Statement of Sarah H. Bohr, President, National Organization of Social Security Claimants’ Representatives, Atlantic Beach, Florida

Testimony Before the Subcommittee on Social Security
of the House Committee on Ways and Means

June 15, 2006

Chairman McCrery, Representative Levin, and Members of the Social Security Subcommittee, thank you for inviting NOSSCR to testify at today's hearing on the Social Security Administration’s (SSA) improved disability determination process.

My name is Sarah H. Bohr and I am the president of the National Organization of Social Security Claimants’ Representatives (NOSSCR).  Founded in 1979, NOSSCR is a professional association of attorneys and other advocates who represent individuals seeking Social Security disability or Supplemental Security Income (SSI) benefits.  NOSSCR members represent these individuals with disabilities in legal proceedings before the Social Security Administration and in federal court.  NOSSCR is a national organization with a current membership of more than 3,600 members from the private and public sectors and is committed to the highest quality legal representation for claimants.  NOSSCR is a member of the Consortium for Citizens with Disabilities Social Security Task Force and we endorse the testimony presented today by Marty Ford on behalf of the Task Force. 

I currently am an attorney in a small law firm in Jacksonville, FL, that specializes in Social Security appellate work.  Our firm writes briefs for cases before the Appeals Council and in the federal courts, including district courts in over 17 states and six circuit courts of appeals.  I also successfully argued a case before the United States Supreme Court, Sims v. Apfel, 530 U.S. 103 (2000).  I have specialized in Social Security law for over twenty-five years, including 21 years with a legal services program in Jacksonville, where I represented claimants at all administrative and judicial levels, from the initial application through the federal court appellate process.  I also am the author of Bohr’s Social Security Issues Annotated, which surveys Social Security caselaw from all of the federal circuits.

The final regulations on the new Disability Service Improvement process (DSI) were published on March 31, 2006, at 71 Fed. Reg. 16424 (Mar. 31, 2006).  The public’s interest in these changes can be gauged by the nearly 900 comments that were received in response to the July 27, 2005 proposed rule.

We appreciate the Commissioner’s willingness to discuss her proposal and listen to our views.  Based on the comments to the proposed rule, the final rule reflects a number of changes, including many that are definite improvements from a claimant’s perspective.  However, there are many areas that will require close scrutiny by claimants’ representatives and that SSA will need to monitor to ensure that the goals of DSI are achieved.  My testimony today will discuss these areas of concern, focusing on the Administrative Law Judge (ALJ) and Decision Review Board (DRB) levels.  

I.        Implementation of the DSI Process

DSI will apply only to those claims that are filed in SSA Region I states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont) on or after August 1, 2006.  Region I will be the only DSI location for at least one year. 

NOSSCR is working closely with its members in Region I states to provide ongoing information and support regarding DSI.  In July, NOSSCR and the Disability Law Center (DLC) in Boston, MA, will hold an all day seminar in Boston.  The goal of the meeting is to provide information and training to Region I members shortly before DSI starts on August 1.  Key SSA officials will attend and present updates on DSI implementation.  NOSSCR also has worked with DLC to set up a listserve for Region I representatives to share new and updated information about DSI, and to discuss experiences with DSI and issues that will arise.  In addition, NOSSCR has created a DSI link on its website, www.nosscr.org, and information also will be posted on a special website maintained by the Disability Law Center, www.masslegalservices.org/cat/3221.  Because SSA will follow the process under which the claim was originally filed, we are encouraging our members in non-Region I states to become familiar with the DSI process.  Claimants who filed under DSI might move to their states outside Region I and seek representation. 

II.       General Issues

As noted above, NOSSCR is a member of the Consortium for Citizens with Disabilities Social Security Task Force and we endorse and incorporate the issues presented in Marty Ford’s testimony today.  In particular, we strongly support the need to fully fund SSA’s Limitations on Administrative Expenses and give SSA the resources to adequately handle its workload.  The Subcommittee is well aware of the increasing delays in processing disability claims.  Just last month, the Commissioner testified how cuts in the President’s proposed budget for SSA impact the agency’s ability to meet its current responsibilities.  For DSI to succeed, SSA needs to receive the President’s full budget request.

Other DSI issues covered in more detail in the CCD testimony include:  better development of the evidence earlier in the process; the Quick Disability Decision process; and the Medical and Vocational Expert System (MVES).  There are several other general issues that we would like to mention: 

• What is a “disability claim”?  The DSI regulations state that the new process applies to “disability claims.”  20 C.F.R. § 405.1.  Many disability claims involve issues which do not strictly deal with the evidence of disability, but are integral parts of the claim, e.g., work-related issues, Title II insured status.  They are part of the disability claim and SSA needs to clarify which set of procedures applies.
• Dealing with two appeals processes.  Most representatives will be trying to manage cases in both the current and DSI processes.  And, as described above, it is possible that one client may have issues from the same application in both the DSI and current processes.  What will be SSA’s policy if an appeal is filed in the wrong system?  Will it provide a protective filing date?  This problem is not covered by the DSI regulations but needs to be addressed by SSA.  Claimants should not be penalized.
• The electronic folder – eDIB.  NOSSCR generally supports Commissioner Barnhart’s technological initiatives to improve the disability claims process, so long as they do not infringe on claimants’ rights.  The electronic disability folder, “eDIB,” has the prospect of significantly reducing delays by eliminating lost files, reducing the time that files spend in transit, and preventing misfiled evidence.  We want to thank the Commissioner for her inclusive process to seek comments about the eDIB changes, which will help to ensure that claimants benefit from these important improvements.  We have had several very productive meetings and we appreciate this valuable opportunity to provide input.

With electronic folders, claimants’ representatives will be able to obtain a single CD that contains all of the evidence in the file.  Early access to the record will allow representatives to determine what additional evidence is needed.  SSA needs to ensure that access to CDs is available at all administrative levels – the DDS, the Reviewing Official, the administrative law judge, and the Decision Review Board.

Given the need for claimants and their representatives to have access to the file at all levels of the process as early as possible, SSA should explore allowing claimants’ representatives to have online access to the files through secure sites, such as those now used by the federal courts.  This would free up SSA staff, now providing information about claims, to perform other tasks.

• Reopening.  In a major change from the proposed rule, the final rule keeps the current reopening rules in place for all claims adjudicated prior to the hearing level.  This means that ALJs may reopen decisions at the state agency or RO level and the RO may reopen decisions at the state agency level. However, once an ALJ decision is issued and is the Commissioner’s “final decision,” reopening of that decision is limited to six months from the date of the decision and “new and material evidence” is not a basis for good cause. 

Reopening situations currently do not arise that often, but when they do, they usually have compelling fact patterns involving claimants who did not understand the importance of appealing an unfavorable decision. Often they are claimants who have mental impairments, who previously were unrepresented, or who were unable to adequately articulate their claim in the first application.  SSA should monitor subsequent claims at the ALJ and DRB levels to determine whether the DSI reopening rules preclude claimants from eligibility under a prior claim that would be reopened under the current, non-DSI regulations based on “new and material” evidence.

III.      The Federal Reviewing Official

DSI eliminates the reconsideration level.  If a claim is denied at the initial level, the claimant will be informed of the right to appeal to the Federal Reviewing Official (RO).  SSA foresees representative involvement at this level by including, for the first time at this early point in the process, information about the right to representation.  20 C.F.R. § 405.115.  The notice also will provide more specific reasons and a detailed rationale for the initial denial.

SSA has described the new RO level as the “linchpin” of the DSI process.  The RO level will be federal and centrally managed by SSA.  ROs will be attorneys who are “highly qualified” and “thoroughly trained in SSA policies and procedures.”  ROs can be located anywhere in the country since they will be using electronic folders and will not see claimants in person.  Initially, all ROs will be located in Falls Church , VA.  ROs will handle cases from different states.

Questions to consider:

• Will staffing at the RO level be adequate?  How many ROs will be hired to handle Region I cases?  The agency also has stated that it does not want to hire staff attorneys away from hearing offices, since that will cause further problems in those offices.  But where else will SSA find attorneys who are “highly qualified” and “thoroughly trained” in SSA policies?
• Will ROs have adequate support staff to assist in their duties, especially, development of the record?
• What steps will ROs take to fully develop the evidence to create a complete record?
• As authorized by the regulations, will ROs use treating physicians as the preferred source for consultative examinations (CEs)?  SSA should track the use of CEs and who performs them.
• Do claimants seek representation at the RO level?  
• Are claimants’ representatives able to effectively contact ROs?  Does representation earlier in the process contribute to better developed records?  Can representatives easily communicate with ROs, including both the ability to submit new evidence and the ability to get timely responses from the RO?
• Do RO interactions with the MVES go smoothly?  ROs are required to “consult” with the MVES if either new evidence is submitted at the RO level or if the RO disagrees with the DDS’s decision, i.e., wants to allow the claim. Will this requirement to consult cause unreasonable delays and/or erode the authority of the RO?
• SSA should maintain statistics on: 
  • The number of claimants who are represented at the RO level
  • The time frames for the RO to issue decisions in cases where the RO consulted with the MVES and in cases where no such consultation occurred
  • The frequency with which the MVES agrees or disagrees with the decision of the RO
  • A comparison in the processing times between the RO level and the reconsideration level
  • The allowance rates at the RO level compared with the allowance rates at the reconsideration level
  • The extent to which RO decisions reduce state disparities

IV.      The Administrative Law Judge Level

The final DSI regulations include provisions that will benefit claimants, including retaining the de novo hearing before an administrative law judge (ALJ) and, for the first time, setting a goal (but not requirement) that the claimant receives a hearing date within 90 days after the appeal is filed (although the hearing could be held after the 90 days).  SSA should monitor the rate at which the goal of setting the hearing date within 90 days is achieved.  Also, the time for providing notice of the hearing date is increased from 20 to 75 days, with the goal of providing adequate time to obtain new evidence. The final rule includes new limits and procedures for submission of evidence.  These changes will need to be closely monitored to make sure that claimants who meet the statutory definition of disability are not wrongfully denied benefits. 

A. Submission of Evidence

The DSI regulations require that new evidence be submitted at least five business days before the hearing.  20 C.F.R. § 405.331(a).  After that point, depending on when the evidence is submitted, the ALJ is required to consider the evidence if the claimant meets the specific requirements in the DSI regulations.   

The final rule is clearly better than the proposed rule, which required submission at least 20 days before the hearing and had stricter requirements for later submission, but it still represents a major change for practitioners.  It also is an area that will require close monitoring to ensure that ALJs correctly apply the regulations, especially in light of 42 U.S.C. § 405(b), which provides that the claimant has the right to a “hearing” with a decision based on “evidence adduced at the hearing.”  Under pre-DSI regulations that are consistent with the statute, the claimant can submit evidence anytime, including at the hearing.  20 C.F.R. §§ 404.929 and 416.1429.

Under DSI, evidence can be submitted within the 5-business-day period before the hearing, in certain situations. 20 C.F.R. § 405.331(b).  The ALJ “will” (i.e., “must”) accept and consider the new evidence if the claimant shows that:  (1) SSA’s 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 claimant’s control” prevented earlier submission.

These three exceptions form the basis for submission of evidence within 5 business days of the hearing and later.  They are the same as the new “good cause” exceptions to extend the time to file an appeal in 20 C.F.R. § 405.20(a).  The “good cause” regulation at section 405.20(b)(4) provides the example relevant to efforts to obtain evidence:  “You were trying very hard to find necessary information to support your claim but did not find the information within the stated time period.” 

Based on this statement in the “good cause” regulation, SSA has said that the ALJ must accept new evidence within the 5-day time period if it has been requested but not obtained.  In making this statement, SSA relies on the exception in 20 C.F.R. § 405.331(b)(3), i.e., the circumstance beyond the claimant’s control, and then refers to the example in 20 C.F.R. § 405.20(b)(4). 

However, the evidence submission regulation, 20 C.F.R. § 405.331, does not explicitly reference the good cause regulation, 20 C.F.R. § 405.20, or more specifically, the examples in § 405.20(b). What happens if an ALJ refuses to accept evidence within the 5 day period, even if the exceptions are met? Is there a violation of 42 U.S.C. § 405(b)?  SSA says no.  But it remains an open question and this area will require very close monitoring.

Submission of evidence after the hearing.  The final rule provides that new evidence can be submitted after the hearing, but under stricter circumstances.  Between the hearing and the ALJ decision (and if the ALJ does not hold the record open at the hearing), the requirements for evidence submission are similar to those for submission within 5 days of the hearing.  But this rule, 20 C.F.R. § 405.331(c), has an additional significant requirement.  The claimant must (1) meet one of the three exceptions discussed above and (2) show that there is a “reasonable possibility” that new evidence, alone or with the other evidence, would “affect” the outcome of the claim.

After the ALJ decision and if the DRB does not review the ALJ decision, i.e., the ALJ decision becomes the “final decision” of the Commissioner, the claimant may submit new evidence to the ALJ, but with even more additional requirements.  Under 20 C.F.R. § 405.373, the claimant must (1) meet one of the three exceptions described above; and (2) show that there is a “reasonable probability” that new evidence, alone or with the other evidence, would “change” the outcome of the decision; and (3) file the request with the ALJ within 30 days of receiving the ALJ decision.

Questions to consider:

• What is the actual experience regarding ALJs’ consideration of new evidence submitted within five days of the hearing and later? As discussed above, the final DSI rules give ALJs a fair amount of discretion in determining whether to consider new evidence.  SSA should track the number of requests to submit evidence within 5 business days of the hearing or later and the ALJ’s decision on the request.   This information will help determine whether ALJs are following the regulations.
• What happens if an ALJ refuses to accept evidence even if the regulations are met?  Does this violate 42 U.S.C. § 405(b) regarding the claimant’s right to a decision based on evidence adduced at a hearing?
• Will ALJs’ denials of requests to submit new evidence lead to more district court filings?  Under 42 U.S.C. § 405(g), the court can remand a case to SSA for consideration of “new” and “material” evidence where there is “good cause” for not submitting it earlier.  Will an ALJ’s failure to follow the regulations amount to such “good cause”?  Will the DRB pick up cases where the ALJ improperly refused to accept new evidence?
• SSA should clarify its policies so that the examples in the “good cause” regulations, 20 C.F.R. § 405.20, also apply to the evidence submission regulations, 20 C.F.R §§ 405.331 and 405.373.
• How do ALJs interpret the rule for evidence submission after the hearing, which requires a “reasonable possibility” the evidence would “affect” the outcome? And the rule for evidence submission after the hearing decision, which requires a “reasonable probability” the evidence would “change” the outcome? What is the actual difference between the two standards? “Possibility” vs. “probability”?  “Affect” vs. “change”?
• Are the rules implemented in a way that is consistent with the realities of claimants obtaining representation?  How are the rules applied if a claimant seeks representation shortly before the hearing?  Or within 5 days of the hearing?  Or after the hearing is held or the ALJ decision is issued?  Based on the experience of our members, claimants who seek and obtain representation shortly before the hearing (or after the hearing) is not an uncommon occurrence since the ALJ hearing is the first in-person contact with an adjudicator (this will not change under DSI).
• Are the rules applied in a way that is consistent with the realities of obtaining medical evidence both before and after the hearing?  While we believe the 75-day hearing notice will be a great help, we still anticipate delays in obtaining medical records.  We strongly support early submission of evidence; however, our members frequently have great difficulty obtaining necessary records, which is outside their control.  While the 75-day notice is a great help, nothing requires medical providers to turn over records within that time period.

B.  The ALJ decision

The ALJ decision must explain in detail why the ALJ agrees or disagrees with the Reviewing Official’s findings and rationale.  20 C.F.R. § 405.370(a).  In addition, SSA has developed templates, currently voluntary, for ALJ decisions. 

Questions to consider:

• SSA needs to make sure that the decision-making process does not undermine a claimant’s right to a de novo hearing and that it does not compromise the ALJ’s decisional independence.  SSA needs to monitor whether the ALJ’s obligation to justify disagreeing with the RO interferes with this independence.
• Does any element of the process make it harder for the ALJ to allow a claim than to deny a claim?
• Do ALJs give the RO decision and/or findings any special weight? 

C.  Video hearings

Over the past few years, SSA has held an increasing number of hearings by video teleconferencing. Video hearings provide SSA with management flexibility and administrative efficiency and give SSA a way to balance workloads and help claimants whose local hearing offices have huge backlogs.  However, based on our members’ experience, SSA has not perfected the video hearing environment and, for many, the video hearing process is not a satisfactory replacement for in-person hearings.

SSA’s regulations and policies guarantee claimants an absolute right to decline to appear by video hearing and to request an in-person hearing, so long as the request is timely.  The claimant is not required to explain why an in-person hearing is requested.  The final DSI regulations reaffirm this right.  20 C.F.R. § 405.315(c). 

Questions to consider:

• We continue to hear of instances where ALJs do not follow SSA’s regulations and fail to provide an in-person hearing when requested or require a reason for the request. As SSA increases the use of video hearings, the agency needs to make its policy instructions clear regarding the claimant’s absolute right to have an in-person hearing and that no reason is required.
• Under DSI, if the claimant objects to the time or place of the hearing, the objections must be made in writing within 30 days of receiving the hearing notice.  20 C.F.R. § 405.317(a).  SSA needs to clarify whether a claimant has the same 30-day period to object to a video hearing.  Section 405.315(c) does not reference § 405.317(a).

D.  ALJ dismissals

Under DSI, the only ALJ decision that a claimant can appeal to the Decision Review Board is where the ALJ dismisses the case.  These decisions are often legally erroneous but must be addressed before the substantive disability issues can be considered.  The DSI regulations require that a claimant first ask the ALJ to vacate the dismissal before asking the DRB to act.  However, there is no time limit for the ALJ to act on the request to vacate.

Questions to consider:

• Should there be a time limit for the ALJ to act on a request to vacate a dismissal?  After that time limit, the claimant could automatically proceed to the DRB.
• How long does it take ALJs to rule on requests to vacate dismissals?  SSA should monitor the length of time it takes ALJs to make decisions on requests to vacate dismissals. 
• Is there any change in the rate of dismissals under DSI than under the current regulations?  What is the rate at which the DRB overrules the ALJs dismissals under DSI?

V.      Decision Review Board and the Impact on the Federal Courts

The final rule eliminates the Appeals Council and the claimant’s right to initiate administrative review of an unfavorable ALJ decision (other than ALJ dismissals).  Instead, the Decision Review Board (DRB) will select cases, both favorable and unfavorable, for own-motion review using a “predictive screening tool” that will identify “error-prone” cases. 

In the preamble to the final rule, SSA recognized that many commenters were very concerned about the elimination of the claimant’s right to appeal and the impact on the federal courts.  As a result, SSA emphasizes several points:  implementation will be very gradual; the only claims affected will be those that go through the DSI process from the beginning; the Appeals Council will continue to operate in states where DSI is not implemented (for now, everywhere except Region I) and for all nondisability claims (including Region I states).

The elimination of claimant-initiated administrative review of unfavorable ALJ decisions and creation of the DRB presents one of the major changes under DSI.  The DRB process raises many concerns and issues and will require very close monitoring to assess the impact on claimants, on the courts, and on SSA.

A. Impact on the Federal Courts

Over the years, the courts have played a critical role in protecting the rights of claimants.  We support the current system of judicial review and are pleased that the DSI final rule does not impair that right, except to the extent it could be affected by the procedural change of eliminating claimant-initiated review and significantly increasing the number of court filings.  SSA is aware of these concerns, which also have been raised by the Judicial Conference of the United States. While it will be very important to closely monitor the impact of the final DSI changes on the courts, it will be much longer than the one year of Region I DSI implementation before we have any true sense of the impact.  And, we may not have a full assessment until after SSA has expanded DSI implementation into another region. 

Questions to consider:

• To assess the impact of eliminating Appeals Council review on the federal courts, SSA should track the following:
  • Number of ALJ decisions:  favorable and unfavorable
  • Disposition of cases by DRB, including the number where it disagrees with the ALJ
  • Number of court filings
  • Number of pro se court filings and number of filings by attorneys
  • Court dispositions, including numbers and reasons for action:
    • Remands:  voluntary remands under sentence six of 42 U.S.C. 405(g)
    • Remands:  by court decision for errors of law or fact under sentence four of 42 U.S.C.405 (g)
    • Remands:  by court decision for new and material evidence and good cause for not submitting earlier under sentence six of 42 U.S.C.
    • Reversals under sentence four of 42 U.S.C. 405(g) Affirmances
• Do the new rules on evidence submission to ALJs affect court filings?  Additional burdens could be faced by the courts in dealing with new evidence that is submitted to the court but which was not accepted by the ALJ or DRB.  Under 42 U.S.C. § 405(g), the court may order that SSA (not the court) take additional evidence if there is a showing that the evidence is new and material and there is good cause for the failure to incorporate the evidence into the record at an earlier administrative level.  Claimants may be forced to file an appeal in court just to have SSA consider evidence that should have been considered during the administrative process.   As discussed earlier, SSA needs to very closely monitor how ALJs apply the new rules on submission of evidence within five days of the hearing or later.  Otherwise, these rules alone could result in a dramatic increase in court filings.
• If federal court filings escalate significantly, will SSA reinstate a final administrative level of review accessible by claimants?
• If the DRB does not complete its review within 90 days of the notice, the claimant can proceed to file in federal court.  Will SSA send another notice at the end of the 90 days to inform the claimant that he/she has 60 days to file an appeal in federal court?  SSA has said that it will send such a notice, but there is no provision in the final regulations.

B.  Screening ALJ Decisions:  The DRB “Predictive Screening Tool”

Under DSI, the ALJ decision is screened before effectuation.  If the DRB decides to review the case, the ALJ decision will only be sent to the claimant with the DRB Notice of review. During the first year of DSI, the DRB will review all ALJ decisions in Region I, both favorable and unfavorable.  This means that claimants with favorable ALJ decisions will first receive the decision after the DRB screening and with the DRB review notice.  And they will not be put in benefits payment status until after the review is completed.

Questions to consider:

• ●   What is the “predictive screening tool”?  We have been told that SSA and its contractor are looking at recent court decisions, both requests for voluntary remand and court orders, to determine the reasons that the underlying agency final decision was erroneous.  A preliminary model will be run to see which cases are picked up.  SSA will compare the cases identified by the screening tool to its own hands-on review of cases in Region I.  Issues raised in written statements submitted by claimants and their representatives also will be compared to those identified by the screening tool.  The process for selection of cases for DRB review raises another series of questions:  Will ALJs be able to learn which cases are more likely to trigger DRB review and adjust their decisions accordingly?  Does the selection process seem to target certain categories of claimants? By impairment?  By            functional capacity?  By age?  Is SSA required to disclose the criteria used in screening?
• Will screening detect all of the issues that arise in ALJ decisions, including those that are subtle, such as ALJ bias or unfair hearings?  ALJ decisions that are currently reviewed by the Appeals Council often raise a number of legal and factual issues.  Is any computer-based screening tool able to identify all of the issues that arise in a case?
• How will SSA determine whether the predictive screening tool is accurate?  What are the criteria for measuring success?  What is an “error-prone” case?  Can the model accurately identify “error-prone” cases?  What will SSA do if the screening tool does not identify appropriate cases?
• Will screening be different for ALJ allowances than for denials?  Our members and their clients remain very concerned about delays in payment of benefits that may arise from the time needed for DRB review of favorable ALJ decisions.  In Region I, the DRB will not only screen but will review all ALJ decisions, favorable and unfavorable. Claimants will not be put in pay status while waiting for a DRB decision on an ALJ allowance.  However, we have been told that SSA is looking at ways to accelerate the screening and review of favorable ALJ decisions, especially dire need cases, TERI (terminally ill) cases, and on-the-record ALJ decisions.  Will SSA establish categories of cases where DRB review can be expedited?
• Does the screening disparately impact certain classes of individuals?   Is there a disparate impact of the screening tool on certain groups of claimants, e.g., those who have a mentally illness?  SSA should monitor the selection of cases by the DRB to assure that it is not biased against claimants with specific impairments or who have certain racial or ethnic characteristics. 

      C.  Written Statements at the DRB

Written statements can be submitted in every DRB review case (the proposed rule required DRB invitation or permission), but there is a 2000-word limit, about 3 to 4 pages.  In Region I, every statement will be part of the DRB review during the first year of DSI implementation, since all ALJ decisions will be reviewed.  These written statements from claimants will be extremely important since SSA will want to compare the issues raised in the written statements with those identified by the predictive model.  There may be critical information about a case that will only be provided by the claimant and not identifiable from the electronic record.

Questions to consider:

• What criteria will SSA use to determine whether the statements are critical in predicting error-prone cases?  If determined that the statements are critical, will SSA change the process?
• Under DSI, the claimant’s representative must submit the statement within 10 days after receiving the DRB notice of review, unless the DRB asks for a statement within a set time period.  Is the 10-day time limit fair?  What happens if a claimant seeks representation after receiving the DRB notice of review?  How can the representative obtain a copy of the hearing file and the hearing recording in a timely manner?  Will the DRB allow for an extension of the 10 days in appropriate cases?
• Given the importance of the written statements, is an across-the-board limit of 2000 words fair?

D.  Composition of the DRB

The DRB will be composed of three-member panels.  Each panel will have two ALJs and one Administrative Appeals Judge (currently, the members of the Appeals Council).  They will serve on a rotational basis and will be appointed by the Commissioner.

Questions to consider:

• How are the panels selected?
• How will SSA ensure that review is fair and neutral?  We remain concerned that each panel will have a majority of ALJs who will in turn review the decisions of other ALJs.  SSA should establish criteria to guarantee the fairness of the DRB process.

            E.  DRB Dispositions

The DRB is authorized to take certain actions under 20 C.F.R. § 405.440(b): 

1. It can affirm the ALJ decision if the ALJ’s findings of fact are supported by substantial evidence and/or there is no significant error of law;
2. For errors of law, the DRB can issue its own decision affirming, reversing, or modifying the ALJ decision;
3. For factual findings not supported by substantial evidence and if further development is needed, the DRB will remand to the ALJ.

Under the regulation, remand is the only remedy for factual errors.  But what happens if a case has both legal and factual errors?  This is not an uncommon occurrence. In many Appeals Council cases I have been personally involved with, the Appeals Council granted review because the ALJ’s findings of fact were not supported by substantial evidence; there were errors of law; and new and material evidence was provided.  In these cases, he Appeals Council remanded for consideration of the new evidence and for further proceedings. How would the DRB handle the same situation?

F.  Submitting Evidence to the DRB

New evidence can be submitted to the DRB, if it reviews a case, under the same requirements as submission of evidence to the ALJ after the decision is issued (and the DRB does not review a case). 

However, the regulation, 20 C.F.R. § 405.373(d), does not provide a time frame for submitting the evidence to the DRB.  In contrast, after an ALJ decision, new evidence must be submitted within 30 days after the ALJ decision is received.

Questions to consider:

• When should new evidence be submitted to the DRB?  Representatives need guidance for the submission of evidence to the DRB.  The written statement must be filed within ten days after receiving the DRB notice of review.  How does evidence submission coincide with filing the written statement?  Is it 30 days after the DRB notice?
• Similar to the concerns about the time limit for submission of the written statement, what happens if a claimant seeks representation after receiving the DRB notice of review?  How can the representative obtain a copy of the hearing file and the hearing recording in a timely manner?  Will the DRB allow for an extension of the time to submit evidence in appropriate cases, especially where the claimant has undergone medical testing and procedures that are new, material, and related to the alleged disability?

CONCLUSION

For people with disabilities, it is critical that the Social Security Administration address and significantly improve the process for determining disability and the process for appeals.  We strongly support efforts to reduce unnecessary delays for claimants and to make the process more efficient, so long as these changes do not affect the fairness of the process to determine a claimant’s entitlement to benefits. 

As the new Disability Service Improvement process begins, we will monitor the process with NOSSCR members in Region I states and continue to present our concerns to the Commissioner.  We believe that communication between claimants’ representatives and SSA will play an important role in monitoring DSI implementation and assessing the impact on claimants.

Thank you for this opportunity to testify before the Subcommittees on this issue of critical importance to claimants.  I would be glad to answer any questions that you have.