Amendment to the Attorney Advisor Program

AGENCY:

Social Security Administration.

ACTION:

Final rule.

SUMMARY:

We are issuing this final rule to adopt without change the interim final rule we published on August 9, 2007, which temporarily modifies the prehearing procedures we follow in claims for Social Security disability benefits and supplemental security income (SSI) payments based on disability or blindness. Under this final rule, we are permitting certain attorney advisors to conduct certain prehearing proceedings, and where the documentary record developed as a result of these proceedings warrants, issue decisions that are wholly favorable to the parties to the hearing.

DATES:

The interim rule published August 9, 2007 is effective March 3, 2008.

FOR FURTHER INFORMATION CONTACT:

Marilyn Hull, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041-3260, 703-605-8500 for information about this notice. 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:

Electronic Version

The electronic file of this document is available on the date of publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html .

Explanation of Changes

We are dedicated to providing high-quality service to the American public. Today and for the foreseeable future, we face significant challenges in our ability to provide the level of service that disability benefit claimants deserve because of the significantly increased number and complexity of these benefit claims. Consequently, we are temporarily modifying the procedures we follow in the administrative law judge (ALJ) hearings process in claims for Social Security disability benefits and SSI payments based on disability or blindness. This temporary modification will help us provide accurate and timely service to claimants for Social Security disability benefits and SSI payments based on disability or blindness. With this modification, we are permitting certain attorney advisors to conduct certain prehearing proceedings to help develop claims and issue wholly favorable decisions in appropriate claims before a hearing is conducted. For reasons we explain in the Public Comments section of this preamble, we expect that this modification will help us to reduce the number of pending cases at the hearing level. We intend to monitor the program closely and to make changes if it does not meet our expectations.

This temporary modification applies only to claims processed under parts 404 and 416 of our regulations; it does not apply to claims processed under part 405 of our regulations, which concerns only disability claims filed in the Boston region on or after August 1, 2006. Parts 404 and 416 of our regulations concern disability cases in every area outside the Boston region and non-disability cases in every location.

Generally, when a claim is filed for Social Security disability benefits or SSI payments based on disability or blindness, a State agency makes the initial and reconsideration disability determinations for us. An ALJ conducts a hearing after we have made a reconsideration determination. Under this final rule, attorney advisors in our hearing offices whom we designate may conduct certain prehearing proceedings and, where appropriate, issue decisions that are wholly favorable to claimants and any other party to the hearing.

Attorney advisors have performed these duties in the past. On June 30, 1995, we announced final rules establishing the attorney advisor program for a limited period of 2 years. 60 FR 34126 (1995). The program's success prompted us to extend the program several times, until it finally ended in April 2001. (62 FR 35073 (June 30, 1997), 63 FR 35515 (June 30, 1998), 64 FR 13677 (March 22, 1999), 64 FR 51892 (September 27, 1999)).

The number of requests for hearings that we have received has significantly increased in recent years, and we expect that trend to continue because of the projected increase in the number of disability claims as the baby boomers move into their disability-prone years. In light of our current and projected workload, we plainly must do everything that we can to reduce the number of cases awaiting a hearing. This final rule is an important part of our ongoing effort to decide cases more efficiently and timely.

This final rule will allow us to expedite the processing of cases pending at the hearing level without affecting a claimant's right to a hearing before an ALJ. The attorney advisor's conduct of certain prehearing proceedings will not delay the scheduling of a hearing before an ALJ. If the prehearing proceedings are not concluded before the hearing date, the case will be sent to the ALJ unless a decision wholly favorable to the claimant and all other parties is in process, or the claimant and all other parties to the hearing agree in writing to delay the hearing until the prehearing proceedings are completed.

Prehearing proceedings may be conducted by an attorney advisor under this final rule if one of the following criteria is met: New and material evidence is submitted, there is an indication that additional evidence is available, there is a change in the law or regulations, or there is an error in the file or some other indication that a wholly favorable decision could be issued. We will mail the attorney advisor's decision to all parties. The notice of decision will state the basis for the decision and advise the parties that an ALJ will dismiss the hearing request unless a party requests to proceed with the hearing within 30 days after the date the notice of the decision of the attorney advisor was mailed.

These procedures will remain in effect for a period not to exceed 2 years from the effective date of this final rule, unless we terminate or extend them by publication of a final rule in the Federal Register.

Public Comments

On August 9, 2007, we published an interim final rule with a request for comments. (72 FR 44763). Although the interim final rule became effective on that date, we also provided the public with a 60-day comment period, which closed on October 9, 2007. We received timely comments from one individual and two professional organizations. We carefully considered all the comments. Because some of the comments were lengthy, we have summarized and paraphrased them below. However, we have tried to present all of the commenters' views accurately and to respond to all of the significant issues raised by the comments that were within the scope of this rule. We have not responded to comments that were outside the scope of the interim final rule. The individual commenter and one of the organizational commenters supported the changes. We appreciate this support.

In addition to submitting comments on its own behalf, the second organizational commenter also included, within its comment letter, comments made by individual ALJs in its constituency. Although we refer primarily to the comment letter from this organization below, we did carefully consider all of the comments included in the organization's letter, and some of the comments we summarize below are actually from individual members of the organization.

Comment: The first organizational commenter, which expressed strong support for the changes, noted that the changes should not negatively impact the decisionmaking process for cases that are heard by ALJs. The second organizational commenter did not support the interim final rule. This commenter expressed concern that ALJ productivity would fall. The commenter said that we would be using our “most experienced and gifted writers” to write the easiest decisions, leaving the hardest decisions to be written by our least experienced staff. The second commenter also referred to a 2002 General Accounting Office report entitled “Disappointing Results From SSA's Efforts to Improve the Disability Claims Process Warrant Immediate Attention” (“GAO report”), indicating that our own management had made the same observation.

This commenter also stated that we had made a number of “unverified programmatic assumptions,” including that:

• The rule would not impose net aggregate delay to claims processing and would not exacerbate the aging of pending claims,
• The rule would result in fully developed claims ready for ALJ hearing, and
• An ALJ, upon receiving a case the attorney advisor determines should be heard, would have little need to do additional development of evidence or prehearing review.

The commenter indicated that these assumptions were contradicted by our past experience, prior studies and reports, and our current staffing needs. The commenter believed that, given our limited resources, there was an “unbridgeable gulf” between the case processing realities we face and the restoration of a temporary program that the commenter believed would waste resources.

Response: The primary purpose of the attorney advisor program is to help us process more efficiently the backlog of cases we are facing at the hearing level, given the realities of our current staffing and budget. Commissioner Astrue has recognized and testified in Congress that ALJs are “achieving a record high production rate,” yet backlogs continue to grow at the hearing level. Plainly, we need to take decisive steps to address this situation.

This program is only one tool among several we are now using, or planning to use, to reduce the waiting time for claimants who have requested hearings. We believe that the attorney advisor program is especially important because it helps us to identify individuals who are disabled and who should not have to appear at a hearing in order for us to decide their case.

Because of the provisions for prehearing proceedings in §§ 404.942 and 416.1442 and in our internal procedures implementing the attorney advisor program, we expect that ALJs will be able to decide more readily those cases that attorney advisors review but do not allow. This is because attorney advisors will obtain more evidence in some cases and those cases will be ready for an ALJ hearing sooner than they otherwise would be, and because the attorney advisors will review and recommend development of additional evidence in others. The attorney advisors will also provide ALJs with an analysis of the issues in cases in which they are unable to issue wholly favorable decisions, which will assist the ALJs who subsequently review the case. Also, under this final rule, the conduct of prehearing proceedings by attorney advisors will generally not delay the scheduling or holding of hearings, unless a decision wholly favorable to the claimant and all other parties is in process, or the claimant and all other parties to the hearing agree in writing to delay the hearing until the prehearing proceedings are completed.

Only certain attorney advisors are permitted to participate in this program. Our internal instructions provide that only Hearing Office GS-13 Senior Attorney Advisors, Supervisory Attorney Advisors who are Hearing Office Directors, Supervisory Attorney Advisors who are Group Supervisors, and attorneys at the GS-13 level and above in the regional offices of our Office of Disability Adjudication and Review are authorized to issue fully favorable decisions under the interim final rule. These same individuals will be authorized to issue decisions under this final rule. Our internal operating instructions also provide that the attorney advisors who participate in this program will continue to draft decisions for ALJs, as assigned by local hearing office management. Our instructions also allow the management of each local hearing office to decide the amount of time attorney advisors will devote to the adjudication of wholly favorable decisions. We believe that these modifications to the program are improvements over the way we administered the program from 1995 to 2001. Therefore, we anticipate that, with these modifications, ALJs should have sufficient qualified and experienced staff to draft their decisions, conduct research, and perform other tasks.

Nevertheless, we are aware that we are shifting valuable resources to this task, even if only part-time, and that there is a potential that this shift will affect ALJs' ability to issue their decisions. Based on our experience using this procedure in the past, we do not believe this will happen, but as we noted earlier in this preamble, we intend to monitor the program closely and will make changes to it, including ending it if necessary, if it does not meet our expectations.

We address the additional, specific concerns of the second organizational commenter in the responses that follow.

Comment: The second organizational commenter also expressed concern that the interim final rule was intended to “pay down” the backlog. This commenter also submitted a number of individual ALJ comments and concerns about allowance rates. Some individual ALJs also believed that the allowance rate would increase. One ALJ believed that the outcomes would vary by office. This ALJ stated that in offices in which the attorney advisors are more conservative than the ALJs, they would waste time reviewing cases that they would not allow, and the program would have no beneficial effect and would delay case processing. In offices in which attorney advisors and the ALJs are “similarly disposed to granting certain cases without a hearing,” the allowance rate would not change and the program would again have no beneficial effect. In offices in which the attorneys are “more sympathetic” to the claimants than the ALJs, “many, many cases” would be paid without merit.

Response: We do not intend by this final rule to “pay down” the backlog of cases awaiting a hearing, nor do we expect the allowance rate to increase. Rather, we are providing our hearing offices with additional adjudicative capacity to more quickly decide some cases in which we can make a wholly favorable decision without a hearing. This will provide better service to claimants and, we expect, will help us to make faster decisions on all pending hearing requests and to reduce the number of cases in our hearing offices.

Therefore, we expect that the overall allowance rate at the hearing level will not change. The purpose of this program is to issue decisions more quickly in cases in which we can make a favorable decision without the time and expense of holding an ALJ hearing, and to improve the efficiency of our hearing office operations given our current staffing and budget. As we explain in more detail in response to another comment below, we plan to carefully monitor attorney advisor decisions for quality to ensure that they are making wholly favorable decisions only in appropriate cases.

Comment: The same commenter expressed concern about the accuracy, quality, and legal sufficiency of attorney advisor decisions. The commenter referred to a statement in the 2002 GAO report indicating that there were “mixed” findings on the accuracy of attorney advisors' decisions the first time we implemented this program. The commenter also referred to an internal Agency report issued by our Office of Quality Performance (OQP) in 2001, which found that decisions issued by attorney advisors under the program were supported by substantial evidence 78 percent of the time.

Response: We are aware of concerns that were raised regarding the quality of decisions made by attorney advisors under our prior rule, and we intend to vigorously monitor the quality of attorney advisor decisions under this final rule. We will randomly select attorney advisor decisions for review by OQP after they have been issued and the decision has been effectuated. We will also perform quality reviews of attorney advisor decisions before they are issued. We will share the information from these reviews with our attorney advisors and use it for training purposes to continually improve the program.

We must also put the data cited by the commenter in perspective. The GAO reported results from two studies: One conducted in OQP and the other by the Appeals Council. The reviews in OQP were conducted by ALJs and reported “support” rates; that is, the rate at which the reviewing ALJs agreed that the attorney advisors' decisions were supported by substantial evidence. The GAO indicated that “the quality of decisions made by [attorney advisors] generally increased over the period of the initiative, though falling short of the quality of decisions made by the ALJs.” However, in fact, while OQP did report a support rate for attorney advisor decisions of 78 percent, they also reported a support rate for ALJ on-the-record decisions (that is, decisions made based on the written information in the case file without holding a hearing) of 81 percent, essentially the same as for attorney advisors. Moreover, another Agency internal report issued by OQP in December 2000 showed an 80 percent support rate for attorney advisor decisions in fiscal year 2000. The GAO reported that the study by the Appeals Council indicated that the quality of decisions made by attorney advisors was “comparable” to those made by the ALJs.

Finally, we are confident that these “most experienced and gifted writers,” to use the commenter's own description, will produce legally sufficient decisions.

Comment: The same commenter reported an individual ALJ's comment asserting that during the first attorney advisor program the lack of sufficient attorneys to write the difficult decisions for cases heard by ALJs resulted in a case writing backlog, and that many attorney advisors could not keep up with the flow of cases to be reviewed.

Response: Although this final rule is substantively the same as the rule we published on June 30, 1995, our internal procedures address current operational issues, including our limited staff. They provide each hearing office with the flexibility to assign work to attorney advisors according to the needs and workloads of the office. Since our intent is to use this program to help reduce the backlog of cases and to provide better and faster service to the public, we will monitor it carefully and immediately take action if we find that it is having the effect the commenter was concerned about—the opposite of what we hope to achieve.

Comment: The same commenter reported an individual ALJ's comment that attorney advisors made the most errors in cases involving mental impairments and that such cases are generally not “readily susceptible to on-the-record decisions.”

Response: We have already noted that we will carefully monitor the quality of attorney advisor decisions, and will take appropriate action if we find that there are special problems with the adjudication of cases involving mental impairments. Otherwise, we do not agree with the commenter. We believe that there are no inherent features of cases involving mental impairments that would make them any less susceptible to on-the-record decisions than any other cases.

Comment: The same commenter reported an individual ALJ's concern that attorney advisors would “waste a lot of time” reviewing cases that will not result in wholly favorable decisions.

Response: We do not agree that a prehearing review of cases will be a “waste of time” even if the attorney advisor is not able to make a wholly favorable decision. Our internal instructions for these rules permit attorney advisors to obtain evidence from the claimant or the claimant's representative and require them to provide the ALJ with an analysis of the issues in the case, including an explanation of why a wholly favorable decision could not be made on the record. Our instructions also require the attorney advisor to make recommendations to the ALJ for additional development of evidence to complete the record. We believe that, far from being a “waste” of time, these actions will help ALJs to prepare cases for a hearing and to more quickly decide cases that require a hearing after prehearing review.

Comment: The same commenter reported individual ALJ concerns that attorney advisor independence will be compromised by managerial oversight, performance evaluations, and “bonuses” received by attorney advisors. The individual ALJs were also concerned that the attorney advisor program will “erode the integrity of the independent due process hearing and the role of the ALJ in that process.”

Response: Our attorney advisors have always been subject to “managerial oversight,” and they will continue to be under this final rule. We do not expect the implementation of this final rule to adversely affect their ability to perform their jobs in an appropriate manner.

Regarding the integrity of the independent due process hearing and the role of the ALJ in that process, this final rule augments the process by authorizing attorney advisors to make wholly favorable decisions in claims for disability benefits when there is no need for a hearing. Section 205(b) of the Social Security Act (the Act) requires the Commissioner to make findings of fact, and decisions as to the rights of any individual applying for a payment. The Act further provides that, upon request by any such individual (or upon request by a wife, divorced wife, widow, surviving divorced wife, surviving divorced mother, surviving divorced father, husband, divorced husband, widower, surviving divorced husband, child, or parent who makes a showing in writing that his or her rights may be prejudiced by any decision), the Commissioner shall give the individual reasonable notice and opportunity for a hearing. The final rules explicitly preserve the individual's right to a hearing which will be conducted by an ALJ if the individual is dissatisfied with the decision made by the attorney advisor.

Finally, we note that similar concerns were expressed in 1995. Our prior experience using attorney advisors to make decisions from 1995 to 2001 shows that concerns like those characterized above were unfounded. As was the case under our prior rules, attorney advisors who are authorized to conduct prehearing proceedings and issue wholly favorable decisions under the final rule will not conduct a hearing. Hearings will continue to be conducted by ALJs in appropriate cases.

Comment: The same commenter reported an individual ALJ's concern that there would be an increased potential for abuse, and even fraud, since attorney advisors are not subject to the same financial disclosure rules that ALJs are.

Response: We do not believe that this rule will increase the likelihood of fraud or abuse because attorney advisors are not required to submit financial reports. We know of no fraud or abuse resulting from the prior rules. However, we will handle any alleged fraud or abuse under our existing guidelines and procedures.

Comment: The same commenter reported individual ALJs' concerns that ALJs would have to take on more “clerical functions,” and that ALJs “will be forced to write more and more of their own decisions.”

Response: We do not intend for ALJs to take on any additional “clerical functions” under this final rule, and we do not expect implementation of this final rule to affect the ability of our decision writers to write decisions on behalf of the ALJs.

Comment: The same commenter indicated that we had rushed to this rule without asking for comments first.

Response: We disagree with the commenter's observation that we should have first published a notice of proposed rulemaking with respect to this rule. We explained in detail in the preamble to the interim final rule why we determined that notice-and-comment rulemaking was both unnecessary and contrary to the public interest under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). Therefore, we properly determined that we had good cause to publish a final rule without requesting prior public comment. (72 FR at 44764). However, we also recognized that the rule we published in August 2007 concerned a subject about which the public was likely to be interested. As a result, we made the rule we published in August 2007 an interim final rule, and we requested public comments regarding the changes we made. Our actions in this regard are consistent with both the APA and good rulemaking practice.

Comment: The same commenter made a number of alternative recommendations for us to consider instead of the attorney advisor program, such as the implementation of a “Government Representative Program.” The commenter also recommended modifications to the attorney advisor program.

Response: We did not adopt the comments suggesting alternatives to the attorney advisor program because they were outside the scope of this rulemaking proceeding. The other comments addressed our internal procedures rather than the substance of the interim final rule. In our responses to prior comments, we have discussed our internal procedures, and explained how we believe those procedures provide adequate safeguards to address the concerns that the commenter raised.

Comment: The same commenter reported an individual ALJ's recommendation that the final rule require that the attorney advisors be limited to reviewing, developing the record, and drafting recommended “on the record” wholly favorable decisions for an ALJ to either sign such decisions or hear such cases.

Response: We did not adopt this comment suggesting an alternative to the attorney advisor program because it is outside the scope of this rulemaking proceeding.

Therefore, for all the reasons stated above, we are adopting the interim final rule without change.

Regulatory Procedures

Executive Order 12866, as Amended

We have consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866, as amended. Accordingly, it was subject to OMB review. We also have determined that this rule meets the plain language requirement of Executive Order 12866, as amended.

Regulatory Flexibility Act

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

Paperwork Reduction Act

This rule will impose no additional reporting or recordkeeping requirements requiring OMB clearance.

Federalism Impact and Unfunded Mandates Impact

We have reviewed this rule under the threshold criteria of Executive Order 13132 and the Unfunded Mandates Reform Act and have determined that it does not have substantial direct effects on the States, on the relationship between the national government and the States, on the distribution of power and responsibilities among the various levels of government, or on imposing any costs on State, local, or tribal governments. This rule does not affect the roles of the State, local, or tribal governments.

(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; 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 416

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

Accordingly, the interim final rule amending subpart J of part 404 and subpart N of part 416 of chapter III of title 20 of the Code of Federal Regulations, which was published at 72 FR 44763 on August 9, 2007, is adopted as a final rule without change.