01/83/2005 12:37   6177239125	DISABILITY LAW CTR

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**DLC**

Disability Law Center, Inc. *Western Mass Office*

11 Beacon Street, Suite 925 30 Industrial Drive East

Boston, Massachusetts 02108 Northampton, MA 01060

\(413\) 584-6337

\(617\) 723-8455 *Voice *(800)222-5619

\(800\) 872-9992 *Voice *(413) 582-6919 *TTY*

\(617\) 227-9464 *TTY *(413) 584-2976 *Fax*

\(800\) 381-0577 *TTY*

\(617\) 723-9125 Fax http://www.dlc-ma.org

email: mail@dlc-ma.org

December 20, 2004

by e-mail: regiilations@SSA.gov

Jo Anne B. Barnhart

Commissioner

Social Security Administration

P.O. Box 17703

Baltimore, MD 21235-6401

Re: Administrative Review Process; Incorporation by Reference of Oral
Findings of Fact and Rationale in Wholly Favorable Written Decisions. 69
Fed. Reg. 61594 (10/20/04).

Dear Commissioner Barnhart:

I write to provide comment upon the above-referenced rules, published as
final regulations with request for comments. The Disability Law Center
is a private, nonprofit protection and advocacy agency that provides
free legal assistance to persons with disabilities throughout
Massachusetts. Since 1983, the Disability Benefits Project (DBP) at the
Disability Law Center has provided technical back up and support to
legal services advocates and private attorneys engaged in Social
Security and SSI law practice. DBP supports high quality representation
and advocacy for those seeking Social Security and SSI benefits.

First, we encourage and applaud sensible efforts to speed up the
disability determination process in ways that protect claimant rights.
Allowing Administrative Law Judges (ALJs) to incorporate oral findings
by reference may have the intended result of speeding up the issuance of
decisions where the ALJ can determine at hearing that the decision
should be fully favorable. However, care must be taken now to avoid
casual, perfunctory and superficial use of the process for incorporation
by reference that will cause problems later.

It is of great importance for all concerned, claimants, their
representatives, and SSA that the basis for decisions issued pursuant to
this process be clear. Claimants must be able to readily discern whether
the decision is indeed fully favorable and, if not, the issues for
appeal. We have certainly seen cases in which decisions purporting to be
fully favorable were not when more

The Protection and Advocacy System for Massachusetts

[this agency supported by]{.smallcaps}

***United Way***

    01/03/2985 12:37   6177239125	DISABILITY LAW CTR	PAGE 04

closely studied. Other advocates around the country have reported these
situations as well. Without strict clarity, claimants, especially
unrepresented claimants, will be at risk for missed appeal deadlines and
lost benefits. In addition, hearing proceeding recordings or transcripts
must be either automatically provided to claimants or their availability
must be much more prominently publicized and explained, including in the
hearing decision. If not automatically provided, additional time to
appeal or otherwise respond must be routinely given when providing
hearing proceeding recordings or transcripts.

Second, we fear that this process could cause problems for claimants
applying for Expedited Reinstatement (EXR) and also for those undergoing
Continuing Disability Reviews (CDRs). In both EXR and CDR cases, details
about the prior disability allowance are critical to the decision making
process. Written decisions under the incorporation by reference process
will be shorter, presumably referencing both the ALJ\'s oral findings at
hearing and the ALJ\'s check sheet However, it is not clear how the oral
findings at hearing will be associated with the prior decision and made
available to either SSA adjudicators or to claimants and their
representatives. Presumably, when the files become paperless, the
hearing recordings can be made part of the electronic file. But until
then, will the hearing recordings be automatically associated and kept
with the paper file? Or, will we have the same problem as has existed at
the Appeals Council, with delays in adjudication due to the need to find
the recordings for each case? Such delays will play havoc with timely
EXR and CDR processing.

Third, we are concerned that perfunctory use of the incorporation by
reference process will result in inadequate findings in the record. For
example, the check sheet does not include enough detail for the
necessary CDR comparison point decision analysis. If the ALJ does no
more in his or her oral findings than follow the check sheet, CDR
decision making will be negatively impacted.

Finally, while we are not opposed to use of the incorporation, by
reference process, we feel that improvements must be made to avoid the
above discussed problems. Thank you very much for this opportunity to
comment.

Sincerely,

,•\' Linda Landry ,

Attorney