81 FR 45079 - Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 81, Issue 133 (July 12, 2016)

Page Range		45079-45087
FR Document		2016-16265

We propose to revise our rules so that more of our procedures at the administrative law judge (ALJ) and Appeals Council levels of our administrative review process are consistent nationwide. We anticipate that these nationally consistent procedures will enable us to administer our disability programs more efficiently and better serve the public.

Federal Register, Volume 81 Issue 133 (Tuesday, July 12, 2016)

[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Proposed Rules]
[Pages 45079-45087]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2016-16265]

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405 and 416

[Docket No. SSA-2014-0052]
RIN 0960-AH71

Ensuring Program Uniformity at the Hearing and Appeals Council
Levels of the Administrative Review Process

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to revise our rules so that more of our procedures
at the administrative law judge (ALJ) and Appeals Council levels of our
administrative review process are consistent nationwide. We anticipate
that these nationally consistent procedures will enable us to
administer our disability programs more efficiently and better serve
the public.

DATES: To ensure that your comments are considered, we must receive
them no later than August 11, 2016.

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-2014-0052 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-2014-0052. 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 comment 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
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: We propose revisions to:
(1) The time-frame for notifying claimants of a hearing date;
(2) the information in our hearing notices;
(3) the period when we require claimants to inform us about or
submit written evidence, written statements, objections to the issues,
and subpoena requests;
(4) what constitutes the official record; and
(5) the manner in which the Appeals Council considers additional
evidence.

Background

Over the last few years, we have revised many of our regulations to
bolster program integrity and clarify our policy, procedures, and
expectations. For example, on June 25, 2014, we made changes to when a
claimant must object to appearing at a hearing by video
teleconferencing.\1\ As another example, we published a final rule on
March 20, 2015, that clarified a claimant's duty to inform us about or
submit all evidence that relates to whether or not he or she is blind
or disabled, subject to two exceptions for privileged
communications.\2\ We made these and other changes specifically to
strengthen the integrity of our programs.
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\1\ 79 FR 35926.
\2\ See 80 FR 14828, 20 CFR 404.1512, 416.912.
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As we explained in the final rule on March 20, 2015, ``we believe
program integrity requires us to obtain complete medical evidence
(favorable or unfavorable) in disability claims.'' \3\ Although that
statement refers to medical evidence, we reiterate in this proposed
rule that a complete evidentiary record is necessary for us to make an
informed and accurate disability determination or decision, and
bolsters program integrity by improving consistency in the adjudication
of claims at all levels of the administrative review process. As we
look ahead, we continue to evaluate our regulatory and sub-regulatory
policies to assess where we can make changes to improve accuracy and
efficiency in our administrative review processes. To that end, we are
now proposing the changes outlined below.
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\3\ 80 FR at 14833.
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As we discuss in detail below, we have now had time to implement
helpful systems changes and review a study performed by the
Administrative Conference of the United States (ACUS), in which ACUS
evaluated available data and considered various internal and external
stakeholder opinions about the impact of our Part 405 rules.\4\ We are

[[Page 45080]]

also facing an unprecedented challenge in the workloads pending at our
Office of Disability Adjudication and Review (ODAR). With more than a
million people currently waiting for a hearing decision, we cannot
afford to continue postponing hearing proceedings because the record is
not complete at the time of the hearing. Facing this unprecedented
workload challenge requires that we consider all options to ensure we
have a complete evidentiary record, provide timely and accurate
service, and improve how we perform all administrative tasks. We expect
these proposed changes will help us accomplish all three objectives.
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\4\ See Report from Office of the Chairman of the Administrative
Conference of the United States, SSA Disability Benefits
Adjudication Process: Assessing the Impact of the Region 1 Pilot
Program (Dec. 23, 2013) (``ACUS Report''), available at http://acus.gov/sites/default/files/documents/Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf. For the specific data reviewed and opinions collected
by ACUS, see Appendix to SSA Disability Benefits Adjudication
Process: Assessing the Impact of the Region I Pilot Program (Dec.
23, 2013) (``ACUS Report Appendix''), available at https://www.acus.gov/sites/default/files/documents/Appendix%20to%20Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf.
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More specifically, in the last decade, we have made significant
progress in modernizing our business processes for hearings-level cases
and enhancing our use of technology. For example, we now process most
disability claims electronically, which allows us to transfer workloads
around the country more easily. In addition, we have established five
National Hearing Centers (NHC) that process only electronic cases and
conduct all hearings via video teleconferencing. The NHCs assist
hearing offices that have larger workloads and longer wait times for
hearings. Our ability to transfer cases electronically out of a region
to an NHC, or to another hearing office with a smaller workload, allows
us to serve claimants more efficiently.
As we have increased our use of electronic case files, we also had
an opportunity to re-evaluate how we receive and process evidence.
Previously, claimants and representatives would mail, fax, or hand-
deliver evidence to us, and we would enter the evidence into the case
file manually. While these options remain available, improvements in
technology now permit claimants and representatives to submit evidence
through our Electronic Records Express (ERE) system, which uploads
evidence directly into the claimant's electronic case file. Many
representatives have also registered to use the Appointed
Representative Suite of Services (ARS), which allows them to remotely
view the claimant's electronic case file online and verify in real time
that we received evidence. Representatives who access the case file
through ARS can also view all of the other evidence in the file to
verify that the record is complete.\5\
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\5\ Effective August 16, 2016, representatives who request
direct payment of a fee in a case are generally required to access a
case file through ARS. See 81 FR 22697 (2016).
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We are also improving how we receive electronic evidence from
medical providers. Our Health Information Technology (HIT) program
allows us to request and receive a claimant's medical records through
an electronic submission. Although we currently use HIT in only a small
number of cases, we anticipate that we will expand the HIT program and
make use of other technological advances that will make it easier and
faster for us to obtain medical records. We expect these enhancements
in how we receive evidence will improve our efficiency and ensure
consistency in processing claims at the hearings and Appeals Council
levels of our administrative review process.
Our progress in the areas discussed above can be undermined if our
rules are not nationally consistent. At the beginning of 2006, the
hearings and Appeals Council levels of our administrative review
process generally operated under nationally consistent rules, set forth
in 20 CFR parts 404 and 416. However, on March 31, 2006, we published a
final rule that implemented a number of changes to our disability
determination process.\6\ These changes, which we referred to
collectively as the Disability Service Improvement (DSI) process, were
primarily set forth in Part 405 of our regulations. As we explained in
the preamble to our final rule, we selected Boston \7\ as the first
region to implement the DSI process. Over the last decade, we have
revised or rescinded many portions of the Part 405 regulations.\8\
However, certain aspects of DSI processing remain at the hearings and
Appeals Council levels.
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\6\ See 71 FR 16424.
\7\ The Boston region consists of the States of Connecticut,
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.
\8\ See 73 FR 2411, corrected at 73 FR 10381, and 76 FR 24802.
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For example, our current Part 405 rules require us to provide
claimants with notice of their hearings at least 75 days in advance of
the hearing.\9\ By contrast, our current Part 404 and Part 416 rules
require us to provide claimants with notice of their hearings at least
20 days in advance of the hearing.\10\ In addition, under Part 405,
claimants are required to submit any written evidence no later than 5
business days before the date of the scheduled hearing, with a few
exceptions.\11\ Conversely, under Parts 404 and 416, claimants can
submit evidence up to and on the date of the hearing, or even after a
hearing.\12\ Additionally, Part 405 contains other processing
differences, including the time limit of at least 10 days prior to the
hearing to submit subpoena requests versus Parts 404 and 416, which
contains a time limit of 5 days prior to the hearing to submit subpoena
requests. Lastly, Part 405 requires the submission of objections to the
issues at the hearing 5 days prior to the hearing versus Parts 404 and
416, which requires the submission of objections at the earliest
possible opportunity.\13\
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\9\ 20 CFR 405.315(a).
\10\ 20 CFR 404.938(a), 416.1438(a)
\11\ 20 CFR 405.331(a).
\12\ Our regulations provide that ``[y]ou should submit
information or evidence . . . or any summary of the evidence to the
administrative law judge with the request for hearing or within 10
days after filing the request, if possible.'' 20 CFR 404.935,
416.1335. However, as noted in our subregulatory instructions, we
accept additional evidence that a claimant submits at or after a
hearing, until we issue a hearing decision. See, e.g., Hearings,
Appeals, and Litigation Law manual (HALLEX) I-2-6-58 (available at
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-58.html) and I-2-7-20
(available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-7-20.html). The circumstances in which the Appeals Council will
consider additional evidence are set forth in 20 CFR 404.976(b) and
416.1476(b).
\13\ Cf. 20 CFR 404.950(d)(2), 416.1450(d)(2) with 20 CFR
405.332 (subpoenas); 20 CFR 404.939, 416.1439 with 20 CFR 405.317(c)
(objections to the issues).
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There is also a difference in claims processing at the Appeals
Council level due to the Part 405 rules, especially those that address
when the Appeals Council considers additional evidence. Under Parts 404
and 416, the Appeals Council will consider new and material evidence
only when it relates to the period on or before the date of the ALJ
hearing decision. The Appeals Council will evaluate the entire record,
including any new and material evidence that relates to the period on
or before the date of the ALJ hearing decision. It will then review the
case if it finds that the ALJ's action, findings, or conclusion is
contrary to the weight of the evidence currently of record.\14\
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\14\ 20 CFR 404.970(b), 416.1470(b).
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However, under Part 405, the Appeals Council will consider
additional evidence only where it relates to the period on or before
the date of the ALJ hearing decision, and only if the claimant shows
that there is a reasonable probability that the evidence, alone or when
considered with other evidence of record, would change the outcome of
the decision; and: (1) Our action misled the claimant; (2) he or she
had a physical, mental, educational, or linguistic limitation(s) that
prevented him or her from submitting the evidence

[[Page 45081]]

earlier; or (3) some other unusual, unexpected, or unavoidable
circumstance beyond his or her control prevented him or her from
submitting the evidence earlier.\15\
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\15\ 20 CFR 405.401(c).
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We have always intended to implement nationally consistent rules
after we had sufficient time to evaluate the effectiveness of DSI
processing. To assist us in evaluating these issues, we asked ACUS to
review the impact of our Part 405 regulations at the hearings and
Appeals Council levels. Ultimately, in its final report, ACUS deferred
to us regarding whether to implement the Part 405 regulations
nationwide.\16\ However, ACUS suggested a variety of guiding principles
and other observations for us to consider in making a decision
regarding national uniformity. For example, ACUS suggested that we: (1)
Strive to attain an appropriate balance between claimant and agency
interests as we pursue our goal of making the right disability decision
as early in the process as possible; (2) strive for consistency in the
administration of a national program; (3) collect and assess more data
about the DSI program; and (4) if pursued, clarify the guidance to ALJs
and claimants about application of the DSI program. ACUS also observed
that if we pursued regulatory changes similar to DSI, it would be
important to retain appropriate good cause exceptions for the late
submission of evidence.
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\16\ See ACUS Report at 91.
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After considering ACUS's suggestions, we first provided additional
training to ODAR adjudicators and staff regarding the application of
our Part 405 rules. We also incorporated instructions for processing
cases originating in the Boston region into our training materials for
all staff, including addressing Part 405 issues in several of our
quarterly Videos-On-Demand series that focus on new or problematic
areas of adjudication. We continue to update sub-regulatory policy to
include references and instructions on how to process cases under Part
405. As recommended by ACUS, we made these changes to promote
consistent adjudication of Part 405 in the Boston region.
We then carefully considered ACUS's findings on how we receive
evidence under Part 405. In its report, ACUS explained that it
performed a comparative empirical analysis of data that we
provided,\17\ and its findings, while not definitive, appeared to show
that the Part 405 rules made modest strides towards achieving our goal
of improving the efficiency, accuracy, and timeliness of our disability
adjudication process. While declining to draw definitive conclusions
from its data analysis, ACUS highlighted several findings, including
the following: (1) Under Part 405, there was less likelihood that
adjudicators would determine the record needed additional evidence and
request a consultative examination; (2) there were lower average
processing times in the Boston region than other comparable regions,
and the Boston region's average processing times did not exhibit the
same comparative decline in average processing times found in other
regions; and (3) the Boston region had the lowest pending disposition
ratio, which suggests enhanced case efficiencies.
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\17\ For specific information about the data reviewed by ACUS,
see ACUS Report Appendix.
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We note that several of ACUS's findings, based on the available
data through 2012, are consistent with our experience. For example,
ACUS stated that the ``average time intervals between issuance of
hearing notices and hearings have been rising steadily at both regional
and national levels in recent years.'' \18\ While Parts 404 and 416
require that we provide notice to a claimant of a scheduled hearing at
least 20 days before the hearing,\19\ and Part 405 requires that we
provide notice to a claimant of a scheduled hearing at least 75 days
before the hearing,\20\ it has been our experience that for several
years nationwide, most claimants received more advance notice of a
hearing than the regulations require. Specifically, the Boston region
appears to be scheduling hearings and notifying claimants approximately
90 days before the hearing while other regions are providing notice
more than 60 days before the hearing.\21\ Additionally, we have also
observed that, nationally, cases in which we sent notices approximately
60 days prior to the date of the hearing seem to have a reduced or the
same likelihood of a postponed hearing as those scheduled with less
notice of the hearing.\22\ In addition to our experience, we also
considered ACUS's finding that there was strong support from
stakeholders, both inside and outside of the agency, for increasing the
amount of advance notice a claimant receives before a hearing.
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\18\ See ACUS Report at 30.
\19\ 20 CFR 404.938(a), 416.1438(a).
\20\ 20 CFR 405.316(a).
\21\ At the hearing level, we use the Case Processing and
Management System (CPMS) to manage our workloads. From the
information available in CPMS, we reviewed the number days between
the date of the notice of hearing and the date of a scheduled
hearing to assess whether these trends appear to continue. In the
Boston region, CPMS shows the mean number of days between these
dates to be 79.7 (2013), 88.5 (2014), and 90.3 (2015). The median
number of days was 82.0 (2013), 89.0 (2014), and 90.0 (2015).
Nationwide, CPMS shows the mean number of days was 64.3 (2013), 64.8
(2014), and 69.9 (2015). The median number of days was 60.0 (2013),
62.0 (2014), and 68.0 (2015). Though not yet complete, the numbers
in 2016 appear to be consistent with these trends.
\22\ After reviewing the information available in CPMS, we
observed the following: In 2013, we postponed 26.1% of cases
scheduled 25-49 days in advance, 26.4% of cases scheduled 50-74 days
in advance, and 29.2% of cases scheduled 75-99 days in advance. In
2014, we postponed 28.3% of cases scheduled 25-49 days in advance,
27.3% of cases scheduled 50-74 days in advance, and 29.3% of cases
scheduled 75-99 days in advance. In 2015, we postponed 28.1% of
cases scheduled 25-49 days in advance, 26.8% of cases scheduled 50-
74 days in advance, and 28.0% of cases scheduled 75-99 days in
advance. We also note that our analysis showed that cases scheduled
less than 25 days in advance had the highest rate of postponement.
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We considered proposing to adopt a 75-day advance notice
requirement nationwide. However, the information available to us
indicates that there may be a higher incidence of postponements when we
give claimants 75 days or more advance notice of a hearing due to the
unavailability of the appointed representative or adjudicator on the
date of the scheduled hearing.\23\ In contrast, we have observed that
most hearing offices already schedule hearings 60 days in advance, and
a 60-day advance notice period appears to have the same or a reduced
incidence of postponements when compared to notice periods less than 60
days.\24\ Therefore, based on the available data, we propose a 60-day
notice requirement as the most administratively efficient. Further,
because we are already scheduling most hearings nationwide at least 60
days in advance, we do not expect that adopting this requirement would
have an adverse impact on the public or on our operations. As noted by
ACUS, the public seems to support increasing the number of days for
advance notice of a hearing because, among other reasons, it will
provide more time to obtain updated medical records before the date of
the hearing. Therefore, we propose to require that, nationwide, we
notify claimants of a

[[Page 45082]]

scheduled hearing at least 60 days prior to the date of the hearing.
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\23\ After reviewing the information available in CPMS for 2014-
2016, we observed the following: In 2014 in the Boston region,
hearings with at least one postponement were postponed 5.36% of the
time due to a representative's unavailability and 8.07% of the time
due to the unavailability of the decision maker. Nationally, the
postponement rate for a representative's unavailability was 4.17%
and a decision maker's unavailability was 5.91%. In 2015, the
postponement rate in Boston for a representative's unavailability
was 6.00% and a decision maker's unavailability was 8.02%.
Nationally, the postponement rate for a representative's
unavailability was 3.92% and a decision maker's unavailability was
6.76%. These trends appear to continue in 2016.
\24\ See information in footnote 22.
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The highlights of ACUS's empirical analysis and our own experience
also support adopting nationwide rules similar to the existing Part 405
rules that govern how we receive evidence in the Boston region. For
example, our experience is that under Parts 404 and 416, some hearings
are postponed or require supplemental proceedings due to late
submission of evidence. We anticipate that our final rule on the
``Submission of Evidence in Disability Claims,'' \25\ discussed
earlier, will decrease the number of Appeals Council remands based on
additional evidence. However, our experience has shown, and we expect
to continue to see, that the Appeals Council will need to remand some
cases due to new evidence. The need to postpone and reschedule cases,
along with Appeals Council remands based on new evidence that was
available at the time of the hearing decision, costs us valuable
resources and delays the adjudication of all claims at the hearings and
Appeals Council levels.
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\25\ 80 FR 14828.
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In its report, ACUS also identified several concerns raised by
stakeholders both inside and outside the agency with implementing Part
405 nationwide. For example, ACUS explained that both ALJs and
claimants' representative groups agree that two of the most challenging
obstacles to timely submission of evidence are: (1) Delays in receipt
of evidence from medical providers, and (2) delays in receipt of
evidence from the claimant. As previously discussed, we propose
changing our rules so that we provide claimants with additional time to
inform us about or to obtain and submit written evidence. In doing so,
we will also change our notices to ensure claimants are advised of the
additional time. To address concerns about delays in receiving evidence
from medical providers, we propose to retain the current good cause
exceptions used in Part 405. We also propose to add examples, including
that we will accept evidence submitted less than 5 business days prior
to the hearing if a claimant shows that he or she actively and
diligently sought to obtain the evidence promptly, but could not do so.
Based in part on ACUS's evaluation of the good cause exceptions to
the Part 405 rule that requires claimants to submit evidence at least 5
business days before a hearing, we propose to clarify when other
unusual, unexpected, or unavoidable circumstances beyond the claimant's
control prevent earlier identification of or submission of evidence. To
accomplish this, we have added examples to illustrate when a claimant
meets a good cause exception, such as when a claimant is seriously ill
or when evidence is not received until less than 5 business days before
the hearing, despite the claimant's active and diligent efforts to
obtain the evidence earlier. These examples are not intended to be
exhaustive or to illustrate every possible situation, but to illustrate
the sorts of situations most likely to arise.
In addition to adding examples regarding the good cause
requirements, we also explain that, when reviewing claims that are not
based on an application for benefits, the requirement to submit
evidence at least 5 business days before a hearing does not apply if
our other regulations permit the submission of evidence after the date
of an ALJ decision. For example, under current section 416.1476(b)(2)
(proposed section 416.1470(b)), in reviewing decisions other than those
based on an application for benefits, the Appeals Council will consider
evidence in the hearing record and any additional evidence it believes
is material to an issue being considered. Supplemental Security Income
(SSI) cases under title XVI of the Act that are not based on an
application for benefits are excepted from the general rules that limit
the Appeals Council's consideration of additional evidence based on the
individual's right to reestablish his or her eligibility for title XVI
payments during the course of an appeal without filing a new
application.\26\ Therefore, we added an exception to address this and
similar situations where other regulations may permit the submission of
evidence in claims that are not based on an application for benefits.
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\26\ See 20 CFR 416.305(b)(5) (providing that an individual need
not file a new SSI application if he or she is notified that his or
her payments will be stopped because he or she is no longer eligible
and he or she again meets the requirements for eligibility before
his or her appeal rights are exhausted).
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To ensure national consistency in our policy and procedures, we
also propose requiring claimants to file written statements about the
case, or any objections to the issues, at least 5 business days prior
to a scheduled hearing. We further propose to require a claimant to
submit subpoena requests at least 10 business days prior to a scheduled
hearing. For consistency with these proposed changes, we also propose
changes to our regulations to explain what constitutes the official
record.
Our proposal that generally requires claimants to submit written
evidence at least 5 business days before a hearing also requires that
we propose revisions to how the Appeals Council will handle additional
evidence it receives on appeal. Under the proposed rule, the Appeals
Council would generally consider additional evidence only if it is new
and material and relates to the period on or before the date of the
hearing decision, and only if the claimant shows that he or she did not
submit the evidence at the hearing level because: (1) Our action misled
him or her; (2) he or she had a physical, mental, educational, or
linguistic limitation(s) that prevented him or her from informing us
about or submitting the evidence earlier; or (3) some other unusual,
unexpected, or unavoidable circumstance beyond his or her control
prevented him or her from informing us about or submitting the evidence
earlier. If these requirements are satisfied, the Appeals Council would
grant review if there is a reasonable probability that the evidence,
alone or considered with the evidence of record, would change the
outcome of the hearing level decision. For additional evidence that
does not relate to the period on or before the ALJ decision, the
Appeals Council would continue to notify the claimant that because of
the new evidence, if he or she files a new application within a
specified timeframe, the date of the claimant's request for review
would constitute a written statement indicating an intent to claim
benefits. This means that we would use the date of the claimant's
request for Appeals Council review as the filing date for the new
application, which we call a protective filing date. In addition to
retaining this current practice, the Appeals Council would also provide
a claimant with a protective filing date when it finds he or she did
not have good cause for not submitting the evidence at the hearing
level at least 5 business days before the hearing. Additionally, we
also propose to clarify that the Appeals Council may conduct hearing
proceedings to obtain additional evidence when needed.
In addition to creating greater uniformity in our procedures, we
expect these changes will improve our ability to manage our workloads.
Most importantly, we expect these changes to allow us to adjudicate
cases and process workloads more efficiently and consistently, leading
to better public service overall.
Because these proposed changes would bring the vast majority of
Part 405 procedures in line with the procedures in Parts 404 and 416,
we also propose to remove Part 405 in its

[[Page 45083]]

entirety. In doing so, we acknowledge there are several sections in
Part 405 that include minor language or substantive variances from Part
404 and Part 416 that we did not address above. For example, the
requirements for showing good cause to extend a filing deadline are
different under Part 405 from the ones we propose here. We intend that,
other than the changes we propose in this NPRM, we are not proposing to
adopt any of the other variances currently in Part 405.

Clarity of These Proposed 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 proposed rule, we invite your
comments on how to make it 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?

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

We consulted with the Office of Management and Budget (OMB) and
determined that this proposed rule meets the criteria for a significant
regulatory action under Executive Order 12866, as supplemented by
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

We certify that this proposed rule would not have a significant
economic impact on a substantial number of small entities because it
affects individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

These proposed rules contain reporting requirements in the
regulation sections Sec. Sec. 404.929, 404.935, 404.939, 404.949,
404.950(2), 404.968, 416.1429, 416.1435, 416.1439, 416.1449, 416.1450
and 416.1468 that require OMB clearance under the Paperwork Reduction
Act of 1995 (PRA). For sections 404.929, 404.949, 404.950(2), 416.1429,
416.1449, 416.1450(2) of these rules, we previously accounted for the
public reporting burdens in the Information Collection Requests for OMB
Numbers 0960-0269 and 0960-0710, which the public use to submit the
information to SSA. Consequently, we are not reporting these sections.
SSA will solicit public comment and will submit separate information
collection requests to OMB in the future for regulations sections
Sec. Sec. 404.935, 404.939, 404.968, 416.1435, 416.1439, and 416.1468
as they require OMB clearance under the Paperwork Reduction Act of 1995
(PRA). We will not collect the information referenced in these burden
sections until we receive OMB approval.

(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 405

Administrative practice and procedure; Blind; Disability benefits;
Old-age, survivors, and disability insurance; Public assistance
programs; Reporting and recordkeeping requirements; Social Security;
Supplemental Security Income (SSI).

20 CFR Part 416

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

Dated: May 31, 2016.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

For the reasons set out in the preamble, we propose to amend 20 CFR
chapter III parts 404, 405, and 416 as set forth below:

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

Subpart J--[Amended]

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. 404.900, revise the second sentence of paragraph (b) to
read as follows:

Sec. 404.900 Introduction.

* * * * *
(b) * * * Subject to the limitations on Appeals Council
consideration of additional evidence (see Sec. 404.970(b)), we will
consider at each step of the review process any information you present
as well as all the information in our records.* * *
0
3. In Sec. 404.929, revise the fifth sentence to read as follows:

Sec. 404.929 Hearing before an administrative law judge-general.

* * * Subject to the provisions of Sec. 404.935, you may submit
new evidence, examine the evidence used in making the determination or
decision under review, and present and question witnesses.* * *
0
4. Revise Sec. 404.935 to read as follows:

Sec. 404.935 Submitting written evidence to an administrative law
judge.

(a) When you submit your request for hearing, you should also
submit information or evidence as required by Sec. 404.1512 or any
summary of the evidence to the administrative law judge. Each party
must make every effort to ensure that the administrative law judge
receives all of the evidence and must inform us about or submit any
written evidence, as required in Sec. 404.1512, no later than 5
business days before the date of the scheduled hearing. If you do not
comply with this requirement, the administrative law judge may decline
to consider or obtain the evidence unless the circumstances described
in paragraph (b) of this section apply.
(b) If you have evidence required under Sec. 404.1512 but you have
missed the deadline described in paragraph (a) of this section, the
administrative law judge will accept the evidence if he or she has not
yet issued a decision and you show that you did not inform us about or
submit the evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or

[[Page 45084]]

(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. For example, the administrative law judge will
accept the evidence if you show that:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and,
through no fault of your own, the evidence was not received or was
received less than 5 business days prior to the hearing.
0
5. In Sec. 404.938, revise paragraphs (a) and (b) to read as follows:

Sec. 404.938 Notice of a hearing before an administrative law judge.

(a) Issuing the notice. After we set the time and place of the
hearing, we will mail notice of the hearing to you at your last known
address, or give the notice to you by personal service, unless you have
indicated in writing that you do not wish to receive this notice. We
will mail or serve the notice at least 60 days before the date of the
hearing.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided in your case;
(2) That you may designate a person to represent you during the
proceedings;
(3) How to request that we change the time or place of your
hearing;
(4) That your hearing may be dismissed if neither you nor the
person you designate to act as your representative appears at your
scheduled hearing without good reason under Sec. 404.957;
(5) Whether your appearance or that of any other party or witness
is scheduled to be made in person, by video teleconferencing, or by
telephone. If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing;
(6) That you must make every effort to inform us about or submit
all written evidence that is not already in the record no later than 5
business days before the date of the scheduled hearing, unless you show
that your circumstances meet the conditions described in Sec.
404.935(b); and
(7) Any other information about the scheduling and conduct of your
hearing.
* * * * *
0
6. Revise Sec. 404.939 to read as follows:

Sec. 404.939 Objections to the issues.

If you object to the issues to be decided at the hearing, you must
notify the administrative law judge in writing at the earliest possible
opportunity, but no later than 5 business days before the date set for
the hearing. You must state the reason(s) for your objection(s). The
administrative law judge will make a decision on your objection(s)
either at the hearing or in writing before the hearing.
0
7. Revise Sec. 404.944 to read as follows:

Sec. 404.944 Administrative law judge hearing procedures--general.

(a) A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses, and, subject to the provisions
of Sec. 404.935:
(1) Accepts as evidence any documents that are material to the
issues;
(2) May stop the hearing temporarily and continue it at a later
date if he or she finds that there is material evidence missing at the
hearing; and
(3) May reopen the hearing at any time before he or she mails a
notice of the decision in order to receive new and material evidence.
(b) The administrative law judge may decide when the evidence will
be presented and when the issues will be discussed.
0
8. Revise Sec. 404.949 to read as follows:

Sec. 404.949 Presenting written statements and oral arguments.

You or a person you designate to act as your representative may
appear before the administrative law judge to state your case, present
a written summary of your case, or enter written statements about the
facts and law material to your case in the record. You must provide a
copy of your written statements for each party no later than 5 business
days before the date set for the hearing.
0
9. In Sec. 404.950, revise paragraphs (c) and (d) to read as follows:

Sec. 404.950 Presenting evidence at a hearing before an
administrative law judge.

* * * * *
(c) Admissible evidence. Subject to the provisions of Sec.
404.935, the administrative law judge may receive any evidence at the
hearing that he or she believes is material to the issues, even though
the evidence would not be admissible in court under the rules of
evidence used by the court.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of
a party, issue subpoenas for the appearance and testimony of witnesses
and for the production of books, records, correspondence, papers, or
other documents that are material to an issue at the hearing.
(2) Parties to a hearing who wish to subpoena documents or
witnesses must file a written request for the issuance of a subpoena
with the administrative law judge or at one of our offices at least 10
business days before the hearing date. The written request must give
the names of the witnesses or documents to be produced; describe the
address or location of the witnesses or documents with sufficient
detail to find them; state the important facts that the witness or
document is expected to prove; and indicate why these facts could not
be proven without issuing a subpoena.
(3) We will pay the cost of issuing the subpoena.
(4) We will pay subpoenaed witnesses the same fees and mileage they
would receive if they had been subpoenaed by a Federal district court.
* * * * *
0
10. Revise Sec. 404.951 to read as follows:

Sec. 404.951 Official record.

[[Page 45085]]

judge admits into the record under Sec. Sec. 404.929 and 404.935. All
exhibits introduced as evidence must be marked for identification and
incorporated into the record. The official record of your claim will
contain all of the marked exhibits and a verbatim recording of all
testimony offered at the hearing; it also will include any prior
initial determinations or decisions on your claim.
0
11. In Sec. 404.968, revise the second sentence of paragraph (a)
introductory text to read as follows:

Sec. 404.968 How to request Appeals Council review.

(a) * * * You should submit any evidence you wish to have
considered by the Appeals Council with your request for review, and the
Appeals Council will consider the evidence in accordance with Sec.
404.970(b). * * *
* * * * *
0
12. Revise Sec. 404.970 to read as follows:

Sec. 404.970 Cases the Appeals Council will review.

(a) The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the
administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) The Appeals Council receives additional evidence that meets the
requirements in paragraph (b) of this section, and there is a
reasonable probability that the additional evidence, alone or
considered with the evidence of record, would change the outcome of the
decision.
(b) Under paragraph (a)(5) of this section, the Appeals Council
will only consider additional evidence if you show that it is new and
material and relates to the period on or before the date of the hearing
decision, and you did not inform us about or submit the evidence by the
deadline described in Sec. 404.935 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples of circumstances that, if documented,
the Appeals Council may consider accepting the evidence include, but
are not limited to, the following:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and,
through no fault of your own, the evidence was not received or was
received less than 5 business days prior to the hearing.
(c) If you submit additional evidence that does not relate to the
period on or before the date of the administrative law judge hearing
decision as required in paragraph (b) of this section, or the Appeals
Council does not find you had good cause for missing the deadline to
submit the evidence in Sec. 404.935, the Appeals Council will send you
a notice that explains why it did not accept the additional evidence
and advises 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 under Sec. 404.630. If you file a new application within 6
months of the Appeals Council's notice, we will use the date you
requested Appeals Council review as the filing date for your new
application.
(d) If the Appeals Council needs additional evidence, it may remand
the case to an administrative law judge to receive evidence and issue a
new decision. However, if the Appeals Council decides that it can
obtain the evidence more quickly, it may do so, unless it will
adversely affect your rights. In some cases, the Appeals Council may
obtain this evidence by conducting additional hearing proceedings.
0
13. Revise Sec. 404.976 to read as follows:

Sec. 404.976 Procedures before the Appeals Council on review.

(a) Limitation of issues. The Appeals Council may limit the issues
it considers if it notifies you and the other parties of the issues it
will review.
(b) Oral argument. You may request to appear before the Appeals
Council to present oral argument. 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.

PART 405--[REMOVED AND RESERVED]

0
14. Under the authority of sections 205(a), 702(a)(5), and 1631(d)(1)
of the Social Security Act, part 405 is removed and reserved.

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

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

0
15. 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
16. In Sec. 416.1400, revise the second sentence of paragraph (b) to
read as follows:

Sec. 416.1400 Introduction.

* * * * *
(b) * * * Subject to the limitations on Appeals Council
consideration of additional evidence (see Sec. 416.1470(b)), we will
consider at each step of the review process any information you present
as well as all the information in our records.* * *
0
17. In Sec. 416.1429, revise the fifth sentence to read as follows:

Sec. 416.1429 Hearing before an administrative law judge-general.

* * * Subject to the limitations in Sec. 416.1435, you may submit
new evidence, examine the evidence used in making the determination or
decision under review, and present and question witnesses.* * *
0
18. Revise Sec. 416.1435 to read as follows:

Sec. 416.1435 Submitting written evidence to an administrative law
judge.

(a) When you submit your request for hearing, you should also
submit information or evidence as required by Sec. 416.912 or any
summary of the

[[Page 45086]]

evidence to the administrative law judge. Each party must make every
effort to ensure that the administrative law judge receives all of the
evidence, and you must inform us about or submit any written evidence,
as required in Sec. 416.912, no later than 5 business days before the
date of the scheduled hearing. If you do not comply with this
requirement, the administrative law judge may decline to consider or
obtain the evidence unless the circumstances described in paragraph (b)
of this section apply.
(b) If you have evidence required under Sec. 416.912 but you have
missed the deadline described in paragraph (a) of this section, the
administrative law judge will accept the evidence if he or she has not
yet issued a decision and you show that you did not inform us about or
submit the evidence before the deadline because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. For example, the administrative law judge will
accept the evidence if you show that:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and,
through no fault of your own, the evidence was not received or was
received less than 5 business days prior to the hearing.
(c) Notwithstanding the requirements in paragraphs (a) and (b) of
this section, for claims that are not based on an application for
benefits, the evidentiary requirement to inform us about or submit
evidence no later than 5 business days before the date of the scheduled
hearing will not apply if our other regulations allow you to submit
evidence after the date of an administrative law judge decision.
0
19. In Sec. 416.1438, revise paragraphs (a) and (b) to read as
follows:

Sec. 416.1438 Notice of a hearing before an administrative law judge.

(a) Issuing the notice. After we set the time and place of the
hearing, we will mail notice of the hearing to you at your last known
address, or give the notice to you by personal service, unless you have
indicated in writing that you do not wish to receive this notice. We
will mail or serve the notice at least 60 days before the hearing.
(b) Notice information. The notice of hearing will tell you:
(1) The specific issues to be decided in your case;
(2) That you may designate a person to represent you during the
proceedings;
(3) How to request that we change the time or place of your
hearing;
(4) That your hearing may be dismissed if neither you nor the
person you designate to act as your representative appears at your
scheduled hearing without good reason under Sec. 416.1457;
(5) Whether your appearance or that of any other party or witness
is scheduled to be made in person, by video teleconferencing, or by
telephone. If we have scheduled you to appear at the hearing by video
teleconferencing, the notice of hearing will tell you that the
scheduled place for the hearing is a video teleconferencing site and
explain what it means to appear at your hearing by video
teleconferencing;
(6) That you must make every effort to inform us about or submit
all written evidence that is not already in the record no later than 5
business days before the date of the scheduled hearing, unless you show
that your circumstances meet the conditions described in Sec.
416.1435(b); and
(7) Any other information about the scheduling and conduct of your
hearing.
* * * * *
0
20. Revise Sec. 416.1439 to read as follows:

Sec. 416.1439 Objections to the issues.

Sec. 416.1444 Administrative law judge hearing procedures--general.

(a) A hearing is open to the parties and to other persons the
administrative law judge considers necessary and proper. At the
hearing, the administrative law judge looks fully into the issues,
questions you and the other witnesses, and, subject to the provisions
of Sec. 416.1435:
(1) Accepts as evidence any documents that are material to the
issues;
(2) May stop the hearing temporarily and continue it at a later
date if he or she finds that there is material evidence missing at the
hearing; and
(3) May reopen the hearing at any time before he or she mails a
notice of the decision in order to receive new and material evidence.
(b) The administrative law judge may decide when the evidence will
be presented and when the issues will be discussed.
0
22. Revise Sec. 416.1449 to read as follows:

Sec. 416.1449 Presenting written statements and oral arguments.

You or a person you designate to act as your representative may
appear before the administrative law judge to state your case, present
a written summary of your case, or enter written statements about the
facts and law material to your case in the record. You must provide a
copy of your written statements for each party no later than 5 business
days before the date set for the hearing.
0
23. In Sec. 416.1450, revise paragraphs (c) and (d) to read as
follows:

Sec. 416.1450 Presenting evidence at a hearing before an
administrative law judge.

* * * * *
(c) Admissible evidence. Subject to the provisions of Sec.
416.1435, the administrative law judge may receive any evidence at the
hearing that he or she believes is material to the issues, even though
the evidence would not be admissible in court under the rules of
evidence used by the court.
(d) Subpoenas. (1) When it is reasonably necessary for the full
presentation of a case, an administrative law judge or a member of the
Appeals Council may, on his or her own initiative or at the request of
a party, issue subpoenas for the appearance and testimony of witnesses
and for the production of books, records, correspondence, papers, or
other documents that are material to an issue at the hearing.
(2) Parties to a hearing who wish to subpoena documents or
witnesses must file a written request for the issuance of a subpoena
with the administrative law judge or at one of our offices at least 10
business days before the hearing date. The written request must give
the names of the witnesses or documents to be produced; describe the
address or location of the witnesses or documents with sufficient
detail to find them; state the important facts that the witness or

[[Page 45087]]

document is expected to prove; and indicate why these facts could not
be proven without issuing a subpoena.
(3) We will pay the cost of issuing the subpoena.
(4) We will pay subpoenaed witnesses the same fees and mileage they
would receive if they had been subpoenaed by a Federal district court.
* * * * *
0
24. Revise Sec. 416.1451 to read as follows:

Sec. 416.1451 Official record.

(a) Hearing recording. All hearings will be recorded. The hearing
recording will be prepared as a typed copy of the proceedings if--
(1) The case is sent to the Appeals Council without a decision or
with a recommended decision by the administrative law judge;
(2) You seek judicial review of your case by filing an action in a
Federal district court within the stated time period, unless we request
the court to remand the case; or
(3) An administrative law judge or the Appeals Council asks for a
written record of the proceedings.
(b) Contents of the official record. All evidence upon which the
administrative law judge relies for the decision must be contained in
the record, either directly or by appropriate reference. The official
record will include the applications, written statements, certificates,
reports, affidavits, medical records, and other documents that were
used in making the decision under review and any additional evidence or
written statements that the administrative law judge admits into the
record under Sec. Sec. 416.1429 and 416.1435. All exhibits introduced
as evidence must be marked for identification and incorporated into the
record. The official record of your claim will contain all of the
marked exhibits and a verbatim recording of all testimony offered at
the hearing; it also will include any prior initial determinations or
decisions on your claim.
0
25. In Sec. 416.1468, revise the second sentence of paragraph (a) to
read as follows:

Sec. 416.1468 How to request Appeals Council review.

(a) * * * You should submit any evidence you wish to have
considered by the Appeals Council with your request for review, and the
Appeals Council will consider the evidence in accordance with Sec.
416.1470(b). * * *
0
26. Revise Sec. 416.1470 to read as follows:

Sec. 416.1470 Cases the Appeals Council will review.

(a) The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the
administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law
judge are not supported by substantial evidence;
(4) There is a broad policy or procedural issue that may affect the
general public interest; or
(5) The Appeals Council receives additional evidence that meets the
requirements in paragraph (b) of this section, and there is a
reasonable probability that the additional evidence, alone or
considered with the evidence of record, would change the outcome of the
decision.
(b) In reviewing decisions other than those based on an application
for benefits, the Appeals Council will consider the evidence in the
administrative law judge hearing record and any additional evidence it
believes is material to an issue being considered. However, in
reviewing decisions based on an application for benefits, under
paragraph (a)(5) of this section, the Appeals Council will only
consider additional evidence if you show that it is new and material
and relates to the period on or before the date of the hearing
decision, and you did not inform us about or submit the evidence by the
deadline described in Sec. 416.1435 because:
(1) Our action misled you;
(2) You had a physical, mental, educational, or linguistic
limitation(s) that prevented you from informing us about or submitting
the evidence earlier; or
(3) Some other unusual, unexpected, or unavoidable circumstance
beyond your control prevented you from informing us about or submitting
the evidence earlier. Examples of circumstances that, if documented,
the Appeals Council may consider accepting the evidence include, but
are not limited to, the following:
(i) You were seriously ill, and your illness prevented you from
contacting us in person, in writing, or through a friend, relative, or
other person;
(ii) There was a death or serious illness in your immediate family;
(iii) Important records were destroyed or damaged by fire or other
accidental cause; or
(iv) You actively and diligently sought evidence from a source and,
through no fault of your own, the evidence was not received or was
received less than 5 business days prior to the hearing.
(c) If you submit additional evidence that does not relate to the
period on or before the date of the administrative law judge hearing
decision as required in paragraph (b) of this section, or the Appeals
Council does not find you had good cause for missing the deadline to
submit the evidence in Sec. 416.1435, the Appeals Council will send
you a notice that explains why it did not accept the additional
evidence and advises 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 under Sec. 416.340. If you file a new application
within 60 days of the Appeals Council's notice, we will use the date
you requested Appeals Council review as the filing date for your new
application.
(d) If the Appeals Council needs additional evidence, it may remand
the case to an administrative law judge to receive evidence and issue a
new decision. However, if the Appeals Council decides that it can
obtain the evidence more quickly, it may do so, unless it will
adversely affect your rights. In some cases, the Appeals Council may
obtain this evidence by conducting additional hearing proceedings.
0
27. Revise Sec. 416.1476 to read as follows:

Sec. 416.1476 Procedures before the Appeals Council on review.

[FR Doc. 2016-16265 Filed 7-11-16; 8:45 am]
BILLING CODE P

Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules 45081

earlier; or (3) some other unusual, strides towards achieving our goal of notice of the hearing.22 In addition to
unexpected, or unavoidable improving the efficiency, accuracy, and our experience, we also considered
circumstance beyond his or her control timeliness of our disability adjudication ACUS’s finding that there was strong
prevented him or her from submitting process. While declining to draw support from stakeholders, both inside
the evidence earlier.15 definitive conclusions from its data and outside of the agency, for increasing
We have always intended to analysis, ACUS highlighted several the amount of advance notice a claimant
implement nationally consistent rules findings, including the following: (1) receives before a hearing.
after we had sufficient time to evaluate Under Part 405, there was less We considered proposing to adopt a
the effectiveness of DSI processing. To likelihood that adjudicators would 75-day advance notice requirement
assist us in evaluating these issues, we determine the record needed additional nationwide. However, the information
asked ACUS to review the impact of our evidence and request a consultative available to us indicates that there may
Part 405 regulations at the hearings and examination; (2) there were lower be a higher incidence of postponements
Appeals Council levels. Ultimately, in average processing times in the Boston when we give claimants 75 days or more
its final report, ACUS deferred to us region than other comparable regions, advance notice of a hearing due to the
regarding whether to implement the Part and the Boston region’s average unavailability of the appointed
405 regulations nationwide.16 However, processing times did not exhibit the representative or adjudicator on the date
ACUS suggested a variety of guiding same comparative decline in average of the scheduled hearing.23 In contrast,
principles and other observations for us processing times found in other regions; we have observed that most hearing
to consider in making a decision and (3) the Boston region had the lowest offices already schedule hearings 60
regarding national uniformity. For pending disposition ratio, which days in advance, and a 60-day advance
example, ACUS suggested that we: (1) suggests enhanced case efficiencies. notice period appears to have the same
Strive to attain an appropriate balance We note that several of ACUS’s or a reduced incidence of
between claimant and agency interests findings, based on the available data postponements when compared to
as we pursue our goal of making the through 2012, are consistent with our notice periods less than 60 days.24
right disability decision as early in the experience. For example, ACUS stated Therefore, based on the available data,
process as possible; (2) strive for that the ‘‘average time intervals between we propose a 60-day notice requirement
consistency in the administration of a issuance of hearing notices and hearings as the most administratively efficient.
national program; (3) collect and assess have been rising steadily at both Further, because we are already
more data about the DSI program; and regional and national levels in recent scheduling most hearings nationwide at
(4) if pursued, clarify the guidance to years.’’ 18 While Parts 404 and 416
least 60 days in advance, we do not
ALJs and claimants about application of require that we provide notice to a
expect that adopting this requirement
the DSI program. ACUS also observed claimant of a scheduled hearing at least
would have an adverse impact on the
that if we pursued regulatory changes 20 days before the hearing,19 and Part
public or on our operations. As noted by
similar to DSI, it would be important to 405 requires that we provide notice to
ACUS, the public seems to support
retain appropriate good cause a claimant of a scheduled hearing at
increasing the number of days for
exceptions for the late submission of least 75 days before the hearing,20 it has
advance notice of a hearing because,
evidence. been our experience that for several
among other reasons, it will provide
After considering ACUS’s suggestions, years nationwide, most claimants
more time to obtain updated medical
we first provided additional training to received more advance notice of a
records before the date of the hearing.
ODAR adjudicators and staff regarding hearing than the regulations require.
Therefore, we propose to require that,
the application of our Part 405 rules. We Specifically, the Boston region appears
nationwide, we notify claimants of a
also incorporated instructions for to be scheduling hearings and notifying
processing cases originating in the claimants approximately 90 days before
22 After reviewing the information available in
Boston region into our training materials the hearing while other regions are CPMS, we observed the following: In 2013, we
for all staff, including addressing Part providing notice more than 60 days postponed 26.1% of cases scheduled 25–49 days in
405 issues in several of our quarterly before the hearing.21 Additionally, we advance, 26.4% of cases scheduled 50–74 days in
Videos-On-Demand series that focus on have also observed that, nationally, advance, and 29.2% of cases scheduled 75–99 days
in advance. In 2014, we postponed 28.3% of cases
new or problematic areas of cases in which we sent notices scheduled 25–49 days in advance, 27.3% of cases
adjudication. We continue to update approximately 60 days prior to the date scheduled 50–74 days in advance, and 29.3% of
sub-regulatory policy to include of the hearing seem to have a reduced cases scheduled 75–99 days in advance. In 2015, we
references and instructions on how to or the same likelihood of a postponed postponed 28.1% of cases scheduled 25–49 days in
advance, 26.8% of cases scheduled 50–74 days in
process cases under Part 405. As hearing as those scheduled with less advance, and 28.0% of cases scheduled 75–99 days
recommended by ACUS, we made these in advance. We also note that our analysis showed
18 See
ACUS Report at 30.
changes to promote consistent that cases scheduled less than 25 days in advance
19 20
CFR 404.938(a), 416.1438(a). had the highest rate of postponement.
adjudication of Part 405 in the Boston 20 20 CFR 405.316(a). 23 After reviewing the information available in
region. 21 At the hearing level, we use the Case CPMS for 2014–2016, we observed the following: In
We then carefully considered ACUS’s Processing and Management System (CPMS) to 2014 in the Boston region, hearings with at least
findings on how we receive evidence manage our workloads. From the information one postponement were postponed 5.36% of the
under Part 405. In its report, ACUS available in CPMS, we reviewed the number days time due to a representative’s unavailability and
between the date of the notice of hearing and the 8.07% of the time due to the unavailability of the
explained that it performed a decision maker. Nationally, the postponement rate
date of a scheduled hearing to assess whether these
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comparative empirical analysis of data trends appear to continue. In the Boston region, for a representative’s unavailability was 4.17% and
that we provided,17 and its findings, CPMS shows the mean number of days between a decision maker’s unavailability was 5.91%. In
while not definitive, appeared to show these dates to be 79.7 (2013), 88.5 (2014), and 90.3 2015, the postponement rate in Boston for a
(2015). The median number of days was 82.0 representative’s unavailability was 6.00% and a
that the Part 405 rules made modest decision maker’s unavailability was 8.02%.
(2013), 89.0 (2014), and 90.0 (2015). Nationwide,
CPMS shows the mean number of days was 64.3 Nationally, the postponement rate for a
15 20 CFR 405.401(c). (2013), 64.8 (2014), and 69.9 (2015). The median representative’s unavailability was 3.92% and a
16 See ACUS Report at 91. decision maker’s unavailability was 6.76%. These
number of days was 60.0 (2013), 62.0 (2014), and
17 For specific information about the data 68.0 (2015). Though not yet complete, the numbers trends appear to continue in 2016.
reviewed by ACUS, see ACUS Report Appendix. in 2016 appear to be consistent with these trends. 24 See information in footnote 22.

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45082 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules

scheduled hearing at least 60 days prior identification of or submission of Our proposal that generally requires
to the date of the hearing. evidence. To accomplish this, we have claimants to submit written evidence at
The highlights of ACUS’s empirical added examples to illustrate when a least 5 business days before a hearing
analysis and our own experience also claimant meets a good cause exception, also requires that we propose revisions
support adopting nationwide rules such as when a claimant is seriously ill to how the Appeals Council will handle
similar to the existing Part 405 rules that or when evidence is not received until additional evidence it receives on
govern how we receive evidence in the less than 5 business days before the appeal. Under the proposed rule, the
Boston region. For example, our hearing, despite the claimant’s active Appeals Council would generally
experience is that under Parts 404 and and diligent efforts to obtain the consider additional evidence only if it is
416, some hearings are postponed or evidence earlier. These examples are not new and material and relates to the
require supplemental proceedings due intended to be exhaustive or to illustrate period on or before the date of the
to late submission of evidence. We every possible situation, but to illustrate hearing decision, and only if the
anticipate that our final rule on the the sorts of situations most likely to claimant shows that he or she did not
‘‘Submission of Evidence in Disability arise. submit the evidence at the hearing level
Claims,’’ 25 discussed earlier, will In addition to adding examples because: (1) Our action misled him or
decrease the number of Appeals Council regarding the good cause requirements, her; (2) he or she had a physical, mental,
remands based on additional evidence. we also explain that, when reviewing educational, or linguistic limitation(s)
However, our experience has shown, claims that are not based on an that prevented him or her from
and we expect to continue to see, that application for benefits, the requirement informing us about or submitting the
the Appeals Council will need to to submit evidence at least 5 business evidence earlier; or (3) some other
remand some cases due to new days before a hearing does not apply if unusual, unexpected, or unavoidable
evidence. The need to postpone and our other regulations permit the circumstance beyond his or her control
reschedule cases, along with Appeals submission of evidence after the date of prevented him or her from informing us
Council remands based on new an ALJ decision. For example, under about or submitting the evidence earlier.
evidence that was available at the time If these requirements are satisfied, the
current section 416.1476(b)(2) (proposed
of the hearing decision, costs us Appeals Council would grant review if
section 416.1470(b)), in reviewing
valuable resources and delays the there is a reasonable probability that the
decisions other than those based on an
adjudication of all claims at the hearings evidence, alone or considered with the
application for benefits, the Appeals
and Appeals Council levels. evidence of record, would change the
In its report, ACUS also identified Council will consider evidence in the
hearing record and any additional outcome of the hearing level decision.
several concerns raised by stakeholders For additional evidence that does not
both inside and outside the agency with evidence it believes is material to an
relate to the period on or before the ALJ
implementing Part 405 nationwide. For issue being considered. Supplemental
decision, the Appeals Council would
example, ACUS explained that both Security Income (SSI) cases under title
continue to notify the claimant that
ALJs and claimants’ representative XVI of the Act that are not based on an
because of the new evidence, if he or
groups agree that two of the most application for benefits are excepted
she files a new application within a
challenging obstacles to timely from the general rules that limit the
specified timeframe, the date of the
submission of evidence are: (1) Delays Appeals Council’s consideration of
claimant’s request for review would
in receipt of evidence from medical additional evidence based on the
constitute a written statement indicating
providers, and (2) delays in receipt of individual’s right to reestablish his or
an intent to claim benefits. This means
evidence from the claimant. As her eligibility for title XVI payments
that we would use the date of the
previously discussed, we propose during the course of an appeal without claimant’s request for Appeals Council
changing our rules so that we provide filing a new application.26 Therefore, we review as the filing date for the new
claimants with additional time to added an exception to address this and application, which we call a protective
inform us about or to obtain and submit similar situations where other filing date. In addition to retaining this
written evidence. In doing so, we will regulations may permit the submission current practice, the Appeals Council
also change our notices to ensure of evidence in claims that are not based would also provide a claimant with a
claimants are advised of the additional on an application for benefits. protective filing date when it finds he or
time. To address concerns about delays To ensure national consistency in our she did not have good cause for not
in receiving evidence from medical policy and procedures, we also propose submitting the evidence at the hearing
providers, we propose to retain the requiring claimants to file written level at least 5 business days before the
current good cause exceptions used in statements about the case, or any hearing. Additionally, we also propose
Part 405. We also propose to add objections to the issues, at least 5 to clarify that the Appeals Council may
examples, including that we will accept business days prior to a scheduled conduct hearing proceedings to obtain
evidence submitted less than 5 business hearing. We further propose to require additional evidence when needed.
days prior to the hearing if a claimant a claimant to submit subpoena requests In addition to creating greater
shows that he or she actively and at least 10 business days prior to a uniformity in our procedures, we expect
diligently sought to obtain the evidence scheduled hearing. For consistency with these changes will improve our ability
promptly, but could not do so. these proposed changes, we also to manage our workloads. Most
Based in part on ACUS’s evaluation of propose changes to our regulations to importantly, we expect these changes to
the good cause exceptions to the Part explain what constitutes the official allow us to adjudicate cases and process
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405 rule that requires claimants to record. workloads more efficiently and
submit evidence at least 5 business days consistently, leading to better public
before a hearing, we propose to clarify 26 See 20 CFR 416.305(b)(5) (providing that an service overall.
when other unusual, unexpected, or individual need not file a new SSI application if he Because these proposed changes
unavoidable circumstances beyond the or she is notified that his or her payments will be would bring the vast majority of Part
stopped because he or she is no longer eligible and
claimant’s control prevent earlier he or she again meets the requirements for
405 procedures in line with the
eligibility before his or her appeal rights are procedures in Parts 404 and 416, we
25 80 FR 14828. exhausted). also propose to remove Part 405 in its

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45084 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules

(3) Some other unusual, unexpected, (7) Any other information about the even though the evidence would not be
or unavoidable circumstance beyond scheduling and conduct of your hearing. admissible in court under the rules of
your control prevented you from * * * * * evidence used by the court.
informing us about or submitting the ■ 6. Revise § 404.939 to read as follows: (d) Subpoenas. (1) When it is
evidence earlier. For example, the reasonably necessary for the full
administrative law judge will accept the § 404.939 Objections to the issues. presentation of a case, an administrative
evidence if you show that: If you object to the issues to be law judge or a member of the Appeals
(i) You were seriously ill, and your decided at the hearing, you must notify Council may, on his or her own
illness prevented you from contacting the administrative law judge in writing initiative or at the request of a party,
us in person, in writing, or through a at the earliest possible opportunity, but issue subpoenas for the appearance and
friend, relative, or other person; no later than 5 business days before the testimony of witnesses and for the
(ii) There was a death or serious date set for the hearing. You must state production of books, records,
illness in your immediate family; the reason(s) for your objection(s). The correspondence, papers, or other
(iii) Important records were destroyed administrative law judge will make a documents that are material to an issue
or damaged by fire or other accidental decision on your objection(s) either at at the hearing.
cause; or the hearing or in writing before the (2) Parties to a hearing who wish to
(iv) You actively and diligently sought hearing. subpoena documents or witnesses must
■ 7. Revise § 404.944 to read as follows: file a written request for the issuance of
evidence from a source and, through no
fault of your own, the evidence was not a subpoena with the administrative law
§ 404.944 Administrative law judge hearing
received or was received less than 5 procedures—general.
judge or at one of our offices at least 10
business days prior to the hearing. business days before the hearing date.
(a) A hearing is open to the parties
■ 5. In § 404.938, revise paragraphs (a)
The written request must give the names
and to other persons the administrative
and (b) to read as follows: of the witnesses or documents to be
law judge considers necessary and
produced; describe the address or
proper. At the hearing, the
§ 404.938 Notice of a hearing before an location of the witnesses or documents
administrative law judge. administrative law judge looks fully into
with sufficient detail to find them; state
the issues, questions you and the other
(a) Issuing the notice. After we set the the important facts that the witness or
witnesses, and, subject to the provisions
time and place of the hearing, we will document is expected to prove; and
of § 404.935:
mail notice of the hearing to you at your indicate why these facts could not be
(1) Accepts as evidence any
last known address, or give the notice to proven without issuing a subpoena.
documents that are material to the
you by personal service, unless you (3) We will pay the cost of issuing the
issues;
have indicated in writing that you do subpoena.
(2) May stop the hearing temporarily
not wish to receive this notice. We will (4) We will pay subpoenaed witnesses
and continue it at a later date if he or
mail or serve the notice at least 60 days the same fees and mileage they would
she finds that there is material evidence
before the date of the hearing. receive if they had been subpoenaed by
missing at the hearing; and
(b) Notice information. The notice of a Federal district court.
(3) May reopen the hearing at any
hearing will tell you: time before he or she mails a notice of * * * * *
(1) The specific issues to be decided the decision in order to receive new and ■ 10. Revise § 404.951 to read as
in your case; material evidence. follows:
(2) That you may designate a person (b) The administrative law judge may § 404.951 Official record.
to represent you during the proceedings; decide when the evidence will be (a) Hearing recording. All hearings
(3) How to request that we change the presented and when the issues will be will be recorded. The hearing recording
time or place of your hearing; discussed. will be prepared as a typed copy of the
(4) That your hearing may be ■ 8. Revise § 404.949 to read as follows:
proceedings if—
dismissed if neither you nor the person (1) The case is sent to the Appeals
§ 404.949 Presenting written statements
you designate to act as your and oral arguments. Council without a decision or with a
representative appears at your recommended decision by the
You or a person you designate to act
scheduled hearing without good reason administrative law judge;
as your representative may appear
under § 404.957; (2) You seek judicial review of your
before the administrative law judge to
(5) Whether your appearance or that case by filing an action in a Federal
state your case, present a written
of any other party or witness is district court within the stated time
summary of your case, or enter written
scheduled to be made in person, by period, unless we request the court to
statements about the facts and law
video teleconferencing, or by telephone. remand the case; or
material to your case in the record. You
If we have scheduled you to appear at (3) An administrative law judge or the
must provide a copy of your written
the hearing by video teleconferencing, Appeals Council asks for a written
statements for each party no later than
the notice of hearing will tell you that record of the proceedings.
5 business days before the date set for
the scheduled place for the hearing is a (b) Contents of the official record. All
the hearing.
video teleconferencing site and explain ■ 9. In § 404.950, revise paragraphs (c)
evidence upon which the administrative
what it means to appear at your hearing and (d) to read as follows: law judge relies for the decision must be
by video teleconferencing; contained in the record, either directly
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(6) That you must make every effort § 404.950 Presenting evidence at a hearing or by appropriate reference. The official
to inform us about or submit all written before an administrative law judge. record will include the applications,
evidence that is not already in the * * * * * written statements, certificates, reports,
record no later than 5 business days (c) Admissible evidence. Subject to affidavits, medical records, and other
before the date of the scheduled hearing, the provisions of § 404.935, the documents that were used in making the
unless you show that your administrative law judge may receive decision under review and any
circumstances meet the conditions any evidence at the hearing that he or additional evidence or written
described in § 404.935(b); and she believes is material to the issues, statements that the administrative law

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45086 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules

evidence to the administrative law last known address, or give the notice to (1) Accepts as evidence any
judge. Each party must make every you by personal service, unless you documents that are material to the
effort to ensure that the administrative have indicated in writing that you do issues;
law judge receives all of the evidence, not wish to receive this notice. We will (2) May stop the hearing temporarily
and you must inform us about or submit mail or serve the notice at least 60 days and continue it at a later date if he or
any written evidence, as required in before the hearing. she finds that there is material evidence
§ 416.912, no later than 5 business days (b) Notice information. The notice of missing at the hearing; and
before the date of the scheduled hearing. hearing will tell you: (3) May reopen the hearing at any
If you do not comply with this (1) The specific issues to be decided time before he or she mails a notice of
requirement, the administrative law in your case; the decision in order to receive new and
judge may decline to consider or obtain (2) That you may designate a person material evidence.
the evidence unless the circumstances to represent you during the proceedings; (b) The administrative law judge may
described in paragraph (b) of this (3) How to request that we change the decide when the evidence will be
section apply. time or place of your hearing; presented and when the issues will be
(b) If you have evidence required (4) That your hearing may be discussed.
dismissed if neither you nor the person ■ 22. Revise § 416.1449 to read as
under § 416.912 but you have missed
you designate to act as your follows:
the deadline described in paragraph (a)
representative appears at your
of this section, the administrative law
scheduled hearing without good reason § 416.1449 Presenting written statements
judge will accept the evidence if he or
under § 416.1457; and oral arguments.
she has not yet issued a decision and (5) Whether your appearance or that
you show that you did not inform us You or a person you designate to act
of any other party or witness is as your representative may appear
about or submit the evidence before the scheduled to be made in person, by
deadline because: before the administrative law judge to
video teleconferencing, or by telephone. state your case, present a written
(1) Our action misled you; If we have scheduled you to appear at
(2) You had a physical, mental, summary of your case, or enter written
the hearing by video teleconferencing, statements about the facts and law
educational, or linguistic limitation(s)
the notice of hearing will tell you that material to your case in the record. You
that prevented you from informing us
the scheduled place for the hearing is a must provide a copy of your written
about or submitting the evidence earlier; video teleconferencing site and explain
or statements for each party no later than
what it means to appear at your hearing 5 business days before the date set for
(3) Some other unusual, unexpected,
by video teleconferencing; the hearing.
or unavoidable circumstance beyond (6) That you must make every effort
your control prevented you from ■ 23. In § 416.1450, revise paragraphs
to inform us about or submit all written (c) and (d) to read as follows:
informing us about or submitting the evidence that is not already in the
evidence earlier. For example, the record no later than 5 business days § 416.1450 Presenting evidence at a
administrative law judge will accept the before the date of the scheduled hearing, hearing before an administrative law judge.
evidence if you show that: unless you show that your * * * * *
(i) You were seriously ill, and your circumstances meet the conditions (c) Admissible evidence. Subject to
illness prevented you from contacting described in § 416.1435(b); and the provisions of § 416.1435, the
us in person, in writing, or through a (7) Any other information about the administrative law judge may receive
friend, relative, or other person; scheduling and conduct of your hearing. any evidence at the hearing that he or
(ii) There was a death or serious
* * * * * she believes is material to the issues,
illness in your immediate family; ■ 20. Revise § 416.1439 to read as
(iii) Important records were destroyed even though the evidence would not be
follows: admissible in court under the rules of
or damaged by fire or other accidental
cause; or evidence used by the court.
§ 416.1439 Objections to the issues.
(iv) You actively and diligently sought (d) Subpoenas. (1) When it is
If you object to the issues to be reasonably necessary for the full
evidence from a source and, through no decided at the hearing, you must notify
fault of your own, the evidence was not presentation of a case, an administrative
the administrative law judge in writing law judge or a member of the Appeals
received or was received less than 5 at the earliest possible opportunity, but
business days prior to the hearing. Council may, on his or her own
no later than 5 business days before the initiative or at the request of a party,
(c) Notwithstanding the requirements date set for the hearing. You must state
in paragraphs (a) and (b) of this section, issue subpoenas for the appearance and
the reason(s) for your objection(s). The testimony of witnesses and for the
for claims that are not based on an administrative law judge will make a
application for benefits, the evidentiary production of books, records,
decision on your objection(s) either at
requirement to inform us about or correspondence, papers, or other
the hearing or in writing before the
submit evidence no later than 5 documents that are material to an issue
hearing.
business days before the date of the ■ 21. Revise § 416.1444 to read as
at the hearing.
scheduled hearing will not apply if our follows: (2) Parties to a hearing who wish to
other regulations allow you to submit subpoena documents or witnesses must
evidence after the date of an § 416.1444 Administrative law judge file a written request for the issuance of
hearing procedures—general. a subpoena with the administrative law
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administrative law judge decision.
■ 19. In § 416.1438, revise paragraphs (a) A hearing is open to the parties judge or at one of our offices at least 10
(a) and (b) to read as follows: and to other persons the administrative business days before the hearing date.
law judge considers necessary and The written request must give the names
§ 416.1438 Notice of a hearing before an proper. At the hearing, the of the witnesses or documents to be
administrative law judge. administrative law judge looks fully into produced; describe the address or
(a) Issuing the notice. After we set the the issues, questions you and the other location of the witnesses or documents
time and place of the hearing, we will witnesses, and, subject to the provisions with sufficient detail to find them; state
mail notice of the hearing to you at your of § 416.1435: the important facts that the witness or

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Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules 45087

document is expected to prove; and § 416.1470 Cases the Appeals Council will received or was received less than 5
indicate why these facts could not be review. business days prior to the hearing.
proven without issuing a subpoena. (a) The Appeals Council will review (c) If you submit additional evidence
(3) We will pay the cost of issuing the a case if— that does not relate to the period on or
subpoena. (1) There appears to be an abuse of before the date of the administrative law
(4) We will pay subpoenaed witnesses discretion by the administrative law judge hearing decision as required in
the same fees and mileage they would judge; paragraph (b) of this section, or the
receive if they had been subpoenaed by (2) There is an error of law; Appeals Council does not find you had
a Federal district court. (3) The action, findings or good cause for missing the deadline to
* * * * * conclusions of the administrative law
submit the evidence in § 416.1435, the
judge are not supported by substantial
■ 24. Revise § 416.1451 to read as Appeals Council will send you a notice
evidence;
follows: that explains why it did not accept the
(4) There is a broad policy or
additional evidence and advises you of
§ 416.1451 Official record. procedural issue that may affect the
general public interest; or your right to file a new application. The
(a) Hearing recording. All hearings notice will also advise you that if you
will be recorded. The hearing recording (5) The Appeals Council receives
additional evidence that meets the file a new application within 60 days
will be prepared as a typed copy of the after the date of the Appeals Council’s
proceedings if— requirements in paragraph (b) of this
section, and there is a reasonable notice, your request for review will
(1) The case is sent to the Appeals probability that the additional evidence, constitute a written statement indicating
Council without a decision or with a alone or considered with the evidence an intent to claim benefits under
recommended decision by the of record, would change the outcome of § 416.340. If you file a new application
administrative law judge; the decision. within 60 days of the Appeals Council’s
(2) You seek judicial review of your (b) In reviewing decisions other than notice, we will use the date you
case by filing an action in a Federal those based on an application for requested Appeals Council review as
district court within the stated time benefits, the Appeals Council will the filing date for your new application.
period, unless we request the court to consider the evidence in the (d) If the Appeals Council needs
remand the case; or administrative law judge hearing record additional evidence, it may remand the
(3) An administrative law judge or the and any additional evidence it believes case to an administrative law judge to
Appeals Council asks for a written is material to an issue being considered. receive evidence and issue a new
record of the proceedings. However, in reviewing decisions based decision. However, if the Appeals
(b) Contents of the official record. All on an application for benefits, under Council decides that it can obtain the
evidence upon which the administrative paragraph (a)(5) of this section, the evidence more quickly, it may do so,
law judge relies for the decision must be Appeals Council will only consider unless it will adversely affect your
contained in the record, either directly additional evidence if you show that it rights. In some cases, the Appeals
or by appropriate reference. The official is new and material and relates to the
Council may obtain this evidence by
record will include the applications, period on or before the date of the
conducting additional hearing
written statements, certificates, reports, hearing decision, and you did not
proceedings.
affidavits, medical records, and other inform us about or submit the evidence
documents that were used in making the by the deadline described in § 416.1435 ■ 27. Revise § 416.1476 to read as
decision under review and any because: follows:
additional evidence or written (1) Our action misled you;
§ 416.1476 Procedures before the Appeals
statements that the administrative law (2) You had a physical, mental,
Council on review.
judge admits into the record under educational, or linguistic limitation(s)
§§ 416.1429 and 416.1435. All exhibits that prevented you from informing us (a) Limitation of issues. The Appeals
introduced as evidence must be marked about or submitting the evidence earlier; Council may limit the issues it
for identification and incorporated into or considers if it notifies you and the other
the record. The official record of your (3) Some other unusual, unexpected, parties of the issues it will review.
claim will contain all of the marked or unavoidable circumstance beyond (b) Oral argument. You may request to
exhibits and a verbatim recording of all your control prevented you from appear before the Appeals Council to
testimony offered at the hearing; it also informing us about or submitting the present oral argument. The Appeals
will include any prior initial evidence earlier. Examples of Council will grant your request if it
determinations or decisions on your circumstances that, if documented, the decides that your case raises an
claim. Appeals Council may consider important question of law or policy or
■ 25. In § 416.1468, revise the second accepting the evidence include, but are
that oral argument would help to reach
sentence of paragraph (a) to read as not limited to, the following:
a proper decision. If your request to
follows: (i) You were seriously ill, and your
appear is granted, the Appeals Council
illness prevented you from contacting
§ 416.1468 How to request Appeals will tell you the time and place of the
us in person, in writing, or through a
Council review. oral argument at least 10 business days
friend, relative, or other person;
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(a) * * * You should submit any before the scheduled date. The Appeals
(ii) There was a death or serious
evidence you wish to have considered illness in your immediate family; Council will determine whether your
by the Appeals Council with your (iii) Important records were destroyed appearance, or the appearance of any
request for review, and the Appeals or damaged by fire or other accidental other person relevant to the proceeding,
Council will consider the evidence in cause; or will be in person, by video
accordance with § 416.1470(b). * * * (iv) You actively and diligently sought teleconferencing, or by telephone.
■ 26. Revise § 416.1470 to read as evidence from a source and, through no [FR Doc. 2016–16265 Filed 7–11–16; 8:45 am]
follows: fault of your own, the evidence was not BILLING CODE P

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Document Created: 2016-07-12 01:59:42
Document Modified: 2016-07-12 01:59:42

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking (NPRM).
Dates		To ensure that your comments are considered, we must receive them no later than August 11, 2016.
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.
FR Citation		81 FR 45079
RIN Number		0960-AH71
CFR Citation		20 CFR 404 20 CFR 405 20 CFR 416
CFR Associated		Administrative Practice and Procedure; Blind; Disability Benefits; Old-Age; Survivors; Disability Insurance; Reporting and Recordkeeping Requirements; Social Security; Disability Insurance; Public Assistance Programs; Reporting and Recordkeeping Requirements; Social Security; Supplemental Security Income (ssi); Administrative Practice and Procedure; Aged; Blind; Disability Benefits and Public Assistance Programs; Reporting and Recordkeeping Requirements; Supplemental Security Income (ssi)