First, I believe that additional time should be allowed for the submission of comments upon these proposed regulations. Given the scope of this proposal, 60 days is too short a period of time for comments. Further, the comment period ends just after Christmas, making it difficult for many to get their comments in on time. I urge that the time period be extended for at least one month.
In general, I oppose the proposed new regulations. I do not believe that they will benefit Social Security Disability claimants. The goal of these proposed rules seems only to save money.
I am concerned that the savings estimate in the NPRM is misleading. The indication is that these new rules would save $1.5 billion over ten years. However, Social Security's own Chief Actuary has said that the new rules would shortchange claimants by $2 billion over ten years. This is a significant difference which makes the NPRM misleading.
Many of my concerns about these proposed rules have to do with aberrant administrative law judges. The vast majority of Administrative Law Judges (ALJs) are reasonable. However, there is an aberrant element, perhaps 5% of ALJs, who regularly engage in bizarre behavior. Even when dealing with the 95% of ALJs who are generally reasonable, human nature is such that sooner or later any of them will get carried away and behave in an unwise manner. These proposed rules give tremendous discretion to ALJs to exclude medical evidence, with little capacity to check abuses of discretion at the Review Board.
The change of name from "Appeals Council" to "Review Board" is unnecessary. Any name change of this sort involves expense and inconvenience, as signs, stationery and manuals must be changed. I see no compelling need for this name change at a time when the Social Security Administration's funding is low. I urge that the name remain "Appeals Council."
Proposed rule 404.933(a)(3) requires that a claimant give specific reasons for disagreeing with a reconsideration determination. However, the proposed rule does not set forth any punishment for failing to do so. Is this grounds for dismissal of a request for hearing? I think the answer should be no, but without a statement to this effect in the regulations, I fear that some ALJ's will dismiss requests for hearings on this ground.
Similarly, in proposed rule 404.933(a)(4), there is a requirement that a claimant give a statement of medically determinable impairments along with a request for hearing. Again, is there some punishment for failing to do so or for failing to be exhaustive in listing these impairments? Might an ALJ dismiss a request for hearing for failure to list impairments? Might an ALJ refuse to consider impairments not listed by a claimant? Claimants often seek to hide mental illness from the Social Security Administration, even when it is their primary disabling impairment. Should claimants be punished for this sort of failing?
In general, proposed rule 404.933 seems as if it could introduce some form of rules of pleading to the Social Security regulations. I believe this is inappropriate.
Proposed rule 404.935(b) requires that records be "submitted" five business days before a hearing. What does "submitted" mean? If medical evidence is "submitted" by mail, is it submitted at the time it is mailed or at the time it is received? Is medical evidence "submitted" when it is received by the Social Security Administration, or is it "submitted" when some Social Security employee gets around to actually incorporating it into the claimant's file? These are far from abstract questions. Claimants and attorneys will be submitting medical evidence by mail for many years to come. Social Security does not have enough employees to quickly process medical records, even when they are submitted electronically, much less when they are submitted by mail. Some Social Security employees are all too quick to blame others for their own shortcomings.
In general, I regard the time limit on the submission of medical records in proposed rule 404.935 as unnecessary and unwise. I believe that Social Security is going after a mosquito with a sledgehammer. The problem of late submission of medical evidence, while annoying to ALJs, does not cause significant delay. Any effort to prevent this is going to cause the denial of meritorious social security disability claims on procedural grounds.
Proposed rule 404.935(b)(5) provides that Social Security's Office of General Counsel "may" seek enforcement of a subpoena. Why is the Office of General Counsel not required to enforce subpoenas issued by ALJs?
Proposed section 404.936 requires only that a claimant be given "reasonable" notice of a change in the time and place of a hearing. If we go to a 75 day notice of hearing, it is to be expected that there will be far more changes of the time and place of hearings, because there is more time for things to happen between the time the hearing is scheduled and the date of the hearing. I urge that claimants be given at least twenty days notice of a change of the time or place of a hearing.
Proposed rule 404.939 provides that a claimant may only object to the time or place of a hearing within 30 days of receiving notice of the hearing. However, many problems relating to the time and place of a hearing only become apparent to the claimant as that date approaches. Transportation difficulties, in particular, are often apparent to the claimant only when the date is close at hand.
The point of proposed rule 404.944(a) appears to me to be to allow ALJs to exclude the news media from hearings. Hearings should be open to the news media if the claimant wants this to be the case. What does the Social Security Administration have to hide? I am also concerned with this proposed rule since it gives ALJs authority to exclude a claimant's family and friends from a hearing. There are practical reasons to limit the attendance of family and friends at hearings. Most hearing rooms have only limited seating space. However, there is always room for at least one or two additional people in the hearing room. Most claimants are apprehensive about their hearings and prefer to have at least one family member or friend accompany them into the hearing room. Preventing them from bringing a family member or friend into the hearing room seems unnecessarily harsh to me. This is particularly a problem when one is dealing with individuals suffering from a panic disorder. Most people who suffer from a panic disorder can go into a hearing and be reasonably calm as long as they have a "security figure" accompany them. The "security figure" is generally a family member or friend whom they trust. As long as this person is along, the claimant is unlikely to have a panic attack. Any effort to prevent the claimant from bringing along the family member or friend is likely to result in the hearing not taking place or the claimant having a panic attack during the hearing.
Proposed rule 404.946(b) states that an ALJ can consider additional issues not mentioned in the notice of hearing. Must an ALJ give notice that he or she is about to consider additional issues? I have seen instances in which an ALJ decided after a hearing to consider some issue which was unknown to me and to my client and to issue a decision denying my client based upon matters upon which we were not allowed to comment. I believe this to be inappropriate and a denial of due process. I urge that proposed rule 404.946(b) be amended to require notice of the consideration of additional issues.
I do not understand proposed rule 404.957(b). What is the difference between subparagraphs 1 and 2? Will the claimant always have the right to explain his or her failure to appear?
In proposed rule 404.961(b), an ALJ may require a "pre-hearing statement." Does this mean that each individual ALJ can set forth their own requirements for a "pre-hearing statement?" It seems to me that the Social Security Administration cannot comply with the Paperwork Reduction Act unless there is a standardized "pre-hearing statement" form. I am concerned that each ALJ will attempt to be a rule unto himself or herself, with some of them making burdensome and unnecessary requirements upon claimants and their attorneys and seeking to enforce these requirements by dismissing requests for hearings or refusing to consider issues. In general, I regard "pre-hearing statements" as unnecessary in the vast majority of cases. I see a strong potential for abuse by aberrant ALJs.
Proposed section 404.967(c) allows the Review Board to identify issues that impede consistent adjudication. When the Review Board does identify such issues, will this identification be done in a public way? If the Review Board is to have this function, I believe that it should be done publicly.
Proposed rule 404.970 has to do, in part, with what has traditionally been called "bureau protests." The problem I have observed over the years with "bureau protests" is that the "bureau" gives no notice of the protest to the claimant and his or her attorney at the time the protest is sent to the Appeals Council. This seems like an ex parte contact to me. On several occasions I have received "proposed decisions" from the Appeal Council after bureau protests. I was allowed only a brief period of time to comment. It appeared that the decision had already been made and that I had no ability to comment upon the matter when it was actually under consideration. This is denial of due process. If there are to be "bureau protests", the "bureau" should give notice to the claimant and his or her attorney at the same time that notice is sent to the Appeals Council or Review Board.
In proposed rule 404.971, there is a mention only of a "substantial evidence" standard of review. There is no mention of any review for denial of due process. Elsewhere in the regulations, there is a suggestion that the Review Board is supposed to consider due process violations, but this is not given as specific grounds for reviewing an ALJ decision. I believe this should be amended to allow Review Board review to correct denials of due process.
Proposed rule 404.971 would enact a "harmless error" standard. Is there "harmless error" when one is dealing with serious denials of due process? Let me give extreme examples. What if an ALJ were drunk at a hearing? Should the Review Board be considering the question of whether the ALJ might have still denied the claim even if he or she had been sober? What if the ALJ refused to allow the claimant's attorney to ask any questions of the claimant? Should the Review Board be wondering whether the result would have been the same even if the attorney had been allowed to do his or her job? What if the ALJ requires a child SSI claimant to testify without his or her mother or father in the room? Again, should the Review Board even be considering the question of whether the result would have been the same if the ALJ had behaved properly? Serious denials of due process should require a remand regardless of whether the result might have been the same even without the denial of due process.
Proposed rule 404.972 seems to me to mean that if the Review Board or a United States District Court remands a case that the remand is for consideration of a closed period of disability only. I find this so bizarre that I think that the regulations should make this very clear. If this is not what the Social Security Administration intended, I think that what is meant should be made very clear. If the Social Security Administration does not intend that remands be only for closed periods, how are we to deal with the possibility that the claimant has improved after the previous ALJ decision? Is the ALJ obliged to give the claimant disability benefits continuing up to the date of the new decision, regardless of any evident improvement? What if the claimant were recovering from a leg fracture at the time of the first ALJ decision, but by the time of the hearing on remand, the claimant walks into the room and it is obvious that he or she has recovered from the fracture? Is the ALJ not allowed to consider the evident medical improvement?
I believe that Proposed Rule 404.973 which would close the record after the ALJ decision is unwise. It is confusing and will lead to much litigation. What if the issue that the claimant seeks to raise on appeal is the ALJ's refusal to order a consultative examination when requested by the claimant? Can the consultative examination be ordered on remand? If the consultative examination cannot be ordered on remand, is there any effective review of the ALJ's exercise of discretion on this point? If a consultative examination can be ordered on remand, why would the claimant not be allowed to get a comment from his or her own physician upon the consultative examination report?
Proposed rule 404.974(a) allows the Review Board to make the claimant pay for a copy of his or her file when he or she requests review. This is inappropriate. Many claimants are indigent. Even if they are not indigent, it appears inappropriate to me to require this.
I believe that proposed rule 404.989 is inappropriate. There is no reason to exclude reopening on the grounds of new and material evidence just because the prior decision was issued by an ALJ. This is intended only to save money. There are circumstances in which an ALJ decision was based upon the then current medical understanding of the claimants condition which is later found to have been erroneous. Let me give you an example. I once had a claimant who had a hearing during which he complained of mental confusion. The mental confusion was attributed at the time to mild depression and the claim was denied. However, a year later, the claimant was hospitalized. A brain scan showed a brain tumor. After this, it was clear what had been causing the mental confusion all along and that the mental confusion that the claimant suffered was severe. Why would the Social Security Administration want to prevent reopening in such a circumstance? Clearly, this claimant had no opportunity to submit the medical evidence earlier.
Currently, the rules require good cause for the submission of new evidence to the Appeals Council or to a Federal Court. Why is this not enough? If the Social Security Administration believes that claimants or their representatives are abusing this, would not a simple memorandum to the Appeals Council directing its members to strictly enforce this provision be enough?
In general, I urge that the NPRM be withdrawn. There have already been dramatic signs of Congressional opposition to these proposed rules. Should these proposed rules be adopted in 2008, it is likely that they will be overturned by Congress in 2009. Why bother?
I am concerned that the savings estimate in the NPRM is misleading. The indication is that these new rules would save $1.5 billion over ten years. However, Social Security's own Chief Actuary has said that the new rules would shortchange claimants by $2 billion over ten years. This is a significant difference which makes the NPRM misleading.
Many of my concerns about these proposed rules have to do with aberrant administrative law judges. The vast majority of Administrative Law Judges (ALJs) are reasonable. However, there is an aberrant element, perhaps 5% of ALJs, who regularly engage in bizarre behavior. Even when dealing with the 95% of ALJs who are generally reasonable, human nature is such that sooner or later any of them will get carried away and behave in an unwise manner. These proposed rules give tremendous discretion to ALJs to exclude medical evidence, with little capacity to check abuses of discretion at the Review Board.
The change of name from "Appeals Council" to "Review Board" is unnecessary. Any name change of this sort involves expense and inconvenience, as signs, stationery and manuals must be changed. I see no compelling need for this name change at a time when the Social Security Administration's funding is low. I urge that the name remain "Appeals Council."
Proposed rule 404.933(a)(3) requires that a claimant give specific reasons for disagreeing with a reconsideration determination. However, the proposed rule does not set forth any punishment for failing to do so. Is this grounds for dismissal of a request for hearing? I think the answer should be no, but without a statement to this effect in the regulations, I fear that some ALJ's will dismiss requests for hearings on this ground.
Similarly, in proposed rule 404.933(a)(4), there is a requirement that a claimant give a statement of medically determinable impairments along with a request for hearing. Again, is there some punishment for failing to do so or for failing to be exhaustive in listing these impairments? Might an ALJ dismiss a request for hearing for failure to list impairments? Might an ALJ refuse to consider impairments not listed by a claimant? Claimants often seek to hide mental illness from the Social Security Administration, even when it is their primary disabling impairment. Should claimants be punished for this sort of failing?
In general, proposed rule 404.933 seems as if it could introduce some form of rules of pleading to the Social Security regulations. I believe this is inappropriate.
Proposed rule 404.935(b) requires that records be "submitted" five business days before a hearing. What does "submitted" mean? If medical evidence is "submitted" by mail, is it submitted at the time it is mailed or at the time it is received? Is medical evidence "submitted" when it is received by the Social Security Administration, or is it "submitted" when some Social Security employee gets around to actually incorporating it into the claimant's file? These are far from abstract questions. Claimants and attorneys will be submitting medical evidence by mail for many years to come. Social Security does not have enough employees to quickly process medical records, even when they are submitted electronically, much less when they are submitted by mail. Some Social Security employees are all too quick to blame others for their own shortcomings.
In general, I regard the time limit on the submission of medical records in proposed rule 404.935 as unnecessary and unwise. I believe that Social Security is going after a mosquito with a sledgehammer. The problem of late submission of medical evidence, while annoying to ALJs, does not cause significant delay. Any effort to prevent this is going to cause the denial of meritorious social security disability claims on procedural grounds.
Proposed rule 404.935(b)(5) provides that Social Security's Office of General Counsel "may" seek enforcement of a subpoena. Why is the Office of General Counsel not required to enforce subpoenas issued by ALJs?
Proposed section 404.936 requires only that a claimant be given "reasonable" notice of a change in the time and place of a hearing. If we go to a 75 day notice of hearing, it is to be expected that there will be far more changes of the time and place of hearings, because there is more time for things to happen between the time the hearing is scheduled and the date of the hearing. I urge that claimants be given at least twenty days notice of a change of the time or place of a hearing.
Proposed rule 404.939 provides that a claimant may only object to the time or place of a hearing within 30 days of receiving notice of the hearing. However, many problems relating to the time and place of a hearing only become apparent to the claimant as that date approaches. Transportation difficulties, in particular, are often apparent to the claimant only when the date is close at hand.
The point of proposed rule 404.944(a) appears to me to be to allow ALJs to exclude the news media from hearings. Hearings should be open to the news media if the claimant wants this to be the case. What does the Social Security Administration have to hide? I am also concerned with this proposed rule since it gives ALJs authority to exclude a claimant's family and friends from a hearing. There are practical reasons to limit the attendance of family and friends at hearings. Most hearing rooms have only limited seating space. However, there is always room for at least one or two additional people in the hearing room. Most claimants are apprehensive about their hearings and prefer to have at least one family member or friend accompany them into the hearing room. Preventing them from bringing a family member or friend into the hearing room seems unnecessarily harsh to me. This is particularly a problem when one is dealing with individuals suffering from a panic disorder. Most people who suffer from a panic disorder can go into a hearing and be reasonably calm as long as they have a "security figure" accompany them. The "security figure" is generally a family member or friend whom they trust. As long as this person is along, the claimant is unlikely to have a panic attack. Any effort to prevent the claimant from bringing along the family member or friend is likely to result in the hearing not taking place or the claimant having a panic attack during the hearing.
Proposed rule 404.946(b) states that an ALJ can consider additional issues not mentioned in the notice of hearing. Must an ALJ give notice that he or she is about to consider additional issues? I have seen instances in which an ALJ decided after a hearing to consider some issue which was unknown to me and to my client and to issue a decision denying my client based upon matters upon which we were not allowed to comment. I believe this to be inappropriate and a denial of due process. I urge that proposed rule 404.946(b) be amended to require notice of the consideration of additional issues.
I do not understand proposed rule 404.957(b). What is the difference between subparagraphs 1 and 2? Will the claimant always have the right to explain his or her failure to appear?
In proposed rule 404.961(b), an ALJ may require a "pre-hearing statement." Does this mean that each individual ALJ can set forth their own requirements for a "pre-hearing statement?" It seems to me that the Social Security Administration cannot comply with the Paperwork Reduction Act unless there is a standardized "pre-hearing statement" form. I am concerned that each ALJ will attempt to be a rule unto himself or herself, with some of them making burdensome and unnecessary requirements upon claimants and their attorneys and seeking to enforce these requirements by dismissing requests for hearings or refusing to consider issues. In general, I regard "pre-hearing statements" as unnecessary in the vast majority of cases. I see a strong potential for abuse by aberrant ALJs.
Proposed section 404.967(c) allows the Review Board to identify issues that impede consistent adjudication. When the Review Board does identify such issues, will this identification be done in a public way? If the Review Board is to have this function, I believe that it should be done publicly.
Proposed rule 404.970 has to do, in part, with what has traditionally been called "bureau protests." The problem I have observed over the years with "bureau protests" is that the "bureau" gives no notice of the protest to the claimant and his or her attorney at the time the protest is sent to the Appeals Council. This seems like an ex parte contact to me. On several occasions I have received "proposed decisions" from the Appeal Council after bureau protests. I was allowed only a brief period of time to comment. It appeared that the decision had already been made and that I had no ability to comment upon the matter when it was actually under consideration. This is denial of due process. If there are to be "bureau protests", the "bureau" should give notice to the claimant and his or her attorney at the same time that notice is sent to the Appeals Council or Review Board.
In proposed rule 404.971, there is a mention only of a "substantial evidence" standard of review. There is no mention of any review for denial of due process. Elsewhere in the regulations, there is a suggestion that the Review Board is supposed to consider due process violations, but this is not given as specific grounds for reviewing an ALJ decision. I believe this should be amended to allow Review Board review to correct denials of due process.
Proposed rule 404.971 would enact a "harmless error" standard. Is there "harmless error" when one is dealing with serious denials of due process? Let me give extreme examples. What if an ALJ were drunk at a hearing? Should the Review Board be considering the question of whether the ALJ might have still denied the claim even if he or she had been sober? What if the ALJ refused to allow the claimant's attorney to ask any questions of the claimant? Should the Review Board be wondering whether the result would have been the same even if the attorney had been allowed to do his or her job? What if the ALJ requires a child SSI claimant to testify without his or her mother or father in the room? Again, should the Review Board even be considering the question of whether the result would have been the same if the ALJ had behaved properly? Serious denials of due process should require a remand regardless of whether the result might have been the same even without the denial of due process.
Proposed rule 404.972 seems to me to mean that if the Review Board or a United States District Court remands a case that the remand is for consideration of a closed period of disability only. I find this so bizarre that I think that the regulations should make this very clear. If this is not what the Social Security Administration intended, I think that what is meant should be made very clear. If the Social Security Administration does not intend that remands be only for closed periods, how are we to deal with the possibility that the claimant has improved after the previous ALJ decision? Is the ALJ obliged to give the claimant disability benefits continuing up to the date of the new decision, regardless of any evident improvement? What if the claimant were recovering from a leg fracture at the time of the first ALJ decision, but by the time of the hearing on remand, the claimant walks into the room and it is obvious that he or she has recovered from the fracture? Is the ALJ not allowed to consider the evident medical improvement?
I believe that Proposed Rule 404.973 which would close the record after the ALJ decision is unwise. It is confusing and will lead to much litigation. What if the issue that the claimant seeks to raise on appeal is the ALJ's refusal to order a consultative examination when requested by the claimant? Can the consultative examination be ordered on remand? If the consultative examination cannot be ordered on remand, is there any effective review of the ALJ's exercise of discretion on this point? If a consultative examination can be ordered on remand, why would the claimant not be allowed to get a comment from his or her own physician upon the consultative examination report?
Proposed rule 404.974(a) allows the Review Board to make the claimant pay for a copy of his or her file when he or she requests review. This is inappropriate. Many claimants are indigent. Even if they are not indigent, it appears inappropriate to me to require this.
I believe that proposed rule 404.989 is inappropriate. There is no reason to exclude reopening on the grounds of new and material evidence just because the prior decision was issued by an ALJ. This is intended only to save money. There are circumstances in which an ALJ decision was based upon the then current medical understanding of the claimants condition which is later found to have been erroneous. Let me give you an example. I once had a claimant who had a hearing during which he complained of mental confusion. The mental confusion was attributed at the time to mild depression and the claim was denied. However, a year later, the claimant was hospitalized. A brain scan showed a brain tumor. After this, it was clear what had been causing the mental confusion all along and that the mental confusion that the claimant suffered was severe. Why would the Social Security Administration want to prevent reopening in such a circumstance? Clearly, this claimant had no opportunity to submit the medical evidence earlier.
Currently, the rules require good cause for the submission of new evidence to the Appeals Council or to a Federal Court. Why is this not enough? If the Social Security Administration believes that claimants or their representatives are abusing this, would not a simple memorandum to the Appeals Council directing its members to strictly enforce this provision be enough?
In general, I urge that the NPRM be withdrawn. There have already been dramatic signs of Congressional opposition to these proposed rules. Should these proposed rules be adopted in 2008, it is likely that they will be overturned by Congress in 2009. Why bother?
