Setting the Time and Place for a Hearing Before an Administrative Law Judge, 39154-39161 [2010-16549]

Agencies

• Social Security Administration

[Federal Register Volume 75, Number 130 (Thursday, July 8, 2010)]
[Rules and Regulations]
[Pages 39154-39161]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-16549]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA 2008-0033]
RIN 0960-AG61


Setting the Time and Place for a Hearing Before an Administrative 
Law Judge

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: We are amending our rules to state that our agency is 
responsible for setting the time and place for a hearing before an 
administrative law judge (ALJ). This change creates a 3-year pilot 
program that will allow us to test this new authority. Our use of this 
authority, consistent with due process rights of claimants, may provide 
us with greater flexibility in scheduling both in-person and video 
hearings, lead to improved efficiency in our hearing process, and 
reduce the number of pending hearing requests. This change is a part of 
our broader commitment to maintaining a hearing process that results in 
accurate, high-quality decisions for claimants.

DATES: These final rules are effective August 9, 2010.

FOR FURTHER INFORMATION CONTACT: Brent Hillman, Social Security 
Administration, 5107 Leesburg Pike, Falls Church, Virginia 22041-3260, 
(703) 605-8280, for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at https://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 https://www.gpoaccess.gov/fr/.

Introduction

    One of our highest priorities is to improve the efficiency of our 
hearing process for the Old Age, Survivors, and Disability Insurance 
(OASDI) programs under title II of the Social Security Act (Act) and 
the Supplemental Security Income (SSI) program under title XVI of the 
Act. The increasing workloads at the hearing level of our 
administrative review process have been well-publicized, and we are 
actively preparing for further increases in the number of hearing 
requests. Eliminating the hearing backlog is a ``moral imperative.'' 
\1\ We face significant challenges in dealing with the historically 
large number of pending hearing requests, and we must schedule a 
greater number of hearings to reduce the hearing backlog. The ALJs who 
conduct the hearings are dedicated, hard working professionals; they 
will play a central role in helping us reduce the backlog. However, 
some ALJs do not schedule or hold a minimally acceptable number of 
hearings, and our current rules are arguably unclear as to certain 
scheduling issues.
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    \1\ See, e.g., www.socialsecurity.gov/legislation/testimony_111909.htm and www.socialsecurity.gov/legislation/testimony_032409.htm.
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    Therefore, we are revising our rules to state that ``we'' (the 
agency) have the authority to set the time and place for a hearing 
before an ALJ. We are adding this authority as a 3-year pilot program 
so we may test it and evaluate its effectiveness, as explained below. 
We will conduct this pilot to test the effect of our use of this 
authority, consistent with due process rights of claimants, on the 
timely scheduling of hearings and on reducing the hearing backlog. This 
change is a part of our broader commitment to maintaining a hearing 
process that results in accurate, high-quality decisions for claimants. 
Through the pilot, we hope to determine whether extending the authority 
to schedule hearings to other agency personnel,

[[Page 39155]]

including management officials, allows us to better manage the number 
of hearings held and to keep our hearing process as efficient as 
possible.
    Under our current rules, ALJs set the time and place for hearings. 
In practice, each ALJ provides hearing office staff with a schedule of 
times that he or she is available to hold hearings. The hearing office 
staff then coordinates scheduling of the hearing with the claimant, the 
claimant's representative, medical and vocational experts, and hearing 
recorders. We expect that the rules changes we are making here will 
help us reduce the number of pending hearing requests by giving us more 
flexibility to set the time and place for hearings.\2\ We anticipate 
using this pilot authority primarily in a very small number of 
situations where an ALJ is scheduling so few hearings that he or she is 
compromising our efforts to make timely and accurate decisions for 
people applying for benefits. One impetus for proposing these rules was 
a New England judge who scheduled no hearings for many years. Because 
we expect that virtually all ALJs will work with us to schedule 
hearings in a timely manner, administrative action under this 
regulation should be an exceptionally rare occurrence.
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    \2\ These rule changes are only one part of our Plan to 
Eliminate the Hearing Backlog and Prevent its Recurrence. See 
www.ssa.gov/appeals/Backlog_Reports/Annual_Backlog_Report_FY_2008-Jan.pdf and https://www.ssa.gov/asp. Other initiatives to reduce 
the hearing backlog include final rules that allows certain 
attorneys in our Office of Disability Adjudication and Review (ODAR) 
to make fully favorable decisions, and an initiative for medical 
experts to screen cases and identify those claimants whose 
impairments are most likely to meet our disability requirements. We 
have streamlined folder assembly, which allows us to fill ALJ 
hearing dockets more efficiently, and offered overtime work to a 
wide variety of agency employees to assist hearing offices to 
prepare cases for hearing. To increase our overall adjudicatory 
capacity, we opened four National Hearing Centers in Falls Church, 
Virginia, Albuquerque, New Mexico, Chicago, Illinois, and Baltimore, 
Maryland. We expect to open a fifth National Hearing Center in St. 
Louis, Missouri, in the near future. We also anticipate opening 25 
new hearing offices and 7 new satellite offices in the near future, 
and continue to modify and expand existing hearing offices. We also 
continue to increase our use of electronic folders and additional 
automated processes. We anticipate long-term benefits from use of 
these electronic applications. In sum, the rule changes we are 
making here are just one part of our overall plan to provide a more 
efficient hearings process to Social Security claimants.
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    The United States Government Accountability Office (GAO) recognized 
that achieving productivity goals was critical if we are to reach our 
goal of eliminating the backlog by the end of fiscal year (FY) 2013.\3\ 
Our Inspector General and the GAO reported that meeting our ALJ hiring 
and productivity goals will be critical in reducing the pending 
hearings to fewer than 466,000 \4\ cases by the end of FY 2013.\5\
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    \3\ https://www.gao.gov/new.items/d09398.pdf.
    \4\ At the end of FY 2009, 722,822 hearings were pending in 
ODAR. In October 2009, the average processing time was 446 days. As 
outlined in the FY 2008-2013 Strategic Plan, we plan to reduce the 
number of pending hearings to a desired level of 466,000 and the 
average processing time to 270 days by the end of FY 2013. A pending 
level of 466,000 hearings ensures a sufficient number of cases to 
maximize the efficiency of the hearing process. https://www.ssa.gov/oig/ADOBEPDF/audittxt/A-07-09-29162.htm; www.ssa.gov/asp/StrategicGoal1.pdf; https://www.socialsecurity.gov/legislation/testimony_111909.htm.
    \5\  See Quick Response Evaluation: Office of Disability 
Adjudication and Review Management Information, A-07-09-29162 at pp. 
1-3, Appendix C, https://www.ssa.gov/oig/ADOBEPDF/A-07-09-29162.pdf 
(Aug. 3, 2009); https://www.gao.gov/new.items/d09398.pdf.
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    We expect the number of hearing requests to continue to grow as the 
number of new applications for benefits increases. In FY 2009, we saw a 
13.8 percent increase in the number of initial disability claims. We 
also experienced an increase in the number of requests for a hearing 
before an ALJ--a 5.7 percent increase over the number of requests in FY 
2008. We are anticipating an even larger increase in the number of 
hearing requests in FY 2010, corresponding to the increase in initial 
claims in FY 2009.
    We will consult with the appropriate Hearing Office Chief 
Administrative Law Judge (HOCALJ) and the ALJ before we exercise the 
pilot authority provided in these rules to determine if there are any 
reasons why we should not set the time and place of the ALJ's hearings, 
such as the ALJ being on leave for an extended period or insufficient 
staff support to prepare cases for hearings. If the HOCALJ does not 
state a reason that we believe justifies the limited number of hearings 
scheduled by an ALJ, we will then consult with the ALJ before deciding 
whether to exercise our authority to set the time and place for the 
ALJ's hearings. If the HOCALJ states a reason that we believe justifies 
the limited number of hearings scheduled by the ALJ, we will not 
exercise our authority to set the time and place for the ALJ's 
hearings. We will work with the HOCALJ to identify those circumstances 
where we can assist the ALJ and address any impediment that may affect 
the scheduling of hearings.
    Our decision to set the time and place of a hearing in no way 
interferes with the ALJ's role to develop, hear, and decide cases. The 
ALJ will be in the best position to help us identify cases that are 
ready for a hearing, as well as those that need additional development 
before a hearing is scheduled. In making this change to our rules as a 
pilot, we intend only to test whether this authority improves the 
quality of service to claimants awaiting a hearing. We are committed to 
maintaining a hearing process that results in accurate, high-quality 
decisions for claimants. We will carefully monitor the application of 
these rules to ensure that the hearing process remains effective and 
fair.
    In the rare instances where we will need to exercise this authority 
to schedule hearings for an ALJ, we will determine when and where an 
ALJ will hold a hearing. As is our practice when we schedule and hold 
all hearings, before we schedule a hearing, we will first consider 
those factors that affect scheduling, such as the availability of all 
parties and the development of the case file. We expect that the 
clarity provided by these final rules will allow issues that have 
arisen in the past to be quickly and effectively resolved between an 
ALJ and the HOCALJ.
    We also expect that the changes we are making in these final rules 
will assist our development of an electronic scheduling initiative, 
which includes an automated calendaring function. Electronic hearings 
scheduling will improve our efficiency by integrating the schedules of 
ALJs, experts, claimants, claimants' representatives, and hearing 
recorders, and the availability of hearing rooms.
    As stated above, to ensure that these rules operate as intended, we 
are adding a provision to these rules to explain that the authority to 
allow us to set the time and place of the hearing will be implemented 
as a temporary 3-year pilot program, so we may test the provisions of 
these rules and evaluate their effectiveness. By using this authority 
to schedule hearings, we expect that we will be able to increase 
productivity and help ALJs manage their caseloads. We expect these 
final rules will help us reduce the hearing request backlog and ensure 
that claimants are given timely hearings. As we work to improve the 
hearing process, we are committed to maintaining a system that results 
in accurate, high-quality decisions for claimants.
    We are conducting this 3-year pilot program to evaluate the 
capacity of these rules to help us achieve our mission. This change is 
a part of our broader commitment to maintaining a hearing process that 
results in accurate, high-quality decisions for claimants. During the 
course of the pilot program, we will carefully examine ALJ 
productivity, caseload distribution, staffing requirements, the 
efficiency of the scheduling process, the efficacy of both inter- and 
intra-office consultation,

[[Page 39156]]

and the proportional effect on the hearing request backlog.

Public Comments

    In the notice of proposed rulemaking (NPRM) published at 73 FR 
66564 (November 10, 2008), we provided the public with a 60-day period 
in which to comment on the proposed changes. That comment period ended 
on January 9, 2009. We received 141 comments on the proposed rules. We 
carefully considered all of the comments. As some of the comments were 
long and quite detailed, we have condensed, summarized, and paraphrased 
them in the following discussions. However, we have tried to present 
all views adequately and to carefully address all of the relevant and 
significant issues raised by the commenters. We generally did not 
address comments that are outside the scope of this rulemaking 
proceeding.

ALJs' Qualified Decisional Independence

    Comment: The most prevalent comment we received was a concern that 
allowing us to schedule hearings limited an ALJ's qualified decisional 
independence. Many commenters believed that deciding when a claim is 
ready for a hearing, as well as the type and scope of development 
necessary prior to the hearing, should be solely within the discretion 
of the ALJ. Some commenters noted that the decision regarding the 
length of time reserved for each hearing should also be solely within 
the discretion of the ALJ. A number of commenters also objected to our 
expectation that each ALJ would process at least 500 cases per year to 
eliminate the backlog of claims at the hearing level. One commenter 
feared that we would set so many hearings for an ALJ that he or she 
would spend all or most of his or her time ``on the bench'' and would 
be unable to perform the other required duties.
    Response: We agree that ALJs have qualified decisional 
independence, but we disagree with the commenters' views that these 
rules changes infringe on that qualified decisional independence. 
``Qualified decisional independence'' means that ALJs must be impartial 
in conducting hearings. They must decide cases based on the facts in 
each case and in accordance with agency policy as laid out in 
regulations, rulings, and other policy statements. Further, because of 
their qualified decisional independence, ALJs make their decisions free 
from agency pressure or pressure by a party to decide a particular 
case, or a particular percentage of cases, in a particular way. The 
agency may not take actions that abridge the duty of impartiality owed 
to claimants when ALJs hear and decide claims.
    Contrary to what some of the commenters seem to assume, however, 
qualified decisional independence does not prevent appropriate 
management oversight of our administrative review process. ALJs' 
qualified decisional independence does not prevent us from establishing 
administrative practices and programmatic policies that ALJs must 
follow, such as the rules that we are adopting here. Our authority to 
establish such practices and policies means that ALJs are entirely 
subordinate to the agency on matters of law and policy. That view has 
been repeatedly endorsed by the Federal courts.
    Furthermore, as some of the commenters pointed out, the Federal 
courts also have recognized that reasonable efforts to increase the 
production levels of ALJs are not an infringement of qualified 
decisional independence and that the setting of reasonable production 
expectations, as opposed to fixed quotas, does not in itself violate 
the Administrative Procedure Act. As one court observed, ``[I]n view of 
the significant backlog of cases, it was not unreasonable to expect 
ALJs to perform at minimally acceptable levels of efficiency. Simple 
fairness to claimants awaiting benefits required no less.'' \6\ We 
included a rough figure of 500 cases per year to help provide context; 
to avoid misunderstanding, the figure was removed from these final 
rules. Contrary to the assumptions of some commenters, these final 
rules do not establish a ``fixed quota'' that will require ALJs to 
schedule and hear a specific number of cases. Nevertheless, we expect 
all of our ALJs to perform at reasonable levels of efficiency. The 
changes in these final rules are intended to accomplish that goal in 
the rare instances where we may find it necessary to exercise the 
authority under these rules. The changes will help us manage the 
hearings process more efficiently, consistent with our obligations to 
the public we serve, and in ways that do not impinge on an ALJ's 
qualified decisional independence.
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    \6\ Nash v. Bowen, 869 F.2d 675, 681 (2d Cir.), cert. denied, 
493 U.S. 812 (1989).
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    We recognize the challenging job facing our ALJs: holding a 
sufficient number of hearings and rendering accurate, well-reasoned 
decisions. But the reality of the current hearing backlog and the 
increasing number of hearing requests require an acceptable level of 
production from all of our employees, including ALJs. Nothing in these 
rules exerts pressure on ALJs to decide claims in a particular way, 
precludes an ALJ from developing the evidence, or interferes with the 
ALJ's conduct of a hearing. These rules simply change an administrative 
practice to ensure the best and most prompt service to those who 
request a hearing.
    However, we also want to ensure that these rules do not result in 
any unintended and unforeseen consequences. Consequently, in order to 
address the commenters' concerns, we have decided to make four changes 
to final sections 404.936 and 416.1436.
    First, we have revised final sections 404.936(a) and 416.1436(a) to 
provide that we ``may'' set the time and place of the hearing. We made 
this change in order to clarify that we will not set the time and place 
of every hearing, as some of the commenters seemed to fear.
    Second, we have revised final sections 404.936(c) and 416.1436(c) 
to clarify that we will consult with the ALJ in order to determine the 
status of case preparation before we set the time and place of the 
hearing.
    Third, we have added new final sections 404.936(g) and 416.936(g) 
to state that we will consult with the appropriate HOCALJ and ALJ 
before we exercise this authority to determine if there are any reasons 
why we should not set the time and place of the ALJ's hearings. If the 
HOCALJ does not state a reason that we believe justifies the limited 
number of hearings scheduled by an ALJ, we will then consult with the 
ALJ before deciding whether to begin to exercise our authority to set 
the time and place for the ALJ's hearings. If the HOCALJ states a 
reason that we believe justifies the limited number of hearings 
scheduled by the ALJ, we will not exercise our authority to set the 
time and place for the ALJ's hearings. We will work with the HOCALJ to 
identify those circumstances where we can assist the ALJ and address 
any impediment that may affect the scheduling of hearings.
    Finally, we have added new final sections 404.936(h) and 
416.1436(h) to clarify that we will implement these rules as a pilot 
program. As a result, the provisions of the rules that authorize us to 
set, and, if necessary, to change, the time and place of the hearing 
and that require us to consult with the ALJ to determine the status of 
case preparation will be effective for a 3-year period from the 
effective date of these final rules. We may, however, terminate these 
final rules earlier or extend them beyond that date by notice of a 
final rule in the Federal Register. We expect that these four changes 
will make it clear that we will implement these final rules in a manner 
that does not affect the ALJs' qualified decisional independence and

[[Page 39157]]

that results in a hearing process that continues to be effective and 
fair.
    Comment: One commenter asserted that no other agency ``interferes'' 
with the authority of an ALJ to set the time and place for hearings, 
while another commenter sought to distinguish the work of our ALJs from 
ALJs in other Federal agencies where the agency has authority to 
schedule hearings. Other commenters suggested that our hearing process 
should remain different from the hearing processes in other agencies, 
based on the nature of the work we perform.
    Response: Several Federal agencies employ ALJs, and some of those 
agencies have exercised their authority to schedule hearings for ALJs. 
There is no uniform practice among the agencies for scheduling 
hearings. In some agencies, the agency has specifically delegated the 
authority to set the time and place for a hearing to an ALJ or 
equivalent adjudicator. In other agencies, the agency has retained its 
authority to set the time and place of the hearing.\7\ Although the 
subject matter and the format of administrative hearings may vary among 
agencies, we do not believe that the nature of the duties our ALJs 
perform requires that we specifically delegate the authority to set the 
time and place for the hearing to the ALJ.
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    \7\ The National Labor Relations Board's (NLRB) regulations give 
authority to the regional director to schedule the hearing. 29 CFR 
101.8. The NLRB's Casehandling Manual Part 1 Unfair Labor Practice 
Proceedings Sec. Sec.  10256-10256.5 provides certain factors for 
consideration in the exercise of that authority. (available at 
https://www.nlrb.gov/nlrb/legal/manuals/CHM1/CHM1.pdf). The Federal 
Communications Commission reserves to ``the Commission'' the ability 
to specify the date and place of the hearing. 47 CFR 1.221(a)(3) and 
1.253(a). The regulations for the Board of Veterans' Appeals do not 
expressly state who sets the time and place for hearing, but refers 
to ``officials scheduling hearings'' separately from a member of the 
Board. 38 CFR 20.702(a) and 20.704(a). However, the Department of 
Labor, the Department of Agriculture, the Department of Homeland 
Security, the Department of Housing and Urban Development, and the 
National Transportation Safety Board authorize their ALJs (or the 
equivalent) to set and change the date, time, and place of a 
hearing. 6 CFR 13.12, 13.18(b)(1); 7 CFR 1.141(b); 24 CFR 26.32(a); 
29 CFR 18.27; and 49 CFR 800.23 and 821.37(a). The regulations for 
the Department of Health and Human Services, which are modeled on 
our current rules, provide that the ALJ sets the time and place for 
the hearing. 42 CFR 405.1016(a) and 405.1020(a).
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    Comment: Many comments suggested that these rules would result in 
the unwarranted denial or allowance of claims by ALJs. Several 
commenters believed that the result of these rules would be an increase 
in the issuance of favorable decisions by ALJs, based on the 
commenters' assertions that favorable decisions can be more quickly 
processed. One commenter believed this would be particularly true in 
cases involving more difficult factual situations or in cases requiring 
complicated legal analysis. Two commenters suggested the opposite--that 
these rules would result in an increase in unfavorable decisions by 
ALJs. Several commenters stated that these rules could prevent ALJs 
from properly developing the administrative record and could either 
encourage or discourage ALJs from calling necessary medical or 
vocational experts to testify at the administrative hearing.
    Response: Nothing in these rules either explicitly or implicitly 
pressures an ALJ to decide any claim in a particular manner. In order 
to make that clear, as noted above, we have included two consultation 
provisions in the final rules. First, in final sections 404.936(c) and 
416.1436(c), we provide that we will consult with the ALJ in setting 
the time and place for the hearing, in part to determine the status of 
case preparation. We also have added new final sections 404.936(g) and 
416.1436(g), where we explain that before we exercise the authority to 
set the time and place for an ALJ's hearings, we will consult with the 
appropriate HOCALJ to determine if there are any reasons why we should 
not set the time and place of the ALJ's hearings. If the HOCALJ does 
not state a reason that we believe justifies the limited number of 
hearings scheduled by the ALJ, we will then consult with the ALJ before 
deciding whether to begin to exercise our authority to set the time and 
place for the ALJ's hearings. If the HOCALJ states a reason that we 
believe justifies the limited number of hearings scheduled by the ALJ, 
we will not exercise our authority to set the time and place for the 
ALJ's hearings. We will work with the HOCALJ to identify those 
circumstances where we can assist the ALJ and address any impediment 
that may affect the scheduling of hearings.
    We believe that these consultation provisions will enhance our goal 
to improve the efficiency of our hearing process. In addition to these 
specific provisions, we also provide in final sections 404.936(c) and 
416.1436(c) that we will consult with the ALJ to determine whether the 
claimant or any other party will appear in person or by video 
teleconferencing.\8\ We will also ascertain the availability of medical 
or vocational experts the ALJ determines are required before we 
schedule a hearing. Nothing in these rules will either encourage or 
discourage ALJs from calling any necessary experts or witnesses.
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    \8\ Final sections 404.936(c) and 416.1436(c).
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    As we have stated, we will carefully monitor quality, productivity, 
and accuracy in those situations in which we exercise the authority in 
these rules. We also plan to evaluate the effectiveness of our pilot 
program by the end of 3 years to ensure that we properly implement 
these rules and that these rules do not result in any unintended and 
unforeseen consequences. We believe that our ALJs will continue to 
perform their duties in a professional manner and will decide all 
claims before them consistent with the applicable law, regulations, and 
agency policy.
    Comment: Several commenters suggested the proposed changes would 
not help us increase the efficiency of our hearing process or reduce 
the number of pending hearings. Three commenters suggested these rules 
will not decrease the hearing backlog because allowing us to schedule 
hearings will merely result in a greater delay between the hearing date 
and issuing the ALJ decision. Many commenters suggested that scheduling 
additional hearings without ALJ input would result in increased 
rescheduling and an increased need for supplemental hearings. By 
contrast, another commenter felt that these rules would result in fewer 
supplemental hearings. Additional commenters believed that these rules 
will result in increased remands from the Appeals Council and Federal 
district courts because claims will not be fully developed before a 
hearing is scheduled.
    Response: As previously stated, we have revised these rules to 
provide that we will consult with the ALJ in setting the time and place 
for the hearing. Thus, we do not believe that claims will proceed 
without proper development or need additional rescheduling. We have no 
interest in using the authority in these rules in a manner that would 
result in further delay of hearings. For the majority of ALJs, these 
rules will result in no change to the way their hearings are currently 
scheduled. We will exercise our authority to schedule hearings only 
where an ALJ is not scheduling a sufficient number of hearings. 
Finally, we will monitor the success of this regulation on an agency-
wide basis to ensure that it does not produce unintended consequences, 
such as those suggested by the comments.

Other Options for Increasing Efficiency and Productivity

    Comment: As previously stated, numerous commenters offered

[[Page 39158]]

suggestions for other actions we could take that they felt would be 
more effective in meeting our goals of efficiency in scheduling 
hearings and reducing the hearing backlog. Most prevalent among these 
comments was the suggestion that additional hiring, both of support 
staff and ALJs, would be the most effective tool in reaching our 
productivity goals.
    Response: We agree that additional hiring will also help us meet 
our goal of reducing the hearings backlog. We hired a significant 
number of ALJs in FY 2008 and in FY 2009, and we plan to hire 
additional ALJs and support staff in FY 2010. However, ``merely adding 
employees, while critical to our success, will not solve all of our 
problems.'' \9\
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    \9\ www.socialsecurity.gov/legislation/testimony_111909.htm.
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Viability of Centralized Scheduling

    Comment: Many commenters expressed concern about our proposal to 
``institute nationwide centralized scheduling,'' noting that 
centralized scheduling would not take into account all variables in 
scheduling a hearing, including the availability of a claimant, or a 
claimant's representative, a hearing monitor, security personnel, and 
any necessary experts, as well as access to a hearing room.
    Response: These commenters misinterpreted our proposed rules. We 
are not instituting nationwide centralized scheduling. We recognize the 
importance of coordinating the schedules of the hearing participants, 
including the ALJ. As mentioned above, our electronic scheduling 
initiative anticipates integrating the schedules of ALJs, experts, 
claimants, claimants' representatives, and hearing recorders, and the 
availability of hearing rooms to more efficiently set hearing times and 
dates.
    Comment: Several commenters suggested that any centralized 
scheduling process, even within a hearing office, would prevent an ALJ 
from using ``creative'' measures to schedule hearings when 
circumstances change unexpectedly or at the last minute.
    Response: Nothing in these final rules is meant to curtail efforts 
by ALJs who currently schedule a sufficient number of hearings from 
maintaining that high level of production, including the use of 
measures that will allow the scheduling of additional hearings. We 
encourage those persons who schedule the hearings, whether the ALJ or 
another person in the hearing office, to avail themselves of those 
measures which allow for the most efficient scheduling of hearings.
    Comment: Several commenters expressed fear that the agency would 
not consider an ALJ's personal schedule (vacation time, significant 
personal events, illness, etc.) when it sets the time and place for the 
hearing.
    Response: We clearly state in the rules that we will consult with 
the ALJ when we set the time and place for the hearing.\10\ It would 
serve no purpose to schedule a hearing when the required ALJ is 
unavailable and would certainly not meet our goal of increasing the 
number of scheduled hearings. These final rules will not impinge on any 
employees' ability to use properly requested leave. We will continue to 
comply with all of our obligations regarding the use of leave by ALJs 
and other employees.
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    \10\ Final sections 404.936(c) and 416.1436(c).
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Implementation of These Rules

    Comment: Several commenters expressed concern over the 
practicalities of implementing these rules. Some commenters stated the 
rules did not indicate which specific persons would exercise the 
authority to set the time and place for a hearing. Other commenters 
noted that although the preamble limited application of these rules to 
ALJs with low production, the rules language itself was not so limited. 
Additional comments were concerned with the ``fairness'' of the 
scheduling of hearings and of choosing certain ALJs for application of 
these rules.
    Response: In many cases, the person who sets the time and place 
will continue to be the ALJ. In those cases where the agency sets the 
time and place for a hearing, the employee actually scheduling the 
hearing will be determined by the make-up of the hearing office, the 
particular situation leading to the exercise of this authority, and 
other factors. We anticipate that an agency management official will 
exercise this authority.
    For those ALJs who are already setting a sufficient number of 
claims for hearing, there is no need for the agency to schedule 
hearings. Our goal is to increase productivity and ensure that we meet 
the needs of the public. Productive ALJs will continue to use whatever 
scheduling method they currently use. As noted above, we will use the 
authority in this pilot to schedule hearings only for those ALJs who do 
not schedule a sufficient number of hearings. The decision to have the 
agency schedule hearings will be based solely on productivity and 
efficiency.
    As explained above, these rules clarify our procedures for 
exercising our authority to set the time and place of an ALJ's hearing. 
We will consult with the appropriate HOCALJ and the ALJ to determine if 
there are any reasons why we should not set the time and place of the 
ALJ's hearings, such as the ALJ being on leave for an extended period 
or insufficient staff support to prepare cases for hearings. If the 
HOCALJ does not state a reason that we believe justifies the limited 
number of hearings scheduled by the ALJ, we will then consult with the 
ALJ before deciding whether to begin to exercise our authority to set 
the time and place for the ALJ's hearings. If the HOCALJ states a 
reason that we believe justifies the limited number of hearings 
scheduled by the ALJ, we will not exercise our authority to set the 
time and place for the ALJ's hearings. We will work with the HOCALJ to 
identify those circumstances where we can assist the ALJ and address 
any impediment that may affect the scheduling of hearings.
    Comment: A few commenters expressed concern regarding an ALJ's 
ability to reschedule hearings. One commenter suggested that these 
rules did not allow an ALJ to postpone or reschedule a hearing once it 
had been set by the agency. Several commenters recognized the ALJ's 
continued ability to reschedule hearings, but believed that this 
ability would defeat the purpose of the rules, as an ALJ could merely 
reschedule the hearing in any claim.
    Response: We did not propose to make any changes to those portions 
of 20 CFR 404.936(a) and 416.1436(a), which address adjourning the 
hearing or reopening it to receive additional evidence, nor do we make 
any changes to those clauses in these final rules. Determining the need 
to postpone or adjourn a hearing remains within the discretion of an 
ALJ. Further, we did not propose any changes to the rules regarding the 
ALJ's authority to determine whether a claimant has good cause for 
objecting to the time or place of the hearing. We expect ALJs to act as 
ethical and responsible adjudicators. An ALJ who repeatedly and 
systematically reschedules hearings scheduled for him or her without 
reasonable cause would not meet that expectation.

Other Comments

    Comment: A few commenters suggested that we proposed these rules as 
a way of demonstrating ``discriminatory animus'' to force the 
resignation or retirement of older judges, those with poor health, or 
``women judges, who, more than men,

[[Page 39159]]

will have scheduling issues revolving around child care.''
    Response: We absolutely reject these comments. Nothing in these 
rules can be reasonably interpreted to demonstrate discriminatory 
animus. It is our policy to ensure that ``every employee enjoys a non-
hostile work environment free of discrimination or harassment of any 
kind'' and that ``[a]ll employment decisions * * * will be made 
exclusively on the basis of job-related criteria * * *.'' \11\ Nothing 
in these rules suggests we are, in any way, altering our commitment to 
a workplace free of discrimination, and, in fact, our ALJ corps has 
become significantly more diverse since we were able to hire from 
candidates certified by the Office of Personnel Management in 2008.
---------------------------------------------------------------------------

    \11\ The Social Security Administration's Policy Prohibiting 
Discrimination Against Employees and Applicants for Employment.
---------------------------------------------------------------------------

    Comment: Numerous commenters suggested that if there are ALJs who 
are not fully performing their duties, then we already have tools for 
discipline and reprimand of those ALJs without the need for changing 
our existing rules. These commenters suggested that dealing with 
certain ALJs in the broader manner of these rules decreases both morale 
and productivity.
    Response: We agree that we have the administrative authority to 
discipline ALJs who are not performing their duties, and we will 
continue to use those tools as necessary. However, our current rules, 
which state that the ALJ has the sole responsibility for setting the 
time and place for a hearing, unnecessarily impede our ability to 
schedule a sufficient number of hearings. We believe that a more 
uniform distribution of the hearing workload in each hearing office 
will result in an increase in morale, particularly for those ALJs 
already conducting a sufficient number of hearings.
    Comment: One commenter suggested we delay implementation of these 
final rules pending a report by the GAO on the number of cases 
currently awaiting hearing. The commenter stated that we should allow 
supplemental comments on the proposed rules upon receipt of the GAO 
report.
    Response: The GAO issued its report, ``Social Security Disability: 
Additional Performance Measures and Better Cost Estimates Could Help 
Improve SSA's Efforts to Eliminate Its Hearings Backlog,'' in September 
2009. We agreed with the GAO's conclusion that ALJ productivity is a 
critical factor in meeting our goal of eliminating the hearing backlog. 
We are well aware of the critical nature of the backlog of pending 
hearings and do not believe that any further delay before implementing 
these rules is warranted.

How long will these final rules be effective?

    These final rules will no longer be effective 3 years after the 
date on which they become effective, unless we terminate them earlier 
or extend them beyond that date by notice of a final rule in the 
Federal Register.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these rules meet the criteria for a significant 
regulatory action under Executive Order 12866. Thus, they were subject 
to OMB review.
    The Office of the Chief Actuary estimates that these final rules 
will increase the program costs of the OASDI and SSI programs by $20 
million. This revised estimate is significantly lower than the $1,225 
billion estimate in the NPRM. The revised estimate is based on the 3-
year pilot program and a new assumption that the scheduling revision 
would be much more limited and only used in rare circumstances.
    We assumed the change would result in scheduling for only one ALJ 
in FY 2011 plus one additional ALJ each year thereafter. This 
assumption would result in an annual increase of 50 decisions for each 
ALJ in that year and subsequent years. Thus, in 2013 there would be 150 
extra decisions. We assume that the total number of decisions will 
continue beyond the expiration of the 3-year pilot program, but that 
the effects decline gradually over the 2014-20 period. The initial 
projection assumed about 1,000 additional ALJ dispositions in 2010 
rising to about 10,000 additional dispositions in 2015 and later.
    The table below presents our estimates of the increases in OASDI 
benefit payments and Federal SSI payments during the 3-year pilot 
program over the fiscal year period 2011-20 resulting from the 
increases in ALJ dispositions assumed to occur as a result of the rules 
changes. The estimates are consistent with the assumptions underlying 
the President's FY 2011 Budget, and they assume that the final rules 
will be effective on October 1, 2010.

 Table 1--Estimated Increases in OASDI Benefits and Federal SSI Payments
                              [In millions]
------------------------------------------------------------------------
               Fiscal year (FY)                 OASDI     SSI     Total
------------------------------------------------------------------------
2011.........................................       $1        *       $1
2012.........................................        1        *        2
2013.........................................        2       $1        2
2014.........................................        2        1        2
2015.........................................        2        *        2
2016.........................................        2        *        2
2017.........................................        2        *        2
2018.........................................        2        *        2
2019.........................................        2        *        2
2020.........................................        1        *        2
                                              --------------------------
Totals:
  2011-15....................................        8        2       10
  2011-20....................................       16        4       20
------------------------------------------------------------------------
* Increase of less than $500,000.
Notes: 1. (Totals may not equal the sum of components due to rounding.)
2. SSI payments due on October 1st in FY 2012, 2017 and 2018 are
  included in payments for the prior FY.

Regulatory Flexibility Act

    We certify that these final rules would not have a significant 
economic impact on a substantial number of small entities as they 
affect individuals only. Therefore, a regulatory flexibility analysis 
as provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These rules does not create any new, or affect any existing, 
collections and, therefore, does not require OMB approval under the 
Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program No 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Old-age, Survivors, and Disability Insurance, Reporting and 
recordkeeping requirements, Social Security.

20 CFR Part 416

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

Michael J. Astrue,
Commissioner of Social Security.

0
For the reasons set out in the preamble, we are amending subpart J of

[[Page 39160]]

part 404 and subpart N of part 416 of chapter III of title 20 of the 
Code of Federal Regulations as set forth below:

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

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.  404.932, revise the second sentence of paragraph (b) to 
read as follows:


Sec.  404.932  Parties to a hearing before an administrative law judge.

* * * * *
    (b) * * * In addition, any other person may be made a party to the 
hearing if his or her rights may be adversely affected by the decision, 
and we notify the person to appear at the hearing or to present 
evidence supporting his or her interest.

0
3. In Sec.  404.936, revise the first and second sentences of paragraph 
(a), paragraphs (c) and (d), and the introductory text of paragraph 
(e), and add paragraphs (g) and (h), to read as follows:


Sec.  404.936  Time and place for a hearing before an administrative 
law judge.

    (a) General. We may set the time and place for any hearing. We may 
change the time and place, if it is necessary. * * *
* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consult with the administrative law 
judge in order to determine the status of case preparation and to 
determine whether your appearance or that of any other party who is to 
appear at the hearing will be made in person or by video 
teleconferencing. The administrative law judge will determine that the 
appearance of a person be conducted by video teleconferencing if video 
teleconferencing technology is available to conduct the appearance, use 
of video teleconferencing to conduct the appearance would be more 
efficient than conducting the appearance in person, and the 
administrative law judge determines that there is no circumstance in 
the particular case that prevents the use of video teleconferencing to 
conduct the appearance. Section 404.950 sets forth procedures under 
which parties to the hearing and witnesses appear and present evidence 
at hearings.
    (d) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify us at the earliest 
possible opportunity before the time set for the hearing. You must 
state the reason for your objection and state the time and place you 
want the hearing to be held. If at all possible, the request should be 
in writing. We will change the time or place of the hearing if the 
administrative law judge finds you have good cause, as determined under 
paragraphs (e) and (f) of this section. Section 404.938 provides 
procedures we will follow when you do not respond to a notice of 
hearing.
    (e) Good cause for changing the time or place. If you have been 
scheduled to appear for your hearing by video teleconferencing and you 
notify us as provided in paragraph (d) of this section that you object 
to appearing in that way, the administrative law judge will find your 
wish not to appear by video teleconferencing to be a good reason for 
changing the time or place of your scheduled hearing and we will 
reschedule your hearing for a time and place at which you may make your 
appearance before the administrative law judge in person. The 
administrative law judge will also find good cause for changing the 
time or place of your scheduled hearing, and we will reschedule your 
hearing, if your reason is one of the following circumstances and is 
supported by the evidence:
* * * * *
    (g) Consultation procedures. Before we exercise the authority to 
set the time and place for an administrative law judge's hearings, we 
will consult with the appropriate hearing office chief administrative 
law judge to determine if there are any reasons why we should not set 
the time and place of the administrative law judge's hearings. If the 
hearing office chief administrative law judge does not state a reason 
that we believe justifies the limited number of hearings scheduled by 
the administrative law judge, we will then consult with the 
administrative law judge before deciding whether to begin to exercise 
our authority to set the time and place for the administrative law 
judge's hearings. If the hearing office chief administrative law judge 
states a reason that we believe justifies the limited number of 
hearings scheduled by the administrative law judge, we will not 
exercise our authority to set the time and place for the administrative 
law judge's hearings. We will work with the hearing office chief 
administrative law judge to identify those circumstances where we can 
assist the administrative law judge and address any impediment that may 
affect the scheduling of hearings.
    (h) Pilot program. The provisions of the first and second sentences 
of paragraph (a), the first sentence of paragraph (c), and paragraph 
(g) of this section are a pilot program. These provisions will no 
longer be effective on August 9, 2013, unless we terminate them earlier 
or extend them beyond that date by notice of a final rule in the 
Federal Register.

0
4. In Sec.  404.938, revise the first sentence of paragraph (a) 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. * * *
* * * * *

0
5. In Sec.  404.950, revise the third sentence of paragraph (b) to read 
as follows:


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

* * * * *
    (b) * * * Even if all of the parties waive their right to appear at 
a hearing, we may notify them of a time and a place for an oral 
hearing, if the administrative law judge believes that a personal 
appearance and testimony by you or any other party is necessary to 
decide the case.
* * * * *

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

Subpart N--[Amended]

0
6. 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
7. In Sec.  416.1432, revise the second sentence of paragraph (b) to 
read as follows:


Sec.  416.1432  Parties to a hearing before an administrative law 
judge.

* * * * *
    (b) * * * In addition, any other person may be made a party to the 
hearing if his or her rights may be

[[Page 39161]]

adversely affected by the decision, and we notify the person to appear 
at the hearing or to present evidence supporting his or her interest.

0
8. In Sec.  416.1436, revise the first and second sentences of 
paragraph (a), paragraphs (c) and (d), and the introductory text of 
paragraph (e), and add paragraphs (g) and (h), to read as follows:


Sec.  416.1436  Time and place for a hearing before an administrative 
law judge.

    (a) General. We may set the time and place for any hearing. We may 
change the time and place, if it is necessary. * * *
* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consult with the administrative law 
judge in order to determine the status of case preparation and to 
determine whether your appearance or that of any other party who is to 
appear at the hearing will be made in person or by video 
teleconferencing. The administrative law judge will determine that the 
appearance of a person be conducted by video teleconferencing if video 
teleconferencing technology is available to conduct the appearance, use 
of video teleconferencing to conduct the appearance would be more 
efficient than conducting the appearance in person, and the 
administrative law judge determines that there is no circumstance in 
the particular case that prevents the use of video teleconferencing to 
conduct the appearance. Section 416.1450 sets forth procedures under 
which parties to the hearing and witnesses appear and present evidence 
at hearings.
    (d) Objecting to the time or place of the hearing. If you object to 
the time or place of your hearing, you must notify us at the earliest 
possible opportunity before the time set for the hearing. You must 
state the reason for your objection and state the time and place you 
want the hearing to be held. If at all possible, the request should be 
in writing. We will change the time or place of the hearing if the 
administrative law judge finds you have good cause, as determined under 
paragraphs (e) and (f) of this section. Section 416.1438 provides 
procedures we will follow when you do not respond to a notice of 
hearing.
    (e) Good cause for changing the time or place. If you have been 
scheduled to appear for your hearing by video teleconferencing and you 
notify us as provided in paragraph (d) of this section that you object 
to appearing in that way, the administrative law judge will find your 
wish not to appear by video teleconferencing to be a good reason for 
changing the time or place of your scheduled hearing and we will 
reschedule your hearing for a time and place at which you may make your 
appearance before the administrative law judge in person. The 
administrative law judge will also find good cause for changing the 
time or place of your scheduled hearing, and we will reschedule your 
hearing, if your reason is one of the following circumstances and is 
supported by the evidence:
* * * * *
    (g) Consultation procedures. Before we exercise the authority to 
set the time and place for an administrative law judge's hearings, we 
will consult with the appropriate hearing office chief administrative 
law judge to determine if there are any reasons why we should not set 
the time and place of the administrative law judge's hearings. If the 
hearing office chief administrative law judge does not state a reason 
that we believe justifies the limited number of hearings scheduled by 
the administrative law judge, we will then consult with the 
administrative law judge before deciding whether to begin to exercise 
our authority to set the time and place for the administrative law 
judge's hearings. If the hearing office chief administrative law judge 
states a reason that we believe justifies the limited number of 
hearings scheduled by the administrative law judge, we will not 
exercise our authority to set the time and place for the administrative 
law judge's hearings. We will work with the hearing office chief 
administrative law judge to identify those circumstances where we can 
assist the administrative law judge and address any impediment that may 
affect the scheduling of hearings.
    (h) Pilot program. The provisions of the first and second sentences 
of paragraph (a), the first sentence of paragraph (c), and paragraph 
(g) of this section are a pilot program. These provisions will no 
longer be effective on August 9, 2013, unless we terminate them earlier 
or extend them beyond that date by notice of a final rule in the 
Federal Register.

0
9. In Sec.  416.1438, revise the first sentence of paragraph (a) 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. * * *
* * * * *

0
10. In Sec.  416.1450, revise the third sentence of paragraph (b) to 
read as follows:


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

* * * * *
    (b) * * * Even if all of the parties waive their right to appear at 
a hearing, we may notify them of a time and a place for an oral 
hearing, if the administrative law judge believes that a personal 
appearance and testimony by you or any other party is necessary to 
decide the case.
* * * * *

[FR Doc. 2010-16549 Filed 7-7-10; 8:45 am]
BILLING CODE 4191-02-P