Oct 20 05 03:41 p Lewis M Seward

    9898923269

P.2

***SEWARD, TALLY & PIGGOTT, P.C.***

*Attorneys and ****Counselors at Law***

1009 **Washington **Avenue

P. O. Box 795

Bay City, **MI **48707-0795

**(989) 892-6551**

**(800) 990-4474**

**Fax(989)892-1568**

**Mark J. Brissette Ruth L. Noble**

**John M. Morosi [Of Counsel]{.underline}**

**Kenneth K. Wright John W, Piggott Lewis M. Seward**

**Peter G. Seward (Retired)**

**B.J. Tally, Jr. (Retired)**

**Barbara F. Livingston (1952-1999)**

October 20, 2005

MS JO ANNE B BARNHART COMMISSIONER OF SOCIAL SECURITY PO BOX 17703
BALTIMORE MD 21235

RE: Proposed Rule Making for Adjudicating Social Security Cases Dear Ms.
Barnhart:

I am writing to advocate some modifications to the proposed rule making
adjudicating Social Security cases. I am a current Editor of the State
Bar of Michigan Social Security Newsletter, the Editor of the Disability
section of the book entitled *Advising the Older and Disabled Client,
*and am a former Medical Reviewer for Medicare and Medicaid performing
medical peer review for 23 Michigan hospitals.

It is my latter experience as a medical reviewer that has assisted me in
understanding the dynamics of record review in Social Security cases.

It is critical that the Administration understands the concept of
medical record review as it is performed by Social Security. The
Administration needs to understand mat any review *without *live input
from the Claimant is always going to result in a higher number of
incorrect decisions. Without an in-person hearing, there is no one to
ask the vital follow-up questions to fully explain the Claimants\'
medical problems, where they are getting their care and how effective
medical treatment is.

As a former Medical Reviewer I understand the dynamics of medical review
at the DDS level. Most Claimants are in the worst position to document
their disability. Rarely are they more than high school educated. Most
Claimants lack insight as to their medical problems, neglecting medical
problems eventually leading to a medical or emotional train wreck that
leads to filing a Disability claim. There is an inverse relationship
between higher level education and the filing of disability claims.
Stated another way. the lower a person\'s education, the higher the
chance that they will find themselves filing a claim for disability
benefits.

Oct 20 05 03:41 p Lewis M Seward 9898923269 p.3

The point is without face to face input from the Claimant the
Commissioner will always have a disproportionate share of unfavorable
decisions because there is a natural tendency not to give the Claimant
the benefit of the doubt but rely strictly on the (inadequately)
completed forms and medical records.

Upon reviewing the proposed Regulations, three things are evident:

1 . The proposed review process will result in a longer adjudication
process on all but the most sickest of Claimants.

2\. The proposed process will result in a higher percentage of incorrect
unfavorable decisions.

3\. Representatives will find an increase in revenue due to appeal of
incorrect unfavorable\
decisions.

I realize the Commissioner needs to protect the Trust Fund and that is a
very reasonable goal. The proposed rule changes will definitely save the
Fund money as well as reduction in entitlement programs. This will be
accomplished at the cost of an incorrect decision making process.

[The Attorney Welfare and Preservation Act]{.underline}

I call the proposed rule changes the Attorney Welfare and Preservation
Act. I call it this because the only party that is going to have
significant financial gain is the attorney or representative. By adding
the Reviewing Officer, restriction of evidence submission and the
Decision Review Board, there wi11 be an increase in the percentage of
incorrect unfavorable decisions which will need to be appealed.

[The Reviewing Officer]{.underline}

The proposed Reviewing Officer or RO, should be replaced with the Senior
Attorney Program which was highly successful in cleaning up the backlog
of cases at OHA. All the Reviewing Officer does is add to the delay in
the process that a Claimant needs to wait for a hearing.

As you are aware a small percentage of ALJs were not in favor of the
Senior Attorney Program due to its success at cleaning up the backlog of
cases. Since the Reviewing Officer is an added step to the process and
has the authority to send cases *back *to DDS this will serve as an
effective bureaucratic log jam. DDS will complain of the extra work
involved not to mention the touchy subject of having their decision
second guessed being sent back for further development.

The Senior Attorney Program, rather than a separate bureaucratic hoop
the Claimant must jump through, will allow for a more swift adjudication
of cases that do not need a hearing.

Additionally the Senior Attorney Program would result in a much lower
administrative cost to the program as it may result in no more than one
FTE (Full-Time Equivalent) for each OHA. As you may recall, there were
no additional attorneys hired in the Senior Attorney Program yet it
resulted in a substantial reduction in the backlog of cases at OHA.

Oct 20 05 03:41 p Lewis M Seward 9898923269

p.4

Submission of Evidence - a Logical Solution [to the Commissioner\'s
Dilemma of Delayed Decisions]{.underline}

The proposal to restrict evidence 20 days before a hearing will result
in a higher rate of incorrect unfavorable decisions. SSA knows that
approximately 40% of all hearings are conducted by Claimant\'s *without
*representatives. These Claimant\'s will be hurt the worst. Even though
the Commissioner has a rule that the ALJ has a duty to develop the
record, this is almost *never *followed mainly because of the work load
that is already placed on the ALJs.

The critical concept that SSA must understand is that medical care is a
dynamic and on going process. You cannot arbitrarily \"shut-off the
spigot\" 20 days before the hearing. We realize that there are
exceptions to this rule. Unfortunately the proposed rules are drafted to
give the ALJ discretion on submission of evidence within the 20 day
window.

The additional rule of allowing submission of evidence within 10 days
*after *the ALJs\' decision is bordering on ludicrous. The ALJs are
already over-burdened with the cases. Where is the incentive to change
their Decision following a submission of evidence such as MRIs, blood
work or other critical medical evidence. There is no incentive for the
ALJ to change her decision other than a good conscience.

The other critical factor that Social Security needs to understand is
that Claimants are not necessarily motivated in obtaining adequate
treatment until they are prompted by Social Security either by letter to
submit evidence or by the Notice of Hearing. Often times Claimants are
their own worst enemy failing to obtain the proper care or treatment
until they realize that a hearing is eminent. Therefore by the time the
Claimants get in to see the physicians and have proper testing to obtain
treatment for their medical problems, they will be foreclosed from
submission of the evidence because of the highly restrictive rules.

The proposed rule or evidence restriction also ignores the significant
problems facing Claimants or representatives which is obtaining medical
records on a timely basis. It usually takes a month or longer to obtain
records from a medical care provider. They still need to be reviewed,
put in chronological order and submitted by the representative. Record
requests pet lost and medical providers sometimes refuse to fill
requests due to an outstanding office bill. DDS can attest to the myriad
of difficulties in obtaining medical records.

[The Solution]{.underline}

The solution is not as cut and dry as the proposed rule suggests.
Closing the barn door prematurely is *not *the answer to the delay in
adjudicating claims. The answer to this dilemma lies with obtaining
consent or acknowledgment from the Claimant that their decision will be
delayed due to untimely submission. In other words if the Commissioner
wants to keep the rigid 20 day rule let the Claimant have the option to
*waive *this rule rather than giving the ALJ discretion. You must
realize that when a request is made to submit evidence after the hearing
often times the ALJ will inform the Claimant or representative that the
decision will be likewise delayed.

Oct 20 05 03:41 p

Lewis M Seward

    9898923269

p.5

I also understand the impact that submission of evidence just prior to
or after the hearing adds to the statistics in the number of days
adjudicating a claim. The solution is simple. In compiling the
statistics carve out the Claimants who waive the 20 day rule and form a
separate category for those cases.

With waiving the 20 day rule, Claimants can no longer complain about
untimely decisions. By caning out those cases which waive the rule, SSA
statistics will demonstrate a decline in days awaiting a decision.

The bottom line is setting an arbitrary deadline will open up the door
to abuse by ALJs who routinely restrict evidence. The only person
profiting from such practice will be the representatives who will
eventually win a case where the evidence is excluded by the Judge as the
fees will keep piling up during the appeal process.

Respectfully submitted, SEWARD, TALLY & PI

TT, P.C.

LMS/gmw/02/02 GCOR14.WPD