80 FR 63717 - Returning Evidence at the Appeals Council Level

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 80, Issue 203 (October 21, 2015)

We propose to amend our regulations by revising our rules regarding the return of evidence at the Appeals Council (AC) level. Our current rules state that the AC will return to the claimant additional evidence it receives when the AC finds the evidence does not relate to the period on or before the date of the administrative law judge's (ALJ) hearing decision. We are proposing these revisions to give the AC discretion in returning additional evidence that it receives when the AC determines the additional evidence does not relate to the period on or before the date of the ALJ decision.

[Federal Register Volume 80, Number 203 (Wednesday, October 21, 2015)]
[Proposed Rules]
[Pages 63717-63719]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-26747]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2013-0061]
RIN 0960-AH64


Returning Evidence at the Appeals Council Level

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to amend our regulations by revising our rules 
regarding the return of evidence at the Appeals Council (AC) level. Our 
current rules state that the AC will return to the claimant additional 
evidence it receives when the AC finds the evidence does not relate to 
the period on or before the

[[Page 63718]]

date of the administrative law judge's (ALJ) hearing decision. We are 
proposing these revisions to give the AC discretion in returning 
additional evidence that it receives when the AC determines the 
additional evidence does not relate to the period on or before the date 
of the ALJ decision.

DATES: To ensure that we consider your comments, we must receive them 
by no later than November 20, 2015.

ADDRESSES: 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-2013-0061 so 
that we may associate your comments with the correct regulation.
    Caution: You should be careful to include in your comments only 
information 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 this method for submitting your 
comments. Visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Web page's Search function to find docket 
number SSA-2013-0061. Once you submit your comment, the system will 
issue you a tracking number to confirm your submission. You will not be 
able to view your comment immediately because we post each comment 
manually. It may take up to a week for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Address 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 
below.

FOR FURTHER INFORMATION CONTACT: Maren Weight, 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

    The AC will consider new and material evidence submitted with a 
request for review when the evidence relates to the period on or before 
the date of the ALJ hearing decision.\1\ When the AC does not find that 
the additional evidence relates to the period on or before the date of 
the ALJ hearing decision, our current rules state that the AC will 
return the additional evidence to the claimant.\2\
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    \1\ 20 CFR 404.970(b) and 416.1470(b).
    \2\ 20 CFR 404.976(b) and 416.1476(b).
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    When we published it in 1987 (52 FR 4004, February 9, 1987), the 
rule requiring the AC to return the additional evidence to the claimant 
made sense because cases pending at the AC level involved paper 
claim(s) files. Returning evidence provided a public service because 
claimants often submitted original documentation to the AC. Our primary 
purpose in returning the original documentation was to allow the 
claimant to use the information if he or she filed a new application. 
Because the AC worked with paper claim(s) files, it was more 
administratively efficient and cost effective to return the evidence by 
mail directly to the claimant.
    We now use many electronic services that make the practice of 
returning evidence unnecessary. For example, we now scan most of the 
medical evidence into the electronic claim(s) file or appointed 
representatives submit it through our Electronic Records Express 
system. This technology immediately uploads records into a claimant's 
electronic folder, making the records available for review in real 
time. It is neither administratively efficient nor cost effective for 
us to print out documents that have been submitted to us electronically 
by a claimant or appointed representative in order to return them to 
the claimant. Additionally, in the electronic folder, we are able to 
identify and retain the additional information in a part of the 
claim(s) file that is not part of the record associated with the 
current application. This means that all of the evidence submitted on a 
prior application is immediately available for review if the claimant 
files a subsequent application.
    Most claimants have representation at and above the hearing level. 
In approximately 85% of the claims pending with an appointed 
representative at the hearing level, the representatives have online 
access to the electronic folder. This means that most representatives 
can determine in real time whether we received and associated evidence 
with the claim(s) file. It is impractical and unnecessary to return 
evidence in these claims because the appointed representative has 
immediate access to the additional evidence while the claim is pending 
before the AC.
    The administrative burden of processing and returning evidence also 
has increased significantly over the last few years. As the number of 
appeals filed with the AC continues to increase, we have experienced a 
corresponding increase in the number of claims that involve the 
submission of additional evidence. Each year, the AC receives 
additional evidence submissions in approximately one-third of its 
pending cases, most of which are multi-page submissions.
    In addition to the increased costs associated with printing a 
significant amount of electronically submitted documents, there are 
many other administrative and processing time costs to returning 
evidence. When the AC returns evidence, employees must separate the 
evidence returned from the other evidence in the electronic claim(s) 
file, remove the notice of action from the automated printing and 
mailing process, and manually print, package, and mail the evidence to 
the claimant. This process is time-consuming, uses our scarce 
administrative resources with little benefit either to the public or to 
us, requires action by multiple employees, and delays release of the AC 
action document. This delay is burdensome and unnecessary in most 
instances because the claimant already has copies of or access to the 
information.
    We recognize that there may be some instances in which it would 
remain appropriate for the AC to return evidence to the claimant, such 
as when the submitted evidence is an original or a certified copy of a 
marriage or birth certificate. In evaluating whether returning the 
evidence is necessary, the AC considers who submitted the information 
and by what means, whether the claimant is represented, and whether the 
claimant otherwise has access to the information. Our sub-regulatory 
instructions will incorporate procedures that explain when the AC will 
return evidence. We are not changing how the AC considers additional 
evidence or when the AC will give protective filing based on the 
receipt of additional evidence.
    Given the change in our operating environment since we first 
published these rules in 1987, both in terms of our administrative 
resources and the electronic availability of evidence, we believe it is 
no longer administratively efficient or cost effective to return 
additional evidence when the AC

[[Page 63719]]

determines it does not relate to the period on or before the date of 
the ALJ decision. We expect these proposed changes will benefit the 
public by reducing the time it takes to release an AC action document.

Clarity of This Notice of Proposed Rulemaking

    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 these proposed rules, we invite your 
comments on how to make them easier to understand.
    For example:
     Would more, but shorter, sections be better?
     Are the requirements in the proposed rules 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 rules easier to 
understand?
     Do the proposed rules contain technical language or jargon 
that is not clear?
     Would a different format make the proposed rules easier to 
understand, e.g. grouping and order of sections, use of headings, 
paragraphing?

Regulatory Procedures

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 do not meet the criteria for a 
significant regulatory action under Executive Order 12866, as 
supplemented by Executive Order 13563. Thus, OMB did not review these 
proposed rules.

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. Therefore, the Regulatory Flexibility Act, as 
amended, does not require us to prepare a regulatory flexibility 
analysis.

Paperwork Reduction Act

    These proposed rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(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 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-age, survivors, and disability insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

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

    Dated: September 14, 2015.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons stated in the preamble, we propose to amend 20 CFR 
chapter III parts 404 and 416 as set forth below:

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

Subpart J--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
1. 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
2. In Sec.  404.976, revise paragraph (b)(1) to read as follows:


Sec.  404.976  Procedures before Appeals Council on review.

* * * * *
    (b) * * * (1) The Appeals Council will consider all the evidence in 
the administrative law judge hearing record as well as any new and 
material evidence submitted to it that relates to the period on or 
before the date of the administrative law judge hearing decision. If 
you submit evidence that does not relate to the period on or before the 
date of the administrative law judge hearing decision, the Appeals 
Council will explain why it did not accept the additional evidence and 
will advise you of your right to file a new application. The notice 
will also advise you that if you file a new application within 6 months 
after the date of the Appeals Council's notice, your request for review 
will constitute a written statement indicating an intent to claim 
benefits in accordance with Sec.  404.630. If you file a new 
application within 6 months of the date of this notice, we will use the 
date of the request for review as the filing date for your application.
* * * * *

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

Subpart N--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
3. 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
4. In Sec.  416.1476, revise paragraph (b)(1) to read as follows:


Sec.  416.1476  Procedures before Appeals Council on review.

* * * * *
    (b) * * * (1) In reviewing decisions based on an application for 
benefits, the Appeals Council will consider the evidence in the 
administrative law judge hearing record as well as any new and material 
evidence submitted to it that relates to the period on or before the 
date of the administrative law judge hearing decision. If you submit 
evidence that does not relate to the period on or before the date of 
the administrative law judge hearing decision, the Appeals Council will 
explain why it did not accept the additional evidence and will advise 
you of your right to file a new application. The notice will also 
advise you that if you file a new application within 60 days after the 
date of the Appeals Council's notice, your request for review will 
constitute a written statement indicating an intent to claim benefits 
in accordance with Sec.  416.340. If you file a new application within 
60 days of the date of this notice, we will use the date of the request 
for review as the filing date for your application.
* * * * *
[FR Doc. 2015-26747 Filed 10-20-15; 8:45 am]
 BILLING CODE 4191-02-P