November 30, 2007

Michael Astrue

Commissioner of Social Security

P.O. Box 17703,

Baltimore, MD 21235--7703.

*Re:\[Docket No. SSA 2007--0044\]Amendments to the Hearing, Appeals
Council, and*

*Decision Review Board Appeals Levels*

Dear Commissioner Astrue:

The comments below are addressed specifically to proposed 20 CFR
404.972, although we fully endorse the general concerns expressed by
other organizations concerning the unfairness of closing the record on
disability claims after an initial Administrative Law Judge decision.

Our opinion is that the proposed 20 CFR 404.972 is not only unfair to
claimants, it is irrational. The proposed regulation as written states:

If you or another party files an appeal of that hearing decision, or if
the Review Board decides to review the decision on its own motion, the
appeal and any subsequent proceedings will consider only that
***period*** of time ending with the date of the first hearing decision
in your case. If the original hearing decision in your case is set
aside, in whole or in part, by the Review Board or a Federal court and
remanded to an administrative law judge for a new hearing or decision,
the proceedings on remand will consider your case only with regard to
the ***period*** ending on the date of the original administrative law
judge decision in your case (emphasis added).

Among many other problems with the language cited above, the use of the
word "period" in the proposed regulation will inevitably lead to an
irrational standard of review upon remand. The Social Security Act
(which of course is controlling upon these regulations) already defines
"period of disability" as "a continuous period (beginning and ending as
hereinafter provided in this subsection) during which an individual was
under a disability." 42 USC 416(i). By definition then, the use of the
word "period" in proposed 20 CFR 404.972 appears to limit the discretion
of an Administrative Law Judge on remand to awarding benefits which
cease upon the date of the first decision. It may be that the intent of
the proposed regulation was merely to limit the submission of evidence
upon remand to evidence which was already submitted at the time of the
first decision. Instead however, what the proposed regulation actually
says is that the ability to pay benefits for dates after the date of the
first decision is limited. By a clear reading of the proposed regulation
(in conjunction with the definition of "period of disability" in the
Act) an Administrative Law Judge could only award benefits which
literally cease upon the date of the first Administrative Law Judge
decision. If the intent of the rule is to limit awards of benefits after
remand to a "closed period" of disability, the proposed rule violates
the Social Security Act. 42 USC 423 (f) requires a finding of medical
improvement in order to cease disability benefits, with "substantial
evidence" to support said finding. The Social Security Administration
does not have the authority to amend the Social Security Act through the
rulemaking process.

Given that the proposed rules elsewhere limit the submission of medical
evidence for any period after the date of the initial decision, and
given that most remand cases are reheard more than twelve months after
the date of the initial decision, it would be virtually impossible for
an Administrative Law Judge to award continuing benefits, even if the
Judge were inclined to do so. This would be true no matter how erroneous
the first decision may have been, and no matter what the subsequent
Court or Review Board remand order instructed. Conversely, if the intent
was to award only a closed period of disability upon remand, the rule
appears to violate the Social Security Act as cited above. A prohibition
against obtaining updated medical evidence upon remand would make it
impossible to justify either continuing benefits or ceasing benefits.

From the language of the rule, it is unclear what the Agency's intention
was in drafting the proposed rule. It appears impossible to implement
the proposed rule as written. Attempting to implement this proposed rule
as written would not only do a disservice to claimants, it would be
wildly inefficient from the perspective of SSA in adjudicating remanded
appeals.

Sincerely,

PRO SENIORS, INC.

Michael A. Walters

Michael A. Walters

Legal Hotline Managing Attorney