[Federal Register Volume 60, Number 72 (Friday, April 14, 1995)]
[Proposed Rules]
[Pages 19008-19011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9028]



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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

RIN 0960-AE10


Administrative Review Process, Prehearing Proceedings and 
Decisions by Attorney Advisors

AGENCY: Social Security Administration.

ACTION: Proposed rule.

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SUMMARY: We propose to amend our regulations to provide, on a temporary 
basis, that in claims for Social Security or Supplemental Security 
Income (SSI) benefits based on disability, attorney advisors in our 
Office of Hearings and Appeals (OHA) will have authority to conduct 
certain prehearing proceedings, and where the record developed as a 
result of these proceedings warrants, to [[Page 19009]] issue decisions 
that are wholly favorable to the parties to the hearing.
    Because requests for an administrative law judge (ALJ) hearing have 
increased dramatically in recent years, and cases pending in our 
hearing offices have reached unprecedented levels, we have taken a 
number of actions designed to help us hear and decide these cases more 
efficiently. The rules we are proposing in this notice of proposed 
rulemaking are an important part of our efforts in this regard.

DATES: To be sure that your comments are considered, we must receive 
them no later than May 15, 1995.

ADDRESSES: Comments should be submitted in writing to the Commissioner 
of Social Security, P.O. Box 1585, Baltimore, Maryland 21235, sent by 
telefax to (410) 966-2830, sent by E-mail to <a href="/cdn-cgi/l/email-protection#e08080928587958c8194898f8e93a0939381ce878f96">``<span class="__cf_email__" data-cfemail="14667173617875607d7b7a67546767753a737b62">[email protected]</span></a>'', 
or delivered to the Division of Regulations and Rulings, Social 
Security Administration, 3-A-3 Operations Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235, between 8:00 a.m. and 4:30 p.m. 
on regular business days. Comments received may be inspected during 
these same hours by making arrangements with the contact person shown 
below. The electronic file of this document is available on the Federal 
Bulletin Board (FBB) at 9:00 a.m. on the date of publication in the 
Federal Register. To download the file, modem dial (202) 512-1387. The 
FBB instructions will explain how to download the file and the fee. 
This file is in Wordperfect and will remain on the FBB during the 
comment period.

FOR FURTHER INFORMATION CONTACT: Harry J. Short, Legal Assistant, 
Division of Regulations and Rulings, Social Security Administration, 
Social Security Boulevard, Baltimore, Maryland 21235, (410) 965-6243.

SUPPLEMENTARY INFORMATION:

Background

    The Social Security Administration (SSA) decides claims for Social 
Security benefits under title II of the Social Security Act (the Act) 
and for SSI benefits under title XVI of the Act in an administrative 
review process that generally consists of four steps. Claimants who are 
not satisfied with the initial determination we make on a claim may 
request reconsideration. Claimants who are not satisfied with our 
reconsidered determination may request a hearing before an ALJ, and 
claimants who are dissatisfied with an ALJ's decision may request 
review by the Appeals Council. Claimants who have completed these 
steps, and who are not satisfied with our final decision, may request 
judicial review of the decision in the Federal courts.
    Generally, when a claim is filed for Social Security or SSI 
benefits based on disability, a State agency makes the initial and 
reconsideration disability determination for us. A hearing requested 
after we have made a reconsideration determination is conducted by an 
ALJ in one of the 132 hearing offices we have nationwide.
    Applications for Social Security and SSI benefits based on 
disability have risen dramatically in recent years. The number of new 
disability claims SSA received in Fiscal Year (FY) 1994--3.56 million--
represented a 40 percent increase over the number received in FY 1990. 
Requests for an ALJ hearing also have increased dramatically. In FY 
1994, our hearing offices had almost 540,000 hearing receipts and most 
of these were related to requests for a hearing filed by persons 
claiming disability benefits. In that year, the number of hearing 
receipts we received exceeded the number of receipts we received in FY 
1990 by more than 70 percent.
    Despite management initiatives that resulted in a record increase 
in ALJ productivity in FY 1994, and the hiring of more than 200 new 
ALJs and more than 800 new support staff in that year, the number of 
cases pending in our hearing offices has reached unprecedented levels--
more than 480,000 at the end of FY 1994.
    On September 19, 1994, the Commissioner of Social Security 
published a Plan for a New Disability Claim Process in the Federal 
Register (59 FR 47887). That document sets forth our long term plans 
for redesigning and fundamentally improving the overall disability 
claim process. On a separate track from that longer term plan, we have 
developed short term initiatives to reduce the number of cases pending 
in our hearing offices. As part of our short term disability process 
improvements, we are issuing this notice of proposed rulemaking (NPRM) 
regarding a temporary change in our administrative review procedures.
    Under the proposed rule, attorney advisors would conduct certain 
prehearing proceedings and, where appropriate, issue decisions that are 
wholly favorable to the claimant and any other party to the hearing. We 
are proposing that this procedure remain in effect for a period of time 
not to exceed two years from the effective date of a final rule 
authorizing the procedure unless the rule is extended by the 
Commissioner of Social Security by publication of a final rule in the 
Federal Register.

Regulatory Provisions

    We propose to add new Secs. 404.942 and 416.1442 to our regulations 
to authorize attorney advisors in OHA to conduct certain prehearing 
proceedings and, where appropriate, make decisions based on the 
documentary record that are wholly favorable to the parties. Our 
purpose in proposing these regulations is to expedite the processing of 
cases pending at OHA without infringing on the right of a claimant to a 
hearing before an ALJ.
    The authority of an attorney advisor to conduct prehearing 
proceedings and to make decisions would be temporary, and it would 
apply only in the limited circumstances described below. Also, the 
attorney advisor's conduct of certain prehearing proceedings would not 
delay the scheduling of a hearing before an ALJ. If the prehearing 
proceedings were not concluded before the hearing date, the case would 
be sent to the ALJ unless a decision wholly favorable to the claimant 
and all other parties was in process, or the claimant and all other 
parties to the hearing agreed in writing to delay the hearing until the 
prehearing proceedings are completed.
    Prehearing proceedings could be conducted by the attorney advisor 
under the proposed rule if new and material evidence is submitted; 
there is an indication that additional evidence is available; there is 
a change in the law or regulations; or there is an error in the file or 
some other indication that a wholly favorable decision could be issued. 
A decision by an attorney advisor would be mailed to all parties. The 
notice of decision would state the basis for the decision and advise 
the parties that an ALJ will dismiss the hearing request unless a 
request to proceed with the hearing was made by a party within 30 days 
after the date the notice of the decision was mailed.
    We believe that these temporary procedures will enable us to manage 
our pending hearing requests in a more timely manner. They also may 
provide information that can help us better identify cases that can be 
decided without a hearing before an ALJ and improve our ability to 
narrow the issues that must be resolved before a decision can be made.
    In view of the salutary effect we expect the rules to have on our 
ability to improve our service to claimants, and the importance we 
place on ensuring that we adjudicate claims timely and accurately, we 
are providing a 30-day comment period for these rules rather than the 
60-day comment period we usually provide. We believe that in this 
instance a 30-day period is sufficiently [[Page 19010]] long to allow 
the public a meaningful opportunity to comment on the proposed rules, 
in accordance with Executive Order 12866.

Regulatory Procedures

Executive Order No. 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that this rule does not meet the criteria for a 
significant regulatory action under Executive Order 12866. Thus, the 
rule is not subject to OMB review.

Regulatory Flexibility Act

    We certify that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
affect only individuals. Therefore, a regulatory flexibility analysis 
as provided in Pub. L. 96-354, the Regulatory Flexibility Act, is not 
required.

Paperwork Reduction Act

    These regulations impose no new reporting or recordkeeping 
requirements requiring OMB clearance.

(Catalog of Federal Domestic Assistance Program Nos. 93.802, Social 
Security-Disability Insurance; 93.807, Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Death benefits, Disability 
benefits, Old-Age, Survivors and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

    Administrative practice and procedure, Aged, Blind, Disability 
benefits, Public assistance programs, Supplemental Security Income 
(SSI), Reporting and recordkeeping requirements.

    Dated: April 5, 1995.
Shirley S. Chater,
 Commissioner of Social Security.
    For the reasons set out in the preamble, subpart J of part 404 and 
subpart N of part 416 of chapter III of title 20 of the Code of Federal 
Regulations are amended as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950-  )

    1. The authority citation for subpart J of part 404 continues to 
read as follows:

    Authority: Secs. 201(j), 205 (a), (b), and (d)-(h), 221(d), 225 
and 1102 of the Social Security Act; 31 U.S.C. 3720A; 42 U.S.C. 
401(j), 405 (a), (b), and (d)-(h), 421(d), 425 and 1302; sec. 5 of 
Pub. L. 97-455, 96 Stat. 2500; sec. 6 of Pub. L. 98-460, 98 Stat. 
1802.

    2. New Sec. 404.942 is added under the undesignated center heading 
``Hearing Before an Administrative Law Judge'' to read as follows:


Sec. 404.942  Prehearing proceedings and decisions by attorney 
advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor in our Office of Hearings and Appeals may conduct 
prehearing proceedings as set out in paragraph (c) of this section. If 
upon the completion of these proceedings, a decision that is wholly 
favorable to you and all other parties may be made, an attorney 
advisor, instead of an administrative law judge, may issue such a 
decision. The conduct of the prehearing proceedings by the attorney 
advisor will not delay the scheduling of a hearing. If the prehearing 
proceedings are not completed before the date of the hearing, the case 
will be sent to the administrative law judge unless a wholly favorable 
decision is in process or you and all other parties to the hearing 
agree in writing to delay the hearing until the proceedings are 
completed.
    (b) When prehearing proceedings may be conducted by an attorney 
advisor. An attorney advisor may conduct prehearing proceedings if you 
have filed a claim for benefits based on disability and--
    (1) New and material evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulations; or
    (4) There is an error in the file or some other indication that a 
wholly favorable decision may be issued.
    (c) Nature of the prehearing proceedings that may be conducted by 
an attorney advisor. As part of the prehearing proceedings, the 
attorney advisor, in addition to reviewing the existing record, may--
    (1) Request additional evidence that may be relevant to the claim, 
including medical evidence; and
    (2) If necessary to clarify the record for the purpose of 
determining if a wholly favorable decision is warranted, schedule a 
conference with the parties.
    (d) Notice of a decision by an attorney advisor. If the attorney 
advisor issues a wholly favorable decision under this section, we shall 
mail a written notice of the decision to all parties at their last 
known address. We shall state the basis for the decision and advise all 
parties that an administrative law judge will dismiss the hearing 
request unless a party requests that the hearing proceed. A request to 
proceed with the hearing must be made in writing within 30 days after 
the date the notice of the decision of the attorney advisor is mailed.
    (e) Effect of actions under this section. If under this section, an 
administrative law judge dismisses a request for a hearing, the 
dismissal is binding in accordance with Sec. 404.959 unless it is 
vacated by an administrative law judge or the Appeals Council pursuant 
to Sec. 404.960. A decision made by an attorney advisor under this 
section is binding unless--
    (1) A party files a request to proceed with the hearing pursuant to 
paragraph (d) of this section and an administrative law judge makes a 
decision;
    (2) The Appeals Council reviews the decision on its own motion 
pursuant to Sec. 404.969 as explained in paragraph (f)(3) of this 
section; or
    (3) The decision of the attorney advisor is revised under the 
procedures explained in Sec. 404.987.
    (f) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 404 shall apply 
to--
    (1) Authorize an attorney advisor to exercise the functions 
performed by an administrative law judge under Secs. 404.1520a and 
404.1546;
    (2) Define the term ``decision'' to include a decision made by an 
attorney advisor, as well as the decisions identified in Sec. 404.901; 
and
    (3) Make the decision of an attorney advisor subject to review by 
the Appeals Council under Sec. 404.969 if an administrative law judge 
dismisses the request for a hearing following issuance of the decision, 
and the Appeals Council decides to review the decision of the attorney 
advisor anytime within 60 days after the date of the dismissal.
    (g) Sunset provision. The provisions of this section will no longer 
be effective on (insert date two years after the date the final rule is 
published in the Federal Register) unless they are extended by the 
Commissioner of Social Security by publication of a final rule in the 
Federal Register.

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

    1. The authority citation for subpart N of part 416 continues to 
read as follows:

    Authority: Sec. 1102, 1631, and 1633 of the Social Security Act; 
42 U.S.C. 1302, 1383, and 1383b.

    2. New Sec. 416.1442 is added under the undesignated center heading 
``Hearing [[Page 19011]] Before an Administrative Law Judge'' to read 
as follows:


Sec. 416.1442  Prehearing proceedings and decisions by attorney 
advisors.

    (a) General. After a hearing is requested but before it is held, an 
attorney advisor in our Office of Hearings and Appeals may conduct 
prehearing proceedings as set out in paragraph (c) of this section. If 
upon the completion of these proceedings, a decision that is wholly 
favorable to you and all other parties may be made, an attorney 
advisor, instead of an administrative law judge, may issue such a 
decision. The conduct of the prehearing proceedings by the attorney 
advisor will not delay the scheduling of a hearing. If the prehearing 
proceedings are not completed before the date of the hearing, the case 
will be sent to the administrative law judge unless a wholly favorable 
decision is in process or you and all other parties to the hearing 
agree in writing to delay the hearing until the proceedings are 
completed.
    (b) When prehearing proceedings may be conducted by an attorney 
advisor. An attorney advisor may conduct prehearing proceedings if you 
have filed a claim for SSI benefits based on disability and--
    (1) New and material evidence is submitted;
    (2) There is an indication that additional evidence is available;
    (3) There is a change in the law or regulations; or
    (4) There is an error in the file or some other indication that a 
wholly favorable decision may be issued.
    (c) Nature of the prehearing proceedings that may be conducted by 
an attorney advisor. As part of the prehearing proceedings, the 
attorney advisor, in addition to reviewing the existing record, may--
    (1) Request additional evidence that may be relevant to the claim, 
including medical evidence; and
    (2) If necessary to clarify the record for the purpose of 
determining if a wholly favorable decision is warranted, schedule a 
conference with the parties.
    (d) Notice of a decision by an attorney advisor. If the attorney 
advisor issues a wholly favorable decision under this section, we shall 
mail a written notice of the decision to all parties at their last 
known address. We shall state the basis for the decision and advise all 
parties that an administrative law judge will dismiss the hearing 
request unless a party requests that the hearing proceed. A request to 
proceed with the hearing must be made in writing within 30 days after 
the date the notice of the decision of the attorney advisor is mailed.
    (e) Effect of actions under this section. If under this section, an 
administrative law judge dismisses a request for a hearing, the 
dismissal is binding in accordance with Sec. 416.1459 unless it is 
vacated by an administrative law judge or the Appeals Council pursuant 
to Sec. 416.1460. A decision made by an attorney advisor under this 
section is binding unless--
    (1) A party files a request to proceed with the hearing pursuant to 
paragraph (d) of this section and an administrative law judge makes a 
decision;
    (2) The Appeals Council reviews the decision on its own motion 
pursuant to Sec. 416.1469 as explained in paragraph (f)(3) of this 
section; or
    (3) The decision of the attorney advisor is revised under the 
procedures explained in Sec. 416.1487.
    (f) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 416 shall apply 
to--
    (1) Authorize an attorney advisor to exercise the functions 
performed by an administrative law judge under Secs. 416.920a, 
416.924d(b), and 416.946;
    (2) Define the term ``decision'' to include a decision made by an 
attorney advisor, as well as the decisions identified in Sec. 416.1401; 
and
    (3) Make the decision of an attorney advisor subject to review by 
the Appeals Council under Sec. 416.1469 if an administrative law judge 
dismisses the request for a hearing following issuance of the decision, 
and the Appeals Council decides to review the decision of the attorney 
advisor anytime within 60 days after the date of the dismissal.
    (g) Sunset provision. The provisions of this section will no longer 
be effective on (insert date 2 years after the date the final rule is 
published in the Federal Register) unless they are extended by the 
Commissioner of Social Security by publication of a final rule in the 
Federal Register.

[FR Doc. 95-9028 Filed 4-13-95; 8:45 am]
BILLING CODE 4190-29-P

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