Hearings Held by Administrative Appeals Judges of the Appeals Council
| Published date | 20 December 2019 |
| Citation | 84 FR 70080 |
| Record Number | 2019-27019 |
| Section | Proposed rules |
| Court | Social Security Administration |
Federal Register, Volume 84 Issue 245 (Friday, December 20, 2019)
[Federal Register Volume 84, Number 245 (Friday, December 20, 2019)]
[Proposed Rules]
[Pages 70080-70089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27019]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 402, 404, 408, 411, 416, and 422
[Docket No. SSA-2017-0073]
RIN 0960-AI25
Hearings Held by Administrative Appeals Judges of the Appeals
Council
AGENCY: Social Security Administration.
ACTION: Notice of proposed rule making.
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SUMMARY: We propose to revise our rules to clarify when and how
administrative appeals judges (AAJ) on our Appeals Council may hold
hearings and issue decisions. The Appeals Council already has the
authority to hold hearings and issue decisions under our existing
statute and regulations, but we have not exercised this authority or
explained the circumstances under which it would be appropriate for the
Appeals Council to assume responsibility for holding a hearing and
issuing a decision. The proposed clarifications will ensure the Appeals
Council is not limited in the type of claims for which it may hold
hearings. We expect that these proposed rules will increase our
adjudicative capacity when needed, allowing us to adjust more quickly
to fluctuating short-term workloads, such as when an influx of cases
reaches the hearings level. Our ability to utilize our limited
resources more effectively will help us quickly optimize our hearings
capacity, which in turn will allow us to continue to issue accurate,
timely, high-quality decisions.
DATES: To ensure that your comments are considered, we must receive
them no later than February 18, 2020.
You may submit comments by any one of three methods--internet, fax,
or mail. Do not submit the same comments multiple times or by more than
one method. Regardless of which method you choose, please state that
your comments refer to Docket No. SSA-2017-0073 so that we may
associate your comments with the correct rule.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number
SSA-2017-0073. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week
for your comments to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to the Office of Regulations and
Reports Clearance, Social Security Administration, 3100 West High Rise
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at http://www.regulations.gov or in person, during
regular business hours, by arranging with the contact person identified
in FOR FURTHER INFORMATION CONTACT.
FOR FURTHER INFORMATION CONTACT: Nancy Chung, Office of Appellate
Operations, Social Security Administration, 5107 Leesburg Pike, Falls
Church, VA 22041, (703) 605-7100. For information on eligibility or
filing for benefits, call our national toll-free number, 1-800-772-1213
or TTY 1-800-325-0778, or visit our internet site, Social Security
Online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
As of November 2019, pending applicants have waited from a low of
about 8.5 months to a high of about 20
[[Page 70081]]
months for a hearing.\1\ At the end of November 2019, we had
approximately 541,000 applicants for benefits who are waiting for a
hearing before an administrative law judge (ALJ).\2\ The vast majority
of these claimants are seeking disability benefits under title II of
the Social Security Act (Act) or Supplemental Security Income (SSI)
payments based on disability under title XVI of the Act.\3\
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\1\ See Average Wait Time Until Hearing Held Report (By Month),
available at: https://www.ssa.gov/appeals/DataSets/archive/archive_data_reports.html, where further data may be extrapolated.
You may also extrapolate current average processing time for a
hearing decision here: https://www.ssa.gov/appeals/DataSets/02_HO_Workload_Data.html.
\2\ We are making the national Hearing Office Workload, from
November 30, 2018, available as supporting documentation, at https://www.regulations.gov, under ``supporting and related material'' for
this docket, SSA-2017-0073. You may also review national Hearing
Office Workload information here: https://www.ssa.gov/appeals/DataSets/02_HO_Workload_Data.html.
\3\ See page six of the recent letter from Acting Commissioner
of Social Security Berryhill to Senate Appropriations Chairman
Shelby, https://www.ssa.gov/budget/FY19Files/2019OP.pdf.
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The proposed changes in these rules will increase our adjudicative
capacity, when needed, allowing us to adjust to fluctuating short-term
workloads, such as when an influx of cases reaches the hearings level.
This will also provide us with appropriate flexibility, particularly
when budgets may not support additional hiring or unanticipated shifts
in disability application rates occur. Utilizing resources we already
have will help us quickly optimize our hearings capacity to issue
decisions in a timely manner and avoid the likelihood of growing
hearings backlogs in the future.
At the end of fiscal year (FY) 2010, we had approximately 705,000
cases pending at the hearing level of our administrative review
process.\4\ By the end of FY 2016, that number had grown to more than
1.1 million cases, peaking in FY 2017 at 38 percent above the number of
hearing requests pending at the end of FY 2010.\5\ As of November 2019,
the number of pending hearing-level cases was approximately 541,000. As
part of our efforts to effectively utilize our resources to decrease
the number of pending hearing requests, while maintaining and reducing
the average wait for hearings, we propose to clarify when AAJs from our
Appeals Council may hold hearings and issue decisions, or dismissals
where appropriate, using the same rules that apply to ALJs.
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\4\ Annual Statistical Supplement to the Social Security
Bulletin, 2012, Table 2.F9, at page 2.75 (2013), available at:
https://www.ssa.gov/policy/docs/statcomps/supplement/2012/supplement12.pdf. The Annual Statistical Supplement to the Social
Security Bulletin is prepared in SSA's Office of Retirement and
Disability Policy, Office of Research, Evaluation, and Statistics
(ORES).
\5\ Annual Statistical Supplement to the Social Security
Bulletin, 2017, Table 2.F9, at page 2.80 (2018), available at:
https://www.ssa.gov/policy/docs/statcomps/supplement/index.html.
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The Appeals Council has authority under our current regulations to
remove a request for hearing that is pending before an ALJ, and thereby
assume responsibility for the case and conduct the hearing.\6\ We have
not exercised this authority, however, nor explained the circumstances
under which it would be appropriate for the Appeals Council to assume
responsibility for holding a hearing and issuing a decision. Each AAJ
possesses the same skills and experience as the skills and experience
of our ALJs. We will not implement these proposed changes in a way that
could undermine the independence and integrity of our existing
administrative review process. As discussed below, we take seriously
our responsibility to ensure that claimants receive accurate decisions
from impartial decision-makers, arrived at through a fair process that
provides each claimant with the full measure of due process
protections. Since the beginning of the Social Security administrative
review process in 1940, we have held an unwavering commitment to a full
and fair hearings process. These proposed rules would not alter the
fundamental fairness of our longstanding hearings process. Under these
proposed rules, our AAJs will continue to possess the same
responsibility and independence they have always had to make fair and
accurate decisions, free from agency interference.\7\
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\6\ 20 CFR 404.956 and 416.1456.
\7\ Our ALJs have protections that provide them with qualified
decisional independence, which ensures that they conduct impartial
hearings. They must decide cases based on the facts in each case and
in accordance with agency policy set out in regulations, rulings,
and other policy statements. Further, because of their qualified
decisional independence, ALJs make their decisions free from agency
pressure or pressure by a party to decide a particular case, or a
particular percentage of cases, in a particular way. Consistent with
our longstanding policy and practice, our AAJs will continue to
follow these same principles.
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What is the Appeals Council and its current role in the appeals
process? What is the current role of ALJs in the process?
In most cases, we evaluate disability claims using an
administrative process that consists of four levels: (1) Initial
determination; (2) reconsideration; (3) hearing before an ALJ; and (4)
Appeals Council review.\8\ At the first and second steps of the
administrative process, Federal and State decision-makers issue initial
and reconsidered determinations.
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\8\ 20 CFR 404.900 and 416.1400.
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At the third step, we operate an administrative hearings system.
The Office of Hearings Operations (OHO) administers our administrative
hearings program and directs a nationwide field organization of ALJs,
who conduct impartial de novo hearings and issue decisions on appealed
determinations involving claims under titles II, VIII, and XVI of the
Act. Our hearings process guarantees parties the opportunity to present
evidence, written statements, and oral arguments, before a fair and
impartial decisionmaker; the right to appoint someone to represent
them; and the right to a decision that gives findings of fact and the
reasons for the decision based on the preponderance of the evidence
offered at the hearing or otherwise included in the record.
At the fourth step of the administrative review process, the
Appeals Council reviews hearing decisions and dismissals of hearing
requests issued under titles II, VIII, and XVI of the Act.\9\ When an
individual requests review of a hearing decision or dismissal of a
hearing request, the Appeals Council may deny or dismiss the request
for review, or it may grant the request and either issue a decision or
remand the case for further administrative proceedings.\10\ The Appeals
Council may decide on its own motion to review a case and issue a
decision or remand.\11\ As members of the Appeals Council, AAJs
impartially consider all claims presented to them with a high degree of
expertise.
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\9\ The Appeals Council is part of our Office of Analytics,
Review, and Oversight.
\10\ 20 CFR 404.967 and 416.1467.
\11\ 20 CFR 404.969 and 416.1469.
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If the Appeals Council does not review a hearing decision, the
hearing decision becomes the final decision of the Commissioner and is
binding unless a party files an action in Federal district court or the
decision is revised.\12\ If the Appeals Council reviews a case and
issues a decision, its decision is the final decision of the
Commissioner and is binding unless a party files an action in Federal
district court or the decision is revised.\13\ Any party who is
dissatisfied with the Commissioner's final decision may request
judicial review of the decision.\14\ The Appeals Council also processes
cases remanded to the agency by the Federal courts.\15\
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\12\ 20 CFR 404.981 and 416.1481.
\13\ Id.
\14\ 20 CFR 404.981 and 416.1481.
\15\ 20 CFR 404.983 and 416.1483.
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[[Page 70082]]
The History of the Appeals Council's Hearing Authority
Our proposal for AAJs to conduct hearings and issue decisions under
the same rules that apply to ALJs is supported by our existing
regulations,\16\ which have authorized this option since the beginning
of our hearings and appeals process in 1940.\17\ Our existing
regulations state that when a request for hearing is pending before an
ALJ, the Appeals Council can assume responsibility for holding the
hearing by requesting jurisdiction of the case. If the Appeals Council
holds a hearing, it must follow the same rules that apply to hearings
before ALJs.\18\
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\16\ 20 CFR 404.956 and 416.1456.
\17\ 5 FR 4169, 4172 (October 22,1940).
\18\ 20 CFR 404.956 and 416.1456.
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Our current regulations are based on the original blueprint for our
hearing and review process \19\ and our original regulations governing
the administrative review process. The original administrative review
regulations provided that, ``The hearing provided for in this section
shall be, except as herein provided, conducted by a referee designated
by the Chairman of the Appeals Council.'' \20\ The regulations also
provided, however, that ``[t]he Chairman may designate a member of the
Appeals Council to conduct a hearing.'' \21\ The Social Security Board,
an early term for the Social Security organization, envisioned that the
members of the Appeals Council ``should exercise [this] authority from
time to time as a means of keeping in touch with the problems connected
with conducting hearings and developing the records.'' \22\
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\19\ See Basic Provisions Adopted by the Social Security Board
for the Hearing and Review of Old-Age and Survivors Insurance Claims
(January 1940). The Basic Provisions are reprinted as an appendix in
S. Doc. No. 77-10, Administrative Procedure in Government Agencies:
Monograph of the Attorney General's Committee on Administrative
Procedure (Part 3, Social Security Board), at 33-59 (1940).
\20\ 20 CFR 403.709(d) (1940 Supp.)
\21\ Id.
\22\ Basic Provisions, at 39.
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In January 2016, we recommended that AAJs hold hearings in certain
cases as part of our adjudication augmentation strategy.\23\ That
proposal to use AAJs to hold hearings and issue decisions in certain
categories of cases attracted significant public and congressional
interest.\24\ We ultimately decided against implementing the
adjudication augmentation strategy and decided instead to pursue
clarifying changes to our regulations, which also gives us an
opportunity to receive additional input from interested stakeholders.
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\23\ The adjudication augmentation strategy was part of our 2016
Plan for Compassionate and Responsive Service (CARES) (available at:
https://www.ssa.gov/appeals/documents/cares_plan_2016.pdf). Under
the strategy, we would have expanded (on a temporary basis) the
number of cases in which AAJs on the Appeals Council could hold
hearings under the authority of the regulations. Id. at 11.
\24\ See Examining Due Process in Administrative Hearings:
Hearing Before the Subcommittee on Regulatory Affairs and Federal
Management of the Committee on Homeland Security and Governmental
Affairs, United States Senate, 114th Cong. 89, 96 (2016) (https://www.gpo.gov/fdsys/pkg/CHRG-114shrg21182/pdf/CHRG-114shrg21182.pdf).
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Why are we proposing having AAJs hold hearings and issue decisions?
As of November 2019, pending applicants have waited from a low of
about 8.5 months to a high of about 20 months for a hearing. It is
incumbent upon us to develop solutions to provide more timely service
to claimants, while at the same time ensuring that our hearings process
remains fair and impartial. Using AAJs to serve the public in the
manner we propose allows us more flexibility to use our resources to
meet the needs of the public we serve and ensures that our hearings
process remains fair and impartial, while providing high quality
decisions to our claimants.
How will AAJ hearings and decisions compare to those by ALJs?
We propose to clarify that an AAJ from our Appeals Council may hold
a hearing and issue a decision on any case pending at the hearings
level under titles II, VIII, or XVI of the Act. Just as ALJs have the
authority to hold hearings on a variety of disability and non-
disability claims, we would not limit the kinds of claims that AAJs
could hear. AAJs would be required to follow the same rules as ALJs,
and the hearings they hold would apply the same due process protections
as hearings held by our ALJs. The rules that govern ALJ hearings that
AAJs would be required to follow include, but are not limited to, those
governing the submission of evidence, the representation of claimants,
and the use of video teleconferencing. Claimants would be entitled to
request Appeals Council review of any decision with which they are
dissatisfied and to seek judicial review of our final decision. In
addition, when the Appeals Council removes a case from the hearings
level and schedules a hearing, it would mail a notice of hearing at
least 75 days before the date of the hearing, just as hearing offices
do under our current rules.\25\ Further, as mentioned above, parties
would have the ability to request Appeals Council review of decisions
or dismissals issued by AAJs.
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\25\ 20 CFR 404.938(a) and 416.1438(a).
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To ensure impartiality, we propose to preclude an AAJ who conducted
a hearing or issued the decision in a case, or dismissed a hearing
request, from participating in any action associated with a request for
Appeals Council review in that case. If the Appeals Council denies a
request for review of a decision, parties would have the ability to
seek judicial review in Federal district court pursuant to section
205(g) of the Act. We expect that these revisions will provide us with
much-needed flexibility to respond to and mitigate the impact of surges
in hearing requests.
Clarifying Regulatory Language
Federal Court Remands
We propose to clarify when a case has been remanded by Federal
Court, the Appeals Council has authority to hold a hearing. In
Sec. Sec. 404.983 and 416.1483, we propose to clarify that if the
Appeals Council assumes responsibility for issuing a decision on a
claim(s) that has been remanded by Federal court, it may hold a hearing
if a hearing is necessary to complete adjudication of the claim(s). If
the Appeals Council holds a hearing, it will follow the same procedures
for holding hearings as ALJs, as set forth in Sec. Sec. 404.929
through 404.961 and Sec. Sec. 416.1429 through 416.1461. However,
there may be differences in judicial review as provided in Sec.
422.210. When the Appeals Council assumes responsibility for issuing a
decision on a claim(s) that has been remanded by Federal court and no
hearing is necessary, we propose that it will follow the notice and
decision procedures in Sec. Sec. 404.973, 404.979, 416.1473 and
416.1479, which are the procedures the Appeals Council uses when
granting review.
We also propose to specify that if the Appeals Council intends to
remand a case following a Federal court remand, the procedures in
Sec. Sec. 404.977 and 416.1477 will apply. Additionally, 20 CFR
404.984 and 416.1484 state that when a Federal court remands a case for
further consideration, and an ALJ issues a new decision upon remand,
the Appeals Council may assume jurisdiction of the case based on
written exceptions to the ALJ's decision. The current regulations do
not specify the standard the Appeals Council will use when determining
whether to assume jurisdiction. We propose to specify that, in such
cases, the Appeals Council may assume jurisdiction using the standards
in Sec. Sec. 404.970 and 416.1470, which are
[[Page 70083]]
the standards the Appeals Council follows when determining whether to
grant review of an ALJ decision.
We also propose adding language to clarify that in some
circumstances following a Federal court remand, the Appeals Council may
dismiss the proceedings before it. Specifically, we propose that in
cases remanded under sentence four of section 205(g) of the Act only,
the Appeals Council may dismiss the proceedings for any reason that an
ALJ can dismiss a request for hearing.\26\ A request for hearing can be
dismissed for reasons such as an untimely filed request for review, if
neither the claimant nor designated representative appear at the
hearing, if res judicata applies, or when the person requesting the
hearing has no right to it.\27\ The most common reason the Appeals
Council dismisses a request for hearing after a court remand is that
the claimant is deceased, and there is no substitute party.
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\26\ HALLEX I-3-2-51 and I-3-4-20.
\27\ 20 CFR 404.947 and 416.1457.
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Appeals Council Review Generally
In Sec. Sec. 404.970 and 416.1470, we propose to add paragraph (d)
to clarify when the Appeals Council will review a case. Under these
proposed rules, the Appeals Council will generally grant review of a
hearing decision or dismissal only when it finds there is a reasonable
probability that an error present in the ruling or hearing decision
changes the outcome of the decision or benefits are owed to any party.
This limitation will allow the Appeals Council to focus agency
resources on correcting significant errors that may change the outcome
of a case and avoid further administrative proceedings that serve only
to correct harmless errors in an otherwise appropriate decision or
dismissal.
In Sec. Sec. 404.976 and 416.1476, we propose to clarify the
procedures the Appeals Council follows on its review of hearing
decisions or dismissals. We propose to clarify that the Appeals Council
will evaluate all additional evidence it receives, but it will only
mark the evidence as an exhibit and make part of the official record
additional evidence that it determines meets the requirements of
Sec. Sec. 404.970(a)(5) and 416.1470(a)(5). Consistent with the
Appeals Council's current business process, when the Appeals Council
finds that additional evidence does not meet these requirements, it
will still include a copy of the evidence in the transcript if the
claimant seeks judicial review in Federal court. These proposed
revisions apply only to the Appeals Council level of review, and would
not affect how an AAJ considers additional evidence when he or she is
acting in the same capacity as an ALJ.
Additionally, we propose to remove and reserve Sec. Sec. 404.966
and 416.1466, testing elimination of the request for Appeals Council
review. On September 23, 1997, we amended our rules to establish
authority to test elimination of the request for Appeals Council
review. Given our experience over the last 21 years, we no longer
intend to test the elimination of the request for Appeals Council
review.\28\ Therefore, we propose to remove and reserve Sec. Sec.
404.966 and 416.1466.
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\28\ See 71 FR 16424, Administrative Review Process for
Adjudicating Initial Disability Claims (March 31, 2006) and 76 FR
24802, Eliminating the Decision Review Board (May 3, 2011).
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Sections 404.955 and 416.1455 state that an ALJ decision is
binding, except in certain circumstances. Missing from the list of
circumstances, however, is the Appeals Council's authority to review
the decision on its own motion, which is set forth in Sec. Sec.
404.969 and 416.1469. We propose to add this exception to the list of
circumstances in Sec. Sec. 404.955 and 416.1455.
Sections 404.973 and 416.1473 state that when the Appeals Council
decides to review a case, it shall mail a notice to all parties at
their last known addresses stating the reasons for the review and the
issues to be considered. Consistent with our longstanding practice, we
propose to clarify in Sec. Sec. 404.973 and 416.1473 that if the
Appeals Council decides to review a decision or dismissal and plans to
either issue a fully favorable decision or remand the case, the Appeals
Council may send the notice of review to all parties with the decision
or remand order.
In our Ticket to Work regulation, we changed the words,
``administrative law judge'' to read as ``judge,'' in Sec. 411.175.
This change conforms to the broader clarification, outlined in this
rulemaking, that an AAJ may provide the same adjudication as an ALJ. We
wish to make clear; the underlying substantive Ticket to Work policy is
not changing with this terminology adjustment.
Organizational Changes
We propose to update cited organizational component names since the
current listed organization components are obsolete. We propose to
replace references to the Office of Hearings and Appeals and the Office
of Disability Adjudication and Review with references to OHO, the
Office of Analytics, Review, and Oversight, or the Commissioner of
Social Security, as appropriate.
We also propose deleting language referring to workloads neither
OHO nor the Appeals Council currently handles (e.g., Medicare appeals
as described in 20 CFR 422.205 are currently heard by the Medicare
Appeals Council of the Department of Health and Human Services).
Regulatory Procedures
Clarity of These Rules
Executive Order 12866, as supplemented by Executive Order 13563,
requires each agency to write all rules in plain language. In addition
to your substantive comments on this NPRM, we invite your comments on
how to make rules easier to understand.
For example:
Would more, but shorter, sections be better?
Are the requirements in the rule clearly stated?
Have we organized the material to suit your needs?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
Does the rule contain technical language or jargon that is
not clear?
Would a different format make the rule easier to
understand, e.g. grouping and order of sections, use of headings,
paragraphing?
Executive Order 12866 as Supplemented by Executive Order 13563
We consulted with the Office of Management and Budget (OMB) and
determined that these proposed rules meet the requirements for a
significant regulatory action under Executive Order 12866 as
supplemented by Executive Order 13563. Thus, OMB reviewed these
proposed rules.
Executive Order 13771
These proposed rules are not subject to the requirements of
Executive Order 13771 because they are administrative in nature and
result in no more than de minimis costs.
Regulatory Flexibility Act
We certify that these proposed rules will not have a significant
economic impact on a substantial number of small entities because they
affect individuals only. Accordingly, a regulatory flexibility analysis
as provided in the Regulatory Flexibility Act, as amended, is not
required.
[[Page 70084]]
Paperwork Reduction Act
SSA already has existing OMB PRA-approved information collection
tools relating to this proposed rule: The Request for Review of ALJ
Decision or Dismissal (Form HA-520, OMB No. 0960-0277); the Waiver of
Your Right to Personal Appearance Before an Administrative Law Judge
(Form HA-4608, OMB No. 0960-0284); the Request to Withdraw a Hearing
Request (Form HA-85, OMB No. 0960-0710); the Acknowledgement of Receipt
of Notice of Hearing (Form HA-504, OMB No. 0960-0671); the Request to
Show Case for Failure to Appear (Form HA-L90, OMB No. 0960-0794); and
the Request for Hearing by Administrative Law Judge (Form HA-501, OMB
No. 0960-0269). Because this proposed rule, once finalized, will allow
for both Administrative Appeals Judges and Administrative Law Judges to
hold hearings and issue decisions, we will update these forms to
reflect the new language stating that ``Judges'' will review the cases,
hold hearings, and issue decisions. Currently, these forms use the
narrow, specific designation, ``Administrative Law Judges.'' Once the
rule is published in final, we will obtain OMB approval for this
revision through non-substantive change requests for these information
collections, which does not require public notice and comment under the
PRA. Thus, these final rules do not create or significantly alter any
existing information collections under the PRA.
(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006,
Supplemental Security Income
List of Subjects
20 CFR Part 402
Administrative practice and procedure, Freedom of information.
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Public assistance programs, Reporting and recordkeeping requirements,
Social security.
20 CFR Part 408
Administrative practice and procedure, Reporting and recordkeeping
requirements, Social security, Supplemental Security Income (SSI),
Veterans.
20 CFR Part 411
Administrative practice and procedure, Blind, Disability benefits,
Public assistance programs, Reporting and recordkeeping requirements,
Vocational rehabilitation.
20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
20 CFR Part 422
Administrative practice and procedure, Reporting and recordkeeping
requirements, Social security.
Andrew Saul,
Commissioner of Social Security.
For the reasons set out in the preamble, we propose to amend 20 CFR
chapter III, parts 402, 404, 408, 411, 416 and 422, as set forth below:
PART 402--AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC
0
1. The authority citation for part 402 is revised to read as follows:
Authority: Secs. 205, 702(a)(5), and 1106 of the Social
Security Act (42 U.S.C. 405, 902(a)(5), and 1306); 5 U.S.C. 552 and
552a; 8 U.S.C. 1360; 18 U.S.C. 1905; 26 U.S.C. 6103; 30 U.S.C. 923b;
31 U.S.C. 9701; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.
0
2. Revise Sec. 402.60 to read as follows:
Sec. 402.60 Materials in the hearing offices of the Office of
Hearings Operations.
(a) Materials available for inspection. The following materials are
available for inspection in the hearing offices of the Office of
Hearings Operations:
(1) Regulations of the Social Security Administration (see Sec.
402.55(a)(2)).
(2) Title 5, United States Code.
(3) Compilation of the Social Security Laws.
(4) Social Security Rulings.
(5) Social Security Handbook.
(6) Social Security Acquiescence Rulings.
(b) The Hearings, Appeals, and Litigation Law (HALLEX) manual. The
HALLEX manual is available for inspection and copying in the hearing
offices of the Office of Hearings Operations (fees may be applicable
per Sec. Sec. 402.155 through 402.185).
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950-)
Subpart A--Introduction, General Provisions and Definitions
0
3. The authority citation for subpart A of part 404 continues to read
as follows:
Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the
Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5))
and 48 U.S.C. 1801.
0
4. Amend Sec. 404.2 by revising paragraph (b) to read as follows:
Sec. 404.2 General definitions and use of terms.
* * * * *
(b) Commissioner; Appeals Council; Administrative Law Judge;
Administrative Appeals Judge defined--(1) Commissioner means the
Commissioner of Social Security.
(2) Appeals Council means the Appeals Council of the Office of
Analytics, Review, and Oversight in the Social Security Administration
or such member or members thereof as may be designated by the Chair of
the Appeals Council.
(3) Administrative Law Judge means an Administrative Law Judge in
the Office of Hearings Operations in the Social Security
Administration.
(4) Administrative Appeals Judge means an Administrative Appeals
Judge serving as a member of the Appeals Council.
* * * * *
Subpart J--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
0
5. The authority citation for subpart J of part 404 continues to read
as follows:
Authority: Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j),
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42
U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118
Stat. 509 (42 U.S.C. 902 note).
0
6. Revise Sec. 404.929 to read as follows:
Sec. 404.929 Hearing before an administrative law judge--general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 404.930, you may request a hearing. Subject to Sec.
404.956, the Commissioner, or his or her delegate, will appoint an
administrative law judge to conduct the hearing. If circumstances
warrant, the Commissioner, or his or her delegate, may assign your case
to another administrative law judge. At the hearing, you may appear in
person, by video teleconferencing, or, under certain extraordinary
circumstances, by telephone. You may submit new evidence (subject to
the provisions of Sec. 404.935), examine the evidence used in making
the determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you
[[Page 70085]]
questions. He or she will issue a decision based on the preponderance
of the evidence in the hearing record. If you waive your right to
appear at the hearing, in person, by video teleconferencing, or by
telephone, the administrative law judge will make a decision based on
the preponderance of the evidence that is in the file and, subject to
the provisions of Sec. 404.935, any new evidence that may have been
submitted for consideration.
0
7. Amend Sec. 404.955 by, revising the section heading, redesignating
paragraphs (c) through (f) as paragraphs (d) through (g), and adding
new paragraph (c) to read as follows:
Sec. 404.955 The effect of a hearing decision.
* * * * *
(c) The Appeals Council decides on its own motion to review the
decision under the procedures in Sec. 404.969;
* * * * *
0
8. Revise Sec. 404.956 to read as follows:
Sec. 404.956 Removal of a hearing request(s) to the Appeals Council.
(a) Removal. The Appeals Council may assume responsibility for a
hearing request(s) pending at the hearing level of the administrative
review process.
(b) Notice. We will mail a notice to all parties at their last
known address telling them that the Appeals Council has assumed
responsibility for the case(s).
(c) Procedures applied. If the Appeals Council assumes
responsibility for a hearing request(s), it shall conduct all
proceedings in accordance with the rules set forth in Sec. Sec.
404.929 through 404.961, as applicable.
(d) Appeals Council review. If the Appeals Council assumes
responsibility for your hearing request under this section and you or
any other party is dissatisfied with the hearing decision or with the
dismissal of a hearing request, you may request that the Appeals
Council review that action following the procedures in Sec. Sec.
404.967 through 404.982. The Appeals Council may also decide on its own
motion to review the action that was taken in your case under Sec.
404.969. The administrative appeals judge who conducted a hearing,
issued a hearing decision in your case, or dismissed your hearing
request will not participate in any action associated with your request
for Appeals Council review of that case.
(e) Ancillary provisions. For the purposes of the procedures
authorized by this section, the regulations of part 404 shall apply to
authorize a member of the Appeals Council to exercise the functions
performed by an administrative law judge under subpart J of part 404.
Sec. 404.966 [REMOVED AND RESERVED]
0
9. Section 404.966 is removed and reserved.
0
10. Amend Sec. 404.970 by revising paragraph (a) and adding paragraph
(d) to read as follows:
Sec. 404.970 Cases the Appeals Council will review.
(a) Subject to paragraph (d) of this section, the Appeals Council
will review a case at a party's request or on its own motion if--
(1) There appears to be an abuse of discretion by the
administrative law judge or administrative appeals judge who heard the
case;
(2) There is an error of law;
(3) The action, findings or conclusions in the hearing decision or
dismissal order are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the
outcome of the decision.
* * * * *
(d) The Appeals Council will not review a case based on an error or
abuse of discretion in the admission or exclusion of evidence or based
on an error, defect, or omission in any ruling or decision unless the
Appeals Council finds there is a reasonable probability that the error,
abuse of discretion, defect, or omission, either alone or when
considered with other aspects of the case, changed the outcome of the
case or the amount of benefits owed to any party.
0
11. Revise Sec. 404.973 to read as follows:
Sec. 404.973 Notice of Appeals Council review.
When the Appeals Council decides to review a case, it shall mail a
notice to all parties at their last known address stating the reasons
for the review and the issues to be considered. However, when the
Appeals Council plans to issue a decision that is fully favorable to
all parties or plans to remand the case for further proceedings, it may
send the notice of Appeals Council review to all parties with the
decision or remand order.
0
12. Amend Sec. 404.976 by, revising the section heading and paragraph
(b), and adding paragraph (c);
The revisions and addition read as follows:
Sec. 404.976 Procedures before the Appeals Council.
* * * * *
(b) Evidence the Appeals Council will exhibit. The Appeals Council
will evaluate all additional evidence it receives, but will only mark
as an exhibit and make part of the official record additional evidence
that it determines meets the requirements of Sec. 404.970(a)(5) and
(b).
(c) Oral argument. You may request to appear before the Appeals
Council to present oral argument in support of your request for review.
The Appeals Council will grant your request if it decides that your
case raises an important question of law or policy or that oral
argument would help to reach a proper decision. If your request to
appear is granted, the Appeals Council will tell you the time and place
of the oral argument at least 10 business days before the scheduled
date. The Appeals Council will determine whether your appearance, or
the appearance of any other person relevant to the proceeding, will be
in person, by video teleconferencing, or by telephone.
0
13. Revise Sec. 404.983 to read as follows:
Sec. 404.983 Case remanded by a Federal court.
(a) General rule. When a Federal court remands a case to the
Commissioner for further consideration, the Appeals Council, acting on
behalf of the Commissioner, may make a decision following the
provisions in paragraph (b) of this section, dismiss the proceedings,
except as provided in paragraph (c) of this section, or remand the case
to an administrative law judge following the provisions in paragraph
(d) of this section with instructions to take action and issue a
decision or return the case to the Appeals Council with a recommended
decision. Any issues relating to the claim(s) may be considered by the
Appeals Council or administrative law judge whether or not they were
raised in the administrative proceedings leading to the final decision
in the case.
(b) Appeals Council decision. If the Appeals Council assumes
responsibility under paragraph (a) of this section for issuing a
decision, it will follow the procedures explained in Sec. Sec. 404.973
and 404.979. If the Appeals Council assumes responsibility for issuing
a decision and a hearing is necessary to complete adjudication of the
claim(s), the Appeals Council will hold a hearing using the procedures
set forth in Sec. Sec. 404.929
[[Page 70086]]
through 404.961, except as provided in Sec. 422.210 of this chapter.
(c) Appeals Council dismissal. After a Federal court remands a case
to the Commissioner for further consideration, the Appeals Council may
dismiss the proceedings before it for any reason that an administrative
law judge may dismiss a request for hearing under Sec. 404.957. The
Appeals Council will not dismiss the proceedings in a claim where we
are otherwise required by law or a judicial order to file the
Commissioner's additional and modified findings of fact and decision
with a court.
(d) Appeals Council remand. If the Appeals Council remands a case
under paragraph (a) of this section, it will follow the procedures
explained in Sec. 404.977.
0
14. Amend Sec. 404.984 by revising paragraph (a) to read as follows:
Sec. 404.984 Appeals Council review of administrative law judge
decision in a case remanded by a Federal court.
(a) General. In accordance with Sec. 404.983, when a case is
remanded by a Federal court for further consideration and the Appeals
Council remands the case to an administrative law judge, the decision
of the administrative law judge will become the final decision of the
Commissioner after remand on your case unless the Appeals Council
assumes jurisdiction of the case. The Appeals Council may assume
jurisdiction, using the standard set forth in Sec. 404.970, based on
written exceptions to the decision of the administrative law judge
which you file with the Appeals Council or based on its authority
pursuant to paragraph (c) of this section. If the Appeals Council
assumes jurisdiction of your case, any issues relating to your claim
may be considered by the Appeals Council whether or not they were
raised in the administrative proceedings leading to the final decision
in your case or subsequently considered by the administrative law judge
in the administrative proceedings following the court's remand order.
The Appeals Council will either make a new, independent decision based
on the preponderance of the evidence in the record that will be the
final decision of the Commissioner after remand, dismiss a claim(s), or
remand the case to an administrative law judge for further proceedings,
including a new decision.
* * * * *
0
15. Amend Sec. 404.999c by revising paragraph (d)(3)(i)(C) to read as
follows:
Sec. 404.999c What travel expenses are reimbursable.
* * * * *
(d) * * *
(3) * * *
(i) * * *
(C) The designated geographic service area of the Office of
Hearings Operations hearing office having responsibility for providing
the hearing.
* * * * *
PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS
Subpart A--Introduction, General Provision and Definitions
0
17. The authority citation for subpart A of part 408 continues to read
as follows:
Authority: Secs. 702(a)(5) and 801-813 of the Social Security
Act (42 U.S.C. 902(a)(5) and 1001-1013).
0
18. Amend Sec. 408.110 by revising paragraph (b) to read as follows:
Sec. 408.110 General definitions and use of terms.
* * * * *
(b) Commissioner; Appeals Council; Administrative Law Judge
defined--(1) Commissioner means the Commissioner of Social Security.
(2) Appeals Council means the Appeals Council of the Office of
Analytics, Review, and Oversight in the Social Security Administration
or such member or members thereof as may be designated by the Chair of
the Appeals Council.
(3) Administrative Law Judge means an Administrative Law Judge in
the Office of Hearings Operations in the Social Security
Administration.
* * * * *
PART 411--THE TICKET TO WORK AND SELF-SUFFICIENCY PROGRAM
0
19. The authority citation for part 411 continues to read as follows:
Authority: Secs. 702(a)(5) and 1148 of the Social Security Act
(42 U.S.C. 902(a)(5) and 1320b-19); sec. 101(b)-(e), Public Law 106-
170, 113 Stat. 1860, 1873 (42 U.S.C. 1320b-19 note).
Subpart C--Suspension of Continuing Disability Reviews for
Beneficiaries Who Are Using a Ticket
0
20. Amend Sec. 411.175 by revising paragraph (a) to read as follows:
Sec. 411.175 What if a continuing disability review is begun before
my ticket is in use?
(a) If we begin a continuing disability review before the date on
which your ticket is in use, you may still assign the ticket and
receive services from an employment network or a State vocational
rehabilitation agency acting as an employment network under the Ticket
to Work program, or you may still receive services from a State
vocational rehabilitation agency that elects the vocational
rehabilitation cost reimbursement option. However, we will complete the
continuing disability review. If in this review we determine that you
are no longer disabled, in most cases you will no longer be eligible to
receive benefit payments. However, if your ticket was in use before we
determined that you are no longer disabled, in certain circumstances
you may continue to receive benefit payments (see Sec. Sec.
404.316(c), 404.337(c), 404.352(d), and 416.1338 of this chapter). If
you appeal the decision that you are no longer disabled, you may also
choose to have your benefits continued pending reconsideration or a
hearing before a judge on the cessation determination (see Sec. Sec.
404.1597a and 416.996 of this chapter).
* * * * *
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart A--Introduction, General Provisions and Definitions
0
21. The authority citation for subpart A of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5) and 1601-1635 of the Social Security
Act (42 U.S.C. 902(a)(5) and 1381-1383d); sec. 212, Pub. L. 93-66,
87 Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90
Stat. 268 (48 U.S.C. 1681 note).
0
22. Amend Sec. 416.120 by revising paragraph (b) to read as follows:
Sec. 416.120 General definitions and use of terms.
* * * * *
(b) Commissioner; Appeals Council; Administrative Law Judge;
Administrative Appeals Judge defined--(1) Commissioner means the
Commissioner of Social Security.
(2) Appeals Council means the Appeals Council of the Office of
Analytics, Review, and Oversight in the Social Security Administration
or such member or members thereof as may be designated by the Chair of
the Appeals Council.
(3) Administrative Law Judge means an Administrative Law Judge in
the Office of Hearings Operations in the Social Security
Administration.
(4) Administrative Appeals Judge means an Administrative Appeals
Judge
[[Page 70087]]
serving as a member of the Appeals Council.
* * * * *
Subpart N--Determinations, Administrative Review Process, and
Reopening of Determinations and Decisions
0
23. The authority citation for subpart N of part 416 continues to read
as follows:
Authority: Secs. 702(a)(5), 1631, and 1633 of the Social
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub.
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
0
24. Revise Sec. 416.1429 to read as follows:
Sec. 416.1429 Hearing before an administrative law judge--general.
If you are dissatisfied with one of the determinations or decisions
listed in Sec. 416.1430, you may request a hearing. Subject to Sec.
416.1456, the Commissioner, or his or her delegate, will appoint an
administrative law judge to conduct the hearing. If circumstances
warrant, the Commissioner, or his or her delegate, may assign your case
to another administrative law judge. At the hearing, you may appear in
person, by video teleconferencing, or, under certain extraordinary
circumstances, by telephone. You may submit new evidence (subject to
the provisions of Sec. 416.1435), examine the evidence used in making
the determination or decision under review, and present and question
witnesses. The administrative law judge who conducts the hearing may
ask you questions. He or she will issue a decision based on the
preponderance of the evidence in the hearing record. If you waive your
right to appear at the hearing, in person, by video teleconferencing,
or by telephone, the administrative law judge will make a decision
based on the preponderance of the evidence that is in the file and,
subject to the provisions of Sec. 416.1435, any new evidence that may
have been submitted for consideration.
0
25. Amend Sec. 416.1455 by, revising the section heading,
redesignating paragraphs (c) through (f) as paragraphs (d) through (g),
and adding new paragraph (c) to read as follows:
Sec. 416.1455 The effect of a hearing decision.
* * * * *
(c) The Appeals Council decides on its own motion to review the
decision under the procedures in Sec. 416.1469;
* * * * *
0
26. Revise Sec. 416.1456 to read as follows:
Sec. 416.1456 Removal of a hearing request(s) to the Appeals Council.
(a) Removal. The Appeals Council may assume responsibility for a
hearing request(s) pending at the hearing level of the administrative
review process.
(b) Notice. We will mail a notice to all parties at their last
known address telling them that the Appeals Council has assumed
responsibility for the case(s).
(c) Procedures applied. If the Appeals Council assumes
responsibility for a hearing request(s), it shall conduct all
proceedings in accordance with the rules set forth in Sec. Sec.
416.1429 through 416.1461, as applicable.
(d) Appeals Council review. If the Appeals Council assumes
responsibility for your hearing request under this section and you or
any other party is dissatisfied with the hearing decision or with the
dismissal of a hearing request, you may request that the Appeals
Council review that action following the procedures in Sec. Sec.
416.1467 through 416.1482. The Appeals Council may also decide on its
own motion to review the action that was taken in your case under Sec.
416.1469. The administrative appeals judge who conducted a hearing,
issued a hearing decision in your case, or dismissed your hearing
request will not participate in any action associated with your request
for Appeals Council review of that case.
(e) Ancillary provisions. For the purposes of the procedures
authorized by this section, the regulations of part 416 shall apply to
authorize a member of the Appeals Council to exercise the functions
performed by an administrative law judge under subpart N of part 416.
Sec. 416.1466 [REMOVED AND RESERVED]
0
27. Section 416.1466 is removed and reserved.
0
28. Amend Sec. 416.1470 by revising paragraph (a) and adding paragraph
(d) to read as follows:
Sec. 416.1470 Cases the Appeals Council will review.
(a) Subject to paragraph (d) of this section, the Appeals Council
will review a case at a party's request or on its own motion if--
(1) There appears to be an abuse of discretion by the
administrative law judge or administrative appeals judge who heard the
case;
(2) There is an error of law;
(3) The action, findings or conclusions in the hearing decision or
dismissal order are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals Council
receives additional evidence that is new, material, and relates to the
period on or before the date of the hearing decision, and there is a
reasonable probability that the additional evidence would change the
outcome of the decision.
* * * * *
(d) The Appeals Council will not review a case based on an error or
abuse of discretion in the admission or exclusion of evidence or based
on an error, defect, or omission in any ruling or decision unless the
Appeals Council finds there is a reasonable probability that the error,
abuse of discretion, defect, or omission, either alone or when
considered with other aspects of the case, changed the outcome of the
case or the amount of benefits owed to any party.
0
29. Revise Sec. 416.1473 to read as follows:
Sec. 416.1473 Notice of Appeals Council review.
When the Appeals Council decides to review a case, it shall mail a
notice to all parties at their last known address stating the reasons
for the review and the issues to be considered. However, when the
Appeals Council plans to issue a decision that is fully favorable to
all parties or plans to remand the case for further proceedings, it may
send the notice of Appeals Council review to all parties with the
decision or remand order.
0
30. Amend Sec. 416.1476 by, revising the section heading and paragraph
(b), and adding paragraph (c).
The revisions and addition read as follows:
Sec. 416.1476 Procedures before the Appeals Council.
* * * * *
(b) Evidence the Appeals Council will exhibit. The Appeals Council
will evaluate all additional evidence it receives, but will only mark
as an exhibit and make part of the official record additional evidence
that it determines meets the requirements of Sec. 416.1470(a)(5) and
(b).
(c) Oral argument. You may request to appear before the Appeals
Council to present oral argument in support of your request for review.
The Appeals Council will grant your request if it decides that your
case raises an important question of law or policy or that oral
argument would help to reach a proper decision. If your request to
appear is granted, the Appeals Council will tell you the time and place
of the oral argument at least 10 business days before the scheduled
date. The Appeals Council will
[[Page 70088]]
determine whether your appearance, or the appearance of any other
person relevant to the proceeding, will be in person, by video
teleconferencing, or by telephone.
0
31. Revise Sec. 416.1483 to read as follows:
Sec. 416.1483 Case remanded by a Federal court.
(a) General rule. When a Federal court remands a case to the
Commissioner for further consideration, the Appeals Council, acting on
behalf of the Commissioner, may make a decision following the
provisions in paragraph (b) of this section, dismiss the proceedings,
except as provided in paragraph (c) of this section, or remand the case
to an administrative law judge following the provisions in paragraph
(d) of this section with instructions to take action and issue a
decision or return the case to the Appeals Council with a recommended
decision. Any issues relating to the claim(s) may be considered by the
Appeals Council or administrative law judge whether or not they were
raised in the administrative proceedings leading to the final decision
in the case.
(b) Appeals Council decision. If the Appeals Council assumes
responsibility under paragraph (a) of this section for issuing a
decision, it will follow the procedures explained in Sec. Sec.
416.1473 and 416.1479. If the Appeals Council assumes responsibility
for issuing a decision and a hearing is necessary to complete
adjudication of the claim(s), the Appeals Council will hold a hearing
using the procedures set forth in Sec. Sec. 416.1429 through 416.1461,
except as provided in Sec. 422.210 of this chapter.
(c) Appeals Council dismissal. After a Federal court remands a case
to the Commissioner for further consideration, the Appeals Council may
dismiss the proceedings before it for any reason that an administrative
law judge may dismiss a request for hearing under Sec. 416.1457. The
Appeals Council will not dismiss the proceedings in a claim where we
are otherwise required by law or a judicial order to file the
Commissioner's additional and modified findings of fact and decision
with a court.
(d) Appeals Council remand. If the Appeals Council remands a case
under paragraph (a) of this section, it will follow the procedures
explained in Sec. 416.1477.
0
32. Amend Sec. 416.1484 by revising paragraph (a) to read as follows:
Sec. 416.1484 Appeals Council review of administrative law judge
decision in a case remanded by a Federal court.
(a) General. In accordance with Sec. 416.1483, when a case is
remanded by a Federal court for further consideration and the Appeals
Council remands the case to an administrative law judge, the decision
of the administrative law judge will become the final decision of the
Commissioner after remand on your case unless the Appeals Council
assumes jurisdiction of the case. The Appeals Council may assume
jurisdiction, using the standard set forth in Sec. 416.1470, based on
written exceptions to the decision of the administrative law judge
which you file with the Appeals Council or based on its authority
pursuant to paragraph (c) of this section. If the Appeals Council
assumes jurisdiction of your case, any issues relating to your claim
may be considered by the Appeals Council whether or not they were
raised in the administrative proceedings leading to the final decision
in your case or subsequently considered by the administrative law judge
in the administrative proceedings following the court's remand order.
The Appeals Council will either make a new, independent decision based
on the preponderance of the evidence in the record that will be the
final decision of the Commissioner after remand, dismiss a claim(s), or
remand the case to an administrative law judge for further proceedings,
including a new decision.
* * * * *
0
33. Amend Sec. 416.1498 by revising paragraph (d)(3)(i)(C) to read as
follows:
Sec. 416.1498 What travel expenses are reimbursable.
* * * * *
(d) * * *
(3) * * *
(i) * * *
(C) The designated geographic service area of the Office of
Hearings Operations hearing office having responsibility for providing
the hearing.
* * * * *
PART 422--ORGANIZATION AND PROCEDURES
0
34. Revise the heading for Subpart C to read as follows:
Subpart C--Hearings, Appeals Council Review, and Judicial Review
Procedures
0
35. The authority citation for subpart C of part 422 continues to read
as follows:
Authority: Secs. 205, 221, and 702(a)(5) of the Social Security
Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).
0
36. Amend Sec. 422.201 by revising the introductory text to read as
follows
Sec. 422.201 Material included in this subpart.
This subpart describes in general the procedures relating to
hearings, review by the Appeals Council of the hearing decision or
dismissal, and court review in cases decided under the procedures in
parts 404, 408, 410, and 416 of this chapter. It also describes the
procedures for requesting a hearing or Appeals Council review, and for
instituting a civil action for court review of cases decided under
these parts. For detailed provisions relating to hearings, review by
the Appeals Council, and court review, see the following references as
appropriate to the matter involved:
* * * * *
0
37. Amend Sec. 422.203 by revising paragraphs (b) and (c) to read as
follows:
Sec. 422.203 Hearings.
* * * * *
(b) Request for hearing. (1) A request for a hearing under
paragraph (a) of this section may be made using the form(s) we
designate for this purpose, or by any other writing requesting a
hearing. The request shall be filed either electronically in the manner
we prescribe or at an office of the Social Security Administration,
usually a district office or a branch office, or at the Veterans'
Administration Regional Office in the Philippines (except in title XVI
cases), or at a hearing office of the Office of Hearings Operations, or
with the Appeals Council. A qualified railroad retirement beneficiary
may choose to file a request for a hearing under part A of title XVIII
with the Railroad Retirement Board.
(2) Unless an extension of time has been granted for good cause
shown, a request for hearing must be filed within 60 days after the
receipt of the notice of the reconsidered or revised determination, or
after an initial determination described in 42 CFR 498.3(b) and (c)
(see Sec. Sec. 404.933, 410.631, and 416.1433 of this chapter and 42
CFR 405.722, 498.40, and 417.260.)
(c) Hearing decision or other action. Generally, the administrative
law judge, or an administrative appeals judge under Sec. 404.956 or
416.1456 of this chapter, will either decide the case after hearing
(unless hearing is waived) or, if appropriate, dismiss the request for
hearing. With respect to a hearing on a determination under paragraph
(a)(1) of this section, the administrative law judge may certify the
case with a
[[Page 70089]]
recommended decision to the Appeals Council for decision. The
administrative law judge, or an attorney advisor under Sec. 404.942 or
416.1442 of this chapter, or an administrative appeals judge under
Sec. 404.956 or 416.1456 of this chapter, must base the hearing
decision on the preponderance of the evidence offered at the hearing or
otherwise included in the record.
0
38. Revise Sec. 422.205 to read as follows:
Sec. 422.205 Proceedings before the Appeals Council.
(a) Appeals Council hearing decisions. Appeals Council decisions
and dismissals issued on hearing requests removed under Sec. Sec.
404.956 and 416.1456 of this chapter and decisions and dismissals
described in Sec. Sec. 422.203(c) require one Appeals Council member
signature. Requests for review of hearing decisions issued by the
Appeals Council may be filed pursuant to Sec. Sec. 404.968 and
416.1468 of this chapter and paragraph (b) of this section.
(b) Appeals Council review. Any party to a hearing decision or
dismissal may request a review of such action by the Appeals Council.
This request may be made on Form HA-520, Request for Review of Hearing
Decision/Order, or by any other writing specifically requesting review.
Form HA-520 may be obtained from any Social Security district office or
branch office, or at any other office where a request for a hearing may
be filed. (For time and place of filing, see Sec. Sec. 404.968 and
416.1468 of this chapter.)
(c) Review of a hearing decision, dismissal, or denial. The denial
of a request for review of a hearing decision concerning a
determination under Sec. 422.203(a)(1) shall be by such appeals
officer or appeals officers or by such member or members of the Appeals
Council as may be designated in the manner prescribed by the Chair or
Deputy Chair. The denial of a request for review of a hearing
dismissal, the dismissal of a request for review, the denial of a
request for review of a hearing decision whenever such hearing decision
after such denial would not be subject to judicial review as explained
in Sec. 422.210(a), or the refusal of a request to reopen a hearing or
Appeals Council decision concerning a determination under Sec.
422.203(a)(1) shall be by such member or members of the Appeals Council
as may be designated in the manner prescribed by the Chair or Deputy
Chair.
(d) Appeals Council review panel. Whenever the Appeals Council
reviews a hearing decision under Sec. Sec. 404.967, 404.969, 416.1467,
or 416.1469 of this chapter and the claimant does not appear personally
or through representation before the Appeals Council to present oral
argument, such review will be conducted by a panel of not less than two
members of the Appeals Council designated in the manner prescribed by
the Chair or Deputy Chair of the Appeals Council. In the event of
disagreement between a panel composed of only two members, the Chair or
Deputy Chair, or his or her delegate, who must be a member of the
Appeals Council, shall participate as a third member of the panel. When
the claimant appears in person or through representation before the
Appeals Council in the location designated by the Appeals Council, the
review will be conducted by a panel of not less than three members of
the Appeals Council designated in the manner prescribed by the Chair or
Deputy Chair. Concurrence of a majority of a panel shall constitute the
decision of the Appeals Council unless the case is considered as
provided under paragraph (e) of this section.
(e) Appeals Council meetings. On call of the Chair, the Appeals
Council may meet en banc or a representative body of Appeals Council
members may be convened to consider any case arising under paragraph
(c) or (d) of this section. Such representative body shall be comprised
of a panel of not less than five members designated by the Chair as
deemed appropriate for the matter to be considered. The Chair or Deputy
Chair shall preside, or in his or her absence, the Chair shall
designate a member of the Appeals Council to preside. A majority vote
of the designated panel, or of the members present and voting, shall
constitute the decision of the Appeals Council.
(f) Temporary assignments of ALJs. The Chair may designate an
administrative law judge to serve as a member of the Appeals Council
for temporary assignments. An administrative law judge shall not be
designated to serve as a member on any panel where such panel is
conducting review on a case in which such individual has been
previously involved.
0
39. Amend Sec. 422.210 by revising paragraph (a) and adding paragraph
(e) to read as follows:
Sec. 422.210 Judicial review.
(a) General. A claimant may obtain judicial review of a decision by
an administrative law judge or administrative appeals judge if the
Appeals Council has denied the claimant's request for review, or of a
decision by the Appeals Council when that is the final decision of the
Commissioner. A claimant may also obtain judicial review of a
reconsidered determination, or of a decision of an administrative law
judge or an administrative appeals judge, where, under the expedited
appeals procedure, further administrative review is waived by agreement
under Sec. 404.926 or 416.1426 of this chapter or as appropriate.
There are no amount-in-controversy limitations on these rights of
appeal.
* * * * *
(e) Appeals Council review panel after Federal court remand. When
the Appeals Council holds a hearing under Sec. 404.983 or 416.1483 of
this chapter, such hearing will be conducted and a decision will be
issued by a panel of not less than two members of the Appeals Council
designated in the manner prescribed by the Chair or Deputy Chair of the
Appeals Council. When the Appeals Council issues a decision under
Sec. Sec. 404.983 and 416.1483 of this chapter without holding a
hearing, a decision will be issued by a panel of not less than two
members of the Council designated in the same manner prescribed by the
Chair or Deputy Chair of the Council. In the event of disagreement
between a panel composed of only two members, the Chair or Deputy
Chair, or his or her delegate, who must be a member of the Council,
shall participate as a third member of the panel.
[FR Doc. 2019-27019 Filed 12-19-19; 8:45 am]
BILLING CODE 4191-02-P
