**LAW OFFICES**

**JAN L. KODNER & ASSOCIATES, LTD.**

**53 WEST JACKSON BLVD., SUITE 515, CHICAGO, 1L 6O6O4 312/922-6688 FAX
312/922-4494**

**JAN L. KODNER**

**LES DOMBAI JAMES LEENY**

**Practice concentrated in**

**Social Security Disability**

**Supplemental Security income Law**

**www.mysocialsecuritylawyer.com**

October 11,2005

Commissioner of Social Security P.O. Box 17703 Baltimore, MD 21235-6401

Dear Commissioner:

I am submitting this letter as comment upon your proposed Regulations to
revamp the Social Security disability adjudication process. The proposed
rule-making was published in the Federal Register at 70 Fed. Reg. 43589,
43590 (July 27, 2005).

I have been an attorney since 1978 and have concentrated in the Social
Security disability field since about 1982. My firm has handled many
thousands of disability claims during that period of time. I have seen
the efficiency of the Social Security Administration \"wax and wane\"
over the years as far as processing time. One constant has been the
fundamental fairness of the Office of Hearings *& *Appeals. I am very
concerned that some of the proposals could handcuff this crucial
safeguard to our most vulnerable population.

It is very important to understand that a Social Security Claimant is
not a typical party to an administrative proceeding. In my first few
years of practice. I handled various types of Federal administrative
claims, including proceedings before the Nuclear Regulatory Commission
and Illinois Secretary of State. The typical participant in any Federal
administrative proceeding is keenly aware of deadlines and shares
information in a meaningful way with his/her representative. This is not
always so with a Social Security disability Claimant.

Numerous disabled Claimants suffer from some type of mental illness,
which impairs their ability to responsibly respond to deadlines, or even
to obtain treatment. Even those individuals who are not mentally ill are
frequently in a great deal of pain which impairs their ability to
concentrate and take care of business. The disabled Claimant is under
tremendous financial stressors as well, which can cause similar
problems. Procedural requirements, deadlines, or even communications
which would be routine to most persons can be overwhelming to the
disabled Claimant.

Commissioner of Social Security

Page 2

October 11, 2005

**1. Proposed Change: 45 Day notice of hearing**

**Comment: **This is a very wise proposal which would give the Claimant
and his representative more time to order and procure medical evidence.
Since cases will sometimes take 6-24 months to schedule for hearing, the
timely ordering of medical records is a \"game of chance\". For obvious
reasons, records cannot be ordered and updated each month. We try to
keep the Record relatively current based upon an educated guess as to
when the case will be reviewed and screened for a possible favorable
decision without a hearing, or scheduled for hearing. Our office tries
to order records every 4-6 months. If the case is scheduled for hearing
three weeks hence and the evidence is not fresh, it is difficult to get
updated evidence in time for the hearing. Forty-five days would
**ordinarily **be enough time to procure updated information. Sixty days
would be even better. However, a 45 day minimum notice is clearly a step
in the right direction. An unrepresented Claimant who receives such
notice is more inclined to \"spring into action\" and may contact an
attorney for the first time at that point. Likewise, an attorney who had
been awaiting the appropriate opportunity to again obtain updated
medical evidence will have ample time to actually obtain to actually
obtain and furnish the evidence to the Administrative Law Judge before
the hearing date. The Record would be more likely to be complete with a
45 day notice of hearing.

**2. Proposed Changed: Proposal to close the Record if evidence is not
submitted**\
**within 20 days before the hearing.**

**Comment: **This would be a serious mistake and would violate the
universal rule that the ALJ must fully and fairly develop the Record.
Any person who has practiced in this area has encountered medical
providers who are either uncooperative, overburdened or administratively
inept. It will sometimes take multiple requests from the representative
to obtain such records. There are numerous instances where the records
arrive within a day or two of the hearing request even when they had
been requested months earlier and followed up diligently. There are also
many instances where the Claimant changes doctors and does not inform
the attorney of the new medical provider or hospital treatment. This
occurs in spite of the admonitions of the representative, reminding the
Claimant to keep them informed of medical developments. Of course, the
chronically ill may require last minute treatment or testing which is
simply not available at the time of hearing.

Again, please remember that the Claimants are frequently
unsophisticated, marginally literate, mentally ill or may simply be too
overwhelmed to grasp the significance of gelling back in touch with the
representative. This is a major difference between representing a
corporation or white collar administrative

Commissioner of Social Security

Page 3

October 11, 2005

Claimant versus a disabled person seeking Social Security benefits.
Development of a thorough and full Record is one of the cornerstones to
a determination which is **[fair]{.underline} **to both the disabled
Claimant and the government. It would be extremely wrong and indeed a
hollow victory to the Claimant to receive a quick denial rather than a
favorable but slower determination based upon a reasoned and fully
developed Record.

**3. Proposed Change: Decision Review Board**

**Comment: **The Appeals Council would be abolished under the current
proposal in favor of a Decision Review Board under the current proposal.
Unfortunately, the Claimant would not be permitted to appeal to the DRB.
Likewise, the Claimant could not submit argument if the case is being
reviewed, unless he is invited to do so. Submittal of new evidence of
disability is very limited as well. The DRB will apparently be reviewing
all cases to identify those most likely to be \"error prone\". This
level of one way review is of great concern. Categories of particular
Claimants would appear to be subjected to special scrutiny regardless of
the facts of their cases. Further, elimination of the Appeals Council
would open up appeal of an unfavorable ALJ decision directly to the
Federal District Court. Given the very heavy Federal caseload, there
could be an explosion of Social Security disability appeals falling upon
the already over burdened Federal Judiciary.

**4. Proposed Change: Reopening. Decisions can no longer be reopened
for**\
**any reason within one year. New and material evidence is no longer a
good**\
**cause for reopening. Reopening for good cause can happen only six
months**\
**of the final action on a claim.**

**Comment: **Reopening in my experience has been a relatively rare
phenomenon. When it has been applicable, there has almost always been a
very strong reason. Most often, medical evidence had not been obtained
either by the unrepresented Claimant or the Social Security
Administration. The only affect of this proposed change would be a loss
of benefits to the Claimant. Where this is a date last insured issue,
the new rules would result in a total loss of eligibility for SSD
benefits. I cannot fathom how reopening rules have contributed to any
type of administrative inefficiency in the past and do not understand
the benefit of the proposed change other than to separate worthy
Claimants from their benefits.

**[CLOSING THOUGHTS;]{.underline}**

It is very, very important to keep the relaxed and informal aspect of
the Social Security disability hearing intact. Representatives and the
ALJ\'s must have the ability to fully and fairly develop the Record
without being shackled by onerous requirements to close the Record prior
to hearing.

Commissioner of Social Security

Page 4

October 11, 2005

In my experience, the delay in obtaining a decision by the ALJ is most
often caused by one of several factors:

A. The District Office may take a very long time to forward the
Claimant\'s file to the\
hearing office.

B. The hearing office takes a very long time to organize the file into
Exhibits.

C. The hearing office may not promptly assign the file to a Judge or
senior attorney\
for review.

D. Some ALJ\'s are much more productive than others:

\(1\) There are some \"black hole\" ALJ\'s who are assigned to a case
but never\
seem to be able to take action upon same for over 2 1/2-3 years.

\(2\) There are also some ALJ\'s who cannot seem to make a decision for
many\
months after the Record is complete and the hearing has been held. In\
some cases, the decision may take more than a year to be issued.

\(3\) Claimant\'s often express great frustration that they are held to
strict time\
deadlines whereas the Social Security Administration (at all levels) is
not.

In my experience, post hearing closure of the Record does not create a
delay of more than a few weeks when it does occur. This is an
**[extremely minor]{.underline} **part of the overall delays inherent in
this system.

Thank you for this opportunity to comment upon the proposed Regulatory
changes.

Respectfully submitted,

/ / *\'*

Jan L. Kodner / JLK/vj

/

/

cc: U.S. Senator Barack H. Obama U.S. Senator Richard Durbin U.S. Rep.
Jan Schakowsky