Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 90987-90997 [2016-30103]

Agencies

• Social Security Administration

[Federal Register Volume 81, Number 242 (Friday, December 16, 2016)]
[Rules and Regulations]
[Pages 90987-90997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30103]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405 and 416

[Docket No. SSA-2014-0052]
RIN 0960-AH71


Ensuring Program Uniformity at the Hearing and Appeals Council 
Levels of the Administrative Review Process

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our rules so that more of our procedures at 
the hearing and Appeals Council levels of our administrative review 
process are consistent nationwide. We anticipate that these nationally 
consistent procedures will enable us to administer our disability 
programs more efficiently and better serve the public.

DATES: This final rule will be effective on January 17, 2017. However, 
compliance is not required until May 1, 2017.

FOR FURTHER INFORMATION CONTACT: Patrick McGuire, Office of Appellate 
Operations, Social Security Administration, 5107 Leesburg Pike, Falls 
Church, VA 22041, (703) 605-7100. For information on eligibility or 
filing for benefits, call our national toll-free number, 1-800-772-1213 
or TTY 1-800-325-0778, or visit our Internet site, Social Security 
Online, at https://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION

Background

    We are revising and making final the rules for creating nationally 
uniform hearing and Appeals Council procedures, which we proposed in a 
notice of proposed rulemaking (NPRM) published in the Federal Register 
on July 12, 2016 (81 FR 45079). In the preamble to the NPRM, we 
discussed the changes we proposed from our current rules and our 
reasons for proposing those changes. In the NPRM, we proposed revisions 
to: (1) The time frame for notifying claimants of a hearing date; (2) 
the information in our hearing notices; (3) the period when we require 
claimants to inform us about or submit written evidence, written 
statements, objections to the issues, and subpoena requests; (4) what 
constitutes the official record; and (5) the manner in which the 
Appeals Council would consider additional evidence.
    As we explained in the preamble to our NPRM, we proposed these 
changes to ensure national consistency in our policy and procedures and 
improve accuracy and efficiency in our administrative review process. 
We expect this final rule will positively affect our ability to manage 
our workloads and lead to better public service. Interested readers may 
refer to the preamble to the NPRM, available at https://www.regulations.gov under docket number SSA-2014-0052.

What changes are we making from the NPRM?

    We are making several changes in this final rule from the NPRM 
based on some of the public comments we received. We briefly outline 
those changes here and provide additional detail on the changes in the 
comment and response section that follows. We are also making minor 
editorial changes throughout this final rule. For the reader's ease of 
review, we refer to the general requirement that all evidence, 
objections, or written statements be submitted at least 5 business days 
before the date of the hearing as the ``5-day requirement.'' We adopted 
the following changes from our NPRM in this final rule:
     We lengthened the time frame for notifying claimants of a 
hearing date in

[[Page 90988]]

20 CFR 404.938 and 416.1438 from at least 60 days to at least 75 days;
     In 20 CFR 404.935(b)(3)(iv) and 416.1435(b)(3)(iv), we 
removed the phrase ``through no fault of your own'' to reduce the 
evidentiary burden on claimants who are unable to provide evidence;
     We clarified that the circumstances set forth in 20 CFR 
404.935(b)(3)(i) to (b)(3)(iv) and 416.1435(b)(3)(i) to (b)(3)(iv) are 
merely examples and do not constitute an exhaustive list;
     We added the same exceptions to the 5-day requirement that 
we proposed for the submission of evidence in 20 CFR 404.935 and 
416.1435 to the deadlines related to objecting to the issues (20 CFR 
404.939 and 416.1439), presenting written statements (20 CFR 404.949 
and 416.1449), and submitting subpoenas (20 CFR 404.950(d)(2) and 
416.1450(d)(2));
     We added language to 20 CFR 404.949 and 416.1449 to 
clarify that the 5-day requirement applies only to pre-hearing written 
statements, not to post-hearing written statements;
     We added an example of an exception for submitting 
additional evidence to the Appeals Council in 20 CFR 404.970(b)(3)(v) 
and 416.1470(b)(3)(v);
     We reorganized paragraphs (a)(5) and (b) of 20 CFR 404.970 
and 416.1470;
     We removed proposed subsection 20 CFR 404.970(d) and 
416.1470(d);
     We added clarifying cross-references to 20 CFR 404.900 and 
416.1400 and 20 CFR 404.929 and 416.1429 to place the 5-day requirement 
in 20 CFR 404.935 and 416.1435 in context; and,
     We broadened the existing cross-reference in 20 CFR 
404.968 and 416.1468 and 20 CFR 404.979 and 416.1479 to reference the 
entire section of 20 CFR 404.970 and 416.1470, and we removed the cross 
reference to 20 CFR 404.976 and 416.1476 in 20 CFR 404.979 and 
416.1479.

Public Comments

    We initially provided a 30-day comment period that would have ended 
on August 11, 2016. We subsequently extended the comment period for an 
additional 15 days, until August 26, 2016 (81 FR 51412). We received 
154 comments on our proposed rule from the public, interested advocacy 
groups, and several members of Congress. We did not consider six 
comments because they either came from employees who commented in their 
official employment capacity, which is a violation of our policy, or 
they were outside the scope of this rulemaking. We published and 
carefully considered the remaining 148 comments and, where appropriate, 
made changes in response to these comments.
    Below, we summarize and respond to the comments submitted on the 
proposed rule, and respond to the significant issues relevant to this 
rulemaking. We do not respond to comments that are outside the scope of 
this rulemaking proceeding.

Hearing Notice Requirement

    Comment: Several commenters supported our proposal to provide more 
advance notice of a hearing, but asked that we adopt the 75-day advance 
notice requirement currently in place in the Boston region, rather than 
the 60-day advance notice we proposed in the NPRM. Several of the 
commenters stated that earlier notice would allow claimants to: (1) 
Obtain and submit the information and evidence, especially when a 
medical provider is uncooperative; (2) make arrangements for 
transportation to the hearing; (3) take into account time frames under 
the regulations implementing the Health Insurance Portability and 
Accountability Act (HIPAA) that provide an entity up to 60 days before 
it must produce records (45 CFR 164.524(b)); and (4) avoid a 
postponement of hearing due to non-receipt of medical records. Several 
other commenters said that even a 75-day notice requirement is 
insufficient, and that we should provide notice 90 to 120 days in 
advance of a hearing.
    Response: We recognize that claimants and representatives may 
sometimes face challenges in acquiring medical records. In response to 
multiple advocate comments indicating a preference for 75 days' advance 
notice of a hearing instead of 60 days, we are revising the final rule 
to provide 75 days' advance notice. Since we already have approximately 
a decade of experience in using the 75-day advance notice period in the 
Boston Region, we believe its expansion nationwide is justified.
    We proposed a 60-day period in our NPRM because we believed it 
would promote the efficiency of our hearing process (81 FR at 45081). 
However, we recognize the concerns that that commenters raised, 
including stated concerns about the adequacy of a 60-day advance notice 
requirement in light of the timeframe an entity has to provide evidence 
to an individual under the HIPAA regulations. In order to minimize the 
burden on claimants, we have decided to adopt the commenters' 
suggestion that we continue to provide at least 75-day advance notice 
of a hearing, as we have done under the rules we have been applying in 
the Boston region since 2006.
    Some commenters requested that we extend the advance notice period 
to 90 or 120 days instead of the proposed 60-days advance notice. We 
have decided not to extend the advance notice period to 90 or 120 days, 
because providing a hearing date this far in advance would increase the 
likelihood that an adjudicator's schedule will change by the scheduled 
hearing date. Moreover, in contrast to the 75-day period, we have no 
current model to support the use of a longer time period.

Exceptions to the 5-Day Requirement

    Comment: Several commenters asked that we retain the exception in 
20 CFR 404.935(b)(3)(iv) in the final rule because it recognized the 
difficulties of obtaining medical evidence, while another commenter 
suggested we eliminate this exception because it was vague and contrary 
to the intent and purpose of the proposed rule. Several commenters 
expressed concerns about our exceptions to the 5-day requirement 
because they were too narrowly defined, too subjective, and would 
increase our workloads. Other commenters suggested that we add 
additional exceptions, such as when the claimant is homeless or lacks 
representation. One commenter requested that the Appeals Council also 
find good cause for submitting evidence after the 5-day requirement if 
the claimant was unrepresented or homeless at the hearing level.
    Response: We provide examples of exceptions to the 5-day 
requirement in final 20 CFR 404.935(b)(3) and 416.1435(b)(3) and have 
clarified that we did not intend for them to be all-inclusive or to 
exclude other extenuating circumstances that may result in a claimant 
being unable to meet the 5-day requirement. To clarify this point, we 
changed the regulatory text to state that ``[e]xamples include, but are 
not limited to'' the outlined exceptions. Because circumstances vary, 
we determine whether a claimant qualifies for an exception on a case-
by-case basis.
    We do not anticipate that evaluating requests for exceptions to the 
5-day requirement will increase our workloads. We recognize that 
compliance with the 5-day requirement will not be possible in all 
situations; however, based on our experience in the Boston region, we 
expect that providing at least 75 days' advance notice of a hearing 
will significantly increase the number of times evidence is obtained 
and submitted at least 5 business days before the hearing. We also note 
that in our experience the need to evaluate

[[Page 90989]]

requests to submit evidence pursuant to one of the exceptions has not 
caused workload spikes in our Boston region, where a 5-day requirement 
has been in place for more than a decade. When a claimant or appointed 
representative is aware that he or she will need more time to submit 
evidence in accordance with one of the exceptions, we expect that he or 
she will provide us with the necessary information in advance. To do 
so, the claimant or representative should notify the administrative law 
judge (ALJ) of what the evidence generally consists of and the expected 
volume of evidence (e.g., one visit to a treating physician or a one-
week hospital stay). When the claimant or his or her representative 
timely provides this information to the ALJ, we expect that evaluating 
the request for an exception will likely be very simple.
    The fact that a claimant is homeless or lacks representation does 
not automatically excuse him or her from complying with our rules. 
However, situations such as these may result in circumstances that 
warrant an exception to the 5-day requirement. We will evaluate these 
circumstances carefully on a case-by-case basis under the exceptions 
described in the final rule.
    Comment: Commenters who represented advocacy groups noted that our 
proposed rule did not include exceptions to deadline requirements for 
objecting to the issues (20 CFR 404.939 and 416.1439), presenting 
written statements (20 CFR 404.949 and 416.1449), and submitting 
subpoenas (20 CFR 404.950(d)(2) and 416.950(d)(2)). Some commenters had 
concerns that the 5-day requirement, as applied to objections to the 
issues, could force representatives to develop boilerplate notices that 
list all possible objections in every case.
    Response: We agree with the commenters' concerns, and we have added 
exceptions for the deadlines related to objecting to the issues (20 CFR 
404.939 and 416.1439), presenting written statements (20 CFR 404.949 
and 416.1449), and submitting subpoenas (20 CFR 404.950(d)(2) and 
416.1450(d)(2)). The exceptions in 20 CFR 404.939 and 416.1439 should 
eliminate the need for representatives to develop boilerplate notices.

Appeals Council Authority

    Comment: While one commenter supported the proposal in subsections 
20 CFR 404.970(d) and 416.1470(d) that the Appeals Council conduct 
hearings to develop evidence, other commenters expressed concern about 
the proposal. A few of these commenters stated it was an expansion of 
the Appeals Council's authority and was inconsistent with the 
Administrative Procedure Act. Other commenters stated that we did not 
provide an adequate explanation of the authority for such hearings.
    Response: Since the beginning of our hearing process in 1940, our 
regulations (currently found in sections 20 CFR 404.956 and 416.1456) 
have authorized the Appeals Council to remove a hearing request from an 
ALJ and conduct the hearing proceedings, using the rules that ALJs 
apply. We proposed to revise sections 20 CFR 404.970 and 416.1470 to 
clarify the Appeals Council's authority in this area. Although we 
disagree with some of the comments, including concerns that the 
proposal lacked legal support, we understand the concerns the 
commenters raised regarding this proposal. As a result, we have decided 
to remove the rule we proposed in subsections 404.970(d) and 
416.1470(d). The Appeals Council will continue to exercise its 
authority to develop evidence in accordance with 20 CFR 404.976(b) and 
416.1446(b).

``Inform'' Option

    Comment: Several commenters stated the proposed rule may have 
unintended consequences because appointed representatives may rely on 
the ``inform'' option in 20 CFR 404.935 and 416.1435 and in 20 CFR 
404.1512 and 416.912 to avoid developing evidence. A few commenters 
stated if we retain the ``inform'' option, we should require the 
claimant to inform the hearing office earlier so there would be time to 
develop the evidence and avoid unnecessary supplemental hearings.
    Response: On April 20, 2015, we implemented a final rule that 
requires a claimant to ``inform us about or submit all evidence known 
to you that relates to whether you are blind or disabled.'' 81 FR 
14828. As we stated in the preamble to that proposed rule, we 
specifically added this option because we did not intend to shift our 
burden to develop the record to claimants. In the proposed rule, as in 
this final rule, we recognize that some individuals, many of whom do 
not have appointed representatives, require our assistance in obtaining 
medical evidence needed to adjudicate their claims. Claimants who are 
unable to obtain evidence necessary to adjudicate their claims may 
inform us of this difficulty and we will continue to seek out evidence 
on their behalf to develop the record for their hearing. By adopting 
this final rule, we have not changed our longstanding policy of 
assisting claimants in developing the record. At the hearing level, 
this policy has been explicitly set forth in our sub-regulatory 
instructions.
    Because most claimants are represented at the hearing level, and 
because we are providing more advance notice of a hearing than we have 
in the past, we expect to significantly reduce the number of postponed 
hearings or supplemental hearings needed based on evidence that was 
available at least 5 business days before the hearing.
    In our experience, the vast majority of representatives act 
ethically in regard to evidence development and make good faith efforts 
to assist claimants in obtaining and submitting the required evidence 
before a hearing, as required under 20 CFR 404.1740(b)(2) and 
416.1540(b)(2). Therefore, we do not expect the ``inform'' option to 
significantly affect our administrative processes.
    In those circumstances in which hearing offices assist 
unrepresented claimants in developing evidence, our sub-regulatory 
instructions will clarify that employees in our hearing offices should 
undertake development as early as possible to reduce the number of 
continuances or postponed hearings.

5-Day Requirement

    Comment: Some commenters thought the 5-day requirement in the 
proposed rules was inconsistent with our duty to make eligibility 
decisions based on the evidence presented at the hearing.
    Response: In developing these rules, we were guided by the two 
principles that we have always applied when we make decisions regarding 
our programs: As the Supreme Court has observed, the Social Security 
system ``must be fair--and it must work.'' \1\ These final rules 
appropriately balance these two guiding principles. These rules are 
fair because they provide the claimant with more advance notice of his 
or her hearing, and they provide appropriate exceptions to the 5-day 
requirement. At the same time, the 5-day requirement promotes the 
efficiency of our hearings process and allows it to work more 
effectively by ensuring that ALJs have a more complete evidentiary 
record when they hold hearings. Striking such a balance in our rules is 
of paramount importance to us. That balance would not be present if, as 
some commenters suggested, we merely gave claimants more advance notice 
of a hearing, without the 5-day requirement. Conversely, that balance 
would not be present if we simply imposed a 5-day requirement, without 
giving a claimant more advance notice of a hearing. Given the size of 
our

[[Page 90990]]

hearings workloads,\2\ where the need for efficiency is ``self-
evident,'' \3\ these final rules appropriately balance the twin 
concerns of fairness and efficiency that always guide us.
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    \1\ Richardson v. Perales, 402 U.S. 389, 399 (1971).
    \2\ See Annual Statistical Supplement to the Social Security 
Bulletin, 2015, Table 2.F9, at page 2.81 (April 2016) (setting out 
the number of hearing level receipts, dispositions, and end-of-year 
pending cases for fiscal years 012-2014).
    \3\ See Barnhart v. Thomas, 540 U.S. 20, 28-29 (2003) (``As we 
have observed, `[t]he Social Security hearing system is `probably 
the largest adjudicative agency in the western world.' . . . The 
need for efficiency is self-evident.' '') (quoting Heckler v. 
Campbell, 461 U.S. 458, 461 n.2 (1983)).
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    In publishing this final rule, we do not intend to change the 
purpose of a hearing, where an ALJ looks fully into the issues and 
obtains oral testimony from the claimant and witnesses, if any. 
Additionally, our final rule contemplates that some circumstances may 
warrant the introduction of new evidence at or after the hearing, and 
includes appropriate exceptions to accommodate these circumstances. 
Thus, under our final rule, adjudicators will continue to make 
decisions based on the evidence of record, including the evidence 
adduced at the hearing. However, we expect that our final rule will 
help to ensure that evidentiary records are more complete at the time 
of the administrative hearing, which should reduce the need for post-
hearing proceedings and help us provide better, more timely service to 
all claimants.
    Comment: Some commenters stated that the philosophical 
underpinnings of the rule in 20 CFR 404.1512 is that ALJs must have all 
evidence that is available at the time of the hearing so they can reach 
the correct decision. The commenters thought that the proposed rule 
conflicted with our rule requiring claimants to submit all evidence. 
The commenters noted that it would not make sense to place a duty on 
the claimant to submit evidence when at the same time, rules are 
created that would allow an ALJ not to consider that evidence.
    Response: Our approach with this rule is tied to the 
``philosophical underpinnings'' of 20 CFR 404.1512 and 416.912, which 
describe a claimant's ongoing duty to ``inform us about or submit all 
evidence known to you that relates to whether or not you are blind or 
disabled.'' This rule will ensure claimants have the benefit of a fully 
developed record at the time our ALJs conduct their hearings. We 
recognize that there will be circumstances in which claimants cannot 
produce evidence at least 5 business days before the hearing. As stated 
above, we have included appropriate exceptions to the 5-day requirement 
to ensure fairness when a claimant or his or her representative 
actively and diligently seeks evidence but is unable to obtain it. To 
bolster this point, in 20 CFR 404.935(b)(3)(iv) and 416.1435(b)(3)(iv), 
we removed the phrase ``through no fault of your own'' to ensure that 
our adjudicators interpret this exception consistent with our intent. 
We intend the words ``actively'' and ``diligently'' to be interpreted 
using their ordinary English usage. When a claimant or representative 
shows that he or she made a good faith effort to timely request, 
obtain, and submit evidence, but he or she did not receive the evidence 
in time to submit it at least 5 business days before the hearing 
because of circumstances outside his or her control, we expect that our 
adjudicators would find that this standard is met.
    Some commenters perceived this rule as an exclusionary procedure 
designed to prevent the introduction of medical records at the expense 
of the claimant's case. Our experience is more consistent with one of 
the commenters from the Boston region who noted that most ALJs 
``effectively draw the line between evidence which had been available 
but was not submitted, and previously unavailable evidence'' and ``do 
not use the 5-day rule as a punitive device against claimants or their 
representatives.'' Further, in those situations in which an ALJ in the 
Boston region did not correctly find reason to accept evidence outside 
the 5-day time frame, the Appeals Council granted review in order to 
consider the information on appeal where the evidence raised a 
reasonable probability of changing the outcome of the case. This 
important practice will continue in our final rule.
    Comment: Some commenters pointed out that the 5-day requirement 
would preclude a claimant from submitting evidence at the hearing or 
Appeals Council level of the administrative process, particularly if a 
claimant is illiterate or does not speak English, or is without an 
appointed representative or obtained a representative shortly before 
the hearing date, and this exclusion was an undue burden, fundamentally 
unfair, and disadvantaged claimants in favor of adjudicators.
    Response: We expect that this final rule will enhance our decision-
making process and allow us to provide more timely decisions to 
claimants. We do not intend to unduly burden claimants with this rule. 
By asking claimants to inform us about or submit evidence at least 5 
business days before the hearing date, we expect that evidentiary 
records will be more complete and comprehensive at the time of the 
scheduled hearing. In turn, this should facilitate the ALJ's ability to 
look fully into the issues at the hearing and produce a timely, 
accurate decision. As stated above, we will continue our longstanding 
practice of assisting those individuals who, for various reasons, are 
unable to develop the record themselves. This rule also incorporates 
appropriate exceptions to take into account for the needs of 
individuals who, due to unique circumstances, do not fully understand 
or are not capable of adhering to our requirements or requests.
    Comment: Some commenters said that the proposed rule makes the 
administrative review process more formal and adversarial. Commenters 
also asked the agency to clarify that if a claimant informs an ALJ 
about evidence at least 5 business days before the hearing, the ALJ 
must consider the evidence regardless of whether an exception exists. 
Commenters said that the proposed rule overlooked that an ALJ 
adjudicates a case through the date of his or her decision, and that he 
or she needs evidence of ongoing treatment to adjudicate the case. 
Commenters also said the proposed rule did not provide the claimant 
with an opportunity to submit evidence to rebut other evidence produced 
at or after the hearing or permit an ALJ to hold the record open when a 
new issue arises during the hearing.
    Response: From our experience, similar rules that applied in the 
Boston region for approximately a decade have not resulted in a more 
adversarial process or misunderstandings from the public. Moreover, 
many of our other rules that apply nationwide impose deadlines or other 
requirements on the public, such as the deadline to appeal a 
determination or decision. While processing a case, we frequently 
request that individuals submit a response or provide us with 
information within certain timeframes. We have not found that these 
provisions make our process more adversarial. Rather, like this final 
rule, they are necessary for efficient administration of our programs.
    If a claimant informs an ALJ about evidence 5 or more days before 
the hearing, there would be no need for the ALJ to find that an 
exception applies, because the claimant notified us prior to the 
deadline.
    While it is true that, in many cases, an ALJ adjudicates the case 
through the date of the hearing decision, our rule is not intended to 
prevent a claimant from submitting evidence related to ongoing 
treatment. Rather, we expect that

[[Page 90991]]

evidence of ongoing treatment, which was unavailable at least 5 
business days before the hearing, would qualify under the exception in 
20 CFR 404.935(b)(3) and 416.1435(b)(3).
    Similarly, if an ALJ introduces new evidence at or after a hearing, 
the claimant could use the exception in 20 CFR 404.935(b)(3) and 
416.1435(b)(3) to submit rebuttal evidence. The claimant could also 
rebut evidence introduced at or after the hearing by submitting a 
written statement to the ALJ. As previously mentioned, we added 
language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day 
requirement applies only to pre-hearing written statements, not to 
post-hearing written statements.
    Comment: Some commenters stated that the 5-day requirement could 
affect a representative's ability to prepare useful and persuasive pre-
hearing statements, given that the Office of Disability Adjudication 
and Review (ODAR) frequently exhibits files very close to the hearing 
date.
    Response: For the same reasons we are adopting a 5-day requirement 
for available evidence, we are adopting this requirement for pre-
hearing written statements to ensure that an ALJ has the benefit of 
reviewing arguments before the hearing. This will allow the ALJ to be 
fully aware of any unresolved issue(s) that a claimant is raising and 
which the ALJ may need to address at the hearing. While we are 
sympathetic to the commenters who noted exhibit numbers were unlikely 
to be available at least 5 business days before the hearing, we note 
that this issue existed under our prior rules as well and therefore, 
this convenience does not outweigh our need for a complete case file 
before the hearing.
    Comment: Some commenters stated that the 5-day requirement could 
disadvantage claimants who hire representatives shortly before the 
hearing date.
    Response: We reiterate that we expect all appointed representatives 
to make good faith efforts to assist claimants in obtaining and 
submitting the required evidence before a hearing, as required under 20 
CFR 404.1740(b)(2) and 416.1540(b)(2). However, we have included 
appropriate exceptions to the 5-day requirement to ensure fairness when 
a claimant or his or her representative actively and diligently seeks 
evidence but is unable to obtain it. The appointment of a 
representative shortly before a hearing may be such an exception, 
depending on the circumstances surrounding the late appointment. In 
addition, we note that if a claimant informs an ALJ about evidence 5 or 
more days before the hearing, there would be no need for the ALJ to 
find that an exception applies, because the claimant notified us prior 
to the deadline.

Representation

    Comment: A few commenters argued that when taking a new case, 
representatives often find that prior counsel was incompetent in 
obtaining evidence, and this rule, as applied at both the hearing and 
Appeals Council levels, unjustly harms claimants represented by such 
individuals.
    Response: We reiterate that we expect all appointed representatives 
to make good faith efforts to assist claimants in obtaining and 
submitting the required evidence before a hearing, as required under 20 
CFR 404.1740(b)(2) and 416.1540(b)(2). Additionally, if a new 
representative can show that a prior representative did not adequately 
uphold his or her duty to the claimant, we expect that our adjudicators 
would find that this would warrant an exception to the 5-day 
requirement.

Other

    Comment: Several commenters stated the new standard at the Appeals 
Council level would force claimants to choose between filing a new 
claim and appealing an ALJ's decision to the Appeals Council, which 
could result in the loss of significant benefits. Another commenter 
stated it would result in filing more new applications overall or the 
reopening of prior applications so that a claimant could submit 
previously excluded evidence.
    Response: It bears reiterating that we expect the final rule will 
help to ensure that evidentiary records are more complete at the time 
of the scheduled hearing. However, our final rule contemplates that 
some circumstances may warrant the introduction of new evidence at or 
after the hearing, and includes an ``inform'' option and broad 
exceptions to accommodate these circumstances. With the ``inform'' 
option and the broad exceptions to the 5-day requirement, we do not 
expect to see a spike in new applications or reopenings.
    Moreover, it is already our policy that if a claimant wants to file 
a new disability application under the same title and for the same 
benefit type as a disability claim pending at the Appeals Council 
level, and the claimant does not have evidence of a new critical or 
disabling condition, the claimant must choose to continue the appeal of 
the prior claim or file a new application. Nothing in the proposed or 
final rule substantively changes this policy.
    Under our current rules in 20 CFR 404.970 and 416.1470, the Appeals 
Council considers additional evidence only if it is new, material, and 
related to the period on or before the date of the ALJ's decision. This 
does not mean, however, that the Appeals Council grants a claimant's 
request for review of an ALJ's decision whenever additional evidence 
meets this criteria. In many cases, the Appeals Council adds evidence 
that meets the criteria to the record, but denies the request for 
review of the case. Under our current rules, the Appeals Council will 
review a case in this situation only if it finds that the ALJ's action, 
findings, or conclusion is contrary to the weight of the evidence 
currently of record. This final rule provides more clarity to this 
procedure. Under this final rule, the Appeals Council will grant review 
of a case based on the receipt of additional evidence if the evidence 
is new, material, and related to the period on or before the date of 
the hearing decision and if there is a reasonable probability that the 
additional evidence would change the outcome of the decision.
    If a claimant submits evidence that the Appeals Council does not 
consider, the Appeals Council will notify the claimant that if he or 
she files a new application for disability insurance benefits within 6 
months or a new application for Supplemental Security Income within 60 
days of the Appeals Council notice, the date of the request for review 
will constitute a protective filing for a new application.
    Comment: One commenter expressed concerns about the proposed 
language in 20 CFR 404.951(b) and 416.1451(b) because adding the phrase 
``appropriate reference'' was insufficient to describe what evidence an 
ALJ must include in the record.
    Response: During the time that substantially the same rule was in 
place in the Boston region, we did not experience any confusion as to 
the meaning of the phrase ``appropriate reference.'' Further, this 
language is consistent with our longstanding sub-regulatory policies 
and practices nationwide, and adoption of this language does not change 
our policies regarding what constitutes the official record.
    Comment: Many commenters submitted a broad statement that there 
have been ``serious problems'' and inconsistencies with implementation 
of the 5-day requirement in the Boston region. The commenters generally 
presented two main points: (1) There was variance in applying the 5-day 
requirement between ALJs; and (2) ALJs who did apply the rule varied in 
when

[[Page 90992]]

the 5-day requirement ended and in evaluating whether an exception to 
the 5-day requirement applied.
    Response: We acknowledge that in a report issued by the 
Administrative Conference of the United States (ACUS) \4\ on December 
13, 2013, ACUS noted several variances in applying similar rules in the 
Boston region. However, in response to the ACUS report, we provided 
additional training to adjudicators and staff regarding application of 
our Part 405 rules. We also incorporated instructions for processing 
cases originating in the Boston region into our training materials for 
all staff, including addressing Part 405 issues in several of our 
quarterly Videos-On-Demand series that focus on new or problematic 
areas of adjudication. We updated our sub-regulatory guidance to 
include references and instructions on how to process cases under Part 
405. We will provide the training and instruction necessary to ensure 
consistent application of our rules nationwide.
---------------------------------------------------------------------------

    \4\ Administrative Conference of the United States, ``SSA 
Disability Benefits Adjudication Process: Assessing the Impact of 
the Region I Pilot Program,'' Final Report: December 23, 2013. 
https://www.acus.gov/sites/default/files/documents/Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf.
---------------------------------------------------------------------------

    Comment: One commenter asked that if we retain the 5-day 
requirement, we amend the language to require that each party make 
every reasonable effort to ensure the ALJ receives all the evidence. 
The commenter noted that proposed 20 CFR 404.935(a) and 416.1435(a) 
require ``every effort,'' which the commenter believed is an impossible 
standard to meet.
    Response: While our final rule requires a claimant to ``make every 
effort to ensure that the administrative law judge receives all of the 
evidence,'' we do not believe the rule creates an ``impossible 
standard'' because it also includes appropriate exceptions to 
accommodate circumstances when, despite good faith efforts, the 
claimant cannot satisfy the 5-day requirement.
    Comment: Some commenters stated that 20 CFR 404.944(a)(1) and 
416.1444(a)(1) conflict with 20 CFR 404.1512 and 416.912 because one 
regulation requires an ALJ to ``accept[] as evidence any documents that 
are material to the issues'' while the other regulation requires a 
claimant to submit evidence that ``relates to whether or not you are 
blind or disabled.''
    Response: A claimant continues to have a duty to submit all 
evidence that relates to whether or not he or she is blind or disabled, 
subject to our other requirements, at the hearing and Appeals Council 
levels of the administrative process. Whereas 20 CFR 404.1512 and 
416.912 explain a claimant's responsibility, 20 CFR 404.944(a)(1) and 
416.1444(a)(1) address actions an administrative law judge will take. 
We expect claimants to submit evidence that relates to whether they are 
blind or disabled, but our administrative law judges are responsible 
for making the legal judgment determination whether evidence is 
``material to the issues.''

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this final rule meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB reviewed it.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These final rules contain reporting requirements in regulation 
sections Sec. Sec.  404.968, 404.976, 416.1468, and 416.1476 that 
require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). 
SSA will submit separate information collection requests to OMB in the 
future for these regulations sections. We will not collect the 
information referenced in these burden sections until we receive OMB 
approval.

(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 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).

Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we amend 20 CFR chapter 
III, parts 404, 405, and 416 as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE 
(1950- )

Subpart J--[Amended]

0
1. The authority citation for subpart J of part 404 continues to read 
as follows:

     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).


0
 2. In Sec.  404.900, revise the second sentence of paragraph (b) to 
read as follows:


Sec.  404.900   Introduction.

* * * * *
    (b) * * * Subject to certain timeframes at the hearing level (see 
Sec.  404.935) and the limitations on Appeals Council consideration of 
additional evidence (see Sec.  404.970), we will consider at each step 
of the review process any information you present as well as all the 
information in our records.* * *

0
 3. Revise the fifth and eighth sentences in Sec.  404.929 to read as 
follows:


Sec.  404.929  Hearing before an administrative law judge-general.

    * * * You may submit new evidence (subject to the provisions of 
Sec.  404.935), examine the evidence used in making the determination 
or decision under review, and present and question witnesses. * * * If 
you waive your right to appear at the hearing, in person, by video 
teleconferencing, or by telephone, the administrative law judge will 
make a decision based on the preponderance of the evidence that is in 
the file and, subject to the provisions of Sec.  404.935,

[[Page 90993]]

any new evidence that may have been submitted for consideration.* * *

0
4. Revise Sec.  404.935 to read as follows:


Sec.  404.935  Submitting written evidence to an administrative law 
judge.

    (a) When you submit your request for hearing, you should also 
submit information or evidence as required by Sec.  404.1512 or any 
summary of the evidence to the administrative law judge. Each party 
must make every effort to ensure that the administrative law judge 
receives all of the evidence and must inform us about or submit any 
written evidence, as required in Sec.  404.1512, 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 or obtain the evidence, unless the circumstances described 
in paragraph (b) of this section apply.
    (b) If you have evidence required under Sec.  404.1512 but you have 
missed the deadline described in paragraph (a) of this section, the 
administrative law judge will accept the evidence if he or she has not 
yet issued a decision and you did not inform us about or submit the 
evidence before the deadline because:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from informing us about or submitting 
the evidence earlier; or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from informing us about or submitting 
the evidence earlier. Examples include, but are not limited to:
    (i) You were seriously ill, and your illness prevented you from 
contacting us in person, in writing, or through a friend, relative, or 
other person;
    (ii) There was a death or serious illness in your immediate family;
    (iii) Important records were destroyed or damaged by fire or other 
accidental cause; or
    (iv) You actively and diligently sought evidence from a source and 
the evidence was not received or was received less than 5 business days 
prior to the hearing.

0
 5. In Sec.  404.938, revise paragraphs (a) and (b) to read as follows:


Sec.  404.938  Notice of a hearing before an administrative law judge.

    (a) Issuing the notice. After we set 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, unless you have 
indicated in writing that you do not wish to receive this notice. We 
will mail or serve the notice at least 75 days before the date of the 
hearing.
    (b) Notice information. The notice of hearing will tell you:
    (1) The specific issues to be decided in your case;
    (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 may be dismissed if neither you nor the 
person you designate to act as your representative appears at your 
scheduled hearing without good reason under Sec.  404.957;
    (5) Whether your appearance or that of any other party or witness 
is scheduled to be made in person, by video teleconferencing, or by 
telephone. If we have scheduled you to appear at the hearing by video 
teleconferencing, the notice of hearing will tell you that the 
scheduled place for the hearing is a video teleconferencing site and 
explain what it means to appear at your hearing by video 
teleconferencing;
    (6) That you must make every effort to inform us about or submit 
all written evidence that is not already in the record no later than 5 
business days before the date of the scheduled hearing, unless you show 
that your circumstances meet the conditions described in Sec.  
404.935(b); and
    (7) Any other information about the scheduling and conduct of your 
hearing.
* * * * *

0
6. Revise Sec.  404.939 to read as follows:


Sec.  404.939  Objections to the issues.

    If you object to the issues to be decided at the hearing, you must 
notify the administrative law judge in writing at the earliest possible 
opportunity, but no later than 5 business days before the date set for 
the hearing, unless you show that your circumstances meet the 
conditions described in Sec.  404.935(b). You must state the reason(s) 
for your objection(s). The administrative law judge will make a 
decision on your objection(s) either at the hearing or in writing 
before the hearing.

0
7. Revise Sec.  404.944 to read as follows:


Sec.  404.944  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the 
hearing, the administrative law judge looks fully into the issues, 
questions you and the other witnesses, and, subject to the provisions 
of Sec.  404.935: Accepts as evidence any documents that are material 
to the issues; may stop the hearing temporarily and continue it at a 
later date if he or she finds that there is material evidence missing 
at the hearing; and may reopen the hearing at any time before he or she 
mails a notice of the decision in order to receive new and material 
evidence. The administrative law judge may decide when the evidence 
will be presented and when the issues will be discussed.

0
8. Revise Sec.  404.949 to read as follows:


Sec.  404.949  Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may 
appear before the administrative law judge to state your case, present 
a written summary of your case, or enter written statements about the 
facts and law material to your case in the record. If presenting 
written statements prior to hearing, you must provide a copy of your 
written statements for each party no later than 5 business days before 
the date set for the hearing, unless you show that your circumstances 
meet the conditions described in Sec.  404.935(b).

0
9. In Sec.  404.950, revise paragraphs (c) and (d) to read as follows:


Sec.  404.950  Presenting evidence at a hearing before an 
administrative law judge.

* * * * *
    (c) Admissible evidence. Subject to the provisions of Sec.  
404.935, the administrative law judge may receive any evidence at the 
hearing that he or she believes is material to the issues, even though 
the evidence would not be admissible in court under the rules of 
evidence used by the court.
    (d) Subpoenas. (1) When it is reasonably necessary for the full 
presentation of a case, an administrative law judge or a member of the 
Appeals Council may, on his or her own initiative or at the request of 
a party, issue subpoenas for the appearance and testimony of witnesses 
and for the production of books, records, correspondence, papers, or 
other documents that are material to an issue at the hearing.
    (2) Parties to a hearing who wish to subpoena documents or 
witnesses must file a written request for the issuance of a subpoena 
with the administrative law judge or at one of our offices at least 10 
business days before the hearing date, unless you show that your 
circumstances meet the conditions described in Sec.  404.935(b). The 
written request must give the names of the witnesses or documents to be 
produced; describe the address or location of the witnesses or 
documents with sufficient detail to find them; state the important

[[Page 90994]]

facts that the witness or document is expected to prove; and indicate 
why these facts could not be proven without issuing a subpoena.
    (3) We will pay the cost of issuing the subpoena.
    (4) We will pay subpoenaed witnesses the same fees and mileage they 
would receive if they had been subpoenaed by a Federal district court.
* * * * *

0
10. Revise Sec.  404.951 to read as follows:


Sec.  404.951  Official record.

    (a) Hearing recording. All hearings will be recorded. The hearing 
recording will be prepared as a typed copy of the proceedings if--
    (1) The case is sent to the Appeals Council without a decision or 
with a recommended decision 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 Appeals Council asks for a 
written record of the proceedings.
    (b) Contents of the official record. All evidence upon which the 
administrative law judge relies for the decision must be contained in 
the record, either directly or by appropriate reference. The official 
record will include the applications, written statements, certificates, 
reports, affidavits, medical records, and other documents that were 
used in making the decision under review and any additional evidence or 
written statements that the administrative law judge admits into the 
record under Sec. Sec.  404.929 and 404.935. All exhibits introduced as 
evidence must be marked for identification and incorporated into the 
record. The official record of your claim will contain all of the 
marked exhibits and a verbatim recording of all testimony offered at 
the hearing. It also will include any prior initial determinations or 
decisions on your claim.

0
11. In Sec.  404.968, revise the second sentence of paragraph (a) 
introductory text to read as follows:


Sec.  404.968  How to request Appeals Council review.

    (a) * * * You should submit any evidence you wish to have 
considered by the Appeals Council with your request for review, and the 
Appeals Council will consider the evidence in accordance with Sec.  
404.970. * * *
* * * * *

0
12. Revise Sec.  404.970 to read as follows:


Sec.  404.970  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if--
    (1) There appears to be an abuse of discretion by the 
administrative law judge;
    (2) There is an error of law;
    (3) The action, findings or conclusions of the administrative law 
judge are not supported by substantial evidence;
    (4) There is a broad policy or procedural issue that may affect the 
general public interest; or
    (5) Subject to paragraph (b) of this section, the Appeals Council 
receives additional evidence that is new, material, and relates to the 
period on or before the date of the hearing decision, and there is a 
reasonable probability that the additional evidence would change the 
outcome of the decision.
    (b) The Appeals Council will only consider additional evidence 
under paragraph (a)(5) of this section if you show good cause for not 
informing us about or submitting the evidence as described in Sec.  
404.935 because:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from informing us about or submitting 
the evidence earlier; or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from informing us about or submitting 
the evidence earlier. Examples include, but are not limited to:
    (i) You were seriously ill, and your illness prevented you from 
contacting us in person, in writing, or through a friend, relative, or 
other person;
    (ii) There was a death or serious illness in your immediate family;
    (iii) Important records were destroyed or damaged by fire or other 
accidental cause;
    (iv) You actively and diligently sought evidence from a source and 
the evidence was not received or was received less than 5 business days 
prior to the hearing; or
    (v) You received a hearing level decision on the record and the 
Appeals Council reviewed your decision.
    (c) If you submit additional evidence that does not relate to the 
period on or before the date of the administrative law judge hearing 
decision as required in paragraph (a)(5) of this section, or the 
Appeals Council does not find you had good cause for missing the 
deadline to submit the evidence in Sec.  [thinsp]404.935, the Appeals 
Council will send you a notice that explains why it did not accept the 
additional evidence and advises you of your right to file a new 
application. The notice will also advise you that if you file a new 
application within 6 months after the date of the Appeals Council's 
notice, your request for review will constitute a written statement 
indicating an intent to claim benefits under Sec.  [thinsp]404.630. If 
you file a new application within 6 months of the Appeals Council's 
notice, we will use the date you requested Appeals Council review as 
the filing date for your new application.

0
13. Revise Sec.  404.976 to read as follows:


Sec.  404.976  Procedures before the Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues 
it considers if it notifies you and the other parties of the issues it 
will review.
    (b) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of 
law or policy or that oral argument would help to reach a proper 
decision. If your request to appear is granted, the Appeals Council 
will tell you the time and place of the oral argument at least 10 
business days before the scheduled date. The Appeals Council will 
determine whether your appearance, or the appearance of any other 
person relevant to the proceeding, will be in person, by video 
teleconferencing, or by telephone.


Sec.  404.979   [Amended]

0
14. Revise the first sentence of Sec.  404.979 to read as follows:
    After it has reviewed all the evidence in the administrative law 
judge hearing record and any additional evidence received, subject to 
the limitations on Appeals Council consideration of additional evidence 
in Sec.  404.970, the Appeals Council will make a decision or remand 
the case to an administrative law judge. * * *

PART 405--[REMOVED AND RESERVED]

0
15. Under the authority of sections 205(a), 702(a)(5), and 1631(d)(1) 
of the Social Security Act, part 405 is removed and reserved.

[[Page 90995]]

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart N--Determinations, Administrative Review Process, and 
Reopening of Determinations and Decisions

0
16. The authority citation for subpart N of part 416 continues to read 
as follows:

    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).

0
 17. In Sec.  416.1400, revise the second sentence of paragraph (b) to 
read as follows:


Sec.  416.1400   Introduction.

* * * * *
    (b) * * * Subject to certain timeframes at the hearing level (see 
Sec.  416.1435) and the limitations on Appeals Council consideration of 
additional evidence (see Sec.  416.1470), we will consider at each step 
of the review process any information you present as well as all the 
information in our records.* * *

0
18. Revise the fifth and eighth sentences of Sec.  416.1429 to read as 
follows:


Sec.  416.1429  Hearing before an administrative law judge-general.

    * * * You may submit new evidence (subject to the provisions of 
Sec.  416.1435), examine the evidence used in making the determination 
or decision under review, and present and question witnesses. * * * If 
you waive your right to appear at the hearing, in person, by video 
teleconferencing, or by telephone, the administrative law judge will 
make a decision based on the preponderance of the evidence that is in 
the file and, subject to the provisions of Sec.  416.1435, any new 
evidence that may have been submitted for consideration.* * *

0
19. Revise Sec.  416.1435 to read as follows:


Sec.  416.1435  Submitting written evidence to an administrative law 
judge.

    (a) When you submit your request for hearing, you should also 
submit information or evidence as required by Sec.  416.912 or any 
summary of the evidence to the administrative law judge. Each party 
must make every effort to ensure that the administrative law judge 
receives all of the evidence and must inform us about or submit any 
written evidence, as required in Sec.  416.912, 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 or obtain the evidence unless the circumstances described 
in paragraph (b) of this section apply.
    (b) If you have evidence required under Sec.  416.912 but you have 
missed the deadline described in paragraph (a) of this section, the 
administrative law judge will accept the evidence if he or she has not 
yet issued a decision and you did not inform us about or submit the 
evidence before the deadline because:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from informing us about or submitting 
the evidence earlier; or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from informing us about or submitting 
the evidence earlier. Examples include, but are not limited to:
    (i) You were seriously ill, and your illness prevented you from 
contacting us in person, in writing, or through a friend, relative, or 
other person;
    (ii) There was a death or serious illness in your immediate family;
    (iii) Important records were destroyed or damaged by fire or other 
accidental cause; or
    (iv) You actively and diligently sought evidence from a source and 
the evidence was not received or was received less than 5 business days 
prior to the hearing.
    (c) Claims Not Based on an Application For Benefits. 
Notwithstanding the requirements in paragraphs (a)-(b) of this section, 
for claims that are not based on an application for benefits, the 
evidentiary requirement to inform us about or submit evidence no later 
than 5 business days before the date of the scheduled hearing will not 
apply if our other regulations allow you to submit evidence after the 
date of an administrative law judge decision.

0
 20. In Sec.  416.1438, revise paragraphs (a) and (b) to read as 
follows:


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

    (a) Issuing the notice. After we set 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, unless you have 
indicated in writing that you do not wish to receive this notice. We 
will mail or serve the notice at least 75 days before the date of the 
hearing.
    (b) Notice information. The notice of hearing will tell you:
    (1) The specific issues to be decided in your case;
    (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 may be dismissed if neither you nor the 
person you designate to act as your representative appears at your 
scheduled hearing without good reason under Sec.  416.1457;
    (5) Whether your appearance or that of any other party or witness 
is scheduled to be made in person, by video teleconferencing, or by 
telephone. If we have scheduled you to appear at the hearing by video 
teleconferencing, the notice of hearing will tell you that the 
scheduled place for the hearing is a video teleconferencing site and 
explain what it means to appear at your hearing by video 
teleconferencing;
    (6) That you must make every effort to inform us about or submit 
all written evidence that is not already in the record no later than 5 
business days before the date of the scheduled hearing, unless you show 
that your circumstances meet the conditions described in Sec.  
416.1435(b); and
    (7) Any other information about the scheduling and conduct of your 
hearing.
* * * * *

0
21. Revise Sec.  416.1439 to read as follows:


Sec.  416.1439  Objections to the issues.

    If you object to the issues to be decided at the hearing, you must 
notify the administrative law judge in writing at the earliest possible 
opportunity, but no later than 5 business days before the date set for 
the hearing, unless you show that your circumstances meet the 
conditions described in Sec.  416.1435(b). You must state the reason(s) 
for your objection(s). The administrative law judge will make a 
decision on your objection(s) either at the hearing or in writing 
before the hearing.

0
22. Revise Sec.  416.1444 to read as follows:


Sec.  416.1444  Administrative law judge hearing procedures--general.

    A hearing is open to the parties and to other persons the 
administrative law judge considers necessary and proper. At the 
hearing, the administrative law judge looks fully into the issues, 
questions you and the other witnesses, and, subject to the provisions 
of Sec.  [thinsp]416.1435: Accepts as evidence any documents that are 
material to the issues; may stop the hearing temporarily and continue 
it at a later date if he or she finds that there is material evidence 
missing at the hearing; and may reopen the hearing at any time before 
he or she mails a notice of the decision in order

[[Page 90996]]

to receive new and material evidence. The administrative law judge may 
decide when the evidence will be presented and when the issues will be 
discussed.

0
23. Revise Sec.  416.1449 to read as follows:


Sec.  416.1449  Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may 
appear before the administrative law judge to state your case, present 
a written summary of your case, or enter written statements about the 
facts and law material to your case in the record. If presenting 
written statements prior to hearing, you must provide a copy of your 
written statements for each party no later than 5 business days before 
the date set for the hearing, unless you show that your circumstances 
meet the conditions described in Sec.  416.1435(b).

0
24. In Sec.  416.1450, revise paragraphs (c) and (d) to read as 
follows:


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

* * * * *
    (c) Admissible evidence. Subject to the provisions of Sec.  
416.1435, the administrative law judge may receive any evidence at the 
hearing that he or she believes is material to the issues, even though 
the evidence would not be admissible in court under the rules of 
evidence used by the court.
    (d) Subpoenas. (1) When it is reasonably necessary for the full 
presentation of a case, an administrative law judge or a member of the 
Appeals Council may, on his or her own initiative or at the request of 
a party, issue subpoenas for the appearance and testimony of witnesses 
and for the production of books, records, correspondence, papers, or 
other documents that are material to an issue at the hearing.
    (2) Parties to a hearing who wish to subpoena documents or 
witnesses must file a written request for the issuance of a subpoena 
with the administrative law judge or at one of our offices at least 10 
business days before the hearing date, unless you show that your 
circumstances meet the conditions described in Sec.  416.1435(b). The 
written request must give the names of the witnesses or documents to be 
produced; describe the address or location of the witnesses or 
documents with sufficient detail to find them; state the important 
facts that the witness or document is expected to prove; and indicate 
why these facts could not be proven without issuing a subpoena.
    (3) We will pay the cost of issuing the subpoena.
    (4) We will pay subpoenaed witnesses the same fees and mileage they 
would receive if they had been subpoenaed by a Federal district court.
* * * * *

0
25. Revise Sec.  416.1451 to read as follows:


Sec.  416.1451  Official record.

    (a) Hearing recording. All hearings will be recorded. The hearing 
recording will be prepared as a typed copy of the proceedings if--
    (1) The case is sent to the Appeals Council without a decision or 
with a recommended decision 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 Appeals Council asks for a 
written record of the proceedings.
    (b) Contents of the official record. All evidence upon which the 
administrative law judge relies for the decision must be contained in 
the record, either directly or by appropriate reference. The official 
record will include the applications, written statements, certificates, 
reports, affidavits, medical records, and other documents that were 
used in making the decision under review and any additional evidence or 
written statements that the administrative law judge admits into the 
record under Sec. Sec.  416.1429 and 416.1435. All exhibits introduced 
as evidence must be marked for identification and incorporated into the 
record. The official record of your claim will contain all of the 
marked exhibits and a verbatim recording of all testimony offered at 
the hearing. It also will include any prior initial determinations or 
decisions on your claim.

0
26. In Sec.  416.1468, revise the second sentence of paragraph (a) 
introductory text to read as follows:


Sec.  416.1468   How to request Appeals Council review.

    (a) * * * You should submit any evidence you wish to have 
considered by the Appeals Council with your request for review, and the 
Appeals Council will consider the evidence in accordance with Sec.  
416.1470. * * *

0
27. Revise Sec.  416.1470 to read as follows:


Sec.  416.1470  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if--
    (1) There appears to be an abuse of discretion by the 
administrative law judge;
    (2) There is an error of law;
    (3) The action, findings or conclusions of the administrative law 
judge are not supported by substantial evidence;
    (4) There is a broad policy or procedural issue that may affect the 
general public interest; or
    (5) Subject to paragraph (b) of this section, the Appeals Council 
receives additional evidence that is new, material, and relates to the 
period on or before the date of the hearing decision, and there is a 
reasonable probability that the additional evidence would change the 
outcome of the decision.
    (b) In reviewing decisions other than those based on an application 
for benefits, the Appeals Council will consider the evidence in the 
administrative law judge hearing record and any additional evidence it 
believes is material to an issue being considered. However, in 
reviewing decisions based on an application for benefits, the Appeals 
Council will only consider additional evidence under paragraph (a)(5) 
of this section if you show good cause for not informing us about or 
submitting the evidence as described in Sec.  416.1435 because:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from informing us about or submitting 
the evidence earlier; or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from informing us about or submitting 
the evidence earlier. Examples include, but are not limited to:
    (i) You were seriously ill, and your illness prevented you from 
contacting us in person, in writing, or through a friend, relative, or 
other person;
    (ii) There was a death or serious illness in your immediate family;
    (iii) Important records were destroyed or damaged by fire or other 
accidental cause;
    (iv) You actively and diligently sought evidence from a source and 
the evidence was not received or was received less than 5 business days 
prior to the hearing; or
    (v) You received a hearing level decision on the record and the 
Appeals Council reviewed your decision.
    (c) If you submit additional evidence that does not relate to the 
period on or before the date of the administrative law judge hearing 
decision as required in paragraph (a)(5) of this section, or the 
Appeals Council does not find you had

[[Page 90997]]

good cause for missing the deadline to submit the evidence in Sec.  
[thinsp]416.1435, the Appeals Council will send you a notice that 
explains why it did not accept the additional evidence and advises you 
of your right to file a new application. The notice will also advise 
you that if you file a new application within 60 days after the date of 
the Appeals Council's notice, your request for review will constitute a 
written statement indicating an intent to claim benefits under Sec.  
[thinsp]416.340. If you file a new application within 60 days of the 
Appeals Council's notice, we will use the date you requested Appeals 
Council review as the filing date for your new application.

0
28. Revise Sec.  416.1476 to read as follows:


Sec.  416.1476  Procedures before the Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues 
it considers if it notifies you and the other parties of the issues it 
will review.
    (b) Oral argument. You may request to appear before the Appeals 
Council to present oral argument. The Appeals Council will grant your 
request if it decides that your case raises an important question of 
law or policy or that oral argument would help to reach a proper 
decision. If your request to appear is granted, the Appeals Council 
will tell you the time and place of the oral argument at least 10 
business days before the scheduled date. The Appeals Council will 
determine whether your appearance, or the appearance of any other 
person relevant to the proceeding, will be in person, by video 
teleconferencing, or by telephone.


Sec.  416.1479   [Amended]

0
29. Revise the first sentence of Sec.  416.1479 to read as follows:
    After it has reviewed all the evidence in the administrative law 
judge hearing record and any additional evidence received, subject to 
the limitations on Appeals Council consideration of additional evidence 
in Sec.  416.1470, the Appeals Council will make a decision or remand 
the case to an administrative law judge. * * *

[FR Doc. 2016-30103 Filed 12-15-16; 8:45 am]
 BILLING CODE 4191-02-P