20 CFR 404.974(e), 416.1474(e)

Amendments to the Administrative Law Judge, Appeals Council, and Decision Review Board Appeals Levels

SSA-3401P

20 CFR 404.974(e), 416.1474(e)

OMB: 0960-0764

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Monday,
October 29, 2007

Part II

Social Security
Administration

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20 CFR Parts 404, 405, and 416
Amendments to the Administrative Law
Judge, Appeals Council, and Decision
Review Board Appeals Levels; Proposed
Rule

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Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules

SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA 2007–0044]

20 CFR Parts 404, 405, and 416
RIN 0960–AG52

Amendments to the Administrative
Law Judge, Appeals Council, and
Decision Review Board Appeals Levels
Social Security Administration.
Notice of proposed rulemaking.

AGENCY:

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ACTION:

SUMMARY: We propose to include in
parts 404 and 416 of our rules many of
the hearing level procedures now in
place for disability cases in the Boston
region. This change will expand those
rules nationwide and apply them to
hearings on both disability and nondisability matters. We expect these rules
will make the hearings process more
efficient and help us reduce the
hearings backlog, which has reached
historic proportions, thereby benefiting
all individuals requesting a hearing. We
also propose to amend our rules
governing the final level of the
administrative review process to make
proceedings at that level more like those
used by a Federal appellate court when
it reviews the decision of a district
court, to establish procedures for
appeals to that level, and to change the
name of the body that will hear such
appeals from the ‘‘Appeals Council,’’ or
the ‘‘Decision Review Board’’ in the
Boston region, to the ‘‘Review Board.’’
Consistent with the change to a more
truly appellate process, we suggest
limiting the circumstances in which
new evidence may be added to the
record during the appeals process. We
also propose circumscribing the time
period covered in any subsequent
administrative hearing on remand from
the Review Board or a Federal court to
the time period covered by the first
administrative law judge’s (ALJ) hearing
decision in the case.
DATES: To be sure that we consider your
comments, we must receive them no
later than December 28, 2007.
ADDRESSES: You may submit comments
by any of the following methods.
Regardless of which method you
choose, to ensure that we can associate
your comments with the correct
regulation for consideration, you must
state that your comments refer to Docket
No. SSA–2007–0044:
• Federal eRulemaking Portal at
http://www.regulations.gov. (This is the
preferred method for submitting your
comments.) In the Search Documents
section, select ‘‘Social Security
Administration’’ from the agency dropdown menu, then click ‘‘submit’’. In the

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Docket ID Column, locate SSA–2007–
0044 and then click ‘‘Add Comments’’
in the ‘‘Comments Add/Due By’’
column.
• Telefax to (410) 966–2830.
• Letter to the Commissioner of
Social Security, P.O. Box 17703,
Baltimore, MD 21235–7703.
• Deliver your comments to the Office
of Regulations, Social Security
Administration, 922 Altmeyer Building,
6401 Security Boulevard, Baltimore, MD
21235–6401, between 8 a.m. and 4:30
p.m. on regular business days.
Comments are posted on the Federal
eRulemaking portal, or you may inspect
them on regular business days by
making arrangements with the contact
person shown in this preamble.
FOR FURTHER INFORMATION CONTACT:
Brent Hillman, Social Security
Administration, 5107 Leesburg Pike,
Falls Church, VA 22041–3260, (703)
605–8280 for information about this
notice. For information on eligibility or
filing for benefits, call our national tollfree 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.
Introduction
As part of our ongoing commitment to
improve the way we process claims for
benefits under the old age, survivors,
and disability insurance programs under
title II of the Social Security Act (Act)
and the supplemental security income
(SSI) program under title XVI of the Act,
we propose to revise the procedures at
the ALJ hearing level to improve the
decision-making process and change the
final step in our four-tiered
administrative structure for adjudicating
claims for benefits. Our workloads at the
ALJ hearing level have continued to
grow, as have requests for review of
those hearing decisions. We expect even
further increases in those workloads as
the baby boom generation advances
through their disability-prone years.
Along with our electronic disability
(eDib) process, we anticipate that these
changes will help us conduct hearings
and issue decisions more effectively. We
are continually reviewing our processes
to find ways to handle these workloads
more effectively, and this proposal is
another step toward better service.
Our administrative procedures in
parts 404 and 416 generally provide

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three levels of administrative review for
individuals dissatisfied with the initial
determination on their claims for Social
Security benefits or SSI payments. First,
the individual may request
reconsideration, in which the State
agency takes a fresh look at the initial
determination. Second, the individual
may request a hearing before an ALJ.
Third, if the individual remains
dissatisfied after the ALJ’s hearing
decision, our longstanding rules give the
individual the right to request review of
that decision by the Appeals Council. If
the individual requests such a review,
the Appeals Council may grant the
request and issue the Agency’s final
decision in the case, grant the request
and remand the case to an ALJ for
further proceedings, or deny the request
for review. If the Appeals Council
denies the individual’s request that it
review the decision of the ALJ, the
decision of the ALJ becomes our final
decision.
In March 2006, we issued final rules
that implemented a new administrative
structure for adjudicating claims for
disability benefits in the Boston region.
Under those final rules in part 405 of
our regulations, we provide two levels
of administrative review of State agency
initial determinations for individuals in
the Boston region who are dissatisfied
with the initial determination on their
claims for Social Security benefits or
SSI payments. First, the individual may
request review by a Federal reviewing
official. Second, if dissatisfied with the
decision of the Federal reviewing
official, the individual may request a
hearing before an ALJ. Unless the ALJ’s
decision is selected for review by the
Decision Review Board, as discussed
below, the decision of the ALJ is our
final decision in these cases.
The March 2006 final rules also
implemented new ALJ hearing level
procedures in the Boston region and
included a new approach, the Decision
Review Board, for the final level of our
adjudicative structure. 70 FR 16424
(March 31, 2006). We received
numerous public comments on our
proposal for these new procedures, and
we made various changes based on the
public comments. For a discussion of
the comments and our changes, see 71
FR 16424, 16428 and 16434–16437.
Our experience has been that some
aspects of the new procedures have
been beneficial, while others have not
worked as well as we had anticipated.
Having thoroughly reviewed our entire
administrative adjudicative procedure,
we believe that we need to modify some
aspects of those procedures, extend
what is working well to the rest of the
country, and make changes where we

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can make our processes better. In this
proposed rule, we propose to retain
many of the March 2006 changes we
made to the hearing level because we
still believe they will make the hearings
more efficient and allow us to provide
better service to the increasing number
of individuals who have requested ALJ
hearings.
On the other hand, we propose to
transform the Decision Review Board
and the Appeals Council into the
Review Board. Although we have
limited experience with the Decision
Review Board at this time because it has
been in operation only in the Boston
region and only for the past year, we are
concerned that we will have to test it for
many years before we are able to
determine whether to roll it out
nationwide. This concern arises
primarily because of the difficulties in
designing a predictive model that will
identify the most problematic cases. In
the Boston region, we committed to
100% review of all ALJ decisions by the
Decision Review Board, which we
obviously would not be able to sustain
in a nationwide rollout, especially at a
time when the number of cases pending
at the hearing level exceeds 700,000,
which is higher than it has ever been in
our history. Consequently, we propose
to end the Decision Review Board
experiment in favor of allowing
traditional appeals.
In this document, we address the ALJ
hearing level and the final level of our
administrative adjudicative process. If
we finalize these rules, we plan to use
these procedures nationwide and
remove the corresponding provisions in
part 405 of our regulations. (Part 405
describes the disability service
improvement initiative that was
implemented in our March 31, 2006
final rules.)
We propose to apply to all disability
and non-disability cases nationwide
many of the hearing level procedures we
adopted for disability claims received
after July 31, 2006 in the Boston region.
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.’’
In this notice of proposed rulemaking,
we have included proposed regulation
language that would accomplish the
substantive changes we propose. We
also have included the conforming
changes we believe are needed in
subpart J of part 404 and subpart N of
part 416 of our regulations. We
recognize that additional changes of a
technical or ‘‘housekeeping’’ nature will
be required throughout our regulations
such as replacing references to the
‘‘Appeals Council’’ with references to

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the ‘‘Review Board,’’ and if we adopt
these proposed changes as final rules,
we will make those additional changes
at that time.
Submitting Evidence to the ALJ
One of the major changes that we are
proposing addresses the time frames for
submitting evidence to the ALJ. Our
current rule states that, if possible, an
individual should submit the evidence,
or a summary of the evidence, within 10
days after filing the request for a
hearing. In many cases, however,
individuals submit evidence to us well
after that time frame.
Our program experience has
convinced us that the late submission of
evidence to the ALJ significantly
impedes our ability to issue hearing
decisions in a timely manner. When
new and voluminous medical evidence
is presented at the hearing or shortly
before the hearing, the ALJ and any
other person who will be participating
in the hearing, such as a medical or
vocational expert, do not have the time
needed to review the record and
adequately prepare for the hearing. We
often must reschedule the hearing,
which not only delays the decision on
that case, but also delays the hearings of
other individuals.
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. The notice of hearing also will
specify the issues to be decided at the
hearing. This proposed rule provides
that if an individual objects to the time
or place of the hearing, the individual
should notify the ALJ in writing as soon
as possible after receiving the notice of
hearing, but no later than 30 days after
receiving that notice. If the individual
objects to the issues to be decided at the
hearing, the individual would be
required to notify the ALJ in writing at
least 5 business days prior to the
hearing date.
Individuals would be encouraged to
submit evidence as soon as possible
after they file their request for a hearing.
Nevertheless, no later than 5 business
days before the hearing, they must
submit all of the evidence to be relied
upon in a case. We believe this deadline
is reasonable because we also propose to
require the ALJ to notify the individual
of the hearing date at least 75 days
before the hearing.
The 5-day time limit for submitting
evidence would be subject to
exceptions, depending on when the

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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.
Requesting an ALJ Hearing
Our proposed rule slightly amends
the list of things we request when an
individual files a written request for a
hearing. Our proposed rule provides
that, if disability is an issue in the case,
the individual should include a
statement of the medically determinable
impairment(s) that he or she believes
prevents him or her from working. The
proposed rule also specifies that the
individual should include his or her
name and social security number. Like
the current rule, the proposed rule
provides that the individual should
include the name and social security
number of the wage earner under whose
account the claim is filed, any evidence
that is available to the individual; and
the name and address of the
individual’s representative, if any.
Prehearing Statements and Conferences
Our proposed rule adds a provision
for prehearing statements. 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.

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Our proposed rule continues to
provide for prehearing conferences. As
under the current rule, the ALJ could
decide on his or her own initiative or at
an individual’s request to conduct a
prehearing conference if the ALJ
believes that such a conference would
facilitate the hearing or the decision in
a case.
During these conferences, the ALJ
would consider matters that may
expedite the hearing, such as
simplifying or amending issues or
obtaining and submitting evidence. The
ALJ would summarize in writing, or on
the record at the hearing, the actions
taken or to be taken as a result of the
conference. The proposed rule also
states that if neither the individual nor
the representative appears for the
prehearing conference and there is not
a good reason for the failure to appear,
such as a death or serious illness in your
immediate family or the destruction of
important records by fire or other
accidental cause, the individual’s
hearing request might be dismissed.
The purpose of these provisions
would be to ensure that each
individual’s hearing is as fair, timely,
and comprehensive as possible. Both
individuals and the Agency would have
the responsibility to work toward this
objective.
The main differences between our
current rule on prehearing conferences
and the proposed rule are the provisions
for conference by telephone and the
notice requirement. The proposed rule
provides that prehearing conferences
normally would be held by telephone,
unless the ALJ were to decide that it
would be more efficient and effective to
conduct the prehearing conference in a
different manner. Additionally, we
propose to change the notice
requirement to ‘‘reasonable notice.’’ It
has been our experience that the current
requirement (7 days notice unless the
parties indicate in writing that they do
not wish to receive written notice of the
conference) is too rigid to accommodate
many situations where a conference
would be beneficial and the parties
agree to the time and place of the
conference.
Appearing at the ALJ Hearing
Like the current rule, this proposed
rule provides that, when setting the time
and place of the hearing, the ALJ would
determine whether an individual would
appear at the hearing in person or by
video teleconference. Also like the
current rule, this proposed rule provides
that, if the individual who requested the
hearing objects to appearing by video
teleconference, the ALJ would
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individual to appear in person. 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. We believe
that the ability to conduct hearings via
video teleconference would provide us
with greater flexibility in scheduling
and holding hearings, improve hearing
process efficiency, and extend another
service delivery option to individuals
requesting a hearing. Greater efficiency
would be achieved through savings in
ALJ travel time, faster case processing,
and higher ratios of hearings held to
hearings scheduled.
Our proposed rule also differs from
the current rule by providing that the
ALJ may direct the individual who
requested the hearing to appear at the
hearing by telephone under
extraordinary circumstances where
appearing in person is not possible and
video teleconference is not available.
For example, an ALJ may direct an
individual who is incarcerated to appear
at the hearing by telephone if the facility
in which the individual is incarcerated
will not allow a hearing to be held at the
facility and the facility does not have
video teleconference technology. The
proposed rule also provides that, if the
individual who requested the hearing
objects to any other person appearing by
telephone, the ALJ could overrule the
objection.
Posthearing Conferences
Our proposed rule continues to
provide for posthearing conferences.
The individual could request, or the ALJ
could decide, to hold a posthearing
conference to facilitate the hearing
decision. Like the prehearing conference
proceedings, if neither the individual
nor the representative were to appear at
the posthearing conference and there
was no good reason for failing to appear,
the ALJ would make a decision based on
the hearing record.
As in the prehearing conference
provisions discussed above, the main
differences between our current rule
and the proposed rule are the provisions
for conference by telephone and the
notice requirement. The proposed rule
provides that posthearing conferences
normally would be held by telephone,
unless the ALJ were to decide that it
would be more efficient and effective to
conduct the posthearing conference in a

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different manner. Additionally, we
propose to change the notice
requirement to ‘‘reasonable notice,’’ for
the reasons discussed earlier in the
section on prehearing statements and
conferences.
Holding the Record Open
In addition, this proposed rule
specifies 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. Once the
additional evidence was received, or if
no evidence was received during the
defined period, the ALJ would close the
record and issue a decision. The ALJ
may also take other necessary action,
such as holding a supplemental hearing
to receive further testimony. These
procedures are not new. The proposed
rule merely formalizes them in our
rules.
The ALJ Decision
Under our current rule, the ALJ must
issue a written decision that gives the
findings of fact and the reasons for the
decision, may enter a wholly favorable
oral decision into the record under
certain circumstances, and may send a
recommended decision to the Appeals
Council. Our proposed rule would
specify that the ALJ must explain, in
clear and understandable language, the
reasons for his or her decision. It would
continue to allow the ALJ to enter a
wholly favorable oral decision into the
record under certain circumstances. It
would remove the provision for
recommended decisions, except on
remand by direction of the Review
Board. In our experience, issuance of a
recommended decision is only rarely
appropriate, and therefore its use should
be permitted only where the Review
Board directs.
The Review Board’s Role
Our current regulations in parts 404
and 416 provide that an individual who
is dissatisfied with the decision of the
ALJ on the claim can file a request

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asking the Appeals Council to review
the ALJ’s decision. Those regulations
further provide that the Appeals
Council will grant the claimant’s request
and review the case if there appears to
be an abuse of discretion by the ALJ, if
there is an error of law, if the actions,
findings, or conclusions of the ALJ are
not supported by substantial evidence,
or if there is a broad policy or
procedural issue that may affect the
general public. If the Appeals Council
does review the case, it may issue a
decision affirming, modifying, or
reversing the ALJ’s decision, or it may
vacate the ALJ’s decision and remand
the case for further proceedings. If the
Appeals Council determines that the
criteria for granting review are not met,
however, the Appeals Council may
simply deny the claimant’s request for
review and allow the ALJ’s decision to
become the final decision of the
Commissioner. The Appeals Council is
composed of administrative appeals
judges.
Our regulations in part 405 (governing
the new process applicable to certain
claims in the Boston region) replaced
that Appeals Council step with a new
body called the Decision Review Board.
A claimant has no right to ask the
Decision Review Board to review the
ALJ decision in his or her case. Rather,
the Decision Review Board selects the
decisions it will review, with an
emphasis on claims where there is an
increased likelihood of error or that
involve the application of new policies,
rules, or procedures. (Because the
procedures in part 405 are so new,
however, the Decision Review Board
initially has been selecting all ALJ
hearing decisions for review.) If the
Decision Review Board selects a case for
review, it may either affirm the ALJ’s
decision, issue a new decision that
affirms, reverses, or modifies the
decision of the ALJ, or remand the case
to an ALJ for further proceedings.
Additionally, if the Decision Review
Board does not complete its action on a
case within 90 days of the date the
claimant received notice that the ALJ’s
decision would be reviewed, the
decision of the ALJ becomes the final
decision of the Commissioner. The
Decision Review Board is composed of
both administrative appeals judges and
ALJs.
We propose to replace both the
Appeals Council and the Decision
Review Board with a new body, the
Review Board. Like the Appeals
Council, the Review Board members
will be administrative appeals judges (as
defined in 20 CFR 405.5). In contrast to
our current rules for the Appeals
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we propose to give any party who
receives a hearing decision that is
unfavorable, in whole or in part, or
whose request for hearing was
dismissed, the right to appeal that
decision or dismissal to the Review
Board and have the Review Board
review their case. However, we are
proposing changes to make the nature of
the review at that level more like the
review an appellate court would give to
a district court decision that has been
appealed to it. These changes would
focus Agency resources on correcting
significant errors that change the
outcome of a case and avoid further
administrative proceedings that serve
only to correct harmless errors in an
otherwise appropriate denial of benefits.
Specifically, we 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.
We also propose that the Review
Board will review the factual findings of
the ALJ using the substantial evidence
test. Under that test, the Review Board
will accept a finding of fact made by the
ALJ if a reasonable mind might accept
that finding as adequately supported by
the evidence in the case, even if a
different conclusion of fact might also
be supported by the evidence. We
propose that the Review Board will
review any purely legal questions, such
as the proper interpretation of Agency
regulations or policy, as if it were
considering the question for the first
time, without any deference to the ALJ’s
conclusion on the issue. We also
propose a harmless error rule the
Review Board would apply when
considering error either in the
admission or exclusion of evidence, or
error, defect, or omission in any ruling
or decision of the ALJ. Under this rule,
no such error would be grounds for
vacating, modifying, or reversing an
otherwise appropriate ruling or decision
of the ALJ unless, in the opinion of the
Review Board, there is a reasonable
probability that the error, alone or when
considered with other aspects of the
case, changed the outcome of the
decision. The Review Board would
notify the parties in writing of its action
on the appeal and would explain the
basis for its action in that notice.
In any case appealed to the Review
Board, we propose that the Review
Board will consider that appeal and
either (1) issue a new decision

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affirming, modifying, or reversing the
decision of the ALJ, (2) remand the
matter to an ALJ for further proceedings,
or (3) where the Review Board has
concluded that there is no significant
error in the ALJ’s decision and no
significant legal or factual issues that
warrant additional discussion,
summarily affirm the decision and
analysis of the ALJ without issuing a
separate opinion of its own. This differs
from our current rules for the Appeals
Council in that, unlike the Appeals
Council, the Review Board may not
simply decline the individual’s request
that it review the ALJ’s decision. In
these proposed rules, we describe the
procedures for appealing an ALJ’s
hearing decision or dismissal to the
Review Board, the procedures the
Review Board will follow during the
appeal, the possible actions the Review
Board may take, and the effect of those
actions.
Our intent with these changes is to
make the Review Board’s role more
analogous to that of an appellate court
reviewing the decision of the trial court.
We believe that this approach will
provide individuals a full opportunity
to have the Review Board address any
significant error by the ALJ that the
individual believes led to a wrong
decision in the case, while still giving
appropriate deference to the ALJ’s
factual findings. Because this approach
would allow the Review Board to focus
its efforts on significant errors that may
have affected the outcome of the case,
we believe this approach represents the
best use of the Review Board’s limited
resources. Toward that end, our
proposed rules encourage, but do not
require, parties to include with their
appeal a written statement that
identifies the errors the party believes
were made by the ALJ, explains why the
alleged errors warrant action by the
Review Board under the standards of
review described above, and cites
applicable law or facts to support the
party’s position.
Closing the Evidentiary Record at the
Time of the ALJ Decision
We propose to limit a party’s ability
to submit new evidence to the Review
Board to the same extent the final rules
published March 31, 2006 limited
submission of new evidence following
the first ALJ decision. Specifically, we
propose that following the first ALJ
decision in a case (whether that
decision is subsequently overturned or
not), we will accept additional evidence
from a party only if:
• The evidence relates to the period
on or before the date of that first
decision by an ALJ;

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• The party shows that there is a
reasonable probability that the evidence,
alone or when considered with the other
evidence of record, would change the
outcome of the decision; and
• Either our action misled the party,
the party had a physical, mental,
educational, or linguistic limitation that
prevented the party from submitting the
evidence earlier, or some other unusual,
unexpected, or unavoidable
circumstance beyond the party’s control
prevented the earlier submission of the
evidence.
The proposed rules differ somewhat
from our current rules for submitting
evidence to the Appeals Council. Under
our current rules, the Appeals Council
will accept new evidence only if it
relates to the period on or before the
date of the ALJ decision. The proposed
rules contain the same restriction that
the evidence must relate to the period
on or before the date of the ALJ
decision, but they also require the
individual to show that there is a
reasonable probability that the evidence
would change the outcome of the
decision and that there was some good
reason, as described above, that the
individual could not have submitted the
evidence earlier.
This limitation would apply only to
evidence offered by a party. Should the
Review Board believe additional
evidence is needed to decide the issues
in the case, it will be able to obtain that
evidence itself or remand the case to an
ALJ to obtain the evidence, and any
evidence so obtained would be made
part of the evidentiary record.
Also, we propose to revise our rules
on reopening to make them consistent
with these proposed limits on an
individual’s ability to submit new
evidence after a hearing decision or
dismissal. Specifically, we 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.
We believe this change is necessary
because without it, a claimant who
submits additional evidence to the
Review Board that does not meet the
standard described above for admitting
the evidence would be able to
circumvent our limits simply by asking
to have our final decision reopened
based on the additional evidence we
declined to admit.
Limiting the Period of Time Covered by
the Review Board’s Adjudication and
Adjudication Following Administrative
or Court Remands
When cases are remanded for further
proceedings, either from a Federal court
or the Appeals Council, our current

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rules allow ALJs and the Appeals
Council to consider changes in the
individual’s condition after the date of
the first ALJ decision on the claim, such
as an increase in severity of the
claimant’s original impairment(s) or the
development of a new impairment.
Under our current rules, for example,
when the Appeals Council grants an
individual’s request that it review the
decision made by an ALJ and finds
reasons to reverse that decision and
remand the case for further proceedings,
it has typically ‘‘vacated’’ the decision
of the ALJ. As a result, we consider the
case during the subsequent proceedings
on remand as if the earlier ALJ’s
decision had not been issued. This same
situation may arise where a Federal
court remands a case for further
proceedings. In practical terms, this
approach allowed individuals to
continue to submit evidence freely
throughout the subsequent proceedings
or to attempt to establish an onset of
disability even after the date of the first
hearing decision.
It became possible, therefore, for the
final decision on remand to be based on
evidence submitted well after the
evidentiary record should have closed,
on evidence that related to a period of
time after the date of the hearing
decision that was reviewed, or even on
evidence of a physical or mental
impairment that did not begin until after
the date of the hearing decision that was
reviewed. This open-ended approach is
administratively very inefficient, as we
often are reviewing ALJ decisions based
on evidence not presented to the ALJ.
The approach we are proposing in
this rule would modify that process. We
believe that the first ALJ hearing
decision on a claim for benefits,
regardless of whether that decision
becomes our final decision, generally
must close both the evidentiary record
(as discussed above) and the period of
time within which the claimant must
establish entitlement to the benefits
sought. Therefore, we 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.
We believe this proposed closing of
the record will not unduly disadvantage
claimants. Consistent with existing
policy, claimants applying for disability
benefits who experience a worsening of
condition or new impairments during
the intervening time between the ALJ
decision and the Review Board’s

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decision—or while the case is pending
on remand—may file a new claim for
benefits. The average processing time
for initial determinations by State
agencies is currently faster than the
average processing time for Appeals
Council review, particularly when cases
are remanded. If these proposed rules
become final, we plan to modify the
notices we send to claimants when their
cases are denied or remanded to ensure
that claimants are aware that they can
file new applications. We welcome
comments from the public about how
we can best ensure that claimants
understand their right to file new
applications while prior applications
are pending review.
The changes we are proposing are
consistent with the governing statute.
Specifically, sections 202(j) and 223(b)
of the Act provide that an individual’s
claim for benefits may be allowed only
if the claimant satisfies the requirements
for ‘‘before a decision based upon the
evidence adduced at the hearing is
made (regardless of whether such
decision becomes the final decision of
the Commissioner of Social Security).’’
This proposed approach would be
consistent with the role we envision for
the Review Board, which would be to
review a decision that has already been
made, based on a record that has already
been developed, for the precise period
of time considered by the ALJ who
made the decision that is being
reviewed.
Removal of Special Provision for Cases
Remanded by a Court
Our current rules (§§ 404.984 and
416.1484) contain a separate process for
further administrative review of hearing
decisions made after a remand by a
Federal court. Under those rules, when
a Federal court has remanded a case to
the Commissioner for further
proceedings, and the Appeals Council
in turn has remanded the case to an ALJ,
the ALJ’s decision on remand becomes
the final decision of the Commissioner
unless, within 30 days of the date the
claimant receives notice of the decision,
the claimant files written exceptions
asking the Appeals Council to review
the ALJ’s decision or, within 60 days of
the date of the ALJ’s decision, the
Appeals Council notifies the claimant
that it has taken jurisdiction of the case.
That procedure replaced earlier
procedures which generally required
ALJs to issue recommended decisions in
all court remands, even when the ALJ’s
decision on remand was favorable to the
claimant. Our intent when we adopted
the current process in 1989 was
primarily to eliminate the requirement
that ALJs issue recommended decisions

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Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules
and thus permit favorable ALJ decisions
on remand to be effectuated more
quickly.
In the interests of administrative
efficiency, we believe it is better to have
one uniform appeal process for all of
our cases. As discussed earlier, we are
proposing to eliminate the option for
ALJs to issue recommended decisions,
except on remand by direction of the
Review Board. Therefore, the rationale
for our current special procedure for
cases remanded by a Federal court no
longer applies in cases where the ALJ’s
decision is favorable to the claimant.
Those favorable decisions would be
effectuated promptly under our
proposed procedures, without the need
for action by the Review Board.
However, cases where the ALJ’s
decision on remand is unfavorable and
the claimant continues to disagree are
ones we believe the Review Board
should see before the case goes back to
court. We believe it is important to
ensure that our policies have been
applied consistently and that the
problems identified by the court have
Topic
Three Levels of Disability
Appeals.

Requesting an ALJ Hearing

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been addressed before the case returns
to Federal court. Therefore, we propose
to remove §§ 404.984 and 416.1484, and
instead channel any further review of
these hearing decisions through the
Review Board appeal process described
above.
Advisory Function for Review Board
The Review Board’s primary function
will be to adjudicate the cases that come
before it pursuant to an appeal by the
claimant or when the Review Board
selects the case for review on its own
initiative under the procedure described
in proposed §§ 404.970 and 416.1470.
We anticipate that the Review Board’s
work also will provide its members with
a unique and valuable perspective on
the issues, policies, or procedures that
may tend to impede the efficient and
consistent adjudication of cases at all
levels of our administrative adjudicative
process. Therefore, we propose as an
additional function of the Review Board
that it may from time to time make
recommendations for changes in policy
or procedure that it believes may
improve the efficiency and consistency

61223

of our adjudicative process. We do not
intend to establish a specific process for
this advisory function in the regulations
themselves, as we believe the structure
for such internal deliberations must be
kept as flexible as possible. We
currently anticipate that the Review
Board would make such
recommendations through the Deputy
Commissioner for Disability
Adjudication and Review or her
designee, and would consider in its
recommendations any anecdotal case
experiences and any relevant statistical
information that is available to the
Review Board. However, we would
welcome any suggestions as to how this
advisory function might best be
implemented.
Comparison of Current and Proposed
Policy
The table below summarizes the
changes we are proposing to make to the
hearings and appeals provisions
discussed above. In the table, we first
summarize the current process and then
describe the proposed process.

Current policy (outside the Boston region)

Proposed policy

1. Reconsideration (except in prototype states where
no reconsideration).
2. ALJ Hearing—Notify claimant at least 20 days prior
to hearing. Claimant makes any ‘‘time, place or
issue’’ objections ‘‘at the earliest possible opportunity’’.
3. Appeals Council.
Request must be in writing and should include the
name, SSN of the wage earner; the reasons you disagree with the previous determination or decision; a
statement of additional evidence to be submitted and
the date it will be submitted; and the name and address of any designated representative.
The request must be filed within 60 days after the date
claimant receives notice of the previous determination or decision. The time can be extended. Good
cause applies.
The ALJ may decide case without an oral hearing if
claimant waives right to appear.

1. Reconsideration (unchanged).
2. ALJ hearing—Notify claimant at least 75 days prior
to hearing. ‘‘Time and place’’ objections no later than
30 days after receipt of notice. ‘‘Issues’’ objections at
least 5 days before hearing.
3. Review Board.

ALJ accepts evidence up to and including day of hearing. ALJ may choose at hearing to hold record open
for a defined time period if claimant advises additional material evidence forthcoming. ALJ may hold
supplemental hearing or take other action.
In proceedings on remand from the Appeals Council or
a Federal court, ALJ accepts evidence relating to period following first ALJ decision.
Appeals Council accepts new and material evidence relating to the period on or before the date of the ALJ
hearing decision.

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Request must be in writing and should include claimant’s name and SSN, the name and SSN of the
wage earner if the case concerns benefits under another person’s account, the specific reasons you disagree with the reconsidered determination, description of impairment (if disability), any available evidence, name and address of representative, if any.
The request must be filed within 60 days after the date
claimant receives notice of the reconsidered determination. The time can be extended. Good cause applies.
The ALJ may decide case without an oral hearing if
claimant waives right to appear.
ALJ will accept evidence submitted at least 5 business
days before the hearing. ALJ will accept evidence
submitted within the 5 business days before the
hearing if there is good cause for late submission.
ALJ will accept evidence submitted after the hearing
but before the hearing decision is issued if there is
good cause for late submission and there is a reasonable possibility that the evidence would affect the
outcome of the case. ALJ may choose at hearing to
hold record open for a defined time period if claimant
advises additional material evidence forthcoming.
ALJ may hold supplemental hearing or take other action.
In proceedings on remand from the Review Board or a
Federal court, ALJ will not accept evidence relating
to period following first ALJ decision.
Review Board will accept evidence only if it relates to
the period on or before the date of the first ALJ decision, there is a reasonable probability that the evidence would change the outcome of the case, and
there is good cause for late submission.

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61224

Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules
Topic

Current policy (outside the Boston region)

Proposed policy

Prehearing Statements and
Conferences.

Claimant can submit a written summary of the case or
written statements about the facts and law material to
the case.
ALJ can decide on his or her own, or at the request of
any party, to hold a prehearing conference. The ALJ
generally must tell the parties of the time, place, and
purpose of the conference at least 7 days in advance. There is no sanction if the claimant/representative does not appear. Current regulation is silent as
to whether the conference is held in person or by
telephone. A record of the conference is made.

Appearance at Hearing ........

ALJ determines whether claimant and any other witness will appear in person or by video teleconference
(VCT). Claimant can object to time or place of the
hearing. Objection must be made at the earliest possible opportunity before the hearing. ALJ will change
time or place of hearing if there is good cause to do
so. If claimant objects to appearing by VCT, ALJ will
reschedule hearing for in-person appearance.

Posthearing Conferences ....

ALJ can decide on his or her own, or at the request of
any party, to hold a posthearing conference. The ALJ
generally must tell the parties of the time, place, and
purpose of the conference at least 7 days in advance. Current regulation is silent as to whether the
conference is held in person or by telephone. A
record of the conference is made.
The ALJ must issue a written decision which gives the
findings of fact and the reason for the decision; made
part of the record. Exception is oral (bench) fully favorable decision issued at the hearing; claimant receives a notice incorporating the oral decision. Notice
advises claimant can appeal to Appeals Council.
Appeals Council can deny claimant’s request that it review the ALJ’s decision.
Appeals Council applies ‘‘substantial evidence’’ test to
ALJ fact finding; considers any question of law as if it
were considering it for the first time; applies ‘‘abuse
of discretion’’ test to ALJ exercise of discretion.
Claimant may submit ‘‘new and material evidence’’
which relates to the period on or before the date of
ALJ decision. The AC will consider the entire record
including any new and material evidence related to
the period on or before the date of ALJ decision and
will review the case if ALJ’s action, findings, or conclusion is contrary to the ‘‘weight of the evidence.’’

Claimant can submit, or ALJ can request that claimant
submit, a prehearing statement describing why the
claimant disagrees with the reconsidered determination. Statement should discuss briefly issues involved
in the proceeding, facts, witnesses, the evidentiary
and legal basis upon which claimant believes the ALJ
should decide the case in claimant’s favor, and any
other comments, suggestions, or information that
might assist the ALJ in preparing for the hearing.
ALJ can decide on his or her own, or at the claimant’s
request, to conduct a prehearing conference if the
ALJ finds that a conference would facilitate the hearing or the decision. The ALJ will give claimant reasonable notice of the time, place, and manner of the
conference. If neither claimant nor representative appears, hearing might be dismissed. Good cause applies. The conference will normally be held by telephone. The ALJ will summarize in writing, or on the
record at the hearing, the actions taken or to be
taken as a result of the conference.
ALJ determines whether claimant or any other witness
will appear in person, by VCT, or by telephone. ALJ
will only direct claimant to appear by telephone if
claimant’s appearance in person is not possible (e.g.,
claimant is incarcerated and facility will not allow a
hearing at the facility) and VCT is not available.
Claimant can object to time or place of the hearing.
Objection must be in writing and made no later than
30 days after receipt of notice of hearing. ALJ will
consider claimant’s reasons for requesting change
and the impact of the proposed change on the efficient administration of the hearing process. If claimant objects to appearing by VCT, ALJ will reschedule
hearing for in-person appearance. If claimant objects
to another witness appearing by VCT or telephone,
ALJ will decide whether to have that person appear
in person, by VCT, or by telephone.
ALJ can decide on his or her own, or at the claimant’s
request, to hold a posthearing conference to facilitate
the hearing decision. The ALJ will give claimant reasonable notice of the time, place, and manner of the
conference. If neither claimant nor representative appears and there is no good cause for failure to appear, ALJ will decide on record.
ALJ must issue a written decision that explains in clear
and understandable language the reason for decision; made part of record. Exception is oral (bench)
fully favorable decision issued at hearing; claimant
receives a notice incorporating the oral decision.
Notice advises claimant can appeal to Review Board.
Review Board must consider and issue a decision in
any case that is appealed to it timely.
Review Board will use ‘‘substantial evidence’’ test, consider any question of law as if it were considering it
for the first time, apply ‘‘harmless error’’ test; applies
‘‘abuse of discretion’’ test to ALJ exercise of discretion.
Additional evidence requirements similar to those at
hearing level, with the added requirement that evidence will be accepted only if the Review Board determines that there is a reasonable probability that
the new evidence, alone or in consideration with
other evidence of record, would change the outcome
of the decision.
Review Board can:
• Issue new decision
• Remand to ALJ
• Summarily affirm ALJ decision.

The ALJ Decision .................

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Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules
Topic
Removal of Special Provision in Court Remands.

61225

Current policy (outside the Boston region)

Proposed policy

When a case is remanded by a court, the ALJ decision
becomes the final decision after remand unless the
Appeals Council assumes jurisdiction. The Appeals
Council may assume jurisdiction based on a claimant’s written exceptions or on its own motion.
If no exceptions are filed, or the Appeals Council does
not assume jurisdiction based on exceptions or on its
own motion, a claimant may seek court review of the
final decision after remand.

Remove current process. Claimant who is dissatisfied
with the hearing decision would have to appeal to the
Review Board.

Transitional Rules
Our goal is to move as many cases to
these new procedures as quickly as
possible. Therefore, if we adopt these
proposed rules, we plan to follow them
with regard to any (1) cases for which
a request for an ALJ hearing is made on
or after the effective date of the final
rules and (2) further review of ALJ
hearing decisions or dismissals on or
after the effective date of the final rules.
On the effective date of the final rules,
we also plan to transfer to the Review
Board any cases then pending before the
Decision Review Board or the Appeals
Council, and to treat any pending
request for review by the Appeals
Council as a notice of appeal to the
Review Board.
We recognize, however, that on the
date the final rules become effective
there will be pending cases in which the
first ALJ decision on the claim had been
issued prior to the effective date of these
rules, perhaps even several years prior
to the date the new rules take effect. We
believe it would be unfair to those
claimants if we were to apply strictly
the new provision in these proposed
rules that limits the period of time
covered by the claim to the date of the
first ALJ decision.
Therefore, for cases pending on the
effective date of the final rules in which
the first decision by an ALJ on the claim
was issued prior to the effective date of
the final rules, we propose to apply the
new provision on limiting the period of
time covered by the application for
benefits in a different manner. For such
cases, we will use the date of the first
hearing or Review Board decision on the
claim that is issued on or after the

effective date of the final rules as the
date by which entitlement must be
established. For those cases, during the
period between the effective date of the
final rules and the date of the first
hearing decision or dismissal or Review
Board decision issued thereafter, we
propose to apply the rest of these
proposed rules to the extent practicable,
but will accord the claimant the benefit
of the prior procedures where necessary
to avoid disadvantaging the claimant or
any other party. For example, if the
claimant has new evidence to submit
that would not be admitted under the
new rules we are proposing here, but
would have been admissible under the
rules previously in effect, we will
accord the claimant the benefit of those
earlier rules and accept the evidence.

• What else could we do to make the
rules easier to understand?

Clarity of These Proposed Rules

We have consulted with the Office of
Management and Budget (OMB) and
determined that this proposed rule is
subject to OMB review because it meets
the criteria for an economically
significant regulatory action under
Executive Order 12866, as amended.
The Office of the Chief Actuary
estimates that this proposed rule, if
finalized, would reduce the program
costs of the Old Age, Survivors, and
Disability Insurance (OASDI) and the
SSI programs by $1.5 billion. That
Office estimates that there would be a
small increase in program costs in the
first year, followed by savings that
increase at first but then begin to
decrease in 2013. Specifically, that
Office estimates that program costs
would be reduced by the following
amounts ($ in millions) if this proposed
rule were adopted in a final rule.

Executive Order 12866, as amended,
requires each agency to write all rules
in plain language. In addition to your
substantive comments on these
proposed rules, we invite your
comments on how to make them easier
to understand. For example:
• Have we organized the material to
suit your needs?
• Are the requirements in the rules
clearly stated?
• Do the rules contain technical
language or jargon that isn’t clear?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the rules easier to
understand?
• Would more (but shorter) sections
be better?
• Could we improve clarity by adding
tables, lists, or diagrams?

When Will We Start To Use These
Rules?
We will not use these rules until we
evaluate the public comments we
receive on them, determine whether
they should be issued as final rules, and
issue final rules in the Federal Register.
If we publish final rules, we will
explain in the preamble how we will
apply them, and summarize and
respond to the public comments. Until
the effective date of any final rules, we
will continue to use our current rules.
Regulatory Procedures
Executive Order 12866, as Amended

TABLE 1.—ESTIMATED EFFECT ON OASDI AND FEDERAL SSI BENEFIT PAYMENTS OF A PROPOSED REGULATION MAKING
AMENDMENTS TO THE ADMINISTRATIVE LAW JUDGE, APPEALS COUNCIL, AND DECISION REVIEW BOARD APPEALS LEVELS, FISCAL YEARS 2008–17
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[In millions]
Fiscal year
2008
2009
2010
2011
2012

OASDI

.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................
.............................................................................................................................................

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$15
¥32
¥117
¥138
¥154

29OCP2

SSI

Total
$6
¥14
¥48
¥63
¥60

$21
¥46
¥166
¥201
¥215

61226

Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules

OASDI

SSI

Total

¥171
¥159
¥142
¥101
¥48

¥70
¥69
¥65
¥59
¥42

¥241
¥228
¥206
¥160
¥90

Totals:
2008–2012 .....................................................................................................................
2008–2017 .....................................................................................................................

¥427
¥1,047

¥180
¥484

¥607
¥1,531

2013
2014
2015
2016
2017

(Totals may not equal the sum of components due to rounding.)

Regarding the estimates in the above
table, we note that this NPRM would
have two principal effects relative to the
baseline under current rules. First, the
closing of the record after the initial
decision by an ALJ would be accelerated
relative to the baseline. Under the
baseline in the FY 2008 Budget and the
Mid-Session Review, we assumed that
DSI would be phased in one region per
year over a 10-year period. Included in
that implementation is a closing of the
record that is very similar to that in the
NPRM. The difference is that the NPRM
would implement this change for all
regions immediately. This acceleration
of the closure of the record is estimated
to provide significant reductions in cost
through reduced allowances over the
next 10 years or so.
The second principal effect would be
from establishing immediately the
Review Board (RB) for all regions.
Under current rules, the Appeals
Council (AC) is assumed to be replaced
one region at a time by the Decision
Review Board (DRB) over the 10-year
period. Thus, implementing the RB
essentially immediately would at first
largely replace the AC with RB, but over
the next 10 years, it would be the DRB
that would be effectively replaced by

the RB. We estimate that the RB would
not function much differently from the
AC. But because we have assumed the
DRB would be more restrictive than the
current AC in the future, replacing the
DRB with the RB would be less
restrictive and would thus result in
more allowances and cost. But this cost
would only gradually grow through the
next 10 years.
The combination of these two
principal effects would initially reduce
allowances (via immediate closure of
the record). But this initial effect would
gradually diminish because the current
rule would also affect closure of the
record, but more gradually. However,
just as the reduction in allowances from
the first effect is diminishing, the
increase in allowances from having the
RB instead of the DRB would be
gradually rising. By the end of 10 years,
the net annual reductions in costs
would have diminished substantially.
There is substantial uncertainty
associated with estimated effects of the
provisions in this NPRM. We have
attempted to develop estimates
reflecting the most likely outcome. We
believe we are very likely to have
properly assessed the direction of
change from each of the principal

changes. But the magnitude of the effect
could be different. It may be useful to
think in terms of a plausible range
where the impact of all provisions were
either 50 percent higher or 50 percent
lower than assumed for our estimate. In
this case, the overall annual costs
estimated would be 50 percent higher or
50 percent lower, respectively. While it
is not possible to assign a specific
probability that actual program cost
effects will fall in this range, we believe
the probability is high.
As indicated above, the two principal
effects of this NPRM would tend to have
opposite impacts on program cost. The
effect of lowering program cost by
accelerating the implementation of
closure of the record would be
temporary, lasting for only a short time
after the end of the 10-year budget
period. However, the effect of changing
ultimately from the Decision Review
Board in current rules to the Review
Board in this NPRM would have
persistent effects beyond 10 years,
resulting in sustained small increases in
allowances and thus in program cost.
The magnitude of this persistent effect
on long-range program cost is expected
to be negligible (i.e., less than 0.005
percent of taxable payroll).

TABLE 2.—ACCOUNTING STATEMENT: ESTIMATED ECONOMIC IMPACT OF AMENDING THE ADMINISTRATIVE LAW JUDGE,
APPEALS COUNCIL AND DECISION REVIEW BOARD APPEALS LEVEL FROM 2008–2017 IN 2007 DOLLARS
Category

Transfers

Annualized Monetized Transfers ..............................................................

$127.3 million (7% discount rate).
$131.1 million (3% discount rate).
From SSA beneficiaries to the Social Security trust fund and the general fund.

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From Whom To Whom? ...........................................................................

Regulatory Flexibility Act
We certify that this proposed rule, if
published in final, will not have a
significant economic impact on a
substantial number of small entities as

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it affects only individuals. Therefore, a
regulatory flexibility analysis as
provided in the Regulatory Flexibility
Act, as amended, is not required.

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Paperwork Reduction Act
We propose to include in parts 404
and 416 of our rules many of the hearing
level procedures now in place for
disability cases in the Boston region.

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Federal Register / Vol. 72, No. 208 / Monday, October 29, 2007 / Proposed Rules
This change will expand those rules
nationwide and apply them to hearings
on both disability and non-disability
matters. We also propose to amend our
rules governing the final level of the
administrative review process to make
proceedings at that level more like those
used by a Federal appeals court when it
reviews the decision of a lower court
that has been appealed to it, to establish
procedures for appeals to that level, and
to change the name of the body that will
hear such appeals from the ‘‘Appeals
Council,’’ or the ‘‘Decision Review

accounted for under separate OMB
numbers. Consequently, we show a 1hour placeholder for these burdens.
Respondents to these collections are
individuals who request an appeal of a
hearing decision or an unfavorable
decision on their claims.

Board’’ in the Boston region, to the
‘‘Review Board.’’
Requests for information from the
public for the hearings process and the
associated collection of evidence/
documents are paperwork burdens that
require clearance under the Paperwork
Reduction Act of 1995. The chart below
outlines those sections in this proposed
rule that contain the paperwork
burdens. The changes to the majority of
the sections are minor. Also, most of the
paperwork burdens for these rules have
already been cleared by OMB and are

Part 404—Federal Old-Age, Survivors
and Disability Insurance
Part 416—Supplemental Security
Income for the Aged, Blind, and
Disabled

Annual
number of
respondents

Frequency of
response

Average
burden per
response
(minutes)

404.933(a)–(d), 416.1433(a)–(d). How to request a hearing—you must request a hearing by filing a written request.

........................

404.933(a)(4), 416.1433(a)(4). If disability is
an issue, a statement of the medically determinable impairment should be included
in the written request for a hearing.
404.933(d), 416.1433(d). Extension of time to
request a hearing—you may ask us for
more time to request a hearing.
404.933(e), 416.1433(e). Waiver of right to
appear—you may ask the administrative
law judge to decide your case without a
hearing.
404.935(a)–(c), 416.1435(a)–(c). Submitting
evidence to an administrative law judge.
404.935(d)(1) & (2), 416.1435(d)(1) & (2).
Subpoena—you must file a written request
for a subpoena.
404.935(d)(4), 416.1435(d)(4). Subpoena—
you may ask the administrative law judge
to withdraw or limit the scope of the subpoena.
404.938(c), 416.1438(c). Acknowledging the
notice of hearing—we will ask you to return
a form to let us know that you received the
notice.

493,155

10,959

........................

547,950

1 hour place holder burden (covered by
OMB No. 0960.0284, Waiver of your right
to a personal appearance before an administrative law judge).
547,950.

3,750

1,875.

........................

18,265

1 hour placeholder burden (covered by OMB
No. 0960–0671, Acknowledgement of Receipt (Notice of Hearing), Part 404, Subpart J, 404.936, .938, .950, Part 416, Subpart N.
9,132.

........................

36,500

Title/section & collection description

404.939(a), 416.1439(a). Objections—you
should notify the administrative law judge
in writing if you object to the time and
place of your hearing.
404.939(b), 416.1439(b). Objections—you
should notify the administrative law judge
in writing if you believe that issues in the
hearing notice are incorrect.
404.948(b), 416.1448(b). Deciding a case
without a hearing before and administrative
law judge—You state in writing that you do
not wish to appear at a hearing.
404.950(a), 416.1450(a). Presenting evidence at a hearing before an administrative
law judge.
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404.961(b), 416.1461(b). Prehearing and
posthearing proceedings—you may submit
a prehearing statement describing why you
disagree with the reconsidered determination.

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Estimated annual burden
(hours)
1 hour place holder burden (covered by
OMB No. 0960–0269, Request for Hearing
by Administrative Law Judge, 20 CFR
404.967–.981, 416.1467–.1481).
41,096.

1,827.

1 hour place holder burden (covered by
OMB No. 0960.0284, Waiver of your right
to a personal appearance before an administrative law judge).
1 hour placeholder burden (covered by OMB
No. 0960–0671, Acknowledgement of Receipt (Notice of Hearing), Part 404, Subpart J, 404.936, .938, .950, Part 416, Subpart N.
18,250.

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Annual
number of
respondents

Title/section & collection description

Frequency of
response

Average
burden per
response
(minutes)

404.969(a)–(b), 416.1469(a)–(b). How to appeal to the Review Board—to begin your
appeal you must file a notice of appeal.
404.969(b)(2), 416.1469(b)(2). How to appeal
to the Review Board—you may ask that
the time for filing a notice of appeal be extended.
404.969(c), 416.1469(c). Contents of the Appeal—you should include with your notice
of appeal a written statement.
404.974(a), 416.1474(a). Procedures before
the board, obtaining copies of evidence—
you may request and receive copies or a
statement of documents and other written
evidence.
404.974(b), 416.1474(b). Filing briefs with the
Review Board—you may file a brief or
other written statement.
404.974(e), 416.1474(e). Oral arguments—
you may ask to appear before the review
board to present an oral argument.
404.976(a)(4), 416.1476(a)(4). Dismissal by
Review Board—you may file a written request for dismissal.
404.976(a)(5), 416.1476(a)(5). Dismissal by
Review Board—a person other than the
claimant may file a written appeal.
404.977(d)(1), 416.1477(d)(1). Filing briefs
with the Review Board—you may file briefs
or other written statements with the Review
Board.
404.982(b), 416.1482(b). Review of final decisions in Federal District Court—you may
request an extension in time for filing an
action in Federal District Court.

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Total .........................................................

An Information Collection Request
has been submitted to OMB for
clearance. We are soliciting comments
on the burden estimate; the need for the
information; its practical utility; ways to
enhance its quality, utility and clarity;
and on ways to minimize the burden on
respondents, including the use of
automated collection techniques or
other forms of information technology.
Comments should be sent to OMB by
fax or by e-mail to:
Office of Management and Budget,
Attn: Desk Officer for SSA, Fax Number:
202–395–6974, E-mail address:
[email protected].
Comments on the paperwork burdens
associated with this rule can be received
for up to 60 days after publication of
this notice and will be most useful if
received within 30 days of publication.
This does not affect the deadline for the
public to comment to SSA on the
proposed regulations. These information
collection requirements will not become
effective until approved by OMB. When
OMB has approved these information

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2,000

1 hour placeholder burden (covered by OMB
NO. 0960–0277, Request for Review of
Hearing Decision/Order, 20 CFR 404.967–
.981, 416.1467–.1481).
334.

93,461

93,461.

45,000

7,500.

45,000

45,000.

300

50.

600

100.

20.

1,475

245.

805,320

........................

collection requirements, SSA will
publish a notice in the Federal Register.
To receive a copy of the OMB clearance
package, please contact the Reports
Clearance Officer at
[email protected].
(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; and
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 405
Administrative practice and
procedure; Blind, Disability benefits;
Old-Age, Survivors, and Disability
Insurance; Public assistance programs;
Reporting and recordkeeping

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(hours)

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725,761.

requirements; Social Security;
Supplemental Security Income (SSI).
20 CFR Part 416
Administrative practice and
procedure; Aged, Blind, Disability
benefits, Public Assistance programs;
Reporting and recordkeeping
requirements; Supplemental Security
Income (SSI).
Dated: October 15, 2007.
Michael J. Astrue,
Commissioner of Social Security.

For the reasons set out in the
preamble, we propose to amend subpart
J of part 404, part 405, and subpart N of
part 416 as set forth below:
PART 404—FEDERAL OLD-AGE,
SURVIVORS AND DISABILITY
INSURANCE (1950– )
Subpart J—[Amended]
1. The authority citation for subpart J
of part 404 continues to read as follows:

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Authority: Secs. 201(j), 204(f), 205(a), (b),
(d)–(h), and (j), 221, 223(i), 225, and 702(a)(5)
of the Social Security Act (42 U.S.C. 401(j),
404(f), 405(a), (b), (d)–(h), and (j), 421, 423(i),
425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96
Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)–
(e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42
U.S.C. 421 note); sec. 202, Pub. L. 108–203,
118 Stat. 509 (42 U.S.C. 902 note).

2. Amend § 404.900 by revising
paragraphs (a)(4) and (b) to read as
follows:
§ 404.900

Introduction.

(a) * * *
(4) Appeal to the Review Board. If you
are dissatisfied with the decision of the
administrative law judge, you may
appeal that decision to the Review
Board.
*
*
*
*
*
(b) Nature of the administrative
review process. In making a
determination or decision in your case,
we conduct the administrative review
process in an informal, nonadversarial
manner. Subject to the limitations in
§§ 404.935 and 404.973 on submitting
evidence at the administrative law judge
and Review Board levels, you may
present any information you feel may be
helpful to your case. You may present
the information yourself or have
someone represent you, including an
attorney. At each step of the review
process, we will consider all relevant
evidence that has been made part of the
record. If you are dissatisfied with our
decision in the review process, but do
not take the next step within the stated
time period, you will lose your right to
further administrative review and your
right to judicial review unless you can
show us that there was good cause for
your failure to pursue the next step of
our review process in a timely manner.
§ 404.901

[Amended]

3. Amend § 404.901 by removing the
words ‘‘Appeals Council’’ and adding,
in their place, the words ‘‘Review
Board’’.
4. Amend § 404.911 by revising
paragraph (b)(5) to read as follows:
§ 404.911 Good cause for missing the
deadline to request review.

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*
*
*
*
(b) * * *
(5) You asked us for additional
information explaining our action
within the time limit, and within 60
days of receiving the explanation you
requested reconsideration or a hearing,
or within 30 days of receiving the
explanation you filed a notice of appeal
to the Review Board or filed a civil suit.
*
*
*
*
*
5. Amend § 404.924 by revising
paragraph (a) to read as follows:

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§ 404.924 When the expedited appeals
process may be used.

*
*
*
*
(a) We have made an initial and a
reconsidered determination; an
administrative law judge has made a
hearing decision; or a decision has been
appealed to the Review Board, but a
final decision has not been issued.
*
*
*
*
*
6. Amend § 404.925 by revising
paragraph (a)(4) to read as follows:
§ 404.925 How to request expedited
appeals process.

(a) * * *
(4) At any time after you have filed a
timely notice of appeal to the Review
Board, but before the Review Board has
issued a decision.
*
*
*
*
*
§ 404.928

[Amended]

7. Amend § 404.928 by removing the
words ‘‘Appeals Council review’’ and
adding, in their place, the words ‘‘a
notice of appeal to the Review Board’’.
8. Revise § 404.929 to read as follows:
§ 404.929 Hearing before an administrative
law judge-general.

(a) If you are dissatisfied with one of
the determinations or decisions listed in
§ 404.930 you may request a hearing.
We will appoint an administrative law
judge to conduct the hearing
proceedings. If circumstances warrant
after making the appointment (for
example, if the administrative law judge
becomes unavailable), we may assign
your case to another administrative law
judge.
(b) You may examine the evidence
used in making the reconsidered
determination, submit evidence, appear
at the hearing, and present and question
witnesses. The administrative law judge
may ask you questions and will issue a
decision based on the hearing record. If
you waive your right to appear at the
hearing, the administrative law judge
will make a decision based on the
evidence that is in the file, on any new
evidence that is timely submitted, and
on any evidence that the administrative
law judge obtains.
9. Revise § 404.933 to read as follows:
§ 404.933 How to request a hearing before
an administrative law judge.

(a) Written request. You must request
a hearing by filing a written request.
You should include in your request—
(1) Your name and social security
number,
(2) If your case concerns your benefits
under an account other than your own,
the name and social security number of
the wage earner under whose account
you are filing,

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(3) The specific reasons you disagree
with the reconsidered determination,
(4) If disability is an issue in your
case, a statement of the medically
determinable impairment(s) that you
believe prevents you from working,
(5) Additional evidence that you have
available to you, and
(6) The name and address of your
representative, if any.
(b) Time limit for filing request. An
administrative law judge will hear your
case if you request a hearing in writing
no later than 60 days after the date you
receive notice of the reconsidered
determination (or within the extended
time period if we extend the time as
provided in paragraph (d) of this
section). The administrative law judge
may decide your case without an oral
hearing under the circumstances
described in § 404.948.
(c) Place for filing request. You should
submit a written request for a hearing at
one of our offices. In addition, if you
have a disability claim, you may also
file the request at the Veterans Affairs
regional office in the Philippines, or if
you have 10 or more years of service, or
at least 5 years of service accruing after
December 31, 1995, in the railroad
industry, an office of the Railroad
Retirement Board.
(d) Extension of time to request a
hearing. You may ask us for more time
to request a hearing. Your request for an
extension of time must be in writing and
must give the reasons the hearing
request was not filed, or cannot be filed,
in time. If you show us that you have
good cause for missing the deadline, we
will extend the time period. To
determine whether good cause exists,
we use the standards explained in
§ 404.911 of this part.
(e) Waiver of the right to appear. After
you submit your request for a hearing,
you may ask the administrative law
judge to decide your case without a
hearing, as described in § 404.948(b).
The administrative law judge may grant
the request unless he or she believes
that a hearing is necessary. You may
withdraw this waiver of your right to
appear at a hearing any time before
notice of the hearing decision is mailed
to you, and we will schedule a hearing
as soon as practicable.
10. Revise § 404.935 to read as
follows:
§ 404.935 Submitting evidence to an
administrative law judge.

(a) General. You should submit with
your request for hearing any evidence
that you have available to you. All
documents prepared and submitted by

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you (i.e., not including medical or other
evidence that is prepared by someone
other than you or your representative)
should clearly designate your name and
the last four digits of your social
security number. All such documents
must be clear and legible to the fullest
extent practicable and delivered or
mailed to the administrative law judge
within the time frames in paragraph (b)
of this section, unless the administrative
law judge allows additional time for
submitting evidence.
(b) Time for submitting evidence. Any
documents that you wish to have
considered at the hearing must be
submitted no later than 5 business days
before the date of the scheduled hearing.
If you do not comply with this
requirement, the administrative law
judge may decline to consider the
evidence unless the circumstances
described in paragraph (c) of this
section apply.
(c) Late submission of evidence. (1) If
you miss the deadline described in
paragraph (b) of this section and you
wish to submit evidence during the 5
business days before the hearing or at
the hearing, the administrative law
judge will accept the evidence if you
show that:
(i) Our action misled you;
(ii) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(iii) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(2) If you miss the deadline described
in paragraph (b) of this section and you
wish to submit evidence after the
hearing and before the hearing decision
is issued, the administrative law judge
will accept the evidence if you show
that there is a reasonable possibility that
the evidence, alone or when considered
with the other evidence of record,
would affect the outcome of your case,
and:
(i) Our action misled you;
(ii) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(iii) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(d) Subpoenas. (1) When it is
reasonably necessary for the full
presentation of a case, an administrative
law judge may, on his or her own
initiative or at your request, issue
subpoenas for the appearance and
testimony of witnesses and for the

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production of any documents that are
relevant to an issue at the hearing.
(2) To have documents or witnesses
subpoenaed, you must file a written
request for a subpoena with the
administrative law judge at least 20 days
before the hearing date. The written
request must:
(i) Give the names of the witnesses or
describe the documents to be produced;
(ii) Describe the address or location of
the witnesses or documents with
sufficient detail to find them;
(iii) State the important facts that the
witness or document is expected to
show; and
(iv) Indicate why these facts could not
be shown without that witness or
document.
(3) We will pay the cost of issuing the
subpoena and pay subpoenaed
witnesses the same fees and mileage
they would receive if they had been
subpoenaed by a Federal district court.
(4) Within 5 days of receipt of a
subpoena, but no later than the date of
the hearing, the person against whom
the subpoena is directed may ask the
administrative law judge to withdraw or
limit the scope of the subpoena and
must set forth the reasons why the
subpoena should be withdrawn or why
it should be limited in scope.
(5) Upon failure of any person to
comply with a subpoena, the Office of
the General Counsel may seek
enforcement of the subpoena under
section 205(e) of the Act.
11. Revise § 404.936 to read as
follows:
§ 404.936 Time and place for a hearing
before an administrative law judge.

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teleconference or, under certain
extraordinary circumstances, by
telephone. If you object to appearing
personally by video teleconference, we
will re-schedule the hearing to a time
and place at which you may appear in
person before the administrative law
judge. The administrative law judge
may direct you to appear by telephone
when:
(i) Your appearance in person is not
possible, such as if you are incarcerated
and the facility will not allow a hearing
to be held at the facility, and
(ii) Video teleconference is not
available.
(2) In setting the time and place of the
hearing, the administrative law judge
will determine whether any other
person will appear at the hearing in
person, by telephone, or by video
teleconference. If you object to any other
person appearing by telephone or video
teleconference, the administrative law
judge will decide whether to have that
person appear in person, by telephone,
or by video teleconference. The
administrative law judge will direct a
person, other than you if you object to
your appearing by video teleconference,
to appear by video teleconference when:
(i) Video teleconference technology is
available,
(ii) Use of video teleconference
technology would be more efficient than
conducting an examination of a witness
in person, and
(iii) The administrative law judge
determines that there is no other reason
why video teleconference should not be
used.
12. Revise § 404.938 to read as
follows:
§ 404.938 Notice of a hearing before an
administrative law judge.

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telephone) and whether any witness’s
appearance will be in person, by
telephone, or by video teleconference,
and
(6) That you must submit all evidence
that you wish to have considered at the
hearing no later than 5 business days
before the date of the scheduled hearing,
unless you show that your
circumstances meet the conditions
described in § 404.935(c) for missing the
deadline.
(c) Acknowledging the notice of
hearing. In the notice of hearing, we will
ask you to return a form, within 5 days
of the date you receive the notice, to let
us know that you received the notice. If
you or your representative does not
acknowledge receipt of the notice of
hearing, we will attempt to contact you
to see if you received it. If you let us
know that you did not receive the notice
of hearing, we will send you an
amended notice by certified mail.
13. Revise § 404.939 to read as
follows:

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§ 404.939

Objections.

(a) Time and Place. (1) If you object
to the time or place of your hearing, you
must notify the administrative law judge
in writing at the earliest possible
opportunity before the date set for the
hearing, but no later than 30 days after
receiving notice of the hearing. You
must state the reason(s) for your
objection and propose a time and place
you want the hearing to be held.
(2) The administrative law judge will
consider your reason(s) for requesting
the change and the impact of the
proposed change on the efficient
administration of the hearing process.
Factors affecting the impact of the
change include, but are not limited to,
the effect on the processing of other
scheduled hearings, delays which might
occur in rescheduling your hearing, and
whether we previously granted to you
any changes in the time or place of your
hearing.
(b) Issues. If you believe that the
issues contained in the hearing notice
are incorrect, you should notify the
administrative law judge in writing at
the earliest possible opportunity, but
must notify him or her no later than 5
business days before the date set for the
hearing. You must state the reason(s) for
your objection. The administrative law
judge will make a decision on your
objection either at the hearing or in
writing before the hearing.
§ 404.940

[Amended]

14. Amend § 404.940 by removing the
words ‘‘Associate Commissioner for
Hearings and Appeals’’ and adding, in
their place, the word ‘‘we’’, and by

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removing the words ‘‘Appeals Council’’
and, in their place, adding the words
‘‘Review Board’’.
§ 404.943

[Removed and Reserved]

15. Remove and reserve § 404.943.
16. Revise § 404.944 to read as
follows:
§ 404.944 Administrative law judge hearing
procedures—general.

(a) General. A hearing is open only to
you and to other persons the
administrative law judge considers
necessary and proper. The
administrative law judge will conduct
the proceedings in an orderly and
efficient manner. At the hearing, the
administrative law judge will look fully
into all of the issues raised in your case,
will question you and the other
witnesses, and will accept any evidence
relating to your case that you submit in
accordance with § 404.935.
(b) Conducting the hearing. The
administrative law judge will decide the
order in which the evidence will be
presented. The administrative law judge
may stop the hearing temporarily and
continue it at a later date if he or she
decides that there is evidence missing
from the record that must be obtained
before the hearing may continue. At any
time before the notice of the decision is
sent to you, the administrative law
judge may hold a supplemental hearing
in order to receive additional evidence,
consistent with the procedures
described in §§ 404.946 through
404.961.
17. Revise § 404.946 to read as
follows:
§ 404.946 Issues before an administrative
law judge.

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61231

you, but arising under a different title of
the Act or under the Federal Coal Mine
Health and Safety Act. If this happens,
the administrative law judge will not
consider the issue again, but will accept
the factual finding made in the previous
determination or decision, unless he or
she has reason to believe that it was
wrong, or reopens the previous
determination or decision under
§ 404.987.
18. Revise § 404.948 to read as
follows:
§ 404.948 Deciding a case without a
hearing before an administrative law judge.

(a) Decision wholly favorable. If the
evidence in the record supports a
decision wholly in your favor, the
administrative law judge may issue a
decision without holding a hearing.
However, the notice of the decision will
inform you that you have the right to a
hearing and that you have a right to
examine the evidence on which the
decision is based.
(b) You do not wish to appear. The
administrative law judge may decide a
case on the record and not conduct a
hearing if—
(1) You state in writing that you do
not wish to appear at a hearing, or
(2) You live outside the United States
and you do not inform us that you want
to appear.
(c) When a hearing is not held, the
administrative law judge will make a
record of the evidence, which, except
for the transcript of the hearing, will
contain the material described in
§ 404.951. The decision of the
administrative law judge must be based
on this record.
§ 404.949

[Removed and Reserved]

19. Remove and reserve § 404.949.
20. Revise § 404.950 to read as
follows:
§ 404.950 Presenting evidence at a hearing
before an administrative law judge.

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Witnesses who appear at a hearing shall
testify under oath or by affirmation,
unless the administrative law judge
finds an important reason to excuse
them from taking an oath or making an
affirmation. The administrative law
judge, you, or your representative may
ask the witnesses any questions relating
to your case.
(d) Closing statements. You or your
representative may present a closing
statement to the administrative law
judge—
(1) Orally at the end of the hearing,
(2) In writing after the hearing and
within a reasonable time period set by
the administrative law judge, or
(3) By using both methods under
paragraphs (d)(1) and (2).
21. Revise § 404.951 to read as
follows:

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§ 404.951

Official record.

(a) All hearings will be recorded. All
evidence upon which the administrative
law judge relies for the decision must be
contained in the record, either directly
or through administrative notice, if
appropriate. The official record will
include the applications, written
statements, certificates, reports,
affidavits, medical records, and other
documents that were used in making the
determination under review and any
additional evidence or written
statements that the administrative law
judge admits into the record under
§§ 404.935 and 404.944. All admitted
evidence must be incorporated into the
record. The official record of your case
will contain all of the admitted evidence
and a verbatim recording of all
testimony offered at the hearing. It also
will include any prior initial
determinations or decisions relevant to
your case. Subject to § 404.973, the
official record closes once the
administrative law judge issues his or
her decision, regardless of whether it
becomes our final decision.
(b) The recording of the hearing will
be prepared as a typed copy of the
proceedings if—
(1) The case is sent to the Review
Board without a decision, or with a
recommended decision as ordered by
the Review Board, by the administrative
law judge;
(2) You seek judicial review of your
case by filing an action in a Federal
district court within the stated time
period, unless we request the court to
remand the case; or
(3) An administrative law judge or the
Review Board asks for a written record
of the proceedings in cases remanded by
a Federal district court.
22. Revise § 404.952 to read as
follows:

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§ 404.952 Consolidated hearing before an
administrative law judge.

(a) General. (1) We may hold a
consolidated hearing if—
(i) You have requested a hearing to
decide your case, and
(ii) One or more of the issues to be
considered at your hearing is the same
as an issue involved in another case you
have pending before us.
(2) If the administrative law judge
consolidates the cases, he or she will
decide both cases, even if we have not
yet made an initial determination or a
reconsidered determination in the other
case.
(b) Record, evidence, and decision.
There will be a single record at a
consolidated hearing. This means that
the evidence introduced at the hearing
becomes the evidence of record in each
case adjudicated. The administrative
law judge may issue either a
consolidated decision or separate
decisions for each case.
23. Revise § 404.953 to read as
follows:
§ 404.953 Decision by the administrative
law judge.

(a) The administrative law judge will
make a decision based on all of the
evidence, including the testimony at the
hearing. The administrative law judge
will prepare a written decision that
explains in clear and understandable
language the reasons for the decision.
(b) During the hearing, in certain
categories of cases that we identify in
advance, the administrative law judge
may orally explain in clear and
understandable language the reasons
for, and enter into the record, a wholly
favorable decision. The administrative
law judge will include in the record a
document that sets forth the key data,
findings of fact, and narrative rationale
for the decision. Within 5 days after the
hearing, if there are no subsequent
changes to the analysis in the oral
decision, we will send you a written
decision that incorporates such oral
decision by reference and that explains
why the administrative law judge agrees
or disagrees with the substantive
findings and overall rationale of the
reconsidered determination. If there is a
change in the administrative law judge’s
analysis or decision, we will send you
a written decision that is consistent
with paragraph (a) of this section. Upon
written request, we will provide you a
record of the oral decision.
24. Revise § 404.955 to read as
follows:

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§ 404.955 The effect of the administrative
law judge’s decision.

The decision of the administrative
law judge is binding on all parties to the
hearing unless—
(a) You or another party to the hearing
appeals the decision to the Review
Board;
(b) The Review Board decides to
review the decision on its own motion,
as provided in § 404.970; or
(c) The decision is a recommended
decision to the Review Board as ordered
by the Review Board; or
(d) The decision is revised by an
administrative law judge or the Review
Board under the procedures explained
in § 404.987.
§ 404.956

[Amended]

25. Amend § 404.956 by removing the
words ‘‘Appeals Council’’ and, in their
place, adding the words ‘‘Review
Board’’.
26. Revise § 404.957 to read as
follows:
§ 404.957 Dismissal of a request for a
hearing before an administrative law judge.

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(d) If you have no right to a hearing
under § 404.930;
(e) If you did not request a hearing in
time and we have not extended the time
for requesting a hearing; or
(f) If you die and your estate or any
person to whom an underpayment may
be distributed under § 404.503 or
§ 416.542 of this chapter has not
pursued your case.
27. Revise the second sentence of
§ 404.958 to read as follows:
§ 404.958 Notice of dismissal of a request
for hearing before an administrative law
judge.

* * * The notice will state that you
have the right to appeal the dismissal to
the Review Board.
§ 404.959

[Amended]

28. Amend § 404.959 by removing the
words ‘‘Appeals Council’’ and, in their
place, adding the words ‘‘Review
Board’’.
§ 404.960

[Amended]

29. Amend § 404.960 by removing the
words ‘‘Appeals Council’’ and, in their
place, adding the words ‘‘Review
Board’’.
30. Revise § 404.961 to read as
follows:

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§ 404.961 Prehearing and posthearing
proceedings.

(a) Prehearing conferences. (1) The
administrative law judge, on his or her
own initiative or at your request, may
decide to conduct a prehearing
conference if he or she finds that such
a conference would facilitate the
hearing or the decision in your case. A
prehearing conference normally will be
held by telephone, unless the
administrative law judge decides that
conducting it in another manner would
be more efficient and effective in
addressing the issues raised at the
conference. We will give you reasonable
notice of the time, place, and manner of
the conference.
(2) At the conference, the
administrative law judge may consider
matters such as simplifying or amending
the issues, obtaining and submitting
evidence, and any other matters that
may expedite the hearing.
(3) The administrative law judge will
summarize in writing, or on the record
at the hearing, the actions taken or to be
taken as a result of the conference.
(4) Subject to § 404.957(b)(4), if
neither you nor the person you
designate to act as your representative
appears at the prehearing conference,
and under § 404.957(b) you do not have
a good reason for failing to appear, we
may dismiss the hearing request.

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(b) Prehearing statements. (1) At any
time before the hearing begins, you may
submit, or the administrative law judge
may request that you submit, a
prehearing statement describing why
you disagree with the reconsidered
determination.
(2) Unless otherwise requested by the
administrative law judge, a prehearing
statement should discuss briefly the
following matters:
(i) Issues involved in the proceeding,
(ii) Facts,
(iii) Witnesses,
(iv) The evidentiary and legal basis
upon which you believe the
administrative law judge should decide
the case in your favor, and
(v) Any other comments, suggestions,
or information that might assist the
administrative law judge in preparing
for the hearing.
(c) Posthearing conferences. (1) The
administrative law judge may decide, on
his or her own initiative or at your
request, to hold a posthearing
conference to facilitate the hearing
decision. A posthearing conference
normally will be held by telephone
unless the administrative law judge
decides that conducting it in another
manner would be more efficient and
effective in addressing the issues raised.
We will give you reasonable notice of
the time, place, and manner of the
conference. The administrative law
judge will place in the record a written
summary describing the actions taken or
to be taken as a result of the conference.
(2) If neither you nor the person you
designate to act as your representative
appears at the posthearing conference,
and under § 404.957(b) you do not have
a good reason for failing to appear, we
will issue a decision based on the
information available in your case.
31. Remove the undesignated center
heading ‘‘APPEALS COUNCIL
REVIEW’’ preceding § 404.966.
§§ 404.966 through 404.984

[Removed]

32. Remove existing §§ 404.966
through 404.984 and the undesignated
center heading preceding § 404.983.
33. Add a new undesignated center
heading and §§ 404.967 through 404.977
and §§ 404.982 and 404.983 to read as
follows:
Appeals to the Review Board
§ 404.967

The Review Board.

(a) The Review Board is composed of
administrative appeals judges whom we
appoint. It is responsible for reviewing
decisions made by administrative law
judges in cases where you or another
party to the proceedings has filed a
notice of appeal of the administrative
law judge’s decision. A party also may

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appeal an administrative law judge’s
dismissal of a request for hearing to the
Review Board.
(b) The Review Board may choose to
review a decision by an administrative
law judge even if no party has filed an
appeal of that decision. The
circumstances in which the Review
Board may initiate such a review, and
the procedures it will follow, are
described in § 404.970.
(c) The Review Board also may
identify issues that impede consistent
adjudication at any or all levels of the
administrative review process and may
recommend appropriate changes in
policies and procedures to address those
impediments. This advisory function
will be performed separately from the
Review Board’s adjudicative function.
§ 404.968
general.

Appeal to the Review Board—

(a) If you or any other party is
dissatisfied with a hearing decision that
is unfavorable, in whole or in part, or
with the dismissal of a hearing request,
you may appeal that action to the
Review Board. The Review Board will
consider your appeal and either:
(1) Affirm, reverse, or modify the
decision of the administrative law
judge;
(2) Remand the case to an
administrative law judge for further
proceedings; or
(3) Dismiss your appeal pursuant to
§ 404.976.
(b) The Review Board will notify the
parties at their last known addresses of
the action it has taken.
§ 404.969
Board.

How to appeal to the Review

(a) Right to appeal to the Review
Board. If you are a party to the
administrative proceedings in a case
and an administrative law judge has
issued a hearing decision or dismissal
that is unfavorable to you, in whole or
in part, you have the right to appeal that
action by the administrative law judge
to the Review Board.
(b) Time limit on appeals to the
Review Board. (1) To begin your appeal,
you must file a notice of appeal within
60 days after the date you receive notice
of the administrative law judge hearing
decision or dismissal, unless we have
extended the time period as provided in
paragraph (b)(2) of this section.
(2) You or any party to a hearing
decision may ask that the time for filing
a notice of appeal to the Review Board
be extended. The request for additional
time must be in writing, must be filed
with the Review Board, and must give
the reasons why the notice of appeal
was not filed, or cannot be filed, within

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the 60-day period provided by
paragraph (b)(1). If you show that you
have good cause for missing the 60-day
deadline, we will grant you additional
time to file the notice of appeal. We use
the standards in § 404.911 to determine
whether you had good cause.
(c) Contents of the appeal. Your
notice of appeal must be in writing and
must clearly indicate that you are
appealing a specific unfavorable
administrative law judge hearing
decision or dismissal. Any documents
or other evidence you wish to have
considered by the Review Board should
be submitted with your notice of appeal.
You also should include with your
notice of appeal a written statement that
identifies any errors you believe the
administrative law judge made, explains
why those alleged errors require reversal
or modification of the administrative
law judge’s hearing decision or
dismissal under the standards of review
described in § 404.971, and cites
applicable law and specific facts in the
administrative record to support your
contentions.
(d) Where to file your notice of
appeal. You may file your notice of
appeal at one of our offices. If you have
a disability claim, you may also file
your notice of appeal at the Veterans
Affairs regional office in the Philippines
or, if you have 10 or more years of
service, or at least 5 years of service
accruing after December 31, 1995, in the
railroad industry, at an office of the
Railroad Retirement Board.

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§ 404.970

Review Board initiates review.

(a) General. Anytime within 60 days
after the date of a decision or dismissal
that is subject to review under this
section, the Review Board may decide
on its own motion to review the action
that was taken in your case. We may
refer your case to the Review Board and
ask that it review your case under this
authority.
(b) Identification of cases. We will
identify a case for referral to the Review
Board for possible review under this
section before we effectuate the decision
in the case. We will identify cases for
referral to the Review Board through
random and selective sampling
techniques, which we may use in
association with examination of the
cases identified by sampling. We also
will identify cases for referral to the
Review Board through the evaluation of
cases we conduct in order to effectuate
decisions.
(1) Random and selective sampling
and case examinations. We may use
random and selective sampling to
identify cases involving any type of
action (e.g., wholly or partially favorable

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decisions, unfavorable decisions, or
dismissals) and any type of benefits
(e.g., benefits based on disability,
retirement, etc.). We will use selective
sampling to identify cases that exhibit
problematic issues or fact patterns that
increase the likelihood of error. Neither
our random sampling procedures nor
our selective sampling procedures will
identify cases based on the identity of
the decisionmaker. We may examine
cases that have been identified through
random or selective sampling to refine
the identification of cases that may meet
the criteria for review by the Review
Board.
(2) Identification as a result of the
effectuation process. We may refer a
case requiring effectuation to the
Review Board if, in the view of the
effectuating component, the decision
should not be effectuated because it
contains an error that affects the
outcome of the case, because the
decision is clearly inconsistent with the
Social Security Act, the regulations, a
published Social Security Ruling, or
other statement of policy, or because the
decision is unclear regarding a matter
that affects the outcome of the case.
(c) Referral of cases. Any referral we
make as a result of a case examination
or the effectuation process will be in
writing. This written referral will state
the referring component’s reasons for
believing that the Review Board should
review the case on its own motion.
Referrals that result from selective
sampling without a case examination
may be accompanied by a written
statement identifying the issue(s) or fact
pattern that caused the referral.
Referrals that result from random
sampling without a case examination
will only identify the case as a random
sample case.
(d) Review Board’s action. If the
Review Board decides to review a
decision or dismissal on its own motion,
it will mail a notice to all parties at their
last known addresses stating that it has
decided to review the case and stating
the reasons for the review and the issues
to be considered. The Review Board will
include with that notice a copy of any
written referral it received under
paragraph (c) of this section. If the 60day period within which the Review
Board may initiate review on its own
motion (see paragraph (a) of this
section) ends before the Review Board is
able to decide whether to review the
decision or dismissal, the Review Board
still may consider whether the decision
or dismissal should be reopened
pursuant to §§ 404.987 and 404.988.
(e) Interim benefits. If the Review
Board decides to review a decision on
its own motion, or to reopen a decision

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as provided in §§ 404.987 and 404.988,
the notice of review or the notice of
reopening issued by the Review Board
will advise, where appropriate, that
interim benefits will be payable if a final
decision has not been issued within 110
days after the date of the decision that
is reviewed or reopened, and that any
interim benefits paid will not be
considered overpayments unless the
benefits are fraudulently obtained.
§ 404.971

Standard of review.

(a) Review of hearing decisions. If you
appeal a decision of an administrative
law judge to the Review Board, or if the
Review Board initiates a review under
§ 404.970, the Review Board will review
the factual findings of the
administrative law judge using the
substantial evidence test. Substantial
evidence means such relevant evidence
as a reasonable mind might accept as
adequate to support a conclusion. The
Review Board will consider any
questions of law on their merits,
without deference to the legal
conclusions reached by the
administrative law judge.
(b) Review of dismissals. If you appeal
an administrative law judge’s dismissal
of your request for a hearing, the Review
Board will review the action of the
administrative law judge for any abuse
of discretion.
(c) Harmless error. No error in either
the admission or exclusion of evidence,
and no error, defect, or omission in any
ruling or decision of the administrative
law judge, shall require the Review
Board to vacate, modify, or reverse an
otherwise appropriate ruling or decision
of the administrative law judge unless,
in the opinion of the Review Board,
there is a reasonable probability that the
error, alone or when considered with
other aspects of the case, changed the
outcome of the decision.
§ 404.972 Scope of review—period of time
adjudicated.

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

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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.

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§ 404.973 Scope of review—evidentiary
record before the Review Board.

(a) Subject to paragraphs (b) and (d)
of this section, the evidentiary record
for your case is closed as of the date of
the first administrative law judge’s
decision in your case. The Review
Board will base its action on the same
evidence that was before the
administrative law judge and will
consider only that evidence that was in
the record before the administrative law
judge.
(b) If you have submitted additional
evidence with your appeal, and that
additional evidence relates to the period
on or before the date of the first
administrative law judge hearing
decision in your case, the Review Board
will accept that evidence if you show
that there is a reasonable probability
that the evidence, alone or when
considered with the other evidence of
record, would change the outcome of
the decision and:
(1) Our action misled you;
(2) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(3) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(4) You must submit with your
additional evidence a written statement
that explains why you believe you meet
one or more of the criteria in paragraphs
(b)(1), (2), and (3) of this section.
(c) If you have submitted additional
evidence with your appeal and the
Review Board determines that the
evidence does not relate to the period
on or before the date of the
administrative law judge’s hearing
decision, or otherwise does not satisfy
the criteria in paragraph (b) of this
section, the Review Board will return
the additional evidence to you with an
explanation as to why it did not accept
the additional evidence. The notice
returning the evidence to you will
advise you that you have a right to file
a new application and that, if you file
a new application within 6 months after
the date of the notice, we will consider
your appeal as a written statement
indicating an intent to claim benefits in
accordance with § 404.630 and use the
date of your appeal as the filing date for
your new application.
(d) If the Review Board obtains
additional evidence pursuant to
§ 404.974(d) of this part, or remands

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your case to an administrative law judge
with instructions to obtain additional
evidence on one or more issues, any
evidence so obtained will become part
of the evidentiary record in your case.
§ 404.974
Board.

Procedures before Review

(a) Obtaining copies of evidence. You
may request and receive copies or a
statement of the documents or other
written evidence upon which the
hearing decision or dismissal was based
and, if a hearing was held before an
administrative law judge, a copy of the
recording of that hearing. However, you
will be asked to pay the costs of
providing these copies unless there is a
good reason why you should not pay.
(b) Filing briefs or written statements
with the Review Board. You may file a
brief or other written statement about
the facts and law relevant to the case.
Any such brief or written statement
should be filed with your notice of
appeal, as provided in § 404.969(c), or
within 10 days thereafter. If there are
other parties in your case and you
choose to file a brief or written
statement, you should send a copy to
each party.
(c) Limitation of issues. The Review
Board may limit the issues it considers
in your appeal. If the Review Board
chooses to limit the issues it will
consider, it will notify you and any
other party of the specific issues it will
consider.
(d) Additional evidence. If the Review
Board believes additional evidence is
needed, it may remand the case to an
administrative law judge to receive
evidence and issue a new decision.
However, if the Review Board decides it
can obtain the evidence itself more
quickly, it may do so, unless to do so
would adversely affect your rights.
(e) Oral argument. You may ask to
appear before the Review Board to
present oral argument. The Review
Board may grant your request if it
decides that your case raises an
important question of law or policy or
that oral argument would help the
Review Board reach a proper decision.
If your request for oral argument is
granted, the Review Board will notify
you of the time and place for the oral
argument at least 10 days before the
scheduled date.
§ 404.975 Actions that the Review Board
may take.

(a) If you appeal your case to the
Review Board, or if the Review Board
has decided to review your case on its
own motion pursuant to § 404.970, the
Review Board may take one of the
following actions:

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(1) The Review Board may dismiss the
appeal pursuant to § 404.976;
(2) If the Review Board decides that
the administrative law judge’s decision
is supported by substantial evidence
and contains no significant error of law,
it may summarily affirm the decision of
the administrative law judge;
(3) If the Review Board determines
that there were significant errors of law
or fact in the decision of the
administrative law judge, or if the
Review Board believes there are aspects
of the case that warrant further
clarification, it may issue its own
decision which affirms, reverses, or
modifies the decision of the
administrative law judge;
(4) If the Review Board determines
that there were significant errors of law
or fact in the decision of the
administrative law judge, or if the
Review Board believes there are aspects
of the case that warrant further
clarification, it may remand the case to
an administrative law judge for further
proceedings and a new decision, or
recommended decision, that is
consistent with the instructions and
limitations set forth by the Review
Board in its order of remand; or
(5) If the Review Board concludes that
further development of the evidence is
necessary before a decision can be
reached, it may issue an order
remanding your case to an
administrative law judge for further
proceedings consistent with the Review
Board’s order.
(b) We will send notice of the Review
Board’s action to you at your last known
address. The notice will explain in clear
and simple language what action the
Review Board has taken and the reasons
for that action. If the Review Board
issues a new decision pursuant to
paragraph (a)(3) of this section, that
decision will accompany the notice and
will contain in understandable language
a statement of the case setting forth the
evidence on which the decision was
based, the Review Board’s analysis of
the evidence and the issues, and the
reasons for the Review Board’s
conclusions. If the Review Board
summarily affirms the decision of the
administrative law judge, or issues a
new decision that decides your case, the
notice also will advise you that the
Review Board’s action is our final
decision and will explain how to seek
judicial review of our decision. If the
Review Board dismisses your appeal,
the notice will advise you that the
dismissal is our final decision and is not
subject to further review. If the Review
Board issues an order remanding your
case for further proceedings, the notice

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will explain that the remand order is not
our final decision.
§ 404.976

Dismissal by Review Board.

(a) The Review Board may dismiss
any proceedings pending before it if—
(1) You did not file your appeal
within the prescribed period of time and
the time for filing has not been
extended;
(2) The party who filed the appeal had
no right to do so under § 404.968;
(3) The record shows that the
administrative law judge who issued the
hearing decision should have dismissed
your request for hearing under
§ 404.957;
(4) You and all other parties to the
proceedings file a written request for
dismissal; or
(5) You die, your estate or any other
person to whom an underpayment may
be distributed under § 404.503 of this
part has not pursued your appeal, and
the record clearly shows that dismissal
will not adversely affect any other
person who wishes to continue the
action. However, dismissal of the appeal
for this reason will be vacated if, within
60 days after the date of the dismissal,
another person submits a written appeal
and shows that he or she may be
adversely affected by the determination
that was under appeal.
(b) Except as provided in paragraph
(a)(5) of this section, the Review Board’s
dismissal of an appeal pursuant to this
section is binding and is not subject to
further review.

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§ 404.977
Board.

Case remanded by the Review

(a) When the Review Board may
remand a case. The Review Board may
remand a case to an administrative law
judge to issue a new decision or
recommended decision, and may
instruct the administrative law judge to
hold another hearing. The Review Board
may also remand a case to have the
administrative law judge obtain
additional evidence or for other action.
(b) Action by administrative law judge
on remand. The administrative law
judge shall take any action that is
ordered by the Review Board and may
take any additional action that is not
inconsistent with the Review Board’s
order of remand. However, the
administrative law judge may consider
your case only with regard to the period
of time on or before the date of the first
administrative law judge decision in
your case.
(c) Notice when case is returned with
a recommended decision. When the
administrative law judge sends a case to
the Review Board with a recommended
decision, as ordered by the Review

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Board, a notice is mailed to the parties
at their last known addresses. The
notice tells them that the case has been
sent to the Review Board with a
recommended decision, includes a copy
of the recommended decision, and
explains the rules for filing briefs or
other written statements with the
Review Board.
(d) Filing briefs or written statements
with the Review Board. When the
administrative law judge sends a case to
the Review Board with a recommended
decision, as ordered by the Review
Board, you will be given 20 days from
the date that the recommended decision
is mailed to you in which to file with
the Review Board any briefs or other
written statements about the facts and
law relevant to your case. Any party
may ask the Review Board for additional
time to file briefs or other written
statements. The Review Board will
extend this period, as appropriate, if
you show you had good cause for
missing the deadline.
(e) Action by Review Board on
recommended decision. After receiving
a recommended decision from the
administrative law judge, as ordered by
the Review Board, the Review Board
will conduct its proceedings and take
action according to the procedures
explained in this subpart.
§ 404.982 Review of final decisions in
Federal district court.

(a) If the Review Board issues a final
decision in your case pursuant to
§ 404.975(a)(2) or § 404.975(a)(3) of this
part, that decision will be binding
unless you or another party files a civil
action in Federal district court seeking
a review of that final decision. You have
until 60 days after the date you receive
the notice of the Review Board’s
decision to file your civil action with
the court. We will presume you received
the notice within 5 days of the date
shown on the notice, unless you show
us that you did not receive it within that
5-day period.
(b) Any party to the Review Board’s
final decision, or to an expedited
appeals process agreement, may request
that the time for filing an action in a
Federal district court be extended. The
request must be in writing and must
include the reasons why the action was
not filed, or cannot be filed, within the
stated time period. The request must be
filed with the Review Board, or if it
concerns an expedited appeals process
agreement, with one of our offices. If
you show that you had good cause for
missing the deadline, the time period
will be extended. We use the standards
in § 404.911 to determine whether good
cause exists.

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§ 404.983
court.

Case remanded by a Federal

When a Federal court remands a case
to us for further consideration, the
Review Board may make a decision, or
it may remand the case to an
administrative law judge with
instructions to take action and issue a
decision or return the case to the
Review Board with a recommended
decision. If the case is remanded by the
Review Board, the procedures explained
in § 404.977 will be followed.
34. Amend § 404.989 by revising
paragraph (a)(1) to read as follows:
§ 404.989

Good cause for reopening.

(a) * * *
(1) New and material evidence is
furnished, except that, if the decision
was made by an administrative law
judge or the Review Board and involved
a claim that you were disabled, we will
not consider any new evidence;
*
*
*
*
*
35. Amend § 404.992 by revising
paragraphs (c) and (d) to read as follows:
§ 404.992 Notice of revised determination
or decision.

*
*
*
*
(c) If an administrative law judge or
the Review Board proposes to revise a
decision, and the revision would be
based on evidence not included in the
record on which the prior decision was
based, you and any other parties to the
decision will be notified, in writing, of
the proposed action and of your right to
request that a hearing be held before any
further action is taken. If a revised
decision is issued by an administrative
law judge, you and any other party may
appeal the revised decision to the
Review Board or the Review Board may
review the decision on its own
initiative.
(d) If an administrative law judge or
the Review Board proposes to revise a
decision, and the revision would be
based only on evidence included in the
record on which the prior decision was
based, you and any other parties to the
decision will be notified, in writing, of
the proposed action. If a revised
decision is issued by an administrative
law judge, you and any other party may
appeal the revised decision to the
Review Board or the Review Board may
review the decision on its own
initiative.
36. Revise § 404.993 to read as
follows:
§ 404.993 Effect of revised determination
or decision.

A revised determination or decision is
binding unless—
(a) You or another party to the revised
determination files a written request for

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reconsideration or a hearing before an
administrative law judge, as
appropriate;
(b) You or another party to the revised
decision files, as appropriate, a request
for a hearing before an administrative
law judge or a notice of appeal to the
Review Board;
(c) The Review Board reviews the
revised decision on its own motion; or
(d) The revised determination or
decision is further revised.
§ 404.999c

[Amended]

37. Amend § 404.999c(d)(3)(i)(C) by
removing the words ‘‘Office of Hearings
and Appeals’’ and adding, in their
place, the words ‘‘Office of Disability
Adjudication and Review’’.
PART 405—ADMINISTRATIVE REVIEW
PROCESS FOR ADJUDICATING
INITIAL DISABILITY CLAIMS
38. The authority citation for part 405
continues to read as follows:
Authority: Secs. 201(j), 205(a)–(b), (d)–(h),
and (s), 221, 223(a)–(b), 702(a)(5), 1601, 1602,
1631, and 1633 of the Social Security Act (42
U.S.C. 401(j), 405(a)–(b), (d)–(h), and (s), 421,
423(a)–(b), 902(a)(5), 1381, 1381a, 1383, and
1383b).

Subpart A—[Removed and Reserved]
Subparts D through H—[Removed and
Reserved]
39. Amend part 405 by removing and
reserving subparts A, D, E, F, G, and H.
39a. Section 405.230 is revised to read
as follows:
§ 405.230 Effect of the Federal reviewing
official’s decision.

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The Federal reviewing official’s
decision is binding unless—
(a) You request a hearing before an
administrative law judge under
§ 404.933 or § 416.1433 of this chapter
within 60 days of the date you receive
notice of the Federal reviewing official’s
decision and a decision is made by the
administrative law judge,
(b) The expedited appeals process is
used, or
(c) We revise the Federal reviewing
official’s decision under §§ 404.987
through 404.996 or §§ 416.1487 through
416.1494 of this chapter.
PART 416—SUPPLEMENTAL
SECURITY INCOME FOR THE AGED,
BLIND, AND DISABLED
Subpart N—[Amended]
40. The authority citation for subpart
N of part 416 continues to read as
follows:

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Authority: Secs. 702(a)(5), 1631, and 1633
of the Social Security Act (42 U.S.C.
902(a)(5), 1383, and 1383b); sec. 202, Pub. L.
108–203, 118 Stat. 509 (42 U.S.C. 902 note).

41. Amend § 416.1400 by revising
paragraphs (a)(4) and (b) to read as
follows:
§ 416.1400

Introduction.

(a) * * *
(4) Appeal to the Review Board. If you
are dissatisfied with the decision of the
administrative law judge, you may
appeal that decision to the Review
Board.
*
*
*
*
*
(b) Nature of the administrative
review process. In making a
determination or decision in your case,
we conduct the administrative review
process in an informal, nonadversarial
manner. Subject to the limitations in
§§ 416.1435 and 416.1473 on submitting
evidence at the administrative law judge
and Review Board levels, you may
present any information you feel may be
helpful to your case. You may present
the information yourself or have
someone represent you, including an
attorney. At each step of the review
process, we will consider all relevant
evidence that has been made part of the
record. If you are dissatisfied with our
decision in the review process, but do
not take the next step within the stated
time period, you will lose your right to
further administrative review and your
right to judicial review unless you can
show us that there was good cause for
your failure to pursue the next step of
our review process in a timely manner.
§ 416.1401

[Amended]

42. Amend § 416.1401 by removing
the words ‘‘Appeals Council’’ and
adding, in their place, the words
‘‘Review Board’’.
43. Amend § 416.1411 by revising
paragraph (b)(5) to read as follows:
§ 416.1411 Good cause for missing the
deadline to request review.

*
*
*
*
(b) * * *
(5) You asked us for additional
information explaining our action
within the time limit, and within 60
days of receiving the explanation you
requested reconsideration or a hearing,
or within 30 days of receiving the
explanation you filed a notice of appeal
to the Review Board or filed a civil suit.
*
*
*
*
*
44. Amend § 416.1424 by revising
paragraph (a) to read as follows:
§ 416.1424 When the expedited appeals
process may be used.

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(a) We have made an initial and a
reconsidered determination; an
administrative law judge has made a
hearing decision; or a decision has been
appealed to the Review Board, but a
final decision has not been issued.
*
*
*
*
*
45. Amend § 416.1425 by revising
paragraph (a)(4) to read as follows:
§ 416.1425 How to request expedited
appeals process.

(a) * * *
(4) At any time after you have filed a
timely notice of appeal to the Review
Board, but before the Review Board has
issued a decision.
*
*
*
*
*
§ 416.1428

[Amended]

46. Amend § 416.1428 by removing
the words ‘‘Appeals Council review’’
and adding, in their place, the words ‘‘a
notice of appeal to the Review Board’’.
47. Revise § 416.1429 to read as
follows:
§ 416.1429 Hearing before an
administrative law judge—general.

(a) If you are dissatisfied with one of
the determinations or decisions listed in
§ 416.1430 you may request a hearing.
We will appoint an administrative law
judge to conduct the hearing
proceedings. If circumstances warrant
after making the appointment (for
example, if the administrative law judge
becomes unavailable), we may assign
your case to another administrative law
judge.
(b) You may examine the evidence
used in making the reconsidered
determination, submit evidence, appear
at the hearing, and present and question
witnesses. The administrative law judge
may ask you questions and will issue a
decision based on the hearing record. If
you waive your right to appear at the
hearing, the administrative law judge
will make a decision based on the
evidence that is in the file, on any new
evidence that is timely submitted, and
on any evidence that the administrative
law judge obtains.
48. Revise § 416.1433 to read as
follows:
§ 416.1433 How to request a hearing
before an administrative law judge.

(a) Written request. You must request
a hearing by filing a written request.
You should include in your request—
(1) Your name and social security
number,
(2) The specific reasons you disagree
with the reconsidered determination,
(3) If disability is an issue in your
case, a statement of the medically
determinable impairment(s) that you
believe prevents you from working,

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(4) Additional evidence that you have
available to you, and
(5) The name and address of your
representative, if any.
(b) Time limit for filing request. An
administrative law judge will hear your
case if you request a hearing in writing
no later than 60 days after the date you
receive notice of the reconsidered
determination (or within the extended
time period if we extend the time as
provided in paragraph (d) of this
section). The administrative law judge
may decide your case without an oral
hearing under the circumstances
described in § 416.1448.
(c) Place for filing request. You should
submit a written request for a hearing at
one of our offices.
(d) Extension of time to request a
hearing. You may ask us for more time
to request a hearing. Your request for an
extension of time must be in writing and
must give the reasons the hearing
request was not filed, or cannot be filed,
in time. If you show us that you have
good cause for missing the deadline, we
will extend the time period. To
determine whether good cause exists,
we use the standards explained in
§ 416.1411 of this part.
(e) Waiver of the right to appear. After
you submit your request for a hearing,
you may ask the administrative law
judge to decide your case without a
hearing, as described in § 416.1448(b).
The administrative law judge may grant
the request unless he or she believes
that a hearing is necessary. You may
withdraw this waiver of your right to
appear at a hearing any time before
notice of the hearing decision is mailed
to you, and we will schedule a hearing
as soon as practicable.
49. Revise § 416.1435 to read as
follows:

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§ 416.1435 Submitting evidence to an
administrative law judge.

(a) General. You should submit with
your request for hearing any evidence
that you have available to you. All
documents prepared and submitted by
you (i.e., not including medical or other
evidence that is prepared by someone
other than you or your representative)
should clearly designate your name and
the last four digits of your social
security number. All such documents
must be clear and legible to the fullest
extent practicable and delivered or
mailed to the administrative law judge
within the time frames in paragraph (b)
of this section, unless the administrative
law judge allows additional time for
submitting evidence.
(b) Time for submitting evidence. Any
documents that you wish to have
considered at the hearing must be

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submitted no later than 5 business days
before the date of the scheduled hearing.
If you do not comply with this
requirement, the administrative law
judge may decline to consider the
evidence unless the circumstances
described in paragraph (c) of this
section apply.
(c) Late submission of evidence. (1) If
you miss the deadline described in
paragraph (b) of this section and you
wish to submit evidence during the 5
business days before the hearing or at
the hearing, the administrative law
judge will accept the evidence if you
show that:
(i) Our action misled you;
(ii) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(iii) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(2) If you miss the deadline described
in paragraph (b) of this section and you
wish to submit evidence after the
hearing and before the hearing decision
is issued, the administrative law judge
will accept the evidence if you show
that there is a reasonable possibility that
the evidence, alone or when considered
with the other evidence of record,
would affect the outcome of your case,
and:
(i) Our action misled you;
(ii) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(iii) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(d) Subpoenas. (1) When it is
reasonably necessary for the full
presentation of a case, an administrative
law judge may, on his or her own
initiative or at your request, issue
subpoenas for the appearance and
testimony of witnesses and for the
production of any documents that are
relevant to an issue at the hearing.
(2) To have documents or witnesses
subpoenaed, you must file a written
request for a subpoena with the
administrative law judge at least 20 days
before the hearing date. The written
request must:
(i) Give the names of the witnesses or
describe the documents to be produced;
(ii) Describe the address or location of
the witnesses or documents with
sufficient detail to find them;
(iii) State the important facts that the
witness or document is expected to
show; and

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(iv) Indicate why these facts could not
be shown without that witness or
document.
(3) We will pay the cost of issuing the
subpoena and pay subpoenaed
witnesses the same fees and mileage
they would receive if they had been
subpoenaed by a Federal district court.
(4) Within 5 days of receipt of a
subpoena, but no later than the date of
the hearing, the person against whom
the subpoena is directed may ask the
administrative law judge to withdraw or
limit the scope of the subpoena and
must set forth the reasons why the
subpoena should be withdrawn or why
it should be limited in scope.
(5) Upon failure of any person to
comply with a subpoena, the Office of
the General Counsel may seek
enforcement of the subpoena under
section 205(e) of the Act.
50. Revise § 416.1436 to read as
follows:
§ 416.1436 Time and place for a hearing
before an administrative law judge.

(a) General. The administrative law
judge sets the time and place for the
hearing. The administrative law judge
will notify you of the time and place of
the hearing at least 75 days before the
date of the hearing, unless you agree to
a shorter notice period. If it is necessary,
the administrative law judge may
change the time and place of the
hearing. If the administrative law judge
changes the time and place of the
hearing, he or she will send you
reasonable notice of the change.
(b) Where we hold hearings. We hold
hearings in the 50 States, the District of
Columbia, and the Northern Mariana
Islands.
(c) Determination regarding in-person,
telephonic, or video teleconference
appearance of witnesses at the hearing.
(1) In setting the time and place of the
hearing, the administrative law judge
will determine whether you will appear
at the hearing in person or by video
teleconference or, under certain
extraordinary circumstances, by
telephone. If you object to appearing
personally by video teleconference, we
will re-schedule the hearing to a time
and place at which you may appear in
person before the administrative law
judge. The administrative law judge
may direct you to appear by telephone
when:
(i) Your appearance in person is not
possible, such as if you are incarcerated
and the facility will not allow a hearing
to be held at the facility, and
(ii) Video teleconference is not
available.
(2) In setting the time and place of the
hearing, the administrative law judge

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will determine whether any other
person will appear at the hearing in
person, by telephone, or by video
teleconference. If you object to any other
person appearing by telephone or video
teleconference, the administrative law
judge will decide whether to have that
person appear in person, by telephone,
or by video teleconference. The
administrative law judge will direct a
person, other than you if you object to
your appearing by video teleconference,
to appear by video teleconference when:
(i) Video teleconference technology is
available,
(ii) Use of video teleconference
technology would be more efficient than
conducting an examination of a witness
in person, and
(iii) The administrative law judge
determines that there is no other reason
why video teleconference should not be
used.
51. Revise § 416.1438 to read as
follows:

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§ 416.1438 Notice of a hearing before an
administrative law judge.

(a) Issuing the notice. After the
administrative law judge sets the time
and place of the hearing, we will mail
notice of the hearing to you at your last
known address or give the notice to you
by personal service. We will mail or
serve the notice at least 75 days before
the date of the hearing, unless you agree
to a shorter notice period.
(b) Notice information. The notice of
hearing will tell you:
(1) The specific issues to be decided,
(2) That you may designate a person
to represent you during the proceedings,
(3) How to request that we change the
time or place of your hearing,
(4) That your hearing request may be
dismissed if you fail to appear at your
scheduled hearing without good reason
under § 416.1411,
(5) Whether your appearance will be
in person or by video teleconference (or,
in exceptional circumstances, by
telephone) and whether any witness’s
appearance will be in person, by
telephone, or by video teleconference,
and
(6) That you must submit all evidence
that you wish to have considered at the
hearing no later than 5 business days
before the date of the scheduled hearing,
unless you show that your
circumstances meet the conditions
described in § 416.1435(c) for missing
the deadline.
(c) Acknowledging the notice of
hearing. In the notice of hearing, we will
ask you to return a form, within 5 days
of the date you receive the notice, to let
us know that you received the notice. If
you or your representative does not

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acknowledge receipt of the notice of
hearing, we will attempt to contact you
to see if you received it. If you let us
know that you did not receive the notice
of hearing, we will send you an
amended notice by certified mail.
52. Revise § 416.1439 to read as
follows:
§ 416.1439

Objections.

[Amended]

53. Amend § 416.1440 by removing
the words ‘‘Associate Commissioner for
Hearings and Appeals’’ and adding, in
their place, the word ‘‘we’’, and by
removing the words ‘‘Appeals Council’’
and, in their place, adding the words
‘‘Review Board’’.
§ 416.1443

[Removed and Reserved]

54. Remove and reserve § 416.1443.
55. Revise § 416.1444 to read as
follows:
§ 416.1444 Administrative law judge
hearing procedures—general.

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into all of the issues raised in your case,
will question you and the other
witnesses, and will accept any evidence
relating to your case that you submit in
accordance with § 416.1435.
(b) Conducting the hearing. The
administrative law judge will decide the
order in which the evidence will be
presented. The administrative law judge
may stop the hearing temporarily and
continue it at a later date if he or she
decides that there is evidence missing
from the record that must be obtained
before the hearing may continue. At any
time before the notice of the decision is
sent to you, the administrative law
judge may hold a supplemental hearing
in order to receive additional evidence,
consistent with the procedures
described in §§ 416.1446 through
416.1461.
56. Revise § 416.1446 to read as
follows:
§ 416.1446
law judge.

Issues before an administrative

(a) General. The issues before the
administrative law judge include all the
issues raised in your case, regardless of
whether or not the issues may have
already been decided in your favor.
(b) New issues. Any time after
receiving the hearing request and before
mailing notice of the hearing decision,
the administrative law judge may
consider a new issue if he or she, before
deciding the issue, provides you an
opportunity to address it. The
administrative law judge or any party
may raise a new issue. An issue may be
raised even though it arose after the
request for a hearing and even though it
has not been considered in an initial or
reconsidered determination.
(c) Collateral estoppel—issues
previously decided. We already may
have decided a fact that is an issue
before the administrative law judge in
one of our previous and final
determinations or decisions involving
you, but arising under a different title of
the Act or under the Federal Coal Mine
Health and Safety Act. If this happens,
the administrative law judge will not
consider the issue again, but will accept
the factual finding made in the previous
determination or decision, unless he or
she has reason to believe that it was
wrong, or reopens the previous
determination or decision under
§ 416.1487.
57. Revise § 416.1448 to read as
follows:
§ 416.1448 Deciding a case without a
hearing before an administrative law judge.

(a) Decision wholly favorable. If the
evidence in the record supports a
decision wholly in your favor, the

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administrative law judge may issue a
decision without holding a hearing.
However, the notice of the decision will
inform you that you have the right to a
hearing and that you have a right to
examine the evidence on which the
decision is based.
(b) You do not wish to appear. The
administrative law judge may decide a
case on the record and not conduct a
hearing if—
(1) You state in writing that you do
not wish to appear at a hearing, or
(2) You live outside the United States
and you do not inform us that you want
to appear.
(c) When a hearing is not held, the
administrative law judge will make a
record of the evidence, which, except
for the transcript of the hearing, will
contain the material described in
§ 416.1451. The decision of the
administrative law judge must be based
on this record.
§ 416.1449

[Removed and Reserved]

58. Remove and reserve § 416.1449.
59. Revise § 416.1450 to read as
follows:

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§ 416.1450 Presenting evidence at a
hearing before an administrative law judge.

(a) The right to appear and present
evidence. You have a right to appear
before the administrative law judge,
either in person or, when the
administrative law judge determines
that the conditions in § 416.1436(c)
exist, by telephone or video
teleconference, to present evidence and
to state your position. You also may
appear by means of a designated
representative.
(b) Admissible evidence. Subject to
§ 416.1435, the administrative law judge
may receive any evidence at the hearing
that he or she believes relates to your
case.
(c) Witnesses at a hearing. Witnesses
may appear at a hearing in person, by
telephone, or by video teleconference.
Witnesses who appear at a hearing shall
testify under oath or by affirmation,
unless the administrative law judge
finds an important reason to excuse
them from taking an oath or making an
affirmation. The administrative law
judge, you, or your representative may
ask the witnesses any questions relating
to your case.
(d) Closing statements. You or your
representative may present a closing
statement to the administrative law
judge—
(1) Orally at the end of the hearing,
(2) In writing after the hearing and
within a reasonable time period set by
the administrative law judge, or
(3) By using both methods under
paragraphs (d)(1) and (2).

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60. Revise § 416.1451 to read as
follows:
§ 416.1451

Official record.

(a) All hearings will be recorded. All
evidence upon which the administrative
law judge relies for the decision must be
contained in the record, either directly
or through administrative notice, if
appropriate. The official record will
include the applications, written
statements, certificates, reports,
affidavits, medical records, and other
documents that were used in making the
determination under review and any
additional evidence or written
statements that the administrative law
judge admits into the record under
§§ 416.1435 and 416.1444. All admitted
evidence must be incorporated into the
record. The official record of your case
will contain all of the admitted evidence
and a verbatim recording of all
testimony offered at the hearing. It also
will include any prior initial
determinations or decisions relevant to
your case. Subject to § 416.1473, the
official record closes once the
administrative law judge issues his or
her decision, regardless of whether it
becomes our final decision.
(b) The recording of the hearing will
be prepared as a typed copy of the
proceedings if—
(1) The case is sent to the Review
Board without a decision, or with a
recommended decision as ordered by
the Review Board, by the administrative
law judge;
(2) You seek judicial review of your
case by filing an action in a Federal
district court within the stated time
period, unless we request the court to
remand the case; or
(3) An administrative law judge or the
Review Board asks for a written record
of the proceedings in cases remanded by
a Federal district court.
61. Revise § 416.1452 to read as
follows:
§ 416.1452 Consolidated hearing before an
administrative law judge.

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consolidated hearing. This means that
the evidence introduced at the hearing
becomes the evidence of record in each
case adjudicated. The administrative
law judge may issue either a
consolidated decision or separate
decisions for each case.
62. Revise § 416.1453 to read as
follows:
§ 416.1453
law judge.

Decision by the administrative

The decision of the administrative
law judge is binding on all parties to the
hearing unless—
(a) You or another party to the hearing
appeals the decision to the Review
Board;
(b) The Review Board decides to
review the decision on its own motion,
as provided in § 416.1470; or
(c) The decision is a recommended
decision to the Review Board as ordered
by the Review Board; or
(d) The decision is revised by an
administrative law judge or the Review
Board under the procedures explained
in § 416.1487.
§ 416.1456

[Amended]

64. Amend § 416.1456 by removing
the words ‘‘Appeals Council’’ and, in

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their place, adding the words ‘‘Review
Board’’.
65. Revise § 416.1457 to read as
follows:

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§ 416.1457 Dismissal of a request for a
hearing before an administrative law judge.

An administrative law judge may
dismiss a request for a hearing:
(a) At any time before notice of the
hearing decision is mailed, when you
withdraw the request orally on the
record at the hearing or in writing;
(b)(1) If neither you nor the person
you designate to act as your
representative appears at the hearing or
at the prehearing conference, we
notified you previously that your
request for hearing may be dismissed if
you did not appear, and you do not give
a good reason for failing to appear; or
(2) If neither you nor the person you
designate to act as your representative
appears at the hearing or at the
prehearing conference, we had not
notified you previously that your
request for hearing may be dismissed if
you did not appear, and within 10 days
after we send you a notice asking why
you did not appear, you do not give a
good reason for failing to appear.
(3) In determining whether you had a
good reason under this paragraph, we
will consider the factors described in
§ 416.1411 of this part.
(4) If neither you nor the person you
designate to act as your representative
appears at the prehearing conference but
the provisions of § 416.1448(b) apply,
the administrative law judge will issue
a decision without holding a hearing.
(c) If the doctrine of res judicata
applies because we have made a
previous determination or decision in
your case on the same facts and on the
same issue or issues, and this previous
determination or decision has become
final;
(d) If you have no right to a hearing
under § 416.1430;
(e) If you did not request a hearing in
time and we have not extended the time
for requesting a hearing; or
(f) If you die, there are no other
parties, and we have no information to
show that you may have a survivor who
may be paid benefits due to you under
§ 416.542(b) and who wishes to pursue
the request for hearing, or that you
authorized interim assistance
reimbursement to a State pursuant to
section 1631(g) of the Act. The
administrative law judge, however, will
vacate a dismissal of the hearing request
if, within 60 days after the date of the
dismissal:
(1) A person claiming to be your
survivor, who may be paid benefits due
to you under § 416.542(b), submits a

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written request for a hearing, and shows
that a decision on the issues that were
to be considered at the hearing may
adversely affect him or her; or
(2) We receive information showing
that you authorized interim assistance
reimbursement to a State pursuant to
section 1631(g) of the Act.
66. Revise the second sentence of
§ 416.1458 to read as follows:
§ 416.1458 Notice of dismissal of a request
for hearing before an administrative law
judge.

* * * The notice will state that you
have the right to appeal the dismissal to
the Review Board.
§ 416.1459

[Amended]

67. Amend § 416.1459 by removing
the words ‘‘Appeals Council’’ and, in
their place, adding the words ‘‘Review
Board’’.
§ 416.1460

[Amended]

68. Amend § 416.1460 by removing
the words ‘‘Appeals Council’’ and, in
their place, adding the words ‘‘Review
Board’’.
69. Revise § 416.1461 to read as
follows:
§ 416.1461 Prehearing and posthearing
proceedings.

(a) Prehearing conferences. (1) The
administrative law judge, on his or her
own initiative or at your request, may
decide to conduct a prehearing
conference if he or she finds that such
a conference would facilitate the
hearing or the decision in your case. A
prehearing conference normally will be
held by telephone, unless the
administrative law judge decides that
conducting it in another manner would
be more efficient and effective in
addressing the issues raised at the
conference. We will give you reasonable
notice of the time, place, and manner of
the conference.
(2) At the conference, the
administrative law judge may consider
matters such as simplifying or amending
the issues, obtaining and submitting
evidence, and any other matters that
may expedite the hearing.
(3) The administrative law judge will
summarize in writing, or on the record
at the hearing, the actions taken or to be
taken as a result of the conference.
(4) Subject to § 416.1457(b)(4), if
neither you nor the person you
designate to act as your representative
appears at the prehearing conference,
and under § 416.1457(b) you do not
have a good reason for failing to appear,
we may dismiss the hearing request.
(b) Prehearing statements. (1) At any
time before the hearing begins, you may
submit, or the administrative law judge

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may request that you submit, a
prehearing statement describing why
you disagree with the reconsidered
determination.
(2) Unless otherwise requested by the
administrative law judge, a prehearing
statement should discuss briefly the
following matters:
(i) Issues involved in the proceeding,
(ii) Facts,
(iii) Witnesses,
(iv) The evidentiary and legal basis
upon which you believe the
administrative law judge should decide
the case in your favor, and
(v) Any other comments, suggestions,
or information that might assist the
administrative law judge in preparing
for the hearing.
(c) Posthearing conferences. (1) The
administrative law judge may decide, on
his or her own initiative or at your
request, to hold a posthearing
conference to facilitate the hearing
decision. A posthearing conference
normally will be held by telephone
unless the administrative law judge
decides that conducting it in another
manner would be more efficient and
effective in addressing the issues raised.
We will give you reasonable notice of
the time, place, and manner of the
conference. The administrative law
judge will place in the record a written
summary describing the actions taken or
to be taken as a result of the conference.
(2) If neither you nor the person you
designate to act as your representative
appears at the posthearing conference,
and under § 416.1457(b) you do not
have a good reason for failing to appear,
we will issue a decision based on the
information available in your case.
70. Remove the undesignated center
heading ‘‘APPEALS COUNCIL
REVIEW’’ preceding § 416.1466.
§§ 416.1466 through 416.1484

[Removed]

71. Remove existing §§ 416.1466
through 416.1484 and the undesignated
center heading preceding § 416.1483.
72. Add a new undesignated center
heading and §§ 416.1467 through
416.1477 and §§ 416.1482 through
416.1483 to read as follows:
Appeals to the Review Board
§ 416.1467

The Review Board.

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(b) The Review Board may choose to
review a decision by an administrative
law judge even if no party has filed an
appeal of that decision. The
circumstances in which the Review
Board may initiate such a review, and
the procedures it will follow, are
described in § 416.1470.
(c) The Review Board also may
identify issues that impede consistent
adjudication at any or all levels of the
administrative review process and may
recommend appropriate changes in
policies and procedures to address those
impediments. This advisory function
will be performed separately from the
Review Board’s adjudicative function.
§ 416.1468
general.

Appeal to the Review Board—

(a) If you or any other party is
dissatisfied with a hearing decision that
is unfavorable, in whole or in part, or
with the dismissal of a hearing request,
you may appeal that action to the
Review Board. The Review Board will
consider your appeal and either:
(1) Affirm, reverse, or modify the
decision of the administrative law
judge;
(2) Remand the case to an
administrative law judge for further
proceedings; or
(3) Dismiss your appeal pursuant to
§ 416.1476.
(b) The Review Board will notify the
parties at their last known addresses of
the action it has taken.

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§ 416.1469
Board.

How to appeal to the Review

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deadline, we will grant you additional
time to file the notice of appeal. We use
the standards in § 416.1411 to determine
whether you had good cause.
(c) Contents of the appeal. Your
notice of appeal must be in writing and
must clearly indicate that you are
appealing a specific unfavorable
administrative law judge hearing
decision or dismissal. Any documents
or other evidence you wish to have
considered by the Review Board should
be submitted with your notice of appeal.
You also should include with your
notice of appeal a written statement that
identifies any errors you believe the
administrative law judge made, explains
why those alleged errors require reversal
or modification of the administrative
law judge’s hearing decision or
dismissal under the standards of review
described in § 416.1471, and cites
applicable law and specific facts in the
administrative record to support your
contentions.
(d) Where to file your notice of
appeal. You may file your notice of
appeal at one of our offices.
§ 416.1470

Review Board initiates review.

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cases that have been identified through
random or selective sampling to refine
the identification of cases that may meet
the criteria for review by the Review
Board.
(2) Identification as a result of the
effectuation process. We may refer a
case requiring effectuation to the
Review Board if, in the view of the
effectuating component, the decision
should not be effectuated because it
contains an error that affects the
outcome of the case, because the
decision is clearly inconsistent with the
Social Security Act, the regulations, a
published Social Security Ruling, or
other statement of policy, or because the
decision is unclear regarding a matter
that affects the outcome of the case.
(c) Referral of cases. Any referral we
make as a result of a case examination
or the effectuation process will be in
writing. This written referral will state
the referring component’s reasons for
believing that the Review Board should
review the case on its own motion.
Referrals that result from selective
sampling without a case examination
may be accompanied by a written
statement identifying the issue(s) or fact
pattern that caused the referral.
Referrals that result from random
sampling without a case examination
will only identify the case as a random
sample case.
(d) Review Board’s action. If the
Review Board decides to review a
decision or dismissal on its own motion,
it will mail a notice to all parties at their
last known addresses stating that it has
decided to review the case and stating
the reasons for the review and the issues
to be considered. The Review Board will
include with that notice a copy of any
written referral it received under
paragraph (c) of this section. If the 60day period within which the Review
Board may initiate review on its own
motion (see paragraph (a) of this
section) ends before the Review Board is
able to decide whether to review the
decision or dismissal, the Review Board
still may consider whether the decision
or dismissal should be reopened
pursuant to §§ 416.1487 and 416.1488.
(e) Interim benefits. If the Review
Board decides to review a decision on
its own motion, or to reopen a decision
as provided in §§ 416.1487 and
416.1488, the notice of review or the
notice of reopening issued by the
Review Board will advise, where
appropriate, that interim benefits will be
payable if a final decision has not been
issued within 110 days after the date of
the decision that is reviewed or
reopened, and that any interim benefits
paid will not be considered

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overpayments unless the benefits are
fraudulently obtained.
§ 416.1471

Standard of review.

(a) Review of hearing decisions. If you
appeal a decision of an administrative
law judge to the Review Board, or if the
Review Board initiates a review under
§ 416.1470, the Review Board will
review the factual findings of the
administrative law judge using the
substantial evidence test. Substantial
evidence means such relevant evidence
as a reasonable mind might accept as
adequate to support a conclusion. The
Review Board will consider any
questions of law on their merits,
without deference to the legal
conclusions reached by the
administrative law judge.
(b) Review of dismissals. If you appeal
an administrative law judge’s dismissal
of your request for a hearing, the Review
Board will review the action of the
administrative law judge for any abuse
of discretion.
(c) Harmless error. No error in either
the admission or exclusion of evidence,
and no error, defect, or omission in any
ruling or decision of the administrative
law judge, shall require the Review
Board to vacate, modify, or reverse an
otherwise appropriate ruling or decision
of the administrative law judge unless,
in the opinion of the Review Board,
there is a reasonable probability that the
error, alone or when considered with
other aspects of the case, changed the
outcome of the decision.

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§ 416.1472 Scope of review—period of
time adjudicated.

(a) Subject to paragraphs (b) and (d)
of this section, the evidentiary record

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for your case is closed as of the date of
the first administrative law judge’s
decision in your case. The Review
Board will base its action on the same
evidence that was before the
administrative law judge and will
consider only that evidence that was in
the record before the administrative law
judge.
(b) If you have submitted additional
evidence with your appeal, and that
additional evidence relates to the period
on or before the date of the first
administrative law judge hearing
decision in your case, the Review Board
will accept that evidence if you show
that there is a reasonable probability
that the evidence, alone or when
considered with the other evidence of
record, would change the outcome of
the decision and:
(1) Our action misled you;
(2) You had a physical, mental,
educational, or linguistic limitation(s)
that prevented you from submitting the
evidence earlier; or
(3) Some other unusual, unexpected,
or unavoidable circumstance beyond
your control prevented you from
submitting the evidence earlier.
(4) You must submit with your
additional evidence a written statement
that explains why you believe you meet
one or more of the criteria in paragraphs
(b)(1), (2), and (3) of this section.
(c) If you have submitted additional
evidence with your appeal and the
Review Board determines that the
evidence does not relate to the period
on or before the date of the
administrative law judge’s hearing
decision, or otherwise does not satisfy
the criteria in paragraph (b) of this
section, the Review Board will return
the additional evidence to you with an
explanation as to why it did not accept
the additional evidence. The notice
returning the evidence to you will
advise you that you have a right to file
a new application and that, if you file
a new application within 60 days after
the date of the notice, we will consider
your appeal as a written statement
indicating an intent to claim benefits in
accordance with § 416.340 and use the
date of your appeal as the filing date for
your new application.
(d) If the Review Board obtains
additional evidence pursuant to
§ 416.1474(d) of this part, or remands
your case to an administrative law judge
with instructions to obtain additional
evidence on one or more issues, any
evidence so obtained will become part
of the evidentiary record in your case.

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§ 416.1474
Board.

61243

Procedures before Review

Actions that the Review Board

(a) If you appeal your case to the
Review Board, or if the Review Board
has decided to review your case on its
own motion pursuant to § 416.1470, the
Review Board may take one of the
following actions:
(1) The Review Board may dismiss the
appeal pursuant to § 416.1476;
(2) If the Review Board decides that
the administrative law judge’s decision
is supported by substantial evidence
and contains no significant error of law,

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it may summarily affirm the decision of
the administrative law judge;
(3) If the Review Board determines
that there were significant errors of law
or fact in the decision of the
administrative law judge, or if the
Review Board believes there are aspects
of the case that warrant further
clarification, it may issue its own
decision which affirms, reverses, or
modifies the decision of the
administrative law judge;
(4) If the Review Board determines
that there were significant errors of law
or fact in the decision of the
administrative law judge, or if the
Review Board believes there are aspects
of the case that warrant further
clarification, it may remand the case to
an administrative law judge for further
proceedings and a new decision, or
recommended decision, that is
consistent with the instructions and
limitations set forth by the Review
Board in its order of remand; or
(5) If the Review Board concludes that
further development of the evidence is
necessary before a decision can be
reached, it may issue an order
remanding your case to an
administrative law judge for further
proceedings consistent with the Review
Board’s order.
(b) We will send notice of the Review
Board’s action to you at your last known
address. The notice will explain in clear
and simple language what action the
Review Board has taken and the reasons
for that action. If the Review Board
issues a new decision pursuant to
paragraph (a)(3) of this section, that
decision will accompany the notice and
will contain in understandable language
a statement of the case setting forth the
evidence on which the decision was
based, the Review Board’s analysis of
the evidence and the issues, and the
reasons for the Review Board’s
conclusions. If the Review Board
summarily affirms the decision of the
administrative law judge, or issues a
new decision that decides your case, the
notice also will advise you that the
Review Board’s action is our final
decision and will explain how to seek
judicial review of our decision. If the
Review Board dismisses your appeal,
the notice will advise you that the
dismissal is our final decision and is not
subject to further review. If the Review
Board issues an order remanding your
case for further proceedings, the notice
will explain that the remand order is not
our final decision.
§ 416.1476

Dismissal by Review Board.

(a) The Review Board may dismiss
any proceedings pending before it if—

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(1) You did not file your appeal
within the prescribed period of time and
the time for filing has not been
extended;
(2) The party who filed the appeal had
no right to do so under § 416.1468;
(3) The record shows that the
administrative law judge who issued the
hearing decision should have dismissed
your request for hearing under
§ 416.1457;
(4) You and all other parties to the
proceedings file a written request for
dismissal; or
(5) You die, there are no other parties
who would be adversely affected by the
dismissal, and we have no information
to show that you may have a survivor
who may be paid benefits due you
under § 416.542(b) of this part and who
wishes to pursue the appeal, or that you
authorized interim assistance to a State
pursuant to section 1631(g) of the Act.
However, dismissal of the appeal for
this reason will be vacated if, within 60
days after the date of the dismissal, a
person claiming to be your survivor who
may be paid benefits under § 416.542(b)
submits a written appeal and shows that
he or she may be adversely affected by
the determination that was under
appeal. We will also vacate the
dismissal if, within 60 days after the
date of the dismissal, we receive
information that shows you had
authorized interim assistance
reimbursement to a State.
(b) Except as provided in paragraph
(a)(5) of this section, the Review Board’s
dismissal of an appeal pursuant to this
section is binding and is not subject to
further review.
§ 416.1477
Board.

Case remanded by the Review

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administrative law judge sends a case to
the Review Board with a recommended
decision, as ordered by the Review
Board, a notice is mailed to the parties
at their last known addresses. The
notice tells them that the case has been
sent to the Review Board with a
recommended decision, includes a copy
of the recommended decision, and
explains the rules for filing briefs or
other written statements with the
Review Board.
(d) Filing briefs or written statements
with the Review Board. When the
administrative law judge sends a case to
the Review Board with a recommended
decision, as ordered by the Review
Board, you will be given 20 days from
the date that the recommended decision
is mailed to you in which to file with
the Review Board any briefs or other
written statements about the facts and
law relevant to your case. Any party
may ask the Review Board for additional
time to file briefs or other written
statements. The Review Board will
extend this period, as appropriate, if
you show you had good cause for
missing the deadline.
(e) Action by Review Board on
recommended decision. After receiving
a recommended decision from the
administrative law judge, as ordered by
the Review Board, the Review Board
will conduct its proceedings and take
action according to the procedures
explained in this subpart.
§ 416.1482 Review of final decisions in
Federal district court.

(a) If the Review Board issues a final
decision in your case pursuant to
§ 416.1475(a)(2) or § 416.1475(a)(3) of
this part, that decision will be binding
unless you or another party files a civil
action in Federal district court seeking
a review of that final decision. You have
until 60 days after the date you receive
the notice of the Review Board’s
decision to file your civil action with
the court. We will presume you received
the notice within 5 days of the date
shown on the notice, unless you show
us that you did not receive it within that
5-day period.
(b) Any party to the Review Board’s
final decision, or to an expedited
appeals process agreement, may request
that the time for filing an action in a
Federal district court be extended. The
request must be in writing and must
include the reasons why the action was
not filed, or cannot be filed, within the
stated time period. The request must be
filed with the Review Board, or if it
concerns an expedited appeals process
agreement, with one of our offices. If
you show that you had good cause for
missing the deadline, the time period

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will be extended. We use the standards
in § 416.1411 to determine whether
good cause exists.
§ 416.1483
court.

Case remanded by a Federal

When a Federal court remands a case
to us for further consideration, the
Review Board may make a decision, or
it may remand the case to an
administrative law judge with
instructions to take action and issue a
decision or return the case to the
Review Board with a recommended
decision. If the case is remanded by the
Review Board, the procedures explained
in § 416.1477 will be followed.
73. Amend § 416.1489 by revising
paragraph (a)(1) to read as follows:
§ 416.1489

Good cause for reopening.

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(a) * * *
(1) New and material evidence is
furnished, except that, if the decision
was made by an administrative law
judge or the Review Board and involved
a claim that you were disabled, we will
not consider any new evidence;
*
*
*
*
*
74. Amend § 416.1492 by revising
paragraphs (e) and (f) to read as follows:

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§ 416.1492 Notice of revised determination
or decision.

*
*
*
*
(e) If an administrative law judge or
the Review Board proposes to revise a
decision, and the revision would be
based on evidence not included in the
record on which the prior decision was
based, you and any other parties to the
decision will be notified, in writing, of
the proposed action and of your right to
request that a hearing be held before any
further action is taken. If a revised
decision is issued by an administrative
law judge, you and any other party may
appeal the revised decision to the
Review Board or the Review Board may
review the decision on its own
initiative.
(f) If an administrative law judge or
the Review Board proposes to revise a
decision, and the revision would be
based only on evidence included in the
record on which the prior decision was
based, you and any other parties to the
decision will be notified, in writing, of
the proposed action. If a revised
decision is issued by an administrative
law judge, you and any other party may
appeal the revised decision to the
Review Board or the Review Board may

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61245

review the decision on its own
initiative.
*
*
*
*
*
75. Revise § 416.1493 to read as
follows:
§ 416.1493 Effect of revised determination
or decision.

A revised determination or decision is
binding unless—
(a) You or another party to the revised
determination files a written request for
reconsideration or a hearing before an
administrative law judge, as
appropriate;
(b) You or another party to the revised
decision files, as appropriate, a request
for a hearing before an administrative
law judge or a notice of appeal to the
Review Board;
(c) The Review Board reviews the
revised decision on its own motion; or
(d) The revised determination or
decision is further revised.
§ 416.1498

[Amended]

76. Amend § 416.1498(d)(3)(i)(C) by
removing the words ‘‘Office of Hearings
and Appeals’’ and adding, in their
place, the words ‘‘Office of Disability
Adjudication and Review’’.
[FR Doc. E7–20690 Filed 10–26–07; 8:45 am]
BILLING CODE 4191–02–P

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File Type	application/pdf
File Title	Document
Subject	Extracted Pages
Author	U.S. Government Printing Office
File Modified	2007-10-27
File Created	2007-10-27