What Does The Proposal Mean?

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.

Proposed New Rules Would Limit Remands To Closed Periods Only

My first reading was that the proposed rules concerning Administrative Law Judge (ALJ) decisions and the Review Board, which is to replace the Appeals Council, say that if the Review Board or a Federal Court remands a case that the ALJ may only consider the time period up to the initial ALJ decision. I am surprised to say that my second reading is the same. This would mean that on any remand, an ALJ could only award a closed period of disability up to the date of the initial ALJ decision.

To say this comes out of left field is to put it mildly. I had not heard anything previously indicating that such an idea had ever been under consideration. I cannot imagine that this was under consideration for more than a short time before publication, since word would have leaked out if this proposal had been around long.

I do not see how this comports with the medical improvement standard, which applies to closed period cases. In remand cases, benefits would be cut off even though the evidence would show no improvement and might well show a decline in the claimant's condition. Indeed, the claimant might be dead and yet his or her benefits would be summarily cut off as of the date of the first ALJ decision. The claimant would have to show all over again that he or she was disabled.

If the Social Security Administration has the power to do this, the logical corollary would be that the Social Security Administration has the power to limit any determination of disability at any level of review to a closed period of disability, meaning that once any claimant was approved for Social Security disability benefits, he or she would have to immediately begin a new claim for disability benefits if he or she wished more benefits. Obviously, this would make a mockery of the medical improvement standard and, indeed, would make Social Security disability benefits a never ending merry-go-round that would eventually exhaust any claimant, no matter how disabled.

I do not see how the Social Security Administration may limit the effect of a United States District Court remand in this way. I would expect that many District Courts would issue specific orders to the contrary.

I am surprised that the Social Security Administration would undertake such a dramatic change in its procedures without any prior notice to Congress as best I can tell. I think this will not play well with the Senate Finance Committee and House Social Security Subcommittee.

On a more personal level, why was it that neither Michael Astrue nor Lisa De Soto mentioned anything about this when they spoke at the conference of the National Organization of Social Security Claimants Representatives (NOSSCR) just a weeks ago? They mentioned other items from this proposal but did not mention this dramatic item. (And, by the way, there are other bad items in this that they did not mention. This is just the most dramatic. I will get to the others as I have time.) Why speak at all if you are going to do this?

What is not completely clear to me is whether the proposal would limit the effect of any reversal by the Review Board or a United States District Court to a closed period. I think this is what is intended, but I have so far been unable to find any language in the proposal that specifically covers this situation. It would be inconsistent if this is not what was intended. The lack of clear language on this point adds to the impression that this part of the regulatory proposal was drafted hurriedly.

I think what bothers me the most about this is that it creates a classic trap for the unwary. Experienced Social Security attorneys can mostly get around the problem created by this provision by having the claimant file a new claim in addition to an appeal. By the time any remand happens, there will be a new claim to be consolidated with the remand in order to get full justice for the claimant. It will only be the claimants represented by inexperienced attorneys or who are unrepresented who will be hurt by this.

If Congress can add a budget rider that limits the Social Security Administration's ability to close field offices, Congress can certainly add a budget rider prohibiting the expenditure of funds for preparing final regulations based upon this proposal. It may be necessary for Congress to take action to preserve the status quo until the Bush Administration leaves office.

Former Social Security Employee Sentenced To Prison

From CitizensVoice.com of Wilkes-Barre, PA:

Cynthia Sweppenheiser, whose age and address were unavailable, went before U.S. District Judge William J. Nealon and admitted to converting government property.

Assistant U.S. Attorney Lorna Graham said Sweppenheiser was a customer service technician at the Luzerne County branch of the Social Security Administration in 2006.

On several occasions, she tried to divert social security payments to her personal bank accounts. In September 2006, she deposited into her accounts about $6,000 meant for a social security recipient, according to Graham.

If she had been successful in all of her attempts, authorities estimate she could have taken more than $30,000, according to court records.

Sweppenheiser has since resigned from her position at the Social Security Administration, Graham said.

Although the maximum prison sentence is 10 years, she’ll likely face no more than a year in prison under sentencing guidelines, according to court paperwork. She also may have to pay back the money she admitted to stealing, under the plea agreement filed Thursday.

An Image From Social Security History

Disability Claim In The Future?

I have already posted about Mike McNulty's expected retirement from Congress. McNulty is the Chairman of the Social Security Subcommittee of the House Ways and Means Committee, making him a VIP in the Social Security world. Now comes word of the probable reason for his retirement from Congress at a relatively young age -- 60. He has a history of childhood polio and has become less mobile in recent years. Post-polio syndrome? Hint to McNulty: File your Social Security disability claim the same day you stop work. Post-polio syndrome claims are often denied. Appeals can take a very long time.

Proposed Regulations Concerning ALJ Hearings And Appeals

These official publication date on these proposed regulations is Monday, but you can read them now. These will prove to be controversial. Here are a few excerpts from Social Security's summary:

We also propose to replace both the Appeals Council and the Decision Review Board with a new adjudicative body to be named the ‘‘Review Board.’’ ...

To ensure individuals have adequate time in which to prepare for the hearing and meet the deadlines for submitting evidence, we propose requiring ALJs to notify an individual of the time and place of the hearing at least 75 days before the date of the hearing, unless the individual agrees to a shorter notice period. ...

[N]o later than 5 business days before the hearing, they [claimants] must submit all of the evidence to be relied upon in a case. ...

The 5-day time limit for submitting evidence would be subject to exceptions, depending on when the individual attempts to present the additional evidence. If the individual requests to submit evidence within the 5 business days immediately preceding the hearing, the ALJ would accept and consider the evidence if:
1. Our action misled the individual (for example, if the wrong notice was accidentally sent to you, or you were provided misinformation over the phone);
2. The individual had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or
3. Some other unusual, unexpected, or unavoidable circumstance beyond the individual’s control prevented the individual from submitting the evidence earlier. If the individual requests to submit evidence after the hearing but before the hearing decision is issued, the ALJ would accept and consider the evidence if the individual makes one of the three showings above and there is a reasonable possibility that the evidence would affect the outcome of the case. ...

At any time before the hearing begins, an individual could submit, or the ALJ could request the individual to submit, a prehearing statement on the issues arising in the case. In this statement, the individual should briefly discuss the issues; describe the supporting facts; identify witnesses; explain the evidentiary and legal basis upon which he or she believes the ALJ should find in his or her favor; and provide any other comments, suggestions, or information that might assist in preparing for the hearing.
...

The proposed rule differs from the current rule in that it specifies that the ALJ may direct a witness, other than the individual who requested the hearing, to appear by video teleconference if: (1) Video teleconference is available, (2) use of the technology would be more efficient than conducting an examination of a witness in person, and (3) the ALJ determines that there is no other reason why a video hearing should not be conducted. ...

In addition, this proposed rulespecifies that the ALJ would retain discretion at the time of the hearing to hold the record open for the submission of additional evidence. If an individual were aware of any additional evidence that the individual was unable to obtain and submit before or at the hearing or if the individual were scheduled to undergo additional medical evaluation after the hearing for any impairment that forms the basis of the case, the individual should inform the ALJ of the circumstances during the hearing. If the individual were to request additional time to submit the evidence, the ALJ could exercise discretion and choose to keep the record open for a defined period of time to give the individual the opportunity to obtain and submit the additional evidence. ...

Our proposed rule would specify that the ALJ must explain, in clear and understandable language, the reasons for his or her decision. ...

[W]e propose to extend the additional evidence requirements we are proposing for the hearing level to the Review Board level, with a further restriction that additional evidence offered by the individual may be accepted by the Review Board only if there is a reasonable probability that it, alone or when considered with the other evidence of record, would change the outcome of the decision. ...

[W]e propose to remove ‘‘new and material evidence’’ as a basis for reopening any decision made at the hearing or Review Board levels on a claim for benefits based on disability. ...

[W]e propose in these rules that throughout any appeal to the Review Board, and during any subsequent administrative proceedings on remand from the Review Board or a Federal court, the proceedings will consider only the claimant’s eligibility for benefits on or before the date of that first ALJ hearing decision on the claim for benefits.

The estimate given in the proposal is that if these regulations are adopted that over $1.5 billion will be saved over the next ten years.

Bristol Field Office To Stay Open -- For Now

Will it be possible for Social Security to close any field offices? From a press release issued by Representative John Larson (CT-D):

The Social Security Administration (SSA) told the Connecticut Congressional Delegation today that it has decided to keep the Bristol office open for at least another three months while they reevaluate their decision to close it.

Senators Chris Dodd and Joe Lieberman, as well as Congressman John B. Larson CT-01, Vice Chair of the Democratic Caucus, have worked tirelessly with the community and Administration to keep this office open. Most recently, Lieberman and Dodd were successful in getting an amendment introduced and included in an appropriations bill [which has passed the Senate, but not the House of Representatives, much less been signed by the President] that would prohibit SSA from closing the Bristol office until they meet certain requirements.

Federal Register Alert

The Social Security Administration has posted the following notice of an item to appear in the Federal Register on Monday:

PROPOSED RULES

Organization and procedures:

Administrative Law Judge, Appeals Council, and Decision Review Board appeals levels; amendments, E7-20690