The Social Security Administrations Disability Service Improvement: Final Rules and Implementation

by Andrew Woo, MPLP Law Clerk

The final changes to the rules governing disability claims process with the Social Security Administration were published in the Federal Register on March 31, 2006. 71 Fed. Reg. 16424 (Mar. 31, 2006). The rule changes establish a new disability determination process called the Disability Service Improvement (DSI) process. Implementation of the new regulations will begin on August 1, 2006 in Region I states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont). DSI will be rolled out beyond the Region I states on a gradual, region-by-region basis. Region I will be the only region to implement DSI for at least one year. DSI will only apply to new disability applications filed after August 1, 2006 in Region I states. Claimants who move out of their region will follow the process under which their claim was originally filed.

Changes in the Disability Determination Process

The following table illustrates the differences between the new DSI process and the current process for disability determination:

1 - with Quick Disability Decision if applicable
2 - Michigan has no Reconsideration stage as one of 10 states in part of a SSA prototype pilot
3 - not claimant-initiated, except for ALJ dismissals

Federal Reviewing Official

The Federal Reviewing Official level replaces the Reconsideration level in the current process. Claims that are initially denied will inform claimants that they have the right to appeal within 60 days to the Federal Reviewing Official (RO). It will also explain the right to representation at the RO level. New evidence may be submitted at any time up to the time the decision is issued. If new evidence is submitted, or the RO disagrees with the initial decision, the RO must consult with the new Medical and Vocational Expert System (MVES). The RO will have final decision-making authority.

The Social Security Administration describes the new RO level as the linchpin of the new DSI process. The SSA anticipates that the required notice for the right to representation in the initial denial notice will lead to earlier representative involvement. The SSA hopes that the earlier representative involvement will result in more correct decisions earlier in the appeals process.

Administrative Law Judge Hearing

The new rules contain many changes regarding the submission of evidence to the Administrative Law Judge. The rules set a goal for ALJs to set a hearing date within 90 days of an appeal. The ALJ must provide 75 days notice before the hearing. After receiving a hearing notice, the claimant has 30 days to object to the time or place of the hearing. Objections to issues in the hearing notice must be filed at least 5 business days before the hearing.

Of paramount importance to advocates are the procedural changes for submitting evidence for an ALJ hearing. The new rules add new deadlines for evidence submission (the current regulations allow evidence submission anytime, including at the hearing). While the final version of the rules offer a more generous time table for a claimant to submit evidence compared to prior versions of the rules, there is still some concern whether the rules are consistent with the claimants right to a hearing with a decision based on evidence adduced at the hearing, 42 U.S.C. 405(b), or whether the deadlines are realistic considering the fact that representation is often obtained just before an ALJ hearing, or sometimes even after the hearing. The following table lists the circumstances in which an ALJ must accept and consider new evidence:

Deadlines and Circumstances for Submitting Evidence to the Administrative Law Judge:

* - Good Cause means the claimant shows that: 1) SSA action misled the claimant; or 2) the claimant has a physical, educational, or linguistic limitation that prevented earlier submission of the evidence; or 3) some other unusual unexpected, or unavoidable circumstance beyond the claimants control prevented earlier submission. Examples of circumstances satisfying 3) can be found in 20 C.F.R. 405.20(b) (ex. (b)(4): You were trying very hard to find necessary information to support your claim but did not find the information within the stated time period)

The rules no longer require claimants to submit adverse evidence. The ALJ also has the discretion, at the hearing, to hold the record open for new evidence if there is outstanding evidence or if the claimant is to undergo additional medical evaluation.

Decision Review Board

The final rules eliminate the Appeals Council level in the current process. Under DSI, there will no longer be any claimant-initiated appeals except for ALJ dismissals. Instead, the Decision Review Board (DRB) will review ALJ decisions, both favorable and unfavorable. For the initial test period, the DRB will review all or almost all ALJ decisions. Eventually, ALJ decisions will be screened by computer-based predictive screening tools that select claims for review based on an increased likelihood of error or because of new policies.

If a claim is not selected for DRB review, the ALJ decision will be sent to the claimant and will serve as the Social Security Administrations final decision, and the claimant will have 60 days to appeal to federal court. If the claim is selected for DRB review, the ALJ decision will be sent with a DRB Notice of Review. The DRB will have 90 days after the DRB notice is received to complete action, otherwise the ALJ decision will be final. The DRB standard of review for ALJ findings of fact is to affirm only if they are supported by substantial evidence. ALJ application of law is reviewed de novo. Clients will not be put in pay status while waiting for a DRB decision.

It is not entirely clear how the predictive screening tool will identify error-prone cases for review by the DRB. The Social Security Administration states that the tool is not yet developed, and that throughout the first year of the DSI implementation, SSA will closely analyze ALJ decisions while developing the predictive model. The SSA is also looking at voluntary and court-ordered remands to get a preliminary model that they will use to see which cases are selected.

Conclusion

The SSA intends to do outreach with representatives and advocates in the Region I test phase, including regular meetings to provide feedback to SSA. More information on DSI can be found on the NOSSCR web site: www.nosscr.org and the SSA web-site for DSI at www.ssa.gov/disability-new-approach. The rule changes published in the Federal Register can be found at http://www.ssa.gov/disability-new-approach/3203FReg.htm. Information in this article compiled from the March 2006 and April 2006 issues of the NOSSCR Forum.