Hearings Held by Administrative Appeals Judges of the Appeals Council, 73138-73162 [2020-23856]

Download as PDF 73138 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404, 408, 411, 416, and 422 [Docket No. SSA–2017–0073] RIN 0960–AI25 Hearings Held by Administrative Appeals Judges of the Appeals Council Social Security Administration. Final rule. AGENCY: ACTION: We are revising our rules to clarify when and how administrative appeals judges (AAJ) on our Appeals Council may hold hearings and issue decisions. The Appeals Council already has the authority to hold hearings and issue decisions under our existing regulations, but we have not exercised this authority or explained the circumstances under which it would be appropriate for the Appeals Council to assume responsibility for holding a hearing and issuing a decision. This final rule will ensure the Appeals Council is not limited in the type of claims for which it may hold hearings. We expect that this rule will increase our adjudicative capacity when needed, and allow us to adjust more quickly to fluctuating short-term workloads, such as when an influx of cases reaches the hearing level. Our ability to use our limited resources more effectively will help us quickly optimize our hearings capacity, which in turn will allow us to issue accurate, timely, high-quality decisions. SUMMARY: This final rule will be effective December 16, 2020. FOR FURTHER INFORMATION CONTACT: Debra Sundberg, 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 tollfree number, 1–800–772–1213 or TTY 1–800–325–0778, or visit our internet site, Social Security Online, at http:// www.socialsecurity.gov. DATES: On December 20, 2019, we published a Notice of Proposed Rulemaking (NPRM), ‘‘Hearings Held by Administrative Appeals Judges of the Appeals Council.’’ 1 In our NPRM, we proposed to clarify that an AAJ from our Appeals Council may hold a hearing and issue a decision on any case pending at the hearings level under titles II, VIII, or XVI of the Social jbell on DSKJLSW7X2PROD with RULES2 SUPPLEMENTARY INFORMATION: 1 84 FR 70080 (Dec. 20, 2019). VerDate Sep<11>2014 20:50 Nov 13, 2020 Security Act (Act). With this final rule, we adopt the proposed changes, with some exceptions. The final rule differs from our proposed rule in the following ways: • We are not making the proposed changes to § 402.60 because we are considering the possibility of reorganizing sections within 20 CFR part 402. We will consider revisions to § 402.60 as part of that reorganization. • We revised §§ 404.929, 416.1429, 404.976, and 416.1476 to conform to the current CFR text, which we recently revised as part of our final rule, ‘‘Setting the Manner for the Appearance of Parties and Witnesses at a Hearing,’’ published on December 18, 2019.2 • We removed proposed paragraph (d) from §§ 404.970 and 416.1470 in response to the public comments we received, which we discuss in more detail below. We also removed the corresponding language in proposed paragraph (a) of the same sections. • We revised §§ 404.973 and 416.1473 in response to the public comments we received, to clarify that prior notice is not needed where the Appeals Council issues a decision that is favorable in part, and remands the remaining issues for further proceedings. We discuss this in more detail in the response to the public comments below. • We revised §§ 404.976(b) and 416.1476(b) to clarify that if we file a certified administrative record in Federal court, we will include all additional evidence the Appeals Council received during the administrative review process, including additional evidence that the Appeals Council received but did not exhibit or make part of the official record. • We revised §§ 404.983 and 416.1483 in response to public comments to clarify when the Appeals Council will hold a hearing after court remand. In these sections, we revised paragraph (b) to pertain only to circumstances when the Appeals Council will issue a decision without holding a hearing after a court remand, and we inserted a new paragraph (c) to clarify when the Appeals Council will hold a hearing after court remand. As such, we redesignated the prior paragraphs (c) and (d) as paragraphs (d) and (e), respectively. • We revised §§ 404.984 and 416.1484 to clarify that the Appeals Council may assume jurisdiction of a case after an administrative law judge (ALJ) or administrative appeals judge (AAJ) issues a hearing decision in a case 2 84 Jkt 253001 PO 00000 FR 69298 (Dec. 18, 2019). Frm 00002 Fmt 4701 Sfmt 4700 remanded by Federal court. We also revised §§ 404.984 and 416.1484 to clarify that the Appeals Council will not dismiss the request for a hearing in a claim where we are otherwise required by law or a judicial order to file the Commissioner’s additional and modified findings of fact and decision with a court. • We revised § 422.205(a) to clarify that AAJs issue hearing level decisions and dismissals. We received 275 comments on the NPRM, 204 of which related to the proposed rule and are available for public viewing at http:// www.regulations.gov. 3 These comments were from: • Individual citizens and claimant representatives; • Members of Congress; • National groups representing claimant representatives, such as the National Organization of Social Security Claimants’ Representatives; • Groups representing administrative law judges (ALJ), such as the Forum of United States Administrative Law Judges and the Association of Administrative Law Judges; and • Advocacy groups, such as the Consortium for Citizens with Disabilities and the Disability Law Center. We carefully considered these comments. We discuss and respond to the significant issues raised by the commenters that were within the scope of the NPRM below. Comments and Responses Change Is Overdue and the Proposed Rule Would Allow Us To Use Our Resources Better Comment: One commenter, who supported the proposal, said this change is overdue, and will ensure shorter wait times and due process for claimants. Another commenter said the proposed rule would allow us to use resources better. Response: We acknowledge the commenters’ support for our rule. The goal of this final rule is to use our available resources in the best possible way. The Administrative Procedure Act (APA) and the Use of ALJs To Hear and Decide Cases Comment: Several commenters said that Congress passed the APA in part to ensure that the public had a right to a 3 We excluded two comments from employees of the Social Security Administration who submitted the comments in their capacity as agency employees. The other comments we excluded were out of scope or nonresponsive to the proposal. E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations neutral and impartial arbiter of facts to adjudicate appeals of agency decisions. One commenter said that our proposed rule would upend our longstanding consistency with the APA’s requirements, and would deviate from our past practices and Congressional intent. One commenter referred to sections of the APA that state that ‘‘in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,’’ 4 the agency, one or more members of the body that comprises the agency, or an ALJ, must ‘‘preside at the taking of evidence.’’ 5 The commenter opined that SSA disability cases are adjudications required by the Act to be determined on the record and that the statute mandates that ‘‘if a hearing is held, [the Commissioner] shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse the Commissioner’s findings of fact and such decision.’’ 6 According to the commenter, the statute’s mandate triggers application of the APA and this is consistent with the APA’s definition of ‘‘adjudication,’’ which, according to the commenter, was intended to include proceedings such as ‘‘claims under Title II (Old Age and Survivors’ Insurance) of the Act.’’ 7 Some commenters acknowledged that Congress has never explicitly included the requirement to use ALJs in the Act, but said that it has made clear in legislative history that our hearing process is covered by the provisions of the APA.8 One commenter cited a statement from Congress when it enacted the statute that converted SSA hearing examiners into ALJs under the APA pursuant to 5 U.S.C. 3105 as evidence that Congress intended that we use ALJs.9 Similarly, a commenter asserted that because our procedures are nearly identical to those specified by the APA, it is clear that we observe the 45 U.S.C. 554(a). U.S.C 556(b)(1)–(3). 6 Sections 205(b) and § 1631(c)(1)(A) of the Act (42 U.S.C. 405(b)(1) and 42 U.S.C. 1383(c)(1)(A)). 7 The commenter cited the ‘‘Attorney General’s Manual on the Administrative Procedure Act’’ 15 (1947), a law review article, Kenneth Culp Davis, Separation of Functions in Administrative Agencies, 61 Harv. L. Rev. 612, 636 (1948), and our statement when responding to public comment on hearing procedures under title XVI, 39 FR 37976 (Oct. 25, 1974). 8 The commenter quoted material from Robin J. Arzt, Adjudications by Administrative Law Judges Pursuant to the Social Security Act are Adjudications Pursuant to the Administrative Procedure Act, 22 J. Nat’l Ass’n Admin. L. Judges (2002), available at: http:// digitalcommons.pepperdine.edu/naalj/vol22/iss2/ 1.). 9 See Social Security Amendments of 1977, Pub. L. 95–216, 91 Stat. 1509 (1977); 5 U.S.C. 3105 (2000); and H.R. Rep. No. 95–617, pt. 2, at 2 (1977). jbell on DSKJLSW7X2PROD with RULES2 55 VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 APA’s procedural and due process protections, which includes requiring ALJs to preside over hearings. According to a commenter, the APA and Act are so similar that the Supreme Court noted that it did not have to distinguish between the two laws because ‘‘social security administrative procedure does not vary from that prescribed by the APA.’’ 10 Additionally, commenters stated that Congress has ‘‘understood that hearings under the Social Security Act would [continue to] be presided over by APAqualified hearing examiners.’’ 11 According to one commenter, the APA requires the use of ALJs as presiding officers in administrative appeals in virtually all circumstances, the exceptions to which do not apply in the Social Security context. One commenter referred us to a publication that the commenter said discussed applicable law that invalidates our NPRM.12 Response: We disagree with these comments. Congress established our administrative hearings process through the Social Security Act Amendments of 1939.13 The original version of section 205(b)(1) of the Act stated: The [Social Security] Board is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under this title. Whenever requested by such individual . . . who makes a showing in writing that his or her rights may be prejudiced by any decision the Board has rendered, it shall give such applicant . . . reasonable notice and opportunity for a hearing with respect to such decision. . . . These broad provisions, though slightly modified over the years, generally have remained substantively unchanged since their enactment.14 Therefore, it has been clear that the head of our agency, initially, the Social Security Board, and currently, the Commissioner, has had the discretion to decide how our hearings process is structured and who may preside over a hearing.15 From the beginning of our hearings process, the head of our agency has delegated to the Appeals Council 10 See Richardson v. Perales, 402 U.S. 389, 409 (1971). 11 Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr., Richard J. Pierce, Jr., and Jeffrey S. Lubbers, Report for Recommendation 92–7: The Federal Administrative Judiciary, 1992 Administrative Conference of the United States (ACUS) 769, 820 (1992) (1992 ACUS Report). 12 Arzt, supra, n.8. 13 Social Security Act Amendments of 1939, ch. 666, section 201, 53 Stat. 1360, 1362–1369 (1939). 14 See Heckler v. Day, 467 U.S. 104, 125 (1984) (Marshall, J., dissenting). Title XVI of the Act contains substantially the same language as section 205(b)(1). See section 1631(c)(1)(A) of the Act. 15 See also section 702(a)(4)–(a)(7) of the Act. PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 73139 the authority to conduct hearings and issue decisions.16 Indeed, giving the Appeals Council the authority to hold hearings was part of our original vision for our hearings process, predating and forming the basis for the 1940 regulations that authorized the Appeals Council to hold hearings.17 Six years after the commencement of our administrative hearings process, and the commencement of the Appeals Council’s delegated authority to conduct hearings and issue decisions, Congress enacted the APA.18 The APA’s formal adjudication procedures apply, with limited exceptions, ‘‘in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.’’ 19 Significantly, neither the text nor the legislative history of the Act explicitly defines what constitutes a ‘‘hearing’’ under the Act, and nothing in the statute or its legislative history requires us to hold hearings ‘‘on the record.’’ While it is true that Congress modeled many of the hearing procedures in the APA on the Act,20 there are significant differences between an informal, nonadversarial Social Security hearing and the type of formal, adversarial adjudication to which the APA applies. This view of our hearings process as distinct from the type of hearings process to which the APA applies is consistent with the legislative history of the APA, as well as the legislative history of the Act. The legislative history of both statutes highlights the differences between formal, adversarial adjudications by regulatory agencies and informal, non-adversarial proceedings by agencies that administer 16 5 FR 4169, 4172 (Oct. 22, 1940) (codified at 20 CFR 403.709(d) (1940 Supp.)). The original regulation governing this issue stated that, ‘‘The hearing provided for in this section shall be, except as herein provided, conducted by a referee designated by the Chairman of the Appeals Council. The Chairman may designate a member of the Appeals Council to conduct a hearing. The Territorial Director of the Social Security Board may conduct hearings in the Territories of Alaska and Hawaii. The provisions of this section governing the referee shall be applicable to a member of the Appeals Council or a Territorial Director in conducting a hearing.’’ 17 Basic Provisions Adopted by the Social Security Board for the Hearing and Review of OldAge and Survivors Insurance Claims 39 (Jan. 1940) (Basic Provisions). The Basic Provisions are reprinted in Administrative Procedure in Government Agencies: Monograph of the Attorney General’s Committee on Administrative Procedure, Part 3 (Social Security Board), S. Doc. No. 77–10, 33–59 (1940). 18 By its own terms, the APA does not repeal delegations of authority as provided by law. Public Law 79–404, section 2, 60 Stat. 237 (1946). 19 5 U.S.C. 554(a). 20 Richardson v. Perales, 402 U.S. at 409. E:\FR\FM\16NOR2.SGM 16NOR2 73140 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 certain Federal benefit programs.21 Most notably, under our ‘‘inquisitorial’’ hearings process, an ALJ fulfills a role that requires him or her to act as a neutral decisionmaker and to develop facts for and against a benefit claim. The ALJ’s multiple roles involve, in essence, wearing ‘‘three hats’’: helping the claimant develop facts and evidence; helping the government investigate the claim; and issuing an independent decision. The APA, on the other hand, specifies that ‘‘An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision . . . . ’’ 22 The APA, therefore, embodies an internal ‘‘separation-of-functions’’ in agency adjudications that are subject to that statute. Indeed, ensuring such an internal separation-of-functions was one of the APA’s fundamental purposes.23 The internal separation-of-functions required in formal adjudications under the APA is inconsistent with the concept of the ‘‘three-hat’’ role of an adjudicator in a Social Security hearing, 21 The legislative history of the Social Security Act Amendments of 1939 states that, ‘‘Administrative and judicial review provisions not now provided in the Social Security Act are included, and administrative provisions are included which are similar to those under which the Veterans’ Administration operates. . . . Section 205(b) outlines the general functions of the Board in determining rights to benefits. It requires the Board to offer opportunity for a hearing, upon request, to an individual whose rights are prejudiced by any decision of the Board.’’ H.R. Rep. No. 728, 76th Cong., 1st Sess. 42 (1939); S. Rep. No. 734, 76th Cong., 1st Sess. 51 (1939). The legislative history of section 205(b) of the Act therefore links the provisions that Congress contemplated for our administrative review process with the process used by the Veterans’ Administration (now the Department of Veterans Affairs), another benefitgranting agency. This linkage to the Department of Veterans Affairs procedures is significant, because ‘‘[t]he prevailing pre-World War II view was that benefits decisionmaking was significantly different from regulatory decisionmaking.’’ 1992 ACUS Report, at 815. The Final Report of Attorney General’s Committee on Administrative Procedure, on which Congress relied when it enacted the APA, also highlights the distinction between the regulatory agencies and the benefit granting agencies. S. Doc. No. 77–8, at 55, 69, 263 (1941). ‘‘When the Attorney General’s Committee recommended the creation of the office of independent hearing examiner, it was focusing on the operation of regulatory agencies. Benefit adjudication was not a matter of primary concern to the Committee, and there is ground for the belief that the Committee viewed benefit adjudication very differently from regulatory adjudication.’’ 1992 ACUS Report, at 825. 22 5 U.S.C. 554(d). The APA, 5 U.S.C. 554(d)(2), also provides that the ‘‘employee who presides at the reception of evidence’’ may not ‘‘be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.’’ 23 Wong Yang Sung v. McGrath, 339 U.S. 33, 41 (1950). VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 which by its very nature, is an investigatory function.24 Thus, contrary to the restrictions noted in the APA, the SSA adjudicator both performs an investigative function for SSA and participates in the decision. The ALJ’s three-hat role is consistent with the prevailing view of benefit decision making at the time Congress enacted the APA in 1946. When Congress was considering whether and how to reform the Federal administrative process between the mid1930s and 1946, it had the benefit of a number of studies on the issue, including the Final Report of Attorney General’s Committee on Administrative Procedure and a series of monographs that the Attorney General’s Committee prepared on numerous Federal agencies, including the Veterans Administration and the Social Security Board. The Final Report of the Attorney General’s Committee recognized a dichotomy between ‘‘regulatory’’ decision making and ‘‘benefits’’ decision making.25 ‘‘It did so on the ground that hearings conducted by these agencies merely augmented ex parte investigations which the agencies conducted on the claims before them. This subordinate role played by hearings in the benefitgranting agencies made the Committee’s 24 See, e.g., 1992 ACUS Report, at 792 n.53 (‘‘Obviously, had the formal hearing requirements of the APA been mandatory, the separation-offunctions requirements would have forbidden the ALJ to assume total control of the process.’’); Gary J. Edles, An APA-Default Presumption for Administrative Hearings: Some Thoughts on ‘‘Ossifying’’ the Adjudication Process, 55 Admin. L. Rev. 787, 809–10 (2003) (‘‘[D]isability cases under the Social Security Act—the largest adjudicatory regime to use ALJs as presiding officers—are arguably not even governed by the APA . . . . Historically, the Social Security Administration decided to use administrative law judges even though it was not required to do so by any ‘on-therecord’ hearing requirement . . . . Moreover, Social Security cases are non-adversarial, the government is not typically represented and, more like the inquisitorial model, the presiding administrative law judge has an affirmative obligation to develop the record even if counsel represents the claimant. Social Security cases have been described as ‘the best example’ of agency adjudication not based on a judicial model. Although Social Security cases are, in numbers at least, the predominant form of ALJ hearing today, they are plainly not the prototypical regulatory hearing of the mid-1940s or the accusatory-style proceeding likely to lead to a finding of culpability or imposition of severe economic sanction whose procedural uniformity appears to be the predicate for an APA-default provision.’’); Bernard Schwartz, Adjudication and the Administrative Procedure Act, 32 Tulsa L. J. 203, 209 (1996) (‘‘At first glance, this three-hat system may appear to contravene the APA separation-of-functions requirements because the Social Security ALJ is not limited to hearing and deciding. The ALJ also has the task of developing both the claimant’s and the government’s case.’’). 25 ‘‘Final Report of Attorney General’s Committee on Administrative Procedure,’’ S. Doc. No. 77–8, at 55, 69, 263 (1941); see 1992 ACUS Report, at 815– 17. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 general analysis of agency adjudication– including its careful review of separations-of-functions issues– inapplicable to the benefit agencies.’’ 26 The Supreme Court approved the ‘‘three-hat’’ role of our adjudicators in Richardson v. Perales, without addressing the APA’s separation-offunctions requirements.27 In Perales, the Court was less concerned with the position title of our adjudicators than with ensuring that the hearings process worked fairly and efficiently. The Court declined to consider whether a Social Security hearing was a formal adjudication under the APA because, in the Court’s view, our hearings process, including the ‘‘three-hat role’’ for the adjudicator at the hearing, was fair and worked efficiently to process our tremendous volume of cases.28 The fairness and efficiency of the process, however, did not depend on the fact that an ALJ, as opposed to another type of adjudicator, presided over the hearing. Consequently, in light of the significant differences between our informal, inquisitorial hearings process and the type of hearings process to which the APA applies, our hearings process is properly viewed as comparable to the APA’s process, but governed only by the requirements of the Act and procedural due process.29 26 Daniel J. Gifford, Adjudication in Independent Tribunals: The Role of an Alternative Agency Structure, 66 Notre Dame L. Rev. 965, 987 (1991); see also Daniel J. Gifford, Federal Administrative Law Judges: The Relevance of Past Choices to Future Directions, 49 Admin. L. Rev. 1, 20–21 (1997) (Gifford, Past Choices). 27 402 U.S. 389, 410 (1971). 28 The Perales court relied on statistics showing that the agency received ‘‘over 20,000 disability claim hearings annually,’’ 402 U.S. at 406; see also id. at 403 n.7 (citing agency statistics showing that ‘‘in fiscal 1968, 515,938 disability claims were processed.’’) Those numbers pale in comparison to our more recent workload numbers. In 2019, we received and completed approximately 2.3 million initial disability claims, received more than 510,000 hearing requests, and completed more than 793,000 hearings. ‘‘Annual Performance Report, Fiscal Years 2019–2021’’ at 44, 46 (2020)). 29 See, e.g., 1992 ACUS Report, at 791–92 (‘‘The Social Security Administration had long utilized ALJs even though the APA on-the-record hearing requirements may not have required it to do so. . . . By the 1970s the number of disability determinations skyrocketed with the advent of expanded coverage. It became quickly apparent that the number of ALJs making disability determinations would far outstrip those making all formal decisions in government. The remarkable thing about this expanded use of ALJs was that it emerged without APA compulsion because no onthe-record hearing was mandated in the disability context.’’); Kent Barnett, Against Administrative Judges, 49 U.C. Davis L. Rev, 1643, 1664–65 (2016) (Barnett, Against Administrative Judges) (‘‘SSA has chosen to use ALJs in the absence of any ‘on the record’ language.’’); Paul R. Verkuil, Reflections Upon the Federal Administrative Judiciary, 39 UCLA L, Rev. 1341, 1348–49 (1992); Phyllis E. E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 We recognize, as some commenters noted, that on two prior occasions, Congress explicitly authorized us, on a temporary basis, to use non-ALJ adjudicators in our hearings process: first, after Congress created the disability program in the 1950s, and again when Congress created the Supplemental Security Income (SSI) program in the 1970s.30 One possible explanation for these temporary authorizations is that they reflect a congressional belief that, without such authorization, the APA would have compelled us to use ALJs in our hearings process. The commenters seemed to proceed from that assumption. However, an equally plausible explanation for Congress’s action is a need for expediency: Congress preferred to address the service delivery problems that arose after enactment of the disability and SSI programs through means that were the least disruptive to our existing processes. In this context, ‘‘Congress’s temporary authorization for non-ALJ Bernard, Social Security and Medicare Adjudications at HHS: Two Approaches to Administration Justice in an Ever-Expanding Bureaucracy, 3 Health Matrix 339, 353 n.18 (1993) (‘‘SSA decides large numbers of disability cases informally—that is outside the formal adjudication requirements of the APA—yet it uses ALJs to do so.’’); cf., ACUS, Equal Employment Opportunity Commission: Evaluating the Status and Placement of Adjudicators in the Federal Sector Hearing Program, at 11–12 (2014)). (https://www.acus.gov/ sites/default/files/documents/ FINAL%20EEOC%20Final%20Report%20%5B331-14%5D.pdf) (discussing SSA’s use of ALJs and noting that, ‘‘The relevant provision of the Social Security Act, however, required only an ‘opportunity for hearing,’ not a ‘hearing on the record.’ This language would not ordinarily be read to require observance of formal APA adjudication procedures.’’). 30 Public Law 85–766, 72 Stat. 864, 878 (1958); Public Law 86–158, 73 Stat. 339, 352 (1959); Public Law 92–603, 86 Stat. 1329, 1475 (1972). Notably, the legislation that authorized us to use non-ALJ adjudicators at the outset of the SSI program may have had an unintended effect. At the outset of the SSI program in 1974, as now, many claimants who applied for SSI payments under title XVI of the Act also applied for benefits under title II of the Act. We needed a feasible way to decide these concurrent claims, and using a different adjudicator to decide each claim would not have been supportable because concurrent claims usually involve common issues. Congress subsequently enacted legislation to address the issue. See Public Law 94–202, 89 Stat. 1135 (1976); H.R. Rep. No. 679, 94th Cong., 1st Sess. 3 (1975); S. Rep. No. 550, 94th Cong., 1st Sess. 3–4 (1975), reprinted in 1975 U.S.C.C.A.N. 2347, 2349–2350 (1975); Public Law 95–216, 371, 91 Stat. 1509, 1559 (1977); H.R. Conf. Rep. No. 837, 95th Cong., 1st Sess. 74 (1977), reprinted in 1977 U.S.C.C.A.N. 4308, 4320. The first law, Public Law 94–202, made the requirements for hearings held under title XVI of the Act consistent with those held under title II, and provided that the hearing examiners who had been hired under the original version of the SSI statute would be considered ALJs on a temporary basis. The second law, Public Law 95–216, made these adjudicators ALJs on a permanent basis. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 adjudication [after enactment of the disability program] was merely intended to provide relief to the SSA without revising the SSA’s decisional format. Under such a view, Congress did not consider the larger question of whether Title II proceedings were or were not governed by the APA or whether they required APA-qualified ALJs as presiding officers.’’ 31 We also disagree with those commenters who expressed possible due process concerns. It is important to note that there is no due process violation inherent in a hearing system that relies on adjudicators other than ALJs. Indeed, adjudicators other than ALJs significantly outnumber ALJs, and they preside over hundreds of thousands of adjudications in the Federal government each year, including many, such as those conducted by the Department of Veterans Affairs, that involve issues similar to the ones that our adjudicators are required to decide.32 With respect to the issue of who may be a decisionmaker in an adjudicatory proceeding, the fundamental requirement of due process is that the decisionmaker be fair and impartial.33 As we explained in the preamble of the NPRM, we will not implement these changes in a way that will undermine the independence and integrity of our existing administrative review process. We take seriously our responsibility to ensure that claimants receive accurate decisions from impartial decisionmakers, arrived at through a fair process that provides each claimant with the full measure of due process protections. Since the beginning of our administrative review process in 1940, we have held an unwavering commitment to a full and fair hearings process. This final rule will not alter the fundamental fairness of our longstanding hearings process. Under our current rules, and under sections 404.956(c) and 416.1456(c) of this final 31 1992 ACUS Report, at 820–21; see also Gifford, Past Choices, at 26, n.139. 32 See Kent H. Barnett, Some Kind of Hearing Officer, 94 Wash. L. Rev. 515, 541–43 (2019) (recognizing that non-ALJs significantly outnumber ALJs in the Federal government, and noting that, as of approximately June 2019, there were 1,931 ALJs versus at least 10,831 non-ALJs in the Federal government); John H. Frye, III, Survey of Non-ALJ Hearing Programs in the Federal Government 59– 79 (August 1991) (available at: https:// www.acus.gov/sites/default/files/documents/ 00000001.pdf.) 33 See, e.g., Schweiker v. McClure, 456 U.S. 188, 195 (1982) (noting that, ‘‘due process demands impartiality on the part of those who function in judicial or quasi-judicial capacities’’ and rejecting a due process challenge to the use of non-ALJ hearing officers who ‘‘serve[d] in a quasi-judicial capacity, similar in many respects to that of administrative law judges’’ in certain Medicare hearings). PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 73141 rule, our AAJs will apply the same rules that our ALJs apply when they hold hearings. As they do currently, under the authority prescribed by sections 404.979 and 416.1479, AAJs will independently decide cases based on the facts in each case and in accordance with agency policy set out in regulations, rulings, and other policy statements. They will continue to maintain the same responsibility and independence as ALJs to make fair and accurate decisions, free from agency interference. Because AAJs and ALJs have similar levels of training, will follow the same set of policies, and have equivalent decisional independence, we anticipate that when AAJs are used at the hearing level, they will provide the same level of service and fairness as ALJs do. Comment: A commenter said that the regulations and policies currently in place, which we cited as support for our NPRM, have only stood because they have not been previously implemented, and thus were never challenged. The commenter opined that the two regulations that give AAJs the authority to hear cases are in conflict with the APA, which requires adjudications on the record to be conducted only by the agency, one of the members of the body that comprise the agency, or an ALJ appointed under 5 U.S.C. 3105. Response: We disagree. As explained above, in light of the significant differences between our hearings process and the type of hearings process to which the APA applies, we believe our hearings process is properly viewed as comparable to the APA’s process, but governed only by the requirements of the Act and procedural due process. For the reasons discussed above, this final rule is consistent with the Act and safeguards the individual’s right to procedural due process. Comment: A commenter stated that it is only by regulations, not statute, that we use the Appeals Council to hear appeals at our agency. The commenter opined that if agencies could promulgate regulations and make anyone a member of the body that comprises the agency, then agencies would never need to use ALJs. The commenter cited the Supreme Court’s decision in Wong Yang Sung v. McGrath 34 as demonstrating that adjudicators authorized to conduct hearings only by regulation must give way to ALJs. Response: We disagree with this comment. Contrary to the commenter’s assumption, we are not providing our 34 See Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950). E:\FR\FM\16NOR2.SGM 16NOR2 jbell on DSKJLSW7X2PROD with RULES2 73142 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations AAJs with the authority to hold hearings because we consider them members of the body that comprise the agency under the APA. As we explained above, from the beginning of our hearings process, the head of our agency— initially, the Social Security Board, and currently, the Commissioner—has had statutory authority to decide, through rulemaking, how to structure our hearings process and who may preside over a hearing.35 Moreover, from the beginning of our hearings process, the head of our agency has delegated to the Appeals Council the authority to conduct hearings and issue decisions. We also disagree with the commenter’s characterization of the Court’s decision in Wong Yang Sung. In that case, the Court found that the APA’s formal adjudication requirements, which apply in every case of adjudication ‘‘required by statute’’ to be determined on the record after opportunity for a hearing, applied to immigration deportation hearings that were not required by statute, but by the Constitution and procedural due process. The court also held that immigrant inspectors, who held deportation hearings pursuant to regulations, did not fall within the APA’s exception for proceedings conducted by ‘‘officers specially provided for by or designated pursuant to statute.’’ 36 As previously discussed, our hearings process is required under sections 205(b)(1) and 1631(c)(1)(A) of the Act. In light of the significant differences between our hearings process and the type of hearings process to which the APA applies, the proper view of our hearings process is that it is comparable to the APA’s process, but governed by the requirements of the Act and procedural due process. Because our hearing process does not fall under the APA’s requirements for a formal adjudication, there is no basis to consider whether our AAJs would qualify as ‘‘officers specially provided for by or designated pursuant to statute.’’ Consequently, the commenter’s reliance on Wong Yang Sung is inapposite. Comment: Several commenters said that our agency has previously made statements indicating that we operate under the APA. For example, in responding to public comments on hearing procedures under title XVI, we said, ‘‘The regulations herewith governing full administrative hearing and review are in accordance with the Social Security Act, as amended, and Administrative Procedure Act (5 U.S.C. 554, 556, and 557) and comply with requirements for administrative due process.’’ 37 Response: We disagree with these comments. We recognize that the Department of Health, Education, and Welfare (HEW), our parent agency in the 1970s, and what was then called the Civil Service Commission (CSC) had a dispute over the appointment of ALJs to hear and decide claims under the SSI program after Congress enacted the program in 1972. In that intragovernmental dispute, HEW took the position that an SSI hearing was one to which the APA applied; the CSC took the opposite position, and contended that it had no authority to appoint ALJs for SSI hearings because an SSI hearing was not one to which the APA applied.38 The Department of Justice agreed with CSC’s position, and Congress ultimately resolved the dispute.39 Regardless of the position that HEW took on the issue in the 1970s, however, we have long held the view that our hearings process is governed by the requirements of the Act and due process, and is not subject to the formal adjudication requirements of the APA. As explained above, in light of the significant differences between our hearings process and the type of hearings process to which the APA applies, we believe our hearings process is properly viewed as comparable to the APA’s process, but governed by the requirements of the Act and procedural due process. For the reasons discussed above, this final rule is consistent with the Act and safeguards the individual’s right to procedural due process. Comment: According to a commenter, the recent U.S. Supreme Court decision Smith v. Berryhill 40 confirms that ALJs must conduct our hearings. The commenter said that the language of this decision indicates that it is not within the agency’s discretion to define a ‘‘hearing’’ or appropriate ‘‘due process.’’ The commenter said both are reserved for the judicial branch to interpret as a means of further protecting the public from agency over-reaching and ensuring the public receives the protections of the APA as intended by Congress. Another commenter said Smith v. Berryhill held that 42 U.S.C. 405(g) provides for judicial review of any final decision made after a hearing before an ALJ, not another group of people. Another commenter said SSA is ignoring the negative impact this rule 41 Id. 37 39 35 See sections 205(b)(1), 702(a)(4)–(7), 1631(c)(1)(A) of the Act. 36 339 U.S. at 51–52. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 change will have on due process and increasing the likelihood that claimants will need to appeal decisions directly to the Federal district courts based on the recent decision of Smith v. Berryhill. Response: We disagree with these comments. The Supreme Court did not decide in Smith the type of adjudicator who may preside over our administrative hearings. Rather, Smith concerned the narrow issue of ‘‘whether a dismissal by the Appeals Council on timeliness grounds after a claimant has received an ALJ hearing on the merits qualifies as a ‘final decision . . . made after a hearing’ for purposes of allowing judicial review under [section 205(g) of the Act].’’ 41 The Court held that ‘‘[w]here, . . . a claimant has received a claim-ending timeliness determination from the agency’s last-in-line decisionmaker after bringing his claim past the key procedural post (a hearing) mentioned in [section 205(g) of the Act], there has been a ‘final decision . . . made after a hearing under [section 205(g)].’’ 42 We recognize that the Court noted, in dicta, that ‘‘the ‘hearing’ referred to in [section 205(g)] cannot be a hearing before the Appeals Council.’’ 43 However, we do not interpret this statement to have any effect on this final rule clarification. The Court made this statement in support of its conclusion that ‘‘the fact that there was no Appeals Council hearing . . . does not bar review.’’ 44 In other words, the Court ruled that the claimant in Smith could obtain judicial review of the Appeals Council’s dismissal of his request for review even though the Appeals Council did not hold a hearing. The Supreme Court in Smith did not decide the type of adjudicator who may preside over our administrative hearings. The Court noted, moreover, that it need not conclusively define ‘‘hearing’’ as used in section 205(g), because the claimant in Smith had clearly obtained the type of hearing on the merits contemplated by the statute.45 When an AAJ removes a request for a hearing under this final rule, the claimant will still receive the type of merits hearing contemplated by the statute. The AAJ will conduct all proceedings in accordance with the rules that apply to ALJs, and if the claimant is dissatisfied with the hearing decision or dismissal, he or she may ask the Appeals Council to review that action. The AAJ who conducted the FR 37976 (Oct. 25, 1974). 38 See Gifford, Past Choices, at 16–17. 39 See supra note 30. 40 139 S. Ct. 1765 (May 28, 2019). PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 at 1771. at 1777. 43 Id. at 1775 n.10. 44 Id. 45 Id. at 1775. 42 Id. E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 hearing or issued the decision or dismissal will not participate in any action associated with the request for review. In effect, hearings and appeals will remain separate and distinct. The claimant will also retain the right to request judicial review of the agency’s final decision. Because this final rule does not affect a claimant’s right to a hearing on the merits as contemplated by the Act, we do not believe the Supreme Court’s decision in Smith precludes the rule. Comments About the Congressional Intent Underlying the Act Comment: According to one commenter, Congressional action makes clear that Congress has long understood that we were required to use ALJs to decide cases. One commenter asserted that, historically, it has only been at the explicit direction of Congress, through the enactment of new law, that we have been empowered to use non-ALJs to decide cases. The commenter said that twice in the 1950s, Congress enacted emergency legislation to permit non-ALJ adjudication, but both times the legislation included a time limit. According to the commenter, the most recent time Congress legislated on our use of ALJs was in 1977, to repeal a provision that permitted us to use nonALJs to preside over appeals for the recently created SSI program. The commenter opined that these examples demonstrate that Congress understood that we were required to use ALJs and legislation is necessary to permit us to use non-ALJs. Response: We disagree with these comments. As previously discussed, we recognize that on two prior occasions, Congress explicitly authorized us, on a temporary basis, to use non-ALJ adjudicators in our hearings process: First, after Congress created the disability program in the 1950s and again when Congress created the SSI program in the 1970s.46 We have previously explained above that, as the Administrative Conference of the United States has recognized, these congressional actions do not unambiguously indicate that Congress intended us to use ALJs to hear and decide all claims. Moreover, Congress has, in fact, made conflicting statements on this issue. For example, in the Conference Report on H.R. 4277, which became the Social Security Independence and Program Improvements Act of 1994, the conference committee expressed its 46 Public Law 85–766, 72 Stat. 864, 878 (1958); Public Law 86–158, 73 Stat. 339, 352 (1959); Public Law 92–603, 86 Stat. 1329, 1475 (1972). VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 understanding of present law as being that our hearings process was not subject to the APA.47 Notably, we have previously used non-ALJs to issue decisions without an enactment of new law. Under our current rules, attorney advisors have authority to conduct prehearing proceedings in some cases, and issue fully favorable decisions, as a result of those proceedings.48 We adopted our attorney advisor program during the 1990s when we were again confronted with an unprecedented volume of hearing requests. In an effort to process those requests more timely, we published final rules in June 1995 establishing the attorney advisor program for a limited period of two years.49 The program’s success prompted us to renew it several times until it expired in April 2001.50 In August 2007, we published an interim final rule that reinstituted the attorney advisor program,51 and in March 2008, we issued a final rule without change.52 As before, we intended the program to be a temporary modification to our procedures, but with the potential to become a permanent program. Since that time, we periodically extended the sunset date of the program,53 until we decided to make it permanent in August 2018 because it had become an integral tool in providing timely decisions to the 47 H.R. Conf. Rep. No. 103–670, at 98 (1994), reprinted in 1994 U.S.C.C.A.N. 1553, 1564 (noting that, ‘‘Although not required by law, the agency follows the procedures of the Administrative Procedures [sic] Act (APA) with respect to the appointment of ALJs and the conduct of hearings.’’). See, e.g., Barnett, Against Administrative Judges, at 1664–65 (‘‘[I]t is far from clear that the SSA is required to use ALJs or formal adjudication under the APA. After all, legislative history to statutory amendments in 1994 states that although the SSA uses ALJs, the use of ALJs and formal APA proceedings are ‘not required by law.’ ’’); ACUS Final Report on EEOC Adjudication, at 11–12, n.73 (‘‘There nonetheless remains some dispute over whether Congress intended to require DI and SSI hearings be conducted under the APA.’’). 48 20 CFR 404.942 and 416.1442. 49 60 FR 34126 (June 30, 1995). 50 62 FR 35073 (June 30, 1997) (extending expiration date to June 30, 1998); 63 FR 35515 (June 30, 1998) (extending expiration date to April 1, 1999); 64 FR 13677 (Mar. 22, 1999) (extending expiration date to April 1, 2000), 64 FR 51892 (Sept. 27, 1999) (extending expiration date to April 2, 2001). 51 72 FR 44763 (Aug. 9, 2007). 52 73 FR 11349 (Mar. 3, 2008). 53 74 FR 33327 (July 13, 2009) (extending expiration date to August 10, 2011); 76 FR 18383 (May 4, 2011) (extending expiration date to August 9, 2013); 78 FR 45459 (July 29, 2013) (extending expiration date to August 7, 2015); 80 FR 31990 (June 5, 2015) (extending expiration date to August 4, 2017); 82 FR 34400 (July 25, 2017) (extending expiration date to February 5, 2018); and 83 FR 711 (Jan. 8, 2018) (extending expiration date to August 3, 2018). PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 73143 public while maximizing the use of our ALJs.54 Comments About the Clarity of Our NPRM Comment: Several commenters said there are a number of questions that we did not address in our NPRM, which makes it difficult for the public to evaluate the proposal. Some commenters said the proposal was so vague that it is impossible for the public to provide meaningful comment on it and, as a result, the proposal does not meet the basic requirements of rulemaking under the APA. Among the questions raised, commenters asked when an AAJ would be assigned a claim, hold a hearing, and issue a decision. Others asked when and how often we expect AAJs to exercise the authority to hold hearings (e.g., if there will be a threshold for the number of pending hearing requests above which we would exercise this authority). Some commenters wanted to know if we would give AAJs the same goals as ALJs in terms of case processing. Others asked if we envision hiring more AAJs, if AAJs will hold hearings by video teleconference, and if we would place AAJs in local offices. One commenter asked if a claimant could object to a hearing by an AAJ and ask for an ALJ instead. Some commenters wanted to know if AAJ decisions would be subject to quality reviews and if AAJs who hear cases would continue to hear appeals at the same time. Response: We continually evaluate our available authority to best handle our work. As discussed above and in the preamble of our NPRM, AAJs have had authority to remove hearing requests, hold hearings, and issue decisions since the beginning of our hearings process in 1940. This final rule merely seeks to clarify the rules that would govern when and how AAJs hold hearings and issue decisions. Furthermore, this rule provides that AAJs will be subject to the same policies and procedures as ALJs, if they remove a request for a hearing. We expect that these revisions will provide us with much-needed flexibility to respond to, and mitigate, the impact of surges in hearing requests and to meet the needs of the public we serve. There may be nationwide caseload surges, regionalized caseload surges, or other circumstances that warrant staffing hearings with new or reallocated AAJ staff. For example, the caseload surge in the wake of the 2008 recession serves as a clear example of a system-wide backlog where, under this rule, new or 54 83 E:\FR\FM\16NOR2.SGM FR 40451 (Aug. 15, 2018). 16NOR2 73144 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations reallocated AAJs could augment the current number of ALJs conducting hearings. Using AAJs can allow the agency to conduct more hearings with less wait time for claimants. This rule is intended to provide flexibility when there is a need for additional support at the hearings level. As another example, in a situation where a regional office unexpectedly needs to re-hear a substantial number of cases, this rule will allow SSA to add additional AAJs to the hearing level review. We did not specify when we would exercise this authority so that we are able to address unforeseen circumstances. For example, since March 2020, we have had to modify substantially our normal hearings process in light of the national public health emergency resulting from the COVID–19 global pandemic. We closed our hearing offices to the public and began offering claimants the opportunity for a hearing by telephone. Such unforeseen scenarios have the potential to disrupt substantially our normal operations and the availability of all of our adjudicators. We therefore should prepare for this type of unforeseeable circumstance by ensuring that our rules allow us the maximum flexibility to hear and decide claims, in order to provide an appropriate level of public service. This final rule will help us do that. In terms of the other specific questions, we will apply the same rules that apply to ALJs when AAJs hold hearings and issue decisions. In addition to this rule, we will continue to utilize other flexibilities during surges in hearing requests and during case backlogs, such as shifting cases from hearing offices that are overburdened to hearing offices that have less of a demand or reassigning cases to ALJs or AAJs that have the capacity to take on additional cases, to help reduce the number of pending hearing requests and use all of our adjudicative resources in the most effective manner. jbell on DSKJLSW7X2PROD with RULES2 Comments About the Data and Evidence That Justifies the Rule Comment: Some commenters said that we did not comply with the rulemaking provisions of the APA because we did not provide technical studies or data to explain or support the necessity of this change. One commenter said our NPRM makes conclusory statements that having AAJs conduct hearings will help us process claims faster, with no data or information on how we reached this conclusion. Further, the commenter stated the NPRM does not provide information on how we will track or VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 monitor the data to see if the rule leads to faster claims processing. One commenter said that we did not substantiate our assertions related to our need for flexibility and increased capacity to address short-term workloads. According to the commenter, our only rationale for needing additional adjudicative flexibility is the difference in hearing wait times across the country. In the commenter’s opinion, we already have enough flexibility to address such disparities. The commenter said that we should use our existing flexibility (e.g., our national first in, first out case assignment policy; our ability to transfer workloads between hearing offices; and our ability to schedule appearances by video teleconferencing) to balance the hearing level workload and address any future surge in hearing requests rather making the proposed changes final. Response: We disagree that our NPRM required technical studies or data to support this change. As we explained above, this final rule merely clarifies the existing authority of AAJs to hold hearings and issue decisions, in response to questions raised about our existing authority for AAJs to assume ALJ hearings. Additionally, the commenter mischaracterized our rationale for using AAJs to hold hearings and issue decisions. We have not asserted that having AAJs hold hearings and issue decisions will result in faster claim processing times. Instead, we believe this final rule will allow us flexibility to prevent an increase in waiting times that would naturally occur, if there were no increase in adjudicatory capacity to respond to a surge in hearing requests. In our experience, expanding our adjudicative capacity allows us to hear and decide more cases. By expanding our adjudicative capacity, we anticipate that if there is a surge in hearing requests, as we have regularly seen over the history of our programs, we can use AAJs to hear and decide cases pending at the hearing level. As such, we anticipate this change will assist in reducing the amount of time a claimant must wait before we hold a hearing on his or her claim for benefits, if there were no increase in adjudicatory capacity. Currently we have 71 AAJs, which is in alignment with staffing needs relative to the current workload at the Appeals Council. In certain circumstances, we may be able to use existing AAJ staff at the hearing level to supplement hearing level caseload surges, and we may have to use AAJs even when Appeals Council pending cases are average or above average, if there is a relative critical PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 need at the hearings level. However, to avoid creating a subsequent backlog at the Appeals Council or to provide greater support, we may need to hire additional AAJs to conduct hearings or to assist with pending cases at the Appeals Council. When additional flexibility is needed, the additional AAJs may help to reduce processing wait times and may avoid the development of a backlog at the Appeals Council. Comments About the Timing and Necessity of the Rule Comment: One commenter said that we did not give a compelling explanation for (1) why we have not exercised this authority in the past; (2) why we have decided to exercise the authority now; and (3) why the regulation is necessary if the authority already exists. Response: We acknowledge that although AAJs already have authority under our current regulations to remove a request for a hearing that is pending before an ALJ, hold a hearing, and issue a decision,55 we have not exercised this authority in the past. A major reason we had not previously exercised this authority was a lack of regulatory guidance on how we would exercise the authority. For this reason, this final rule clarifies that if the Appeals Council assumes responsibility for a hearing request, it must conduct all proceedings in accordance with the rules set forth in sections 404.929 through 404.961 or 416.1429 through 416.1461, as applicable. This final rule also clarifies in section 422.205(a) that Appeals Council decisions and dismissals issued on hearing requests removed under sections 404.956 or 416.1456 require only one AAJ’s signature. Additionally, this final rule clarifies that if a claimant is dissatisfied with a hearing level decision issued by an AAJ, he or she may request Appeals Council review. Further, as stated above, we are providing guidance now in preparation of exercising this authority, should the need arise. Comment: One commenter said that it is now as easy to hire ALJs as it is to hire AAJs, because we (not the Office of Personnel Management (OPM)) now predominantly administer the process. The commenter questioned why we would choose now to assert this regulatory authority, when presumably there is no practical need for us to do so. Response: We acknowledge that our agency is now predominately responsible for hiring ALJs. However, 55 See E:\FR\FM\16NOR2.SGM 20 CFR 404.956 and 416.1456. 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations we are not pursuing this regulation because of previous hiring practices. The change in the hiring process is not directly relevant to this final rule and our reasons for pursuing this final rule, which we previously explained, still exist. Comment: Several commenters asserted there are more than sufficient numbers of ALJs to handle the current workload and, therefore, there is no need to revise our rules. A commenter said that our ALJs reduced the pending number of cases to its lowest point in 15 years at the end of Fiscal Year 2019 and virtually eliminated the backlog. According to the commenter, ALJs have met expectations and are keeping pace with the number of cases filed. Response: Currently there are 1,389 ALJs and 71 AAJs. At the end of May 2020, we had approximately 450,048 applicants for benefits who were waiting for a hearing before an ALJ.56 Though our number of current pending cases is not as high as it has been at peak levels, we expect that these revisions will provide us with muchneeded flexibility to respond to, and mitigate, the impact of surges in hearing requests as necessary in the future. Furthermore, we wanted to allow the public the opportunity for public comment, as we prefer not to implement changes on a temporary basis in times of immediate need. Given the length of time that it takes to engage in the notice and comment process required in rulemaking, we are engaging in the rulemaking process now before any potential future surge in hearing receipts. If we delay the start of the rulemaking process, a sudden increase in hearing receipts could potentially overwhelm our limited administrative resources by the time the rulemaking process is complete. We have seen this happen in the past, such as when the sudden rise in claims and hearing requests after the 2008 recession resulted in more than 1.1 million pending hearing requests. In order to be appropriate stewards of the Social Security programs, we need to plan for such inevitable surges, and not merely be reactive to them. jbell on DSKJLSW7X2PROD with RULES2 Comments About Our Motives for the Rule Comment: Multiple commenters opined that we were pursuing this 56 We are making the national Hearing Office Workload from June 2020 available as supporting documentation, at https://www.regulations.gov, under ‘‘supporting and related material’’ for this docket, SSA–2017–0073. The national Hearing Office Workload information is also available at https://www.ssa.gov/appeals/DataSets/02_HO_ Workload_Data.html. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 regulation for reasons other than those we stated. One commenter stated this rule was an attempt to circumvent fair labor laws and intimidate the Association of Administrative Law Judges (AALJ) union into backing off its position during the current labor negotiations. Another commenter opined that AAJs do not have enough work to do and this proposal is an attempt to save AAJ jobs. Multiple commenters said that this proposal was a step toward discontinuing our use of ALJs. Several commenters opined that we want to get rid of ALJs so we may have more control over disability determinations. Another commenter asked if this rule is the first step toward combining the hearing and Appeals Council levels of review. Response: The commenters’ characterizations of and speculations about the purposes behind our rule are incorrect. As we stated in the NPRM, we are pursuing this final rule to increase our adjudicative capacity when needed, allowing us to adjust more quickly to fluctuating short-term workloads, such as when an influx of cases reaches the hearing level. Our ability to use our limited resources more effectively will help us quickly optimize our hearings capacity, which in turn will allow us to issue accurate, timely, and high-quality decisions. We are not pursuing this regulation to affect labor negotiations, save jobs, discontinue the use of ALJs, or combine the ALJ and Appeals Council levels of review. Comments About the Decisional Independence of ALJs Versus AAJs Comment: Commenters said that ALJs are appointed with the specific purpose of ensuring a neutral and impartial factfinder, free from pressure from their hiring agency and political influence, to adjudicate appeals of agency decisions. Measures such as independent proceedings for termination protect ALJs, as they are not subject to performance evaluations and are ineligible for bonuses. The commenter said that ALJs have these protections so they can make decisions objectively, independently, and fairly, without fear of interference or influence from an agency. Commenters asserted that, in contrast, AAJs receive performance evaluations and potential bonuses, and the Commissioner can more easily remove them from their positions. Commenters said that the ALJ and AAJ positions could never be equivalent, if one is subject to agency-imposed performance standards, while the other is not. Commenters concluded that allowing AAJs to hold hearings would effectively PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 73145 subject the entire administrative adjudication process to performance appraisal control by our agency. Response: We disagree with these comments. We take seriously, and always have taken seriously, our responsibility to ensure that claimants receive accurate decisions from an impartial decisionmaker, arrived at through a fair process that provides each claimant with the full measure of due process protections. We have held an unwavering commitment to a full and fair hearings process since the beginning of the Social Security administrative review process in 1940, and we do not intend to alter the fundamental fairness of our longstanding process in this final rule. Under this final rule, our AAJs, like our ALJs, will have the same responsibility that they always have had to make fair and accurate decisions, free from agency interference. As explained in the preamble, any AAJ who holds hearings and issues decisions on any case pending at the hearing level under titles II, VIII, or XVI of the Act, would be required to follow the same rules as ALJs including exercising independent judgment and discretion in individual cases. Comment: Commenters opined that it is not enough for us to say that non-ALJs presiding over hearings would have qualified decisional independence under agency policy. They said that statement is insufficient because we can easily change this ‘‘internal agency policy.’’ Response: We disagree with this comment. As noted in the response above, when AAJs hold hearings and issue hearing level decisions, they are required to exercise independent judgment and discretion. Furthermore, AAJs currently issue decisions independently under the authority prescribed by sections 404.979 and 416.1479. We do not intend to change this requirement of their position, and disagree that this is just an ‘‘internal agency policy’’ that is easily changed. We would not compromise the integrity and fairness of our programs by infringing upon an AAJ’s ability to exercise independent judgment and discretion in individual cases. Comment: One commenter said using AAJs would create the appearance of partiality that violates the due process clause of the U.S. Constitution. According to the commenter, due process concerns itself with the appearance of partiality and not an actual showing of partiality. Another commenter said recent decisions from the Supreme Court support the assertion that there are legitimate due process concerns about the impartiality of AAJs, E:\FR\FM\16NOR2.SGM 16NOR2 73146 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 because we retain the ability to control the decision making and, therefore, there remains the appearance of partiality.57 The commenter also said decisions issued by AAJs who are not impartial will be held invalid, and these cases could usher in class action lawsuits in light of Lucia v. SEC.58 The commenter said that ALJs increase the likelihood of deferential judicial review and absolute official immunity for our adjudicators.59 According to another commenter, this proposal could make our system unfair or perceived to be unfair, and for that reason, the courts could overturn more decisions. Response: We disagree with this comment. As stated previously, there is no due process violation inherent in a hearing system that relies on adjudicators other than ALJs.60 We will not implement this final rule in a way that could undermine the independence and integrity of our existing administrative review process. We take seriously our responsibility to ensure that claimants receive accurate decisions from impartial decisionmakers, arrived at through a fair process that provides each claimant with the full measure of due process protections. This revised rule would not alter the fundamental fairness of our longstanding hearings process because it requires AAJs to follow the same rules that apply to ALJs in a process that the Supreme Court has long held is consistent with due process. Additionally, if the Appeals Council denies a request for review of an AAJ decision, parties would have the ability to seek judicial review in Federal district court pursuant to section 205(g) of the Act. Comment: One commenter said it is best to have a local hearing with an ALJ. The commenter said that in his or her experience, AAJs ‘‘rubber stamp’’ denials or find reasons to remand cases, which prolongs cases unnecessarily and does not ultimately help claimants win. The commenter asserted that AAJs work together in the Washington, DC, area and seem to be ‘‘company men and women,’’ while ALJs are in local communities across the country. The commenter opined that a local ALJ is better than an AAJ because the AAJs do 57 One commenter cited Caperton v. A.T. Massey Coal Co, 556 U.S. 868 (2009). According to the commenter, it did not matter if Justice Benjamin said that he was not biased, the appearance of partiality was so strong, he should have recused himself from deciding the case. 58 138 S.Ct. 2044 (2018). 59 The commenter cited Butz v. Economou, 438 U.S. 478, 513, 98 S. Ct. 2894, 57 L.Ed. 2d 895 (1978). 60 See, e.g., Schweiker v. McClure, 456 U.S. 188, 195 (1982). VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 not know local areas and are concerned more about keeping their employer happy than helping people. Response: Under this final rule, AAJs would apply the same rules as ALJs when holding hearings. While our AAJs work from several locations near Baltimore, Maryland, and Washington, DC, the physical location of our hearing level adjudicators is not relevant because we administer national programs and apply uniform policies and procedures nationwide to the extent feasible. Additionally, our AAJs will continue to possess the same responsibility and independence they have always had to make fair and accurate decisions, free from agency interference.61 We also note that the ALJs in the National Hearing Centers adjudicate cases outside of their locality. Comment: A commenter asserted it would appear unfair for the Appeals Council to act on a request for review of a hearing level decision or dismissal issued by an AAJ. A different AAJ would have to consider the request, but that AAJ would be a colleague of the AAJ who issued the decision or dismissal. Response: To ensure impartiality, this final rule precludes an AAJ who conducted a hearing, issued the decision in a case, or dismissed a hearing request, from participating in any action associated with a request for Appeals Council review in that case. Similarly, AAJs will also be precluded from participating in quality reviews or own motion reviews of any decisions they issued at the hearing level. An AAJ reviewing a hearings level decision will consider the circumstances of the case in accordance with agency policy set forth in the regulations, rulings, and other policy statements, and will exercise independent judgement, free from agency pressure. We also intend to provide subregulatory guidance on AAJ recusals in requests for hearings, as we do for ALJs in the Hearings, Appeals, and Litigation Law (HALLEX) manual I– 2–1–60A.62 In addition, we note that under our current business processes, AAJs 61 Our ALJs have protections that provide them with qualified decisional independence, which ensures that they conduct impartial hearings. They must decide cases based on the facts in each case and in accordance with agency policy set out in regulations, rulings, and other policy statements. Further, because of their qualified decisional independence, ALJs make their decisions free from agency pressure or pressure by a party to decide a particular case, or a particular percentage of cases, in a particular way. Consistent with our longstanding policy and practice, our AAJs will continue to follow these same principles. 62 See https://www.ssa.gov/OP_Home/hallex/I-02/ I-2-1-60.html. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 already review the work of other AAJs. The Appeals Council conducts a random sampling of AAJ work product in its in-line quality review process, where an AAJ reviews the work product of another AAJ. Comments About the Experience and Skills Levels of AAJs and ALJs Comment: According to one group of commenters, the title, ‘‘Administrative Appeals Judge,’’ in many ways confuses this issue as it does not accurately describe the position and is a misnomer. The commenters said, before the mid1990s, the Appeals Council was composed of members, not judges. According to the commenter, the title, ‘‘member,’’ aptly described the position: A member of a group that ensures the consistency and uniformity of agency decisions. The commenters also said that the mission of the Appeals Council is to adjudicate cases similarly to ensure that we treat claimants fairly and consistently throughout the nation. The commenters, who formerly served on the Appeals Council, said when they were part of the Appeals Council, they regularly met as a group to debate and decide questions of policy and procedure. They bound themselves according to the policy interpretations to ensure they reviewed cases consistently and uniformly. Conversely, ALJs hear and decide benefit cases de novo. Using the Commissioner’s rules and regulations, ALJs render individualized decisions, tailored to the evidence presented on the record. According to the commenter, while both positions require a thorough knowledge of our agency’s rules and regulations, the skill sets for each job are radically different. Further, another commenter questioned why we have two different positions if we believe that there is no difference between the skills and experience of ALJs and AAJs. Response: We disagree with the commenter’s assertion regarding the description of the duties of AAJs. While part of the position description of an AAJ requires ‘‘formulating, determining, or influencing the policies of an agency,’’ that role is distinct from an AAJ’s other responsibilities of exercising independent judgment and discretion when reviewing decisions of ALJs. Like an ALJ, an AAJ’s responsibilities include that they ‘‘may hold hearings or supplemental hearings.’’ 63 In addition, an AAJ may hold an oral argument with a claimant 63 See USA Jobs announcement number SV– 10664781, closed December 6, 2019, available at https://www.usajobs.gov/GetJob/ViewDetails/ 552976200. E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations or representative to decide issues based on the record.64 Therefore, AAJs have additional responsibilities than what the comment asserts. We also disagree that the skill sets for AAJ and ALJ jobs are radically different. To become an ALJ or AAJ, applicants must have at least 7 years of progressively more responsible experience as a licensed attorney preparing for, participating in, or reviewing formal hearings or trials involving litigation or administrative law at the Federal, State, or local level. An applicant for either position is required to have experience in preparation, presentation, or hearing of formal cases before courts or governmental bodies. Additionally, in April 2001, Congress made the pay scales for AAJs identical to that of ALJs, which further supports similarities in the skill sets required for the two positions.65 Moreover, we note that under our current rules, AAJs, like ALJs, issue individualized decisions using the same skill of applying agency policy to the facts of the case.66 In the past, we have had ALJs detailed on a temporary basis to serve as AAJs, further demonstrating that the two positions share similar skill sets. Comment: One commenter questioned if an ALJ’s knowledge, skills, and abilities and other qualifications would be identical to an AAJ’s requirements when we release a new position description for ALJs now that we are responsible for our own ALJ hiring. According to another commenter, the most recent job announcements for AAJs and ALJs do not support the contention that AAJs and ALJs have the same skills and experience. The commenter said that the AAJ position requires formulating, determining, or influencing the policies of the agency. According to the commenter, AAJs review cases for policy compliance 67 and may take a variety of actions, including: Dismissing or denying a request for review of an ALJ decision; issuing a decision affirming, modifying or reversing the ALJ decision; and conducting own motion pre-effectuation and other quality reviews. The commenter said, while AAJs engage in a range of activities, their adjudication ‘‘. . . mostly involves error jbell on DSKJLSW7X2PROD with RULES2 64 See 20 CFR 404.976 and 416.1476. https://www.chcoc.gov/content/new-paysystem-administrative-appeals-judges; 5 U.S.C. 5372 and 5372b. 66 See 20 CFR 404.979 and 416.1479. 67 The commenter cited the Social Security Administration, ‘‘Fiscal Year 2020 Congressional Justification,’’ 16 (2019), available at https:// www.ssa.gov/budget/FY20Files/FY20-JEAC_2.pdf. 65 See VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 correction.’’ 68 In addition, unlike ALJs, AAJs cannot complete some actions on their own. Two AAJs are required to grant a request for review or to initiate a review on own motion, and as a result, about one-fifth of Appeals Council annual actions involve sign-off by two AAJs. According to the commenter, ALJs play a very different role. They do not set policy or perform a quality review function. Instead, ALJs’ day-today work is holding non-adversarial, on the record, de novo hearings. As noted in the position description, ALJs make and issue decisions directly and their decisions ‘‘may not be substantively reviewed before issuance.’’ ALJs must possess ‘‘special knowledge and abilities’’ that are not required for AAJs, outlined in the ALJ position description. Response: While we have not yet finalized any new ALJ position description, we disagree with any assertion that the position description would have to be identical to the knowledge, skills, and abilities, and other qualifications of an AAJ, because the primary duties of these positions are not identical. Nonetheless, the qualifying knowledge, skills, and abilities will be substantially similar, if not identical to the requirements of the AAJ position. We also disagree that the most recent job announcements for AAJs and ALJs do not require the same skills and experience. While we acknowledge that the required skills and experience in the recent postings for AAJ and ALJs use different terminology in describing the required experiences, the required underlying skills and experience are the same and can be obtained through at least 7 years of experience preparing for, participating in, or reviewing cases at formal hearings or trials involving administrative law or courts.69 In 68 The commenter cited ‘‘ACUS, A Study of Social Security Litigation in the Federal Courts’’ (2016), available at https://www.acus.gov/report/ report-study-social-security-litigation-federalcourts. 69 The ALJ posting indicates that individuals may meet the minimum qualifications for the position through a general description of qualifying experiences (e.g., participate in settlement or plea negotiations in advance of hearing cases or trial; prepare for trial or hearings; prepare opinions; hear cases; participate in or conduct arbitration, mediation, or other alternative dispute resolution approved by the court; or participate in appeals related to the types of cases above). An individual can meet the qualifying experiences for the AAJ position through the same types of tasks listed under the ALJ position description; however, the minimum qualifications use different terminology. For example, instead of using the broad description of ‘‘preparing opinions’’ in the ALJ posting, the AAJ posting lists specific examples of qualifying experiences (e.g., review, analyze, evaluate, and recommend action to be taken; assimilate, analyze, and evaluate complex facts; interpret and apply PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 73147 addition, qualifications for both positions require the applicant to be licensed and authorized to practice law under the laws of a State, the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court established under the United States Constitution.70 This final rule clarifies under section 422.205(a) that Appeals Council decisions and dismissals issued on hearing requests removed under sections 404.956 or 416.1456 require only one AAJ’s signature Two AAJ signatures will continue to be required when the Appeals Council grants a request for review or decides on its own motion to review an action. Comment: Some commenters offered the fact that we hired our current ALJs through the competitive service hiring process overseen by OPM as evidence that they were more highly qualified than AAJs. The commenters said that the OPM screening process was extensive and included a rigorous interview process as well as an exam to evaluate the competencies, knowledge, skills, and abilities essential to performing the work of an ALJ. Some commenters questioned if AAJs take an exam before we hire them, and, if so, how it compares to the exam ALJs took. They also asked what experience is required to be an AAJ compared to ALJs. Commenters said we did not provide evidence, data, or information to allow the public to evaluate if AAJs possess the same skills and experience as that of our ALJs. Response: The President issued Executive Order 13843 in July 2018 requiring appointments of ALJs be made under Schedule E of the excepted service.71 Therefore, the comments regarding ALJs hiring through the OPM and competitive service process are moot. Although AAJs are not required to take an exam before we hire them, we note that the most recent ALJ posting 72 does not require an exam. Further, as discussed above, the knowledge, skills, and underlying experience required in law, regulations, court decisions, and other precedents; propose fair and equitable solutions in accordance with applicable law and regulations; and write clear, cogent opinions). Compare ALJ job posting (USA Jobs announcement SV–10423180, closed April 12, 2019, available at https:// www.usajobs.gov/GetJob/ViewDetails/529866200) with AAJ job posting (USA Jobs announcement number SV–10664781, closed December 6, 2019, available at https://www.usajobs.gov/GetJob/ ViewDetails/552976200). 70 We note that AAJs must remain licensed attorneys throughout their tenure, while incumbent ALJs need not maintain licensure (see 5 CFR 930.204(b); 78 FR 71987 (Dec. 2, 2013) (eliminating the licensure requirement for incumbent ALJs)). 71 83 FR 32755 (July 10, 2018). 72 See https://www.usajobs.gov/GetJob/ ViewDetails/529866200/. E:\FR\FM\16NOR2.SGM 16NOR2 jbell on DSKJLSW7X2PROD with RULES2 73148 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations the job postings for AAJ and ALJ are very similar, if not the same. Comment: Some commenters asked what type of training AAJs receive and how it is different from the training ALJs undergo. One commenter asked what additional training AAJs would receive to ensure they have the skills needed to conduct hearings at the ALJ level. These commenters questioned the cost of additional training, asked when AAJs would receive the training, and inquired how long it would take to get AAJs trained if we exercise the authority. Response: When we exercise this authority, we will ensure that the AAJs possess the knowledge, skills, and training required to conduct hearings. We would use existing ALJ training materials, as applicable, to train our AAJs. Because any AAJs who may have to use this authority will have experience with our programs due to their work as Appeals Council members, we do not anticipate the training to take as long as for someone unfamiliar with our programs. While newly-hired ALJs receive four weeks of in-person training, only about one of those four weeks focuses on conducting hearings. The remaining three weeks focus on training ALJs on our programs and other internal procedures related to our disability adjudication process. So, we do not anticipate that AAJs will need more than a week or two of training in order to exercise this authority. In addition, AAJs currently have access, and will continue to have access, to the Office of Hearings Operations’ Continuing Education Program, so continuing education will be available to AAJs as well. Comment: Commenters said that candidates for ALJ positions must have significant experience prior to being hired through the OPM screening process and they questioned if AAJs possess the same experience. According to the commenter, the most important experience requirement is participation in hearings or similar proceedings. The commenter said that the ability to assess the credibility of claimants and other witnesses, to effectively question claimants and other witnesses to establish facts and prove or disprove assertions of claimants, and to oversee a hearing proceeding in a fair, respectful, and impartial manner are extremely important skills for an adjudicator holding hearings. Commenters noted that applicants for ALJ positions hired through the OPM screening process were required to demonstrate 7 years of experience as a licensed attorney preparing for, participating in, or reviewing formal VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 hearings or trials involving litigation or administrative law. The commenter questioned if any of the current AAJs comprising the Appeals Council have experience holding or participating in hearings, and if so, the amount of time that may have elapsed since AAJs last participated in hearings. According to the commenter, hearings experience between an AAJ and an ALJ would not be equivalent because an ALJ holds hearings as a regular, routine, ongoing duty, and we would be asking AAJs to hold hearings only periodically. Another commenter said that ALJs regularly exercise the skill of independently reviewing copious amounts of medical records and conducting their own independent analysis of the evidence when performing their work. In contrast, the commenter asserted, AAJs do not. Response: As discussed in our responses above, AAJs and ALJs have similar hiring requirements and skills, and we will ensure that AAJs receive the proper initial and continuing training in order to conduct hearings. We disagree that AAJs do not possess the skill to review and analyze medical records. Currently, in acting on requests for review and performing own motion review of ALJ decisions, AAJs review the same record that was before the ALJ in order to assess the sufficiency of the ALJ’s decision. Comment: One commenter said that AAJs use other SSA employees, known as analysts, who do the bulk of the work for them. The commenter said that the analysts are not vetted as ALJs are, and more importantly, they are subject to performance evaluations. Response: We disagree that analysts do the bulk of the work for AAJs. In any event, ALJs also receive support from non-adjudicator employees, known as ‘‘decision writers,’’ who are subject to performance evaluations. Decision writers assist ALJs in preparing for hearings and drafting decisions, and the ALJ/decision writer relationship is analogous to the AAJ/analyst relationship. Comment: One commenter asserted the Appeals Council was never intended to conduct initial hearings and make decisions on whether to grant benefits. Instead, the Appeals Council was created to ‘‘oversee the hearings and appeals process, promote national consistency in hearing decisions made by . . . administrative law judges . . . and make sure that the Social Security Board’s (now Commissioner’s) records were adequate for judicial review.73 The 73 The commenter cited https://www.ssa.gov/ appeals/about_ac.html. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 commenter also said that appeals officers in the Appeals Council are not judges and this rule creates a new position for the work that AttorneyExaminers/appeals officers had been doing. The commenter further asserted that we sought a new position description from OPM to give these employees the title of administrative appeals judges. Response: We disagree. Our proposal to clarify when AAJs may conduct hearings and issue decisions under the same rules that apply to ALJs is supported by our existing regulations (see sections 404.956 and 416.1456), which have authorized this option since the beginning of our hearings and appeals process in 1940.74 Indeed, as we noted previously, the original vision for our hearings and appeals process, the Basic Provisions, which predated our 1940 regulations,75 expressly contemplated that the Appeals Council would hold hearings on occasion. Under section 205(b) of the Act, the authority to hold hearings rests with the Commissioner. In accordance with section 205(l) of the Act, the Commissioner’s predecessor, the Social Security Board, delegated the authority to hold hearings and issue decisions to the Appeals Council and to the agency’s referees (now ALJs) when the Board established the Appeals Council in 1940.76 The Appeals Council has continued to retain that authority from 1940 to the present. Comments About the Perceived Effectiveness and Consequences of the Rule Comment: Several commenters assumed that we would spend more money to employ AAJs to act in lieu of ALJs, since ALJs are not eligible for bonuses, whereas AAJs are. Thus, the proposal is not cost effective. Response: We are revising our regulations to increase our adjudicative capacity so that we will be better prepared to address challenges that may arise in the future, including spikes in requests for hearings and hiring freezes. We disagree that having AAJs hold hearings would necessarily be more costly than employing ALJs. For example, during a hiring freeze, we may be prohibited from hiring new ALJs, and therefore, if there were a need to increase adjudicative capacity, we could use our existing AAJs to conduct hearings and issue decisions during that 74 5 FR 4169, 4172 (Oct. 22, 1940) (codified at 20 CFR 403.709(d) (1940 Supp.)). 75 See supra note 17. 76 11 FR 177A–567 (Sept. 11, 1946) (codified at 20 CFR 421.6(a) (1946 Supp.)). E:\FR\FM\16NOR2.SGM 16NOR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations time. As such, we see this flexibility as being cost effective. Comment: Another commenter stated that the Appeals Council has only approximately 53 AAJs available to perform the Appeals Council’s review function. Several commenters stated that backlogs and processing time at the Appeals Council increase significantly when requests for hearings increase, such as during the recent historically large backlog in disability hearings that began in 2010. Having a particular AAJ adjudicate claims at the hearings level necessarily means that the AAJ is not available to review ALJ decisions in his or her role at the Appeals Council. According to the commenters, it is likely that if we use AAJs to hold hearings and issue hearing level decisions, we will shift backlogs and increased processing times from the hearings level to the Appeals Council level. Response: We acknowledge the commenters’ concerns about how having AAJs hold hearings and issue hearing level decisions could affect the workloads and processing times associated with existing Appeals Council review. We would consider these implications after assessing all relevant factors at the time we implement this rule. We are publishing this final rule now to clarify the Appeals Council’s authority to hold hearings and issue decisions so that the authority will be available for us to use when we need it. Comment: Commenters opined that these changes could substantially alter workflows within the agency and create significant complications in the appeals process for claimants and agency employees alike. Response: We disagree with this comment. Our intention is to use the Appeals Council’s authority to hold hearings and issue hearing level decisions to assist with our workflow as needed, including addressing any hearings backlog and helping to reduce case processing time by increasing our adjudicative capacity. Other than substituting AAJs for ALJs in some cases, our hearings level process will remain the same. Furthermore, regardless of whether an ALJ or AAJ issues a hearing decision, our ordinary request for review procedures will apply, except that if an AAJ issued the hearing decision, he or she will not participate in any action associated with the request for Appeals Council review. As we explained in the preamble of our NPRM, regardless of whether an ALJ or AAJ holds a hearing, the claimant will receive all the same due process protections. Thus, we do not expect that VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 this final rule will complicate the process for claimants or agency employees. Comment: According to a commenter, the constitutional litigation in Hart v. Colvin and Lucia v. SEC 77 resulted in uncertainty as to whether adequate due process was provided in individual claims, a disruption and delay of ongoing claims and appeals, and a diversion of agency attention toward administering agency-wide relief. The commenter said that the due process and APA concerns arising from this final rule could very well lead to the same experience for claimants who have their hearings presided over by an AAJ, and may require the agency to expend resources to remediate the final rule. Another commenter said any hearing held and decision issued by an AAJ would be subject to remand and rehearing, as is presently happening across the country with decisions issued by non-Commissioner appointed ALJs in the aftermath of the Lucia decision. The commenter said that decisions issued by AAJs who are ‘‘not impartial’’ would be held invalid, and these cases could usher in class action lawsuits in light of Lucia. Another commenter stated that this rule change would have a negative impact on due process and increase the likelihood of claimants appealing decisions directly to the Federal district courts. Response: We disagree with these comments. There is no due process violation inherent in a hearing system that relies on adjudicators other than ALJs. With respect to the issue of who may be a decisionmaker in an adjudicatory proceeding, the fundamental requirement of due process is that the decisionmaker be fair and impartial. As we explained above and in the preamble of our NPRM, we will not implement this final rule in a way that could undermine the decisional independence of our adjudicators or the integrity of our existing administrative review process. We take seriously our responsibility to ensure that claimants receive accurate decisions from impartial decisionmakers, arrived at through a fair process that provides each claimant with the full measure of due process protections. Since the beginning of our administrative review process in 1940, we have held an unwavering commitment to a full and fair hearings process. This final rule will not alter the fundamental fairness of our longstanding hearings process. Our AAJs will continue to possess the same responsibility and independence they 77 138 PO 00000 S.Ct. 2044 (2018). Frm 00013 Fmt 4701 Sfmt 4700 73149 have always had to make fair and accurate decisions, free from agency interference. Further, in response to the commenter who suggested that an AAJ hearing level decision would be subject to remand based on the Supreme Court’s decision in Lucia v. SEC,78 we note that the Acting Commissioner of Social Security ratified the appointment of our AAJs in July 2018.79 Comment: According to one commenter, the lack of clarity in the NPRM, and the likelihood that our implementation would result in different claimants facing different processes, will create confusion and inconsistency in the appeals process to the detriment of our agency and claimants alike. Response: When we implement this final rule, we will use uniform procedures and processes for all claimants. Regardless of whether an ALJ or an AAJ hears a claimant’s case, we are required to apply the same rules and procedures to all cases. Comments About Our 2016 Proposal To Use AAJs To Hear and Decide Cases Comment: Many commenters alleged that since we did not pursue an earlier proposal to use AAJs to hear and decide cases in 2016 (as part of our Compassionate and Responsive Services (CARES) backlog reduction plan), we should not pursue it now. Response: In January 2016, we recommended that AAJs hold hearings in certain cases as part of our adjudication augmentation strategy under the CARES backlog reduction plan.80 We ultimately decided against implementing the adjudication augmentation strategy due to resource constraints.81 We then decided to address the issue through changes to our regulation, adopted in accordance with the APA’s notice and comment rulemaking procedures. 78 138 S. Ct. 2044 (2018). Social Security Ruling 19–1p, Titles II and XVI: Effect of the Decision in Lucia v. Securities and Exchange Commission (SEC) On Cases Pending at the Appeals Council, 84 FR 9582, 9583 (Mar. 15, 2019). 80 The adjudication augmentation strategy was part of our 2016 Plan for Compassionate and Responsive Service (CARES), available at https:// www.ssa.gov/appeals/documents/cares_plan_ 2016.pdf. Under the strategy, we would have expanded (on a temporary basis) the number of cases in which AAJs on the Appeals Council could hold hearings under the authority of the regulations. 81 See letter from Theresa Gruber, then Deputy Commissioner for Disability Adjudication and Review, to The Honorable James Lankford, dated August 4, 2016, available at page 89 of https:// www.govinfo.gov/content/pkg/CHRG114shrg21182/pdf/CHRG-114shrg21182.pdf. 79 See E:\FR\FM\16NOR2.SGM 16NOR2 73150 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 Comment: One commenter, referring to our proposal for AAJs to hold hearings in 2016 as part of our CARES backlog reduction plan, asked why we changed the types of cases we would have AAJs hear. The commenter said when we proposed to exercise our existing regulatory authority for AAJs to hold hearings in 2016 as part of the CARES backlog reduction plan, we proposed to have AAJs hold hearings in ‘‘nondisability’’ cases specifically. According to the commenter, we indicated that we made this decision because, ‘‘the cases targeted for the augmentation strategy represent only 3.6 percent of our hearings pending and the non-disability cases often involve issues that ALJs do not typically encounter. A small number of AAJs and staff will specialize in adjudicating the nondisability issues, thus freeing up critical ALJ resources to handle disability hearings.’’ 82 The commenter asserted that the rationale we presented for using AAJs to hold hearings and issue decisions in 2016 undercuts our assertions that AAJs and ALJs have the same experience and skills and that AAJs should be able to obtain jurisdiction over any type of claim. The commenter questioned what changed between our rationale in 2016 and now, and what data, studies, or evidence we relied on in making this determination. The commenter said that we must provide the public with whatever evidence led us to change our proposal and allow the public to examine and comment on that information. According to the commenter, not doing so is a procedural error under the rulemaking requirements of the APA because the public cannot understand and meaningfully comment on the NPRM. Response: When we proposed our adjudication augmentation strategy under the CARES backlog reduction plan in 2016, we intended for AAJs to hold hearings and issue decisions in non-disability cases. Our proposal attracted significant public and congressional interest,83 and we ultimately decided to pursue clarifying 82 The commenter cited ‘‘Theresa Gruber, Statement for the Record, Hearing Examining Due Process in Administrative Hearings,’’ Committee on Homeland Security and Governmental Affairs, Subcommittee on Regulatory Affairs and Federal Management, United States Senate, May 12, 2016. See https://www.hsgac.senate.gov/imo/media/doc/ Gruber%20Statement.pdf. 83 ‘‘Examining Due Process in Administrative Hearings,’’ Committee on Homeland Security and Governmental Affairs, Subcommittee on Regulatory Affairs and Federal Management, United States Senate, May 12, 2016, available at https:// www.gpo.gov/fdsys/pkg/CHRG-114shrg21182/pdf/ CHRG-114shrg21182.pdf. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 changes to our regulations instead of pursuing the adjudication augmentation strategy. Although we decided to have AAJs hold hearing and issue decisions in non-disability cases as part of our backlog reduction plan in 2016, we do not believe it would be prudent to specify in our regulations that AAJs are always limited to non-disability cases when they hold hearings and issue decisions. As previously stated, we are clarifying our regulations in order to be better prepared to address unforeseen challenges that may arise in the future. Furthermore, the fact that we thought it would be best for AAJs to hold hearing and issue decisions in nondisability cases as part of our 2016 backlog reduction plan does not signify that AAJs and ALJs have different experience and skills. Indeed, in our CARES plan,84 we also emphasized that AAJs and ALJs have the same experience and skills. Our position on that issue has not changed in promulgating this final rule. Comments About Notices of Appeals Council Review Comment: In the NPRM, we proposed to add a statement to sections 404.973 and 416.1473 that says, ‘‘However, when the Appeals Council plans to issue a decision that is fully favorable to all parties or plans to remand the case for further proceedings, it may send the notice of Appeals Council review to all parties with the decision or remand order.’’ Some commenters disagreed with this proposed language. According to one commenter, under our current process, when the Appeals Council reviews a fully or partially favorable case on its own motion and the Appeals Council intends to remand the case, we must give notice to the claimant. The commenter noted that the Appeals Council mails an interim notice that outlines the proposed action, and gives the claimant 30 days to respond to the Appeals Council with arguments or evidence that may cause the Appeals Council to take a different action. The Appeals Council then issues an order that outlines the Appeals Council’s final action. According to the commenter, responses from claimants frequently do not change the Appeals Council’s decision to remand the case, but the current process gives the claimant the opportunity to change the Appeals Council’s mind before it remands the case to the hearing level. The commenter also opined that it would be a violation of due process to allow the Appeals Council to exercise own motion 84 https://www.ssa.gov/appeals/documents/cares_ plan_2016.pdf. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 review of a favorable hearing level decision and remand the case to the hearing level without giving the claimant any opportunity to weigh in or correct the deficiencies identified by the Appeals Council. The commenter also said that if the Appeals Council is too slow in taking its final action, claimants could continue to receive interim benefits while the Appeals Council has jurisdiction over the matter. According to the commenter, remanding the case without giving the claimant an opportunity to respond would result in the termination of benefits without due process. The commenter said to allow the Appeals Council to remand a case to the hearing level without allowing the claimant to respond is in direct conflict with the requirements of due process, and is more problematic given the length of time that a claimant would have to wait before appearing at another hearing. The commenter proposed that we remove ‘‘or plans to remand the case for further proceedings’’ from the proposed sections. Response: We disagree with the commenters’ assertions that the proposed language would violate due process. In terms of fully favorable Appeals Council decisions, we revised our rules for administrative efficiency and to codify our longstanding practice.85 By sending the notice with the fully favorable decision, the claimant does not have to wait for a separate notice. In terms of removing the notice requirement for Appeals Council remands, we are revising our rules for administrative efficiency. As the commenter aptly points out, responses to our notices rarely change the Appeals Council’s proposed action to remand a case. We expect that this final rule will result in claimants receiving final decisions on their claim(s) faster and will help to streamline our business processes. Moreover, if the Appeals Council decides to remand a case to the hearing level, the claimant will have an opportunity to be heard before the agency issues its final decision. We disagree with the commenter’s statement that remanding a fully favorable or partially favorable case on own motion review would result in a termination of benefits without due process. Section 1631(a)(8) of the Act requires us to pay prospective monthly benefits (‘‘interim benefits’’) to the 85 See HALLEX I–3–6–20 A, available at https:// www.ssa.gov/OP_Home/hallex/I-03/I-3-6-20.html, which includes a note that, ‘‘[w]hen the [Appeals Council] exercises its own motion review authority and issues a fully favorable decision, notice is not required.’’ E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 claimant if we have not made a final decision within 110 calendar days after the date of the ALJ decision. Those interim benefits do not end until the month in which we make a final decision. Therefore, the claimant would continue to receive benefits until there is a final agency decision. We also note that there are situations where a claimant is not in pay status, following the issuance of favorable decision, because an effectuating component cannot process payments. If, for example, the decision is contrary to the Act, regulations or a published ruling, or the decision is vague, ambiguous, internally inconsistent, or otherwise does not resolve the issues under dispute, the effectuating component may refer the cases to the Appeals Council to consider taking own motion review or reopening and revising the decision.86 In these cases, the claimant would not receive benefits until 110 days after the favorable hearing level decision. If the Appeals Council were unable to correct the deficiency and issue a fully favorable decision, the Appeals Council’s ability to remand the case to correct the deficiency without prior notice would expedite the claimant receiving a final decision on his or her case. Comment: One commenter suggested that in sections 404.973 and 416.1473, we clarify that if the Appeals Council plans to issue a combined partially favorable decision (finding, for example, that the claimant became disabled after his or her alleged onset date) and a remand order (ordering further proceedings regarding the period the claimant alleged to be disabled to the date the claimant was found to be disabled), it may send the notice of Appeals Council review to all parties with the combined decision and remand order (without sending a prior notice of review). Response: We agree with this suggestion. We further revised sections 404.973 and 416.1473 to clarify that when the Appeals Council plans to issue a decision that is favorable in part and remand the remaining issues for further proceedings, we may send the notice of Appeals Council review to all parties with the decision or remand order. Adding a ‘‘Reasonable Probability’’ Standard to Sections 404.970 and 416.1470 Comment: We received many comments relating to our proposed inclusion of paragraph (d) to sections 404.970 and 416.1470.87 We proposed to revise paragraph (d) of these sections to state that the Appeals Council would not review a case based on an error or abuse of discretion in the admission or exclusion of evidence or based on an error, defect, or omission in any ruling or decision unless the Appeals Council found a reasonable probability that the error, abuse of discretion, defect, or omission, either alone or when considered with other aspects of the case, changed the outcome of the case or the amount of benefits owed to any party. Commenters expressed perceived due process concerns, stating that the proposed rule would limit the Appeals Council’s ability to review an ALJ’s decision, and that the changed standard of review could virtually eliminate Appeals Council review in all but extremely limited circumstances, making the Appeals Council a meaningless step in the adjudication process. Commenters expressed that we would no longer know of the errors in an ALJ’s decision if we do not remand these cases to the ALJ to correct the error. Commenters also expressed concerns that there would be no cost savings associated with the proposed change, as the Appeals Council would have to evaluate the entire record, which would increase the time to review a case. Additionally, commenters expressed concerns that the proposal would increase the number of claimants who appeal to Federal court, potentially straining court resources and increasing the time that individuals must wait to receive final decisions. Some commenters also misconstrued the proposed standard of review at the Appeals Council level of review with the ‘‘preponderance of the evidence’’ standard that applies when an adjudicator issues a determination or decision.88 Other commenters expressed alternative language for paragraph (d) or suggested ways to clarify how the reasonable probability standard would apply to the substantial evidence standard. Response: Upon consideration of the comments regarding our proposal to add a reasonable probability standard in paragraph (d) of sections 404.970 and 416.1470, we have decided not to proceed with that proposal. Because we are not finalizing proposed paragraph (d) of sections 404.970 and 416.1470, we are not finalizing the corresponding language that we proposed to add to the beginning of paragraph (a) of the same sections, ‘‘Subject to paragraph (d) of 87 See 86 See generally 20 CFR 404.969, 416.1469, 404.987, and 416.1487. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 84 FR 70085, 70087. commenter cited 20 CFR 404.953, 404.979, 416.1453, and 416.1479. 88 The PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 73151 this section, . . . .’’ Additionally, we will not respond to the individual comments regarding our proposal to add a reasonable probability standard in paragraph (d) of sections 404.970 and 416.1470, because they are no longer relevant. Comments Regarding Federal Court Cases Comment: One commenter suggested changes to proposed sections 404.984 and 416.1484, which provide that when a Federal court remands a case and the Appeals Council remands the case to an ALJ, the ALJ’s decision will become the Commissioner’s final decision unless the Appeals Council assumes jurisdiction using the standard set forth in section 404.970 or 416.1470, as applicable. The commenter said it is imprudent for the Appeals Council to use a reasonable probability standard when deciding whether to assume jurisdiction of a case that was previously remanded by Federal court. The commenter stated that the Appeals Council must grant review of a case that is remanded from the Federal court. The commenter opined that failure to grant review because of the ‘‘reasonable probability’’ standard would be viewed unfavorably by the court if the claimant requested judicial review once again. The commenter stated that any action by the Appeals Council must be consistent with the court’s remand. If the court orders a remand, the Appeals Council must remand the case (unless it can issue a fully favorable decision). Response: Appeals Council review of court remands under sections 404.983 and 416.1483 should not be confused with its review of hearing decisions issued after a court remand under sections 404.984 and 416.1484. If a Federal court remands a case, the Appeals Council may issue a decision pursuant to sections 404.983(b) and 416.1484(b), hold a hearing and issue a decision pursuant to sections 404.983(c) and 416.1484(c), or remand the case to an ALJ with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. However, this situation is distinct from when the Appeals Council decides whether to assume jurisdiction after an ALJ, or AAJ, issues a hearing decision in a case remanded by Federal court. In that situation, the Appeals Council may assume jurisdiction based on written exceptions to the hearing decision filed by the claimant or based on its authority pursuant to paragraph (c) of sections 404.984 and 416.1484. However, we do not currently have a regulatory standard to govern how the Appeals Council will E:\FR\FM\16NOR2.SGM 16NOR2 73152 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 decide whether to assume jurisdiction after an ALJ, or AAJ, issues a hearing decision in a case remanded by Federal court. The revisions to sections 404.984 and 416.1484 make clear that the standard for assuming jurisdiction after an ALJ, or AAJ, issues a hearing decision in a case remanded by Federal court is the same as the standard that applies when the Appeals Council decides whether to review a hearing decision or dismissal under sections 404.970 and 416.1470. We will not respond to any comments relating to our proposal to add a reasonable probability standard in paragraph (d) of sections 404.970 and 416.1470 because, as previously explained, we are not proceeding with that proposal. Comments About Additional Evidence at the Appeals Council Level of Review Comment: A commenter stated that our proposal to revise sections 404.976(b) and 416.1476(b) to clarify that the Appeals Council will consider all evidence it receives, but will exhibit that evidence only if it meets the requirements of sections 404.970(a)(5) and (b) and 416.1470(a)(5) and (b) would be unhelpful and superfluous. The commenter said there were three possible options. First, if the evidence were sufficient to warrant review and the Appeals Council issues a decision, it would be exhibited in the record. Second, if the evidence were sufficient to warrant review and a remand to the hearing level, it would not be exhibited. Rather, it would be returned to the hearing office for the ALJ’s consideration. Lastly, if the evidence did not warrant review, there would be an open question of when it could be used to provide a protective filing date for a subsequent application (Social Security Ruling 11–1p).89 The commenter questioned the purpose of this additional reasonable probability standard. Response: We disagree that the revisions to sections 404.976(b) and 416.1476(b) are unhelpful and superfluous. As we explained in the preamble of our NPRM, the revisions to sections 404.976(b) and 416.1476(b) clarify when the Appeals Council will mark additional evidence as an exhibit and make it part of the official record. Additionally, we already provide the claimant a protective filing date for a new application whenever a claimant submits additional evidence to the 89 The commenter refers to Social Security Ruling 11–1p: Titles II and XVI: Procedures for Handling Requests to File Subsequent Applications for Disability Benefits, available here: https:// www.ssa.gov/OP_Home/rulings/di/01/SSR2011-01di-01.html. VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 Appeals Council that does not relate to the period on or before the date of the hearing decision, or whenever the Appeals Council finds that the claimant did not have good cause for missing the deadline to submit written evidence.90 Comment: Regarding our proposed revisions to sections 404.976(b) and 416.1476(b), one commenter suggested that we should: (1) Eliminate paragraph (b) altogether; (2) if the paragraph stays, add a sentence stating that any evidence that meets the ‘‘reasonable probability standard’’ in sections 404.970(a)(5) and 416.1470(a)(5) automatically meets the ‘‘good cause’’ standard in sections 404.970(b) and 416.1470(b); or (3) create a truly clarifying and time-saving policy that the Appeals Council, when it grants review to issue a decision, will evaluate and mark as exhibit(s) all relevant evidence. Response: We disagree with these suggestions. As explained above, regarding (1), we are revising sections 404.976(b) and 416.1476(b) to clarify when the Appeals Council marks additional evidence as an exhibit and makes it part of the official administrative record. Regarding (2), we disagree that good cause for missing the deadline to submit evidence under sections 404.970(b) and 416.1470(b) would always exist whenever the Appeals Council finds, under sections 404.970(a)(5) and 416.1470(a)(5), that there is a reasonable probability that additional evidence would change the outcome of the hearing decision. The good cause requirement in sections 404.970(b) and 416.1470(b) is based on the 5-day rule set forth in sections 404.935(a) and 416.1435(a). Under the 5-day rule, a claimant generally must inform us about or submit written evidence at least 5 business days before the date of his or her scheduled hearing. We adopted the 5-day rule, in part, to ensure that the evidentiary record is more complete when ALJs hold hearings.91 The commenter’s suggestion that we revise our regulations to state that any evidence that meets the ‘‘reasonable probability standard’’ in sections 404.970(a)(5) and 416.1470(a)(5) automatically meets the ‘‘good cause’’ standard in sections 404.970(b) and 416.1470(b) would be inconsistent with the intent of the 5-day rule. Finally, regarding the third suggestion, it is altogether unclear to us how revising our regulations as the commenter proposed would result in greater clarity and save time. Comment: One commenter agreed with the Appeals Council’s current 90 20 91 81 PO 00000 CFR 404.970(c) and 416.1470(c). FR 90987, 90989 (Dec. 16, 2016). Frm 00016 Fmt 4701 Sfmt 4700 practice of including in a certified administrative record filed in Federal court any additional evidence that the Appeals Council receives, regardless of whether the Appeals Council marks the evidence as an exhibit and makes it part of the official record. The commenter suggested that we memorialize this practice in the regulatory text at section 404.970(a)(5). Response: We decline to add language about including additional evidence in certified administrative records to be filed in Federal court in sections 404.970(a)(5) and 416.1470(a)(5), because those rules regard when the Appeals Council will review a case. However, we agree that it would be helpful to clarify in our regulations that additional evidence the Appeals Council received during the administrative review process, including additional evidence that the Appeals Council received but did not exhibit or make part of the official record, would be included in the certified administrative record filed in Federal court. We have added that clarifying language to sections 404.976(b) and 416.1476(b) in this final rule. Comments About the Wording of Our Paperwork Reduction Act (PRA) Information in the NPRM Comment: One commenter referred to the PRA section of the NPRM, in which we proposed to update forms to reflect the new regulatory language stating that ‘‘Judges’’ will review the cases, hold hearings, and issue decisions. Currently, our forms use the narrow, specific designation, ‘‘Administrative Law Judges.’’ In the NPRM, we stated that once we published the final rule, we would obtain approval from the Office of Management and Budget for this revision through non-substantive change requests for these information collections, which does not require public notice and comment under the PRA. The commenter disagreed with our statement that this is a ‘‘nonsubstantive change’’ that does not require public comment. The commenter said ALJs and AAJs do completely different jobs and treating them the same is either a misunderstanding of the system or a breach of public trust. The commenter said that the public should know what kind of judge they have in a case, and that we should not hide this from the public by changing the title. Response: The PRA statement in our NPRM focused on the significance of the changes we were planning to make to information collections associated with the regulation. In the NPRM, we E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 indicated plans to change ‘‘Administrative Law Judges’’ to ‘‘judges’’ to reflect that if the rule were finalized, there would be a possibility that a claimant’s case could be heard and decided by an AAJ from the Appeals Council. In that case, the ‘‘Administrative Law Judge’’ appellation would not be accurate. However, to the commenter’s point about whether this change is significant, we note that the change will not occur at the forms/PRA level. We are merely proposing a language change to reflect our revised regulations. The appropriate time for interested parties to express comments about our proposed rule was during the notice-and-comment period, not in the PRA/forms arena. We note that many interested parties did submit public comments on this issue, and we addressed those comments in this preamble to the final rule. To the commenter’s assertion that the public should know what kind of judge they have in a case, we note that this is a policy issue outside the realm of the PRA, as addressed in the final rule. We have transparently conveyed our proposed change in the NPRM. For these reasons, we will not be changing the PRA statement. Comments That Suggested Alternate Proposals Comment: One commenter suggested assigning ALJs to the Appeals Council, and eliminating the position of AAJs. According to the commenter, ALJs on the Appeals Council would bolster the independence of disability hearings at all levels within the agency. Response: We acknowledge the commenter’s suggestion. However, the goal of this final rule is to increase our adjudicative capacity when needed, allowing us to adjust more quickly to fluctuating short-term workloads, such as when an influx of cases reaches the hearing level. Eliminating current positions would be at odds with this goal. Comment: One commenter said that we should change our rule so the only people who can be AAJs are retired and rehired ALJs or ALJs sent to the Appeals Council on special detail. The commenter said that would allow for flexibility and would eliminate the issue of claimants having inexperienced and agency-controlled AAJs conduct their hearings. Further, according to the commenter, it would improve the quality of the appellate decisions. Another commenter suggested having interested AAJs apply for long-term details as ALJs. Response: We disagree that the commenter’s proposal to use rehired VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 ALJs to act as AAJs would create more flexibility, because the rehired ALJs would have to be retrained in current policies and procedures. We also disagree with the suggestion to have currently serving ALJs apply for details to the Appeals Council, as that would defeat the purpose of the revised rule, which is to increase our adjudicative capacity. We seek to use AAJs to assist with hearing level workloads, so taking ALJs away from those workloads would be counter-productive. Lastly, we believe that detailing AAJs to serve as ALJs may be a feasible option, depending on the circumstances surrounding the need; however, as we do not know all the circumstances that may arise in the future, we want to be prepared and have options available to us to best address all potential situations. Our goal is to clarify the Appeals Council’s existing authority to hold hearings and issue decisions. Comment: Some commenters said we should keep the hearings and appeals level adjudications separate and distinct, as they have been traditionally. They recommended that if the AAJs wish to have a more significant role in the adjudication process, that they hold oral arguments to address important broad policy or procedural issues that affect the general public interest. According to the commenter, this would be in keeping with the AAJs’ primary role to ensure our decisions are uniform and consistent. Response: We understand the concerns of keeping hearings and appeals level adjudications separate and distinct. In effect, the hearings and appeals will remain separate and distinct. As discussed above, under this final rule, the claimant will still have the opportunity to appear at a hearing, receive a hearing decision, and request Appeals Council review. The only change is that, in some cases, the hearing and decision may be by an AAJ. Furthermore, this final rule specifies that if an AAJ conducts a hearing, issues a hearing decision, or dismisses a hearing request, he or she will not participate in any action associated with a request for Appeals Council review of that case. In addition, as discussed above, AAJs are expected to recuse themselves from a case if they have any interest in the case, as ALJs would. We will be vigilant in ensuring that the hearings and Appeals Council review levels of administrative review remain separate and distinct, and that claimants are afforded fair and impartial hearing decisions and reviews of those hearing decisions, as we always have. We also disagree about the ‘‘primary role’’ of the Appeals Council, as the PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 73153 Appeals Council’s role has evolved over the years to address current needs. For example, we created the Appeals Council’s Division of Quality to exercise quality review responsibilities to oversee and help improve the accuracy and policy compliance of ALJ decisions. Moreover, we are not expanding the role of AAJs. AAJs have long had the authority to conduct hearings, but we have not exercised this authority. Comment: One commenter said we should provide additional information related to our statement that we would remove the regulations at sections 404.966 and 416.1466, which authorize us to test the elimination of the request for Appeals Council review. The commenter said that the NPRM does not state the conclusions reached by the test or the Appeals Council’s fate. Response: As we explained in the preamble to our proposed rule, given our experience over the last 21 years, we no longer intend to test the elimination of the request for Appeals Council review. We amended our rules to establish authority to test request for review elimination (RRE) in September 1997.92 Our goal in testing elimination of the request for Appeals Council review was to assess the effects of that change in conjunction with other modifications in the disability claim process under the full process model (FPM), established in April 1997.93 In July 1998, we provided notice of limited extended testing of the FPM with two additional features designed to maximize the resources of a Federal processing center.94 Thereafter, in June 2000, we published a notice announcing a new test of the elimination of the request for Appeals Council review in conjunction with our disability prototype test.95 At that time, we explained that before making any decision on the merits of eliminating the request for review, we would obtain valid and reliable data about the effects 92 62 FR 49598 (Sept. 23, 1997). at 49598–99. Under the FPM, also known as the integrated model, we originally tested four modifications to the disability claim process: the use of a single decisionmaker, conducting predecisional interviews in certain cases, eliminating the reconsideration step in the administrative review process, and use of an adjudication officer to conduct prehearing proceedings and, if appropriate, issue fully favorable decisions. See 62 FR 16210 (Apr. 4, 1997); see also 63 FR 58444 (noting case selection for testing ended in January 1998). Testing elimination of the request for Appeals Council review was the fifth modification to the FPM. See 62 FR 49598 (Sept. 23, 1997); see also 63 FR 40946 (July 31, 1998). 94 See 63 FR 40946 (July 31, 1998). We announced the beginning of additional testing in October 1998, but that testing did not include RRE. See 63 FR 58444 (Oct. 30, 1998). 95 See 65 FR 36210 (June 7, 2000). 93 Id. E:\FR\FM\16NOR2.SGM 16NOR2 73154 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations of such elimination.96 Our testing results showed that the number of cases that would be appealed to the courts would likely increase substantially.97 Additionally, other attempts to remove the Appeals Council level of review have not been successful.98 As such, we no longer intend to test eliminating the request for Appeals Council review, and we are removing that authority in sections 404.966 and 416.1466. Comment: One commenter recommended adding the sentence, ‘‘The Appeals Council comprises the AAJs, the Appeals Officers, and the Deputy Chair of the Appeals Council’’ to sections 404.2(b)(2), 416.120(b)(2), and 408.110(b)(2). The commenter said that this expanded definition may be useful when considering section 422.205(c). Response: We disagree with this recommendation. Currently, sections 404.2(b)(2), 416.120(b)(2), and 408.110(b)(2) indicate that the Appeals Council includes the member or members thereof as may be designated by the Chair of the Appeals Council. We do not intend to adopt the commenter’s suggestion because we seek to remain flexible in our staffing. Comment: One commenter suggested that we clarify what the commenter perceived as an inconsistency in sections 404.976(c) and 416.1476(c). This rule provides, ‘‘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 96 65 FR 36210. the January 2001 report from the Social Security Advisory Board (SSAB), ‘‘Charting the Future of Social Security’s Disability Programs: The Need for Fundamental Change,’’ available at https:// www.ssab.gov/research/charting-the-future-ofsocial-securitys-disability-programs-the-need-forfundamental-change/. See also the June 28, 2001 testimony of Hon. Ronald G. Bernoski, at the Hearing Before Subcommittee on Social Security of the Committee on Ways and Means House of Representative, where he noted ‘‘the SSAB Report also correctly points out the impracticality of this step [to eliminate the Appeals Council level of review], since the SSA has shown by testing that this would result in a large increase in court appeals.’’ Our initial RRE testing failed to produce sufficient data. See 65 FR 36210 (June 7, 2000). 98 For example, we tested the elimination of the Appeals Council, under a different authority, the Disability Service Improvement (DSI) Process, by creation of the Disability Review Board (DRB). Under the DSI Process, an ALJ’s decision became final unless the claim was referred to the DRB. If the DRB reviewed a claim and issued a decision, that decision was our final decision, and if a claimant was dissatisfied with it, he or she could seek judicial review in Federal court. The Appeals Council had no involvement with the DRB, which we established with the intent to phase out the Appeals Council. See 71 FR 16424 (Mar. 31, 2006); and correction 71 FR 17990 (Aug. 10, 2006). Ultimately, we eliminated the DRB because it did not function as intended and did not provide efficiencies in reducing the hearings backlog. See 76 FR 24802 (May 3, 2011). jbell on DSKJLSW7X2PROD with RULES2 97 See VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 commenter said that in the summary, we indicate the Appeals Council would be required to follow the rules that govern ALJ hearings, which include mailing a notice of hearing at least 75 days before the date of the hearing. Response: The commenter conflates a request to appear before the Appeals Council to present oral argument with a request for a hearing. Paragraph (c) of final sections 404.976 and 416.1476 regard a claimant’s ability to request to appear before the Appeals Council to present oral argument, which the Appeals Council will grant if it decides that the case raises an important question of law or policy, or that oral argument would help to reach a proper decision. However, if the Appeals Council assumes responsibility for a hearing request under section 404.956 or 416.1456, we would mail a notice of hearing pursuant to the relevant section(s) 404.938(a) or 416.1438(a), which generally require that we mail a notice of a hearing at least 75 days before the date of the hearing. Comment: One commenter made suggestions for editing sections 404.984 and 416.1484. According to the commenter, these sections require that, if the Appeals Council assumes jurisdiction of an ALJ decision after remand, the Appeals Council will ‘‘either make a new, independent decision based on the preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss a claim(s), or remand the case to an administrative law judge for further proceedings, including a new decision.’’ First, the commenter recommended changing the phrase ‘‘dismiss a claim(s)’’ to ‘‘dismiss the request for a hearing or request for review, consistent with the Federal court’s remand.’’ Second, the commenter recommended that the Appeals Council never dismiss a request for a hearing or a request for review after the case has been considered and remanded by the court, including a sentence four remand.99 Response: We partially adopted the commenter’s first suggestion and revised paragraph (a) of sections 404.984 and 416.1484 to use the more specific phrase ‘‘dismiss the request for a hearing.’’ However, we did not adopt the suggestion to include ‘‘dismiss a 99 Under sentence four of section 205(g) of the Act, a court may remand a case in conjunction with a judgment affirming, modifying, or reversing the decision of the Commissioner. The judgment of the court ends the court’s jurisdiction over the case, but either the claimant or agency may appeal the district court’s action to a court of appeals. See HALLEX I–4–6–1 available here: https:// www.ssa.gov/OP_Home/hallex/I-04/I-4-6-1.html. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 request for review.’’ When the Appeals Council assumes jurisdiction after an ALJ or AAJ has issued a hearing decision in a case remanded by a Federal court, the request for review is no longer at issue. The Appeals Council may assume jurisdiction of the case based on written exceptions filed by the claimant or based on its authority pursuant to paragraph (c) of section 404.984 or section 416.1484. We also partially adopted the commenter’s second recommendation. Since the Federal court retains jurisdiction for remands under sentence six of section 205(g) of the Act (42 U.S.C. 405(g)), we added language to clarify that the Appeals Council will not dismiss the request for a hearing in these cases. We disagree that the Appeals Council cannot dismiss a request for a hearing in cases remanded under sentence four of section 205(g) of the Act. Once a Federal court has remanded a case under sentence four, jurisdiction returns to the Appeals Council to take appropriate action, which may include dismissing a request for a hearing. Comment: One commenter questioned the reason for changing the procedure in section 422.205(a). The commenter noted that proposed section 422.205(a) provides that an Appeals Council decision on a case removed under sections 404.956 or 416.1456 may be signed by one Appeals Council member. The commenter further noted that currently two AAJs sign Appeals Council decisions, and that appeals officers are also members of the Appeals Council, but, currently, they have no authority to sign decisions or dismissals. The commenter questioned whether we sought to change this authority deliberately, or if it was an oversight. The commenter also questioned if this proposed change would alter current policy permitting AAJs only to sign Appeals Council decisions and dismissals, as well as Appeals Council denials of review of ALJ dismissals. Response: We acknowledge that it would be helpful to clarify in section 422.205(a) who has authority to sign hearings level decisions and dismissals. We do not intend for appeals officers to sign hearings level decisions or dismissals. As such, we revised the language in section 422.205(a) to clarify the requirement of one AAJ to sign decisions and dismissals on requests for hearings removed under sections 404.956 or 416.1456 for consistency with the signature requirement for ALJs. One signature by an appeals officer, or by such member of the Appeals Council as may be designated by the Chair or E:\FR\FM\16NOR2.SGM 16NOR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations Deputy Chair, continues to be the requirement for denials of requests for reviews as set forth in section 422.205(c). Furthermore, the signatures of at least two AAJs will continue to be required for decisions issued on requests for review or own motion review when the claimant does not appear before the Appeals Council to present oral argument, but that requirement now appears in section 422.205(d). Therefore, we are not changing the signature requirements for Appeals Council actions on requests for review or own motion reviews of hearing level decisions or dismissals. Comment: One commenter said section 422.205(c) contains a redundancy because it provides that a request for review may be denied by an appeal officer, appeals officers, or members of the Appeals Council, as designated. The commenter noted that appeals officers are members of the Appeals Council. According to the commenter, appeals officers need not be listed separately from the Appeals Council, and it might be clearer to state that the request for review may be denied by an AAJ, an appeals officer, or any member of the Appeals Council, as designated. Response: We disagree that the language, which appears in current section 422.205(c), is redundant. This final rule merely adds a title to paragraph (c), and does not revise the rest of the section including who may deny a request for review. Comment: One commenter suggested that a statement of when judicial review is available after an Appeals Council dismissal might prove useful for section 422.210(a). The commenter noted that that regulation does not provide that judicial review is available when the Appeals Council dismisses the request for review or the request for a hearing. Response: We are considering whether and how to change our regulations based on the Supreme Court’s holding in Smith v. Berryhill.100 Therefore, we are not revising section 422.210(a) to clarify when a claimant may seek judicial review following an Appeals Council dismissal as part of this final rule. We will propose any changes we plan to make based on the Supreme Court’s decision in Smith as part of a separate rulemaking proceeding. 100 139 S. Ct. 1765 (2019). VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 Regulatory Procedures Executive Order 12866, as Supplemented by Executive Order 13563 We consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866 and is subject to OMB review. Details about the impacts of our rule follow. Anticipated Benefits We expect this final rule will benefit us by providing additional flexibility and by allowing us to increase our hearing capacity without incurring permanent new costs. Having AAJs hold hearings and issue decisions will create flexibility for us to shift resources when there is an increase in pending cases at the hearings level. Before using AAJs to hold hearings and issue decisions, we will determine whether it makes sense to do so, considering the Appeals Council’s workload relative to the hearing level workload. If necessary, we will hire additional AAJs to augment the current number of ALJs conducting hearings. Additionally, the numbers of new AAJs could be increased or decreased based on the demand of the workload. Anticipated Costs We anticipate that this final rule would result in minimal, if any, quantified costs when implemented. Before implementing, we would provide appropriate training to our AAJs, make minor systems updates, and perhaps obtain additional equipment. As discussed above, when we exercise this authority, we would ensure that the AAJs possess the knowledge, skills, and training required to conduct hearings. However, we expect that the cost of training AAJs would be minimal because the AAJs would already have experience with our programs, and we could use existing ALJ training materials, as applicable. We expect that we would need to train our AAJs and other Appeals Council personnel, in particular, on the procedural and technical issues involved in conducting hearings. For example, AAJs would need to be trained on how to (1) prepare for a hearing (e.g., handle specific development issues such as requesting medical records, if necessary; scheduling consultative examinations; issuing subpoenas; and ensuring proper notices are sent), and (2) conduct a hearing (e.g., handle technical matters regarding the hearing recording; ensure that unrepresented claimants receive proper notice of the right to PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 73155 representation; and work with interpreters, witnesses, and experts). Because we believe AAJs holding a hearing will be equivalently trained to ALJs and will be following the same set of hearing policies as ALJs, we do not believe, as suggested by some commenters, that AAJ determinations are more likely to increase the volume of claimants who choose to appeal a decision that is not fully favorable to the Appeals Council level. In addition, we would need to train our Appeals Council personnel how to use the hearings systems. We expect this would be a minimal cost as such systems are similar to systems our Appeals Council personnel already use. Lastly, we would need to equip our Appeals Council offices to hold hearings. For example, we would need to provide computers for video teleconference hearings and recording equipment. We may be able to utilize existing internal resources to meet these needs. Qualitatively, we acknowledge that some commenters have suggested that the use of AAJs at the hearing level could create a perception of lessened impartiality than a hearing held by an ALJ. This is largely a qualitative cost related to the perception of received due process, although claimants who believe they did not receive a fair hearing may be more likely to pursue a review at the Appeals Council and in a Federal district court. However, for the reasons outlined above as well as reasons discussed previously in the preamble, we do not believe there will be different outcomes in adjudications between hearings held by AAJs and ALJs, and as such do not believe this is, in fact, either a qualitative or quantitative cost. Executive Order 13132 (Federalism) We analyzed this final rule in accordance with the principles and criteria established by Executive Order 13132, and determined that the rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this rule would not preempt any State law or State regulation or affect the States’ abilities to discharge traditional State governmental functions. Executive Order 13771 This final rule is not subject to the requirements of Executive Order 13771 because it is administrative in nature and will result in no more than de minimis costs. E:\FR\FM\16NOR2.SGM 16NOR2 73156 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations Regulatory Flexibility Act We certify that this final rule will 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. Supplemental Security Income (SSI), Veterans. Paperwork Reduction Act SSA already has existing OMB PRAapproved information collection tools relating to this final rule: The Request for Review of ALJ Decision or Dismissal (Form HA–520, OMB No. 0960–0277); the Waiver of Your Right to Personal Appearance Before an Administrative Law Judge (Form HA–4608, OMB No. 0960–0284); the Request to Withdraw a Hearing Request (Form HA–85, OMB No. 0960–0710); the Acknowledgement of Receipt of Notice of Hearing (Form HA–504, OMB No. 0960–0671); the Request to Show Case for Failure to Appear (Form HA–L90, OMB No. 0960– 0794); and the Request for Hearing by Administrative Law Judge (Form HA– 501, OMB No. 0960–0269). Because this final rule will allow for both Administrative Appeals Judges and Administrative Law Judges to hold hearings and issue decisions, we will update the content of these forms to reflect the new language stating that ‘‘Judges’’ will review the cases, hold hearings, and issue decisions; however, we will not change the titles of these forms. Currently these forms use the narrow, specific designation, ‘‘Administrative Law Judges.’’ Once we publish this final rule, we will obtain OMB approval for this revision through non-substantive change requests for these information collections, which does not require public notice and comment under the PRA. Thus, this final rule does not create or significantly alter any existing information collections under the PRA. 20 CFR Part 416 Administrative practice and procedure, Reporting and recordkeeping requirements, Supplemental Security Income (SSI). (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) jbell on DSKJLSW7X2PROD with RULES2 Faye I. Lipsky, Federal Register Liaison, Office of Legislation and Congressional Affairs, Social Security Administration. For the reasons set out in the preamble, we amend 20 CFR chapter III, parts 404, 408, 411, 416 and 422, as set forth below: PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950–) Subpart A—Introduction, General Provisions and Definitions 1. The authority citation for subpart A of part 404 continues to read as follows: ■ Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)) and 48 U.S.C. 1801. 2. Amend § 404.2 by revising paragraph (b) to read as follows: § 404.2 terms. General definitions and use of * 20 CFR Part 404 Administrative practice and procedure, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Social security. 20 CFR Part 408 Administrative practice and procedure, Reporting and recordkeeping requirements, Social security, 20:50 Nov 13, 2020 20 CFR Part 422 Administrative practice and procedure, Reporting and recordkeeping requirements, Social security. The Commissioner of the Social Security Administration, Andrew Saul, having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for SSA, for purposes of publication in the Federal Register. ■ List of Subjects VerDate Sep<11>2014 20 CFR Part 411 Administrative practice and procedure, Blind, Disability benefits, Public assistance programs, Reporting and recordkeeping requirements, Vocational rehabilitation. Jkt 253001 * * * * (b) Commissioner; Appeals Council; Administrative Law Judge; Administrative Appeals Judge defined— (1) Commissioner means the Commissioner of Social Security. (2) Appeals Council means the Appeals Council of the Office of Analytics, Review, and Oversight in the Social Security Administration or such member or members thereof as may be designated by the Chair of the Appeals Council. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 (3) Administrative Law Judge means an Administrative Law Judge in the Office of Hearings Operations in the Social Security Administration. (4) Administrative Appeals Judge means an Administrative Appeals Judge serving as a member of the Appeals Council. * * * * * Subpart J—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 3. 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). ■ 4. Revise § 404.929 to read as follows: § 404.929 Hearing before an administrative law judge—general. If you are dissatisfied with one of the determinations or decisions listed in § 404.930, you may request a hearing. Subject to § 404.956, the Deputy Commissioner for Hearings Operations, or his or her delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or his or her delegate, may assign your case to another administrative law judge. In general, we will schedule you to appear by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the factors described in § 404.936(c)(1)(i) through (iii), and in the limited circumstances described in § 404.936(c)(2), we will schedule you to appear by telephone. You may submit new evidence (subject to the provisions of § 404.935), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. He or she will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 404.935, any new evidence that may have been submitted for consideration. E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations 5. Amend § 404.955 by revising the section heading, redesignating paragraphs (c) through (f) as paragraphs (d) through (g), and adding new paragraph (c) to read as follows: ■ § 404.955 The effect of a hearing decision. * * * * * (c) The Appeals Council decides on its own motion to review the decision under the procedures in § 404.969; * * * * * ■ 6. Revise § 404.956 to read as follows: § 404.956 Removal of a hearing request(s) to the Appeals Council. jbell on DSKJLSW7X2PROD with RULES2 (a) Removal. The Appeals Council may assume responsibility for a hearing request(s) pending at the hearing level of the administrative review process. (b) Notice. We will mail a notice to all parties at their last known address telling them that the Appeals Council has assumed responsibility for the case(s). (c) Procedures applied. If the Appeals Council assumes responsibility for a hearing request(s), it shall conduct all proceedings in accordance with the rules set forth in §§ 404.929 through 404.961, as applicable. (d) Appeals Council review. If the Appeals Council assumes responsibility for your hearing request under this section and you or any other party is dissatisfied with the hearing decision or with the dismissal of a hearing request, you may request that the Appeals Council review that action following the procedures in §§ 404.967 through 404.982. The Appeals Council may also decide on its own motion to review the action that was taken in your case under § 404.969. The administrative appeals judge who conducted a hearing, issued a hearing decision in your case, or dismissed your hearing request will not participate in any action associated with your request for Appeals Council review of that case. (e) Ancillary provisions. For the purposes of the procedures authorized by this section, the regulations of part 404 shall apply to authorize a member of the Appeals Council to exercise the functions performed by an administrative law judge under subpart J of part 404. § 404.966 [Removed and Reserved] 7. Section 404.966 is removed and reserved. ■ 8. Amend § 404.970 by revising paragraph (a) to read as follows: ■ VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 § 404.970 review. Cases the Appeals Council will 73157 (a) The Appeals Council will review a case at a party’s request or on its own motion if— (1) There appears to be an abuse of discretion by the administrative law judge or administrative appeals judge who heard the case; (2) There is an error of law; (3) The action, findings or conclusions in the hearing decision or dismissal order are not supported by substantial evidence; (4) There is a broad policy or procedural issue that may affect the general public interest; or (5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. * * * * * ■ 9. Revise § 404.973 to read as follows: (c) Oral argument. You may request to appear before the Appeals Council to present oral argument in support of your request for review. 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 will be by video teleconferencing or in person, or, when the circumstances described in § 404.936(c)(2) exist, the Appeals Council may schedule you to appear by telephone. The Appeals Council will determine whether any other person relevant to the proceeding will appear by video teleconferencing, telephone, or in person as based on the circumstances described in § 404.936(c)(4). ■ 11. Revise § 404.983 to read as follows: § 404.973 review. § 404.983 court. Notice of Appeals Council When the Appeals Council decides to review a case, it shall mail a prior notice to all parties at their last known address stating the reasons for the review and the issues to be considered. However, when the Appeals Council plans to issue a decision that is fully favorable to all parties, plans to remand the case for further proceedings, or plans to issue a decision that is favorable in part and remand the remaining issues for further proceedings, it may send the notice of Appeals Council review to all parties with the decision or remand order. ■ 10. Amend § 404.976 by revising the section heading, revising paragraph (b), and adding paragraph (c) to read as follows: § 404.976 Council. Procedures before the Appeals * * * * * (b) Evidence the Appeals Council will exhibit. The Appeals Council will evaluate all additional evidence it receives, but will only mark as an exhibit and make part of the official record additional evidence that it determines meets the requirements of § 404.970(a)(5) and (b). If we need to file a certified administrative record in Federal court, we will include in that record all additional evidence the Appeals Council received during the administrative review process, including additional evidence that the Appeals Council received but did not exhibit or make part of the official record. PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 Case remanded by a Federal (a) General rule. When a Federal court remands a case to the Commissioner for further consideration, the Appeals Council, acting on behalf of the Commissioner, may make a decision following the provisions in paragraph (b) or (c) of this section, dismiss the proceedings, except as provided in paragraph (d) of this section, or remand the case to an administrative law judge following the provisions in paragraph (e) of this section with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. Any issues relating to the claim(s) may be considered by the Appeals Council or administrative law judge whether or not they were raised in the administrative proceedings leading to the final decision in the case. (b) Appeals Council decision without a hearing. If the Appeals Council assumes responsibility under paragraph (a) of this section for issuing a decision without a hearing, it will follow the procedures explained in §§ 404.973 and 404.979. (c) Administrative appeals judge decision after holding a hearing. If the Appeals Council assumes responsibility for issuing a decision and a hearing is necessary to complete adjudication of the claim(s), an administrative appeals judge will hold a hearing using the procedures set forth in §§ 404.929 through 404.961, as applicable. (d) Appeals Council dismissal. After a Federal court remands a case to the E:\FR\FM\16NOR2.SGM 16NOR2 73158 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations Commissioner for further consideration, the Appeals Council may dismiss the proceedings before it for any reason that an administrative law judge may dismiss a request for a hearing under § 404.957. The Appeals Council will not dismiss the proceedings in a claim where we are otherwise required by law or a judicial order to file the Commissioner’s additional and modified findings of fact and decision with a court. (e) Appeals Council remand. If the Appeals Council remands a case under paragraph (a) of this section, it will follow the procedures explained in § 404.977. ■ 12. Revise § 404.984 to read as follows: jbell on DSKJLSW7X2PROD with RULES2 § 404.984 Appeals Council review of hearing decision in a case remanded by a Federal court. (a) General. In accordance with § 404.983, when a case is remanded by a Federal court for further consideration and the Appeals Council remands the case to an administrative law judge, or an administrative appeals judge issues a decision pursuant to § 404.983(c), the decision of the administrative law judge or administrative appeals judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case. The Appeals Council may assume jurisdiction, using the standard set forth in § 404.970, based on written exceptions to the decision which you file with the Appeals Council or based on its authority pursuant to paragraph (c) of this section. If the Appeals Council assumes jurisdiction of the case, it will not dismiss the request for a hearing where we are otherwise required by law or a judicial order to file the Commissioner’s additional and modified findings of fact and decision with a court. (b) You file exceptions disagreeing with the hearing decision. (1) If you disagree with the hearing decision, in whole or in part, you may file exceptions to the decision with the Appeals Council. Exceptions may be filed by submitting a written statement to the Appeals Council setting forth your reasons for disagreeing with the decision of the administrative law judge or administrative appeals judge. The exceptions must be filed within 30 days of the date you receive the hearing decision or an extension of time in which to submit exceptions must be requested in writing within the 30-day period. A timely request for a 30-day extension will be granted by the Appeals Council. A request for an VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 extension of more than 30 days should include a statement of reasons as to why you need the additional time. (2) If written exceptions are timely filed, the Appeals Council will consider your reasons for disagreeing with the hearing decision and all the issues presented by your case. If the Appeals Council concludes that there is no reason to change the hearing decision, it will issue a notice to you addressing your exceptions and explaining why no change in the hearing decision is warranted. In this instance, the hearing decision is the final decision of the Commissioner after remand. (3) When you file written exceptions to the hearing decision, the Appeals Council may assume jurisdiction at any time, even after the 60-day time period which applies when you do not file exceptions. If the Appeals Council assumes jurisdiction of your case, any issues relating to your claim may be considered by the Appeals Council whether or not they were raised in the administrative proceedings leading to the final decision in your case or subsequently considered by the administrative law judge or administrative appeals judge in the administrative proceedings following the court’s remand order. The Appeals Council will either make a new, independent decision pursuant to § 404.983(b) or § 404.983(c), based on a preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an administrative law judge for further proceedings, including a new decision. (c) Appeals Council assumes jurisdiction without exceptions being filed. Any time within 60 days after the date of the hearing decision, the Appeals Council may decide to assume jurisdiction of your case even though no written exceptions have been filed. Notice of this action will be mailed to all parties at their last known address. You will be provided with the opportunity to file briefs or other written statements with the Appeals Council about the facts and law relevant to your case. After the Appeals Council receives the briefs or other written statements, or the time allowed (usually 30 days) for submitting them has expired, the Appeals Council will either make a new, independent decision pursuant to § 404.983(b) or § 404.983(c), based on a preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 administrative law judge for further proceedings, including a new decision. (d) Exceptions are not filed and the Appeals Council does not otherwise assume jurisdiction. If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the administrative law judge or administrative appeals judge becomes the final decision of the Commissioner after remand. ■ 13. Amend § 404.999c by revising paragraph (d)(3)(i)(C) to read as follows: § 404.999c What travel expenses are reimbursable. * * * * * (d) * * * (3) * * * (i) * * * (C) The designated geographic service area of the Office of Hearings Operations hearing office having responsibility for providing the hearing. * * * * * PART 408—SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS Subpart A—Introduction, General Provision and Definitions 14. The authority citation for subpart A of part 408 continues to read as follows: ■ Authority: Secs. 702(a)(5) and 801–813 of the Social Security Act (42 U.S.C. 902(a)(5) and 1001–1013). 15. Amend § 408.110 by revising paragraph (b) to read as follows: ■ § 408.110 terms. General definitions and use of * * * * * (b) Commissioner; Appeals Council; Administrative Law Judge defined—(1) Commissioner means the Commissioner of Social Security. (2) Appeals Council means the Appeals Council of the Office of Analytics, Review, and Oversight in the Social Security Administration or such member or members thereof as may be designated by the Chair of the Appeals Council. (3) Administrative Law Judge means an Administrative Law Judge in the Office of Hearings Operations in the Social Security Administration. * * * * * PART 411—THE TICKET TO WORK AND SELF-SUFFICIENCY PROGRAM 16. The authority citation for part 411 continues to read as follows: ■ Authority: Secs. 702(a)(5) and 1148 of the Social Security Act (42 U.S.C. 902(a)(5) and 1320b–19); sec. 101(b)–(e), Public Law 106– E:\FR\FM\16NOR2.SGM 16NOR2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations 170, 113 Stat. 1860, 1873 (42 U.S.C. 1320b– 19 note). Subpart C—Suspension of Continuing Disability Reviews for Beneficiaries Who Are Using a Ticket 17. Amend § 411.175 by revising paragraph (a) to read as follows: ■ § 411.175 What if a continuing disability review is begun before my ticket is in use? (a) If we begin a continuing disability review before the date on which your ticket is in use, you may still assign the ticket and receive services from an employment network or a State vocational rehabilitation agency acting as an employment network under the Ticket to Work program, or you may still receive services from a State vocational rehabilitation agency that elects the vocational rehabilitation cost reimbursement option. However, we will complete the continuing disability review. If in this review we determine that you are no longer disabled, in most cases you will no longer be eligible to receive benefit payments. However, if your ticket was in use before we determined that you are no longer disabled, in certain circumstances you may continue to receive benefit payments (see §§ 404.316(c), 404.337(c), 404.352(d), and 416.1338 of this chapter). If you appeal the decision that you are no longer disabled, you may also choose to have your benefits continued pending reconsideration or a hearing before a judge on the cessation determination (see §§ 404.1597a and 416.996 of this chapter). * * * * * PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart A—Introduction, General Provisions and Definitions 18. The authority citation for subpart A of part 416 continues to read as follows: ■ Authority: Secs. 702(a)(5) and 1601–1635 of the Social Security Act (42 U.S.C. 902(a)(5) and 1381–1383d); sec. 212, Pub. L. 93–66, 87 Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94–241, 90 Stat. 268 (48 U.S.C. 1681 note). 19. Amend § 416.120 by revising paragraph (b) to read as follows: jbell on DSKJLSW7X2PROD with RULES2 ■ § 416.120 terms. General definitions and use of * * * * * (b) Commissioner; Appeals Council; Administrative Law Judge; Administrative Appeals Judge defined— VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 (1) Commissioner means the Commissioner of Social Security. (2) Appeals Council means the Appeals Council of the Office of Analytics, Review, and Oversight in the Social Security Administration or such member or members thereof as may be designated by the Chair of the Appeals Council. (3) Administrative Law Judge means an Administrative Law Judge in the Office of Hearings Operations in the Social Security Administration. (4) Administrative Appeals Judge means an Administrative Appeals Judge serving as a member of the Appeals Council. * * * * * Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 20. 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). 21. Revise § 416.1429 to read as follows: ■ § 416.1429 Hearing before an administrative law judge—general. If you are dissatisfied with one of the determinations or decisions listed in § 416.1430, you may request a hearing. Subject to § 416.1456, the Deputy Commissioner for Hearings Operations, or his or her delegate, will appoint an administrative law judge to conduct the hearing. If circumstances warrant, the Deputy Commissioner for Hearings Operations, or his or her delegate, may assign your case to another administrative law judge. In general, we will schedule you to appear by video teleconferencing or in person. When we determine whether you will appear by video teleconferencing or in person, we consider the factors described in § 416.1436 (c)(1)(i) through (iii), and in the limited circumstances described in § 416.1436(c)(2), we will schedule you to appear by telephone. You may submit new evidence (subject to the provisions of § 416.1435), examine the evidence used in making the determination or decision under review, and present and question witnesses. The administrative law judge who conducts the hearing may ask you questions. He or she will issue a decision based on the preponderance of the evidence in the hearing record. If you waive your right to appear at the hearing, the administrative law judge will make a PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 73159 decision based on the preponderance of the evidence that is in the file and, subject to the provisions of § 416.1435, any new evidence that may have been submitted for consideration. ■ 22. Amend § 416.1455 by revising the section heading, redesignating paragraphs (c) through (f) as paragraphs (d) through (g), and adding new paragraph (c) to read as follows: § 416.1455 decision. The effect of a hearing * * * * * (c) The Appeals Council decides on its own motion to review the decision under the procedures in § 416.1469; * * * * * ■ 23. Revise § 416.1456 to read as follows: § 416.1456 Removal of a hearing request(s) to the Appeals Council. (a) Removal. The Appeals Council may assume responsibility for a hearing request(s) pending at the hearing level of the administrative review process. (b) Notice. We will mail a notice to all parties at their last known address telling them that the Appeals Council has assumed responsibility for the case(s). (c) Procedures applied. If the Appeals Council assumes responsibility for a hearing request(s), it shall conduct all proceedings in accordance with the rules set forth in §§ 416.1429 through 416.1461, as applicable. (d) Appeals Council review. If the Appeals Council assumes responsibility for your hearing request under this section and you or any other party is dissatisfied with the hearing decision or with the dismissal of a hearing request, you may request that the Appeals Council review that action following the procedures in §§ 416.1467 through 416.1482. The Appeals Council may also decide on its own motion to review the action that was taken in your case under § 416.1469. The administrative appeals judge who conducted a hearing, issued a hearing decision in your case, or dismissed your hearing request will not participate in any action associated with your request for Appeals Council review of that case. (e) Ancillary provisions. For the purposes of the procedures authorized by this section, the regulations of part 416 shall apply to authorize a member of the Appeals Council to exercise the functions performed by an administrative law judge under subpart N of part 416. § 416.1466 [Removed and Reserved] 24. Section 416.1466 is removed and reserved. ■ E:\FR\FM\16NOR2.SGM 16NOR2 73160 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations (a) The Appeals Council will review a case at a party’s request or on its own motion if— (1) There appears to be an abuse of discretion by the administrative law judge or administrative appeals judge who heard the case; (2) There is an error of law; (3) The action, findings or conclusions in the hearing decision or dismissal order are not supported by substantial evidence; (4) There is a broad policy or procedural issue that may affect the general public interest; or (5) Subject to paragraph (b) of this section, the Appeals Council receives additional evidence that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision. * * * * * ■ 26. Revise § 416.1473 to read as follows: including additional evidence that the Appeals Council received but did not exhibit or make part of the official record. (c) Oral argument. You may request to appear before the Appeals Council to present oral argument in support of your request for review. 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 will be by video teleconferencing or in person, or, when the circumstances described in § 416.1436(c)(2) exist, the Appeals Council may schedule you to appear by telephone. The Appeals Council will determine whether any other person relevant to the proceeding will appear by video teleconferencing, telephone, or in person as based on the circumstances described in § 416.1436(c)(4). ■ 28. Revise § 416.1483 to read as follows: § 416.1473 review. § 416.1483 court. 25. Amend § 416.1470 by revising paragraph (a) to read as follows: ■ § 416.1470 review. Cases the Appeals Council will Notice of Appeals Council When the Appeals Council decides to review a case, it shall mail a prior notice to all parties at their last known address stating the reasons for the review and the issues to be considered. However, when the Appeals Council plans to issue a decision that is fully favorable to all parties, plans to remand the case for further proceedings, or plans to issue a decision that is favorable in part and remand the remaining issues for further proceedings, it may send the notice of Appeals Council review to all parties with the decision or remand order. ■ 27. Amend § 416.1476 by revising the section heading, revising paragraph (b), and adding paragraph (c) to read as follows: § 416.1476 Council. Procedures before the Appeals jbell on DSKJLSW7X2PROD with RULES2 * * * * * (b) Evidence the Appeals Council will exhibit. The Appeals Council will evaluate all additional evidence it receives, but will only mark as an exhibit and make part of the official record additional evidence that it determines meets the requirements of § 416.1470(a)(5) and (b). If we need to file a certified administrative record in Federal court, we will include in that record all additional evidence the Appeals Council received during the administrative review process, VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 Case remanded by a Federal (a) General rule. When a Federal court remands a case to the Commissioner for further consideration, the Appeals Council, acting on behalf of the Commissioner, may make a decision following the provisions in paragraph (b) or (c) of this section, dismiss the proceedings, except as provided in paragraph (d) of this section, or remand the case to an administrative law judge following the provisions in paragraph (e) of this section with instructions to take action and issue a decision or return the case to the Appeals Council with a recommended decision. Any issues relating to the claim(s) may be considered by the Appeals Council or administrative law judge whether or not they were raised in the administrative proceedings leading to the final decision in the case. (b) Appeals Council decision without a hearing. If the Appeals Council assumes responsibility under paragraph (a) of this section for issuing a decision without a hearing, it will follow the procedures explained in §§ 416.1473 and 416.1479. (c) Administrative appeals judge decision after holding a hearing. If the Appeals Council assumes responsibility for issuing a decision and a hearing is necessary to complete adjudication of the claim(s), an administrative appeals judge will hold a hearing using the PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 procedures set forth in §§ 416.1429 through 416.1461, as applicable. (d) Appeals Council dismissal. After a Federal court remands a case to the Commissioner for further consideration, the Appeals Council may dismiss the proceedings before it for any reason that an administrative law judge may dismiss a request for a hearing under § 416.1457. The Appeals Council will not dismiss the proceedings in a claim where we are otherwise required by law or a judicial order to file the Commissioner’s additional and modified findings of fact and decision with a court. (e) Appeals Council remand. If the Appeals Council remands a case under paragraph (a) of this section, it will follow the procedures explained in § 416.1477. ■ 29. Revise § 416.1484 to read as follows: § 416.1484 Appeals Council review of hearing decision in a case remanded by a Federal court. (a) General. In accordance with § 416.1483, when a case is remanded by a Federal court for further consideration and the Appeals Council remands the case to an administrative law judge, or an administrative appeals judge issues a decision pursuant to § 416.1483(c), the decision of the administrative law judge or administrative appeals judge will become the final decision of the Commissioner after remand on your case unless the Appeals Council assumes jurisdiction of the case. The Appeals Council may assume jurisdiction, using the standard set forth in § 416.1470, based on written exceptions to the decision which you file with the Appeals Council or based on its authority pursuant to paragraph (c) of this section. If the Appeals Council assumes jurisdiction of the case, it will not dismiss the request for a hearing in a claim where we are otherwise required by law or a judicial order to file the Commissioner’s additional and modified findings of fact and decision with a court. (b) You file exceptions disagreeing with the hearing decision. (1) If you disagree with the hearing decision, in whole or in part, you may file exceptions to the decision with the Appeals Council. Exceptions may be filed by submitting a written statement to the Appeals Council setting forth your reasons for disagreeing with the decision of the administrative law judge or administrative appeals judge. The exceptions must be filed within 30 days of the date you receive the hearing decision or an extension of time in which to submit exceptions must be E:\FR\FM\16NOR2.SGM 16NOR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations requested in writing within the 30-day period. A timely request for a 30-day extension will be granted by the Appeals Council. A request for an extension of more than 30 days should include a statement of reasons as to why you need the additional time. (2) If written exceptions are timely filed, the Appeals Council will consider your reasons for disagreeing with the hearing decision and all the issues presented by your case. If the Appeals Council concludes that there is no reason to change the hearing decision, it will issue a notice to you addressing your exceptions and explaining why no change in the hearing decision is warranted. In this instance, the hearing decision is the final decision of the Commissioner after remand. (3) When you file written exceptions to the hearing decision, the Appeals Council may assume jurisdiction at any time, even after the 60-day time period which applies when you do not file exceptions. If the Appeals Council assumes jurisdiction of your case, any issues relating to your claim may be considered by the Appeals Council whether or not they were raised in the administrative proceedings leading to the final decision in your case or subsequently considered by the administrative law judge or administrative appeals judge in the administrative proceedings following the court’s remand order. The Appeals Council will either make a new, independent decision pursuant to § 416.1483(b) or § 416.1483(c), based on a preponderance of the evidence in the record that will be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an administrative law judge for further proceedings, including a new decision. (c) Appeals Council assumes jurisdiction without exceptions being filed. Any time within 60 days after the date of the hearing decision, the Appeals Council may decide to assume jurisdiction of your case even though no written exceptions have been filed. Notice of this action will be mailed to all parties at their last known address. You will be provided with the opportunity to file briefs or other written statements with the Appeals Council about the facts and law relevant to your case. After the Appeals Council receives the briefs or other written statements, or the time allowed (usually 30 days) for submitting them has expired, the Appeals Council will either make a new, independent decision pursuant to § 416.1483(b) or § 416.1483(c), based on a preponderance of the evidence in the record that will VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 be the final decision of the Commissioner after remand, dismiss the request for a hearing, or remand the case to an administrative law judge for further proceedings, including a new decision. (d) Exceptions are not filed and the Appeals Council does not otherwise assume jurisdiction. If no exceptions are filed and the Appeals Council does not assume jurisdiction of your case, the decision of the administrative law judge or administrative appeals judge becomes the final decision of the Commissioner after remand. ■ 30. Amend § 416.1498 by revising paragraph (d)(3)(i)(C) to read as follows: § 416.1498 What travel expenses are reimbursable. * * * * * (d) * * * (3) * * * (i) * * * (C) The designated geographic service area of the Office of Hearings Operations hearing office having responsibility for providing the hearing. * * * * * PART 422—ORGANIZATION AND PROCEDURES 31. Revise the heading for subpart C to read as follows: ■ Subpart C—Hearings, Appeals Council Review, and Judicial Review Procedures 32. The authority citation for subpart C of part 422 continues to read as follows: ■ Authority: Secs. 205, 221, and 702(a)(5) of the Social Security Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b). 33. Amend § 422.201 by revising the introductory text to read as follows: ■ § 422.201 Material included in this subpart. This subpart describes in general the procedures relating to hearings, review by the Appeals Council of the hearing decision or dismissal, and court review in cases decided under the procedures in parts 404, 408, 410, and 416 of this chapter. It also describes the procedures for requesting a hearing or Appeals Council review, and for instituting a civil action for court review of cases decided under these parts. For detailed provisions relating to hearings, review by the Appeals Council, and court review, see the following references as appropriate to the matter involved: * * * * * ■ 34. Amend § 422.203 by revising paragraphs (b) and (c) to read as follows: PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 § 422.203 73161 Hearings. * * * * * (b) Request for a hearing. (1) A request for a hearing under paragraph (a) of this section may be made using the form(s) we designate for this purpose, or by any other writing requesting a hearing. The request shall be filed either electronically in the manner we prescribe or at an office of the Social Security Administration, usually a district office or a branch office, or at the Veterans’ Administration Regional Office in the Philippines (except in title XVI cases), or at a hearing office of the Office of Hearings Operations, or with the Appeals Council. A qualified railroad retirement beneficiary may choose to file a request for a hearing under part A of title XVIII with the Railroad Retirement Board. (2) Unless an extension of time has been granted for good cause shown, a request for a hearing must be filed within 60 days after the receipt of the notice of the reconsidered or revised determination, or after an initial determination described in 42 CFR 498.3(b) and (c) (see §§ 404.933, 410.631, and 416.1433 of this chapter and 42 CFR 405.722, 498.40, and 417.260.) (c) Hearing decision or other action. Generally, the administrative law judge, or an administrative appeals judge under § 404.956 or § 416.1456 of this chapter, will either decide the case after hearing (unless hearing is waived) or, if appropriate, dismiss the request for a hearing. With respect to a hearing on a determination under paragraph (a)(1) of this section, the administrative law judge may certify the case with a recommended decision to the Appeals Council for decision. The administrative law judge, or an attorney advisor under § 404.942 or § 416.1442 of this chapter, or an administrative appeals judge under § 404.956 or § 416.1456 of this chapter, must base the hearing decision on the preponderance of the evidence offered at the hearing or otherwise included in the record. ■ 35. Revise § 422.205 to read as follows: § 422.205 Council. Proceedings before the Appeals (a) Administrative Appeals Judge hearing decisions. Administrative Appeals Judge decisions and dismissals issued on hearing requests removed under §§ 404.956 and 416.1456 of this chapter and decisions and dismissals described in § 422.203(c) require the signature of one Administrative Appeals Judge. Requests for review of hearing decisions issued by an Administrative Appeals Judge may be filed pursuant to E:\FR\FM\16NOR2.SGM 16NOR2 73162 Federal Register / Vol. 85, No. 221 / Monday, November 16, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 §§ 404.968 and 416.1468 of this chapter and paragraph (b) of this section. (b) Appeals Council review. Any party to a hearing decision or dismissal may request a review of such action by the Appeals Council. This request may be made on Form HA–520, Request for Review of Hearing Decision/Order, or by any other writing specifically requesting review. Form HA–520 may be obtained from any Social Security district office or branch office, or at any other office where a request for a hearing may be filed. (For time and place of filing, see §§ 404.968 and 416.1468 of this chapter.) (c) Review of a hearing decision, dismissal, or denial. The denial of a request for review of a hearing decision concerning a determination under § 422.203(a)(1) shall be by such appeals officer or appeals officers or by such member or members of the Appeals Council as may be designated in the manner prescribed by the Chair or Deputy Chair. The denial of a request for review of a hearing dismissal, the dismissal of a request for review, the denial of a request for review of a hearing decision whenever such hearing decision after such denial would not be subject to judicial review as explained in § 422.210(a), or the refusal of a request to reopen a hearing or Appeals Council decision concerning a determination under § 422.203(a)(1) shall be by such member or members of the Appeals Council as may be designated in the manner prescribed by the Chair or Deputy Chair. (d) Appeals Council review panel. Whenever the Appeals Council reviews a hearing decision under §§ 404.967, 404.969, 416.1467, or 416.1469 of this chapter and the claimant does not appear personally or through representation before the Appeals Council to present oral argument, such review will be conducted by a panel of not less than two members of the Appeals Council designated in the manner prescribed by the Chair or VerDate Sep<11>2014 20:50 Nov 13, 2020 Jkt 253001 Deputy Chair of the Appeals Council. In the event of disagreement between a panel composed of only two members, the Chair or Deputy Chair, or his or her delegate, who must be a member of the Appeals Council, shall participate as a third member of the panel. When the claimant appears in person or through representation before the Appeals Council in the location designated by the Appeals Council, the review will be conducted by a panel of not less than three members of the Appeals Council designated in the manner prescribed by the Chair or Deputy Chair. Concurrence of a majority of a panel shall constitute the decision of the Appeals Council unless the case is considered as provided under paragraph (e) of this section. (e) Appeals Council meetings. On call of the Chair, the Appeals Council may meet en banc or a representative body of Appeals Council members may be convened to consider any case arising under paragraph (c) or (d) of this section. Such representative body shall be comprised of a panel of not less than five members designated by the Chair as deemed appropriate for the matter to be considered. The Chair or Deputy Chair shall preside, or in his or her absence, the Chair shall designate a member of the Appeals Council to preside. A majority vote of the designated panel, or of the members present and voting, shall constitute the decision of the Appeals Council. (f) Temporary assignments of ALJs. The Chair may designate an administrative law judge to serve as a member of the Appeals Council for temporary assignments. An administrative law judge shall not be designated to serve as a member on any panel where such panel is conducting review on a case in which such individual has been previously involved. PO 00000 Frm 00026 Fmt 4701 Sfmt 9990 36. Amend § 422.210 by revising paragraph (a) and adding paragraph (e) to read as follows: ■ § 422.210 Judicial review. (a) General. A claimant may obtain judicial review of a decision by an administrative law judge or administrative appeals judge if the Appeals Council has denied the claimant’s request for review, or of a decision by the Appeals Council when that is the final decision of the Commissioner. A claimant may also obtain judicial review of a reconsidered determination, or of a decision of an administrative law judge or an administrative appeals judge, where, under the expedited appeals procedure, further administrative review is waived by agreement under § 404.926 or § 416.1426 of this chapter or as appropriate. There are no amount-incontroversy limitations on these rights of appeal. * * * * * (e) Appeals Council review panel after Federal court remand. When the Appeals Council holds a hearing under § 404.983 or § 416.1483 of this chapter, such hearing will be conducted and a decision will be issued by a panel of not less than two members of the Appeals Council designated in the manner prescribed by the Chair or Deputy Chair of the Appeals Council. When the Appeals Council issues a decision under §§ 404.983 and 416.1483 of this chapter without holding a hearing, a decision will be issued by a panel of not less than two members of the Council designated in the same manner prescribed by the Chair or Deputy Chair of the Council. In the event of disagreement between a panel composed of only two members, the Chair or Deputy Chair, or his or her delegate, who must be a member of the Council, shall participate as a third member of the panel. [FR Doc. 2020–23856 Filed 11–13–20; 8:45 am] BILLING CODE 4191–02–P E:\FR\FM\16NOR2.SGM 16NOR2

Agencies

[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 73138-73162]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23856]



[[Page 73137]]

Vol. 85

Monday,

No. 221

November 16, 2020

Part II





 Social Security Administration





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20 CFR Parts 404, 408, 411, et al.





Hearings Held by Administrative Appeals Judges of the Appeals Council; 
Final Rule

Federal Register / Vol. 85 , No. 221 / Monday, November 16, 2020 / 
Rules and Regulations

[[Page 73138]]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 408, 411, 416, and 422

[Docket No. SSA-2017-0073]
RIN 0960-AI25


Hearings Held by Administrative Appeals Judges of the Appeals 
Council

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: We are revising our rules to clarify when and how 
administrative appeals judges (AAJ) on our Appeals Council may hold 
hearings and issue decisions. The Appeals Council already has the 
authority to hold hearings and issue decisions under our existing 
regulations, but we have not exercised this authority or explained the 
circumstances under which it would be appropriate for the Appeals 
Council to assume responsibility for holding a hearing and issuing a 
decision. This final rule will ensure the Appeals Council is not 
limited in the type of claims for which it may hold hearings. We expect 
that this rule will increase our adjudicative capacity when needed, and 
allow us to adjust more quickly to fluctuating short-term workloads, 
such as when an influx of cases reaches the hearing level. Our ability 
to use our limited resources more effectively will help us quickly 
optimize our hearings capacity, which in turn will allow us to issue 
accurate, timely, high-quality decisions.

DATES: This final rule will be effective December 16, 2020.

FOR FURTHER INFORMATION CONTACT: Debra Sundberg, 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: On December 20, 2019, we published a Notice 
of Proposed Rulemaking (NPRM), ``Hearings Held by Administrative 
Appeals Judges of the Appeals Council.'' \1\ In our NPRM, we proposed 
to clarify that an AAJ from our Appeals Council may hold a hearing and 
issue a decision on any case pending at the hearings level under titles 
II, VIII, or XVI of the Social Security Act (Act). With this final 
rule, we adopt the proposed changes, with some exceptions.
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    \1\ 84 FR 70080 (Dec. 20, 2019).
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    The final rule differs from our proposed rule in the following 
ways:
     We are not making the proposed changes to Sec.  402.60 
because we are considering the possibility of reorganizing sections 
within 20 CFR part 402. We will consider revisions to Sec.  402.60 as 
part of that reorganization.
     We revised Sec. Sec.  404.929, 416.1429, 404.976, and 
416.1476 to conform to the current CFR text, which we recently revised 
as part of our final rule, ``Setting the Manner for the Appearance of 
Parties and Witnesses at a Hearing,'' published on December 18, 
2019.\2\
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    \2\ 84 FR 69298 (Dec. 18, 2019).
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     We removed proposed paragraph (d) from Sec. Sec.  404.970 
and 416.1470 in response to the public comments we received, which we 
discuss in more detail below. We also removed the corresponding 
language in proposed paragraph (a) of the same sections.
     We revised Sec. Sec.  404.973 and 416.1473 in response to 
the public comments we received, to clarify that prior notice is not 
needed where the Appeals Council issues a decision that is favorable in 
part, and remands the remaining issues for further proceedings. We 
discuss this in more detail in the response to the public comments 
below.
     We revised Sec. Sec.  404.976(b) and 416.1476(b) to 
clarify that if we file a certified administrative record in Federal 
court, we will include all additional evidence the Appeals Council 
received during the administrative review process, including additional 
evidence that the Appeals Council received but did not exhibit or make 
part of the official record.
     We revised Sec. Sec.  404.983 and 416.1483 in response to 
public comments to clarify when the Appeals Council will hold a hearing 
after court remand. In these sections, we revised paragraph (b) to 
pertain only to circumstances when the Appeals Council will issue a 
decision without holding a hearing after a court remand, and we 
inserted a new paragraph (c) to clarify when the Appeals Council will 
hold a hearing after court remand. As such, we redesignated the prior 
paragraphs (c) and (d) as paragraphs (d) and (e), respectively.
     We revised Sec. Sec.  404.984 and 416.1484 to clarify that 
the Appeals Council may assume jurisdiction of a case after an 
administrative law judge (ALJ) or administrative appeals judge (AAJ) 
issues a hearing decision in a case remanded by Federal court. We also 
revised Sec. Sec.  404.984 and 416.1484 to clarify that the Appeals 
Council will not dismiss the request for a hearing in a claim where we 
are otherwise required by law or a judicial order to file the 
Commissioner's additional and modified findings of fact and decision 
with a court.
     We revised Sec.  422.205(a) to clarify that AAJs issue 
hearing level decisions and dismissals.
    We received 275 comments on the NPRM, 204 of which related to the 
proposed rule and are available for public viewing at http://www.regulations.gov. \3\ These comments were from:
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    \3\ We excluded two comments from employees of the Social 
Security Administration who submitted the comments in their capacity 
as agency employees. The other comments we excluded were out of 
scope or nonresponsive to the proposal.
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     Individual citizens and claimant representatives;
     Members of Congress;
     National groups representing claimant representatives, 
such as the National Organization of Social Security Claimants' 
Representatives;
     Groups representing administrative law judges (ALJ), such 
as the Forum of United States Administrative Law Judges and the 
Association of Administrative Law Judges; and
     Advocacy groups, such as the Consortium for Citizens with 
Disabilities and the Disability Law Center.
    We carefully considered these comments. We discuss and respond to 
the significant issues raised by the commenters that were within the 
scope of the NPRM below.

Comments and Responses

Change Is Overdue and the Proposed Rule Would Allow Us To Use Our 
Resources Better

    Comment: One commenter, who supported the proposal, said this 
change is overdue, and will ensure shorter wait times and due process 
for claimants. Another commenter said the proposed rule would allow us 
to use resources better.
    Response: We acknowledge the commenters' support for our rule. The 
goal of this final rule is to use our available resources in the best 
possible way.

The Administrative Procedure Act (APA) and the Use of ALJs To Hear and 
Decide Cases

    Comment: Several commenters said that Congress passed the APA in 
part to ensure that the public had a right to a

[[Page 73139]]

neutral and impartial arbiter of facts to adjudicate appeals of agency 
decisions. One commenter said that our proposed rule would upend our 
longstanding consistency with the APA's requirements, and would deviate 
from our past practices and Congressional intent. One commenter 
referred to sections of the APA that state that ``in every case of 
adjudication required by statute to be determined on the record after 
opportunity for an agency hearing,'' \4\ the agency, one or more 
members of the body that comprises the agency, or an ALJ, must 
``preside at the taking of evidence.'' \5\ The commenter opined that 
SSA disability cases are adjudications required by the Act to be 
determined on the record and that the statute mandates that ``if a 
hearing is held, [the Commissioner] shall, on the basis of evidence 
adduced at the hearing, affirm, modify, or reverse the Commissioner's 
findings of fact and such decision.'' \6\ According to the commenter, 
the statute's mandate triggers application of the APA and this is 
consistent with the APA's definition of ``adjudication,'' which, 
according to the commenter, was intended to include proceedings such as 
``claims under Title II (Old Age and Survivors' Insurance) of the 
Act.'' \7\
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    \4\ 5 U.S.C. 554(a).
    \5\ 5 U.S.C 556(b)(1)-(3).
    \6\ Sections 205(b) and Sec.  1631(c)(1)(A) of the Act (42 
U.S.C. 405(b)(1) and 42 U.S.C. 1383(c)(1)(A)).
    \7\ The commenter cited the ``Attorney General's Manual on the 
Administrative Procedure Act'' 15 (1947), a law review article, 
Kenneth Culp Davis, Separation of Functions in Administrative 
Agencies, 61 Harv. L. Rev. 612, 636 (1948), and our statement when 
responding to public comment on hearing procedures under title XVI, 
39 FR 37976 (Oct. 25, 1974).
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    Some commenters acknowledged that Congress has never explicitly 
included the requirement to use ALJs in the Act, but said that it has 
made clear in legislative history that our hearing process is covered 
by the provisions of the APA.\8\ One commenter cited a statement from 
Congress when it enacted the statute that converted SSA hearing 
examiners into ALJs under the APA pursuant to 5 U.S.C. 3105 as evidence 
that Congress intended that we use ALJs.\9\ Similarly, a commenter 
asserted that because our procedures are nearly identical to those 
specified by the APA, it is clear that we observe the APA's procedural 
and due process protections, which includes requiring ALJs to preside 
over hearings. According to a commenter, the APA and Act are so similar 
that the Supreme Court noted that it did not have to distinguish 
between the two laws because ``social security administrative procedure 
does not vary from that prescribed by the APA.'' \10\ Additionally, 
commenters stated that Congress has ``understood that hearings under 
the Social Security Act would [continue to] be presided over by APA-
qualified hearing examiners.'' \11\
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    \8\ The commenter quoted material from Robin J. Arzt, 
Adjudications by Administrative Law Judges Pursuant to the Social 
Security Act are Adjudications Pursuant to the Administrative 
Procedure Act, 22 J. Nat'l Ass'n Admin. L. Judges (2002), available 
at: http://digitalcommons.pepperdine.edu/naalj/vol22/iss2/1.).
    \9\ See Social Security Amendments of 1977, Pub. L. 95-216, 91 
Stat. 1509 (1977); 5 U.S.C. 3105 (2000); and H.R. Rep. No. 95-617, 
pt. 2, at 2 (1977).
    \10\ See Richardson v. Perales, 402 U.S. 389, 409 (1971).
    \11\ Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr., 
Richard J. Pierce, Jr., and Jeffrey S. Lubbers, Report for 
Recommendation 92-7: The Federal Administrative Judiciary, 1992 
Administrative Conference of the United States (ACUS) 769, 820 
(1992) (1992 ACUS Report).
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    According to one commenter, the APA requires the use of ALJs as 
presiding officers in administrative appeals in virtually all 
circumstances, the exceptions to which do not apply in the Social 
Security context.
    One commenter referred us to a publication that the commenter said 
discussed applicable law that invalidates our NPRM.\12\
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    \12\ Arzt, supra, n.8.
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    Response: We disagree with these comments. Congress established our 
administrative hearings process through the Social Security Act 
Amendments of 1939.\13\ The original version of section 205(b)(1) of 
the Act stated:
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    \13\ Social Security Act Amendments of 1939, ch. 666, section 
201, 53 Stat. 1360, 1362-1369 (1939).

    The [Social Security] Board is directed to make findings of 
fact, and decisions as to the rights of any individual applying for 
a payment under this title. Whenever requested by such individual . 
. . who makes a showing in writing that his or her rights may be 
prejudiced by any decision the Board has rendered, it shall give 
such applicant . . . reasonable notice and opportunity for a hearing 
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with respect to such decision. . . .

    These broad provisions, though slightly modified over the years, 
generally have remained substantively unchanged since their 
enactment.\14\ Therefore, it has been clear that the head of our 
agency, initially, the Social Security Board, and currently, the 
Commissioner, has had the discretion to decide how our hearings process 
is structured and who may preside over a hearing.\15\ From the 
beginning of our hearings process, the head of our agency has delegated 
to the Appeals Council the authority to conduct hearings and issue 
decisions.\16\ Indeed, giving the Appeals Council the authority to hold 
hearings was part of our original vision for our hearings process, 
predating and forming the basis for the 1940 regulations that 
authorized the Appeals Council to hold hearings.\17\
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    \14\ See Heckler v. Day, 467 U.S. 104, 125 (1984) (Marshall, J., 
dissenting). Title XVI of the Act contains substantially the same 
language as section 205(b)(1). See section 1631(c)(1)(A) of the Act.
    \15\ See also section 702(a)(4)-(a)(7) of the Act.
    \16\ 5 FR 4169, 4172 (Oct. 22, 1940) (codified at 20 CFR 
403.709(d) (1940 Supp.)). The original regulation governing this 
issue stated that, ``The hearing provided for in this section shall 
be, except as herein provided, conducted by a referee designated by 
the Chairman of the Appeals Council. The Chairman may designate a 
member of the Appeals Council to conduct a hearing. The Territorial 
Director of the Social Security Board may conduct hearings in the 
Territories of Alaska and Hawaii. The provisions of this section 
governing the referee shall be applicable to a member of the Appeals 
Council or a Territorial Director in conducting a hearing.''
    \17\ Basic Provisions Adopted by the Social Security Board for 
the Hearing and Review of Old-Age and Survivors Insurance Claims 39 
(Jan. 1940) (Basic Provisions). The Basic Provisions are reprinted 
in Administrative Procedure in Government Agencies: Monograph of the 
Attorney General's Committee on Administrative Procedure, Part 3 
(Social Security Board), S. Doc. No. 77-10, 33-59 (1940).
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    Six years after the commencement of our administrative hearings 
process, and the commencement of the Appeals Council's delegated 
authority to conduct hearings and issue decisions, Congress enacted the 
APA.\18\ The APA's formal adjudication procedures apply, with limited 
exceptions, ``in every case of adjudication required by statute to be 
determined on the record after opportunity for an agency hearing.'' 
\19\ Significantly, neither the text nor the legislative history of the 
Act explicitly defines what constitutes a ``hearing'' under the Act, 
and nothing in the statute or its legislative history requires us to 
hold hearings ``on the record.'' While it is true that Congress modeled 
many of the hearing procedures in the APA on the Act,\20\ there are 
significant differences between an informal, non-adversarial Social 
Security hearing and the type of formal, adversarial adjudication to 
which the APA applies.
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    \18\ By its own terms, the APA does not repeal delegations of 
authority as provided by law. Public Law 79-404, section 2, 60 Stat. 
237 (1946).
    \19\ 5 U.S.C. 554(a).
    \20\ Richardson v. Perales, 402 U.S. at 409.
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    This view of our hearings process as distinct from the type of 
hearings process to which the APA applies is consistent with the 
legislative history of the APA, as well as the legislative history of 
the Act. The legislative history of both statutes highlights the 
differences between formal, adversarial adjudications by regulatory 
agencies and informal, non-adversarial proceedings by agencies that 
administer

[[Page 73140]]

certain Federal benefit programs.\21\ Most notably, under our 
``inquisitorial'' hearings process, an ALJ fulfills a role that 
requires him or her to act as a neutral decisionmaker and to develop 
facts for and against a benefit claim. The ALJ's multiple roles 
involve, in essence, wearing ``three hats'': helping the claimant 
develop facts and evidence; helping the government investigate the 
claim; and issuing an independent decision. The APA, on the other hand, 
specifies that ``An employee or agent engaged in the performance of 
investigative or prosecuting functions for an agency in a case may not, 
in that or a factually related case, participate or advise in the 
decision . . . . '' \22\ The APA, therefore, embodies an internal 
``separation-of-functions'' in agency adjudications that are subject to 
that statute. Indeed, ensuring such an internal separation-of-functions 
was one of the APA's fundamental purposes.\23\ The internal separation-
of-functions required in formal adjudications under the APA is 
inconsistent with the concept of the ``three-hat'' role of an 
adjudicator in a Social Security hearing, which by its very nature, is 
an investigatory function.\24\ Thus, contrary to the restrictions noted 
in the APA, the SSA adjudicator both performs an investigative function 
for SSA and participates in the decision.
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    \21\ The legislative history of the Social Security Act 
Amendments of 1939 states that, ``Administrative and judicial review 
provisions not now provided in the Social Security Act are included, 
and administrative provisions are included which are similar to 
those under which the Veterans' Administration operates. . . . 
Section 205(b) outlines the general functions of the Board in 
determining rights to benefits. It requires the Board to offer 
opportunity for a hearing, upon request, to an individual whose 
rights are prejudiced by any decision of the Board.'' H.R. Rep. No. 
728, 76th Cong., 1st Sess. 42 (1939); S. Rep. No. 734, 76th Cong., 
1st Sess. 51 (1939). The legislative history of section 205(b) of 
the Act therefore links the provisions that Congress contemplated 
for our administrative review process with the process used by the 
Veterans' Administration (now the Department of Veterans Affairs), 
another benefit-granting agency. This linkage to the Department of 
Veterans Affairs procedures is significant, because ``[t]he 
prevailing pre-World War II view was that benefits decisionmaking 
was significantly different from regulatory decisionmaking.'' 1992 
ACUS Report, at 815. The Final Report of Attorney General's 
Committee on Administrative Procedure, on which Congress relied when 
it enacted the APA, also highlights the distinction between the 
regulatory agencies and the benefit granting agencies. S. Doc. No. 
77-8, at 55, 69, 263 (1941). ``When the Attorney General's Committee 
recommended the creation of the office of independent hearing 
examiner, it was focusing on the operation of regulatory agencies. 
Benefit adjudication was not a matter of primary concern to the 
Committee, and there is ground for the belief that the Committee 
viewed benefit adjudication very differently from regulatory 
adjudication.'' 1992 ACUS Report, at 825.
    \22\ 5 U.S.C. 554(d). The APA, 5 U.S.C. 554(d)(2), also provides 
that the ``employee who presides at the reception of evidence'' may 
not ``be responsible to or subject to the supervision or direction 
of an employee or agent engaged in the performance of investigative 
or prosecuting functions for an agency.''
    \23\ Wong Yang Sung v. McGrath, 339 U.S. 33, 41 (1950).
    \24\ See, e.g., 1992 ACUS Report, at 792 n.53 (``Obviously, had 
the formal hearing requirements of the APA been mandatory, the 
separation-of-functions requirements would have forbidden the ALJ to 
assume total control of the process.''); Gary J. Edles, An APA-
Default Presumption for Administrative Hearings: Some Thoughts on 
``Ossifying'' the Adjudication Process, 55 Admin. L. Rev. 787, 809-
10 (2003) (``[D]isability cases under the Social Security Act--the 
largest adjudicatory regime to use ALJs as presiding officers--are 
arguably not even governed by the APA . . . . Historically, the 
Social Security Administration decided to use administrative law 
judges even though it was not required to do so by any `on-the-
record' hearing requirement . . . . Moreover, Social Security cases 
are non-adversarial, the government is not typically represented 
and, more like the inquisitorial model, the presiding administrative 
law judge has an affirmative obligation to develop the record even 
if counsel represents the claimant. Social Security cases have been 
described as `the best example' of agency adjudication not based on 
a judicial model. Although Social Security cases are, in numbers at 
least, the predominant form of ALJ hearing today, they are plainly 
not the prototypical regulatory hearing of the mid-1940s or the 
accusatory-style proceeding likely to lead to a finding of 
culpability or imposition of severe economic sanction whose 
procedural uniformity appears to be the predicate for an APA-default 
provision.''); Bernard Schwartz, Adjudication and the Administrative 
Procedure Act, 32 Tulsa L. J. 203, 209 (1996) (``At first glance, 
this three-hat system may appear to contravene the APA separation-
of-functions requirements because the Social Security ALJ is not 
limited to hearing and deciding. The ALJ also has the task of 
developing both the claimant's and the government's case.'').
---------------------------------------------------------------------------

    The ALJ's three-hat role is consistent with the prevailing view of 
benefit decision making at the time Congress enacted the APA in 1946. 
When Congress was considering whether and how to reform the Federal 
administrative process between the mid-1930s and 1946, it had the 
benefit of a number of studies on the issue, including the Final Report 
of Attorney General's Committee on Administrative Procedure and a 
series of monographs that the Attorney General's Committee prepared on 
numerous Federal agencies, including the Veterans Administration and 
the Social Security Board. The Final Report of the Attorney General's 
Committee recognized a dichotomy between ``regulatory'' decision making 
and ``benefits'' decision making.\25\ ``It did so on the ground that 
hearings conducted by these agencies merely augmented ex parte 
investigations which the agencies conducted on the claims before them. 
This subordinate role played by hearings in the benefit-granting 
agencies made the Committee's general analysis of agency adjudication-
including its careful review of separations-of-functions issues-
inapplicable to the benefit agencies.'' \26\
---------------------------------------------------------------------------

    \25\ ``Final Report of Attorney General's Committee on 
Administrative Procedure,'' S. Doc. No. 77-8, at 55, 69, 263 (1941); 
see 1992 ACUS Report, at 815-17.
    \26\ Daniel J. Gifford, Adjudication in Independent Tribunals: 
The Role of an Alternative Agency Structure, 66 Notre Dame L. Rev. 
965, 987 (1991); see also Daniel J. Gifford, Federal Administrative 
Law Judges: The Relevance of Past Choices to Future Directions, 49 
Admin. L. Rev. 1, 20-21 (1997) (Gifford, Past Choices).
---------------------------------------------------------------------------

    The Supreme Court approved the ``three-hat'' role of our 
adjudicators in Richardson v. Perales, without addressing the APA's 
separation-of-functions requirements.\27\ In Perales, the Court was 
less concerned with the position title of our adjudicators than with 
ensuring that the hearings process worked fairly and efficiently. The 
Court declined to consider whether a Social Security hearing was a 
formal adjudication under the APA because, in the Court's view, our 
hearings process, including the ``three-hat role'' for the adjudicator 
at the hearing, was fair and worked efficiently to process our 
tremendous volume of cases.\28\ The fairness and efficiency of the 
process, however, did not depend on the fact that an ALJ, as opposed to 
another type of adjudicator, presided over the hearing.
---------------------------------------------------------------------------

    \27\ 402 U.S. 389, 410 (1971).
    \28\ The Perales court relied on statistics showing that the 
agency received ``over 20,000 disability claim hearings annually,'' 
402 U.S. at 406; see also id. at 403 n.7 (citing agency statistics 
showing that ``in fiscal 1968, 515,938 disability claims were 
processed.'') Those numbers pale in comparison to our more recent 
workload numbers. In 2019, we received and completed approximately 
2.3 million initial disability claims, received more than 510,000 
hearing requests, and completed more than 793,000 hearings. ``Annual 
Performance Report, Fiscal Years 2019-2021'' at 44, 46 (2020)).
---------------------------------------------------------------------------

    Consequently, in light of the significant differences between our 
informal, inquisitorial hearings process and the type of hearings 
process to which the APA applies, our hearings process is properly 
viewed as comparable to the APA's process, but governed only by the 
requirements of the Act and procedural due process.\29\
---------------------------------------------------------------------------

    \29\ See, e.g., 1992 ACUS Report, at 791-92 (``The Social 
Security Administration had long utilized ALJs even though the APA 
on-the-record hearing requirements may not have required it to do 
so. . . . By the 1970s the number of disability determinations 
skyrocketed with the advent of expanded coverage. It became quickly 
apparent that the number of ALJs making disability determinations 
would far outstrip those making all formal decisions in government. 
The remarkable thing about this expanded use of ALJs was that it 
emerged without APA compulsion because no on-the-record hearing was 
mandated in the disability context.''); Kent Barnett, Against 
Administrative Judges, 49 U.C. Davis L. Rev, 1643, 1664-65 (2016) 
(Barnett, Against Administrative Judges) (``SSA has chosen to use 
ALJs in the absence of any `on the record' language.''); Paul R. 
Verkuil, Reflections Upon the Federal Administrative Judiciary, 39 
UCLA L, Rev. 1341, 1348-49 (1992); Phyllis E. Bernard, Social 
Security and Medicare Adjudications at HHS: Two Approaches to 
Administration Justice in an Ever-Expanding Bureaucracy, 3 Health 
Matrix 339, 353 n.18 (1993) (``SSA decides large numbers of 
disability cases informally--that is outside the formal adjudication 
requirements of the APA--yet it uses ALJs to do so.''); cf., ACUS, 
Equal Employment Opportunity Commission: Evaluating the Status and 
Placement of Adjudicators in the Federal Sector Hearing Program, at 
11-12 (2014)). (https://www.acus.gov/sites/default/files/documents/FINAL%20EEOC%20Final%20Report%20%5B3-31-14%5D.pdf) (discussing SSA's 
use of ALJs and noting that, ``The relevant provision of the Social 
Security Act, however, required only an `opportunity for hearing,' 
not a `hearing on the record.' This language would not ordinarily be 
read to require observance of formal APA adjudication 
procedures.'').

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[[Page 73141]]

    We recognize, as some commenters noted, that on two prior 
occasions, Congress explicitly authorized us, on a temporary basis, to 
use non-ALJ adjudicators in our hearings process: first, after Congress 
created the disability program in the 1950s, and again when Congress 
created the Supplemental Security Income (SSI) program in the 
1970s.\30\ One possible explanation for these temporary authorizations 
is that they reflect a congressional belief that, without such 
authorization, the APA would have compelled us to use ALJs in our 
hearings process. The commenters seemed to proceed from that 
assumption. However, an equally plausible explanation for Congress's 
action is a need for expediency: Congress preferred to address the 
service delivery problems that arose after enactment of the disability 
and SSI programs through means that were the least disruptive to our 
existing processes. In this context, ``Congress's temporary 
authorization for non-ALJ adjudication [after enactment of the 
disability program] was merely intended to provide relief to the SSA 
without revising the SSA's decisional format. Under such a view, 
Congress did not consider the larger question of whether Title II 
proceedings were or were not governed by the APA or whether they 
required APA-qualified ALJs as presiding officers.'' \31\
---------------------------------------------------------------------------

    \30\ Public Law 85-766, 72 Stat. 864, 878 (1958); Public Law 86-
158, 73 Stat. 339, 352 (1959); Public Law 92-603, 86 Stat. 1329, 
1475 (1972). Notably, the legislation that authorized us to use non-
ALJ adjudicators at the outset of the SSI program may have had an 
unintended effect. At the outset of the SSI program in 1974, as now, 
many claimants who applied for SSI payments under title XVI of the 
Act also applied for benefits under title II of the Act. We needed a 
feasible way to decide these concurrent claims, and using a 
different adjudicator to decide each claim would not have been 
supportable because concurrent claims usually involve common issues. 
Congress subsequently enacted legislation to address the issue. See 
Public Law 94-202, 89 Stat. 1135 (1976); H.R. Rep. No. 679, 94th 
Cong., 1st Sess. 3 (1975); S. Rep. No. 550, 94th Cong., 1st Sess. 3-
4 (1975), reprinted in 1975 U.S.C.C.A.N. 2347, 2349-2350 (1975); 
Public Law 95-216, 371, 91 Stat. 1509, 1559 (1977); H.R. Conf. Rep. 
No. 837, 95th Cong., 1st Sess. 74 (1977), reprinted in 1977 
U.S.C.C.A.N. 4308, 4320. The first law, Public Law 94-202, made the 
requirements for hearings held under title XVI of the Act consistent 
with those held under title II, and provided that the hearing 
examiners who had been hired under the original version of the SSI 
statute would be considered ALJs on a temporary basis. The second 
law, Public Law 95-216, made these adjudicators ALJs on a permanent 
basis.
    \31\ 1992 ACUS Report, at 820-21; see also Gifford, Past 
Choices, at 26, n.139.
---------------------------------------------------------------------------

    We also disagree with those commenters who expressed possible due 
process concerns. It is important to note that there is no due process 
violation inherent in a hearing system that relies on adjudicators 
other than ALJs. Indeed, adjudicators other than ALJs significantly 
outnumber ALJs, and they preside over hundreds of thousands of 
adjudications in the Federal government each year, including many, such 
as those conducted by the Department of Veterans Affairs, that involve 
issues similar to the ones that our adjudicators are required to 
decide.\32\ With respect to the issue of who may be a decisionmaker in 
an adjudicatory proceeding, the fundamental requirement of due process 
is that the decisionmaker be fair and impartial.\33\
---------------------------------------------------------------------------

    \32\ See Kent H. Barnett, Some Kind of Hearing Officer, 94 Wash. 
L. Rev. 515, 541-43 (2019) (recognizing that non-ALJs significantly 
outnumber ALJs in the Federal government, and noting that, as of 
approximately June 2019, there were 1,931 ALJs versus at least 
10,831 non-ALJs in the Federal government); John H. Frye, III, 
Survey of Non-ALJ Hearing Programs in the Federal Government 59-79 
(August 1991) (available at: https://www.acus.gov/sites/default/files/documents/00000001.pdf.)
    \33\ See, e.g., Schweiker v. McClure, 456 U.S. 188, 195 (1982) 
(noting that, ``due process demands impartiality on the part of 
those who function in judicial or quasi-judicial capacities'' and 
rejecting a due process challenge to the use of non-ALJ hearing 
officers who ``serve[d] in a quasi-judicial capacity, similar in 
many respects to that of administrative law judges'' in certain 
Medicare hearings).
---------------------------------------------------------------------------

    As we explained in the preamble of the NPRM, we will not implement 
these changes in a way that will undermine the independence and 
integrity of our existing administrative review process. We take 
seriously our responsibility to ensure that claimants receive accurate 
decisions from impartial decisionmakers, arrived at through a fair 
process that provides each claimant with the full measure of due 
process protections. Since the beginning of our administrative review 
process in 1940, we have held an unwavering commitment to a full and 
fair hearings process. This final rule will not alter the fundamental 
fairness of our longstanding hearings process. Under our current rules, 
and under sections 404.956(c) and 416.1456(c) of this final rule, our 
AAJs will apply the same rules that our ALJs apply when they hold 
hearings. As they do currently, under the authority prescribed by 
sections 404.979 and 416.1479, AAJs will independently decide cases 
based on the facts in each case and in accordance with agency policy 
set out in regulations, rulings, and other policy statements. They will 
continue to maintain the same responsibility and independence as ALJs 
to make fair and accurate decisions, free from agency interference. 
Because AAJs and ALJs have similar levels of training, will follow the 
same set of policies, and have equivalent decisional independence, we 
anticipate that when AAJs are used at the hearing level, they will 
provide the same level of service and fairness as ALJs do.
    Comment: A commenter said that the regulations and policies 
currently in place, which we cited as support for our NPRM, have only 
stood because they have not been previously implemented, and thus were 
never challenged. The commenter opined that the two regulations that 
give AAJs the authority to hear cases are in conflict with the APA, 
which requires adjudications on the record to be conducted only by the 
agency, one of the members of the body that comprise the agency, or an 
ALJ appointed under 5 U.S.C. 3105.
    Response: We disagree. As explained above, in light of the 
significant differences between our hearings process and the type of 
hearings process to which the APA applies, we believe our hearings 
process is properly viewed as comparable to the APA's process, but 
governed only by the requirements of the Act and procedural due 
process. For the reasons discussed above, this final rule is consistent 
with the Act and safeguards the individual's right to procedural due 
process.
    Comment: A commenter stated that it is only by regulations, not 
statute, that we use the Appeals Council to hear appeals at our agency. 
The commenter opined that if agencies could promulgate regulations and 
make anyone a member of the body that comprises the agency, then 
agencies would never need to use ALJs. The commenter cited the Supreme 
Court's decision in Wong Yang Sung v. McGrath \34\ as demonstrating 
that adjudicators authorized to conduct hearings only by regulation 
must give way to ALJs.
---------------------------------------------------------------------------

    \34\ See Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950).
---------------------------------------------------------------------------

    Response: We disagree with this comment. Contrary to the 
commenter's assumption, we are not providing our

[[Page 73142]]

AAJs with the authority to hold hearings because we consider them 
members of the body that comprise the agency under the APA. As we 
explained above, from the beginning of our hearings process, the head 
of our agency--initially, the Social Security Board, and currently, the 
Commissioner--has had statutory authority to decide, through 
rulemaking, how to structure our hearings process and who may preside 
over a hearing.\35\ Moreover, from the beginning of our hearings 
process, the head of our agency has delegated to the Appeals Council 
the authority to conduct hearings and issue decisions.
---------------------------------------------------------------------------

    \35\ See sections 205(b)(1), 702(a)(4)-(7), 1631(c)(1)(A) of the 
Act.
---------------------------------------------------------------------------

    We also disagree with the commenter's characterization of the 
Court's decision in Wong Yang Sung. In that case, the Court found that 
the APA's formal adjudication requirements, which apply in every case 
of adjudication ``required by statute'' to be determined on the record 
after opportunity for a hearing, applied to immigration deportation 
hearings that were not required by statute, but by the Constitution and 
procedural due process. The court also held that immigrant inspectors, 
who held deportation hearings pursuant to regulations, did not fall 
within the APA's exception for proceedings conducted by ``officers 
specially provided for by or designated pursuant to statute.'' \36\ As 
previously discussed, our hearings process is required under sections 
205(b)(1) and 1631(c)(1)(A) of the Act. In light of the significant 
differences between our hearings process and the type of hearings 
process to which the APA applies, the proper view of our hearings 
process is that it is comparable to the APA's process, but governed by 
the requirements of the Act and procedural due process. Because our 
hearing process does not fall under the APA's requirements for a formal 
adjudication, there is no basis to consider whether our AAJs would 
qualify as ``officers specially provided for by or designated pursuant 
to statute.'' Consequently, the commenter's reliance on Wong Yang Sung 
is inapposite.
---------------------------------------------------------------------------

    \36\ 339 U.S. at 51-52.
---------------------------------------------------------------------------

    Comment: Several commenters said that our agency has previously 
made statements indicating that we operate under the APA. For example, 
in responding to public comments on hearing procedures under title XVI, 
we said, ``The regulations herewith governing full administrative 
hearing and review are in accordance with the Social Security Act, as 
amended, and Administrative Procedure Act (5 U.S.C. 554, 556, and 557) 
and comply with requirements for administrative due process.'' \37\
---------------------------------------------------------------------------

    \37\ 39 FR 37976 (Oct. 25, 1974).
---------------------------------------------------------------------------

    Response: We disagree with these comments. We recognize that the 
Department of Health, Education, and Welfare (HEW), our parent agency 
in the 1970s, and what was then called the Civil Service Commission 
(CSC) had a dispute over the appointment of ALJs to hear and decide 
claims under the SSI program after Congress enacted the program in 
1972. In that intragovernmental dispute, HEW took the position that an 
SSI hearing was one to which the APA applied; the CSC took the opposite 
position, and contended that it had no authority to appoint ALJs for 
SSI hearings because an SSI hearing was not one to which the APA 
applied.\38\ The Department of Justice agreed with CSC's position, and 
Congress ultimately resolved the dispute.\39\ Regardless of the 
position that HEW took on the issue in the 1970s, however, we have long 
held the view that our hearings process is governed by the requirements 
of the Act and due process, and is not subject to the formal 
adjudication requirements of the APA. As explained above, in light of 
the significant differences between our hearings process and the type 
of hearings process to which the APA applies, we believe our hearings 
process is properly viewed as comparable to the APA's process, but 
governed by the requirements of the Act and procedural due process. For 
the reasons discussed above, this final rule is consistent with the Act 
and safeguards the individual's right to procedural due process.
---------------------------------------------------------------------------

    \38\ See Gifford, Past Choices, at 16-17.
    \39\ See supra note 30.
---------------------------------------------------------------------------

    Comment: According to a commenter, the recent U.S. Supreme Court 
decision Smith v. Berryhill \40\ confirms that ALJs must conduct our 
hearings. The commenter said that the language of this decision 
indicates that it is not within the agency's discretion to define a 
``hearing'' or appropriate ``due process.'' The commenter said both are 
reserved for the judicial branch to interpret as a means of further 
protecting the public from agency over-reaching and ensuring the public 
receives the protections of the APA as intended by Congress. Another 
commenter said Smith v. Berryhill held that 42 U.S.C. 405(g) provides 
for judicial review of any final decision made after a hearing before 
an ALJ, not another group of people. Another commenter said SSA is 
ignoring the negative impact this rule change will have on due process 
and increasing the likelihood that claimants will need to appeal 
decisions directly to the Federal district courts based on the recent 
decision of Smith v. Berryhill.
---------------------------------------------------------------------------

    \40\ 139 S. Ct. 1765 (May 28, 2019).
---------------------------------------------------------------------------

    Response: We disagree with these comments. The Supreme Court did 
not decide in Smith the type of adjudicator who may preside over our 
administrative hearings. Rather, Smith concerned the narrow issue of 
``whether a dismissal by the Appeals Council on timeliness grounds 
after a claimant has received an ALJ hearing on the merits qualifies as 
a `final decision . . . made after a hearing' for purposes of allowing 
judicial review under [section 205(g) of the Act].'' \41\
---------------------------------------------------------------------------

    \41\ Id. at 1771.
---------------------------------------------------------------------------

    The Court held that ``[w]here, . . . a claimant has received a 
claim-ending timeliness determination from the agency's last-in-line 
decisionmaker after bringing his claim past the key procedural post (a 
hearing) mentioned in [section 205(g) of the Act], there has been a 
`final decision . . . made after a hearing under [section 205(g)].'' 
\42\
---------------------------------------------------------------------------

    \42\ Id. at 1777.
---------------------------------------------------------------------------

    We recognize that the Court noted, in dicta, that ``the `hearing' 
referred to in [section 205(g)] cannot be a hearing before the Appeals 
Council.'' \43\ However, we do not interpret this statement to have any 
effect on this final rule clarification. The Court made this statement 
in support of its conclusion that ``the fact that there was no Appeals 
Council hearing . . . does not bar review.'' \44\ In other words, the 
Court ruled that the claimant in Smith could obtain judicial review of 
the Appeals Council's dismissal of his request for review even though 
the Appeals Council did not hold a hearing. The Supreme Court in Smith 
did not decide the type of adjudicator who may preside over our 
administrative hearings. The Court noted, moreover, that it need not 
conclusively define ``hearing'' as used in section 205(g), because the 
claimant in Smith had clearly obtained the type of hearing on the 
merits contemplated by the statute.\45\
---------------------------------------------------------------------------

    \43\ Id. at 1775 n.10.
    \44\ Id.
    \45\ Id. at 1775.
---------------------------------------------------------------------------

    When an AAJ removes a request for a hearing under this final rule, 
the claimant will still receive the type of merits hearing contemplated 
by the statute. The AAJ will conduct all proceedings in accordance with 
the rules that apply to ALJs, and if the claimant is dissatisfied with 
the hearing decision or dismissal, he or she may ask the Appeals 
Council to review that action. The AAJ who conducted the

[[Page 73143]]

hearing or issued the decision or dismissal will not participate in any 
action associated with the request for review. In effect, hearings and 
appeals will remain separate and distinct. The claimant will also 
retain the right to request judicial review of the agency's final 
decision.
    Because this final rule does not affect a claimant's right to a 
hearing on the merits as contemplated by the Act, we do not believe the 
Supreme Court's decision in Smith precludes the rule.

Comments About the Congressional Intent Underlying the Act

    Comment: According to one commenter, Congressional action makes 
clear that Congress has long understood that we were required to use 
ALJs to decide cases. One commenter asserted that, historically, it has 
only been at the explicit direction of Congress, through the enactment 
of new law, that we have been empowered to use non-ALJs to decide 
cases. The commenter said that twice in the 1950s, Congress enacted 
emergency legislation to permit non-ALJ adjudication, but both times 
the legislation included a time limit. According to the commenter, the 
most recent time Congress legislated on our use of ALJs was in 1977, to 
repeal a provision that permitted us to use non-ALJs to preside over 
appeals for the recently created SSI program. The commenter opined that 
these examples demonstrate that Congress understood that we were 
required to use ALJs and legislation is necessary to permit us to use 
non-ALJs.
    Response: We disagree with these comments. As previously discussed, 
we recognize that on two prior occasions, Congress explicitly 
authorized us, on a temporary basis, to use non-ALJ adjudicators in our 
hearings process: First, after Congress created the disability program 
in the 1950s and again when Congress created the SSI program in the 
1970s.\46\ We have previously explained above that, as the 
Administrative Conference of the United States has recognized, these 
congressional actions do not unambiguously indicate that Congress 
intended us to use ALJs to hear and decide all claims. Moreover, 
Congress has, in fact, made conflicting statements on this issue. For 
example, in the Conference Report on H.R. 4277, which became the Social 
Security Independence and Program Improvements Act of 1994, the 
conference committee expressed its understanding of present law as 
being that our hearings process was not subject to the APA.\47\
---------------------------------------------------------------------------

    \46\ Public Law 85-766, 72 Stat. 864, 878 (1958); Public Law 86-
158, 73 Stat. 339, 352 (1959); Public Law 92-603, 86 Stat. 1329, 
1475 (1972).
    \47\ H.R. Conf. Rep. No. 103-670, at 98 (1994), reprinted in 
1994 U.S.C.C.A.N. 1553, 1564 (noting that, ``Although not required 
by law, the agency follows the procedures of the Administrative 
Procedures [sic] Act (APA) with respect to the appointment of ALJs 
and the conduct of hearings.''). See, e.g., Barnett, Against 
Administrative Judges, at 1664-65 (``[I]t is far from clear that the 
SSA is required to use ALJs or formal adjudication under the APA. 
After all, legislative history to statutory amendments in 1994 
states that although the SSA uses ALJs, the use of ALJs and formal 
APA proceedings are `not required by law.' ''); ACUS Final Report on 
EEOC Adjudication, at 11-12, n.73 (``There nonetheless remains some 
dispute over whether Congress intended to require DI and SSI 
hearings be conducted under the APA.'').
---------------------------------------------------------------------------

    Notably, we have previously used non-ALJs to issue decisions 
without an enactment of new law. Under our current rules, attorney 
advisors have authority to conduct prehearing proceedings in some 
cases, and issue fully favorable decisions, as a result of those 
proceedings.\48\ We adopted our attorney advisor program during the 
1990s when we were again confronted with an unprecedented volume of 
hearing requests. In an effort to process those requests more timely, 
we published final rules in June 1995 establishing the attorney advisor 
program for a limited period of two years.\49\ The program's success 
prompted us to renew it several times until it expired in April 
2001.\50\ In August 2007, we published an interim final rule that 
reinstituted the attorney advisor program,\51\ and in March 2008, we 
issued a final rule without change.\52\ As before, we intended the 
program to be a temporary modification to our procedures, but with the 
potential to become a permanent program. Since that time, we 
periodically extended the sunset date of the program,\53\ until we 
decided to make it permanent in August 2018 because it had become an 
integral tool in providing timely decisions to the public while 
maximizing the use of our ALJs.\54\
---------------------------------------------------------------------------

    \48\ 20 CFR 404.942 and 416.1442.
    \49\ 60 FR 34126 (June 30, 1995).
    \50\ 62 FR 35073 (June 30, 1997) (extending expiration date to 
June 30, 1998); 63 FR 35515 (June 30, 1998) (extending expiration 
date to April 1, 1999); 64 FR 13677 (Mar. 22, 1999) (extending 
expiration date to April 1, 2000), 64 FR 51892 (Sept. 27, 1999) 
(extending expiration date to April 2, 2001).
    \51\ 72 FR 44763 (Aug. 9, 2007).
    \52\ 73 FR 11349 (Mar. 3, 2008).
    \53\ 74 FR 33327 (July 13, 2009) (extending expiration date to 
August 10, 2011); 76 FR 18383 (May 4, 2011) (extending expiration 
date to August 9, 2013); 78 FR 45459 (July 29, 2013) (extending 
expiration date to August 7, 2015); 80 FR 31990 (June 5, 2015) 
(extending expiration date to August 4, 2017); 82 FR 34400 (July 25, 
2017) (extending expiration date to February 5, 2018); and 83 FR 711 
(Jan. 8, 2018) (extending expiration date to August 3, 2018).
    \54\ 83 FR 40451 (Aug. 15, 2018).
---------------------------------------------------------------------------

Comments About the Clarity of Our NPRM

    Comment: Several commenters said there are a number of questions 
that we did not address in our NPRM, which makes it difficult for the 
public to evaluate the proposal. Some commenters said the proposal was 
so vague that it is impossible for the public to provide meaningful 
comment on it and, as a result, the proposal does not meet the basic 
requirements of rulemaking under the APA.
    Among the questions raised, commenters asked when an AAJ would be 
assigned a claim, hold a hearing, and issue a decision. Others asked 
when and how often we expect AAJs to exercise the authority to hold 
hearings (e.g., if there will be a threshold for the number of pending 
hearing requests above which we would exercise this authority). Some 
commenters wanted to know if we would give AAJs the same goals as ALJs 
in terms of case processing. Others asked if we envision hiring more 
AAJs, if AAJs will hold hearings by video teleconference, and if we 
would place AAJs in local offices. One commenter asked if a claimant 
could object to a hearing by an AAJ and ask for an ALJ instead. Some 
commenters wanted to know if AAJ decisions would be subject to quality 
reviews and if AAJs who hear cases would continue to hear appeals at 
the same time.
    Response: We continually evaluate our available authority to best 
handle our work. As discussed above and in the preamble of our NPRM, 
AAJs have had authority to remove hearing requests, hold hearings, and 
issue decisions since the beginning of our hearings process in 1940. 
This final rule merely seeks to clarify the rules that would govern 
when and how AAJs hold hearings and issue decisions. Furthermore, this 
rule provides that AAJs will be subject to the same policies and 
procedures as ALJs, if they remove a request for a hearing. We expect 
that these revisions will provide us with much-needed flexibility to 
respond to, and mitigate, the impact of surges in hearing requests and 
to meet the needs of the public we serve. There may be nationwide 
caseload surges, regionalized caseload surges, or other circumstances 
that warrant staffing hearings with new or reallocated AAJ staff. For 
example, the caseload surge in the wake of the 2008 recession serves as 
a clear example of a system-wide backlog where, under this rule, new or

[[Page 73144]]

reallocated AAJs could augment the current number of ALJs conducting 
hearings. Using AAJs can allow the agency to conduct more hearings with 
less wait time for claimants. This rule is intended to provide 
flexibility when there is a need for additional support at the hearings 
level. As another example, in a situation where a regional office 
unexpectedly needs to re-hear a substantial number of cases, this rule 
will allow SSA to add additional AAJs to the hearing level review.
    We did not specify when we would exercise this authority so that we 
are able to address unforeseen circumstances. For example, since March 
2020, we have had to modify substantially our normal hearings process 
in light of the national public health emergency resulting from the 
COVID-19 global pandemic. We closed our hearing offices to the public 
and began offering claimants the opportunity for a hearing by 
telephone. Such unforeseen scenarios have the potential to disrupt 
substantially our normal operations and the availability of all of our 
adjudicators. We therefore should prepare for this type of 
unforeseeable circumstance by ensuring that our rules allow us the 
maximum flexibility to hear and decide claims, in order to provide an 
appropriate level of public service. This final rule will help us do 
that. In terms of the other specific questions, we will apply the same 
rules that apply to ALJs when AAJs hold hearings and issue decisions.
    In addition to this rule, we will continue to utilize other 
flexibilities during surges in hearing requests and during case 
backlogs, such as shifting cases from hearing offices that are 
overburdened to hearing offices that have less of a demand or 
reassigning cases to ALJs or AAJs that have the capacity to take on 
additional cases, to help reduce the number of pending hearing requests 
and use all of our adjudicative resources in the most effective manner.

Comments About the Data and Evidence That Justifies the Rule

    Comment: Some commenters said that we did not comply with the 
rulemaking provisions of the APA because we did not provide technical 
studies or data to explain or support the necessity of this change. One 
commenter said our NPRM makes conclusory statements that having AAJs 
conduct hearings will help us process claims faster, with no data or 
information on how we reached this conclusion. Further, the commenter 
stated the NPRM does not provide information on how we will track or 
monitor the data to see if the rule leads to faster claims processing.
    One commenter said that we did not substantiate our assertions 
related to our need for flexibility and increased capacity to address 
short-term workloads. According to the commenter, our only rationale 
for needing additional adjudicative flexibility is the difference in 
hearing wait times across the country. In the commenter's opinion, we 
already have enough flexibility to address such disparities. The 
commenter said that we should use our existing flexibility (e.g., our 
national first in, first out case assignment policy; our ability to 
transfer workloads between hearing offices; and our ability to schedule 
appearances by video teleconferencing) to balance the hearing level 
workload and address any future surge in hearing requests rather making 
the proposed changes final.
    Response: We disagree that our NPRM required technical studies or 
data to support this change. As we explained above, this final rule 
merely clarifies the existing authority of AAJs to hold hearings and 
issue decisions, in response to questions raised about our existing 
authority for AAJs to assume ALJ hearings.
    Additionally, the commenter mischaracterized our rationale for 
using AAJs to hold hearings and issue decisions. We have not asserted 
that having AAJs hold hearings and issue decisions will result in 
faster claim processing times. Instead, we believe this final rule will 
allow us flexibility to prevent an increase in waiting times that would 
naturally occur, if there were no increase in adjudicatory capacity to 
respond to a surge in hearing requests. In our experience, expanding 
our adjudicative capacity allows us to hear and decide more cases. By 
expanding our adjudicative capacity, we anticipate that if there is a 
surge in hearing requests, as we have regularly seen over the history 
of our programs, we can use AAJs to hear and decide cases pending at 
the hearing level. As such, we anticipate this change will assist in 
reducing the amount of time a claimant must wait before we hold a 
hearing on his or her claim for benefits, if there were no increase in 
adjudicatory capacity.
    Currently we have 71 AAJs, which is in alignment with staffing 
needs relative to the current workload at the Appeals Council. In 
certain circumstances, we may be able to use existing AAJ staff at the 
hearing level to supplement hearing level caseload surges, and we may 
have to use AAJs even when Appeals Council pending cases are average or 
above average, if there is a relative critical need at the hearings 
level. However, to avoid creating a subsequent backlog at the Appeals 
Council or to provide greater support, we may need to hire additional 
AAJs to conduct hearings or to assist with pending cases at the Appeals 
Council. When additional flexibility is needed, the additional AAJs may 
help to reduce processing wait times and may avoid the development of a 
backlog at the Appeals Council.

Comments About the Timing and Necessity of the Rule

    Comment: One commenter said that we did not give a compelling 
explanation for (1) why we have not exercised this authority in the 
past; (2) why we have decided to exercise the authority now; and (3) 
why the regulation is necessary if the authority already exists.
    Response: We acknowledge that although AAJs already have authority 
under our current regulations to remove a request for a hearing that is 
pending before an ALJ, hold a hearing, and issue a decision,\55\ we 
have not exercised this authority in the past. A major reason we had 
not previously exercised this authority was a lack of regulatory 
guidance on how we would exercise the authority. For this reason, this 
final rule clarifies that if the Appeals Council assumes responsibility 
for a hearing request, it must conduct all proceedings in accordance 
with the rules set forth in sections 404.929 through 404.961 or 
416.1429 through 416.1461, as applicable. This final rule also 
clarifies in section 422.205(a) that Appeals Council decisions and 
dismissals issued on hearing requests removed under sections 404.956 or 
416.1456 require only one AAJ's signature. Additionally, this final 
rule clarifies that if a claimant is dissatisfied with a hearing level 
decision issued by an AAJ, he or she may request Appeals Council 
review. Further, as stated above, we are providing guidance now in 
preparation of exercising this authority, should the need arise.
---------------------------------------------------------------------------

    \55\ See 20 CFR 404.956 and 416.1456.
---------------------------------------------------------------------------

    Comment: One commenter said that it is now as easy to hire ALJs as 
it is to hire AAJs, because we (not the Office of Personnel Management 
(OPM)) now predominantly administer the process. The commenter 
questioned why we would choose now to assert this regulatory authority, 
when presumably there is no practical need for us to do so.
    Response: We acknowledge that our agency is now predominately 
responsible for hiring ALJs. However,

[[Page 73145]]

we are not pursuing this regulation because of previous hiring 
practices. The change in the hiring process is not directly relevant to 
this final rule and our reasons for pursuing this final rule, which we 
previously explained, still exist.
    Comment: Several commenters asserted there are more than sufficient 
numbers of ALJs to handle the current workload and, therefore, there is 
no need to revise our rules. A commenter said that our ALJs reduced the 
pending number of cases to its lowest point in 15 years at the end of 
Fiscal Year 2019 and virtually eliminated the backlog. According to the 
commenter, ALJs have met expectations and are keeping pace with the 
number of cases filed.
    Response: Currently there are 1,389 ALJs and 71 AAJs. At the end of 
May 2020, we had approximately 450,048 applicants for benefits who were 
waiting for a hearing before an ALJ.\56\ Though our number of current 
pending cases is not as high as it has been at peak levels, we expect 
that these revisions will provide us with much-needed flexibility to 
respond to, and mitigate, the impact of surges in hearing requests as 
necessary in the future.
---------------------------------------------------------------------------

    \56\ We are making the national Hearing Office Workload from 
June 2020 available as supporting documentation, at https://www.regulations.gov, under ``supporting and related material'' for 
this docket, SSA-2017-0073. The national Hearing Office Workload 
information is also available at https://www.ssa.gov/appeals/DataSets/02_HO_Workload_Data.html.
---------------------------------------------------------------------------

    Furthermore, we wanted to allow the public the opportunity for 
public comment, as we prefer not to implement changes on a temporary 
basis in times of immediate need. Given the length of time that it 
takes to engage in the notice and comment process required in 
rulemaking, we are engaging in the rulemaking process now before any 
potential future surge in hearing receipts. If we delay the start of 
the rulemaking process, a sudden increase in hearing receipts could 
potentially overwhelm our limited administrative resources by the time 
the rulemaking process is complete. We have seen this happen in the 
past, such as when the sudden rise in claims and hearing requests after 
the 2008 recession resulted in more than 1.1 million pending hearing 
requests. In order to be appropriate stewards of the Social Security 
programs, we need to plan for such inevitable surges, and not merely be 
reactive to them.

Comments About Our Motives for the Rule

    Comment: Multiple commenters opined that we were pursuing this 
regulation for reasons other than those we stated. One commenter stated 
this rule was an attempt to circumvent fair labor laws and intimidate 
the Association of Administrative Law Judges (AALJ) union into backing 
off its position during the current labor negotiations. Another 
commenter opined that AAJs do not have enough work to do and this 
proposal is an attempt to save AAJ jobs. Multiple commenters said that 
this proposal was a step toward discontinuing our use of ALJs. Several 
commenters opined that we want to get rid of ALJs so we may have more 
control over disability determinations. Another commenter asked if this 
rule is the first step toward combining the hearing and Appeals Council 
levels of review.
    Response: The commenters' characterizations of and speculations 
about the purposes behind our rule are incorrect. As we stated in the 
NPRM, we are pursuing this final rule to increase our adjudicative 
capacity when needed, allowing us to adjust more quickly to fluctuating 
short-term workloads, such as when an influx of cases reaches the 
hearing level. Our ability to use our limited resources more 
effectively will help us quickly optimize our hearings capacity, which 
in turn will allow us to issue accurate, timely, and high-quality 
decisions. We are not pursuing this regulation to affect labor 
negotiations, save jobs, discontinue the use of ALJs, or combine the 
ALJ and Appeals Council levels of review.

Comments About the Decisional Independence of ALJs Versus AAJs

    Comment: Commenters said that ALJs are appointed with the specific 
purpose of ensuring a neutral and impartial fact-finder, free from 
pressure from their hiring agency and political influence, to 
adjudicate appeals of agency decisions. Measures such as independent 
proceedings for termination protect ALJs, as they are not subject to 
performance evaluations and are ineligible for bonuses. The commenter 
said that ALJs have these protections so they can make decisions 
objectively, independently, and fairly, without fear of interference or 
influence from an agency.
    Commenters asserted that, in contrast, AAJs receive performance 
evaluations and potential bonuses, and the Commissioner can more easily 
remove them from their positions. Commenters said that the ALJ and AAJ 
positions could never be equivalent, if one is subject to agency-
imposed performance standards, while the other is not. Commenters 
concluded that allowing AAJs to hold hearings would effectively subject 
the entire administrative adjudication process to performance appraisal 
control by our agency.
    Response: We disagree with these comments. We take seriously, and 
always have taken seriously, our responsibility to ensure that 
claimants receive accurate decisions from an impartial decisionmaker, 
arrived at through a fair process that provides each claimant with the 
full measure of due process protections. We have held an unwavering 
commitment to a full and fair hearings process since the beginning of 
the Social Security administrative review process in 1940, and we do 
not intend to alter the fundamental fairness of our longstanding 
process in this final rule. Under this final rule, our AAJs, like our 
ALJs, will have the same responsibility that they always have had to 
make fair and accurate decisions, free from agency interference. As 
explained in the preamble, any AAJ who holds hearings and issues 
decisions on any case pending at the hearing level under titles II, 
VIII, or XVI of the Act, would be required to follow the same rules as 
ALJs including exercising independent judgment and discretion in 
individual cases.
    Comment: Commenters opined that it is not enough for us to say that 
non-ALJs presiding over hearings would have qualified decisional 
independence under agency policy. They said that statement is 
insufficient because we can easily change this ``internal agency 
policy.''
    Response: We disagree with this comment. As noted in the response 
above, when AAJs hold hearings and issue hearing level decisions, they 
are required to exercise independent judgment and discretion. 
Furthermore, AAJs currently issue decisions independently under the 
authority prescribed by sections 404.979 and 416.1479. We do not intend 
to change this requirement of their position, and disagree that this is 
just an ``internal agency policy'' that is easily changed. We would not 
compromise the integrity and fairness of our programs by infringing 
upon an AAJ's ability to exercise independent judgment and discretion 
in individual cases.
    Comment: One commenter said using AAJs would create the appearance 
of partiality that violates the due process clause of the U.S. 
Constitution. According to the commenter, due process concerns itself 
with the appearance of partiality and not an actual showing of 
partiality. Another commenter said recent decisions from the Supreme 
Court support the assertion that there are legitimate due process 
concerns about the impartiality of AAJs,

[[Page 73146]]

because we retain the ability to control the decision making and, 
therefore, there remains the appearance of partiality.\57\ The 
commenter also said decisions issued by AAJs who are not impartial will 
be held invalid, and these cases could usher in class action lawsuits 
in light of Lucia v. SEC.\58\ The commenter said that ALJs increase the 
likelihood of deferential judicial review and absolute official 
immunity for our adjudicators.\59\ According to another commenter, this 
proposal could make our system unfair or perceived to be unfair, and 
for that reason, the courts could overturn more decisions.
---------------------------------------------------------------------------

    \57\ One commenter cited Caperton v. A.T. Massey Coal Co, 556 
U.S. 868 (2009). According to the commenter, it did not matter if 
Justice Benjamin said that he was not biased, the appearance of 
partiality was so strong, he should have recused himself from 
deciding the case.
    \58\ 138 S.Ct. 2044 (2018).
    \59\ The commenter cited Butz v. Economou, 438 U.S. 478, 513, 98 
S. Ct. 2894, 57 L.Ed. 2d 895 (1978).
---------------------------------------------------------------------------

    Response: We disagree with this comment. As stated previously, 
there is no due process violation inherent in a hearing system that 
relies on adjudicators other than ALJs.\60\ We will not implement this 
final rule in a way that could undermine the independence and integrity 
of our existing administrative review process. We take seriously our 
responsibility to ensure that claimants receive accurate decisions from 
impartial decisionmakers, arrived at through a fair process that 
provides each claimant with the full measure of due process 
protections. This revised rule would not alter the fundamental fairness 
of our longstanding hearings process because it requires AAJs to follow 
the same rules that apply to ALJs in a process that the Supreme Court 
has long held is consistent with due process. Additionally, if the 
Appeals Council denies a request for review of an AAJ decision, parties 
would have the ability to seek judicial review in Federal district 
court pursuant to section 205(g) of the Act.
---------------------------------------------------------------------------

    \60\ See, e.g., Schweiker v. McClure, 456 U.S. 188, 195 (1982).
---------------------------------------------------------------------------

    Comment: One commenter said it is best to have a local hearing with 
an ALJ. The commenter said that in his or her experience, AAJs ``rubber 
stamp'' denials or find reasons to remand cases, which prolongs cases 
unnecessarily and does not ultimately help claimants win. The commenter 
asserted that AAJs work together in the Washington, DC, area and seem 
to be ``company men and women,'' while ALJs are in local communities 
across the country. The commenter opined that a local ALJ is better 
than an AAJ because the AAJs do not know local areas and are concerned 
more about keeping their employer happy than helping people.
    Response: Under this final rule, AAJs would apply the same rules as 
ALJs when holding hearings. While our AAJs work from several locations 
near Baltimore, Maryland, and Washington, DC, the physical location of 
our hearing level adjudicators is not relevant because we administer 
national programs and apply uniform policies and procedures nationwide 
to the extent feasible. Additionally, our AAJs will continue to possess 
the same responsibility and independence they have always had to make 
fair and accurate decisions, free from agency interference.\61\ We also 
note that the ALJs in the National Hearing Centers adjudicate cases 
outside of their locality.
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    \61\ Our ALJs have protections that provide them with qualified 
decisional independence, which ensures that they conduct impartial 
hearings. They must decide cases based on the facts in each case and 
in accordance with agency policy set out in regulations, rulings, 
and other policy statements. Further, because of their qualified 
decisional independence, ALJs make their decisions free from agency 
pressure or pressure by a party to decide a particular case, or a 
particular percentage of cases, in a particular way. Consistent with 
our longstanding policy and practice, our AAJs will continue to 
follow these same principles.
---------------------------------------------------------------------------

    Comment: A commenter asserted it would appear unfair for the 
Appeals Council to act on a request for review of a hearing level 
decision or dismissal issued by an AAJ. A different AAJ would have to 
consider the request, but that AAJ would be a colleague of the AAJ who 
issued the decision or dismissal.
    Response: To ensure impartiality, this final rule precludes an AAJ 
who conducted a hearing, issued the decision in a case, or dismissed a 
hearing request, from participating in any action associated with a 
request for Appeals Council review in that case. Similarly, AAJs will 
also be precluded from participating in quality reviews or own motion 
reviews of any decisions they issued at the hearing level. An AAJ 
reviewing a hearings level decision will consider the circumstances of 
the case in accordance with agency policy set forth in the regulations, 
rulings, and other policy statements, and will exercise independent 
judgement, free from agency pressure. We also intend to provide 
subregulatory guidance on AAJ recusals in requests for hearings, as we 
do for ALJs in the Hearings, Appeals, and Litigation Law (HALLEX) 
manual I-2-1-60A.\62\
---------------------------------------------------------------------------

    \62\ See https://www.ssa.gov/OP_Home/hallex/I-02/I-2-1-60.html.
---------------------------------------------------------------------------

    In addition, we note that under our current business processes, 
AAJs already review the work of other AAJs. The Appeals Council 
conducts a random sampling of AAJ work product in its in-line quality 
review process, where an AAJ reviews the work product of another AAJ.

Comments About the Experience and Skills Levels of AAJs and ALJs

    Comment: According to one group of commenters, the title, 
``Administrative Appeals Judge,'' in many ways confuses this issue as 
it does not accurately describe the position and is a misnomer. The 
commenters said, before the mid-1990s, the Appeals Council was composed 
of members, not judges. According to the commenter, the title, 
``member,'' aptly described the position: A member of a group that 
ensures the consistency and uniformity of agency decisions. The 
commenters also said that the mission of the Appeals Council is to 
adjudicate cases similarly to ensure that we treat claimants fairly and 
consistently throughout the nation. The commenters, who formerly served 
on the Appeals Council, said when they were part of the Appeals 
Council, they regularly met as a group to debate and decide questions 
of policy and procedure. They bound themselves according to the policy 
interpretations to ensure they reviewed cases consistently and 
uniformly. Conversely, ALJs hear and decide benefit cases de novo. 
Using the Commissioner's rules and regulations, ALJs render 
individualized decisions, tailored to the evidence presented on the 
record. According to the commenter, while both positions require a 
thorough knowledge of our agency's rules and regulations, the skill 
sets for each job are radically different. Further, another commenter 
questioned why we have two different positions if we believe that there 
is no difference between the skills and experience of ALJs and AAJs.
    Response: We disagree with the commenter's assertion regarding the 
description of the duties of AAJs. While part of the position 
description of an AAJ requires ``formulating, determining, or 
influencing the policies of an agency,'' that role is distinct from an 
AAJ's other responsibilities of exercising independent judgment and 
discretion when reviewing decisions of ALJs. Like an ALJ, an AAJ's 
responsibilities include that they ``may hold hearings or supplemental 
hearings.'' \63\ In addition, an AAJ may hold an oral argument with a 
claimant

[[Page 73147]]

or representative to decide issues based on the record.\64\ Therefore, 
AAJs have additional responsibilities than what the comment asserts.
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    \63\ See USA Jobs announcement number SV-10664781, closed 
December 6, 2019, available at https://www.usajobs.gov/GetJob/ViewDetails/552976200.
    \64\ See 20 CFR 404.976 and 416.1476.
---------------------------------------------------------------------------

    We also disagree that the skill sets for AAJ and ALJ jobs are 
radically different. To become an ALJ or AAJ, applicants must have at 
least 7 years of progressively more responsible experience as a 
licensed attorney preparing for, participating in, or reviewing formal 
hearings or trials involving litigation or administrative law at the 
Federal, State, or local level. An applicant for either position is 
required to have experience in preparation, presentation, or hearing of 
formal cases before courts or governmental bodies. Additionally, in 
April 2001, Congress made the pay scales for AAJs identical to that of 
ALJs, which further supports similarities in the skill sets required 
for the two positions.\65\ Moreover, we note that under our current 
rules, AAJs, like ALJs, issue individualized decisions using the same 
skill of applying agency policy to the facts of the case.\66\ In the 
past, we have had ALJs detailed on a temporary basis to serve as AAJs, 
further demonstrating that the two positions share similar skill sets.
---------------------------------------------------------------------------

    \65\ See https://www.chcoc.gov/content/new-pay-system-administrative-appeals-judges; 5 U.S.C. 5372 and 5372b.
    \66\ See 20 CFR 404.979 and 416.1479.
---------------------------------------------------------------------------

    Comment: One commenter questioned if an ALJ's knowledge, skills, 
and abilities and other qualifications would be identical to an AAJ's 
requirements when we release a new position description for ALJs now 
that we are responsible for our own ALJ hiring. According to another 
commenter, the most recent job announcements for AAJs and ALJs do not 
support the contention that AAJs and ALJs have the same skills and 
experience. The commenter said that the AAJ position requires 
formulating, determining, or influencing the policies of the agency. 
According to the commenter, AAJs review cases for policy compliance 
\67\ and may take a variety of actions, including: Dismissing or 
denying a request for review of an ALJ decision; issuing a decision 
affirming, modifying or reversing the ALJ decision; and conducting own 
motion pre-effectuation and other quality reviews. The commenter said, 
while AAJs engage in a range of activities, their adjudication ``. . . 
mostly involves error correction.'' \68\ In addition, unlike ALJs, AAJs 
cannot complete some actions on their own. Two AAJs are required to 
grant a request for review or to initiate a review on own motion, and 
as a result, about one-fifth of Appeals Council annual actions involve 
sign-off by two AAJs. According to the commenter, ALJs play a very 
different role. They do not set policy or perform a quality review 
function. Instead, ALJs' day-to-day work is holding non-adversarial, on 
the record, de novo hearings. As noted in the position description, 
ALJs make and issue decisions directly and their decisions ``may not be 
substantively reviewed before issuance.'' ALJs must possess ``special 
knowledge and abilities'' that are not required for AAJs, outlined in 
the ALJ position description.
---------------------------------------------------------------------------

    \67\ The commenter cited the Social Security Administration, 
``Fiscal Year 2020 Congressional Justification,'' 16 (2019), 
available at https://www.ssa.gov/budget/FY20Files/FY20-JEAC_2.pdf.
    \68\ The commenter cited ``ACUS, A Study of Social Security 
Litigation in the Federal Courts'' (2016), available at https://www.acus.gov/report/report-study-social-security-litigation-federal-courts.
---------------------------------------------------------------------------

    Response: While we have not yet finalized any new ALJ position 
description, we disagree with any assertion that the position 
description would have to be identical to the knowledge, skills, and 
abilities, and other qualifications of an AAJ, because the primary 
duties of these positions are not identical. Nonetheless, the 
qualifying knowledge, skills, and abilities will be substantially 
similar, if not identical to the requirements of the AAJ position.
    We also disagree that the most recent job announcements for AAJs 
and ALJs do not require the same skills and experience. While we 
acknowledge that the required skills and experience in the recent 
postings for AAJ and ALJs use different terminology in describing the 
required experiences, the required underlying skills and experience are 
the same and can be obtained through at least 7 years of experience 
preparing for, participating in, or reviewing cases at formal hearings 
or trials involving administrative law or courts.\69\ In addition, 
qualifications for both positions require the applicant to be licensed 
and authorized to practice law under the laws of a State, the District 
of Columbia, the Commonwealth of Puerto Rico, or any territorial court 
established under the United States Constitution.\70\
---------------------------------------------------------------------------

    \69\ The ALJ posting indicates that individuals may meet the 
minimum qualifications for the position through a general 
description of qualifying experiences (e.g., participate in 
settlement or plea negotiations in advance of hearing cases or 
trial; prepare for trial or hearings; prepare opinions; hear cases; 
participate in or conduct arbitration, mediation, or other 
alternative dispute resolution approved by the court; or participate 
in appeals related to the types of cases above). An individual can 
meet the qualifying experiences for the AAJ position through the 
same types of tasks listed under the ALJ position description; 
however, the minimum qualifications use different terminology. For 
example, instead of using the broad description of ``preparing 
opinions'' in the ALJ posting, the AAJ posting lists specific 
examples of qualifying experiences (e.g., review, analyze, evaluate, 
and recommend action to be taken; assimilate, analyze, and evaluate 
complex facts; interpret and apply law, regulations, court 
decisions, and other precedents; propose fair and equitable 
solutions in accordance with applicable law and regulations; and 
write clear, cogent opinions). Compare ALJ job posting (USA Jobs 
announcement SV-10423180, closed April 12, 2019, available at 
https://www.usajobs.gov/GetJob/ViewDetails/529866200) with AAJ job 
posting (USA Jobs announcement number SV-10664781, closed December 
6, 2019, available at https://www.usajobs.gov/GetJob/ViewDetails/552976200).
    \70\ We note that AAJs must remain licensed attorneys throughout 
their tenure, while incumbent ALJs need not maintain licensure (see 
5 CFR 930.204(b); 78 FR 71987 (Dec. 2, 2013) (eliminating the 
licensure requirement for incumbent ALJs)).
---------------------------------------------------------------------------

    This final rule clarifies under section 422.205(a) that Appeals 
Council decisions and dismissals issued on hearing requests removed 
under sections 404.956 or 416.1456 require only one AAJ's signature Two 
AAJ signatures will continue to be required when the Appeals Council 
grants a request for review or decides on its own motion to review an 
action.
    Comment: Some commenters offered the fact that we hired our current 
ALJs through the competitive service hiring process overseen by OPM as 
evidence that they were more highly qualified than AAJs. The commenters 
said that the OPM screening process was extensive and included a 
rigorous interview process as well as an exam to evaluate the 
competencies, knowledge, skills, and abilities essential to performing 
the work of an ALJ. Some commenters questioned if AAJs take an exam 
before we hire them, and, if so, how it compares to the exam ALJs took. 
They also asked what experience is required to be an AAJ compared to 
ALJs. Commenters said we did not provide evidence, data, or information 
to allow the public to evaluate if AAJs possess the same skills and 
experience as that of our ALJs.
    Response: The President issued Executive Order 13843 in July 2018 
requiring appointments of ALJs be made under Schedule E of the excepted 
service.\71\ Therefore, the comments regarding ALJs hiring through the 
OPM and competitive service process are moot. Although AAJs are not 
required to take an exam before we hire them, we note that the most 
recent ALJ posting \72\ does not require an exam. Further, as discussed 
above, the knowledge, skills, and underlying experience required in

[[Page 73148]]

the job postings for AAJ and ALJ are very similar, if not the same.
---------------------------------------------------------------------------

    \71\ 83 FR 32755 (July 10, 2018).
    \72\ See https://www.usajobs.gov/GetJob/ViewDetails/529866200/.
---------------------------------------------------------------------------

    Comment: Some commenters asked what type of training AAJs receive 
and how it is different from the training ALJs undergo. One commenter 
asked what additional training AAJs would receive to ensure they have 
the skills needed to conduct hearings at the ALJ level. These 
commenters questioned the cost of additional training, asked when AAJs 
would receive the training, and inquired how long it would take to get 
AAJs trained if we exercise the authority.
    Response: When we exercise this authority, we will ensure that the 
AAJs possess the knowledge, skills, and training required to conduct 
hearings. We would use existing ALJ training materials, as applicable, 
to train our AAJs. Because any AAJs who may have to use this authority 
will have experience with our programs due to their work as Appeals 
Council members, we do not anticipate the training to take as long as 
for someone unfamiliar with our programs. While newly-hired ALJs 
receive four weeks of in-person training, only about one of those four 
weeks focuses on conducting hearings. The remaining three weeks focus 
on training ALJs on our programs and other internal procedures related 
to our disability adjudication process. So, we do not anticipate that 
AAJs will need more than a week or two of training in order to exercise 
this authority. In addition, AAJs currently have access, and will 
continue to have access, to the Office of Hearings Operations' 
Continuing Education Program, so continuing education will be available 
to AAJs as well.
    Comment: Commenters said that candidates for ALJ positions must 
have significant experience prior to being hired through the OPM 
screening process and they questioned if AAJs possess the same 
experience. According to the commenter, the most important experience 
requirement is participation in hearings or similar proceedings. The 
commenter said that the ability to assess the credibility of claimants 
and other witnesses, to effectively question claimants and other 
witnesses to establish facts and prove or disprove assertions of 
claimants, and to oversee a hearing proceeding in a fair, respectful, 
and impartial manner are extremely important skills for an adjudicator 
holding hearings. Commenters noted that applicants for ALJ positions 
hired through the OPM screening process were required to demonstrate 7 
years of experience as a licensed attorney preparing for, participating 
in, or reviewing formal hearings or trials involving litigation or 
administrative law. The commenter questioned if any of the current AAJs 
comprising the Appeals Council have experience holding or participating 
in hearings, and if so, the amount of time that may have elapsed since 
AAJs last participated in hearings. According to the commenter, 
hearings experience between an AAJ and an ALJ would not be equivalent 
because an ALJ holds hearings as a regular, routine, ongoing duty, and 
we would be asking AAJs to hold hearings only periodically.
    Another commenter said that ALJs regularly exercise the skill of 
independently reviewing copious amounts of medical records and 
conducting their own independent analysis of the evidence when 
performing their work. In contrast, the commenter asserted, AAJs do 
not.
    Response: As discussed in our responses above, AAJs and ALJs have 
similar hiring requirements and skills, and we will ensure that AAJs 
receive the proper initial and continuing training in order to conduct 
hearings.
    We disagree that AAJs do not possess the skill to review and 
analyze medical records. Currently, in acting on requests for review 
and performing own motion review of ALJ decisions, AAJs review the same 
record that was before the ALJ in order to assess the sufficiency of 
the ALJ's decision.
    Comment: One commenter said that AAJs use other SSA employees, 
known as analysts, who do the bulk of the work for them. The commenter 
said that the analysts are not vetted as ALJs are, and more 
importantly, they are subject to performance evaluations.
    Response: We disagree that analysts do the bulk of the work for 
AAJs. In any event, ALJs also receive support from non-adjudicator 
employees, known as ``decision writers,'' who are subject to 
performance evaluations. Decision writers assist ALJs in preparing for 
hearings and drafting decisions, and the ALJ/decision writer 
relationship is analogous to the AAJ/analyst relationship.
    Comment: One commenter asserted the Appeals Council was never 
intended to conduct initial hearings and make decisions on whether to 
grant benefits. Instead, the Appeals Council was created to ``oversee 
the hearings and appeals process, promote national consistency in 
hearing decisions made by . . . administrative law judges . . . and 
make sure that the Social Security Board's (now Commissioner's) records 
were adequate for judicial review.\73\ The commenter also said that 
appeals officers in the Appeals Council are not judges and this rule 
creates a new position for the work that Attorney-Examiners/appeals 
officers had been doing. The commenter further asserted that we sought 
a new position description from OPM to give these employees the title 
of administrative appeals judges.
---------------------------------------------------------------------------

    \73\ The commenter cited https://www.ssa.gov/appeals/about_ac.html.
---------------------------------------------------------------------------

    Response: We disagree. Our proposal to clarify when AAJs may 
conduct hearings and issue decisions under the same rules that apply to 
ALJs is supported by our existing regulations (see sections 404.956 and 
416.1456), which have authorized this option since the beginning of our 
hearings and appeals process in 1940.\74\ Indeed, as we noted 
previously, the original vision for our hearings and appeals process, 
the Basic Provisions, which predated our 1940 regulations,\75\ 
expressly contemplated that the Appeals Council would hold hearings on 
occasion. Under section 205(b) of the Act, the authority to hold 
hearings rests with the Commissioner. In accordance with section 205(l) 
of the Act, the Commissioner's predecessor, the Social Security Board, 
delegated the authority to hold hearings and issue decisions to the 
Appeals Council and to the agency's referees (now ALJs) when the Board 
established the Appeals Council in 1940.\76\ The Appeals Council has 
continued to retain that authority from 1940 to the present.
---------------------------------------------------------------------------

    \74\ 5 FR 4169, 4172 (Oct. 22, 1940) (codified at 20 CFR 
403.709(d) (1940 Supp.)).
    \75\ See supra note 17.
    \76\ 11 FR 177A-567 (Sept. 11, 1946) (codified at 20 CFR 
421.6(a) (1946 Supp.)).
---------------------------------------------------------------------------

Comments About the Perceived Effectiveness and Consequences of the Rule

    Comment: Several commenters assumed that we would spend more money 
to employ AAJs to act in lieu of ALJs, since ALJs are not eligible for 
bonuses, whereas AAJs are. Thus, the proposal is not cost effective.
    Response: We are revising our regulations to increase our 
adjudicative capacity so that we will be better prepared to address 
challenges that may arise in the future, including spikes in requests 
for hearings and hiring freezes. We disagree that having AAJs hold 
hearings would necessarily be more costly than employing ALJs. For 
example, during a hiring freeze, we may be prohibited from hiring new 
ALJs, and therefore, if there were a need to increase adjudicative 
capacity, we could use our existing AAJs to conduct hearings and issue 
decisions during that

[[Page 73149]]

time. As such, we see this flexibility as being cost effective.
    Comment: Another commenter stated that the Appeals Council has only 
approximately 53 AAJs available to perform the Appeals Council's review 
function. Several commenters stated that backlogs and processing time 
at the Appeals Council increase significantly when requests for 
hearings increase, such as during the recent historically large backlog 
in disability hearings that began in 2010. Having a particular AAJ 
adjudicate claims at the hearings level necessarily means that the AAJ 
is not available to review ALJ decisions in his or her role at the 
Appeals Council. According to the commenters, it is likely that if we 
use AAJs to hold hearings and issue hearing level decisions, we will 
shift backlogs and increased processing times from the hearings level 
to the Appeals Council level.
    Response: We acknowledge the commenters' concerns about how having 
AAJs hold hearings and issue hearing level decisions could affect the 
workloads and processing times associated with existing Appeals Council 
review. We would consider these implications after assessing all 
relevant factors at the time we implement this rule. We are publishing 
this final rule now to clarify the Appeals Council's authority to hold 
hearings and issue decisions so that the authority will be available 
for us to use when we need it.
    Comment: Commenters opined that these changes could substantially 
alter workflows within the agency and create significant complications 
in the appeals process for claimants and agency employees alike.
    Response: We disagree with this comment. Our intention is to use 
the Appeals Council's authority to hold hearings and issue hearing 
level decisions to assist with our workflow as needed, including 
addressing any hearings backlog and helping to reduce case processing 
time by increasing our adjudicative capacity. Other than substituting 
AAJs for ALJs in some cases, our hearings level process will remain the 
same. Furthermore, regardless of whether an ALJ or AAJ issues a hearing 
decision, our ordinary request for review procedures will apply, except 
that if an AAJ issued the hearing decision, he or she will not 
participate in any action associated with the request for Appeals 
Council review. As we explained in the preamble of our NPRM, regardless 
of whether an ALJ or AAJ holds a hearing, the claimant will receive all 
the same due process protections. Thus, we do not expect that this 
final rule will complicate the process for claimants or agency 
employees.
    Comment: According to a commenter, the constitutional litigation in 
Hart v. Colvin and Lucia v. SEC \77\ resulted in uncertainty as to 
whether adequate due process was provided in individual claims, a 
disruption and delay of ongoing claims and appeals, and a diversion of 
agency attention toward administering agency-wide relief. The commenter 
said that the due process and APA concerns arising from this final rule 
could very well lead to the same experience for claimants who have 
their hearings presided over by an AAJ, and may require the agency to 
expend resources to remediate the final rule. Another commenter said 
any hearing held and decision issued by an AAJ would be subject to 
remand and rehearing, as is presently happening across the country with 
decisions issued by non-Commissioner appointed ALJs in the aftermath of 
the Lucia decision. The commenter said that decisions issued by AAJs 
who are ``not impartial'' would be held invalid, and these cases could 
usher in class action lawsuits in light of Lucia. Another commenter 
stated that this rule change would have a negative impact on due 
process and increase the likelihood of claimants appealing decisions 
directly to the Federal district courts.
---------------------------------------------------------------------------

    \77\ 138 S.Ct. 2044 (2018).
---------------------------------------------------------------------------

    Response: We disagree with these comments. There is no due process 
violation inherent in a hearing system that relies on adjudicators 
other than ALJs. With respect to the issue of who may be a 
decisionmaker in an adjudicatory proceeding, the fundamental 
requirement of due process is that the decisionmaker be fair and 
impartial.
    As we explained above and in the preamble of our NPRM, we will not 
implement this final rule in a way that could undermine the decisional 
independence of our adjudicators or the integrity of our existing 
administrative review process. We take seriously our responsibility to 
ensure that claimants receive accurate decisions from impartial 
decisionmakers, arrived at through a fair process that provides each 
claimant with the full measure of due process protections. Since the 
beginning of our administrative review process in 1940, we have held an 
unwavering commitment to a full and fair hearings process. This final 
rule will not alter the fundamental fairness of our longstanding 
hearings process. Our AAJs will continue to possess the same 
responsibility and independence they have always had to make fair and 
accurate decisions, free from agency interference.
    Further, in response to the commenter who suggested that an AAJ 
hearing level decision would be subject to remand based on the Supreme 
Court's decision in Lucia v. SEC,\78\ we note that the Acting 
Commissioner of Social Security ratified the appointment of our AAJs in 
July 2018.\79\
---------------------------------------------------------------------------

    \78\ 138 S. Ct. 2044 (2018).
    \79\ See Social Security Ruling 19-1p, Titles II and XVI: Effect 
of the Decision in Lucia v. Securities and Exchange Commission (SEC) 
On Cases Pending at the Appeals Council, 84 FR 9582, 9583 (Mar. 15, 
2019).
---------------------------------------------------------------------------

    Comment: According to one commenter, the lack of clarity in the 
NPRM, and the likelihood that our implementation would result in 
different claimants facing different processes, will create confusion 
and inconsistency in the appeals process to the detriment of our agency 
and claimants alike.
    Response: When we implement this final rule, we will use uniform 
procedures and processes for all claimants. Regardless of whether an 
ALJ or an AAJ hears a claimant's case, we are required to apply the 
same rules and procedures to all cases.

Comments About Our 2016 Proposal To Use AAJs To Hear and Decide Cases

    Comment: Many commenters alleged that since we did not pursue an 
earlier proposal to use AAJs to hear and decide cases in 2016 (as part 
of our Compassionate and Responsive Services (CARES) backlog reduction 
plan), we should not pursue it now.
    Response: In January 2016, we recommended that AAJs hold hearings 
in certain cases as part of our adjudication augmentation strategy 
under the CARES backlog reduction plan.\80\ We ultimately decided 
against implementing the adjudication augmentation strategy due to 
resource constraints.\81\ We then decided to address the issue through 
changes to our regulation, adopted in accordance with the APA's notice 
and comment rulemaking procedures.
---------------------------------------------------------------------------

    \80\ The adjudication augmentation strategy was part of our 2016 
Plan for Compassionate and Responsive Service (CARES), available at 
https://www.ssa.gov/appeals/documents/cares_plan_2016.pdf. Under the 
strategy, we would have expanded (on a temporary basis) the number 
of cases in which AAJs on the Appeals Council could hold hearings 
under the authority of the regulations.
    \81\ See letter from Theresa Gruber, then Deputy Commissioner 
for Disability Adjudication and Review, to The Honorable James 
Lankford, dated August 4, 2016, available at page 89 of https://www.govinfo.gov/content/pkg/CHRG-114shrg21182/pdf/CHRG-114shrg21182.pdf.

---------------------------------------------------------------------------

[[Page 73150]]

    Comment: One commenter, referring to our proposal for AAJs to hold 
hearings in 2016 as part of our CARES backlog reduction plan, asked why 
we changed the types of cases we would have AAJs hear. The commenter 
said when we proposed to exercise our existing regulatory authority for 
AAJs to hold hearings in 2016 as part of the CARES backlog reduction 
plan, we proposed to have AAJs hold hearings in ``nondisability'' cases 
specifically. According to the commenter, we indicated that we made 
this decision because, ``the cases targeted for the augmentation 
strategy represent only 3.6 percent of our hearings pending and the 
non-disability cases often involve issues that ALJs do not typically 
encounter. A small number of AAJs and staff will specialize in 
adjudicating the non-disability issues, thus freeing up critical ALJ 
resources to handle disability hearings.'' \82\ The commenter asserted 
that the rationale we presented for using AAJs to hold hearings and 
issue decisions in 2016 undercuts our assertions that AAJs and ALJs 
have the same experience and skills and that AAJs should be able to 
obtain jurisdiction over any type of claim. The commenter questioned 
what changed between our rationale in 2016 and now, and what data, 
studies, or evidence we relied on in making this determination. The 
commenter said that we must provide the public with whatever evidence 
led us to change our proposal and allow the public to examine and 
comment on that information. According to the commenter, not doing so 
is a procedural error under the rulemaking requirements of the APA 
because the public cannot understand and meaningfully comment on the 
NPRM.
---------------------------------------------------------------------------

    \82\ The commenter cited ``Theresa Gruber, Statement for the 
Record, Hearing Examining Due Process in Administrative Hearings,'' 
Committee on Homeland Security and Governmental Affairs, 
Subcommittee on Regulatory Affairs and Federal Management, United 
States Senate, May 12, 2016. See https://www.hsgac.senate.gov/imo/media/doc/Gruber%20Statement.pdf.
---------------------------------------------------------------------------

    Response: When we proposed our adjudication augmentation strategy 
under the CARES backlog reduction plan in 2016, we intended for AAJs to 
hold hearings and issue decisions in non-disability cases. Our proposal 
attracted significant public and congressional interest,\83\ and we 
ultimately decided to pursue clarifying changes to our regulations 
instead of pursuing the adjudication augmentation strategy. Although we 
decided to have AAJs hold hearing and issue decisions in non-disability 
cases as part of our backlog reduction plan in 2016, we do not believe 
it would be prudent to specify in our regulations that AAJs are always 
limited to non-disability cases when they hold hearings and issue 
decisions. As previously stated, we are clarifying our regulations in 
order to be better prepared to address unforeseen challenges that may 
arise in the future.
---------------------------------------------------------------------------

    \83\ ``Examining Due Process in Administrative Hearings,'' 
Committee on Homeland Security and Governmental Affairs, 
Subcommittee on Regulatory Affairs and Federal Management, United 
States Senate, May 12, 2016, available at https://www.gpo.gov/fdsys/pkg/CHRG-114shrg21182/pdf/CHRG-114shrg21182.pdf.
---------------------------------------------------------------------------

    Furthermore, the fact that we thought it would be best for AAJs to 
hold hearing and issue decisions in non-disability cases as part of our 
2016 backlog reduction plan does not signify that AAJs and ALJs have 
different experience and skills. Indeed, in our CARES plan,\84\ we also 
emphasized that AAJs and ALJs have the same experience and skills. Our 
position on that issue has not changed in promulgating this final rule.
---------------------------------------------------------------------------

    \84\ https://www.ssa.gov/appeals/documents/cares_plan_2016.pdf.
---------------------------------------------------------------------------

Comments About Notices of Appeals Council Review

    Comment: In the NPRM, we proposed to add a statement to sections 
404.973 and 416.1473 that says, ``However, when the Appeals Council 
plans to issue a decision that is fully favorable to all parties or 
plans to remand the case for further proceedings, it may send the 
notice of Appeals Council review to all parties with the decision or 
remand order.'' Some commenters disagreed with this proposed language.
    According to one commenter, under our current process, when the 
Appeals Council reviews a fully or partially favorable case on its own 
motion and the Appeals Council intends to remand the case, we must give 
notice to the claimant. The commenter noted that the Appeals Council 
mails an interim notice that outlines the proposed action, and gives 
the claimant 30 days to respond to the Appeals Council with arguments 
or evidence that may cause the Appeals Council to take a different 
action. The Appeals Council then issues an order that outlines the 
Appeals Council's final action. According to the commenter, responses 
from claimants frequently do not change the Appeals Council's decision 
to remand the case, but the current process gives the claimant the 
opportunity to change the Appeals Council's mind before it remands the 
case to the hearing level. The commenter also opined that it would be a 
violation of due process to allow the Appeals Council to exercise own 
motion review of a favorable hearing level decision and remand the case 
to the hearing level without giving the claimant any opportunity to 
weigh in or correct the deficiencies identified by the Appeals Council.
    The commenter also said that if the Appeals Council is too slow in 
taking its final action, claimants could continue to receive interim 
benefits while the Appeals Council has jurisdiction over the matter. 
According to the commenter, remanding the case without giving the 
claimant an opportunity to respond would result in the termination of 
benefits without due process. The commenter said to allow the Appeals 
Council to remand a case to the hearing level without allowing the 
claimant to respond is in direct conflict with the requirements of due 
process, and is more problematic given the length of time that a 
claimant would have to wait before appearing at another hearing. The 
commenter proposed that we remove ``or plans to remand the case for 
further proceedings'' from the proposed sections.
    Response: We disagree with the commenters' assertions that the 
proposed language would violate due process. In terms of fully 
favorable Appeals Council decisions, we revised our rules for 
administrative efficiency and to codify our longstanding practice.\85\ 
By sending the notice with the fully favorable decision, the claimant 
does not have to wait for a separate notice.
---------------------------------------------------------------------------

    \85\ See HALLEX I-3-6-20 A, available at https://www.ssa.gov/OP_Home/hallex/I-03/I-3-6-20.html, which includes a note that, 
``[w]hen the [Appeals Council] exercises its own motion review 
authority and issues a fully favorable decision, notice is not 
required.''
---------------------------------------------------------------------------

    In terms of removing the notice requirement for Appeals Council 
remands, we are revising our rules for administrative efficiency. As 
the commenter aptly points out, responses to our notices rarely change 
the Appeals Council's proposed action to remand a case. We expect that 
this final rule will result in claimants receiving final decisions on 
their claim(s) faster and will help to streamline our business 
processes. Moreover, if the Appeals Council decides to remand a case to 
the hearing level, the claimant will have an opportunity to be heard 
before the agency issues its final decision.
    We disagree with the commenter's statement that remanding a fully 
favorable or partially favorable case on own motion review would result 
in a termination of benefits without due process. Section 1631(a)(8) of 
the Act requires us to pay prospective monthly benefits (``interim 
benefits'') to the

[[Page 73151]]

claimant if we have not made a final decision within 110 calendar days 
after the date of the ALJ decision. Those interim benefits do not end 
until the month in which we make a final decision. Therefore, the 
claimant would continue to receive benefits until there is a final 
agency decision.
    We also note that there are situations where a claimant is not in 
pay status, following the issuance of favorable decision, because an 
effectuating component cannot process payments. If, for example, the 
decision is contrary to the Act, regulations or a published ruling, or 
the decision is vague, ambiguous, internally inconsistent, or otherwise 
does not resolve the issues under dispute, the effectuating component 
may refer the cases to the Appeals Council to consider taking own 
motion review or reopening and revising the decision.\86\ In these 
cases, the claimant would not receive benefits until 110 days after the 
favorable hearing level decision. If the Appeals Council were unable to 
correct the deficiency and issue a fully favorable decision, the 
Appeals Council's ability to remand the case to correct the deficiency 
without prior notice would expedite the claimant receiving a final 
decision on his or her case.
---------------------------------------------------------------------------

    \86\ See generally 20 CFR 404.969, 416.1469, 404.987, and 
416.1487.
---------------------------------------------------------------------------

    Comment: One commenter suggested that in sections 404.973 and 
416.1473, we clarify that if the Appeals Council plans to issue a 
combined partially favorable decision (finding, for example, that the 
claimant became disabled after his or her alleged onset date) and a 
remand order (ordering further proceedings regarding the period the 
claimant alleged to be disabled to the date the claimant was found to 
be disabled), it may send the notice of Appeals Council review to all 
parties with the combined decision and remand order (without sending a 
prior notice of review).
    Response: We agree with this suggestion. We further revised 
sections 404.973 and 416.1473 to clarify that when the Appeals Council 
plans to issue a decision that is favorable in part and remand the 
remaining issues for further proceedings, we may send the notice of 
Appeals Council review to all parties with the decision or remand 
order.

Adding a ``Reasonable Probability'' Standard to Sections 404.970 and 
416.1470

    Comment: We received many comments relating to our proposed 
inclusion of paragraph (d) to sections 404.970 and 416.1470.\87\ We 
proposed to revise paragraph (d) of these sections to state that the 
Appeals Council would not review a case based on an error or abuse of 
discretion in the admission or exclusion of evidence or based on an 
error, defect, or omission in any ruling or decision unless the Appeals 
Council found a reasonable probability that the error, abuse of 
discretion, defect, or omission, either alone or when considered with 
other aspects of the case, changed the outcome of the case or the 
amount of benefits owed to any party. Commenters expressed perceived 
due process concerns, stating that the proposed rule would limit the 
Appeals Council's ability to review an ALJ's decision, and that the 
changed standard of review could virtually eliminate Appeals Council 
review in all but extremely limited circumstances, making the Appeals 
Council a meaningless step in the adjudication process. Commenters 
expressed that we would no longer know of the errors in an ALJ's 
decision if we do not remand these cases to the ALJ to correct the 
error. Commenters also expressed concerns that there would be no cost 
savings associated with the proposed change, as the Appeals Council 
would have to evaluate the entire record, which would increase the time 
to review a case. Additionally, commenters expressed concerns that the 
proposal would increase the number of claimants who appeal to Federal 
court, potentially straining court resources and increasing the time 
that individuals must wait to receive final decisions.
---------------------------------------------------------------------------

    \87\ See 84 FR 70085, 70087.
---------------------------------------------------------------------------

    Some commenters also misconstrued the proposed standard of review 
at the Appeals Council level of review with the ``preponderance of the 
evidence'' standard that applies when an adjudicator issues a 
determination or decision.\88\ Other commenters expressed alternative 
language for paragraph (d) or suggested ways to clarify how the 
reasonable probability standard would apply to the substantial evidence 
standard.
---------------------------------------------------------------------------

    \88\ The commenter cited 20 CFR 404.953, 404.979, 416.1453, and 
416.1479.
---------------------------------------------------------------------------

    Response: Upon consideration of the comments regarding our proposal 
to add a reasonable probability standard in paragraph (d) of sections 
404.970 and 416.1470, we have decided not to proceed with that 
proposal. Because we are not finalizing proposed paragraph (d) of 
sections 404.970 and 416.1470, we are not finalizing the corresponding 
language that we proposed to add to the beginning of paragraph (a) of 
the same sections, ``Subject to paragraph (d) of this section, . . . 
.'' Additionally, we will not respond to the individual comments 
regarding our proposal to add a reasonable probability standard in 
paragraph (d) of sections 404.970 and 416.1470, because they are no 
longer relevant.

Comments Regarding Federal Court Cases

    Comment: One commenter suggested changes to proposed sections 
404.984 and 416.1484, which provide that when a Federal court remands a 
case and the Appeals Council remands the case to an ALJ, the ALJ's 
decision will become the Commissioner's final decision unless the 
Appeals Council assumes jurisdiction using the standard set forth in 
section 404.970 or 416.1470, as applicable. The commenter said it is 
imprudent for the Appeals Council to use a reasonable probability 
standard when deciding whether to assume jurisdiction of a case that 
was previously remanded by Federal court. The commenter stated that the 
Appeals Council must grant review of a case that is remanded from the 
Federal court. The commenter opined that failure to grant review 
because of the ``reasonable probability'' standard would be viewed 
unfavorably by the court if the claimant requested judicial review once 
again. The commenter stated that any action by the Appeals Council must 
be consistent with the court's remand. If the court orders a remand, 
the Appeals Council must remand the case (unless it can issue a fully 
favorable decision).
    Response: Appeals Council review of court remands under sections 
404.983 and 416.1483 should not be confused with its review of hearing 
decisions issued after a court remand under sections 404.984 and 
416.1484. If a Federal court remands a case, the Appeals Council may 
issue a decision pursuant to sections 404.983(b) and 416.1484(b), hold 
a hearing and issue a decision pursuant to sections 404.983(c) and 
416.1484(c), or remand the case to an ALJ with instructions to take 
action and issue a decision or return the case to the Appeals Council 
with a recommended decision. However, this situation is distinct from 
when the Appeals Council decides whether to assume jurisdiction after 
an ALJ, or AAJ, issues a hearing decision in a case remanded by Federal 
court. In that situation, the Appeals Council may assume jurisdiction 
based on written exceptions to the hearing decision filed by the 
claimant or based on its authority pursuant to paragraph (c) of 
sections 404.984 and 416.1484. However, we do not currently have a 
regulatory standard to govern how the Appeals Council will

[[Page 73152]]

decide whether to assume jurisdiction after an ALJ, or AAJ, issues a 
hearing decision in a case remanded by Federal court. The revisions to 
sections 404.984 and 416.1484 make clear that the standard for assuming 
jurisdiction after an ALJ, or AAJ, issues a hearing decision in a case 
remanded by Federal court is the same as the standard that applies when 
the Appeals Council decides whether to review a hearing decision or 
dismissal under sections 404.970 and 416.1470. We will not respond to 
any comments relating to our proposal to add a reasonable probability 
standard in paragraph (d) of sections 404.970 and 416.1470 because, as 
previously explained, we are not proceeding with that proposal.

Comments About Additional Evidence at the Appeals Council Level of 
Review

    Comment: A commenter stated that our proposal to revise sections 
404.976(b) and 416.1476(b) to clarify that the Appeals Council will 
consider all evidence it receives, but will exhibit that evidence only 
if it meets the requirements of sections 404.970(a)(5) and (b) and 
416.1470(a)(5) and (b) would be unhelpful and superfluous. The 
commenter said there were three possible options. First, if the 
evidence were sufficient to warrant review and the Appeals Council 
issues a decision, it would be exhibited in the record. Second, if the 
evidence were sufficient to warrant review and a remand to the hearing 
level, it would not be exhibited. Rather, it would be returned to the 
hearing office for the ALJ's consideration. Lastly, if the evidence did 
not warrant review, there would be an open question of when it could be 
used to provide a protective filing date for a subsequent application 
(Social Security Ruling 11-1p).\89\ The commenter questioned the 
purpose of this additional reasonable probability standard.
---------------------------------------------------------------------------

    \89\ The commenter refers to Social Security Ruling 11-1p: 
Titles II and XVI: Procedures for Handling Requests to File 
Subsequent Applications for Disability Benefits, available here: 
https://www.ssa.gov/OP_Home/rulings/di/01/SSR2011-01-di-01.html.
---------------------------------------------------------------------------

    Response: We disagree that the revisions to sections 404.976(b) and 
416.1476(b) are unhelpful and superfluous. As we explained in the 
preamble of our NPRM, the revisions to sections 404.976(b) and 
416.1476(b) clarify when the Appeals Council will mark additional 
evidence as an exhibit and make it part of the official record. 
Additionally, we already provide the claimant a protective filing date 
for a new application whenever a claimant submits additional evidence 
to the Appeals Council that does not relate to the period on or before 
the date of the hearing decision, or whenever the Appeals Council finds 
that the claimant did not have good cause for missing the deadline to 
submit written evidence.\90\
---------------------------------------------------------------------------

    \90\ 20 CFR 404.970(c) and 416.1470(c).
---------------------------------------------------------------------------

    Comment: Regarding our proposed revisions to sections 404.976(b) 
and 416.1476(b), one commenter suggested that we should: (1) Eliminate 
paragraph (b) altogether; (2) if the paragraph stays, add a sentence 
stating that any evidence that meets the ``reasonable probability 
standard'' in sections 404.970(a)(5) and 416.1470(a)(5) automatically 
meets the ``good cause'' standard in sections 404.970(b) and 
416.1470(b); or (3) create a truly clarifying and time-saving policy 
that the Appeals Council, when it grants review to issue a decision, 
will evaluate and mark as exhibit(s) all relevant evidence.
    Response: We disagree with these suggestions. As explained above, 
regarding (1), we are revising sections 404.976(b) and 416.1476(b) to 
clarify when the Appeals Council marks additional evidence as an 
exhibit and makes it part of the official administrative record. 
Regarding (2), we disagree that good cause for missing the deadline to 
submit evidence under sections 404.970(b) and 416.1470(b) would always 
exist whenever the Appeals Council finds, under sections 404.970(a)(5) 
and 416.1470(a)(5), that there is a reasonable probability that 
additional evidence would change the outcome of the hearing decision. 
The good cause requirement in sections 404.970(b) and 416.1470(b) is 
based on the 5-day rule set forth in sections 404.935(a) and 
416.1435(a). Under the 5-day rule, a claimant generally must inform us 
about or submit written evidence at least 5 business days before the 
date of his or her scheduled hearing. We adopted the 5-day rule, in 
part, to ensure that the evidentiary record is more complete when ALJs 
hold hearings.\91\ The commenter's suggestion that we revise our 
regulations to state that any evidence that meets the ``reasonable 
probability standard'' in sections 404.970(a)(5) and 416.1470(a)(5) 
automatically meets the ``good cause'' standard in sections 404.970(b) 
and 416.1470(b) would be inconsistent with the intent of the 5-day 
rule. Finally, regarding the third suggestion, it is altogether unclear 
to us how revising our regulations as the commenter proposed would 
result in greater clarity and save time.
---------------------------------------------------------------------------

    \91\ 81 FR 90987, 90989 (Dec. 16, 2016).
---------------------------------------------------------------------------

    Comment: One commenter agreed with the Appeals Council's current 
practice of including in a certified administrative record filed in 
Federal court any additional evidence that the Appeals Council 
receives, regardless of whether the Appeals Council marks the evidence 
as an exhibit and makes it part of the official record. The commenter 
suggested that we memorialize this practice in the regulatory text at 
section 404.970(a)(5).
    Response: We decline to add language about including additional 
evidence in certified administrative records to be filed in Federal 
court in sections 404.970(a)(5) and 416.1470(a)(5), because those rules 
regard when the Appeals Council will review a case. However, we agree 
that it would be helpful to clarify in our regulations that additional 
evidence the Appeals Council received during the administrative review 
process, including additional evidence that the Appeals Council 
received but did not exhibit or make part of the official record, would 
be included in the certified administrative record filed in Federal 
court. We have added that clarifying language to sections 404.976(b) 
and 416.1476(b) in this final rule.

Comments About the Wording of Our Paperwork Reduction Act (PRA) 
Information in the NPRM

    Comment: One commenter referred to the PRA section of the NPRM, in 
which we proposed to update forms to reflect the new regulatory 
language stating that ``Judges'' will review the cases, hold hearings, 
and issue decisions. Currently, our forms use the narrow, specific 
designation, ``Administrative Law Judges.'' In the NPRM, we stated that 
once we published the final rule, we would obtain approval from the 
Office of Management and Budget for this revision through non-
substantive change requests for these information collections, which 
does not require public notice and comment under the PRA. The commenter 
disagreed with our statement that this is a ``non-substantive change'' 
that does not require public comment.
    The commenter said ALJs and AAJs do completely different jobs and 
treating them the same is either a misunderstanding of the system or a 
breach of public trust. The commenter said that the public should know 
what kind of judge they have in a case, and that we should not hide 
this from the public by changing the title.
    Response: The PRA statement in our NPRM focused on the significance 
of the changes we were planning to make to information collections 
associated with the regulation. In the NPRM, we

[[Page 73153]]

indicated plans to change ``Administrative Law Judges'' to ``judges'' 
to reflect that if the rule were finalized, there would be a 
possibility that a claimant's case could be heard and decided by an AAJ 
from the Appeals Council. In that case, the ``Administrative Law 
Judge'' appellation would not be accurate. However, to the commenter's 
point about whether this change is significant, we note that the change 
will not occur at the forms/PRA level. We are merely proposing a 
language change to reflect our revised regulations. The appropriate 
time for interested parties to express comments about our proposed rule 
was during the notice-and-comment period, not in the PRA/forms arena. 
We note that many interested parties did submit public comments on this 
issue, and we addressed those comments in this preamble to the final 
rule. To the commenter's assertion that the public should know what 
kind of judge they have in a case, we note that this is a policy issue 
outside the realm of the PRA, as addressed in the final rule. We have 
transparently conveyed our proposed change in the NPRM. For these 
reasons, we will not be changing the PRA statement.

Comments That Suggested Alternate Proposals

    Comment: One commenter suggested assigning ALJs to the Appeals 
Council, and eliminating the position of AAJs. According to the 
commenter, ALJs on the Appeals Council would bolster the independence 
of disability hearings at all levels within the agency.
    Response: We acknowledge the commenter's suggestion. However, the 
goal of this final rule is to increase our adjudicative capacity when 
needed, allowing us to adjust more quickly to fluctuating short-term 
workloads, such as when an influx of cases reaches the hearing level. 
Eliminating current positions would be at odds with this goal.
    Comment: One commenter said that we should change our rule so the 
only people who can be AAJs are retired and rehired ALJs or ALJs sent 
to the Appeals Council on special detail. The commenter said that would 
allow for flexibility and would eliminate the issue of claimants having 
inexperienced and agency-controlled AAJs conduct their hearings. 
Further, according to the commenter, it would improve the quality of 
the appellate decisions. Another commenter suggested having interested 
AAJs apply for long-term details as ALJs.
    Response: We disagree that the commenter's proposal to use rehired 
ALJs to act as AAJs would create more flexibility, because the rehired 
ALJs would have to be retrained in current policies and procedures. We 
also disagree with the suggestion to have currently serving ALJs apply 
for details to the Appeals Council, as that would defeat the purpose of 
the revised rule, which is to increase our adjudicative capacity. We 
seek to use AAJs to assist with hearing level workloads, so taking ALJs 
away from those workloads would be counter-productive. Lastly, we 
believe that detailing AAJs to serve as ALJs may be a feasible option, 
depending on the circumstances surrounding the need; however, as we do 
not know all the circumstances that may arise in the future, we want to 
be prepared and have options available to us to best address all 
potential situations. Our goal is to clarify the Appeals Council's 
existing authority to hold hearings and issue decisions.
    Comment: Some commenters said we should keep the hearings and 
appeals level adjudications separate and distinct, as they have been 
traditionally. They recommended that if the AAJs wish to have a more 
significant role in the adjudication process, that they hold oral 
arguments to address important broad policy or procedural issues that 
affect the general public interest. According to the commenter, this 
would be in keeping with the AAJs' primary role to ensure our decisions 
are uniform and consistent.
    Response: We understand the concerns of keeping hearings and 
appeals level adjudications separate and distinct. In effect, the 
hearings and appeals will remain separate and distinct. As discussed 
above, under this final rule, the claimant will still have the 
opportunity to appear at a hearing, receive a hearing decision, and 
request Appeals Council review. The only change is that, in some cases, 
the hearing and decision may be by an AAJ. Furthermore, this final rule 
specifies that if an AAJ conducts a hearing, issues a hearing decision, 
or dismisses a hearing request, he or she will not participate in any 
action associated with a request for Appeals Council review of that 
case. In addition, as discussed above, AAJs are expected to recuse 
themselves from a case if they have any interest in the case, as ALJs 
would. We will be vigilant in ensuring that the hearings and Appeals 
Council review levels of administrative review remain separate and 
distinct, and that claimants are afforded fair and impartial hearing 
decisions and reviews of those hearing decisions, as we always have.
    We also disagree about the ``primary role'' of the Appeals Council, 
as the Appeals Council's role has evolved over the years to address 
current needs. For example, we created the Appeals Council's Division 
of Quality to exercise quality review responsibilities to oversee and 
help improve the accuracy and policy compliance of ALJ decisions. 
Moreover, we are not expanding the role of AAJs. AAJs have long had the 
authority to conduct hearings, but we have not exercised this 
authority.
    Comment: One commenter said we should provide additional 
information related to our statement that we would remove the 
regulations at sections 404.966 and 416.1466, which authorize us to 
test the elimination of the request for Appeals Council review. The 
commenter said that the NPRM does not state the conclusions reached by 
the test or the Appeals Council's fate.
    Response: As we explained in the preamble to our proposed rule, 
given our experience over the last 21 years, we no longer intend to 
test the elimination of the request for Appeals Council review. We 
amended our rules to establish authority to test request for review 
elimination (RRE) in September 1997.\92\ Our goal in testing 
elimination of the request for Appeals Council review was to assess the 
effects of that change in conjunction with other modifications in the 
disability claim process under the full process model (FPM), 
established in April 1997.\93\ In July 1998, we provided notice of 
limited extended testing of the FPM with two additional features 
designed to maximize the resources of a Federal processing center.\94\ 
Thereafter, in June 2000, we published a notice announcing a new test 
of the elimination of the request for Appeals Council review in 
conjunction with our disability prototype test.\95\ At that time, we 
explained that before making any decision on the merits of eliminating 
the request for review, we would obtain valid and reliable data about 
the effects

[[Page 73154]]

of such elimination.\96\ Our testing results showed that the number of 
cases that would be appealed to the courts would likely increase 
substantially.\97\ Additionally, other attempts to remove the Appeals 
Council level of review have not been successful.\98\ As such, we no 
longer intend to test eliminating the request for Appeals Council 
review, and we are removing that authority in sections 404.966 and 
416.1466.
---------------------------------------------------------------------------

    \92\ 62 FR 49598 (Sept. 23, 1997).
    \93\ Id. at 49598-99. Under the FPM, also known as the 
integrated model, we originally tested four modifications to the 
disability claim process: the use of a single decisionmaker, 
conducting predecisional interviews in certain cases, eliminating 
the reconsideration step in the administrative review process, and 
use of an adjudication officer to conduct prehearing proceedings 
and, if appropriate, issue fully favorable decisions. See 62 FR 
16210 (Apr. 4, 1997); see also 63 FR 58444 (noting case selection 
for testing ended in January 1998). Testing elimination of the 
request for Appeals Council review was the fifth modification to the 
FPM. See 62 FR 49598 (Sept. 23, 1997); see also 63 FR 40946 (July 
31, 1998).
    \94\ See 63 FR 40946 (July 31, 1998). We announced the beginning 
of additional testing in October 1998, but that testing did not 
include RRE. See 63 FR 58444 (Oct. 30, 1998).
    \95\ See 65 FR 36210 (June 7, 2000).
    \96\ 65 FR 36210.
    \97\ See the January 2001 report from the Social Security 
Advisory Board (SSAB), ``Charting the Future of Social Security's 
Disability Programs: The Need for Fundamental Change,'' available at 
https://www.ssab.gov/research/charting-the-future-of-social-securitys-disability-programs-the-need-for-fundamental-change/. See 
also the June 28, 2001 testimony of Hon. Ronald G. Bernoski, at the 
Hearing Before Subcommittee on Social Security of the Committee on 
Ways and Means House of Representative, where he noted ``the SSAB 
Report also correctly points out the impracticality of this step [to 
eliminate the Appeals Council level of review], since the SSA has 
shown by testing that this would result in a large increase in court 
appeals.'' Our initial RRE testing failed to produce sufficient 
data. See 65 FR 36210 (June 7, 2000).
    \98\ For example, we tested the elimination of the Appeals 
Council, under a different authority, the Disability Service 
Improvement (DSI) Process, by creation of the Disability Review 
Board (DRB). Under the DSI Process, an ALJ's decision became final 
unless the claim was referred to the DRB. If the DRB reviewed a 
claim and issued a decision, that decision was our final decision, 
and if a claimant was dissatisfied with it, he or she could seek 
judicial review in Federal court. The Appeals Council had no 
involvement with the DRB, which we established with the intent to 
phase out the Appeals Council. See 71 FR 16424 (Mar. 31, 2006); and 
correction 71 FR 17990 (Aug. 10, 2006). Ultimately, we eliminated 
the DRB because it did not function as intended and did not provide 
efficiencies in reducing the hearings backlog. See 76 FR 24802 (May 
3, 2011).
---------------------------------------------------------------------------

    Comment: One commenter recommended adding the sentence, ``The 
Appeals Council comprises the AAJs, the Appeals Officers, and the 
Deputy Chair of the Appeals Council'' to sections 404.2(b)(2), 
416.120(b)(2), and 408.110(b)(2). The commenter said that this expanded 
definition may be useful when considering section 422.205(c).
    Response: We disagree with this recommendation. Currently, sections 
404.2(b)(2), 416.120(b)(2), and 408.110(b)(2) indicate that the Appeals 
Council includes the member or members thereof as may be designated by 
the Chair of the Appeals Council. We do not intend to adopt the 
commenter's suggestion because we seek to remain flexible in our 
staffing.
    Comment: One commenter suggested that we clarify what the commenter 
perceived as an inconsistency in sections 404.976(c) and 416.1476(c). 
This rule provides, ``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 commenter said that 
in the summary, we indicate the Appeals Council would be required to 
follow the rules that govern ALJ hearings, which include mailing a 
notice of hearing at least 75 days before the date of the hearing.
    Response: The commenter conflates a request to appear before the 
Appeals Council to present oral argument with a request for a hearing. 
Paragraph (c) of final sections 404.976 and 416.1476 regard a 
claimant's ability to request to appear before the Appeals Council to 
present oral argument, which the Appeals Council will grant if it 
decides that the case raises an important question of law or policy, or 
that oral argument would help to reach a proper decision. However, if 
the Appeals Council assumes responsibility for a hearing request under 
section 404.956 or 416.1456, we would mail a notice of hearing pursuant 
to the relevant section(s) 404.938(a) or 416.1438(a), which generally 
require that we mail a notice of a hearing at least 75 days before the 
date of the hearing.
    Comment: One commenter made suggestions for editing sections 
404.984 and 416.1484. According to the commenter, these sections 
require that, if the Appeals Council assumes jurisdiction of an ALJ 
decision after remand, the Appeals Council will ``either make a new, 
independent decision based on the preponderance of the evidence in the 
record that will be the final decision of the Commissioner after 
remand, dismiss a claim(s), or remand the case to an administrative law 
judge for further proceedings, including a new decision.'' First, the 
commenter recommended changing the phrase ``dismiss a claim(s)'' to 
``dismiss the request for a hearing or request for review, consistent 
with the Federal court's remand.'' Second, the commenter recommended 
that the Appeals Council never dismiss a request for a hearing or a 
request for review after the case has been considered and remanded by 
the court, including a sentence four remand.\99\
---------------------------------------------------------------------------

    \99\ Under sentence four of section 205(g) of the Act, a court 
may remand a case in conjunction with a judgment affirming, 
modifying, or reversing the decision of the Commissioner. The 
judgment of the court ends the court's jurisdiction over the case, 
but either the claimant or agency may appeal the district court's 
action to a court of appeals. See HALLEX I-4-6-1 available here: 
https://www.ssa.gov/OP_Home/hallex/I-04/I-4-6-1.html.
---------------------------------------------------------------------------

    Response: We partially adopted the commenter's first suggestion and 
revised paragraph (a) of sections 404.984 and 416.1484 to use the more 
specific phrase ``dismiss the request for a hearing.'' However, we did 
not adopt the suggestion to include ``dismiss a request for review.'' 
When the Appeals Council assumes jurisdiction after an ALJ or AAJ has 
issued a hearing decision in a case remanded by a Federal court, the 
request for review is no longer at issue. The Appeals Council may 
assume jurisdiction of the case based on written exceptions filed by 
the claimant or based on its authority pursuant to paragraph (c) of 
section 404.984 or section 416.1484.
    We also partially adopted the commenter's second recommendation. 
Since the Federal court retains jurisdiction for remands under sentence 
six of section 205(g) of the Act (42 U.S.C. 405(g)), we added language 
to clarify that the Appeals Council will not dismiss the request for a 
hearing in these cases. We disagree that the Appeals Council cannot 
dismiss a request for a hearing in cases remanded under sentence four 
of section 205(g) of the Act. Once a Federal court has remanded a case 
under sentence four, jurisdiction returns to the Appeals Council to 
take appropriate action, which may include dismissing a request for a 
hearing.
    Comment: One commenter questioned the reason for changing the 
procedure in section 422.205(a). The commenter noted that proposed 
section 422.205(a) provides that an Appeals Council decision on a case 
removed under sections 404.956 or 416.1456 may be signed by one Appeals 
Council member. The commenter further noted that currently two AAJs 
sign Appeals Council decisions, and that appeals officers are also 
members of the Appeals Council, but, currently, they have no authority 
to sign decisions or dismissals. The commenter questioned whether we 
sought to change this authority deliberately, or if it was an 
oversight. The commenter also questioned if this proposed change would 
alter current policy permitting AAJs only to sign Appeals Council 
decisions and dismissals, as well as Appeals Council denials of review 
of ALJ dismissals.
    Response: We acknowledge that it would be helpful to clarify in 
section 422.205(a) who has authority to sign hearings level decisions 
and dismissals. We do not intend for appeals officers to sign hearings 
level decisions or dismissals. As such, we revised the language in 
section 422.205(a) to clarify the requirement of one AAJ to sign 
decisions and dismissals on requests for hearings removed under 
sections 404.956 or 416.1456 for consistency with the signature 
requirement for ALJs. One signature by an appeals officer, or by such 
member of the Appeals Council as may be designated by the Chair or

[[Page 73155]]

Deputy Chair, continues to be the requirement for denials of requests 
for reviews as set forth in section 422.205(c). Furthermore, the 
signatures of at least two AAJs will continue to be required for 
decisions issued on requests for review or own motion review when the 
claimant does not appear before the Appeals Council to present oral 
argument, but that requirement now appears in section 422.205(d). 
Therefore, we are not changing the signature requirements for Appeals 
Council actions on requests for review or own motion reviews of hearing 
level decisions or dismissals.
    Comment: One commenter said section 422.205(c) contains a 
redundancy because it provides that a request for review may be denied 
by an appeal officer, appeals officers, or members of the Appeals 
Council, as designated. The commenter noted that appeals officers are 
members of the Appeals Council. According to the commenter, appeals 
officers need not be listed separately from the Appeals Council, and it 
might be clearer to state that the request for review may be denied by 
an AAJ, an appeals officer, or any member of the Appeals Council, as 
designated.
    Response: We disagree that the language, which appears in current 
section 422.205(c), is redundant. This final rule merely adds a title 
to paragraph (c), and does not revise the rest of the section including 
who may deny a request for review.
    Comment: One commenter suggested that a statement of when judicial 
review is available after an Appeals Council dismissal might prove 
useful for section 422.210(a). The commenter noted that that regulation 
does not provide that judicial review is available when the Appeals 
Council dismisses the request for review or the request for a hearing.
    Response: We are considering whether and how to change our 
regulations based on the Supreme Court's holding in Smith v. 
Berryhill.\100\ Therefore, we are not revising section 422.210(a) to 
clarify when a claimant may seek judicial review following an Appeals 
Council dismissal as part of this final rule. We will propose any 
changes we plan to make based on the Supreme Court's decision in Smith 
as part of a separate rulemaking proceeding.
---------------------------------------------------------------------------

    \100\ 139 S. Ct. 1765 (2019).
---------------------------------------------------------------------------

Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that this final rule meets the criteria for a significant 
regulatory action under Executive Order 12866 and is subject to OMB 
review. Details about the impacts of our rule follow.
Anticipated Benefits
    We expect this final rule will benefit us by providing additional 
flexibility and by allowing us to increase our hearing capacity without 
incurring permanent new costs. Having AAJs hold hearings and issue 
decisions will create flexibility for us to shift resources when there 
is an increase in pending cases at the hearings level. Before using 
AAJs to hold hearings and issue decisions, we will determine whether it 
makes sense to do so, considering the Appeals Council's workload 
relative to the hearing level workload. If necessary, we will hire 
additional AAJs to augment the current number of ALJs conducting 
hearings. Additionally, the numbers of new AAJs could be increased or 
decreased based on the demand of the workload.
Anticipated Costs
    We anticipate that this final rule would result in minimal, if any, 
quantified costs when implemented. Before implementing, we would 
provide appropriate training to our AAJs, make minor systems updates, 
and perhaps obtain additional equipment. As discussed above, when we 
exercise this authority, we would ensure that the AAJs possess the 
knowledge, skills, and training required to conduct hearings. However, 
we expect that the cost of training AAJs would be minimal because the 
AAJs would already have experience with our programs, and we could use 
existing ALJ training materials, as applicable. We expect that we would 
need to train our AAJs and other Appeals Council personnel, in 
particular, on the procedural and technical issues involved in 
conducting hearings. For example, AAJs would need to be trained on how 
to (1) prepare for a hearing (e.g., handle specific development issues 
such as requesting medical records, if necessary; scheduling 
consultative examinations; issuing subpoenas; and ensuring proper 
notices are sent), and (2) conduct a hearing (e.g., handle technical 
matters regarding the hearing recording; ensure that unrepresented 
claimants receive proper notice of the right to representation; and 
work with interpreters, witnesses, and experts). Because we believe 
AAJs holding a hearing will be equivalently trained to ALJs and will be 
following the same set of hearing policies as ALJs, we do not believe, 
as suggested by some commenters, that AAJ determinations are more 
likely to increase the volume of claimants who choose to appeal a 
decision that is not fully favorable to the Appeals Council level.
    In addition, we would need to train our Appeals Council personnel 
how to use the hearings systems. We expect this would be a minimal cost 
as such systems are similar to systems our Appeals Council personnel 
already use. Lastly, we would need to equip our Appeals Council offices 
to hold hearings. For example, we would need to provide computers for 
video teleconference hearings and recording equipment. We may be able 
to utilize existing internal resources to meet these needs.
    Qualitatively, we acknowledge that some commenters have suggested 
that the use of AAJs at the hearing level could create a perception of 
lessened impartiality than a hearing held by an ALJ. This is largely a 
qualitative cost related to the perception of received due process, 
although claimants who believe they did not receive a fair hearing may 
be more likely to pursue a review at the Appeals Council and in a 
Federal district court. However, for the reasons outlined above as well 
as reasons discussed previously in the preamble, we do not believe 
there will be different outcomes in adjudications between hearings held 
by AAJs and ALJs, and as such do not believe this is, in fact, either a 
qualitative or quantitative cost.

Executive Order 13132 (Federalism)

    We analyzed this final rule in accordance with the principles and 
criteria established by Executive Order 13132, and determined that the 
rule will not have sufficient Federalism implications to warrant the 
preparation of a Federalism assessment. We also determined that this 
rule would not preempt any State law or State regulation or affect the 
States' abilities to discharge traditional State governmental 
functions.

Executive Order 13771

    This final rule is not subject to the requirements of Executive 
Order 13771 because it is administrative in nature and will result in 
no more than de minimis costs.

[[Page 73156]]

Regulatory Flexibility Act

    We certify that this final rule will 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

    SSA already has existing OMB PRA-approved information collection 
tools relating to this final rule: The Request for Review of ALJ 
Decision or Dismissal (Form HA-520, OMB No. 0960-0277); the Waiver of 
Your Right to Personal Appearance Before an Administrative Law Judge 
(Form HA-4608, OMB No. 0960-0284); the Request to Withdraw a Hearing 
Request (Form HA-85, OMB No. 0960-0710); the Acknowledgement of Receipt 
of Notice of Hearing (Form HA-504, OMB No. 0960-0671); the Request to 
Show Case for Failure to Appear (Form HA-L90, OMB No. 0960-0794); and 
the Request for Hearing by Administrative Law Judge (Form HA-501, OMB 
No. 0960-0269). Because this final rule will allow for both 
Administrative Appeals Judges and Administrative Law Judges to hold 
hearings and issue decisions, we will update the content of these forms 
to reflect the new language stating that ``Judges'' will review the 
cases, hold hearings, and issue decisions; however, we will not change 
the titles of these forms. Currently these forms use the narrow, 
specific designation, ``Administrative Law Judges.'' Once we publish 
this final rule, we will obtain OMB approval for this revision through 
non-substantive change requests for these information collections, 
which does not require public notice and comment under the PRA. Thus, 
this final rule does not create or significantly alter any existing 
information collections under the PRA.

(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, 
Public assistance programs, Reporting and recordkeeping requirements, 
Social security.

20 CFR Part 408

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Social security, Supplemental Security Income (SSI), 
Veterans.

20 CFR Part 411

    Administrative practice and procedure, Blind, Disability benefits, 
Public assistance programs, Reporting and recordkeeping requirements, 
Vocational rehabilitation.

20 CFR Part 416

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Supplemental Security Income (SSI).

20 CFR Part 422

    Administrative practice and procedure, Reporting and recordkeeping 
requirements, Social security.

    The Commissioner of the Social Security Administration, Andrew 
Saul, having reviewed and approved this document, is delegating the 
authority to electronically sign this document to Faye I. Lipsky, who 
is the primary Federal Register Liaison for SSA, for purposes of 
publication in the Federal Register.

Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional 
Affairs, Social Security Administration.

    For the reasons set out in the preamble, we amend 20 CFR chapter 
III, parts 404, 408, 411, 416 and 422, as set forth below:

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

Subpart A--Introduction, General Provisions and Definitions

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

    Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the 
Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)) 
and 48 U.S.C. 1801.


0
2. Amend Sec.  404.2 by revising paragraph (b) to read as follows:


Sec.  404.2  General definitions and use of terms.

* * * * *
    (b) Commissioner; Appeals Council; Administrative Law Judge; 
Administrative Appeals Judge defined--(1) Commissioner means the 
Commissioner of Social Security.
    (2) Appeals Council means the Appeals Council of the Office of 
Analytics, Review, and Oversight in the Social Security Administration 
or such member or members thereof as may be designated by the Chair of 
the Appeals Council.
    (3) Administrative Law Judge means an Administrative Law Judge in 
the Office of Hearings Operations in the Social Security 
Administration.
    (4) Administrative Appeals Judge means an Administrative Appeals 
Judge serving as a member of the Appeals Council.
* * * * *

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

0
3. 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
4. Revise Sec.  404.929 to read as follows:


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

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec.  404.930, you may request a hearing. Subject to Sec.  
404.956, the Deputy Commissioner for Hearings Operations, or his or her 
delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner for Hearings 
Operations, or his or her delegate, may assign your case to another 
administrative law judge. In general, we will schedule you to appear by 
video teleconferencing or in person. When we determine whether you will 
appear by video teleconferencing or in person, we consider the factors 
described in Sec.  404.936(c)(1)(i) through (iii), and in the limited 
circumstances described in Sec.  404.936(c)(2), we will schedule you to 
appear by telephone. You may submit new evidence (subject to the 
provisions of Sec.  404.935), examine the evidence used in making the 
determination or decision under review, and present and question 
witnesses. The administrative law judge who conducts the hearing may 
ask you questions. He or she will issue a decision based on the 
preponderance of the evidence in the hearing record. If you waive your 
right to appear at the hearing, the administrative law judge will make 
a decision based on the preponderance of the evidence that is in the 
file and, subject to the provisions of Sec.  404.935, any new evidence 
that may have been submitted for consideration.

[[Page 73157]]


0
5. Amend Sec.  404.955 by revising the section heading, redesignating 
paragraphs (c) through (f) as paragraphs (d) through (g), and adding 
new paragraph (c) to read as follows:


Sec.  404.955  The effect of a hearing decision.

* * * * *
    (c) The Appeals Council decides on its own motion to review the 
decision under the procedures in Sec.  404.969;
* * * * *

0
6. Revise Sec.  404.956 to read as follows:


Sec.  404.956  Removal of a hearing request(s) to the Appeals Council.

    (a) Removal. The Appeals Council may assume responsibility for a 
hearing request(s) pending at the hearing level of the administrative 
review process.
    (b) Notice. We will mail a notice to all parties at their last 
known address telling them that the Appeals Council has assumed 
responsibility for the case(s).
    (c) Procedures applied. If the Appeals Council assumes 
responsibility for a hearing request(s), it shall conduct all 
proceedings in accordance with the rules set forth in Sec. Sec.  
404.929 through 404.961, as applicable.
    (d) Appeals Council review. If the Appeals Council assumes 
responsibility for your hearing request under this section and you or 
any other party is dissatisfied with the hearing decision or with the 
dismissal of a hearing request, you may request that the Appeals 
Council review that action following the procedures in Sec. Sec.  
404.967 through 404.982. The Appeals Council may also decide on its own 
motion to review the action that was taken in your case under Sec.  
404.969. The administrative appeals judge who conducted a hearing, 
issued a hearing decision in your case, or dismissed your hearing 
request will not participate in any action associated with your request 
for Appeals Council review of that case.
    (e) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 404 shall apply to 
authorize a member of the Appeals Council to exercise the functions 
performed by an administrative law judge under subpart J of part 404.


Sec.  404.966  [Removed and Reserved]

0
7. Section 404.966 is removed and reserved.

0
8. Amend Sec.  404.970 by revising paragraph (a) to read as follows:


Sec.  404.970  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case at a party's request or 
on its own motion if--
    (1) There appears to be an abuse of discretion by the 
administrative law judge or administrative appeals judge who heard the 
case;
    (2) There is an error of law;
    (3) The action, findings or conclusions in the hearing decision or 
dismissal order are not supported by substantial evidence;
    (4) There is a broad policy or procedural issue that may affect the 
general public interest; or
    (5) Subject to paragraph (b) of this section, the Appeals Council 
receives additional evidence that is new, material, and relates to the 
period on or before the date of the hearing decision, and there is a 
reasonable probability that the additional evidence would change the 
outcome of the decision.
* * * * *

0
9. Revise Sec.  404.973 to read as follows:


Sec.  404.973  Notice of Appeals Council review.

    When the Appeals Council decides to review a case, it shall mail a 
prior notice to all parties at their last known address stating the 
reasons for the review and the issues to be considered. However, when 
the Appeals Council plans to issue a decision that is fully favorable 
to all parties, plans to remand the case for further proceedings, or 
plans to issue a decision that is favorable in part and remand the 
remaining issues for further proceedings, it may send the notice of 
Appeals Council review to all parties with the decision or remand 
order.

0
10. Amend Sec.  404.976 by revising the section heading, revising 
paragraph (b), and adding paragraph (c) to read as follows:


Sec.  404.976  Procedures before the Appeals Council.

* * * * *
    (b) Evidence the Appeals Council will exhibit. The Appeals Council 
will evaluate all additional evidence it receives, but will only mark 
as an exhibit and make part of the official record additional evidence 
that it determines meets the requirements of Sec.  404.970(a)(5) and 
(b). If we need to file a certified administrative record in Federal 
court, we will include in that record all additional evidence the 
Appeals Council received during the administrative review process, 
including additional evidence that the Appeals Council received but did 
not exhibit or make part of the official record.
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument in support of your request for review. 
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 will 
be by video teleconferencing or in person, or, when the circumstances 
described in Sec.  404.936(c)(2) exist, the Appeals Council may 
schedule you to appear by telephone. The Appeals Council will determine 
whether any other person relevant to the proceeding will appear by 
video teleconferencing, telephone, or in person as based on the 
circumstances described in Sec.  404.936(c)(4).

0
11. Revise Sec.  404.983 to read as follows:


Sec.  404.983  Case remanded by a Federal court.

    (a) General rule. When a Federal court remands a case to the 
Commissioner for further consideration, the Appeals Council, acting on 
behalf of the Commissioner, may make a decision following the 
provisions in paragraph (b) or (c) of this section, dismiss the 
proceedings, except as provided in paragraph (d) of this section, or 
remand the case to an administrative law judge following the provisions 
in paragraph (e) of this section with instructions to take action and 
issue a decision or return the case to the Appeals Council with a 
recommended decision. Any issues relating to the claim(s) may be 
considered by the Appeals Council or administrative law judge whether 
or not they were raised in the administrative proceedings leading to 
the final decision in the case.
    (b) Appeals Council decision without a hearing. If the Appeals 
Council assumes responsibility under paragraph (a) of this section for 
issuing a decision without a hearing, it will follow the procedures 
explained in Sec. Sec.  404.973 and 404.979.
    (c) Administrative appeals judge decision after holding a hearing. 
If the Appeals Council assumes responsibility for issuing a decision 
and a hearing is necessary to complete adjudication of the claim(s), an 
administrative appeals judge will hold a hearing using the procedures 
set forth in Sec. Sec.  404.929 through 404.961, as applicable.
    (d) Appeals Council dismissal. After a Federal court remands a case 
to the

[[Page 73158]]

Commissioner for further consideration, the Appeals Council may dismiss 
the proceedings before it for any reason that an administrative law 
judge may dismiss a request for a hearing under Sec.  404.957. The 
Appeals Council will not dismiss the proceedings in a claim where we 
are otherwise required by law or a judicial order to file the 
Commissioner's additional and modified findings of fact and decision 
with a court.
    (e) Appeals Council remand. If the Appeals Council remands a case 
under paragraph (a) of this section, it will follow the procedures 
explained in Sec.  404.977.

0
12. Revise Sec.  404.984 to read as follows:


Sec.  404.984  Appeals Council review of hearing decision in a case 
remanded by a Federal court.

    (a) General. In accordance with Sec.  404.983, when a case is 
remanded by a Federal court for further consideration and the Appeals 
Council remands the case to an administrative law judge, or an 
administrative appeals judge issues a decision pursuant to Sec.  
404.983(c), the decision of the administrative law judge or 
administrative appeals judge will become the final decision of the 
Commissioner after remand on your case unless the Appeals Council 
assumes jurisdiction of the case. The Appeals Council may assume 
jurisdiction, using the standard set forth in Sec.  404.970, based on 
written exceptions to the decision which you file with the Appeals 
Council or based on its authority pursuant to paragraph (c) of this 
section. If the Appeals Council assumes jurisdiction of the case, it 
will not dismiss the request for a hearing where we are otherwise 
required by law or a judicial order to file the Commissioner's 
additional and modified findings of fact and decision with a court.
    (b) You file exceptions disagreeing with the hearing decision. (1) 
If you disagree with the hearing decision, in whole or in part, you may 
file exceptions to the decision with the Appeals Council. Exceptions 
may be filed by submitting a written statement to the Appeals Council 
setting forth your reasons for disagreeing with the decision of the 
administrative law judge or administrative appeals judge. The 
exceptions must be filed within 30 days of the date you receive the 
hearing decision or an extension of time in which to submit exceptions 
must be requested in writing within the 30-day period. A timely request 
for a 30-day extension will be granted by the Appeals Council. A 
request for an extension of more than 30 days should include a 
statement of reasons as to why you need the additional time.
    (2) If written exceptions are timely filed, the Appeals Council 
will consider your reasons for disagreeing with the hearing decision 
and all the issues presented by your case. If the Appeals Council 
concludes that there is no reason to change the hearing decision, it 
will issue a notice to you addressing your exceptions and explaining 
why no change in the hearing decision is warranted. In this instance, 
the hearing decision is the final decision of the Commissioner after 
remand.
    (3) When you file written exceptions to the hearing decision, the 
Appeals Council may assume jurisdiction at any time, even after the 60-
day time period which applies when you do not file exceptions. If the 
Appeals Council assumes jurisdiction of your case, any issues relating 
to your claim may be considered by the Appeals Council whether or not 
they were raised in the administrative proceedings leading to the final 
decision in your case or subsequently considered by the administrative 
law judge or administrative appeals judge in the administrative 
proceedings following the court's remand order. The Appeals Council 
will either make a new, independent decision pursuant to Sec.  
404.983(b) or Sec.  404.983(c), based on a preponderance of the 
evidence in the record that will be the final decision of the 
Commissioner after remand, dismiss the request for a hearing, or remand 
the case to an administrative law judge for further proceedings, 
including a new decision.
    (c) Appeals Council assumes jurisdiction without exceptions being 
filed. Any time within 60 days after the date of the hearing decision, 
the Appeals Council may decide to assume jurisdiction of your case even 
though no written exceptions have been filed. Notice of this action 
will be mailed to all parties at their last known address. You will be 
provided with the opportunity to file briefs or other written 
statements with the Appeals Council about the facts and law relevant to 
your case. After the Appeals Council receives the briefs or other 
written statements, or the time allowed (usually 30 days) for 
submitting them has expired, the Appeals Council will either make a 
new, independent decision pursuant to Sec.  404.983(b) or Sec.  
404.983(c), based on a preponderance of the evidence in the record that 
will be the final decision of the Commissioner after remand, dismiss 
the request for a hearing, or remand the case to an administrative law 
judge for further proceedings, including a new decision.
    (d) Exceptions are not filed and the Appeals Council does not 
otherwise assume jurisdiction. If no exceptions are filed and the 
Appeals Council does not assume jurisdiction of your case, the decision 
of the administrative law judge or administrative appeals judge becomes 
the final decision of the Commissioner after remand.

0
13. Amend Sec.  404.999c by revising paragraph (d)(3)(i)(C) to read as 
follows:


Sec.  404.999c  What travel expenses are reimbursable.

* * * * *
    (d) * * *
    (3) * * *
    (i) * * *
    (C) The designated geographic service area of the Office of 
Hearings Operations hearing office having responsibility for providing 
the hearing.
* * * * *

PART 408--SPECIAL BENEFITS FOR CERTAIN WORLD WAR II VETERANS

Subpart A--Introduction, General Provision and Definitions

0
14. The authority citation for subpart A of part 408 continues to read 
as follows:

    Authority: Secs. 702(a)(5) and 801-813 of the Social Security 
Act (42 U.S.C. 902(a)(5) and 1001-1013).


0
15. Amend Sec.  408.110 by revising paragraph (b) to read as follows:


Sec.  408.110  General definitions and use of terms.

* * * * *
    (b) Commissioner; Appeals Council; Administrative Law Judge 
defined--(1) Commissioner means the Commissioner of Social Security.
    (2) Appeals Council means the Appeals Council of the Office of 
Analytics, Review, and Oversight in the Social Security Administration 
or such member or members thereof as may be designated by the Chair of 
the Appeals Council.
    (3) Administrative Law Judge means an Administrative Law Judge in 
the Office of Hearings Operations in the Social Security 
Administration.
* * * * *

PART 411--THE TICKET TO WORK AND SELF-SUFFICIENCY PROGRAM

0
16. The authority citation for part 411 continues to read as follows:

    Authority: Secs. 702(a)(5) and 1148 of the Social Security Act 
(42 U.S.C. 902(a)(5) and 1320b-19); sec. 101(b)-(e), Public Law 106-

[[Page 73159]]

170, 113 Stat. 1860, 1873 (42 U.S.C. 1320b-19 note).

Subpart C--Suspension of Continuing Disability Reviews for 
Beneficiaries Who Are Using a Ticket

0
17. Amend Sec.  411.175 by revising paragraph (a) to read as follows:


Sec.  411.175  What if a continuing disability review is begun before 
my ticket is in use?

    (a) If we begin a continuing disability review before the date on 
which your ticket is in use, you may still assign the ticket and 
receive services from an employment network or a State vocational 
rehabilitation agency acting as an employment network under the Ticket 
to Work program, or you may still receive services from a State 
vocational rehabilitation agency that elects the vocational 
rehabilitation cost reimbursement option. However, we will complete the 
continuing disability review. If in this review we determine that you 
are no longer disabled, in most cases you will no longer be eligible to 
receive benefit payments. However, if your ticket was in use before we 
determined that you are no longer disabled, in certain circumstances 
you may continue to receive benefit payments (see Sec. Sec.  
404.316(c), 404.337(c), 404.352(d), and 416.1338 of this chapter). If 
you appeal the decision that you are no longer disabled, you may also 
choose to have your benefits continued pending reconsideration or a 
hearing before a judge on the cessation determination (see Sec. Sec.  
404.1597a and 416.996 of this chapter).
* * * * *

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

Subpart A--Introduction, General Provisions and Definitions

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

    Authority: Secs. 702(a)(5) and 1601-1635 of the Social Security 
Act (42 U.S.C. 902(a)(5) and 1381-1383d); sec. 212, Pub. L. 93-66, 
87 Stat. 155 (42 U.S.C. 1382 note); sec. 502(a), Pub. L. 94-241, 90 
Stat. 268 (48 U.S.C. 1681 note).


0
19. Amend Sec.  416.120 by revising paragraph (b) to read as follows:


Sec.  416.120  General definitions and use of terms.

* * * * *
    (b) Commissioner; Appeals Council; Administrative Law Judge; 
Administrative Appeals Judge defined--(1) Commissioner means the 
Commissioner of Social Security.
    (2) Appeals Council means the Appeals Council of the Office of 
Analytics, Review, and Oversight in the Social Security Administration 
or such member or members thereof as may be designated by the Chair of 
the Appeals Council.
    (3) Administrative Law Judge means an Administrative Law Judge in 
the Office of Hearings Operations in the Social Security 
Administration.
    (4) Administrative Appeals Judge means an Administrative Appeals 
Judge serving as a member of the Appeals Council.
* * * * *

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

0
20. 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
21. Revise Sec.  416.1429 to read as follows:


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

    If you are dissatisfied with one of the determinations or decisions 
listed in Sec.  416.1430, you may request a hearing. Subject to Sec.  
416.1456, the Deputy Commissioner for Hearings Operations, or his or 
her delegate, will appoint an administrative law judge to conduct the 
hearing. If circumstances warrant, the Deputy Commissioner for Hearings 
Operations, or his or her delegate, may assign your case to another 
administrative law judge. In general, we will schedule you to appear by 
video teleconferencing or in person. When we determine whether you will 
appear by video teleconferencing or in person, we consider the factors 
described in Sec.  416.1436 (c)(1)(i) through (iii), and in the limited 
circumstances described in Sec.  416.1436(c)(2), we will schedule you 
to appear by telephone. You may submit new evidence (subject to the 
provisions of Sec.  416.1435), examine the evidence used in making the 
determination or decision under review, and present and question 
witnesses. The administrative law judge who conducts the hearing may 
ask you questions. He or she will issue a decision based on the 
preponderance of the evidence in the hearing record. If you waive your 
right to appear at the hearing, the administrative law judge will make 
a decision based on the preponderance of the evidence that is in the 
file and, subject to the provisions of Sec.  416.1435, any new evidence 
that may have been submitted for consideration.

0
22. Amend Sec.  416.1455 by revising the section heading, redesignating 
paragraphs (c) through (f) as paragraphs (d) through (g), and adding 
new paragraph (c) to read as follows:


Sec.  416.1455  The effect of a hearing decision.

* * * * *
    (c) The Appeals Council decides on its own motion to review the 
decision under the procedures in Sec.  416.1469;
* * * * *

0
23. Revise Sec.  416.1456 to read as follows:


Sec.  416.1456  Removal of a hearing request(s) to the Appeals Council.

    (a) Removal. The Appeals Council may assume responsibility for a 
hearing request(s) pending at the hearing level of the administrative 
review process.
    (b) Notice. We will mail a notice to all parties at their last 
known address telling them that the Appeals Council has assumed 
responsibility for the case(s).
    (c) Procedures applied. If the Appeals Council assumes 
responsibility for a hearing request(s), it shall conduct all 
proceedings in accordance with the rules set forth in Sec. Sec.  
416.1429 through 416.1461, as applicable.
    (d) Appeals Council review. If the Appeals Council assumes 
responsibility for your hearing request under this section and you or 
any other party is dissatisfied with the hearing decision or with the 
dismissal of a hearing request, you may request that the Appeals 
Council review that action following the procedures in Sec. Sec.  
416.1467 through 416.1482. The Appeals Council may also decide on its 
own motion to review the action that was taken in your case under Sec.  
416.1469. The administrative appeals judge who conducted a hearing, 
issued a hearing decision in your case, or dismissed your hearing 
request will not participate in any action associated with your request 
for Appeals Council review of that case.
    (e) Ancillary provisions. For the purposes of the procedures 
authorized by this section, the regulations of part 416 shall apply to 
authorize a member of the Appeals Council to exercise the functions 
performed by an administrative law judge under subpart N of part 416.


Sec.  416.1466  [Removed and Reserved]

0
24. Section 416.1466 is removed and reserved.

[[Page 73160]]


0
25. Amend Sec.  416.1470 by revising paragraph (a) to read as follows:


Sec.  416.1470  Cases the Appeals Council will review.

    (a) The Appeals Council will review a case at a party's request or 
on its own motion if--
    (1) There appears to be an abuse of discretion by the 
administrative law judge or administrative appeals judge who heard the 
case;
    (2) There is an error of law;
    (3) The action, findings or conclusions in the hearing decision or 
dismissal order are not supported by substantial evidence;
    (4) There is a broad policy or procedural issue that may affect the 
general public interest; or
    (5) Subject to paragraph (b) of this section, the Appeals Council 
receives additional evidence that is new, material, and relates to the 
period on or before the date of the hearing decision, and there is a 
reasonable probability that the additional evidence would change the 
outcome of the decision.
* * * * *

0
26. Revise Sec.  416.1473 to read as follows:


Sec.  416.1473  Notice of Appeals Council review.

    When the Appeals Council decides to review a case, it shall mail a 
prior notice to all parties at their last known address stating the 
reasons for the review and the issues to be considered. However, when 
the Appeals Council plans to issue a decision that is fully favorable 
to all parties, plans to remand the case for further proceedings, or 
plans to issue a decision that is favorable in part and remand the 
remaining issues for further proceedings, it may send the notice of 
Appeals Council review to all parties with the decision or remand 
order.

0
27. Amend Sec.  416.1476 by revising the section heading, revising 
paragraph (b), and adding paragraph (c) to read as follows:


Sec.  416.1476  Procedures before the Appeals Council.

* * * * *
    (b) Evidence the Appeals Council will exhibit. The Appeals Council 
will evaluate all additional evidence it receives, but will only mark 
as an exhibit and make part of the official record additional evidence 
that it determines meets the requirements of Sec.  416.1470(a)(5) and 
(b). If we need to file a certified administrative record in Federal 
court, we will include in that record all additional evidence the 
Appeals Council received during the administrative review process, 
including additional evidence that the Appeals Council received but did 
not exhibit or make part of the official record.
    (c) Oral argument. You may request to appear before the Appeals 
Council to present oral argument in support of your request for review. 
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 will 
be by video teleconferencing or in person, or, when the circumstances 
described in Sec.  416.1436(c)(2) exist, the Appeals Council may 
schedule you to appear by telephone. The Appeals Council will determine 
whether any other person relevant to the proceeding will appear by 
video teleconferencing, telephone, or in person as based on the 
circumstances described in Sec.  416.1436(c)(4).

0
28. Revise Sec.  416.1483 to read as follows:


Sec.  416.1483  Case remanded by a Federal court.

    (a) General rule. When a Federal court remands a case to the 
Commissioner for further consideration, the Appeals Council, acting on 
behalf of the Commissioner, may make a decision following the 
provisions in paragraph (b) or (c) of this section, dismiss the 
proceedings, except as provided in paragraph (d) of this section, or 
remand the case to an administrative law judge following the provisions 
in paragraph (e) of this section with instructions to take action and 
issue a decision or return the case to the Appeals Council with a 
recommended decision. Any issues relating to the claim(s) may be 
considered by the Appeals Council or administrative law judge whether 
or not they were raised in the administrative proceedings leading to 
the final decision in the case.
    (b) Appeals Council decision without a hearing. If the Appeals 
Council assumes responsibility under paragraph (a) of this section for 
issuing a decision without a hearing, it will follow the procedures 
explained in Sec. Sec.  416.1473 and 416.1479.
    (c) Administrative appeals judge decision after holding a hearing. 
If the Appeals Council assumes responsibility for issuing a decision 
and a hearing is necessary to complete adjudication of the claim(s), an 
administrative appeals judge will hold a hearing using the procedures 
set forth in Sec. Sec.  416.1429 through 416.1461, as applicable.
    (d) Appeals Council dismissal. After a Federal court remands a case 
to the Commissioner for further consideration, the Appeals Council may 
dismiss the proceedings before it for any reason that an administrative 
law judge may dismiss a request for a hearing under Sec.  416.1457. The 
Appeals Council will not dismiss the proceedings in a claim where we 
are otherwise required by law or a judicial order to file the 
Commissioner's additional and modified findings of fact and decision 
with a court.
    (e) Appeals Council remand. If the Appeals Council remands a case 
under paragraph (a) of this section, it will follow the procedures 
explained in Sec.  416.1477.

0
29. Revise Sec.  416.1484 to read as follows:


Sec.  416.1484  Appeals Council review of hearing decision in a case 
remanded by a Federal court.

    (a) General. In accordance with Sec.  416.1483, when a case is 
remanded by a Federal court for further consideration and the Appeals 
Council remands the case to an administrative law judge, or an 
administrative appeals judge issues a decision pursuant to Sec.  
416.1483(c), the decision of the administrative law judge or 
administrative appeals judge will become the final decision of the 
Commissioner after remand on your case unless the Appeals Council 
assumes jurisdiction of the case. The Appeals Council may assume 
jurisdiction, using the standard set forth in Sec.  416.1470, based on 
written exceptions to the decision which you file with the Appeals 
Council or based on its authority pursuant to paragraph (c) of this 
section. If the Appeals Council assumes jurisdiction of the case, it 
will not dismiss the request for a hearing in a claim where we are 
otherwise required by law or a judicial order to file the 
Commissioner's additional and modified findings of fact and decision 
with a court.
    (b) You file exceptions disagreeing with the hearing decision. (1) 
If you disagree with the hearing decision, in whole or in part, you may 
file exceptions to the decision with the Appeals Council. Exceptions 
may be filed by submitting a written statement to the Appeals Council 
setting forth your reasons for disagreeing with the decision of the 
administrative law judge or administrative appeals judge. The 
exceptions must be filed within 30 days of the date you receive the 
hearing decision or an extension of time in which to submit exceptions 
must be

[[Page 73161]]

requested in writing within the 30-day period. A timely request for a 
30-day extension will be granted by the Appeals Council. A request for 
an extension of more than 30 days should include a statement of reasons 
as to why you need the additional time.
    (2) If written exceptions are timely filed, the Appeals Council 
will consider your reasons for disagreeing with the hearing decision 
and all the issues presented by your case. If the Appeals Council 
concludes that there is no reason to change the hearing decision, it 
will issue a notice to you addressing your exceptions and explaining 
why no change in the hearing decision is warranted. In this instance, 
the hearing decision is the final decision of the Commissioner after 
remand.
    (3) When you file written exceptions to the hearing decision, the 
Appeals Council may assume jurisdiction at any time, even after the 60-
day time period which applies when you do not file exceptions. If the 
Appeals Council assumes jurisdiction of your case, any issues relating 
to your claim may be considered by the Appeals Council whether or not 
they were raised in the administrative proceedings leading to the final 
decision in your case or subsequently considered by the administrative 
law judge or administrative appeals judge in the administrative 
proceedings following the court's remand order. The Appeals Council 
will either make a new, independent decision pursuant to Sec.  
416.1483(b) or Sec.  416.1483(c), based on a preponderance of the 
evidence in the record that will be the final decision of the 
Commissioner after remand, dismiss the request for a hearing, or remand 
the case to an administrative law judge for further proceedings, 
including a new decision.
    (c) Appeals Council assumes jurisdiction without exceptions being 
filed. Any time within 60 days after the date of the hearing decision, 
the Appeals Council may decide to assume jurisdiction of your case even 
though no written exceptions have been filed. Notice of this action 
will be mailed to all parties at their last known address. You will be 
provided with the opportunity to file briefs or other written 
statements with the Appeals Council about the facts and law relevant to 
your case. After the Appeals Council receives the briefs or other 
written statements, or the time allowed (usually 30 days) for 
submitting them has expired, the Appeals Council will either make a 
new, independent decision pursuant to Sec.  416.1483(b) or Sec.  
416.1483(c), based on a preponderance of the evidence in the record 
that will be the final decision of the Commissioner after remand, 
dismiss the request for a hearing, or remand the case to an 
administrative law judge for further proceedings, including a new 
decision.
    (d) Exceptions are not filed and the Appeals Council does not 
otherwise assume jurisdiction. If no exceptions are filed and the 
Appeals Council does not assume jurisdiction of your case, the decision 
of the administrative law judge or administrative appeals judge becomes 
the final decision of the Commissioner after remand.

0
30. Amend Sec.  416.1498 by revising paragraph (d)(3)(i)(C) to read as 
follows:


Sec.  416.1498  What travel expenses are reimbursable.

* * * * *
    (d) * * *
    (3) * * *
    (i) * * *
    (C) The designated geographic service area of the Office of 
Hearings Operations hearing office having responsibility for providing 
the hearing.
* * * * *

PART 422--ORGANIZATION AND PROCEDURES

0
31. Revise the heading for subpart C to read as follows:

Subpart C--Hearings, Appeals Council Review, and Judicial Review 
Procedures

0
32. The authority citation for subpart C of part 422 continues to read 
as follows:

    Authority: Secs. 205, 221, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 405, 421, and 902(a)(5)); 30 U.S.C. 923(b).


0
33. Amend Sec.  422.201 by revising the introductory text to read as 
follows:


Sec.  422.201  Material included in this subpart.

    This subpart describes in general the procedures relating to 
hearings, review by the Appeals Council of the hearing decision or 
dismissal, and court review in cases decided under the procedures in 
parts 404, 408, 410, and 416 of this chapter. It also describes the 
procedures for requesting a hearing or Appeals Council review, and for 
instituting a civil action for court review of cases decided under 
these parts. For detailed provisions relating to hearings, review by 
the Appeals Council, and court review, see the following references as 
appropriate to the matter involved:
* * * * *

0
34. Amend Sec.  422.203 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  422.203  Hearings.

* * * * *
    (b) Request for a hearing. (1) A request for a hearing under 
paragraph (a) of this section may be made using the form(s) we 
designate for this purpose, or by any other writing requesting a 
hearing. The request shall be filed either electronically in the manner 
we prescribe or at an office of the Social Security Administration, 
usually a district office or a branch office, or at the Veterans' 
Administration Regional Office in the Philippines (except in title XVI 
cases), or at a hearing office of the Office of Hearings Operations, or 
with the Appeals Council. A qualified railroad retirement beneficiary 
may choose to file a request for a hearing under part A of title XVIII 
with the Railroad Retirement Board.
    (2) Unless an extension of time has been granted for good cause 
shown, a request for a hearing must be filed within 60 days after the 
receipt of the notice of the reconsidered or revised determination, or 
after an initial determination described in 42 CFR 498.3(b) and (c) 
(see Sec. Sec.  404.933, 410.631, and 416.1433 of this chapter and 42 
CFR 405.722, 498.40, and 417.260.)
    (c) Hearing decision or other action. Generally, the administrative 
law judge, or an administrative appeals judge under Sec.  404.956 or 
Sec.  416.1456 of this chapter, will either decide the case after 
hearing (unless hearing is waived) or, if appropriate, dismiss the 
request for a hearing. With respect to a hearing on a determination 
under paragraph (a)(1) of this section, the administrative law judge 
may certify the case with a recommended decision to the Appeals Council 
for decision. The administrative law judge, or an attorney advisor 
under Sec.  404.942 or Sec.  416.1442 of this chapter, or an 
administrative appeals judge under Sec.  404.956 or Sec.  416.1456 of 
this chapter, must base the hearing decision on the preponderance of 
the evidence offered at the hearing or otherwise included in the 
record.

0
35. Revise Sec.  422.205 to read as follows:


Sec.  422.205  Proceedings before the Appeals Council.

    (a) Administrative Appeals Judge hearing decisions. Administrative 
Appeals Judge decisions and dismissals issued on hearing requests 
removed under Sec. Sec.  404.956 and 416.1456 of this chapter and 
decisions and dismissals described in Sec.  422.203(c) require the 
signature of one Administrative Appeals Judge. Requests for review of 
hearing decisions issued by an Administrative Appeals Judge may be 
filed pursuant to

[[Page 73162]]

Sec. Sec.  404.968 and 416.1468 of this chapter and paragraph (b) of 
this section.
    (b) Appeals Council review. Any party to a hearing decision or 
dismissal may request a review of such action by the Appeals Council. 
This request may be made on Form HA-520, Request for Review of Hearing 
Decision/Order, or by any other writing specifically requesting review. 
Form HA-520 may be obtained from any Social Security district office or 
branch office, or at any other office where a request for a hearing may 
be filed. (For time and place of filing, see Sec. Sec.  404.968 and 
416.1468 of this chapter.)
    (c) Review of a hearing decision, dismissal, or denial. The denial 
of a request for review of a hearing decision concerning a 
determination under Sec.  422.203(a)(1) shall be by such appeals 
officer or appeals officers or by such member or members of the Appeals 
Council as may be designated in the manner prescribed by the Chair or 
Deputy Chair. The denial of a request for review of a hearing 
dismissal, the dismissal of a request for review, the denial of a 
request for review of a hearing decision whenever such hearing decision 
after such denial would not be subject to judicial review as explained 
in Sec.  422.210(a), or the refusal of a request to reopen a hearing or 
Appeals Council decision concerning a determination under Sec.  
422.203(a)(1) shall be by such member or members of the Appeals Council 
as may be designated in the manner prescribed by the Chair or Deputy 
Chair.
    (d) Appeals Council review panel. Whenever the Appeals Council 
reviews a hearing decision under Sec. Sec.  404.967, 404.969, 416.1467, 
or 416.1469 of this chapter and the claimant does not appear personally 
or through representation before the Appeals Council to present oral 
argument, such review will be conducted by a panel of not less than two 
members of the Appeals Council designated in the manner prescribed by 
the Chair or Deputy Chair of the Appeals Council. In the event of 
disagreement between a panel composed of only two members, the Chair or 
Deputy Chair, or his or her delegate, who must be a member of the 
Appeals Council, shall participate as a third member of the panel. When 
the claimant appears in person or through representation before the 
Appeals Council in the location designated by the Appeals Council, the 
review will be conducted by a panel of not less than three members of 
the Appeals Council designated in the manner prescribed by the Chair or 
Deputy Chair. Concurrence of a majority of a panel shall constitute the 
decision of the Appeals Council unless the case is considered as 
provided under paragraph (e) of this section.
    (e) Appeals Council meetings. On call of the Chair, the Appeals 
Council may meet en banc or a representative body of Appeals Council 
members may be convened to consider any case arising under paragraph 
(c) or (d) of this section. Such representative body shall be comprised 
of a panel of not less than five members designated by the Chair as 
deemed appropriate for the matter to be considered. The Chair or Deputy 
Chair shall preside, or in his or her absence, the Chair shall 
designate a member of the Appeals Council to preside. A majority vote 
of the designated panel, or of the members present and voting, shall 
constitute the decision of the Appeals Council.
    (f) Temporary assignments of ALJs. The Chair may designate an 
administrative law judge to serve as a member of the Appeals Council 
for temporary assignments. An administrative law judge shall not be 
designated to serve as a member on any panel where such panel is 
conducting review on a case in which such individual has been 
previously involved.

0
36. Amend Sec.  422.210 by revising paragraph (a) and adding paragraph 
(e) to read as follows:


Sec.  422.210  Judicial review.

    (a) General. A claimant may obtain judicial review of a decision by 
an administrative law judge or administrative appeals judge if the 
Appeals Council has denied the claimant's request for review, or of a 
decision by the Appeals Council when that is the final decision of the 
Commissioner. A claimant may also obtain judicial review of a 
reconsidered determination, or of a decision of an administrative law 
judge or an administrative appeals judge, where, under the expedited 
appeals procedure, further administrative review is waived by agreement 
under Sec.  404.926 or Sec.  416.1426 of this chapter or as 
appropriate. There are no amount-in-controversy limitations on these 
rights of appeal.
* * * * *
    (e) Appeals Council review panel after Federal court remand. When 
the Appeals Council holds a hearing under Sec.  404.983 or Sec.  
416.1483 of this chapter, such hearing will be conducted and a decision 
will be issued by a panel of not less than two members of the Appeals 
Council designated in the manner prescribed by the Chair or Deputy 
Chair of the Appeals Council. When the Appeals Council issues a 
decision under Sec. Sec.  404.983 and 416.1483 of this chapter without 
holding a hearing, a decision will be issued by a panel of not less 
than two members of the Council designated in the same manner 
prescribed by the Chair or Deputy Chair of the Council. In the event of 
disagreement between a panel composed of only two members, the Chair or 
Deputy Chair, or his or her delegate, who must be a member of the 
Council, shall participate as a third member of the panel.

[FR Doc. 2020-23856 Filed 11-13-20; 8:45 am]
BILLING CODE 4191-02-P