Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 45079-45087 [2016-16265]

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[Docket No. SSA–2014–0052] FOR FURTHER INFORMATION CONTACT: Maren Weight, Office of Appellate RIN 0960–AH71 Operations, Social Security Administration, 5107 Leesburg Pike, Ensuring Program Uniformity at the Hearing and Appeals Council Levels of Falls Church, VA 22041, (703) 605– 7100. For information on eligibility or the Administrative Review Process filing for benefits, call our national tollAGENCY: Social Security Administration. free number, 1–800–772–1213 or TTY ACTION: Notice of proposed rulemaking 1–800–325–0778, or visit our Internet (NPRM). site, Social Security Online, at http:// www.socialsecurity.gov. SUMMARY: We propose to revise our rules so that more of our procedures at SUPPLEMENTARY INFORMATION: We the administrative law judge (ALJ) and propose revisions to: Appeals Council levels of our (1) The time-frame for notifying administrative review process are claimants of a hearing date; consistent nationwide. We anticipate (2) the information in our hearing that these nationally consistent notices; (3) the period when we require procedures will enable us to administer our disability programs more efficiently claimants to inform us about or submit and better serve the public. written evidence, written statements, VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 DATES: PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 45079 objections to the issues, and subpoena requests; (4) what constitutes the official record; and (5) the manner in which the Appeals Council considers additional evidence. Background Over the last few years, we have revised many of our regulations to bolster program integrity and clarify our policy, procedures, and expectations. For example, on June 25, 2014, we made changes to when a claimant must object to appearing at a hearing by video teleconferencing.1 As another example, we published a final rule on March 20, 2015, that clarified a claimant’s duty to inform us about or submit all evidence that relates to whether or not he or she is blind or disabled, subject to two exceptions for privileged communications.2 We made these and other changes specifically to strengthen the integrity of our programs. As we explained in the final rule on March 20, 2015, ‘‘we believe program integrity requires us to obtain complete medical evidence (favorable or unfavorable) in disability claims.’’ 3 Although that statement refers to medical evidence, we reiterate in this proposed rule that a complete evidentiary record is necessary for us to make an informed and accurate disability determination or decision, and bolsters program integrity by improving consistency in the adjudication of claims at all levels of the administrative review process. As we look ahead, we continue to evaluate our regulatory and sub-regulatory policies to assess where we can make changes to improve accuracy and efficiency in our administrative review processes. To that end, we are now proposing the changes outlined below. As we discuss in detail below, we have now had time to implement helpful systems changes and review a study performed by the Administrative Conference of the United States (ACUS), in which ACUS evaluated available data and considered various internal and external stakeholder opinions about the impact of our Part 405 rules.4 We are 1 79 FR 35926. 80 FR 14828, 20 CFR 404.1512, 416.912. 3 80 FR at 14833. 4 See Report from Office of the Chairman of the Administrative Conference of the United States, SSA Disability Benefits Adjudication Process: Assessing the Impact of the Region 1 Pilot Program (Dec. 23, 2013) (‘‘ACUS Report’’), available at http://acus.gov/sites/default/files/documents/ Assessing%20Impact%20of%20Region%20 I%20Pilot%20Program%20Report_12_23_13_ final.pdf. For the specific data reviewed and opinions collected by ACUS, see Appendix to SSA 2 See E:\FR\FM\12JYP1.SGM Continued 12JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 45080 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules also facing an unprecedented challenge in the workloads pending at our Office of Disability Adjudication and Review (ODAR). With more than a million people currently waiting for a hearing decision, we cannot afford to continue postponing hearing proceedings because the record is not complete at the time of the hearing. Facing this unprecedented workload challenge requires that we consider all options to ensure we have a complete evidentiary record, provide timely and accurate service, and improve how we perform all administrative tasks. We expect these proposed changes will help us accomplish all three objectives. More specifically, in the last decade, we have made significant progress in modernizing our business processes for hearings-level cases and enhancing our use of technology. For example, we now process most disability claims electronically, which allows us to transfer workloads around the country more easily. In addition, we have established five National Hearing Centers (NHC) that process only electronic cases and conduct all hearings via video teleconferencing. The NHCs assist hearing offices that have larger workloads and longer wait times for hearings. Our ability to transfer cases electronically out of a region to an NHC, or to another hearing office with a smaller workload, allows us to serve claimants more efficiently. As we have increased our use of electronic case files, we also had an opportunity to re-evaluate how we receive and process evidence. Previously, claimants and representatives would mail, fax, or hand-deliver evidence to us, and we would enter the evidence into the case file manually. While these options remain available, improvements in technology now permit claimants and representatives to submit evidence through our Electronic Records Express (ERE) system, which uploads evidence directly into the claimant’s electronic case file. Many representatives have also registered to use the Appointed Representative Suite of Services (ARS), which allows them to remotely view the claimant’s electronic case file online and verify in real time that we received evidence. Representatives who access the case file through ARS can also view Disability Benefits Adjudication Process: Assessing the Impact of the Region I Pilot Program (Dec. 23, 2013) (‘‘ACUS Report Appendix’’), available at https://www.acus.gov/sites/default/files/ documents/Appendix%20to%20Assessing%20 Impact%20of%20Region%20I%20Pilot%20 Program%20Report_12_23_13_final.pdf. VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 all of the other evidence in the file to verify that the record is complete.5 We are also improving how we receive electronic evidence from medical providers. Our Health Information Technology (HIT) program allows us to request and receive a claimant’s medical records through an electronic submission. Although we currently use HIT in only a small number of cases, we anticipate that we will expand the HIT program and make use of other technological advances that will make it easier and faster for us to obtain medical records. We expect these enhancements in how we receive evidence will improve our efficiency and ensure consistency in processing claims at the hearings and Appeals Council levels of our administrative review process. Our progress in the areas discussed above can be undermined if our rules are not nationally consistent. At the beginning of 2006, the hearings and Appeals Council levels of our administrative review process generally operated under nationally consistent rules, set forth in 20 CFR parts 404 and 416. However, on March 31, 2006, we published a final rule that implemented a number of changes to our disability determination process.6 These changes, which we referred to collectively as the Disability Service Improvement (DSI) process, were primarily set forth in Part 405 of our regulations. As we explained in the preamble to our final rule, we selected Boston 7 as the first region to implement the DSI process. Over the last decade, we have revised or rescinded many portions of the Part 405 regulations.8 However, certain aspects of DSI processing remain at the hearings and Appeals Council levels. For example, our current Part 405 rules require us to provide claimants with notice of their hearings at least 75 days in advance of the hearing.9 By contrast, our current Part 404 and Part 416 rules require us to provide claimants with notice of their hearings at least 20 days in advance of the hearing.10 In addition, under Part 405, claimants are required to submit any written evidence no later than 5 business days before the date of the 5 Effective August 16, 2016, representatives who request direct payment of a fee in a case are generally required to access a case file through ARS. See 81 FR 22697 (2016). 6 See 71 FR 16424. 7 The Boston region consists of the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. 8 See 73 FR 2411, corrected at 73 FR 10381, and 76 FR 24802. 9 20 CFR 405.315(a). 10 20 CFR 404.938(a), 416.1438(a) PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 scheduled hearing, with a few exceptions.11 Conversely, under Parts 404 and 416, claimants can submit evidence up to and on the date of the hearing, or even after a hearing.12 Additionally, Part 405 contains other processing differences, including the time limit of at least 10 days prior to the hearing to submit subpoena requests versus Parts 404 and 416, which contains a time limit of 5 days prior to the hearing to submit subpoena requests. Lastly, Part 405 requires the submission of objections to the issues at the hearing 5 days prior to the hearing versus Parts 404 and 416, which requires the submission of objections at the earliest possible opportunity.13 There is also a difference in claims processing at the Appeals Council level due to the Part 405 rules, especially those that address when the Appeals Council considers additional evidence. Under Parts 404 and 416, the Appeals Council will consider new and material evidence only when it relates to the period on or before the date of the ALJ hearing decision. The Appeals Council will evaluate the entire record, including any new and material evidence that relates to the period on or before the date of the ALJ hearing decision. It will then review the case if it finds that the ALJ’s action, findings, or conclusion is contrary to the weight of the evidence currently of record.14 However, under Part 405, the Appeals Council will consider additional evidence only where it relates to the period on or before the date of the ALJ hearing decision, and only if the claimant shows that there is a reasonable probability that the evidence, alone or when considered with other evidence of record, would change the outcome of the decision; and: (1) Our action misled the claimant; (2) he or she had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence 11 20 CFR 405.331(a). regulations provide that ‘‘[y]ou should submit information or evidence . . . or any summary of the evidence to the administrative law judge with the request for hearing or within 10 days after filing the request, if possible.’’ 20 CFR 404.935, 416.1335. However, as noted in our subregulatory instructions, we accept additional evidence that a claimant submits at or after a hearing, until we issue a hearing decision. See, e.g., Hearings, Appeals, and Litigation Law manual (HALLEX) I– 2–6–58 (available at https://www.ssa.gov/OP_ Home/hallex/I-02/I-2-6-58.html) and I–2–7–20 (available at https://www.ssa.gov/OP_Home/hallex/ I-02/I-2-7-20.html). The circumstances in which the Appeals Council will consider additional evidence are set forth in 20 CFR 404.976(b) and 416.1476(b). 13 Cf. 20 CFR 404.950(d)(2), 416.1450(d)(2) with 20 CFR 405.332 (subpoenas); 20 CFR 404.939, 416.1439 with 20 CFR 405.317(c) (objections to the issues). 14 20 CFR 404.970(b), 416.1470(b). 12 Our E:\FR\FM\12JYP1.SGM 12JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond his or her control prevented him or her from submitting the evidence earlier.15 We have always intended to implement nationally consistent rules after we had sufficient time to evaluate the effectiveness of DSI processing. To assist us in evaluating these issues, we asked ACUS to review the impact of our Part 405 regulations at the hearings and Appeals Council levels. Ultimately, in its final report, ACUS deferred to us regarding whether to implement the Part 405 regulations nationwide.16 However, ACUS suggested a variety of guiding principles and other observations for us to consider in making a decision regarding national uniformity. For example, ACUS suggested that we: (1) Strive to attain an appropriate balance between claimant and agency interests as we pursue our goal of making the right disability decision as early in the process as possible; (2) strive for consistency in the administration of a national program; (3) collect and assess more data about the DSI program; and (4) if pursued, clarify the guidance to ALJs and claimants about application of the DSI program. ACUS also observed that if we pursued regulatory changes similar to DSI, it would be important to retain appropriate good cause exceptions for the late submission of evidence. After considering ACUS’s suggestions, we first provided additional training to ODAR adjudicators and staff regarding the 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 continue to update sub-regulatory policy to include references and instructions on how to process cases under Part 405. As recommended by ACUS, we made these changes to promote consistent adjudication of Part 405 in the Boston region. We then carefully considered ACUS’s findings on how we receive evidence under Part 405. In its report, ACUS explained that it performed a comparative empirical analysis of data that we provided,17 and its findings, while not definitive, appeared to show that the Part 405 rules made modest 15 20 CFR 405.401(c). ACUS Report at 91. 17 For specific information about the data reviewed by ACUS, see ACUS Report Appendix. 16 See VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 strides towards achieving our goal of improving the efficiency, accuracy, and timeliness of our disability adjudication process. While declining to draw definitive conclusions from its data analysis, ACUS highlighted several findings, including the following: (1) Under Part 405, there was less likelihood that adjudicators would determine the record needed additional evidence and request a consultative examination; (2) there were lower average processing times in the Boston region than other comparable regions, and the Boston region’s average processing times did not exhibit the same comparative decline in average processing times found in other regions; and (3) the Boston region had the lowest pending disposition ratio, which suggests enhanced case efficiencies. We note that several of ACUS’s findings, based on the available data through 2012, are consistent with our experience. For example, ACUS stated that the ‘‘average time intervals between issuance of hearing notices and hearings have been rising steadily at both regional and national levels in recent years.’’ 18 While Parts 404 and 416 require that we provide notice to a claimant of a scheduled hearing at least 20 days before the hearing,19 and Part 405 requires that we provide notice to a claimant of a scheduled hearing at least 75 days before the hearing,20 it has been our experience that for several years nationwide, most claimants received more advance notice of a hearing than the regulations require. Specifically, the Boston region appears to be scheduling hearings and notifying claimants approximately 90 days before the hearing while other regions are providing notice more than 60 days before the hearing.21 Additionally, we have also observed that, nationally, cases in which we sent notices approximately 60 days prior to the date of the hearing seem to have a reduced or the same likelihood of a postponed hearing as those scheduled with less ACUS Report at 30. CFR 404.938(a), 416.1438(a). 20 20 CFR 405.316(a). 21 At the hearing level, we use the Case Processing and Management System (CPMS) to manage our workloads. From the information available in CPMS, we reviewed the number days between the date of the notice of hearing and the date of a scheduled hearing to assess whether these trends appear to continue. In the Boston region, CPMS shows the mean number of days between these dates to be 79.7 (2013), 88.5 (2014), and 90.3 (2015). The median number of days was 82.0 (2013), 89.0 (2014), and 90.0 (2015). Nationwide, CPMS shows the mean number of days was 64.3 (2013), 64.8 (2014), and 69.9 (2015). The median number of days was 60.0 (2013), 62.0 (2014), and 68.0 (2015). Though not yet complete, the numbers in 2016 appear to be consistent with these trends. PO 00000 18 See 19 20 Frm 00012 Fmt 4702 Sfmt 4702 45081 notice of the hearing.22 In addition to our experience, we also considered ACUS’s finding that there was strong support from stakeholders, both inside and outside of the agency, for increasing the amount of advance notice a claimant receives before a hearing. We considered proposing to adopt a 75-day advance notice requirement nationwide. However, the information available to us indicates that there may be a higher incidence of postponements when we give claimants 75 days or more advance notice of a hearing due to the unavailability of the appointed representative or adjudicator on the date of the scheduled hearing.23 In contrast, we have observed that most hearing offices already schedule hearings 60 days in advance, and a 60-day advance notice period appears to have the same or a reduced incidence of postponements when compared to notice periods less than 60 days.24 Therefore, based on the available data, we propose a 60-day notice requirement as the most administratively efficient. Further, because we are already scheduling most hearings nationwide at least 60 days in advance, we do not expect that adopting this requirement would have an adverse impact on the public or on our operations. As noted by ACUS, the public seems to support increasing the number of days for advance notice of a hearing because, among other reasons, it will provide more time to obtain updated medical records before the date of the hearing. Therefore, we propose to require that, nationwide, we notify claimants of a 22 After reviewing the information available in CPMS, we observed the following: In 2013, we postponed 26.1% of cases scheduled 25–49 days in advance, 26.4% of cases scheduled 50–74 days in advance, and 29.2% of cases scheduled 75–99 days in advance. In 2014, we postponed 28.3% of cases scheduled 25–49 days in advance, 27.3% of cases scheduled 50–74 days in advance, and 29.3% of cases scheduled 75–99 days in advance. In 2015, we postponed 28.1% of cases scheduled 25–49 days in advance, 26.8% of cases scheduled 50–74 days in advance, and 28.0% of cases scheduled 75–99 days in advance. We also note that our analysis showed that cases scheduled less than 25 days in advance had the highest rate of postponement. 23 After reviewing the information available in CPMS for 2014–2016, we observed the following: In 2014 in the Boston region, hearings with at least one postponement were postponed 5.36% of the time due to a representative’s unavailability and 8.07% of the time due to the unavailability of the decision maker. Nationally, the postponement rate for a representative’s unavailability was 4.17% and a decision maker’s unavailability was 5.91%. In 2015, the postponement rate in Boston for a representative’s unavailability was 6.00% and a decision maker’s unavailability was 8.02%. Nationally, the postponement rate for a representative’s unavailability was 3.92% and a decision maker’s unavailability was 6.76%. These trends appear to continue in 2016. 24 See information in footnote 22. E:\FR\FM\12JYP1.SGM 12JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 45082 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules scheduled hearing at least 60 days prior to the date of the hearing. The highlights of ACUS’s empirical analysis and our own experience also support adopting nationwide rules similar to the existing Part 405 rules that govern how we receive evidence in the Boston region. For example, our experience is that under Parts 404 and 416, some hearings are postponed or require supplemental proceedings due to late submission of evidence. We anticipate that our final rule on the ‘‘Submission of Evidence in Disability Claims,’’ 25 discussed earlier, will decrease the number of Appeals Council remands based on additional evidence. However, our experience has shown, and we expect to continue to see, that the Appeals Council will need to remand some cases due to new evidence. The need to postpone and reschedule cases, along with Appeals Council remands based on new evidence that was available at the time of the hearing decision, costs us valuable resources and delays the adjudication of all claims at the hearings and Appeals Council levels. In its report, ACUS also identified several concerns raised by stakeholders both inside and outside the agency with implementing Part 405 nationwide. For example, ACUS explained that both ALJs and claimants’ representative groups agree that two of the most challenging obstacles to timely submission of evidence are: (1) Delays in receipt of evidence from medical providers, and (2) delays in receipt of evidence from the claimant. As previously discussed, we propose changing our rules so that we provide claimants with additional time to inform us about or to obtain and submit written evidence. In doing so, we will also change our notices to ensure claimants are advised of the additional time. To address concerns about delays in receiving evidence from medical providers, we propose to retain the current good cause exceptions used in Part 405. We also propose to add examples, including that we will accept evidence submitted less than 5 business days prior to the hearing if a claimant shows that he or she actively and diligently sought to obtain the evidence promptly, but could not do so. Based in part on ACUS’s evaluation of the good cause exceptions to the Part 405 rule that requires claimants to submit evidence at least 5 business days before a hearing, we propose to clarify when other unusual, unexpected, or unavoidable circumstances beyond the claimant’s control prevent earlier 25 80 FR 14828. VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 identification of or submission of evidence. To accomplish this, we have added examples to illustrate when a claimant meets a good cause exception, such as when a claimant is seriously ill or when evidence is not received until less than 5 business days before the hearing, despite the claimant’s active and diligent efforts to obtain the evidence earlier. These examples are not intended to be exhaustive or to illustrate every possible situation, but to illustrate the sorts of situations most likely to arise. In addition to adding examples regarding the good cause requirements, we also explain that, when reviewing claims that are not based on an application for benefits, the requirement to submit evidence at least 5 business days before a hearing does not apply if our other regulations permit the submission of evidence after the date of an ALJ decision. For example, under current section 416.1476(b)(2) (proposed section 416.1470(b)), in reviewing decisions other than those based on an application for benefits, the Appeals Council will consider evidence in the hearing record and any additional evidence it believes is material to an issue being considered. Supplemental Security Income (SSI) cases under title XVI of the Act that are not based on an application for benefits are excepted from the general rules that limit the Appeals Council’s consideration of additional evidence based on the individual’s right to reestablish his or her eligibility for title XVI payments during the course of an appeal without filing a new application.26 Therefore, we added an exception to address this and similar situations where other regulations may permit the submission of evidence in claims that are not based on an application for benefits. To ensure national consistency in our policy and procedures, we also propose requiring claimants to file written statements about the case, or any objections to the issues, at least 5 business days prior to a scheduled hearing. We further propose to require a claimant to submit subpoena requests at least 10 business days prior to a scheduled hearing. For consistency with these proposed changes, we also propose changes to our regulations to explain what constitutes the official record. 26 See 20 CFR 416.305(b)(5) (providing that an individual need not file a new SSI application if he or she is notified that his or her payments will be stopped because he or she is no longer eligible and he or she again meets the requirements for eligibility before his or her appeal rights are exhausted). PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 Our proposal that generally requires claimants to submit written evidence at least 5 business days before a hearing also requires that we propose revisions to how the Appeals Council will handle additional evidence it receives on appeal. Under the proposed rule, the Appeals Council would generally consider additional evidence only if it is new and material and relates to the period on or before the date of the hearing decision, and only if the claimant shows that he or she did not submit the evidence at the hearing level because: (1) Our action misled him or her; (2) he or she had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from informing us about or submitting the evidence earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond his or her control prevented him or her from informing us about or submitting the evidence earlier. If these requirements are satisfied, the Appeals Council would grant review if there is a reasonable probability that the evidence, alone or considered with the evidence of record, would change the outcome of the hearing level decision. For additional evidence that does not relate to the period on or before the ALJ decision, the Appeals Council would continue to notify the claimant that because of the new evidence, if he or she files a new application within a specified timeframe, the date of the claimant’s request for review would constitute a written statement indicating an intent to claim benefits. This means that we would use the date of the claimant’s request for Appeals Council review as the filing date for the new application, which we call a protective filing date. In addition to retaining this current practice, the Appeals Council would also provide a claimant with a protective filing date when it finds he or she did not have good cause for not submitting the evidence at the hearing level at least 5 business days before the hearing. Additionally, we also propose to clarify that the Appeals Council may conduct hearing proceedings to obtain additional evidence when needed. In addition to creating greater uniformity in our procedures, we expect these changes will improve our ability to manage our workloads. Most importantly, we expect these changes to allow us to adjudicate cases and process workloads more efficiently and consistently, leading to better public service overall. Because these proposed changes would bring the vast majority of Part 405 procedures in line with the procedures in Parts 404 and 416, we also propose to remove Part 405 in its E:\FR\FM\12JYP1.SGM 12JYP1 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules entirety. In doing so, we acknowledge there are several sections in Part 405 that include minor language or substantive variances from Part 404 and Part 416 that we did not address above. For example, the requirements for showing good cause to extend a filing deadline are different under Part 405 from the ones we propose here. We intend that, other than the changes we propose in this NPRM, we are not proposing to adopt any of the other variances currently in Part 405. Clarity of These Proposed Rules Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this proposed rule, we invite your comments on how to make it easier to understand. For example: • Would more, but shorter, sections be better? • Are the requirements in the rule clearly stated? • Have we organized the material to suit your needs? • Could we improve clarity by adding tables, lists, or diagrams? • What else could we do to make the rule easier to understand? • Does the rule contain technical language or jargon that is not clear? • Would a different format make the rule easier to understand, e.g., grouping and order of sections, use of headings, paragraphing? Regulatory Procedures mstockstill on DSK3G9T082PROD with PROPOSALS Executive Order 12866, as Supplemented by Executive Order 13563 We consulted with the Office of Management and Budget (OMB) and determined that this proposed 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 proposed 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 proposed rules contain reporting requirements in the regulation sections §§ 404.929, 404.935, 404.939, 404.949, 404.950(2), 404.968, 416.1429, 416.1435, 416.1439, 416.1449, 416.1450 and 416.1468 that require OMB VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 clearance under the Paperwork Reduction Act of 1995 (PRA). For sections 404.929, 404.949, 404.950(2), 416.1429, 416.1449, 416.1450(2) of these rules, we previously accounted for the public reporting burdens in the Information Collection Requests for OMB Numbers 0960–0269 and 0960– 0710, which the public use to submit the information to SSA. Consequently, we are not reporting these sections. SSA will solicit public comment and will submit separate information collection requests to OMB in the future for regulations sections §§ 404.935, 404.939, 404.968, 416.1435, 416.1439, and 416.1468 as they require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). 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). Dated: May 31, 2016. Carolyn W. Colvin, Acting Commissioner of Social Security. For the reasons set out in the preamble, we propose to 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] 1. The authority citation for subpart J of part 404 continues to read as follows: ■ PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 45083 Authority: Secs. 201(j), 204(f), 205(a)–(b), (d)–(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)–(b), (d)–(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97–455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)– (e), and 15, Pub. L. 98–460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note). 2. In § 404.900, revise the second sentence of paragraph (b) to read as follows: ■ § 404.900 Introduction. * * * * * (b) * * * Subject to the limitations on Appeals Council consideration of additional evidence (see § 404.970(b)), we will consider at each step of the review process any information you present as well as all the information in our records.* * * ■ 3. In § 404.929, revise the fifth sentence to read as follows: § 404.929 Hearing before an administrative law judge-general. * * * Subject to the provisions of § 404.935, you may submit new evidence, examine the evidence used in making the determination or decision under review, and present and question witnesses.* * * ■ 4. Revise § 404.935 to read as follows: § 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 § 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 § 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 § 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 show that 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 E:\FR\FM\12JYP1.SGM 12JYP1 45084 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. For example, the administrative law judge will accept the evidence if you show that: (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, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing. ■ 5. In § 404.938, revise paragraphs (a) and (b) to read as follows: mstockstill on DSK3G9T082PROD with PROPOSALS § 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 60 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 § 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 § 404.935(b); and VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 (7) Any other information about the scheduling and conduct of your hearing. * * * * * ■ 6. Revise § 404.939 to read as follows: § 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. 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. ■ 7. Revise § 404.944 to read as follows: § 404.944 Administrative law judge hearing procedures—general. (a) 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 § 404.935: (1) Accepts as evidence any documents that are material to the issues; (2) 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 (3) 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. (b) The administrative law judge may decide when the evidence will be presented and when the issues will be discussed. ■ 8. Revise § 404.949 to read as follows: § 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. 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. ■ 9. In § 404.950, revise paragraphs (c) and (d) to read as follows: § 404.950 Presenting evidence at a hearing before an administrative law judge. * * * * * (c) Admissible evidence. Subject to the provisions of § 404.935, the administrative law judge may receive any evidence at the hearing that he or she believes is material to the issues, PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 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. 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. * * * * * ■ 10. Revise § 404.951 to read as follows: § 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 E:\FR\FM\12JYP1.SGM 12JYP1 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules judge admits into the record under §§ 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. ■ 11. In § 404.968, revise the second sentence of paragraph (a) introductory text to read as follows: § 404.968 review. How to request Appeals Council (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 § 404.970(b). * * * * * * * * ■ 12. Revise § 404.970 to read as follows: mstockstill on DSK3G9T082PROD with PROPOSALS § 404.970 review. Cases the Appeals Council will (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) The Appeals Council receives additional evidence that meets the requirements in paragraph (b) of this section, and there is a reasonable probability that the additional evidence, alone or considered with the evidence of record, would change the outcome of the decision. (b) Under paragraph (a)(5) of this section, the Appeals Council will only consider additional evidence if you show that it is new and material and relates to the period on or before the date of the hearing decision, and you did not inform us about or submit the evidence by the deadline described in § 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 VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 evidence earlier. Examples of circumstances that, if documented, the Appeals Council may consider accepting the evidence include, but are not limited to, the following: (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, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing. (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 (b) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 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 § 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. (d) If the Appeals Council needs additional evidence, it may remand the case to an administrative law judge to receive evidence and issue a new decision. However, if the Appeals Council decides that it can obtain the evidence more quickly, it may do so, unless it will adversely affect your rights. In some cases, the Appeals Council may obtain this evidence by conducting additional hearing proceedings. ■ 13. Revise § 404.976 to read as follows: § 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 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 45085 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. PART 405—[REMOVED AND RESERVED] 14. 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. ■ PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 15. 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). 16. In § 416.1400, revise the second sentence of paragraph (b) to read as follows: ■ § 416.1400 Introduction. * * * * * (b) * * * Subject to the limitations on Appeals Council consideration of additional evidence (see § 416.1470(b)), we will consider at each step of the review process any information you present as well as all the information in our records.* * * ■ 17. In § 416.1429, revise the fifth sentence to read as follows: § 416.1429 Hearing before an administrative law judge-general. * * * Subject to the limitations in § 416.1435, you may submit new evidence, examine the evidence used in making the determination or decision under review, and present and question witnesses.* * * ■ 18. Revise § 416.1435 to read as follows: § 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 § 416.912 or any summary of the E:\FR\FM\12JYP1.SGM 12JYP1 mstockstill on DSK3G9T082PROD with PROPOSALS 45086 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules 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 you must inform us about or submit any written evidence, as required in § 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 § 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 show that 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. For example, the administrative law judge will accept the evidence if you show that: (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, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing. (c) Notwithstanding the requirements in paragraphs (a) and (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. ■ 19. In § 416.1438, revise paragraphs (a) and (b) to read as follows: § 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 VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 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 60 days before 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 § 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 § 416.1435(b); and (7) Any other information about the scheduling and conduct of your hearing. * * * * * ■ 20. Revise § 416.1439 to read as follows: § 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. 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. ■ 21. Revise § 416.1444 to read as follows: § 416.1444 Administrative law judge hearing procedures—general. (a) 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 § 416.1435: PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 (1) Accepts as evidence any documents that are material to the issues; (2) 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 (3) 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. (b) The administrative law judge may decide when the evidence will be presented and when the issues will be discussed. ■ 22. Revise § 416.1449 to read as follows: § 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. 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. ■ 23. In § 416.1450, revise paragraphs (c) and (d) to read as follows: § 416.1450 Presenting evidence at a hearing before an administrative law judge. * * * * * (c) Admissible evidence. Subject to the provisions of § 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. 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 E:\FR\FM\12JYP1.SGM 12JYP1 Federal Register / Vol. 81, No. 133 / Tuesday, July 12, 2016 / Proposed Rules 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. * * * * * ■ 24. Revise § 416.1451 to read as follows: § 416.1451 Official record. mstockstill on DSK3G9T082PROD with PROPOSALS (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 §§ 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. ■ 25. In § 416.1468, revise the second sentence of paragraph (a) to read as follows: § 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 § 416.1470(b). * * * ■ 26. Revise § 416.1470 to read as follows: VerDate Sep<11>2014 18:07 Jul 11, 2016 Jkt 238001 § 416.1470 review. Cases the Appeals Council will (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) The Appeals Council receives additional evidence that meets the requirements in paragraph (b) of this section, and there is a reasonable probability that the additional evidence, alone or considered with the evidence of record, 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, under paragraph (a)(5) of this section, the Appeals Council will only consider additional evidence if you show that it is new and material and relates to the period on or before the date of the hearing decision, and you did not inform us about or submit the evidence by the deadline described in § 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 of circumstances that, if documented, the Appeals Council may consider accepting the evidence include, but are not limited to, the following: (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, through no fault of your own, the evidence was not PO 00000 Frm 00018 Fmt 4702 Sfmt 9990 45087 received or was received less than 5 business days prior to the hearing. (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 (b) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 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 § 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. (d) If the Appeals Council needs additional evidence, it may remand the case to an administrative law judge to receive evidence and issue a new decision. However, if the Appeals Council decides that it can obtain the evidence more quickly, it may do so, unless it will adversely affect your rights. In some cases, the Appeals Council may obtain this evidence by conducting additional hearing proceedings. ■ 27. Revise § 416.1476 to read as follows: § 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. [FR Doc. 2016–16265 Filed 7–11–16; 8:45 am] BILLING CODE P E:\FR\FM\12JYP1.SGM 12JYP1

Agencies

[Federal Register Volume 81, Number 133 (Tuesday, July 12, 2016)]
[Proposed Rules]
[Pages 45079-45087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16265]


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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to revise our rules so that more of our procedures 
at the administrative law judge (ALJ) 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: To ensure that your comments are considered, we must receive 
them no later than August 11, 2016.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2014-0052 so 
that we may associate your comments with the correct rule.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the ``Search'' function to find docket number 
SSA-2014-0052. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Maren Weight, 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 http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: We propose 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 considers additional 
evidence.

Background

    Over the last few years, we have revised many of our regulations to 
bolster program integrity and clarify our policy, procedures, and 
expectations. For example, on June 25, 2014, we made changes to when a 
claimant must object to appearing at a hearing by video 
teleconferencing.\1\ As another example, we published a final rule on 
March 20, 2015, that clarified a claimant's duty to inform us about or 
submit all evidence that relates to whether or not he or she is blind 
or disabled, subject to two exceptions for privileged 
communications.\2\ We made these and other changes specifically to 
strengthen the integrity of our programs.
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    \1\ 79 FR 35926.
    \2\ See 80 FR 14828, 20 CFR 404.1512, 416.912.
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    As we explained in the final rule on March 20, 2015, ``we believe 
program integrity requires us to obtain complete medical evidence 
(favorable or unfavorable) in disability claims.'' \3\ Although that 
statement refers to medical evidence, we reiterate in this proposed 
rule that a complete evidentiary record is necessary for us to make an 
informed and accurate disability determination or decision, and 
bolsters program integrity by improving consistency in the adjudication 
of claims at all levels of the administrative review process. As we 
look ahead, we continue to evaluate our regulatory and sub-regulatory 
policies to assess where we can make changes to improve accuracy and 
efficiency in our administrative review processes. To that end, we are 
now proposing the changes outlined below.
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    \3\ 80 FR at 14833.
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    As we discuss in detail below, we have now had time to implement 
helpful systems changes and review a study performed by the 
Administrative Conference of the United States (ACUS), in which ACUS 
evaluated available data and considered various internal and external 
stakeholder opinions about the impact of our Part 405 rules.\4\ We are

[[Page 45080]]

also facing an unprecedented challenge in the workloads pending at our 
Office of Disability Adjudication and Review (ODAR). With more than a 
million people currently waiting for a hearing decision, we cannot 
afford to continue postponing hearing proceedings because the record is 
not complete at the time of the hearing. Facing this unprecedented 
workload challenge requires that we consider all options to ensure we 
have a complete evidentiary record, provide timely and accurate 
service, and improve how we perform all administrative tasks. We expect 
these proposed changes will help us accomplish all three objectives.
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    \4\ See Report from Office of the Chairman of the Administrative 
Conference of the United States, SSA Disability Benefits 
Adjudication Process: Assessing the Impact of the Region 1 Pilot 
Program (Dec. 23, 2013) (``ACUS Report''), available at http://acus.gov/sites/default/files/documents/Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf. For the specific data reviewed and opinions collected 
by ACUS, see Appendix to SSA Disability Benefits Adjudication 
Process: Assessing the Impact of the Region I Pilot Program (Dec. 
23, 2013) (``ACUS Report Appendix''), available at https://www.acus.gov/sites/default/files/documents/Appendix%20to%20Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf.
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    More specifically, in the last decade, we have made significant 
progress in modernizing our business processes for hearings-level cases 
and enhancing our use of technology. For example, we now process most 
disability claims electronically, which allows us to transfer workloads 
around the country more easily. In addition, we have established five 
National Hearing Centers (NHC) that process only electronic cases and 
conduct all hearings via video teleconferencing. The NHCs assist 
hearing offices that have larger workloads and longer wait times for 
hearings. Our ability to transfer cases electronically out of a region 
to an NHC, or to another hearing office with a smaller workload, allows 
us to serve claimants more efficiently.
    As we have increased our use of electronic case files, we also had 
an opportunity to re-evaluate how we receive and process evidence. 
Previously, claimants and representatives would mail, fax, or hand-
deliver evidence to us, and we would enter the evidence into the case 
file manually. While these options remain available, improvements in 
technology now permit claimants and representatives to submit evidence 
through our Electronic Records Express (ERE) system, which uploads 
evidence directly into the claimant's electronic case file. Many 
representatives have also registered to use the Appointed 
Representative Suite of Services (ARS), which allows them to remotely 
view the claimant's electronic case file online and verify in real time 
that we received evidence. Representatives who access the case file 
through ARS can also view all of the other evidence in the file to 
verify that the record is complete.\5\
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    \5\ Effective August 16, 2016, representatives who request 
direct payment of a fee in a case are generally required to access a 
case file through ARS. See 81 FR 22697 (2016).
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    We are also improving how we receive electronic evidence from 
medical providers. Our Health Information Technology (HIT) program 
allows us to request and receive a claimant's medical records through 
an electronic submission. Although we currently use HIT in only a small 
number of cases, we anticipate that we will expand the HIT program and 
make use of other technological advances that will make it easier and 
faster for us to obtain medical records. We expect these enhancements 
in how we receive evidence will improve our efficiency and ensure 
consistency in processing claims at the hearings and Appeals Council 
levels of our administrative review process.
    Our progress in the areas discussed above can be undermined if our 
rules are not nationally consistent. At the beginning of 2006, the 
hearings and Appeals Council levels of our administrative review 
process generally operated under nationally consistent rules, set forth 
in 20 CFR parts 404 and 416. However, on March 31, 2006, we published a 
final rule that implemented a number of changes to our disability 
determination process.\6\ These changes, which we referred to 
collectively as the Disability Service Improvement (DSI) process, were 
primarily set forth in Part 405 of our regulations. As we explained in 
the preamble to our final rule, we selected Boston \7\ as the first 
region to implement the DSI process. Over the last decade, we have 
revised or rescinded many portions of the Part 405 regulations.\8\ 
However, certain aspects of DSI processing remain at the hearings and 
Appeals Council levels.
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    \6\ See 71 FR 16424.
    \7\ The Boston region consists of the States of Connecticut, 
Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.
    \8\ See 73 FR 2411, corrected at 73 FR 10381, and 76 FR 24802.
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    For example, our current Part 405 rules require us to provide 
claimants with notice of their hearings at least 75 days in advance of 
the hearing.\9\ By contrast, our current Part 404 and Part 416 rules 
require us to provide claimants with notice of their hearings at least 
20 days in advance of the hearing.\10\ In addition, under Part 405, 
claimants are required to submit any written evidence no later than 5 
business days before the date of the scheduled hearing, with a few 
exceptions.\11\ Conversely, under Parts 404 and 416, claimants can 
submit evidence up to and on the date of the hearing, or even after a 
hearing.\12\ Additionally, Part 405 contains other processing 
differences, including the time limit of at least 10 days prior to the 
hearing to submit subpoena requests versus Parts 404 and 416, which 
contains a time limit of 5 days prior to the hearing to submit subpoena 
requests. Lastly, Part 405 requires the submission of objections to the 
issues at the hearing 5 days prior to the hearing versus Parts 404 and 
416, which requires the submission of objections at the earliest 
possible opportunity.\13\
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    \9\ 20 CFR 405.315(a).
    \10\ 20 CFR 404.938(a), 416.1438(a)
    \11\ 20 CFR 405.331(a).
    \12\ Our regulations provide that ``[y]ou should submit 
information or evidence . . . or any summary of the evidence to the 
administrative law judge with the request for hearing or within 10 
days after filing the request, if possible.'' 20 CFR 404.935, 
416.1335. However, as noted in our subregulatory instructions, we 
accept additional evidence that a claimant submits at or after a 
hearing, until we issue a hearing decision. See, e.g., Hearings, 
Appeals, and Litigation Law manual (HALLEX) I-2-6-58 (available at 
https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-58.html) and I-2-7-20 
(available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-7-20.html). The circumstances in which the Appeals Council will 
consider additional evidence are set forth in 20 CFR 404.976(b) and 
416.1476(b).
    \13\ Cf. 20 CFR 404.950(d)(2), 416.1450(d)(2) with 20 CFR 
405.332 (subpoenas); 20 CFR 404.939, 416.1439 with 20 CFR 405.317(c) 
(objections to the issues).
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    There is also a difference in claims processing at the Appeals 
Council level due to the Part 405 rules, especially those that address 
when the Appeals Council considers additional evidence. Under Parts 404 
and 416, the Appeals Council will consider new and material evidence 
only when it relates to the period on or before the date of the ALJ 
hearing decision. The Appeals Council will evaluate the entire record, 
including any new and material evidence that relates to the period on 
or before the date of the ALJ hearing decision. It will then review the 
case if it finds that the ALJ's action, findings, or conclusion is 
contrary to the weight of the evidence currently of record.\14\
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    \14\ 20 CFR 404.970(b), 416.1470(b).
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    However, under Part 405, the Appeals Council will consider 
additional evidence only where it relates to the period on or before 
the date of the ALJ hearing decision, and only if the claimant shows 
that there is a reasonable probability that the evidence, alone or when 
considered with other evidence of record, would change the outcome of 
the decision; and: (1) Our action misled the claimant; (2) he or she 
had a physical, mental, educational, or linguistic limitation(s) that 
prevented him or her from submitting the evidence

[[Page 45081]]

earlier; or (3) some other unusual, unexpected, or unavoidable 
circumstance beyond his or her control prevented him or her from 
submitting the evidence earlier.\15\
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    \15\ 20 CFR 405.401(c).
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    We have always intended to implement nationally consistent rules 
after we had sufficient time to evaluate the effectiveness of DSI 
processing. To assist us in evaluating these issues, we asked ACUS to 
review the impact of our Part 405 regulations at the hearings and 
Appeals Council levels. Ultimately, in its final report, ACUS deferred 
to us regarding whether to implement the Part 405 regulations 
nationwide.\16\ However, ACUS suggested a variety of guiding principles 
and other observations for us to consider in making a decision 
regarding national uniformity. For example, ACUS suggested that we: (1) 
Strive to attain an appropriate balance between claimant and agency 
interests as we pursue our goal of making the right disability decision 
as early in the process as possible; (2) strive for consistency in the 
administration of a national program; (3) collect and assess more data 
about the DSI program; and (4) if pursued, clarify the guidance to ALJs 
and claimants about application of the DSI program. ACUS also observed 
that if we pursued regulatory changes similar to DSI, it would be 
important to retain appropriate good cause exceptions for the late 
submission of evidence.
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    \16\ See ACUS Report at 91.
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    After considering ACUS's suggestions, we first provided additional 
training to ODAR adjudicators and staff regarding the 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 continue to update sub-regulatory policy to 
include references and instructions on how to process cases under Part 
405. As recommended by ACUS, we made these changes to promote 
consistent adjudication of Part 405 in the Boston region.
    We then carefully considered ACUS's findings on how we receive 
evidence under Part 405. In its report, ACUS explained that it 
performed a comparative empirical analysis of data that we 
provided,\17\ and its findings, while not definitive, appeared to show 
that the Part 405 rules made modest strides towards achieving our goal 
of improving the efficiency, accuracy, and timeliness of our disability 
adjudication process. While declining to draw definitive conclusions 
from its data analysis, ACUS highlighted several findings, including 
the following: (1) Under Part 405, there was less likelihood that 
adjudicators would determine the record needed additional evidence and 
request a consultative examination; (2) there were lower average 
processing times in the Boston region than other comparable regions, 
and the Boston region's average processing times did not exhibit the 
same comparative decline in average processing times found in other 
regions; and (3) the Boston region had the lowest pending disposition 
ratio, which suggests enhanced case efficiencies.
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    \17\ For specific information about the data reviewed by ACUS, 
see ACUS Report Appendix.
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    We note that several of ACUS's findings, based on the available 
data through 2012, are consistent with our experience. For example, 
ACUS stated that the ``average time intervals between issuance of 
hearing notices and hearings have been rising steadily at both regional 
and national levels in recent years.'' \18\ While Parts 404 and 416 
require that we provide notice to a claimant of a scheduled hearing at 
least 20 days before the hearing,\19\ and Part 405 requires that we 
provide notice to a claimant of a scheduled hearing at least 75 days 
before the hearing,\20\ it has been our experience that for several 
years nationwide, most claimants received more advance notice of a 
hearing than the regulations require. Specifically, the Boston region 
appears to be scheduling hearings and notifying claimants approximately 
90 days before the hearing while other regions are providing notice 
more than 60 days before the hearing.\21\ Additionally, we have also 
observed that, nationally, cases in which we sent notices approximately 
60 days prior to the date of the hearing seem to have a reduced or the 
same likelihood of a postponed hearing as those scheduled with less 
notice of the hearing.\22\ In addition to our experience, we also 
considered ACUS's finding that there was strong support from 
stakeholders, both inside and outside of the agency, for increasing the 
amount of advance notice a claimant receives before a hearing.
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    \18\ See ACUS Report at 30.
    \19\ 20 CFR 404.938(a), 416.1438(a).
    \20\ 20 CFR 405.316(a).
    \21\ At the hearing level, we use the Case Processing and 
Management System (CPMS) to manage our workloads. From the 
information available in CPMS, we reviewed the number days between 
the date of the notice of hearing and the date of a scheduled 
hearing to assess whether these trends appear to continue. In the 
Boston region, CPMS shows the mean number of days between these 
dates to be 79.7 (2013), 88.5 (2014), and 90.3 (2015). The median 
number of days was 82.0 (2013), 89.0 (2014), and 90.0 (2015). 
Nationwide, CPMS shows the mean number of days was 64.3 (2013), 64.8 
(2014), and 69.9 (2015). The median number of days was 60.0 (2013), 
62.0 (2014), and 68.0 (2015). Though not yet complete, the numbers 
in 2016 appear to be consistent with these trends.
    \22\ After reviewing the information available in CPMS, we 
observed the following: In 2013, we postponed 26.1% of cases 
scheduled 25-49 days in advance, 26.4% of cases scheduled 50-74 days 
in advance, and 29.2% of cases scheduled 75-99 days in advance. In 
2014, we postponed 28.3% of cases scheduled 25-49 days in advance, 
27.3% of cases scheduled 50-74 days in advance, and 29.3% of cases 
scheduled 75-99 days in advance. In 2015, we postponed 28.1% of 
cases scheduled 25-49 days in advance, 26.8% of cases scheduled 50-
74 days in advance, and 28.0% of cases scheduled 75-99 days in 
advance. We also note that our analysis showed that cases scheduled 
less than 25 days in advance had the highest rate of postponement.
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    We considered proposing to adopt a 75-day advance notice 
requirement nationwide. However, the information available to us 
indicates that there may be a higher incidence of postponements when we 
give claimants 75 days or more advance notice of a hearing due to the 
unavailability of the appointed representative or adjudicator on the 
date of the scheduled hearing.\23\ In contrast, we have observed that 
most hearing offices already schedule hearings 60 days in advance, and 
a 60-day advance notice period appears to have the same or a reduced 
incidence of postponements when compared to notice periods less than 60 
days.\24\ Therefore, based on the available data, we propose a 60-day 
notice requirement as the most administratively efficient. Further, 
because we are already scheduling most hearings nationwide at least 60 
days in advance, we do not expect that adopting this requirement would 
have an adverse impact on the public or on our operations. As noted by 
ACUS, the public seems to support increasing the number of days for 
advance notice of a hearing because, among other reasons, it will 
provide more time to obtain updated medical records before the date of 
the hearing. Therefore, we propose to require that, nationwide, we 
notify claimants of a

[[Page 45082]]

scheduled hearing at least 60 days prior to the date of the hearing.
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    \23\ After reviewing the information available in CPMS for 2014-
2016, we observed the following: In 2014 in the Boston region, 
hearings with at least one postponement were postponed 5.36% of the 
time due to a representative's unavailability and 8.07% of the time 
due to the unavailability of the decision maker. Nationally, the 
postponement rate for a representative's unavailability was 4.17% 
and a decision maker's unavailability was 5.91%. In 2015, the 
postponement rate in Boston for a representative's unavailability 
was 6.00% and a decision maker's unavailability was 8.02%. 
Nationally, the postponement rate for a representative's 
unavailability was 3.92% and a decision maker's unavailability was 
6.76%. These trends appear to continue in 2016.
    \24\ See information in footnote 22.
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    The highlights of ACUS's empirical analysis and our own experience 
also support adopting nationwide rules similar to the existing Part 405 
rules that govern how we receive evidence in the Boston region. For 
example, our experience is that under Parts 404 and 416, some hearings 
are postponed or require supplemental proceedings due to late 
submission of evidence. We anticipate that our final rule on the 
``Submission of Evidence in Disability Claims,'' \25\ discussed 
earlier, will decrease the number of Appeals Council remands based on 
additional evidence. However, our experience has shown, and we expect 
to continue to see, that the Appeals Council will need to remand some 
cases due to new evidence. The need to postpone and reschedule cases, 
along with Appeals Council remands based on new evidence that was 
available at the time of the hearing decision, costs us valuable 
resources and delays the adjudication of all claims at the hearings and 
Appeals Council levels.
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    \25\ 80 FR 14828.
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    In its report, ACUS also identified several concerns raised by 
stakeholders both inside and outside the agency with implementing Part 
405 nationwide. For example, ACUS explained that both ALJs and 
claimants' representative groups agree that two of the most challenging 
obstacles to timely submission of evidence are: (1) Delays in receipt 
of evidence from medical providers, and (2) delays in receipt of 
evidence from the claimant. As previously discussed, we propose 
changing our rules so that we provide claimants with additional time to 
inform us about or to obtain and submit written evidence. In doing so, 
we will also change our notices to ensure claimants are advised of the 
additional time. To address concerns about delays in receiving evidence 
from medical providers, we propose to retain the current good cause 
exceptions used in Part 405. We also propose to add examples, including 
that we will accept evidence submitted less than 5 business days prior 
to the hearing if a claimant shows that he or she actively and 
diligently sought to obtain the evidence promptly, but could not do so.
    Based in part on ACUS's evaluation of the good cause exceptions to 
the Part 405 rule that requires claimants to submit evidence at least 5 
business days before a hearing, we propose to clarify when other 
unusual, unexpected, or unavoidable circumstances beyond the claimant's 
control prevent earlier identification of or submission of evidence. To 
accomplish this, we have added examples to illustrate when a claimant 
meets a good cause exception, such as when a claimant is seriously ill 
or when evidence is not received until less than 5 business days before 
the hearing, despite the claimant's active and diligent efforts to 
obtain the evidence earlier. These examples are not intended to be 
exhaustive or to illustrate every possible situation, but to illustrate 
the sorts of situations most likely to arise.
    In addition to adding examples regarding the good cause 
requirements, we also explain that, when reviewing claims that are not 
based on an application for benefits, the requirement to submit 
evidence at least 5 business days before a hearing does not apply if 
our other regulations permit the submission of evidence after the date 
of an ALJ decision. For example, under current section 416.1476(b)(2) 
(proposed section 416.1470(b)), in reviewing decisions other than those 
based on an application for benefits, the Appeals Council will consider 
evidence in the hearing record and any additional evidence it believes 
is material to an issue being considered. Supplemental Security Income 
(SSI) cases under title XVI of the Act that are not based on an 
application for benefits are excepted from the general rules that limit 
the Appeals Council's consideration of additional evidence based on the 
individual's right to reestablish his or her eligibility for title XVI 
payments during the course of an appeal without filing a new 
application.\26\ Therefore, we added an exception to address this and 
similar situations where other regulations may permit the submission of 
evidence in claims that are not based on an application for benefits.
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    \26\ See 20 CFR 416.305(b)(5) (providing that an individual need 
not file a new SSI application if he or she is notified that his or 
her payments will be stopped because he or she is no longer eligible 
and he or she again meets the requirements for eligibility before 
his or her appeal rights are exhausted).
---------------------------------------------------------------------------

    To ensure national consistency in our policy and procedures, we 
also propose requiring claimants to file written statements about the 
case, or any objections to the issues, at least 5 business days prior 
to a scheduled hearing. We further propose to require a claimant to 
submit subpoena requests at least 10 business days prior to a scheduled 
hearing. For consistency with these proposed changes, we also propose 
changes to our regulations to explain what constitutes the official 
record.
    Our proposal that generally requires claimants to submit written 
evidence at least 5 business days before a hearing also requires that 
we propose revisions to how the Appeals Council will handle additional 
evidence it receives on appeal. Under the proposed rule, the Appeals 
Council would generally consider additional evidence only if it is new 
and material and relates to the period on or before the date of the 
hearing decision, and only if the claimant shows that he or she did not 
submit the evidence at the hearing level because: (1) Our action misled 
him or her; (2) he or she had a physical, mental, educational, or 
linguistic limitation(s) that prevented him or her from informing us 
about or submitting the evidence earlier; or (3) some other unusual, 
unexpected, or unavoidable circumstance beyond his or her control 
prevented him or her from informing us about or submitting the evidence 
earlier. If these requirements are satisfied, the Appeals Council would 
grant review if there is a reasonable probability that the evidence, 
alone or considered with the evidence of record, would change the 
outcome of the hearing level decision. For additional evidence that 
does not relate to the period on or before the ALJ decision, the 
Appeals Council would continue to notify the claimant that because of 
the new evidence, if he or she files a new application within a 
specified timeframe, the date of the claimant's request for review 
would constitute a written statement indicating an intent to claim 
benefits. This means that we would use the date of the claimant's 
request for Appeals Council review as the filing date for the new 
application, which we call a protective filing date. In addition to 
retaining this current practice, the Appeals Council would also provide 
a claimant with a protective filing date when it finds he or she did 
not have good cause for not submitting the evidence at the hearing 
level at least 5 business days before the hearing. Additionally, we 
also propose to clarify that the Appeals Council may conduct hearing 
proceedings to obtain additional evidence when needed.
    In addition to creating greater uniformity in our procedures, we 
expect these changes will improve our ability to manage our workloads. 
Most importantly, we expect these changes to allow us to adjudicate 
cases and process workloads more efficiently and consistently, leading 
to better public service overall.
    Because these proposed changes would bring the vast majority of 
Part 405 procedures in line with the procedures in Parts 404 and 416, 
we also propose to remove Part 405 in its

[[Page 45083]]

entirety. In doing so, we acknowledge there are several sections in 
Part 405 that include minor language or substantive variances from Part 
404 and Part 416 that we did not address above. For example, the 
requirements for showing good cause to extend a filing deadline are 
different under Part 405 from the ones we propose here. We intend that, 
other than the changes we propose in this NPRM, we are not proposing to 
adopt any of the other variances currently in Part 405.

Clarity of These Proposed Rules

    Executive Order 12866, as supplemented by Executive Order 13563, 
requires each agency to write all rules in plain language. In addition 
to your substantive comments on this proposed rule, we invite your 
comments on how to make it easier to understand.
    For example:
     Would more, but shorter, sections be better?
     Are the requirements in the rule clearly stated?
     Have we organized the material to suit your needs?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
     Does the rule contain technical language or jargon that is 
not clear?
     Would a different format make the rule easier to 
understand, e.g., grouping and order of sections, use of headings, 
paragraphing?

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 proposed 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 proposed 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 proposed rules contain reporting requirements in the 
regulation sections Sec. Sec.  404.929, 404.935, 404.939, 404.949, 
404.950(2), 404.968, 416.1429, 416.1435, 416.1439, 416.1449, 416.1450 
and 416.1468 that require OMB clearance under the Paperwork Reduction 
Act of 1995 (PRA). For sections 404.929, 404.949, 404.950(2), 416.1429, 
416.1449, 416.1450(2) of these rules, we previously accounted for the 
public reporting burdens in the Information Collection Requests for OMB 
Numbers 0960-0269 and 0960-0710, which the public use to submit the 
information to SSA. Consequently, we are not reporting these sections. 
SSA will solicit public comment and will submit separate information 
collection requests to OMB in the future for regulations sections 
Sec. Sec.  404.935, 404.939, 404.968, 416.1435, 416.1439, and 416.1468 
as they require OMB clearance under the Paperwork Reduction Act of 1995 
(PRA). 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).

    Dated: May 31, 2016.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to 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 the limitations on Appeals Council 
consideration of additional evidence (see Sec.  404.970(b)), 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. In Sec.  404.929, revise the fifth sentence to read as follows:


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

    * * * Subject to the provisions of Sec.  404.935, you may submit 
new evidence, examine the evidence used in making the determination or 
decision under review, and present and question witnesses.* * *
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 show that 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

[[Page 45084]]

    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from informing us about or submitting 
the evidence earlier. For example, the administrative law judge will 
accept the evidence if you show that:
    (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, 
through no fault of your own, 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 60 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. 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) 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:
    (1) Accepts as evidence any documents that are material to the 
issues;
    (2) 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
    (3) 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.
    (b) 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. 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.
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. 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
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

[[Page 45085]]

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(b). * * *
* * * * *
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) The Appeals Council receives additional evidence that meets the 
requirements in paragraph (b) of this section, and there is a 
reasonable probability that the additional evidence, alone or 
considered with the evidence of record, would change the outcome of the 
decision.
    (b) Under paragraph (a)(5) of this section, the Appeals Council 
will only consider additional evidence if you show that it is new and 
material and relates to the period on or before the date of the hearing 
decision, and you did not inform us about or submit the evidence by the 
deadline 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 of circumstances that, if documented, 
the Appeals Council may consider accepting the evidence include, but 
are not limited to, the following:
    (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, 
through no fault of your own, the evidence was not received or was 
received less than 5 business days prior to the hearing.
    (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 (b) of this section, or the Appeals 
Council does not find you had good cause for missing the deadline to 
submit the evidence in Sec.  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.  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.
    (d) If the Appeals Council needs additional evidence, it may remand 
the case to an administrative law judge to receive evidence and issue a 
new decision. However, if the Appeals Council decides that it can 
obtain the evidence more quickly, it may do so, unless it will 
adversely affect your rights. In some cases, the Appeals Council may 
obtain this evidence by conducting additional hearing proceedings.
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.

PART 405--[REMOVED AND RESERVED]

0
14. 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.

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

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

0
15. 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
16. In Sec.  416.1400, revise the second sentence of paragraph (b) to 
read as follows:


Sec.  416.1400  Introduction.

* * * * *
    (b) * * * Subject to the limitations on Appeals Council 
consideration of additional evidence (see Sec.  416.1470(b)), we will 
consider at each step of the review process any information you present 
as well as all the information in our records.* * *
0
17. In Sec.  416.1429, revise the fifth sentence to read as follows:


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

    * * * Subject to the limitations in Sec.  416.1435, you may submit 
new evidence, examine the evidence used in making the determination or 
decision under review, and present and question witnesses.* * *
0
18. 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

[[Page 45086]]

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 you 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 show that 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. For example, the administrative law judge will 
accept the evidence if you show that:
    (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, 
through no fault of your own, the evidence was not received or was 
received less than 5 business days prior to the hearing.
    (c) Notwithstanding the requirements in paragraphs (a) and (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
19. 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 60 days before 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
20. 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. 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
21. Revise Sec.  416.1444 to read as follows:


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

    (a) 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.  416.1435:
    (1) Accepts as evidence any documents that are material to the 
issues;
    (2) 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
    (3) 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.
    (b) The administrative law judge may decide when the evidence will 
be presented and when the issues will be discussed.
0
22. 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. 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.
0
23. 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. 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

[[Page 45087]]

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
24. 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
25. In Sec.  416.1468, revise the second sentence of paragraph (a) 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(b). * * *
0
26. 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) The Appeals Council receives additional evidence that meets the 
requirements in paragraph (b) of this section, and there is a 
reasonable probability that the additional evidence, alone or 
considered with the evidence of record, 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, under 
paragraph (a)(5) of this section, the Appeals Council will only 
consider additional evidence if you show that it is new and material 
and relates to the period on or before the date of the hearing 
decision, and you did not inform us about or submit the evidence by the 
deadline 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 of circumstances that, if documented, 
the Appeals Council may consider accepting the evidence include, but 
are not limited to, the following:
    (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, 
through no fault of your own, the evidence was not received or was 
received less than 5 business days prior to the hearing.
    (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 (b) of this section, or the Appeals 
Council does not find you had good cause for missing the deadline to 
submit the evidence in Sec.  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.  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.
    (d) If the Appeals Council needs additional evidence, it may remand 
the case to an administrative law judge to receive evidence and issue a 
new decision. However, if the Appeals Council decides that it can 
obtain the evidence more quickly, it may do so, unless it will 
adversely affect your rights. In some cases, the Appeals Council may 
obtain this evidence by conducting additional hearing proceedings.
0
27. 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.

[FR Doc. 2016-16265 Filed 7-11-16; 8:45 am]
 BILLING CODE P