTH AND SAFETY PROGRAMS. Surely there are
> others. Why disallow social security claimants this right, when
> medical cooperation by medical sources is not enforceable nor is
> medical science so exact that all evidence is available at the time of
> adjudication? Should there be a difference in the rules when they are
> applied to the individual rather than the government or big
> corporations? This is not fair to people with severe impairments and
> we voice our disapproval of such discrimination.
>
> 7\. §405.401-450 **The rule would gradually shift certain Appeals
> Council functions to a newly established Decision Review Board.**
>
> [**We disagree that it** is **not working. The numbers and results of
> the actions taken by the current Commissioner show without
> equivocation that the Appeals Council can and does work. A reduction
> from 408 processing days to 196 days achieve in approximately 3 years
> shows it works.**]{.underline}
>
> **Elimination of the Appeals Council has the potential to lead to
> large disruption in the federal courts. It will not help any claimant
> time wise. If it is felt that something must be done then provide that
> a claimant can appeal directly to he federal court if the appeals
> council has not acted on the request to review within 90 days of
> filing. We do not understand how the new process would better benefit
> those claimants, since the Appeals Council currently reverses 25% of
> the cases reviewed.**
>
> **Would it not be better to continue this outstanding improvement,
> rather than \"dumping\" all denials on the federal courts? At a
> minimum the rule should allow some claimants to seek federal court
> review sooner.**
>
> If, it is concluded to abandon the Appeals Council (which everyone
> outside of the agency seems to oppose) would not a better alternative
> be to allow the denied claimants to also have the privilege of
> appealing to the DRB? The DRB should be in a better position to allow,
> remand or deny the cases. These comments do not address the perceived
> major reason for remand by SSA from the federal courts is the
> withdrawal due to concern for precedent. Most of these remands are
> voluntary. As to reversals, we think this issue needs to be separated
> from remands. Getting to federal court sooner is not necessarily a
> good thing due to the expense involved to the claimant and to the
> government.
>
> **12**

10/23/2005 14:07 FAX 4787451754 Westmoreland Patterson

> **These comments also do not address the blatant discrimination of
> allowing the government access to the DRB, but denying the same access
> to the disabled claimants, who receive unfavorable decisions from the
> ALJs.**
>
> First, this may Impose hardships on some beneficiaries, particularly
> those totally disabled and dying, who are unrepresented, by requiring
> they appeal to federal court about any decisions with which they
> disagree. This would also place an added burden on the federal courts.
>
> Second, if the Appeals Council is eliminated, the role of the DRB
> should come into clearer focus. We support limiting the scope of any
> review of ALJ decisions to clear errors of law or lack of substantial
> evidence. We also appreciate that the process is not to be used to
> target individual ALJs, and commend this provision. But, it must be
> noted that the claimant\'s appeal right (except for requests to review
> a dismissal of a request for a hearing), or the method by which the
> cases are selected, the limiting of issues, and that claimant
> submissions are all discretionary with the DRB. **Disallowing
> claimants access to the DRB is totally unfair and discriminatory.**
>
> There is also a potential concern about the relationship between the
> adjudicative function and the management function of the DRB. We
> understand that for quality control purposes it may be necessary to
> focus limited resources on error prone cases, or problematic policies,
> however, **there is a risk that cases will be identified and selected
> based on the individual personnel involved (Reviewing Official, Expert
> or ALJ), and this may undermine the independent role of the
> adjudicator and ALJs.** Also, it is not clear whether the *DRB* will
> function as an appellate review panel that implements its decisions by
> developing case law, or whether the review, and case decisions, are
> intended primarily for identifying issues that will be implemented
> though administrative changes or directions to the Review Official or
> the Expert Unit, or other internal mechanisms.
>
> **9. The rules would propose to strengthen in-line and end-of-line
> quality review mechanisms at the State agency, reviewing official,
> hearing, and Decision Review Board levels of the disability
> determination process.**
>
> We appreciate that the process is not to be used to target individual
> ALJs, and commend this provision, but we remain concerned that an
> unintended consequence of the DRB process could be to compromise the
> status of the ALJ as an independent decision maker.
>
> We support having a system for receiving and evaluating complaints or
> allegations of misconduct by ALJs, but this should be a separate
> process, under the jurisdiction of the Merit Systems Protection Board.

**13**

10/23/2005 14:08 FAX 4787451754

Westmoreland Patterson

015

> The emphasis should be on fair and impartial ALJs who conduct due
> process hearings in accordance with the APA.
>
> Thank you for the opportunity to comment on these proposed
> regulations. Sincerely,
>
> Westmoreland, Patterson, Moseley &. Hinson
>
> ![](media/image1.png){width="2.872916666666667in"
> height="0.5666666666666667in"}
>
> By: Rudolph N. Patterson

Rnp/s

New Hearing Rules Doc. No. 804009

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