I have heard some skepticism that the Notice of Proposed Rule Making (NPRM) in the Federal Register today really means that henceforth remands and reversals will be for closed periods of disability only. I do not blame anyone for being skeptical since this seems so bizarre. Here is the exact language of the NPRM:
The administrative law judge's hearing decision in your case adjudicated the issues relevant to your case for the period of time up to and including the date the hearing decision was issued. If you or another party files an appeal of that hearing decision, or if the Review Board decides to review the decision on its own motion, the appeal and any subsequent proceedings will consider only that period of time ending with the date of the first hearing decision in your case. If the original hearing decision in your case is set aside, in whole or in part, by the Review Board or a Federal court and remanded to an administrative law judge for a new hearing or decision, the proceedings on remand will consider your case only with regard to the period ending on the date of the original administrative law judge decision in your case.Any interpretation of this language other than to mean that remands are for closed periods only seems awfully strained to me.
Does Mr. Hall read the proposed new regs are barring ALJs from ever finding more than a closed period? Let’s assume not. Let’s assume that Mr. Hall is only reading the proposed new regs as imposing a restriction to closed periods on remand.
ReplyDeleteNext, let’s bear in mind that the evidentiary record is going to close at the time of the ALJ’s first decision, with the new Review Board considering new evidence only under some fairly restrictive circumstances. One of these restrictive circumstances is that the new evidence needs to present some reasonable probability of changing the outcome of the ALJ’s decision.
On this understanding of Mr. Hall’s interpretation, we get this:
1. The first time an ALJ looks at the evidence, he or she can find an ongoing disability.
2. If the ALJ denies, and there’s some new evidence that both squeezes through the other parts of the good cause keyhole and also could reasonably change the decision,, then when the ALJ looks at the evidentiary record a second time, as supplemented by this new favorable evidence, he or she will only be able to find a closed period.
I ask you, is this nonsense, or what?
If Mr. Hall’s interpretation proves accurate, then I will claim title as a horse’s ass for doubting him so strongly. But a different outcome will justify awarding titles in a different direction.
Is there anything other than its nonsensical character that stands opposed to Mr. Hall’s interpretation? Yes. Look at 72 FR 61222 for SSA’s explanation of why it wants to limit the period. The entire discussion is about how SSA wants to limit the current problems with trying to hit the moving target that arise when there’s a requirement “to consider changes in the individual’s condition after the date of the first ALJ’s decision on the claim” (middle column, top).
All this closed period stuff is about forestalling the need to consider an onset of disability after the date of the first ALJ decision. So it’s not about closed periods. It’s about no later onsets.
Of course, it might be that I’m a horse’s ass.
Strong language requires ownership. This is JOA.