[Federal Register Volume 71, Number 62 (Friday, March 31, 2006)]
[Rules and Regulations]
[Pages 16424-16462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3011]



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Part II





Social Security Administration





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20 CFR Parts 404, 405, 416, and 422



Administrative Review Process for Adjudicating Initial Disability 
Claims; Final Rule

  Federal Register / Vol. 71, No. 62 / Friday, March 31, 2006 / Rules 
and Regulations  

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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 405, 416, and 422

RIN 0960-AG31


Administrative Review Process for Adjudicating Initial Disability 
Claims

AGENCY: Social Security Administration.

ACTION: Final rule.

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SUMMARY: The Social Security Administration is committed to providing 
the high quality of service the American people expect and deserve. In 
light of the significant growth in the number of disability claims and 
the increased complexity of those claims, the need to make substantial 
changes in our disability determination process has become urgent. We 
are publishing a final rule that amends our administrative review 
process for applications for benefits that are based on whether you are 
disabled under title II of the Social Security Act (the Act), or 
applications for supplemental security income (SSI) payments that are 
based on whether you are disabled or blind under title XVI of the Act. 
We expect that this final rule will improve the accuracy, consistency, 
and timeliness of decision-making throughout the disability 
determination process.

DATES: This rule is effective August 1, 2006.

FOR FURTHER INFORMATION CONTACT: Mary Chatel, Executive Director, 
Disability Service Improvement, Social Security Administration, 500 E 
Street, SW., Suite 854, Washington DC 20254, 202-358-6094 or TTY 410-
966-5609, for information about this notice. For information on 
eligibility or filing for benefits, call our national toll-free number, 
1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, 
Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Electronic Version

    The electronic file of this document is available on the date of 
publication in the Federal Register at http://www.gpoaccess.gov/fr/index.html.

Introduction

    Today, as part of our continuing efforts to make fundamental 
improvements in our disability decision-making, we are publishing this 
rule establishing our new disability determination process, known as 
the Disability Service Improvement (DSI) process. This rule explains 
our new procedures for adjudicating the disability portion of initial 
claims for Social Security disability insurance (DI) benefits and for 
supplemental security income (SSI) based on disability or blindness. 
The purpose of the rule is to improve the accuracy, consistency, and 
fairness of our disability determination process and to make the right 
decision as early in the process as possible.
    Under this rule, the administrative review process consists of 
several steps, which must be requested within certain time periods. 
When you file for benefits, we will make an initial determination on 
your claim, and in certain circumstances refer your claim for a quick 
disability determination (QDD). If you are dissatisfied with our 
initial determination, you may request review by a Federal reviewing 
official. If you are dissatisfied with the Federal reviewing official's 
decision, you may request a hearing before an administrative law judge. 
The administrative law judge's decision becomes our final decision, 
unless your claim is referred to the Decision Review Board (DRB). When 
the DRB reviews your claim and issues a decision, that decision is our 
final decision. If you are dissatisfied with our final decision, you 
may seek judicial review in Federal district court.
    Following is a description of our various initiatives towards 
improving the disability process, an explanation of the new process 
created by this rule, and a discussion of the comments that we received 
in response to our notice of proposed rulemaking (NPRM), 70 FR 43590 
(July 27, 2005).

Background

    During the five decades that have elapsed since its enactment, the 
DI program has provided many millions of disabled American workers and 
their families with critically needed income support. The SSI program, 
enacted 34 years ago, has similarly helped many millions of low income 
disabled individuals meet their basic needs. These two programs are a 
vital part of the nation's social insurance and income support systems.
    The number of disability beneficiaries in our programs has grown 
significantly over the years. In January 2005, nearly eight million 
disabled workers and their dependents received DI benefits, double the 
number of beneficiaries in 1985 (about a 100% increase). Nearly six 
million disabled adults and children received SSI disability payments, 
more than double the number in 1985 (a 130% increase).
    The adjudication of disability claims now constitutes the major 
part of our workload and nearly every one of our components has a role 
in administering the disability programs. In fiscal year 2005, the 
State disability determination services (DDSs) processed more than 2.6 
million initial claims for DI benefits and SSI based on disability or 
blindness. Our hearing offices processed approximately 500,000 
disability claims on behalf of claimants who appealed their denials.
    As the disability programs have grown in both size and complexity, 
we have been increasingly challenged to provide the high quality of 
service that disabled claimants and the public expect and deserve. Over 
the last four years we have undertaken a number of major initiatives 
designed to fundamentally improve the administration of these programs.
    To further one of those initiatives, on July 27, 2005, we published 
an NPRM that described the changes we have already begun and those we 
intend to make in the months to come to improve the accuracy, 
consistency, and fairness of our disability determination process, to 
make the right decision as early in the process as possible, and to 
assist disabled individuals who want to work to do so.
    We determined that to accomplish these objectives, we needed a two-
pronged strategy: (1) Strengthen our disability determination process 
through structural and qualitative change, and (2) make important 
institutional improvements to better support our disability programs. 
The important institutional improvements we are making include:
     Implementing a new electronic disability system;
     Establishing a new, integrated, and more comprehensive 
quality system;
     Enhancing our management information;
     Updating medical and vocational policy and strengthening 
our ability to address policy issues; and
     Implementing new work opportunity initiatives.
    These improvements go hand-in-hand with the process changes that we 
are making in this rule. Both are essential if our disability programs 
are to meet the needs of the claimants and public whom we serve.

A New Electronic Disability System

    At this time, we are well along in replacing our old paper 
disability approach with an electronic system that will enable us to 
handle all new claims in an expedited manner. Each component in our 
adjudicative process, from beginning to end, is increasingly able to 
process claims electronically. This new electronic system, which we

[[Page 16425]]

call eDib, permits us to avoid delays that result from having to mail, 
locate, and organize paper folders. It also enables more than one 
employee or component to work on a claim at the same time, thus 
speeding up the process. Medical records can be quickly scanned into 
the system and made readily accessible to adjudicators. The electronic 
system also includes safeguards to help adjudicators avoid mistakes, 
which will result in more accurate decision-making. It also protects 
the confidentiality of claimant information.
    The implementation of this new electronic system has progressed 
rapidly. All of our 1,338 field offices are now using the Electronic 
Disability Collect System (EDCS), taking 20,000 claims per day. This 
system enables them to immediately transfer a disability claim to a 
DDS, thus avoiding delays.
    The rollout of eDib in the DDSs has been phased in gradually so 
that we can provide each DDS with the support needed for successful 
implementation. Once rollout begins in a DDS, the number of DDS 
decision-makers working with electronic folders gradually expands as 
the DDS develops expertise with the process. To date, all of the 50 
States have rolled out the electronic disability folder. Nationally, 
over 80% of DDS decision-makers are now adjudicating cases in an 
electronic environment.
    In January 2005, the Mississippi DDS became the first in the nation 
to start processing its cases in a totally electronic environment. 
Another 20 States have joined Mississippi and are processing all new 
disability claims in a totally electronic environment, thus eliminating 
the need for a paper folder. We plan to continue implementation in the 
DDSs in 2006.
    Within the Office of Hearings and Appeals (OHA), all of our hearing 
offices are outfitted with our new electronic Case Processing and 
Management System (CPMS), which controls case flow and provides current 
management information. In addition, hearing offices in 47 States are 
equipped to work cases electronically.
    eDib also improves our ability to manage decisional quality. Access 
to the electronic folder provides quality reviewers greater 
flexibility. This will allow us to transition to our new quality system 
that will rely on both in-line and end-of-line reviews and will provide 
timely and efficient feedback to decision-makers to enable them to 
improve how we administer our programs.
    In 2006, each of the field offices, DDSs, and hearing offices will 
be processing workloads with electronic disability folders on a regular 
basis.

A New Quality System

    Over the last two years we have been designing a new integrated 
quality system that we believe will significantly improve our 
disability determination process as well as other program areas within 
our responsibility, including the Social Security retirement program 
and the SSI age-based program. We expect to begin the implementation of 
our new quality system this spring. This system employs a multi-
dimensional definition of quality that includes five elements: 
accuracy, service, timeliness, productivity, and cost. It will 
emphasize in-line, as well as end-of-line, quality assurance.
    The new, comprehensive quality system will be implemented 
throughout our Agency, including in teleservice centers, program 
service centers, field offices, DDSs, and hearing offices, as well as 
for the Federal reviewing official, Medical and Vocational Expert 
System (MVES), and the DRB. The centrally-managed quality system will 
replace the current regionally-based Disability Quality Branches that 
review State DDS determinations.
    Data will be gathered in-line and end-of-line to provide timely, 
meaningful feedback. Specialized units comprised of trained employees 
who will be responsible for fostering continuous improvements in the 
Agency's work products will work together with employees in all 
components to improve the process on an ongoing basis. Quality will not 
be separate from, but will be integrated into every step of, the 
process.
    The new quality system is being designed to improve accountability 
and to provide feedback to adjudicators at all administrative levels, 
including the individual, unit, component, State, region, and 
headquarters. The system will provide administrators with the detailed 
data they need to understand the strengths and weaknesses of their 
performance, and what they need to do to improve it. To ensure 
successful implementation, we will be providing training so that 
employees will understand what is expected of them and will be able to 
fulfill their responsibilities. This will improve the quality of our 
decisions throughout the disability determination process.

Improving Management Information

    The new DSI process that we describe below is intended to improve 
our service to the public. Critical to achieving this objective is 
having the management information that is needed to measure both the 
overall impact of the new disability determination process and the 
effectiveness of its component parts.
    We are currently undertaking a major effort to enhance our 
management information capacity. We anticipate that these enhancements 
will not only improve our current capability to perform such ongoing 
functions as tracking program and administrative costs, but will also 
help us measure the success of the new DSI process. These enhancements 
will enable us to determine whether our performance matches our 
business goals, and whether these changes result in the intended 
objectives.
    For example, we will be able to answer the following types of 
questions:
     Did overall disability processing time improve? Did the 
new QDD process contribute to that improvement?
     Did our new Medical and Vocational Expert System (MVES) 
enhance adjudicators' access to the medical and vocational expertise 
they need to make better decisions?
     Did the accuracy, timeliness, and consistency of decisions 
improve as a result of our new in-line and end-of-line quality 
initiatives?
    We intend to use our improved management information tools 
dynamically, resolving management problems as we find them, and making 
continuous improvements as the new process is rolled out.

Improvements in Policy

    We are undertaking a major effort to review, and update if 
necessary, our medical and vocational policies and to improve our 
capacity to identify and make needed changes in our disability policies 
and procedures.
    Medical Policy. As part of this effort, we have implemented a new 
business process to streamline the updating of our medical listings.
    In fiscal year 2005, we published revised medical criteria for 
malignant neoplastic diseases, impairments that affect multiple body 
systems, and genitourinary impairments. In addition, we provided timely 
cross-component training and guidance on these provisions. We also 
published an NPRM for vision impairments. We will continue to update 
additional medical listings throughout fiscal year 2006. For example, 
the final cardiovascular listing was published in January 2006.
    We have taken steps to increase outside participation in the 
development of our medical listings. As a first step, we now publish an 
advance

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NPRM to encourage members of the public to comment on the current 
medical criteria and to provide suggestions on how the medical criteria 
could be updated.
    In fiscal year 2005, we published advance notices involving 
impairments related to the respiratory and endocrine systems, growth 
impairments, and neurological impairments, as well as portions of the 
special senses (hearing impairments and disturbances of the 
labyrinthine-vestibular function). We also proposed the development of 
a new listing covering language and speech impairments.
    Following up on the advance notices, we have held numerous public 
outreach events. These sessions provide an opportunity for medical 
experts, claimants, and advocates to comment on our current policies 
and to advise us on the future content of the medical criteria.
    Vocational Policy. We are working to update and clarify our 
vocational policy to assist adjudicators in the field. We recently 
published a Social Security Ruling to communicate the Supreme Court's 
decision on how adjudicators should apply our rules when determining 
whether a claimant can return to his/her past relevant work. We are 
also building a comprehensive policy access tool, known as Disability 
Online, which will give our adjudicators electronic access to all 
vocational rules and training materials.
    Disability Program Policy Council. Recognizing the need for a more 
integrated approach in addressing policy issues, we are establishing a 
new Disability Program Policy Council (DPPC) that will be responsible 
for recommending changes in our disability policies and procedures to 
improve the quality of our disability determination process. This 
Council will be chaired by the Deputy Commissioner for Disability and 
Income Security Programs. It will include representatives from 
components that are responsible for policy and for the operations of 
the disability determination process, as well as the Office of Quality, 
the Office of the General Counsel, and the DRB. The Council will serve 
as a forum for making policy recommendations for consideration by the 
Commissioner.
    Electronic Disability Guide. In support of our eDib initiative, we 
have created an electronic disability guide (eDG) for use by 
adjudicators. This guide consolidates disability policies and 
procedures in one convenient place and serves as an instructional 
manual for processing disability claims as we transition from paper to 
an electronic environment. This electronic repository is also 
accessible to the public. It has proven to be extremely helpful when we 
discover policy or procedural weaknesses that arise with the conversion 
from our paper approach to our new electronic system. In such 
instances, we identify the problem, make necessary changes, and update 
our eDG repository accordingly so that they can be implemented 
immediately.

Our Work Opportunity Initiatives

    In addition to the above improvements in our infrastructure, we are 
implementing a number of initiatives designed to encourage and assist 
individuals to participate in employment opportunities.
    Our initiatives recognize that the DI and SSI programs serve a 
diverse population of individuals with disabilities. Our beneficiaries 
are from various age groups with different impairments, levels of 
education, work experience, and capacities for working. While many 
cannot work at all on a sustained basis, others may be able to work 
part time or full time with reasonable accommodations and/or ongoing 
supports. As we have been developing our return-to-work initiatives, we 
have been mindful that the unique needs of every beneficiary cannot be 
met by one return-to-work program. In conjunction with our plans to 
improve our disability determination process, we will be conducting a 
number of diverse demonstration projects aimed at helping individuals 
who want to work to do so. Our demonstration projects are as follows:
    DI Benefit Offset Demonstration Project. We are developing a 
benefit offset demonstration that will reduce DI benefits by $1 for 
every $2 earned over a certain threshold. Currently, a beneficiary 
could lose DI entitlement, and therefore all benefit payments, as soon 
as earnings exceed the substantial gainful activity level. This 
potential loss of benefits and eventually the corresponding access to 
Medicare benefits is thought to discourage many beneficiaries from 
attempting to work. We are working with a contractor on the design, 
implementation, and evaluation of the project. The contractor also will 
develop a model that will test an early intervention strategy focusing 
on DI benefit applicants. Enrollments in the national project are 
expected by the end of this year.
    At the same time, we are conducting a small DI benefit offset 
demonstration project in four States: Connecticut, Utah, Vermont, and 
Wisconsin. To date, approximately 200 beneficiaries are enrolled.
    Youth Transition Projects. We have cooperative agreements in six 
States for the purpose of assisting youths with disabilities to 
successfully transition from school, which may include post-secondary 
education, to employment and ultimately economic self-sufficiency. The 
States have formed partnerships with Federal, State, and local entities 
to improve employment outcomes for persons who are age 14-25 and who 
receive SSI or DI benefits on the basis of their own disability. The 
projects are providing a broad array of transition-related services and 
supports for these individuals.
    Accelerated Benefits. Under current law, there is a 24-month wait 
before Medicare is available to a person whom we determine to be 
disabled and eligible for DI. A contract was recently awarded to 
implement and evaluate the accelerated benefits demonstration project, 
which will provide immediate private health insurance to individuals 
who have medical impairments expected to improve within two to three 
years. Project participants will be recruited at the point that 
disability beneficiaries are informed of their benefit allowance. 
Participants will also be provided with employment supports with return 
to work as the goal at the end of the two to three-year time frame. At 
the end of the time frame, participants will be assessed to see whether 
they have medically improved. Enrollments are expected by the end of 
this year.
    Mental Health Treatment Study. We will provide comprehensive health 
care to DI beneficiaries who have schizophrenia or affective disorders. 
The purpose of this study is to determine what treatment and support 
variables for persons with mental illness lead to better employment 
outcomes. The project will use provider networks that offer a range of 
psychiatric, pharmaceutical, and employment supports. The project will 
provide an individualized, comprehensive care and support plan for each 
participant. Services will be provided in 21 nationally representative 
sites across the United States. We expect participants will be enrolled 
by summer 2006.
    Human Immunodeficiency Virus/Auto-Immune Disorder (HIV/AI) 
Demonstration. The HIV/AI demonstration will provide support services 
and private health benefits to current DI beneficiaries with a 
diagnosis of HIV, immune disorder, and/or auto-immune disorder. The 
purpose of this California-based demonstration is to provide immediate 
access to comprehensive health care services and resources required for 
a successful

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return to work. The health benefits will be designed to provide 
beneficiaries with HIV or other immune-related disorders with health 
coverage to ensure they receive necessary medical treatment for their 
impairments. Project participants will also receive employment service 
coordination. Each beneficiary enrolled will be assessed to determine 
the types of services and/or interventions needed for a sustained and 
successful return to work. An expert medical unit, comprised of medical 
specialists in the HIV/auto-immune field, will be established to 
provide expert guidance regarding issues relevant to this population.

Development of the New Disability Service Improvement Process

    We believe that the improvements described above will provide a 
strong underpinning for the successful operation of our new DSI 
process. The new process will apply to claims for DI benefits and for 
SSI payments based on disability or blindness.
    The new approach was presented to the Subcommittee on Social 
Security of the House Committee on Ways and Means in September 2003. As 
we discussed in the July 2005 NPRM, this initial presentation was 
followed by extensive discussions with all interested parties so that 
we could have the benefit of their views and recommendations in 
developing our new proposed rules. We met with hundreds of interested 
organizations, groups, and individuals, including Members of Congress 
and congressional staff; representatives of claimants and 
beneficiaries; organizations representing the legal and medical 
professions, including Federal judges; and organizations representing 
State and Federal employees who are engaged in the disability 
determination process. We also established an Internet site to provide 
additional access to individuals and organizations who wanted to submit 
their views and recommendations.
    As a result of this outreach effort, the July 27, 2005 NPRM 
included numerous improvements over our original proposal. During the 
90-day comment period after our NPRM was published, we received nearly 
900 new written comments from interested individuals and organizations. 
We have carefully read and considered each of them. They are available 
on our Web site, http://www.ssa.gov.
    The comments we received were detailed and insightful, and they 
have been extremely helpful to our deliberations. We deeply appreciate 
the extraordinary effort that was expended to help us make the 
decisions that are needed to bring about fundamental improvement in our 
disability process. The final rule that we are publishing today 
contains a number of changes from our NPRM and reflects the thoughtful 
input that the many individuals and organizations have provided. Below 
we discuss and respond to the significant comments; we have not 
addressed, however, most technical comments, those comments that are 
outside the scope of the NPRM, or those comments that do not otherwise 
require a response.

Summary of Differences Between the Proposed Rule and the Final Rule

Quick Disability Determinations

    The proposed rule stated that in order for a State DDS to make a 
quick disability determination, a medical or psychological expert must 
verify the claimant's diagnosis. The final rule clarifies this language 
by providing that the expert must ``verify that the medical evidence in 
the file is sufficient to determine'' that the claimant's impairments 
meet the standards we establish for making QDDs. The final rule 
provides further that if there is disagreement between the examiner and 
the expert as to whether a claim meets the QDD standards, the claim 
will not be allowed as a quick disability determination. Rather, it 
will be transferred out of the QDD unit to be processed by the DDS in 
the normal manner.
    The proposed rule established a 20-day processing standard for 
States to make QDDs, but did not address performance support for the 
States. The final rule keeps the 20-day processing standard but adds a 
provision stating that we may offer, or the State may request, 
performance support to assist a DDS in enhancing performance. If 
monitoring and review reveal that the processing standard is not met 
for one calendar quarter, we will provide mandatory performance support 
to a DDS. The preamble to the final rule also makes clear that we will 
not find that a State has substantially failed to meet our processing 
standard until the predictive model that is used to identify QDDs has 
been implemented and tested for one year. Thereafter, as new States 
begin implementation of the QDD process they will be given a six-month 
grace period before sanction provisions will be applied to them.
    The proposed rule stated that when we provide notice of the initial 
determination, we would inform the claimant of the right to review by a 
Federal reviewing official. The final rule adds that the notice will 
also explain that the claimant has the right to be represented.

Medical and Vocational Expertise

    The name of the expert system was changed in the final rule from 
Federal Expert Unit to Medical and Vocational Expert System (MVES). The 
rule clarifies the organizational structure to provide that the MVES 
will be comprised of a Medical and Vocational Expert Unit that will 
oversee a national network of medical, psychological, and vocational 
experts and will also maintain a national registry of vocational 
experts.
    The proposed rule stated that the expert system would provide 
assistance to adjudicators at all levels of the disability review 
process. The final rule does not provide for assistance from the MVES 
in reviewing a claim at the DRB level.
    The preamble to the proposed rule stated that we expect to issue 
qualification standards for experts on or before the issuance of a 
final rule, but that they would be published no later than six months 
after the effective date of the final rule. The preamble to the final 
rule states that we expect to issue initial qualification standards in 
the near future.

Federal Reviewing Official Level

    We added language to the final rule to make it clear that a 
claimant may submit additional evidence to the Federal reviewing 
official even if that evidence is not originally submitted by the 
claimant when the claimant requests review. In addition, we added 
language in the final rule to make clear that a claimant may request 
additional time to file a request for Federal reviewing official review 
before the 60-day period has ended as well as after it has ended.
    The proposed rule provided that a Federal reviewing official may 
remand a claim to the State DDS under specified circumstances. The 
final rule does not permit a Federal reviewing official to remand a 
claim to a State DDS but does permit the Federal reviewing official to 
ask the State agency to clarify or provide additional information about 
the basis for its determination. In such a situation, the Federal 
reviewing official retains the authority to make the decision as to 
whether a claimant is disabled.
    The proposed rule did not address subpoena authority at the Federal 
reviewing official level. The final rule adds subpoena authority and 
states that the Office of the General Counsel may seek enforcement of 
the subpoena.

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Administrative Law Judge Hearing Level

    The proposed rule stated that claimants must submit evidence no 
later than 20 days before a hearing. The final rule provides that 
claimants must submit evidence no later than five business days before 
the hearing. The proposed rule stated that there were only two 
exceptions to the 20-day limit and both had to be raised at the 
hearing. The final rule makes clear that the five-day limit is subject 
to several exceptions, depending on when the claimant attempts to 
submit the additional evidence and expands the range of circumstances 
under which an administrative law judge may accept and consider 
evidence that the claimant does not submit timely.
    The proposed rule stated that the administrative law judge must 
notify the claimant of the hearing date at least 45 days before the 
date of the hearing. The final rule states that the administrative law 
judge will notify the claimant of the time and place of the hearing at 
least 75 days before the date of the hearing.
    The proposed rule provided that claimants must submit all available 
evidence that supports the claim, even evidence that might undermine or 
appear contrary to the allegations. The final rule states that 
claimants must provide evidence, without redaction, showing how their 
impairments affect functioning during the time they say they are 
disabled.

Decision Review Board

    The final rule allows claimants whose claims are reviewed by the 
DRB to submit statements explaining why they agree or disagree with the 
administrative law judge's decision, regardless of whether the DRB 
requests the statement. The proposed rule provided that such statements 
may be no longer than three pages with typeface no smaller than 12 
point font. The final rule provides that such statements may be no 
longer than 2,000 words and, if typed, that the typeface must be 12 
point font or larger.

Reopening; Other Provisions

    The proposed rule revised the current reopening criteria that allow 
us to reopen a determination or decision within one year of the date of 
the notice of initial determination for any reason. The proposed rule 
also deleted new and material evidence as a basis for finding good 
cause to reopen. Under the final rule, our existing reopening rules 
continue to operate for all claims adjudicated prior to the hearing 
level. The final rule only makes changes at the post-administrative law 
judge decision level so that once a decision is issued, reopening for 
good cause is limited to six months. Under the final rule, ``new and 
material evidence'' is not a basis for finding good cause in such 
circumstances.
    The proposed rule stated that claimants may establish good cause 
for missing a deadline if they show that ``some other unusual and 
unavoidable circumstance'' beyond their control prevented timely 
filing. The final rule states that claimants can establish good cause 
for missing a deadline if they can show that ``some other unusual, 
unexpected, or unavoidable circumstance'' beyond their control 
prevented timely filing.
    The proposed rule provided that discrimination complaints must be 
filed by a claimant within 60 days of the date upon which the claimant 
becomes aware of the discrimination. The final rule changes the date by 
which a claimant must file a discrimination claim with us from 60 days 
to 180 days of the date upon which the claimant becomes aware of the 
discrimination.

Implementation

    The final rule changes this section by specifying that Boston is 
the first region for implementation and that we will wait at least one 
year after implementing in Boston before we implement in a second 
region. We added a provision to the final rule to address instances 
where a claimant moves from a region where DSI has been implemented to 
a region where it has not, and visa versa. In such situations, the 
claim will continue to be reviewed using the same procedures under 
which the claim was originally filed.
    The final rule adds language making it clear that throughout the 
period during which we are implementing these new rules across the 
country, the Appeals Council will continue to perform the non-
disability review functions and some of the other review functions that 
it currently performs (e.g., review of retirement and survivors 
insurance cases and overpayment waiver claims).

Overview of the New DSI Process

    In summary, the rule we are publishing today provides for the 
following:
     Individuals who are clearly disabled will have a process 
through which favorable determinations can be made within 20 calendar 
days after the date the DDS receives the claim.
     The Medical and Vocational Expert System will enhance the 
quality and availability of medical and vocational expertise that our 
adjudicators need to make accurate and timely decisions.
     A new position at the Federal level--the Federal reviewing 
official--will be established to review DDS initial determinations upon 
the request of the claimant.
     The right of claimants to request and be provided a de 
novo hearing conducted by an administrative law judge is preserved.
     The record will be closed after the administrative law 
judge issues a decision, with provision for good cause exceptions to 
this rule.
     A new body, the Decision Review Board, will be created to 
identify and correct decisional errors and to identify issues that may 
impede consistent adjudication at all levels of the process.
     The Appeals Council will be gradually phased out as the 
new process is implemented throughout the nation.
    This final rule contains a significant number of changes designed 
to provide the high quality of service that the public expects and 
deserves. In drafting this final rule, we understood that, although 
there was broad agreement on the need for change, numerous commenters 
perceived our proposed rule as favoring administrative efficiency over 
fairness. Our expectation is that the changes we are making will give 
claimants a meaningful opportunity to present their claim and at the 
same time provide them with more accurate, consistent, fair, and timely 
decisions. Our improvements are aimed at strengthening the disability 
determination process from beginning to end. If, as implementation 
proceeds, we find that further improvements are needed, we will make 
them.
    We also recognize that for various reasons many of our claimants 
need assistance in pursuing their claims, and we continually assist 
claimants throughout the claims process by:
     Obtaining information needed to support a claim;
     Arranging for a representative payee to assist in the 
development of the information for the claim and to administer the 
benefit payment, if a claimant is mentally incompetent;
     Providing extra assistance to the homeless to complete the 
proper forms and obtain evidence and an interpreter if the claimant has 
limited English proficiency, or is hearing impaired;
     Using the expedited procedures in place for terminal 
illness cases, military service casualties, severe impairment, and 
disaster cases;
     Explaining denial notices and how to file an appeal; and
     Referring claimants for services outside the scope of the 
Social Security

[[Page 16429]]

program using information and referral files that detail public and 
private agencies available in the service area to assist with housing, 
food, clothing, counseling, child care, medical needs, legal services, 
and other needs.
    DDSs and hearing offices also have the responsibility of helping 
claimants who need assistance in collecting medical evidence. They 
request evidence from treating sources and arrange and pay for 
consultative examinations when medical evidence from a treating source 
is unobtainable or incomplete. Some field offices also have special 
arrangements with hospitals and mental institutions to obtain medical 
evidence. We are currently working with medical sources to encourage 
the submission of evidence electronically whenever possible in order to 
expedite the decisional process. Special arrangements are in place to 
obtain both medical and non-medical records from large governmental 
agencies such as the Department of Veterans Affairs, the Military 
Personnel Records Center, and the Division of Vital Statistics. 
Additionally, in 2005 we sponsored a national training conference to 
help educate DDS employees on how best to secure electronic medical 
evidence (EME). We also recently hosted a national outreach conference 
for major providers of EME to help them gain familiarity with new 
options for submitting EME.
    As we roll out the new DSI process, we intend to continue and 
expand our efforts to ensure that all adjudicators make their 
disability determinations and decisions based upon a record that is as 
complete as possible. We intend to review and improve our informational 
services to claimants and to medical providers so that they will better 
understand what adjudicators need to make accurate determinations or 
decisions. As noted below, we also intend to develop requirements for 
training and certification of physicians who perform our consultative 
examinations to make certain that they understand our disability 
determination process and the information we need to make accurate 
determinations and decisions. We are developing templates that 
adjudicators will use when they request consultative examinations for 
common types of cases to ensure that the appropriate information is 
requested.
    We have also been developing decisional templates for use by 
adjudicators at the DDS, Federal reviewing official, and administrative 
law judge levels that will assist them in writing decisions. Each of 
these levels of adjudication will have a template that is appropriate 
for that level. We believe that the use of these templates will help to 
ensure that disability claims are properly developed and that decisions 
are legally sustainable and consistent with our policies. These 
templates are being developed and tested in close consultation with 
adjudicators in the field. All adjudicators will receive training in 
their use.

Initial Determination Level

Quick Disability Determinations (QDDs)

    We believe that many individuals who are clearly disabled are being 
required to wait too long to get DI or SSI payments based on disability 
or blindness. Therefore, as we proposed in our NPRM, this rule provides 
for establishing at the initial claims level a system for expediting 
fully favorable decisions for those individuals.
    A predictive model will identify claims that involve a high 
potential that the claimant is disabled and that evidence of the 
claimant's allegations can be easily and quickly obtained. Through the 
predictive model, selected claims will be automatically referred from 
the field office to a State QDD unit. This rule provides that any State 
that currently performs the disability determination function will be 
deemed to have given us notice that it wishes to perform the QDD 
function. In order to participate in the QDD process, however, each DDS 
must establish a separate QDD unit to process the QDD claims.
    Given the importance we assign to the QDD process, we believe that 
the DDS employees who are involved in making these decisions must be 
examiners who are experienced in making disability determinations. 
Several commenters opposed our decision to use experienced disability 
examiners for the QDD process. One commenter thought it would be a 
waste of resources, while another thought that we could use 
inexperienced examiners if we clearly delineated a set of conditions 
and symptoms that would establish disability. It was also suggested 
that this requirement might lead to a decline in the quality of cases 
that are not adjudicated by the QDD units. It is critical that QDDs be 
made both quickly and accurately. We intend that DDS administrators 
should use their considered judgment, assigning to the QDD unit those 
examiners who have demonstrated that they have the skills that are 
needed to meet our performance requirements. QDDs will be subject to 
both processing and quality standards, and it is important to us, to 
DDSs, and claimants that these standards be met.
    We understand the concern expressed by smaller DDSs that have 
limited numbers of staff and want flexibility to assign them to where 
they are most needed. We intend that they will have that flexibility. 
For example, if the DDS director determines that an examiner is needed 
only half-time to carry out the QDD assignment, the DDS examiner may be 
assigned to non-QDD work as well as to the QDD unit.
    The objective is to ensure that QDDs are processed by individuals 
with the knowledge, training, and experience to effectively carry out 
the QDD function and that they will be held accountable for performing 
this important task.
    This rule makes clear that a QDD will be made using a team approach 
involving sign-off by both an examiner and a medical expert. The 
medical expert may be employed by or under contract with the DDS, or be 
part of the national network of medical experts that we maintain. The 
role of the expert will be to verify that the medical evidence that has 
been provided is sufficient to determine that a claim meets the 
standards relating to a claimant's medical condition established by us 
for making a QDD. If there is disagreement between the examiner and the 
expert as to whether a claim meets our QDD standards, the claim will 
not be allowed. Instead, it will be transferred out of the QDD unit to 
be processed by the DDS according to the date the claim originally was 
received by the QDD unit so that there will be no delay in making a 
determination regarding those claims.
    This rule requires that the DDS meet timeliness standards for 
processing QDDs in order to retain their QDD adjudication 
responsibilities. We provide that QDD units must make favorable 
determinations for those who meet our QDD criteria within 20 calendar 
days after they receive a claim from the field office. (We also plan to 
carry out expedited pre-effectuation reviews of some of these 
determinations within this 20-day period.) If the QDD unit determines 
that a fully favorable determination cannot be made within 20 days of 
receiving the claim or if there is disagreement between the disability 
examiner and the medical or psychological expert, the DDS will transfer 
the claim out of the QDD unit and adjudicate it using its regular claim 
determination procedures.
    One commenter indicated that the proposed regulation was not clear 
as to whether the 20-day restriction means 20 working days or 20 
calendar days. The rule clearly defines ``day'' to mean calendar day, 
unless otherwise indicated. Thus, the 20-day time frame

[[Page 16430]]

for a QDD includes all weekends and holidays.
    We will monitor the performance of the QDD units to ensure that 
these claims are being processed in conformance with our regulations. 
As with other claims, QDDs will be subject to quality review by the 
Office of Quality. We will also review claims that are transferred out 
of the QDD unit for regular adjudication to ascertain that these 
transfers are being made appropriately.
    We will be issuing administrative guidance to the States which will 
further explain how we expect DDSs to carry out these requirements and 
the flexibility that they will be given to ensure that they can perform 
as required.
    We anticipate that the number of QDD claims will initially be 
relatively small. As we gain experience with the new QDD system, we 
expect that the number and characteristics of claims that are 
identified as potential QDDs will gradually increase.
    The predictive model that we will use to identify potential QDD 
claims will score claims by taking into account such factors as medical 
history, treatment protocols, and medical signs and findings. As noted 
above, those claims with scores that indicate a high likelihood of a 
quick allowance will be referred to a QDD unit.
    We intend to carefully test the QDD predictive model to ensure its 
efficacy and integrity before we will implement the provision in this 
rule that requires a DDS to meet our processing requirements or be 
subject to sanction. In addition, this rule provides for performance 
support at any time that the regular monitoring and review process 
reveals that support could enhance performance. However, if for two or 
more consecutive calendar quarters a State agency falls below our 20-
day QDD processing standard without good cause, we will notify the 
State agency that we propose to find that it has substantially failed 
to comply with our standards. After notice and opportunity for a 
hearing, if it is found that a State agency has substantially failed to 
meet our standards, we will assume responsibility for performing the 
QDD function. However, we will not make this finding with respect to 
any State agency until the model has been initially implemented and 
tested for one year. Additionally, as new States begin implementation 
of the QDD process they will be given a six-month grace period before 
our sanction provisions will be applied to them.
    This rule provides that we will not impose sanctions if we 
determine that a State agency's failure to meet our requirements is the 
result of: a natural disaster that affects the agency's ability to 
carry out its work; strikes of State agency staff or other government 
or private personnel necessary to the performance of the disability 
determination function; or sudden and unanticipated workload changes 
that result from changes in Federal law, regulations, or written 
guidelines, systems modification or systems malfunctions, or rapid, 
unpredictable caseload growth for a six-month period or longer.
    We intend to process presumptive disability and terminally ill 
cases under current procedures.

Requirements for DDS Determination Notices

    This rule requires that DDS notices sent to claimants will explain 
in clear and understandable language the specific reasons for and the 
effect of the initial determination. Claimants must also be informed of 
the right to review by a Federal reviewing official and their right to 
representation. We believe that better articulation of the reasons for 
the determination will result in more accurate decisions and will 
assist in any further adjudication by a Federal reviewing official, an 
administrative law judge, or the DRB.

Response to Public Comments About Initial Determinations Including QDDs

    While many commenters voiced broad support for the QDD process 
generally, some had questions about how it would operate. We have 
clarified that DDSs will adjudicate QDDs, using the same definition and 
procedural rules as are applied to all other initial determinations. 
Some comments suggested that State adjudicators should have the power 
to make determinations without the use of a medical or psychological 
expert. We are making clear that QDDs will require sign-off by both a 
disability examiner and a medical expert, reflecting our decision to 
maintain a team approach. Other comments revealed confusion regarding 
the role of the expert in making a QDD, and for clarity we have revised 
the rule. Instead of indicating that the expert will be used to verify 
a claimant's diagnosis, our final rule states that the expert will 
verify that the medical evidence in the file is sufficient to determine 
that as of the claimant's alleged onset date, the claimant's 
impairment(s) meets the standards we establish.
    A number of commenters supported, but provided suggestions 
regarding, our proposal to use a predictive model software tool to 
identify claims for processing by the QDD units. Additionally, several 
commenters asked us to provide a list of conditions that would be 
identified by the predictive model. The predictive model will not 
necessarily identify specific conditions. Instead, as described above, 
it will consider a variety of factors, including medical history, 
treatment protocols, and medical signs and findings.
    Some commenters suggested that implementation of the new process be 
delayed until the predictive model software is fully tested and one 
commenter stated that we should not require that State agencies 
establish separate QDD units until we have sufficient data and workload 
estimates. We have decided not to postpone implementation of the QDD 
because we believe the new, expedited process will be of such great 
benefit to many claimants. However, as noted above, we do have a 
careful rollout plan that should alleviate any concerns. Finally, we 
had invited comments on whether to accelerate the rollout of the QDD 
process and we received only one comment on the issue. We will continue 
to examine the issue of the manner in which the QDD process should be 
rolled out.
    We agree with those commenters who recommended that we give State 
agencies input as we complete the development of the predictive model 
screening software. In fact, the QDD predictive model will be based 
upon the analysis of actual DDS determination data: nearly two million 
initial DDS determinations were analyzed to determine factors which 
consistently resulted in quick allowances.
    A number of commenters thought that the 20-day time period in which 
to make a QDD was impractical because it would be difficult for some 
applicants, especially individuals with low incomes or those who are 
homeless and have little or no medical care, to obtain necessary 
documentation in that time frame. Claimants will not have an unusual 
burden to obtain medical evidence under the QDD process. In fact, 
because the predictive model is designed to identify those applicants 
with obvious, severe, disabling conditions that do not require an 
assessment of residual functional capacity, it is likely that the 
available or readily obtainable medical records of individuals whose 
cases have been selected for the QDD process will be sufficient.
    Given the difficulty and complexity of implementing this proposal, 
we will not implement suggestions by other commenters to have pre-
determination contact, either face-to-face or via video

[[Page 16431]]

teleconference, with the State agency. As noted elsewhere in this 
preamble, however, we do regard as a high priority the adequate 
development of the evidence so that our adjudicators can make accurate 
determinations and decisions and we are including in this rule a number 
of requirements that we believe will help to achieve this objective. In 
addition, claimants will retain the right to a face-to-face hearing 
before an administrative law judge.
    Additionally, although the comments revealed some confusion 
regarding the public availability of any expert opinions we receive 
during the initial determination process, we intend that all expert 
evidence will be made part of the record to assist both the claimant 
and our adjudicators with any further review.
    Commenters disagreed about whether a standardized decision-writing 
format should be utilized for QDDs or whether a detailed rationale is 
necessary for initial determination notices. We believe that better 
articulation of the reasons for the determination is central to more 
accurate decisions and will assist in any further adjudication by 
Federal reviewing officials, administrative law judges, or the DRB. 
Accordingly, we are developing and intend to use standardized decision-
writing formats at each level of adjudication, including QDDs. We 
agreed with the suggestion that our initial determination notices 
should include information regarding a claimant's right to 
representation, and, as noted above, we have revised Sec.  405.115 to 
state this requirement.
    Several commenters opposed Sec.  405.835, under which we would 
notify the State agency that it has failed to comply with our QDD 
standards, and suggested that we provide technical assistance to the 
State agency before we propose to take action. We agree and have 
changed the rules to provide for mandatory and optional technical 
assistance to State agencies. As explained above, we also intend to 
test thoroughly the QDD predictive model before implementing our 
sanction provisions. State agencies will be given a grace period before 
any sanctions will be applied to them.

Enhanced Medical and Vocational Expertise

Description of the Medical and Vocational Expert System (MVES)

    We believe that the quality of the disability determination process 
at all levels of adjudication will be significantly enhanced if we 
provide adjudicators with the medical, psychological, and vocational 
expertise they need to make accurate and consistent decisions. We have 
studied the approaches used by other entities that must make these 
complex decisions, including those in the private sector. We have also 
sought the advice of the Institute of Medicine (IOM), National Academy 
of Sciences. The IOM established a Committee on Improving the 
Disability Process in January 2005 and published an interim report with 
recommendations to us in December 2005.
    We have heard broad agreement on the part of persons both within 
our Agency and without, that the expertise needed by our disability 
adjudicators is currently not available at all levels of the process or 
in all parts of the country. We have therefore determined that we need 
to make major changes both in our institutional arrangements and 
procedures. The changes we are making in this rule are based on careful 
study and analysis of our needs.
    While many disability impairments may be properly evaluated by 
medical generalists, claims that involve difficult or complex issues 
require medical specialist or subspecialist expertise. We therefore 
provide in this rule for the establishment of an MVES, which will 
provide the expert assistance that adjudicators need to render 
disability determinations and decisions that are accurate, consistent, 
and fair. The MVES will be composed of a Medical and Vocational Expert 
Unit (MVEU) and a national network of medical, psychological, and 
vocational experts who meet qualification standards required by the 
Commissioner. After we establish qualification standards for vocational 
experts, the MVEU will maintain a separate registry of vocational 
experts who meet those standards which will be available for use by 
DDSs.
    The MVEU will be staffed by individuals who will be able to advise 
adjudicators on the nature of the expertise that they may need and to 
arrange for the provision of that expertise. It will develop and 
oversee a national network of medical and psychological experts who 
will be available to advise on complex medical issues, and it will 
arrange for consultative examinations that are requested by Federal 
reviewing officials and administrative law judges. Federal reviewing 
officials and administrative law judges who request the assistance of a 
medical, psychological, or vocational expert must do so through the 
MVEU. When the MVEU arranges for medical, psychological, or vocational 
expertise needed by Federal reviewing officials and administrative law 
judges, it will do so on a rotational basis, ensuring that the expert 
has not been involved in the claim at a prior level of adjudication.
    We are currently reviewing the IOM's interim report and expect to 
issue our initial qualification standards within the near future. We 
anticipate that over time we will establish additional qualification 
standards that experts will be required to meet in order to participate 
in the adjudication of claims involving those impairments that require 
special expertise. These qualification standards for specialists and 
subspecialists will apply to medical expert participation at all levels 
of the adjudication process, including DDSs, Federal reviewing 
officials, and administrative law judges. Experts who are employed by a 
State agency will have to meet qualification standards established by 
us no later than one year after the date such standards are published. 
Thereafter, we will neither accept a medical sign-off from an expert 
who does not meet applicable qualification standards nor reimburse 
State agencies for the costs associated with work performed on our 
behalf by such experts.
    Our plan is to develop a network capable of serving adjudicators 
throughout the country. Our electronic record will enable experts to 
examine case records regardless of the location of the claimant or the 
expert. We will establish safeguards to keep such information secure. 
Medical experts will be drawn from various sources, including medical 
schools and academic clinical research centers that focus on conditions 
that are difficult to evaluate. DDS physicians and psychologists who 
meet our standards will also qualify for service with the network. 
Medical, psychological, and vocational experts who are in the network 
will be compensated according to a fee schedule that we establish for 
services arranged by the MVEU.
    In summary, this rule provides for use of the MVES by DDSs and by 
Federal reviewing officials and administrative law judges as follows:
    If the DDS does not have a medical or psychological expert who 
meets our qualification standards, once they are established, for 
adjudicating a claim involving a specific impairment, the MVES will 
provide such an expert. If the DDS otherwise requests the assistance of 
a medical or psychological expert, the MVES will, to the extent 
practicable, provide such assistance. After standards for vocational 
experts are established, the DDSs may use the national registry of 
vocational experts maintained by the MVEU.

[[Page 16432]]

    The Federal reviewing official must consult with an MVES medical or 
psychological expert (1) if the claim involves new medical evidence or 
(2) if the Federal reviewing official disagrees with the DDS 
determination.
    Both Federal reviewing officials and administrative law judges may 
request evidence from a claimant's treating source, including 
requesting a treating physician to conduct a consultative examination. 
However, if they need additional medical, psychological, or vocational 
documentary or testimonial evidence to adjudicate a claim, they must 
use the MVES.
    We are currently studying the recommendation by the IOM Committee 
that we should encourage the use of licensed medical personnel other 
than physicians or psychologists in appropriate cases, such as 
occupational therapists, physical therapists, registered nurses, and 
psychiatric social workers.
    As noted above, a national registry of vocational experts will also 
be maintained by the MVEU. The Commissioner will issue qualification 
standards for participation in the registry. DDSs may arrange for 
vocational services by individuals on the registry and will be 
responsible for payment.
    The IOM Committee also expressed the view that fuller case 
development at the front end of the process should reduce the impetus 
for appeal, reduce the number of reversals on appeal, and shorten the 
average length of time before reaching final adjudication. The 
Committee made recommendations for strengthening claim development, 
beginning at the DDS level.
    We believe there are a number of steps that we should take as 
quickly as possible. We agree with the IOM Committee that fully 
performing the DDS medical consultant role requires mastery of three 
domains of knowledge. Medical consultants must be experts in their 
medical field (e.g., cardiology and orthopedics); they need to 
understand how to evaluate disability; and they must be knowledgeable 
about SSA's policies and procedures. We believe that a nationally 
standardized training program for medical experts who are part of the 
national network will improve both the accuracy and consistency of our 
disability determinations. To achieve that objective, we intend to 
develop a program to provide both initial and ongoing training that all 
medical consultants and experts will attend. This training will 
concentrate on the second and third domains cited above.
    We also intend to develop requirements for training and 
certification of physicians who perform our consultative examinations. 
The IOM report recommends that consultative examiner training should 
focus on two competencies: (1) Evaluation of limitations on ability to 
work resulting from impairments; and (2) evidentiary and other 
requirements of our disability decision-making process. As another step 
in improving our consultative examination process, we are developing 
templates that adjudicators will use when they request consultative 
examinations for common types of cases to help ensure that the 
appropriate information is requested. In addition, we expect to develop 
qualification standards that consultative examiners must meet in order 
to perform consultative examinations in the case of impairments that 
require special expertise.
    Recognizing the need of the DDSs for improved vocational expertise, 
we are also planning a standardized national training program for DDS 
personnel so that they will be better able to adjudicate claims that 
involve vocational issues. DDSs may also use the national registry of 
vocational experts that is maintained by the MVEU if they need 
expertise that is not otherwise available to them regarding vocational 
issues.
    We will be consulting closely with adjudicators throughout the 
disability process as we move forward with these efforts.

Response to Public Comments About Enhanced Medical and Vocational 
Expertise

    Many commenters supported our plan to establish a Federal Expert 
Unit with medical and psychological experts who have needed 
specialties. Some commenters raised concerns about our plan to use a 
centralized Federal Expert Unit. These commenters pointed out that 
having experts in only one part of the country would not be useful 
because the experts would not know how medicine is practiced in another 
part of the country. One commenter recommended that we continue to rely 
on ``generalist'' medical consultants in the State agencies, but 
supplement their expertise with regionally-based Federal Expert Units.
    We expect that, through the network, we will be able to draw from 
expertise throughout the country. It is not necessary that medical 
experts are licensed to practice in the State in which a claimant lives 
or receives medical treatment. Our experience with the Federal 
Disability Determination Services, which handles DDS cases from around 
the nation, also indicates that the lack of familiarity with local 
medical practice is not a barrier to providing the needed medical 
expertise. Using a national network will allow us to use such expertise 
in cases regardless of their location. One commenter suggested that we 
test the use of the national network and the expert unit. As described 
in the implementation section of this preamble, we will be rolling out 
the DSI process, including the implementation of the MVES, on a gradual 
basis. We intend to monitor its use and effectiveness carefully and to 
make improvements as needed.
    Some commenters asked about the provision in proposed Sec.  405.15 
which states that experts who are called by the claimant ``and that the 
administrative law judge approves'' are not required to be affiliated 
with the national network. The commenters asked what we intended by 
this provision and whether it would be used to suppress evidence from 
claimants' experts. We have removed that language, but under this rule, 
an adjudicator would not exclude evidence from a claimant's physician 
or reject the opinion of a claimant's physician because he/she is not a 
member of the network. The evidence would be admissible and if it is 
opinion evidence, must be evaluated under our evaluation-of-opinion-
evidence rules at 20 CFR 404.1527 and 416.927.

Federal Reviewing Official Level

Description of Federal Reviewing Official Level

    For many years there has been a perception that initial 
determinations of disability are not being made in a consistent manner. 
We believe that confidence in decision-making can be significantly 
enhanced by establishing a new Federal position--the Federal reviewing 
official--to review initial determinations upon the request of a 
claimant. A major objective of using Federal reviewing officials to 
review disability claims is to ensure to the maximum extent possible 
the accuracy and consistency--and thus the fairness--of determinations 
made at the front end of the process.
    The Federal reviewing official position will be centrally managed. 
The comments were split in favor of and against our proposal to hire 
attorneys for this position. As proposed in our NPRM, we intend to hire 
attorneys to serve as Federal reviewing officials. We believe that 
attorneys are ideally suited to perform certain activities that are 
essential to the Federal reviewing official function, including careful

[[Page 16433]]

development and documentation of the evidence and the drafting of a 
legally sound decision.
    We received many comments on the Federal reviewing official's role 
in developing the evidentiary record. The comments ranged from 
recommending that the Federal reviewing official assist claimants in 
obtaining all available evidence to recommending that the Federal 
reviewing official have authority to subpoena records from 
uncooperative medical providers. We are committed to giving the Federal 
reviewing official both the responsibility and the resources to assure 
that a claimant's record is adequately developed. To further this 
objective, we are giving the Federal reviewing official specific 
authority to issue a subpoena if an evidentiary source is uncooperative 
in responding to a request for evidence.
    We plan to employ highly qualified individuals who are thoroughly 
trained in the policies and procedures of our disability programs. 
Federal reviewing officials will be able to affirm, deny, or modify the 
initial determination. If, in reviewing a claim, the Federal reviewing 
official determines that additional medical evidence is necessary, the 
Agency may obtain such evidence from other sources, including from the 
State agency or a treating source. The Federal reviewing official may 
ask the State agency to clarify or to provide additional information 
about the basis for its determination. In such circumstances, the 
Federal reviewing official will retain the authority to make the 
decision as to whether you are disabled.
    This rule specifies that the Federal reviewing official will 
consult with an MVES medical expert in cases involving medical evidence 
that was not considered by the DDS. The Federal reviewing official will 
also consult with an MVES medical expert before issuing a decision that 
disagrees with the DDS determination. After consultation, the Federal 
reviewing official will issue a decision as to whether a claimant is 
disabled under our rules. To ensure decisional objectivity, any medical 
expert used by the Federal reviewing official for these purposes must 
not have been involved in the DDS initial determination.
    Some commenters believed that under the proposed rules, the Federal 
reviewing official did not need to consider new medical evidence unless 
the claimant submitted it at the time that he/she requested review. 
This is incorrect. In making a decision, the Federal reviewing official 
will consider evidence submitted by the claimant, even if not submitted 
with the request for review, as well as any other evidence that the 
Federal reviewing official obtains. The Federal reviewing official may 
order a consultative examination if the Federal reviewing official 
determines that this is necessary. This rule provides that a claimant 
should submit additional evidence (evidence obtained since the prior 
decision) when making the request for review by the Federal reviewing 
official, but may submit evidence up to the date the Federal reviewing 
official issues a decision.
    The Federal reviewing official will make a decision based on the 
developed record. Although several commenters suggested that Federal 
reviewing officials conduct hearings, we decided that in the interests 
of efficiency claimants will not be given a hearing before the Federal 
reviewing official.
    The Federal reviewing official's decision will explain in clear and 
understandable language the specific reasons for the decision, 
including an explanation as to why the Federal reviewing official 
agrees or disagrees with the rationale articulated in the initial 
determination. We believe that this requirement will provide a clearer 
understanding of why the claimant is or is not disabled under our 
rules. The decision will be sent to the State agency that made the 
determination, thereby providing feedback to DDS adjudicators and 
managers.
    The Federal reviewing official will mail a written notice of his/
her decision to the claimant at the claimant's last known address. The 
notice will also inform the claimant of his/her right to a hearing 
before an administrative law judge.
    In our NPRM we provided that, if a claimant does not request review 
of an initial determination timely (within 60 days after receiving 
notice of the initial denial), the claimant may ask for more time to 
request review. In response to a commenter's recommendation, this rule 
clarifies that a claimant may request an extension of time both before 
and after the 60-day period has elapsed.
    We intend to address performance requirements for the Federal 
reviewing official position when we announce our plan for a new quality 
system. Two commenters recommended that we include performance 
standards for Federal reviewing officials like those the State agencies 
must meet under the current reconsideration process. We are developing 
performance standards for Federal reviewing officials but have not 
included them in this rule. We also intend that Federal reviewing 
official decisions will be subject to both in-line and end-of-line 
review, including pre-effectuation review by the Office of Quality.

Response to Public Comments About Federal Reviewing Official Level

    Some commenters objected to the creation of the Federal reviewing 
official position because they believed that this administrative step 
would cause delays. Others expressed concern based on their experience 
with other models of pre-hearing review that have been tested by the 
Agency. They suggested we impose a limit on the time a Federal 
reviewing official has to make a decision. We believe that the benefit 
from review by a Federal reviewing official will far outweigh the time 
that this administrative step will take because we expect Federal 
reviewing officials will work to create a complete record and will 
explain fully the rationale underlying their decisions. In addition, we 
wanted to ensure that claimants retain the right to two levels of 
Federal review. Further, claims may be selected for review by the DRB.
    We also received comments concerning the particular evidence the 
claimant must submit to the Federal reviewing official. We wish to 
emphasize that we are not requiring the claimant to submit any 
particular evidence to the Federal reviewing official. Section 
405.210(a) requires only that the request for review be in writing and 
lists several items that ``should'' be included in a request for 
review. Nevertheless, in response to these comments, we have revised 
the section to clarify that the claimant should, but is not required 
to, specify reasons why he/she disagrees with the initial 
determination.
    Some commenters questioned what we meant by ``available'' in the 
request to submit available evidence along with the request for Federal 
reviewing official review in Sec.  405.210(a)(4) (and in Sec.  405.310 
at the administrative law judge level). We believe that it is 
sufficiently clear and that our rule will encourage claimants to 
present evidence to us as early as possible.
    We received a number of comments expressing concern that the 
proposed rule did not sufficiently describe the circumstances under 
which a Federal reviewing official can remand the case to the State 
agency. We have revised the rule and deleted the Federal reviewing 
official authority to remand a case back to the State agency. If the 
Federal reviewing official determines that additional information from 
the State agency is necessary, we may ask the State agency to clarify 
or provide additional information about the basis

[[Page 16434]]

for its determination. Under these circumstances, the Federal reviewing 
official will retain authority over the claim.
    We received a comment recommending that the Federal reviewing 
official be allowed to dismiss a request for review in the event that 
the claimant withdraws the request for review, is not entitled to 
review, or requests review in an untimely manner and cannot demonstrate 
good cause for late filing. We have decided not to give the Federal 
reviewing official dismissal authority. Rather, under the circumstances 
mentioned above, the field office will retain the authority to dismiss 
the request for review.
    One comment suggested that we not call the Federal reviewing 
official's work product a ``decision.'' The commenter believed the use 
of the term ``decision'' at the Federal reviewing official level could 
undermine the separate and independent status of the administrative law 
judge's decision and confuse claimants. We have decided to continue 
calling the Federal reviewing official's work product a decision. The 
Federal reviewing official level is a level of Federal review. 
Accordingly, we believe that it is appropriate to call the work product 
a decision. The rule makes clear that the Federal reviewing official's 
decision is not evidence; thus, we do not believe that there is any 
undermining of the separate and independent status of the 
administrative law judge's decision-making authority.
    We received a number of comments suggesting that a claimant not be 
required to separately request a hearing if the claimant is 
dissatisfied with the Federal reviewing official's decision, but 
instead allow an automatic appeal. Under usual administrative 
adjudication processes, an administrative agency's determination is 
final unless the claimant timely requests further review. We believe 
that allowing an automatic appeal to the administrative law judge or 
making the Federal reviewing official's decision only a recommended 
decision would run counter to the normal administrative adjudication 
process. Additionally, the hearing before an administrative law judge 
is de novo, which allows the administrative law judge to consider the 
matter anew, as if no determination had previously been made. We 
believe that allowing an automatic appeal or making the Federal 
reviewing official's decision a recommended decision would 
inappropriately tie the hearing to the proceedings and decision that 
went before.
    We also received comments concerning the Federal reviewing 
official's role in increasing the quality and consistency of the State 
agency determinations. One commenter recommended that the Federal 
reviewing official review a random sample of all favorable State agency 
determinations, and one commenter believed that the Federal reviewing 
official should function in a manner similar to the current Disability 
Quality Branches, which review determinations by the State agencies. 
The Federal reviewing official is not a quality reviewer for the State 
agencies, so we have decided not to require random reviews of State 
agency determinations by Federal reviewing officials. However, as 
already noted, Federal reviewing official decisions will be sent to the 
State agency that made the initial determination to provide qualitative 
feedback to the DDS. In addition, under the Agency's new quality 
system, both DDS allowances and denials will be subject to quality 
review.

Administrative Law Judge Hearing Level

Description of Administrative Law Judge Hearing Level

    This rule preserves a claimant's right to a de novo hearing before 
an administrative law judge if the claimant disagrees with the decision 
of the Federal reviewing official.
    We are, however, changing some of the procedures to improve the 
disability decision-making process at the hearing level. For example, 
in order to improve timeliness, we are revising the rule that addresses 
the time frames for submitting evidence to the administrative law 
judge. Our current rule states that, if possible, a claimant should 
submit the evidence, or a summary of the evidence, within 10 days after 
filing the request for a hearing. In many cases, however, claimants 
submit evidence to us well after that time frame.
    Our program experience has convinced us that the late submission of 
evidence to the administrative law judge significantly impedes our 
ability to issue hearing decisions in a timely manner. When new and 
voluminous medical evidence is presented at the hearing or shortly 
before, the administrative law judge does not have the time needed to 
review and consider that evidence. We often must reschedule the 
hearing, which not only delays the decision on that claim, but also 
delays other claimants' hearings.
    To improve the timeliness of our hearing process and to ensure 
appropriate consideration of all claims, we are setting as an 
administrative goal that within 90 days of the date we receive a 
hearing request, the administrative law judge will establish the time 
and place for the hearing. In response to comments that Agency goals 
should not be made a part of the rule, we removed this 90-day goal from 
the rule, but are retaining it as an administrative goal. This 90-day 
time frame does not provide the claimant with a substantive right to 
have the hearing date established within this period. However, by 
setting this administrative goal we are stressing to our hearing 
offices and administrative law judges our commitment to providing 
timely service.
    To ensure claimants have adequate time in which to prepare for the 
hearing, this rule requires administrative law judges to notify a 
claimant of the time and place of the hearing at least 75 days before 
the date of the hearing, unless the claimant agrees to a shorter notice 
period.
    This rule provides that if a claimant objects to the time or place 
of the hearing, the claimant should notify the administrative law judge 
in writing as soon as possible after receiving the notice of hearing, 
but no later than 30 days after receiving the notice. If the claimant 
objects to the issues to be decided at the hearing, the claimant will 
be required to notify the administrative law judge in writing at least 
five business days prior to the hearing date.
    Claimants will be encouraged to submit evidence as soon as possible 
after they file their request for a hearing. They will be required to 
submit all of the evidence to be relied upon in a case no later than 
five business days before the hearing. This is a reasonable deadline 
given that we also require the administrative law judge to notify the 
claimant of the hearing date at least 75 days before the hearing. It 
will ensure that the administrative law judge and any medical or 
vocational expert or other individual who will be participating in the 
hearing will have time to review the record before the hearing in order 
to adequately prepare for the hearing, and that the hearing will not 
have to be postponed.
    The five-day time limit for submitting evidence is subject to 
exceptions, depending on when the claimant attempts to submit 
additional evidence. If the claimant requests to submit evidence within 
the five-day time limit before the hearing takes place, the 
administrative law judge will accept and consider the evidence if:
    1. Our action misled the claimant;
    2. The claimant had a physical, mental, educational, or linguistic 
limitation(s) that prevented him from submitting the evidence earlier; 
or

[[Page 16435]]

    3. Some other unusual, unexpected, or unavoidable circumstance 
beyond the claimant's control prevented the claimant from submitting 
the evidence earlier.
    If the claimant requests to submit evidence after the hearing but 
before the hearing decision is issued, the administrative law judge 
will accept and consider the evidence if the claimant makes one of 
these three showings and there is a reasonable possibility that the 
evidence would affect the outcome of the claim.
    Our rule provides that when a claimant files a written request for 
a hearing, the claimant should include in the request his/her name and 
social security number, the specific reasons why the claimant disagrees 
with the Federal reviewing official's decision, a statement of the 
medically determinable impairment(s) that the claimant believes 
prevents him/her from working, any evidence that is available to the 
claimant, and the name and address of the claimant's representative, if 
any.
    At any time before the hearing begins, a claimant may submit, or 
the administrative law judge may request the claimant to submit, a 
prehearing statement as to why the claimant is disabled. This statement 
should discuss briefly: (1) The issues involved in the proceeding, (2) 
facts, (3) witnesses, (4) the evidentiary and legal basis upon which 
the claim can be approved, and (5) any other comments, suggestions, or 
information that might assist in preparing for the hearing.
    Also before the hearing, the administrative law judge may decide on 
his/her own initiative or at the claimant's request to conduct a 
prehearing conference if the administrative law judge believes that 
such a conference would facilitate the hearing or the decision in a 
claim. This rule provides that these conferences will normally be held 
by telephone unless the administrative law judge decides that it would 
be more efficient and effective to conduct the prehearing conference in 
a different manner. During these conferences, the administrative law 
judge will consider matters that may expedite the hearing, such as 
simplifying or amending issues or obtaining and submitting evidence. 
The administrative law judge will have a record made of the prehearing 
conference and will either summarize the actions taken as a result of 
the conference in writing or make a statement in the record summarizing 
them during the hearing. The rule also states that if neither the 
claimant nor the representative appears for the prehearing conference 
and there is not a good reason for the failure to appear, the 
claimant's hearing request might be dismissed.
    The purpose of these provisions is to ensure that each claimant's 
hearing is as fair, timely, and comprehensive as possible. Both 
claimants and the Agency have the responsibility to work toward this 
objective.
    This rule also provides that when setting the time and place of the 
hearing, the administrative law judge will determine whether the 
claimant and any other person will appear at the hearing in person, 
which for experts would include by telephone as is our current 
practice, or by video teleconference. As we explained in 2003 when we 
published the final rule on video hearings, we believe that the ability 
to conduct hearings via video teleconference provides us with greater 
flexibility in scheduling and holding hearings, improves hearing 
process efficiency, and extends another service delivery option to 
individuals requesting a hearing. Greater efficiency is accomplished 
through savings in administrative law judge travel time, faster case 
processing, and higher ratios of hearings held to hearings scheduled.
    Our rule provides that unless a claimant objects to appearing at a 
hearing by video teleconference, the administrative law judge will 
direct that a person's appearance be conducted by video teleconference: 
(1) If video teleconferencing is available, (2) if use of the 
technology would be more efficient than conducting an examination of a 
witness in person, and (3) if the administrative law judge does not 
determine that there is another reason why a video hearing should not 
be conducted. If a claimant objects to appearing by video 
teleconference, the claimant's hearing will be rescheduled so that the 
claimant can appear in person before the administrative law judge. 
However, if the claimant objects to having any other person appear by 
video teleconference, the administrative law judge will decide whether 
that person should appear in person or by video teleconference.
    The claimant may request, or the administrative law judge may 
decide, to hold a posthearing conference to facilitate the hearing 
decision. The conference will normally be held by telephone. If neither 
the claimant nor the representative appears at the posthearing 
conference and there is not a good reason for failing to appear, the 
administrative law judge will make a decision based on the hearing 
record.
    In addition to these above provisions, this final rule specifies 
that the administrative law judge will retain discretion at the time of 
the hearing to hold the record open for the submission of additional 
evidence. If a claimant is aware of any additional evidence that the 
claimant was unable to obtain and submit before or at the hearing, or 
if the claimant is scheduled to undergo additional medical evaluation 
after the hearing for any impairment that forms the basis of the claim, 
the claimant should inform the administrative law judge of the 
circumstances during the hearing. If the claimant requests additional 
time to submit the evidence, the administrative law judge may exercise 
discretion and choose to keep the record open for a defined period of 
time to give the claimant the opportunity to obtain and submit the 
additional evidence. Once the additional evidence is received, the 
administrative law judge will close the record and issue a decision.
    One of our major goals in promulgating this rule is to improve the 
quality of decision-making at all levels of our adjudicatory process. 
As discussed above, one of the new features of this process is the use 
of a Federal reviewing official who, upon the request of a claimant, 
will review the State agency's initial determination and make a 
decision on the claim. To help improve the quality of State agency 
determinations, we are requiring the Federal reviewing official to 
explain in the decision why he/she agrees or disagrees with the 
rationale in the State agency's determination.
    We are including a similar rule at the hearing level. Under the 
rule, the administrative law judge's decision will explain in clear and 
understandable language the specific reasons for the decision. While 
the administrative law judge will not consider the Federal reviewing 
official's decision to be evidence, the written decision will explain 
in detail why the administrative law judge agrees or disagrees with the 
substantive findings and overall rationale of the Federal reviewing 
official's decision. The decision will be made part of the record and 
will be sent to the Federal reviewing official who adjudicated the 
claim as well as to the claimant. We believe that this requirement will 
provide useful information to claimants. It also will be an important 
educational tool for Federal reviewing officials to help them improve 
the quality of their decisions, and will be very useful for management 
and training purposes.
    The notice to the claimant which accompanies the decision will 
inform the claimant whether the decision is our final decision. If it 
is not, the notice will explain that the DRB, described below,

[[Page 16436]]

will review the claim. If the DRB does not review the claim, the 
administrative law judge's decision will stand as our final decision, 
and the claimant may seek review of the administrative law judge's 
decision in Federal district court.
    We recognize, however, that there are certain limited circumstances 
in which a claimant may have a good reason for failing to provide 
evidence in a timely manner to the administrative law judge. Therefore, 
for those cases where the claimant's decision has not been referred to 
the DRB, we are providing that the administrative law judge will 
consider new evidence submitted after the issuance of the decision if, 
within 30 days of the date the claimant receives notice of the 
decision, the claimant requests consideration and shows that there is a 
reasonable probability that the evidence, alone or when considered with 
other evidence of record, would change the outcome of the decision, and 
that either: (1) Our action misled the claimant; (2) the claimant had a 
physical, mental, educational, or linguistic limitation that prevented 
him from submitting the evidence earlier; or (3) some other unusual, 
unexpected, or unavoidable circumstance beyond the claimant's control 
prevented the submission of evidence earlier.
    In those cases where the administrative law judge's decision is not 
our final decision, the claimant must submit the evidence to the DRB no 
later than 30 days after the date the claimant receives notice of the 
decision and make the same showings regarding the probity of evidence 
and the reasons why it was not provided earlier. The DRB will review 
and consider the evidence.

Response to Public Comments About the Administrative Law Judge Level

    In general, commenters expressed concern with our proposed rules on 
the submission of evidence. Some supported the imposition of time 
limits and thought that the rules should be revised to give 
administrative law judges stronger authority to curb abuses in the 
submission of evidence. Others disagreed with our proposal to impose 
such time limits. They believed our proposed 20-day deadline 
unrealistic because many claimants do not contact a representative 
until shortly before the hearing and because it is difficult for some 
claimants, such as the homeless, to obtain medical evidence from 
medical providers and vocational sources, especially HIV or mental 
health records, which often require specialized authorizations. As an 
alternative, they recommended that we notify claimants earlier than 45 
days before the hearing or allow claimants to provide evidence to the 
administrative law judge less than 20 days before the hearing date. As 
explained in more detail above, we have decided to change our proposed 
rules in response to the public comments and will provide 75 days 
notice of the hearing date and allow evidence to be submitted up to 
five business days before the hearing with certain exceptions to that 
five-day requirement allowed.
    We did not adopt a comment to revise proposed Sec.  405.301 to 
specify the circumstances under which we may assign a claim to another 
administrative law judge for decision because we believe the language 
of the regulation should be flexible enough to cover circumstances that 
we may not foresee today. One commenter suggested that we change the 
language in Sec.  405.302 that administrative law judge authority over 
these hearings derives from the Social Security Act. Although we 
deleted Sec.  405.302, we did not remove the concept because we added 
language to Sec.  405.1(a) clarifying that all adjudicators' authority 
derives from the Act.
    Some commenters suggested that we delete ``specific'' from proposed 
Sec.  405.310(a)(3) because many unrepresented claimants may not be 
able to articulate specific reasons why they disagree with the initial 
determination. We did not delete ``specific'' from that provision 
because we believe it is important to highlight for adjudicators the 
issues that claimants wish them to review. We do not intend for this 
requirement to preclude administrative law judges from reviewing other 
issues raised in the claim, and we clarified in Sec.  405.320 that the 
administrative law judge ``will look fully look into all of the issues 
raised by your claim.''
    We accepted suggestions to revise Sec.  405.310 to state that a 
claimant ``should'' include certain items with their request for a 
hearing, rather than ``must include,'' as the proposed rule states.
    Consistent with comments, we revised proposed Sec.  405.310 to 
allow a claimant to request an extension of time to request a hearing 
before the time period has passed. Because many commenters were unclear 
regarding the video hearing provisions of the proposed rules, we 
revised them to follow our present rules and retain our present 
practice, except we also clarified in Sec.  405.315(c) that 
administrative law judges retain the authority to allow, over a 
claimant's objection, witnesses other than the claimant to appear by 
video teleconference.
    A number of commenters disagreed with the provisions of proposed 
Sec.  405.317(a), which would require a claimant to notify the 
administrative law judge in writing within 10 days after receiving the 
hearing notice if he/she objects to the time and place of the hearing. 
We agreed and have changed the time frame to allow the claimant 30 days 
to object. We changed the time limit for objecting to issues from 10 
days after receipt of the notice to five business days before the date 
of the hearing.
    Some commenters also raised concerns about proposed Sec. Sec.  
405.330(d) and 405.366(b), which would allow an administrative law 
judge to dismiss a hearing request if neither the claimant nor his/her 
representative appeared at either prehearing or posthearing 
conferences. Although we retained the authority to dismiss in 
prehearing situations because it is akin to failing to show for the 
hearing itself, we agree that it is not appropriate to dismiss the 
hearing request once the hearing has been held. Thus, we will issue a 
decision based on the record if neither a claimant nor his/her 
representative appears at a posthearing conference. We decided not to 
define ``reasonable'' notice or include specific time frames for the 
prehearing conference notice because we expect that administrative law 
judges will understand reasonable notice and claimants will have the 
opportunity to raise the issue of unreasonable notice to the DRB if an 
administrative law judge dismisses a claim where the claimant failed to 
attend the conference. In response to a comment, we also modified Sec.  
405.380 to address res judicata.
    One commenter recommended that we allow DRB review of the 
administrative law judge's finding that there is no good cause for the 
late submission of evidence. We have rejected this suggestion, but as 
discussed above, we relaxed the rules, before and after the hearing, 
regarding circumstances under which the late submittal of evidence 
would be excused.
    Because a number of commenters asked about the provisions of 
proposed Sec.  405.333, which states that all documents must use type 
face no smaller than 12 point font, we clarified that the rule applies 
to documents that are prepared and submitted by the claimant or his/her 
representative, not to medical or other evidentiary documents.
    Some commenters thought that we should revise or delete proposed

[[Page 16437]]

Sec.  405.334 governing prehearing statements, recommending that we 
request claimants to file such a statement, and that we should not 
require these statements. We did not delete the provision because we 
believe such statements can be helpful for the adjudication process. 
However, we agreed with the commenters to make it a request rather than 
a requirement and to change the language regarding the items to be 
included in the statement from ``must discuss'' to ``should discuss.'' 
We hope that, when requested, claimants and their representatives will 
take the opportunity to thoughtfully prepare such statements.
    Some commenters objected to requiring an administrative law judge 
to explain why he/she disagrees with the Federal reviewing official's 
decision, expressing concerns that the requirement could undermine the 
de novo nature of the administrative law judge hearing process, 
compromise an administrative law judge's decisional independence, and 
add an unnecessary burden to the administrative law judge's decision-
making process. We have clarified that the Federal reviewing official's 
decision is not evidence before the administrative law judge. 
Nevertheless, for purposes of quality feedback, the administrative law 
judge must address the Federal reviewing official's substantive 
findings and rationale. We do not believe that this requirement 
infringes in any way on administrative law judges' decisional 
independence.
    We considered comments in favor of and against closing the record 
after the administrative law judge decision. Many thought that if we 
did close the record, there should be an exception that would allow 
claimants to submit new and material evidence within the meaning of 
section 205(g) of the Act. Some commenters, who recommended that we 
delete proposed Sec.  405.373, believed it harsh to require the 
submission of requests to consider new evidence within 10 days of the 
decision. They also objected to requiring an ``unforeseen and material 
change'' in the claimant's condition and were concerned that the rule 
did not require the administrative law judge to keep the record open. 
Similarly, commenters objected to our proposed definition of 
``material,'' believing it to be too restrictive.
    Upon consideration of these concerns, we deleted ``material'' from 
the definitions section and for the most part specifically describe the 
likely effect, depending on when submitted, new evidence would need to 
have on a decision in order to be considered. For example, we changed 
the final rule on submitting new evidence after the administrative law 
judge's decision is issued to allow claimants to submit such evidence 
within 30 days of receiving the decision, relaxed the materiality 
requirement to a ``reasonable probability'' standard, and required 
administrative law judges to consider the evidence if the claimant and 
his/her evidence meets the regulatory requirements.
    Finally, we agreed to remove language requiring claimants to submit 
evidence adverse to their claims because the comments revealed that the 
requirement was too confusing. We clarified, however, that when 
claimants submit evidence, such as a medical report, the evidence must 
not be redacted.

Decision Review Board (DRB)

Description of DRB Level

    This rule provides for establishing a new body, the DRB, and 
phasing out, in a very gradual and carefully monitored process, the 
current Appeals Council. We believe that the DRB, the members of which 
will be appointed by the Commissioner, will be a vital tool in our 
efforts to improve the decision-making process.
    The purpose of the DRB is to promote accurate, consistent, and fair 
decision-making. In carrying out this purpose the DRB will review and 
correct administrative law judge decisions. It may also identify issues 
that may impede consistent adjudication at all levels of the disability 
adjudication process, and recommend ways to improve the process.
    The DRB will review both allowances and denials. Claims will be 
reviewed before the decision of the administrative law judge has been 
effectuated. The DRB will have the authority to affirm, modify, or 
reverse the administrative law judge's decision. It may also remand a 
claim to the administrative law judge for further action and decision.
    The DRB also may take any of these actions consistent with the 
instructions of a Federal court when the court has remanded a case to 
us for further administrative proceedings.
    The DRB may also select a claim for review after the administrative 
law judge's decision has been effectuated for purposes of studying our 
decision-making process. In the case of such claims, however, the DRB 
will not change the administrative law judge's decision, except in 
those limited circumstances when our rules for reopening claims are 
applicable. These rules (which have been modified since we issued our 
NPRM) are described below.
    The DRB will serve as the final step in the administrative review 
process if a request for a hearing has been dismissed by an 
administrative law judge. A claimant must timely request the 
administrative law judge to vacate the dismissal order before 
requesting the DRB to vacate the order.
    Consistent with its purpose, the claims that the DRB will review 
may include claims where there is an increased likelihood of error, or 
claims that involve new policies, rules, or procedures in order to 
ensure that they are being interpreted and used as intended. The DRB 
will review both allowances and denials of benefits. It will not review 
claims based on the identity of the administrative law judge who 
decided the claim.
    If a claim is selected for review, the claimant will be notified at 
the same time that the claimant receives the decision of the 
administrative law judge. The claimant will be told that his/her claim 
is being reviewed by the DRB and the administrative law judge's 
decision is not our final decision. The notice will explain that the 
DRB will complete its action on the claim within 90 days of the date 
the claimant receives notice. The notice will also explain that if the 
DRB does not complete its action within the 90-day time frame, the 
administrative law judge's decision will become our final decision. If 
the claimant is dissatisfied with the final decision, the claimant may 
seek judicial review.
    If the DRB does not complete its review of a claim within 90 days, 
it will take no further action with respect to the claim unless it 
determines that it can make a decision that is fully favorable to the 
claimant. In that case, it will reopen the administrative law judge's 
decision and revise it as appropriate. If the claimant has already 
sought judicial review, the DRB will notify the Office of the General 
Counsel, which will take appropriate action with the Department of 
Justice in order to request that the court remand the case for the 
purpose of issuing the DRB's favorable decision.
    When the DRB reviews a claim it will apply a substantial evidence 
standard to questions of fact and consider the record that was closed 
at the time that the administrative law judge issued the decision 
(subject to the exception described above when the claimant has good 
cause for failing to submit evidence timely). Some commenters agreed 
that the DRB should use a substantial evidence standard, while others 
advocated that the DRB should

[[Page 16438]]

re-weigh the record and issue its own decision without remanding cases 
to administrative law judges. We retained the substantial evidence 
standard for DRB review of questions of fact, as well as the plenary 
standard for questions of law, because those are the usual standards 
for appellate review of decisions of triers of fact. In those cases 
where the record clearly shows that an administrative law judge's 
decision simply should be reversed, the DRB has that authority.
    When the DRB issues a decision, it is our final decision. If a 
claimant is dissatisfied with the decision, the claimant may seek 
judicial review.
    The DRB will be composed of experienced administrative law judges 
and administrative appeals judges who are highly knowledgeable about 
our decision-making process. Individuals who serve on the DRB will 
serve on a rotational basis, as the Commissioner determines, and terms 
will be staggered to ensure a high degree of continuity in DRB 
membership. It will be centrally located and will be supported by a 
highly qualified staff.
    To enhance accountability and to provide feedback in the decision-
making process, DRB decisions that are in disagreement with 
administrative law judge hearing decisions will be sent to the 
administrative law judge who issued the decision.
    We believe that the DRB, as established in this rule, will 
significantly strengthen our disability adjudication process and that, 
in combination with the other changes we are making, our decisions will 
become more accurate, consistent, fair, and timely than under the 
current process.
    We recognize, however, that there are many who are deeply concerned 
that elimination of the Appeals Council and the right to appeal, which 
we provide in this rule, may have a detrimental effect on claimants and 
result in an increased burden on the Federal courts.
    To provide time for our new process to demonstrate its value while 
responding to these concerns, we intend to phase out the Appeals 
Council and the right to appeal gradually. As described more fully 
below, we will eliminate the right of claimants to appeal disability 
decisions to the Appeals Council only with respect to claims that have 
been initially filed in those States where our new process has been 
implemented. The claimants initially affected will be those filing a 
claim in one of our smallest regions, the Boston region. The only 
claims that will be affected will be those that have gone through the 
new process, including review by a Federal reviewing official and the 
de novo hearing as provided in this rule. Claimants will retain the 
right to appeal their claims to the Appeals Council in all other cases.
    As we carefully roll out our new DSI process, we will closely 
monitor the effects our changes are having. If we determine that our 
proposed changes are not having the positive effects that we believe 
they will have, we will amend our regulations as necessary.

Response to Public Comments About the Decision Review Board

    We received a large number of comments regarding our proposal to 
establish a DRB, and gradually shift the Appeals Council's functions to 
the DRB. Although some commenters agreed that the Appeals Council 
should be eliminated, many opposed the proposal, believing that the 
Appeals Council provides a reasoned, timely, and consistent response to 
claimants and intercepts a large number of claims that would not 
withstand district court review.
    We believe that the DRB will perform more effectively than the 
Appeals Council and provide better relief for claimants, in that we can 
identify the most error-prone claims. Moreover, the DRB will review the 
claims that are most likely to be problematic and will be able to focus 
on promptly identifying decision-making errors that, when corrected, 
will improve decision-making at all levels of the disability 
determination process.
    While claimants may appeal to the DRB a dismissal by an 
administrative law judge, we have decided not to allow the claimant the 
right to request DRB review of our final decision. Claimants have two 
levels of Federal administrative review after the initial 
determination, and the administrative law judge level of review allows 
the claimant the opportunity for a face-to-face hearing. Neither the 
Social Security Act nor due process requires further opportunities for 
administrative review. We believe that our plan to gradually roll out 
the new process in a careful and measured manner will allow us to 
closely monitor any effects that our changes have on the disability 
determination process and will allow us to quickly address any 
unintended consequences.
    Contrary to some of the comments, we do not believe the new process 
will be more complicated for the claimant. The claimant will receive 
notice of the administrative law judge's decision and, if the DRB has 
decided to review the case, the claimant will simultaneously receive 
notice of the DRB's intent to review. The claimant need take no further 
action until such time as the DRB issues its decision, although the 
claimant may submit a written statement to the DRB. The new process 
will benefit the claimant by providing an opportunity for further 
administrative review if the case is one that is likely to be 
problematic. Otherwise, the new process provides the claimant with a 
final decision more quickly so that the claimant can proceed to Federal 
district court if the claimant still disagrees with the decision.
    Some commenters pointed out that the elimination of the claimant's 
right to request administrative review of an administrative law judge's 
decision would prejudice claimants because of the expenses associated 
with filing a civil action, including a filing fee, and because of the 
delays in the Federal court system. Still other commenters noted that 
eliminating the claimant's right to request review would increase the 
likelihood that erroneous administrative law judge decisions would not 
be reviewed, because the claimant's representative would be unable to 
alert the DRB to subtle problems with the administrative law judge's 
decision that may be overlooked in a screening process.
    We do not agree that the removal of a right to appeal an 
administrative law judge's decision is prejudicial. We believe our 
selection process for DRB review will identify problematic cases and 
discrete issues, and we will continuously fine-tune the screening tools 
based on the experience and knowledge we gain. With respect to a 
representative's opportunity to alert the DRB to subtle problems, the 
final rule does allow claimants whose claims have been selected for 
review to submit a written statement to the DRB.
    Some commenters questioned why persons who have claims that do not 
involve disability have a right to request Appeals Council review, 
while a disability claimant does not, and thought that retaining the 
ability of a claimant to request Appeals Council review in non-
disability claims would be confusing. As explained in the 
implementation section, the Appeals Council will continue to review 
administrative law judge disability decisions in regions where the DSI 
has not been implemented or administrative law judge decisions that 
involve non-disability claims and issues, and in those circumstances, 
claimants will continue to have the right to seek Appeals Council 
review. Because our focus is on improving the disability claims 
process, our changes, including the elimination of Appeals Council 
review, do not include claims involving

[[Page 16439]]

issues other than when a claimant is disabled. Our notices in 
individual claims will clearly explain where appeals will be held.
    Some commenters were under the impression that the proposed rule 
allowed favorable decisions to be reviewed, but did not provide 
administrative review for unfavorable decisions. The commenters thought 
that this provision would make the review process more unbalanced. 
Other commenters were concerned that the DRB might be used to target 
individual administrative law judges and that some administrative law 
judges on the DRB would not be inclined to overturn their ``peers.'' 
They suggested clarifying the roles and workloads of the DRB to 
alleviate these concerns, including specifying that the DRB will review 
favorable and unfavorable decisions in equal numbers.
    As explained above, and as set out in Sec.  405.410, the DRB will 
review favorable, partially favorable, and unfavorable cases, and cases 
will not be selected for DRB review based on the identity of the 
administrative law judge. We do not believe that administrative law 
judges serving on the DRB will allow their peer status to interfere 
with their honest review of disability decisions because administrative 
law judges currently engage in such review through our peer quality 
review process.
    Some commenters thought that we should not use a computer profile 
to identify error-prone administrative law judge decisions for review 
by the DRB and expressed other concerns with the DRB's selection 
process. As explained above, we will select cases for review by the DRB 
in several different ways. This varied approach to selecting cases for 
review will efficiently identify problematic cases without unfairly 
targeting any specific category of claimant. We have decided against 
including in this rule a specific statement regarding the method and 
range of sample sizes because, as explained above, our methods of 
selecting cases for review will change over time as we gain experience 
and knowledge in the use of our computer-based tools.
    One commenter asked us to clarify what we meant by cases that 
involve ``fact patterns that increase the likelihood of error'' in 
proposed Sec.  405.410(b)(2). We have revised Sec.  405.410, and it no 
longer contains that phrase.
    Some commenters questioned how claimants will know when the 90-day 
period for DRB review of an administrative law judge's decision 
specified in proposed Sec.  405.420(a)(2) has passed. Other commenters 
thought that the 90-day time period did not provide a meaningful time 
limit because the proposed rule did not specify how long the DRB could 
hold a claim before it issued a notice of intent to review the 
administrative law judge's decision. Section 405.420(a)(2) explains 
that the 90-day period begins on the date the claimant receives notice 
that the DRB will review the claim. We intend that the DRB will make 
its decision on whether to review a claim within 10 days after the 
administrative law judge's decision. If the DRB decides to review a 
claim, the claimant will receive notice of the DRB's intent to review 
the claim at the same time that the claimant receives the 
administrative law judge's decision.
    Some commenters noted that the DRB must act within 90 days of the 
date that the claimant receives the administrative law judge decision, 
but they thought that the provision could conflict with the requirement 
in section 223(h) of the Act that we pay interim benefits to claimants 
in instances in which we do not make a final decision within 110 days 
after an administrative law judge makes a favorable decision. One 
commenter recommended that, rather than place a 90-day limit on the 
DRB's action, we provide that we will pay a claimant interim benefits 
if the DRB does not act within 90 (or 110) days of the date of the 
administrative law judge's decision.
    As explained in Sec.  405.420(a), if the DRB decides to review a 
favorable administrative law judge decision, the administrative law 
judge's decision will not be our final decision. However, if the DRB 
does not complete its review within 90 days of the date the claimant 
receives notice that the DRB will review the claim, the administrative 
law judge's decision will become our final decision. Section 223(h) of 
the Act applies when the administrative law judge issues a favorable 
decision, the Appeals Council takes review of that favorable decision, 
and the Appeals Council fails to issue our final decision within 110 
days after the date of the administrative law judge's decision. Section 
223(h) will not apply to cases where the DRB does not complete its 
review within 90 days of the date the claimant receives notice that the 
DRB will review the claim because, at that point, the administrative 
law judge's decision will be our final decision.
    A number of commenters objected to the provisions of proposed Sec.  
405.425(b)(1), under which the DRB could request that the claimant 
submit a written statement of no longer than three pages to the DRB for 
its consideration. Some commenters thought that the proposed rule 
raised due process concerns. Others thought that the provision would 
result in significant legal and factual errors not being identified for 
the DRB, that the inability of claimants to submit briefs to the DRB 
would make the process more unbalanced against claimants, and that the 
page limit would deprive the DRB of an accurate recitation of the facts 
of the case. We do not believe the limits we have imposed regarding the 
length of submissions to the DRB raise any due process concerns as 
other administrative agencies and certainly courts impose similar 
limitations. In addition, we have amended Sec.  405.425 to allow the 
claimant to submit a written statement to the DRB, even without a 
request from the DRB. We have also amended the provision to allow for a 
maximum of 2,000 words to account for handwritten or typeface larger 
than 12 point.
    Some commenters objected to the 10-day time limit for filing a 
request for permission to submit a written statement. We have removed 
the requirement for permission to submit a written statement. However, 
we have retained the 10-day time period for filing a written statement 
so that the DRB will be able to complete its review in a timely manner. 
The written statement need not be submitted by an attorney.
    Some commenters objected to the provision of proposed Sec.  
405.425(d), which would allow the DRB to obtain advice from experts 
affiliated with the national network. We have accepted the comments and 
have removed the provision. The DRB nevertheless may consult with the 
MVES for background information about various conditions, but not in 
the context of a specific case before it.
    Many commenters, including the Administrative Office of United 
States Courts, thought that the shift of the Appeals Council's 
functions to the DRB would have an adverse effect on the Federal court 
system and would result in an increase in the number of cases appealed 
to the Federal courts. To address these concerns, we plan a gradual 
rollout to minimize the impact on the judiciary. We plan to begin 
implementation of the new process in the Boston region, which is one of 
our smallest regions. Because we are beginning in a small region, we 
will be able to have the DRB initially review all or most of the 
administrative law judge decisions that are issued in the Boston 
region. At the same time, we will be fine-tuning the screening tools 
for selecting cases for DRB review in those regions where we cannot 
review every

[[Page 16440]]

decision. In addition, the DRB will monitor administrative law judge 
decisions in order to identify trends or developments that we need to 
address. Lastly, we believe that comparing DSI with the process it is 
replacing fails to consider the many positive changes outlined in 
today's rule.
    Another commenter recommended that we revise the rule to require us 
to provide unrepresented claimants with information about pursuing a 
civil action in Federal court, including the availability of in forma 
pauperis applications, and information regarding the name and address 
of the clerk of the district court in the venue in which review would 
be sought. We have amended Sec.  405.445 to clarify that, in addition 
to explaining how to seek judicial review, the notification of the 
DRB's action will explain the claimant's right to representation. We 
have decided against including more detailed information, such as 
information on the specific court, due to variations in the information 
that may be applicable to each jurisdiction.
    Some commenters recommended that we provide that if the DRB fails 
to act within a specified time period, the claimant would receive a 
``right to sue'' letter that would inform the person that he/she could 
seek judicial review within 60 days of the date the right to sue letter 
was received. We have not made any changes based on this recommendation 
because Sec.  405.420 already provides that the administrative law 
judge's decision becomes final if the DRB does not complete its review 
within 90 days of the date the claimant receives notice that the DRB 
will review the claim. Section 405.420 explains that the claimant may 
then seek judicial review of the administrative law judge's decision 
under section 205(g) of the Act within 60 days of the expiration of the 
90-day time period.

Reopening

    Our current rules allow us to reopen and revise a determination or 
decision that has become final under certain specified circumstances. 
We have amended this reopening rule to provide that a final decision 
made after a hearing may be reopened and revised within six months of 
the date of the final decision, and we have removed new and material 
evidence as a basis for finding good cause to reopen such claims. We 
have not made any other changes to our current reopening rules.
    Many commenters opposed our proposal to limit the reopening of 
prior claims, believing that the proposed rules governing reopening 
were unfair to claimants who did not have representatives, had mental 
impairments, had impairments that were difficult to diagnose, such as 
multiple sclerosis, or whose date last insured had expired. A commenter 
recommended that we not have separate reopening rules for disability 
and non-disability claims, but that we use the same rules for all types 
of claims. Many commenters asked that we retain our current reopening 
policies. Many commenters recommended that we retain our current 
standard under which we consider reopening a claim based on ``new and 
material'' evidence in certain instances. Some commenters also opposed 
our proposal to eliminate the ability of adjudicators to reopen a prior 
determination or decision for one year after the date of the notice of 
the initial determination ``for any reason.''
    Given these comments, we decided to retain our existing reopening 
rules except that once an administrative law judge decision is made, 
reopening for good cause is limited to six months after the 
administrative law judge's decision and new and material evidence will 
not be a basis for good cause. We did this to reinforce our view that 
claimants should make every effort to submit evidence to us as soon as 
possible. Thus, our existing reopening rules continue to apply 
unchanged to determinations made by the State agency. In addition, the 
current reopening rules will apply to Federal reviewing official 
decisions that become final. Our amendments only apply to final 
decisions made after a claimant has received a hearing before an 
administrative law judge.

Response to Public Comments About Other Issues

    Although some commenters supported our goal of providing a uniform, 
fair, and flexible standard for all good cause findings, several 
commenters recommended that we revise the language on good cause. Some 
commenters thought that we should include good cause exceptions for 
each of the time limits set out in the proposed rule. We agreed that, 
except for good cause for filing an appeal, we should state the good 
cause exceptions for the time limits.
    Several commenters objected to our standards for determining good 
cause in proposed Sec.  405.20. They were concerned that the phrase 
``unusual and unavoidable circumstances beyond your control'' was 
ambiguous and suggested that if we kept the standard, we should change 
``and'' to ``or.'' We accepted the comment to change ``and'' to ``or'' 
and we added ``unexpected,'' but we retained ``unusual'' and 
``unavoidable'' without adding further explanation because we have 
provided a non-exclusive list of situations that are examples of such 
circumstances.
    Several commenters noted that proposed Sec.  405.20(a)(2) required 
a claimant to show that a ``reasonable person'' would have been 
prevented from complying with a deadline due to a physical, mental, 
educational, or linguistic limitation. These commenters questioned how 
we intended to use a ``reasonable person'' standard for individuals 
with mental impairments or those who were not proficient in English. We 
agree and have removed the ``reasonable person'' language.
    One commenter questioned what we meant by the phrase ``must 
document'' in proposed Sec.  405.20(a). To clarify, we decided to 
simply use the term ``show,'' which allows adjudicators to consider 
various types of evidence in determining good cause for missing 
deadlines to file appeals.
    Although some commenters supported proposed Sec.  405.30, which 
would govern the filing of discrimination complaints against 
adjudicators, a number of commenters thought that the provision lacked 
specificity. The commenters recommended that we revise the section to 
incorporate a thorough, complete, and meaningful complaint procedure 
that would explain matters such as to whom the complaint will be sent, 
how it will be investigated, and what relief could be afforded to the 
claimant.
    We presently have procedures in place to deal with allegations of 
administrative law judge bias and complaints of discrimination from the 
public, but we did not believe that it was necessary to include those 
procedures in this particular rule which primarily concerns the 
processing of disability claims, not discrimination complaints. 
Nevertheless, in response to a comment, we increased the time period 
for filing a claim of discrimination from 60 to 180 days.

How We Will Implement the New Process

    As noted above, we plan to roll out the new DSI process in a 
measured and careful manner. Gradual implementation will allow us to 
monitor the effects that our changes are having on the entire 
disability determination process, and lessons learned during the early 
stages of implementation will allow us to proceed in an increasingly 
efficient and effective manner in the later stages of implementation. 
We will begin implementation in one of our smallest regions, the Boston 
region, which is

[[Page 16441]]

comprised of the States of Connecticut, Massachusetts, Maine, New 
Hampshire, Rhode Island, and Vermont.
    We will carefully monitor the implementation process in the Boston 
region and quickly address any problems that may arise. We plan to wait 
an entire year before implementing this rule in a second region so we 
can be sure that our improved disability determination process is 
functioning in the manner that we expect and to be certain that we have 
resolved any unanticipated issues that arise during the first phase of 
implementation. As we decide to roll this process out to other 
geographic areas, we will amend the appendix to subpart A of part 405 
by publishing a notice in the ``Notices'' section of the Federal 
Register. Because we have solicited and responded to public comment for 
the new disability process through the proposed rule of July 27, 2005 
(70 FR 43590), and through this final rule, the notice(s) amending the 
appendix to subpart A will serve as a technical amendment(s) and will 
not undergo a formal rulemaking process. The new DSI process will not 
take effect in the region(s) identified in the notice until the date 
identified in the Federal Register notice.
    We expect that the experience and knowledge we gain while 
implementing this rule in the Boston region will help make 
implementation in the remaining regions proceed more efficiently. We 
anticipate that after this first year, we will be able to implement the 
DSI process at a faster pace.
    Under our implementation plan, this final rule will only apply to 
claims that are filed in a region where the new DSI process has been 
implemented. If a claim is filed in a region where we have not yet 
implemented the new process, we will use our current procedural 
regulations, 20 CFR 404.900-404.999d and 416.1400-416.1499, to 
adjudicate that claim. For example, if a disability claim is filed in 
New Hampshire after we have rolled out the new DSI process in the 
Boston region, this rule will apply to the adjudication of that claim. 
Such a claim will be screened for possible adjudication as a QDD claim 
and could be considered by a Federal reviewing official, an 
administrative law judge, and possibly the DRB if the claim reached 
those levels. However, if a claim is filed in a State in a region where 
we have not yet rolled out the new process, that claim will be 
adjudicated under the present process. In other words, the State DDS 
will issue an initial determination on that claim and the claimant will 
be able to seek DDS reconsideration and subsequent review by an 
administrative law judge and the Appeals Council, if necessary.
    If a claimant moves from one State to another after he/she files a 
claim, adjudicators at subsequent levels of review will apply the 
regulations that were applicable to the claim initially. For example, 
if a claimant files a claim in the Boston region after we have rolled 
out the new DSI process there, part 405 will apply to the claim at 
subsequent levels of review, even if the claimant moves to a State in a 
region where we have not yet rolled out the new process. Conversely, if 
a claimant files a claim in a region where we have not yet rolled out 
the new process, the pre-existing procedural regulations in parts 404 
and 416 will apply, even if the claimant subsequently moves to a State 
where we have rolled out the new process.
    As noted above, many of the comments we received regarding our 
proposed rule expressed concern about the possible effects of the 
elimination of the Appeals Council and the right of claimants to appeal 
administrative law judge decisions. We believe that our plan to 
gradually roll out the new DSI process in a careful and measured manner 
will allow us to closely monitor any effects that our changes may have 
on the disability determination process or on the Federal courts, and 
will allow us to quickly address any unintended consequences.
    Under our implementation plan, a claimant will not be able to seek 
Appeals Council review if his/her claim was initially filed in a region 
where our new rule has been implemented and the claim was reviewed by a 
Federal reviewing official and an administrative law judge. In other 
words, the elimination of the right to Appeals Council review will only 
apply in regions where we have rolled out the new DSI process and to 
claims that have been processed from the start under this rule. The 
Appeals Council will continue to function and review claims that have 
been filed in regions where we have not yet rolled out the new DSI 
process. That means that in those regions where we have not yet rolled 
out the new DSI process, the Appeals Council will continue to perform 
all of the functions that they currently perform, including: 
Considering requests to review administrative law judge decisions; 
considering requests to review hearing request dismissals; considering 
cases referred from other components; preparing court transcripts; and 
handling court remand cases.
    In addition, the Appeals Council will continue to perform its 
responsibilities pertaining to review of administrative law judge 
decisions that involve claims not covered by this rule (such as 
retirement and survivors insurance claims) or claims involving issues 
other than whether a claimant is disabled (such as whether a disability 
claimant has received an overpayment and whether that overpayment 
should be waived). Our new rule addresses the administrative review 
process for adjudicating disability claims; claimants will continue to 
have the right under our pre-existing regulations to seek Appeals 
Council review of administrative law judge decisions regarding issues 
that do not pertain to the administrative adjudication of whether a 
claimant is disabled. The Appeals Council will continue to perform 
these non-disability functions throughout the entire implementation 
process. However, once the new process has been rolled out in every 
region, we plan to transfer these remaining Appeals Council functions 
to the DRB.
    We will be fine-tuning the screening tools we will use in the 
future to select cases for DRB review in those regions where we cannot 
review every single decision. As implementation begins and the DRB is 
reviewing all or most of the decisions issued in the Boston region, we 
will evaluate our screening tools to ensure that they will capture the 
appropriate cases for review. In addition, the DRB will monitor 
administrative law judge decisions in order to identify trends or 
developments that we need to address. If we determine that this rule 
adversely affects the disability determination process or the Federal 
courts over time, we will make changes to the process as necessary.
    Throughout the implementation process, we will meet regularly with 
individuals representing organizations with various perspectives with 
respect to the disability process, including claimant representatives 
and advocates, State agency directors and employees, administrative law 
judges, and members of the judiciary. Through these discussions, we 
will continue, and further expand, the dialogue that began when our new 
approach was first proposed. The meetings will ensure that both we and 
these interested parties have an opportunity to discuss and better 
understand the impact of these changes as they are rolled out and to 
make any needed modifications to achieve the goal of making the right 
decision as early in the process as possible.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget and have

[[Page 16442]]

determined that this rule meets the criteria for an economically 
significant regulatory action under Executive Order 12866. Thus, it was 
reviewed by OMB.
    The Office of the Chief Actuary (OCACT) estimates that this rule 
will result in increased program outlays resulting in the following 
costs (in millions of dollars) over the next 10 years:

----------------------------------------------------------------------------------------------------------------
                       Fiscal year                          Title II  Title XVI   Medicare   Medicaid    Total
----------------------------------------------------------------------------------------------------------------
2006.....................................................         $5         $1         $0         $2         $7
2007.....................................................         40          7          0         17         63
2008.....................................................         94         11         -1         31        135
2009.....................................................        209         43         -2        114        364
2010.....................................................        307         43         -7        119        461
2011.....................................................        277         39        -14        106        408
2012.....................................................        156          8        -24         26        166
2013.....................................................         31          2        -35         -5         -8
2014.....................................................          2          2        -46        -21        -63
2015.....................................................         -9          0        -57        -40       -107
Total:
    2006-2010............................................        654        104        -10        282      1,031
    2006-2015............................................      1,110        155       -186        347     1,427
----------------------------------------------------------------------------------------------------------------
Note: The totals may not equal the sum of the rounded components.

    Cost estimates for the new disability determination process were 
developed by the OCACT under the assumptions of the mid-session review 
of the Fiscal Year 2006 Budget. For these estimates, the OCACT assumed 
that a significant number of disability allowances would be determined 
quickly under the quick determinations made by special units at the 
State DDS. In addition, the new Federal reviewing official 
determinations are assumed to provide allowances substantially in 
excess of the number produced by the reconsideration in the current 
process. The effects of the allowances and documentation are assumed to 
diminish the number of allowances made by administrative law judges. 
With careful implementation of the new process, the OCACT estimates 
that about the same total number of disability allowances will be made 
ultimately for each group of new applicants, but that these allowances 
will, on average, be made somewhat more quickly. Due to this speeding-
up of the determination process program costs are expected to be 
increased somewhat for about the next 10 years. However, after this 
transitional period, annual costs for the disability programs are not 
expected to be substantially different, again assuming that the new 
process is implemented carefully.
    We anticipate no more than negligible increases, if any, in the 
Agency's administrative costs as a result of the issuance of this rule.

Accounting Statement

    As required by OMB Circular A-4 (available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf), in the following table 
(Table 1) below we have prepared an accounting statement showing the 
classification of the expenditures associated with the provisions of 
this final rule. This table provides our best estimate of the increase 
in benefit payments as a result of the changes to the administrative 
review process presented in this final rule. All expenditures are 
classified as transfers to beneficiaries whose benefits are paid on the 
basis disability under title II of the Act or under disability or 
blindness under title XVI of the Act.

    Table 1.--Accounting Statement: Classification of Estimated Costs
                              [In millions]
------------------------------------------------------------------------
                Category                            Transfers
------------------------------------------------------------------------
Annualized Monetized Transfers.........  $140.6.
From Who to Whom?......................  OASI, DI, HI, and SMI and
                                          General Fund of the Treasury
                                          to Disability Beneficiaries.
------------------------------------------------------------------------

Benefits of New Procedures

    This final rule addresses the challenges and issues in the current 
disability determination process identified through an extensive 
outreach effort to all interested parties in the disability 
determination process including the Congress, advocates, claimant 
representatives, the Federal Judiciary, and State and Federal 
adjudicators.
    It provides for significant changes in our disability process and 
administrative procedures to improve service and stewardship. The 
changes will reduce processing time and increase accuracy to help 
ensure the right decision is made as early in the process as possible. 
These changes will ensure that adjudicators are accountable for the 
quality of disability adjudications at every step of the process by 
ensuring the development and documentation of a complete record for 
each claimant.
    The new quick disability determination process ensures that 
beneficiaries who are clearly disabled receive favorable determinations 
within 20 calendar days or less from the date their completed 
application for benefits is sent to the State agency for adjudication. 
The creation of the Federal reviewing official provides for a Federal 
review earlier in the process. The establishment of a national network 
of experts will provide additional specialized expertise to assist 
adjudicators at all levels. The new comprehensive quality system will 
help ensure program integrity as well as continued improvement in 
decision-making. The Decision Review Board will provide the final 
agency opportunity to ensure the accuracy of decisions and reduce 
remands from the Federal courts. In addition, new

[[Page 16443]]

procedures will help ensure that adjudicators receive evidence in a 
timely manner resulting in a more efficient determination process while 
protecting the rights of the claimant.

Regulatory Flexibility Act

    We certify that this rule will not have a significant economic 
impact on a substantial number of small entities as they affect only 
individuals or States. Therefore, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Federalism Impact and Unfunded Mandates Impact

    We have reviewed this rule under the threshold criteria of 
Executive Order 13132 and the Unfunded Mandates Reform Act and have 
determined that it does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, on the distribution of power and responsibilities among the 
various levels of government, or on imposing any costs on State, local, 
or tribal governments. This rule does not affect the roles of the 
State, local, or tribal governments. However, the rule takes 
administrative notice of existing statutes governing the roles and 
relationships of the State agencies and SSA with respect to disability 
determinations under the Act.

Paperwork Reduction Act

    This final rule contains information collection requirements that 
require Office of Management and Budget clearance under the Paperwork 
Reduction Act of 1995 (PRA). As required by the PRA, we have submitted 
a clearance request to OMB for approval. We will publish the OMB number 
and expiration date upon approval.
    As required by the PRA, we have published a notice of proposed 
rulemaking on July 27, 2005 at 70 FR 43590 and solicited comments under 
the PRA on the burden estimate; the need for the information; its 
practical utility; ways to enhance its quality, utility and clarity; 
and on ways to minimize the burden on respondents, including the use of 
automated collection techniques or other forms of information 
technology. While commenters did not specifically address the issues 
specified above, a number of comments concerned timeframes for sending 
information to us. For example, commenters disagreed with our proposed 
20-day deadline for submitting evidence for a hearing. As a result, we 
decided to change the proposed rule and will provide 75 days notice of 
the hearing date and allow evidence to be submitted up to five business 
days before the hearing with certain exceptions to that five-day 
requirement. In addition, we expanded timeframes in other sections of 
the regulation for submitting documentation/evidence to us.

(Catalog of Federal Domestic Assistance Program Nos. 96.001, Social 
Security--Disability Insurance; 96.002, Social Security--Retirement 
Insurance; 96.004, Social Security--Survivors Insurance; and 96.006, 
Supplemental Security Income)

List of Subjects

20 CFR Part 404

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

20 CFR Part 405

    Administrative practice and procedure; Blind, Disability benefits; 
Old-Age, Survivors, and Disability Insurance; Public assistance 
programs, Reporting and recordkeeping requirements; Social Security; 
Supplemental Security Income (SSI).

20 CFR Part 416

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

20 CFR Part 422

    Administrative practice and procedure; Organization and functions 
(Government agencies); Reporting and recordkeeping requirements; Social 
Security.

Jo Anne B. Barnhart,
Commissioner of Social Security.

0
For the reasons set out in the preamble, subparts J, P, and Q of part 
404, subparts I, J, and N of part 416 and subparts B and C of part 422 
of chapter III of title 20 of the Code of Federal Regulations are 
amended and part 405 is added as set forth below:

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

Subpart J--[Amended]

0
1. The authority citation for subpart J of part 404 is revised 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).


0
2. Amend Sec.  404.903 by removing ``and'' at the end of paragraph (v), 
by removing the ``.'' at the end of paragraph (w) and replacing it with 
``;'' and by adding paragraphs (x) and (y) to read as follows:


Sec.  404.903  Administrative actions that are not initial 
determinations.

* * * * *
    (x) Determining whether to select your claim for the quick 
disability determination process under Sec.  405.105 of this chapter; 
and
    (y) The removal of your claim from the quick disability 
determination process under Sec.  405.105 of this chapter.

Subpart P--[Amended]

0
3. The authority citation for subpart P of part 404 is revised to read 
as follows:

    Authority: Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) 
and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act 
(42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 
Stat. 2105, 2189.


0
4. Amend Sec.  404.1502 by revising the definition of ``nonexamining 
source'' to read as follows:


Sec.  404.1502  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, and at the Federal reviewing official, administrative law 
judge, and Decision Review Board levels of the administrative review 
process in claims adjudicated under the procedures in part 405 of this 
chapter, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  404.1527.

0
5. Amend Sec.  404.1503 by adding a sixth sentence to paragraph (a), 
and by removing the parenthetical statement after the first sentence of 
paragraph (e), to read as follows:


Sec.  404.1503  Who makes disability and blindness determinations.

    (a) * * * Subpart I of part 405 of this chapter contains additional 
rules that

[[Page 16444]]

the States must follow in making disability and blindness 
determinations in cases adjudicated under the procedures in part 405 of 
this chapter.
* * * * *

0
6. Amend Sec.  404.1512 by revising paragraph (b)(6) and the second 
sentence of paragraph (c) to read as follows:


Sec.  404.1512  Evidence.

* * * * *
    (b) * * *
    (6) At the administrative law judge and Appeals Council levels, and 
at the reviewing official, administrative law judge, and Decision 
Review Board levels in claims adjudicated under the procedures in part 
405 of this chapter, findings, other than the ultimate determination 
about whether you are disabled, made by State agency medical or 
psychological consultants and other program physicians or 
psychologists, and opinions based on their review of the evidence in 
your case record expressed by medical experts or psychological experts 
that we consult. See Sec.  404.1527(f)(2)-(3).
    (c) * * * You must provide evidence, without redaction, showing how 
your impairment(s) affects your functioning during the time you say 
that you are disabled, and any other information that we need to decide 
your claim. * * *
* * * * *

0
7. Amend Sec.  404.1513 by revising the first sentence of paragraph (c) 
to read as follows:


Sec.  404.1513  Medical and other evidence of your impairment(s).

* * * * *
    (c) * * * At the administrative law judge and Appeals Council 
levels, and at the reviewing official, administrative law judge, and 
Decision Review Board levels in claims adjudicated under the procedures 
in part 405 of this chapter, we will consider residual functional 
capacity assessments made by State agency medical and psychological 
consultants, medical and psychological experts (as defined in Sec.  
405.5 of this chapter), and other program physicians and psychologists 
to be ``statements about what you can still do'' made by nonexamining 
physicians and psychologists based on their review of the evidence in 
the case record. * * *

0
8. Amend Sec.  404.1519k by revising paragraph (a) to read as follows:


Sec.  404.1519k  Purchase of medical examinations, laboratory tests, 
and other services.

* * * * *
    (a) Subject to the provisions of Sec.  405.805(b)(2) of this 
chapter in claims adjudicated under the procedures in part 405 of this 
chapter, the rate of payment to be used for purchasing medical or other 
services necessary to make determinations of disability may not exceed 
the highest rate paid by Federal or public agencies in the State for 
the same or similar types of service. See Sec. Sec.  404.1624 and 
404.1626 of this part.
* * * * *

0
9. Amend Sec.  404.1519m by revising the third sentence to read as 
follows:


Sec.  404.1519m  Diagnostic tests or procedures.

    * * * A State agency medical consultant, or a medical expert (as 
defined in Sec.  405.5 of this chapter) in claims adjudicated under the 
procedures in part 405 of this chapter, must approve the ordering of 
any diagnostic test or procedure when there is a chance it may involve 
significant risk. * * *

0
10. Amend Sec.  404.1519s by revising paragraph (c) to read as follows:


Sec.  404.1519s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Subject to the provisions of Sec.  405.805(b)(2) of this 
chapter in claims adjudicated under the procedures in part 405 of this 
chapter, and consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *

0
11. Amend Sec.  404.1520a by revising the third sentence and adding a 
new fourth sentence to paragraph (d)(2) and revising paragraph (e) to 
read as follows:


Sec.  404.1520a  Evaluation of mental impairments.

* * * * *
    (d) * * *
    (2) * * * We will record the presence or absence of the criteria 
and the rating of the degree of functional limitation on a standard 
document at the initial and reconsideration levels of the 
administrative review process. We will record the presence or absence 
of the criteria and the rating of the degree of functional limitation 
in the decision at the administrative law judge hearing and Appeals 
Council levels (in cases in which the Appeals Council issues a 
decision), and in the decision at the Federal reviewing official, 
administrative law judge, and the Decision Review Board levels in 
claims adjudicated under the procedures in part 405 of this chapter. * 
* *
* * * * *
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record how we applied the technique. At 
the administrative law judge hearing and Appeals Council levels (in 
cases in which the Appeals Council issues a decision), and at the 
Federal reviewing official, administrative law judge, and the Decision 
Review Board levels in claims adjudicated under the procedures in part 
405 of this chapter, we will document application of the technique in 
the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. At the initial level in 
claims adjudicated under the procedures in part 405 of this chapter, a 
medical or psychological expert (as defined in Sec.  405.5 of this 
chapter) has overall responsibility for assessing medical severity. The 
State agency disability examiner may assist in preparing the standard 
document. However, our medical or psychological consultant (or the 
medical or psychological expert (as defined in Sec.  405.5 of this 
chapter) in claims adjudicated under the procedures in part 405 of this 
chapter) must review and sign the document to attest that it is 
complete and that he or she is responsible for its content, including 
the findings of fact and any discussion of supporting evidence. When a 
disability hearing officer makes a reconsideration determination, the 
determination must document application of the technique, incorporating 
the disability hearing officer's pertinent findings and conclusions 
based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, and at the Federal reviewing official, administrative law 
judge, and the Decision Review Board levels in claims adjudicated under 
the procedures in part 405 of this chapter, the written decision must 
incorporate the pertinent findings and conclusions based on the 
technique. The decision must show the significant history, including 
examination and laboratory findings, and the functional limitations 
that were considered in reaching a conclusion about the severity of the 
mental impairment(s). The decision must include a specific finding as 
to the degree of limitation in each of the functional areas described 
in paragraph (c) of this section.

[[Page 16445]]

    (3) Except in cases adjudicated under the procedures in part 405 of 
this chapter, if the administrative law judge requires the services of 
a medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the appropriate Federal component, using the rules 
in Sec.  404.941 of this part, for completion of the standard document. 
If, after reviewing the case file and completing the standard document, 
the State agency or Federal component concludes that a determination 
favorable to you is warranted, it will process the case using the rules 
found in Sec.  404.941(d) or (e) of this part. If, after reviewing the 
case file and completing the standard document, the State agency or 
Federal component concludes that a determination favorable to you is 
not warranted, it will send the completed standard document and the 
case to the administrative law judge for further proceedings and a 
decision.

0
12. Amend Sec.  404.1526 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  404.1526  Medical equivalence.

* * * * *
    (c) * * * A medical or psychological consultant designated by the 
Commissioner includes any medical or psychological consultant employed 
or engaged to make medical judgments by the Social Security 
Administration, the Railroad Retirement Board, or a State agency 
authorized to make disability determinations, and includes a medical or 
psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter. * 
* *

0
13. Amend Sec.  404.1527 by revising paragraph (f)(1) and by adding 
paragraph (f)(4) to read as follows:


Sec.  404.1527  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) will 
consider the evidence in your case record and make findings of fact 
about the medical issues, including, but not limited to, the existence 
and severity of your impairment(s), the existence and severity of your 
symptoms, whether your impairment(s) meets or equals the requirements 
for any impairment listed in appendix 1 to this subpart, and your 
residual functional capacity. These administrative findings of fact are 
based on the evidence in your case record but are not themselves 
evidence at these steps.
* * * * *
    (4) In claims adjudicated under the procedures in part 405 of this 
chapter at the Federal reviewing official, administrative law judge, 
and the Decision Review Board levels of the administrative review 
process, we will follow the same rules for considering opinion evidence 
that administrative law judges follow under this section.

0
14. Amend Sec.  404.1529 by revising the third and fifth sentences of 
paragraph (b) to read as follows:


Sec.  404.1529  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  404.914 through 404.918 of this chapter), a 
State agency medical or psychological consultant, a medical or 
psychological consultant designated by the Commissioner, or a medical 
or psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter, 
directly participates in determining whether your medically 
determinable impairment(s) could reasonably be expected to produce your 
alleged symptoms. * * * At the administrative law judge hearing or 
Appeals Council level of the administrative review process, or at the 
Federal reviewing official, administrative law judge, and Decision 
Review Board levels in claims adjudicated under the procedures in part 
405 of this chapter, the adjudicator(s) may ask for and consider the 
opinion of a medical or psychological expert concerning whether your 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * *
* * * * *

0
15. Amend Sec.  404.1546 by revising the text of paragraph (a) and by 
adding a new paragraph (d) to read as follows:


Sec.  404.1546  Responsibility for assessing your residual functional 
capacity.

    (a) * * * When a State agency makes the disability determination, a 
State agency medical or psychological consultant(s) (or a medical or 
psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter) is 
responsible for assessing your residual functional capacity.
* * * * *
    (d) Responsibility for assessing residual functional capacity in 
claims adjudicated under part 405 of this chapter. In claims 
adjudicated under the procedures in part 405 of this chapter at the 
Federal reviewing official, administrative law judge, and Decision 
Review Board levels of the administrative review process, the Federal 
reviewing official, administrative law judge, or the Decision Review 
Board is responsible for assessing your residual functional capacity.

Subpart Q--[Amended]

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

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


0
17. Amend Sec.  404.1601 by adding a new third sentence to the 
introductory text to read as follows:


Sec.  404.1601  Purpose and scope.

    * * * Subpart I of part 405 of this chapter contains additional 
rules that the States must follow in making disability and blindness 
determinations in cases adjudicated under the procedures in part 405 of 
this chapter.
* * * * *

0
18. Amend Sec.  404.1616 by adding a new third sentence in paragraph 
(b) and a new paragraph (e)(4) to read as follows:


Sec.  404.1616  Medical or psychological consultants.

* * * * *
    (b) * * * In claims adjudicated under the procedures in part 405 of 
this chapter, medical experts employed by or under contract with the 
State agencies must meet the qualification standards prescribed by the 
Commissioner.
* * * * *
    (e) * * *
    (4) In claims adjudicated under the procedures in part 405 of this 
chapter, psychological experts employed by or under contract with the 
State agencies must meet the qualification standards prescribed by the 
Commissioner.
* * * * *

0
19. Amend Sec.  404.1624 by revising the first sentence to read as 
follows:


Sec.  404.1624  Medical and other purchased services.

    Subject to the provisions of Sec.  405.805(b)(2) of this chapter in 
claims adjudicated under the procedures in part 405 of this chapter, 
the State will

[[Page 16446]]

determine the rates of payment to be used for purchasing medical or 
other services necessary to make determinations of disability. * * *

0
20. A new part 405 is added to read as follows:

PART 405--ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INITIAL 
DISABILITY CLAIMS

Subpart A--Introduction, General Description, and Definitions
Sec.
405.1 Introduction.
405.5 Definitions.
405.10 Medical and Vocational Expert System.
405.20 Good cause for extending deadlines.
405.25 Disqualification of disability adjudicators.
405.30 Discrimination complaints.

Appendix to Subpart A of Part 405--Claims That Will Be Handled Under 
the Procedures in This Part

Subpart B--Initial Determinations
405.101 Disability determinations.
405.105 Quick disability determination process.
405.110 Standards for making quick disability determinations.
405.115 Notice of the initial determination.
405.120 Effect of an initial determination.
Subpart C--Review of Initial Determinations by a Federal Reviewing 
Official
405.201 Reviewing an initial determination--general.
405.210 How to request review of an initial determination.
405.215 Procedures before a Federal reviewing official.
405.217 Subpoenas.
405.220 Decision by the Federal reviewing official.
405.225 Notice of the Federal reviewing official's decision.
405.230 Effect of the Federal reviewing official's decision.
Subpart D--Administrative Law Judge Hearing
 405.301 Hearing before an administrative law judge--general.
405.305 Availability of a hearing before an administrative law 
judge.
405.310 How to request a hearing before an administrative law judge.
405.315 Time and place for a hearing before an administrative law 
judge.
405.316 Notice of a hearing before an administrative law judge.
405.317 Objections.
405.320 Administrative law judge hearing procedures--general.
405.325 Issues before an administrative law judge.
405.330 Prehearing conferences.
405.331 Submitting evidence to an administrative law judge.
405.332 Subpoenas.
405.333 Submitting documents.
405.334 Prehearing statements.
405.340 Deciding a claim without a hearing before an administrative 
law judge.
405.350 Presenting evidence at a hearing before an administrative 
law judge.
405.351 Closing statements.
405.360 Official record.
405.365 Consolidated hearing before an administrative law judge.
405.366 Posthearing conferences.
405.370 Decision by the administrative law judge.
405.371 Notice of the decision of an administrative law judge.
405.372 Finality of an administrative law judge's decision.
405.373 Requesting consideration of new evidence.
405.380 Dismissal of a request for a hearing before an 
administrative law judge.
405.381 Notice of dismissal of a request for a hearing before an 
administrative law judge.
405.382 Vacating a dismissal of a request for a hearing before an 
administrative law judge.
405.383 Effect of dismissal of a request for a hearing before an 
administrative law judge.
Subpart E--Decision Review Board
405.401 Procedures before the Decision Review Board--general.
405.405 Decision Review Board.
405.410 Selecting claims for Decision Review Board review.
405.415 Notification by the Decision Review Board.
405.420 Effect of Decision Review Board action on the right to seek 
judicial review.
405.425 Procedures before the Decision Review Board.
405.427 Procedures before the Decision Review Board in claims 
dismissed by an administrative law judge.
405.430 Record before the Decision Review Board.
405.440 Actions that the Decision Review Board may take.
405.445 Notification of the Decision Review Board's action.
405.450 Effect of the Decision Review Board's action.
Subpart F--Judicial Review
405.501 Judicial review.
405.505 Extension of time to file a civil action.
405.510 Claims remanded by a Federal court.
405.515 Application of circuit court law.
Subpart G--Reopening and Revising Determinations and Decisions
405.601 Reopening and revising determinations and decisions.
Subpart H--Expedited Appeals Process for Constitutional Issues
405.701 Expedited appeals process--general.
405.705 When the expedited appeals process may be used.
405.710 How to request an expedited appeal.
405.715 Agreement in expedited appeals process.
405.720 Notice of agreement to expedite appeal.
405.725 Effect of expedited appeals process agreement.
Subpart I--Quick Disability Determination Unit and Other State Agency 
Responsibilities
405.801 Purpose and scope.
405.805 Basic responsibilities for us and the State.
405.810 Deemed notice that the State wishes to perform the quick 
disability determination function.
405.815 Making quick disability determinations.
405.820 Notifying claimants of the quick disability determination.
405.825 Processing standard.
405.830 How and when we determine whether the processing standard is 
met.
405.835 Action we will take if a State agency does not meet the 
quick disability determination processing time standard.
405.840 Good cause for not following the Act, our regulations, or 
other written guidelines.
405.845 Hearings and appeals.
405.850 Assumption of the quick disability determination function 
when we make a finding of substantial failure.
Subpart J--Payment of Certain Travel Expenses
405.901 Reimbursement of certain travel expenses.

    Authority: Secs. 201(j), 205(a)-(b), (d)-(h), and (s), 221, 
223(a)-(b), 702(a)(5), 1601, 1602, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 401(j), 405(a)-(b), (d)-(h), and (s), 421, 
423(a)-(b), 902(a)(5), 1381, 1381a, 1383, and 1383b).

Subpart A--Introduction, General Description, and Definitions


Sec.  405.1  Introduction.

    (a) General. This part explains our procedures for adjudicating the 
disability portion of initial claims for entitlement to benefits based 
on disability under title II of the Social Security Act or for 
eligibility for supplemental security income payments based on 
disability or blindness under title XVI of the Act. All adjudicators 
derive their authority from the Commissioner and have the authority to 
find facts and, if appropriate, to conduct a fair and impartial hearing 
in accordance with section 205(b) of the Act.
    (b) Explanation of the administrative review process. Generally, 
the administrative review process consists of several steps, which must 
be requested within certain time periods. The administrative review 
process steps are:
    (1) Initial determination. When you claim disability benefits and a 
period of disability under title II of the Act or eligibility for 
disability or blindness

[[Page 16447]]

payments under title XVI of the Act, we will make an initial 
determination on your claim. See Sec. Sec.  404.902-.903 and 
416.1402-.1403 of this chapter for a description of what is and what is 
not an initial determination.
    (2) Review of initial determination. If you are dissatisfied with 
our initial determination, you may request review by a Federal 
reviewing official.
    (3) Hearing before an administrative law judge. If you are 
dissatisfied with a decision made by the Federal reviewing official, 
you may request a hearing before an administrative law judge. The 
administrative law judge's decision becomes our final decision, unless 
your claim is referred to the Decision Review Board.
    (4) Decision Review Board. When the Decision Review Board reviews 
your claim and issues a decision, that decision is our final decision.
    (5) Federal court review. If you are dissatisfied with our final 
decision as described in paragraphs (b)(3) and (4) of this section, you 
may request judicial review by filing an action in Federal district 
court.
    (c) Nature of the administrative review process. (1) Non-
adversarial proceeding. In making a determination or decision on your 
claim, we conduct the administrative review process in a non-
adversarial manner.
    (2) Evidence considered and right to representation. Subject to the 
provisions of Sec. Sec.  405.331 and 405.430, you may present and we 
will consider information in support of your claim. We also will 
consider any relevant information that we have in our records. To help 
you present your claim to us, you may have someone represent you, 
including an attorney.
    (3) Evidentiary standards applied. When we make a determination or 
decision on your disability claim, we will apply a preponderance of the 
evidence standard, except that the Decision Review Board will review 
findings of fact under the substantial evidence standard.
    (4) Clarity of determination or decision. When we adjudicate your 
claim, the notice of our determination or decision will explain in 
clear and understandable language the specific reasons for allowing or 
denying your claim.
    (5) Consequences of failing to timely follow this administrative 
appeals process. If you do not seek timely review at the next step 
required by these procedures, you will lose your right to further 
administrative review and your right to judicial review, unless you can 
show good cause under Sec.  405.20 for your failure to request timely 
review.
    (d) Expedited appeals process. You may use the expedited appeals 
process if you have no dispute with our findings of fact and our 
application and interpretation of the controlling law, but you believe 
that a part of that law is unconstitutional. This process permits you 
to seek our agreement to allow you to go directly to a Federal district 
court so that the constitutional issue(s) may be resolved.


Sec.  405.5  Definitions.

    As used in this part:
    Act means the Social Security Act, as amended.
    Administrative appeals judge means an official, other than an 
administrative law judge, appointed by the Commissioner to serve on the 
Decision Review Board.
    Administrative law judge means an administrative law judge 
appointed pursuant to the provisions of 5 U.S.C. 3105 who is employed 
by the Social Security Administration.
    Board means Decision Review Board.
    Commissioner means the Commissioner of Social Security, or his or 
her designee.
    Date you receive notice means five days after the date on the 
notice, unless you show us that you did not receive it within the five-
day period.
    Day means calendar day, unless otherwise indicated.
    Decision means the decision made by a Federal reviewing official, 
an administrative law judge, or the Decision Review Board.
    Decision Review Board means the body comprised of administrative 
law judges and administrative appeals judges that reviews decisions and 
dismissal orders by administrative law judges.
    Disability claim or claim means:
    (1) An application for benefits that is based on whether you are 
disabled under title II of the Act, or
    (2) An application for supplemental security income payments that 
is based on whether you are disabled or blind under title XVI of the 
Act.
    (3) For purposes of this part, the terms ``disability claim'' or 
``claim'' do not include a continuing disability review or age-18 
redetermination.
    Document includes books, records, correspondence, papers, as well 
as forms of electronic media such as video tapes, CDs, and DVDs.
    Evidence means evidence as defined under Sec. Sec.  404.1512 and 
416.912 of this chapter.
    Initial determination means the determination by the State agency.
    Medical expert means a medical professional who has the 
qualifications required by the Commissioner and who provides expertise 
to disability adjudicators at the initial, Federal reviewing official, 
and administrative law judge levels of the administrative review 
process.
    Medical and Vocational Expert System means the body comprised of 
medical, psychological, and vocational experts, who have qualifications 
required by the Commissioner. It provides expertise to disability 
adjudicators at the initial, Federal reviewing official, and 
administrative law judge levels of the administrative review process.
    Medical and Vocational Expert Unit means the body within the 
Medical and Vocational Expert System that is responsible, in part, for 
overseeing the national network of medical, psychological, and 
vocational experts.
    National network means those medical, psychological, and vocational 
experts, which may include such experts employed by or under contract 
with the State agencies, who have the qualifications required by the 
Commissioner and who, under agreement with the Medical and Vocational 
Expert Unit, may provide advice within their areas of expertise to 
adjudicators at all levels of the administrative review process.
    Preponderance of the evidence means such relevant evidence that as 
a whole shows that the existence of the fact to be proven is more 
likely than not.
    Psychological expert means a psychological professional who has the 
qualifications required by the Commissioner and who provides expertise 
to disability adjudicators at the initial, Federal reviewing official, 
and administrative law judge levels of the administrative review 
process.
    Quick disability determination means an initial determination on a 
claim that we have identified as one that reflects a high degree of 
probability that you will be found disabled and where we expect that 
your allegations will be easily and quickly verified.
    Quick Disability Determination Unit means the component of the 
State agency that is authorized to make quick disability 
determinations.
    Federal reviewing official means a Federal official who reviews the 
initial determination.
    State agency means the agency of a State that has been designated 
by the State to carry out the disability determination function. It 
also means the Federal disability determination services and agencies 
that carry out the disability determination function in Puerto Rico, 
Guam, and the District of Columbia.

[[Page 16448]]

    Substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.
    Vacate means to set aside a previous action.
    Vocational expert means a vocational professional who has the 
qualifications required by the Commissioner and who provides expertise 
to disability adjudicators at the initial, Federal reviewing official, 
and administrative law judge levels of the administrative review 
process.
    Waive means to give up a right knowingly and voluntarily.
    We, us, or our refers to the Social Security Administration.
    You or your refers to the person who has filed a disability claim 
and, where appropriate, his or her authorized representative.


Sec.  405.10  Medical and Vocational Expert System.

    (a) General. The Medical and Vocational Expert System is comprised 
of the Medical and Vocational Expert Unit and a national network of 
qualified medical, psychological, and vocational experts, which is 
overseen by the Medical and Vocational Expert Unit. These experts from 
the national network will assist Federal reviewing officials and 
administrative law judges in deciding claims. Medical and psychological 
experts from the national network may assist a State agency in 
determining disability when the State agency does not have the 
necessary expertise available to it. The Medical and Vocational Expert 
Unit also will maintain a national registry of vocational experts 
having qualifications required by the Commissioner who could provide 
vocational evidence at the initial level.
    (b) Network of medical, psychological, and vocational experts. From 
time to time, the Commissioner may establish qualifications that 
medical, psychological, and vocational experts must meet in order to 
join the network. Any medical, psychological, or vocational experts 
meeting those qualifications, including State agency medical or 
psychological consultants, may become part of the network.
    (1) Use of medical and psychological experts at the State level. 
(i) If a State agency requests assistance from us, the Medical and 
Vocational Expert Unit may assign, to the extent practicable, a network 
expert to a claim.
    (ii) If a State agency is unable to obtain expertise that the 
Commissioner requires to adjudicate claims involving particular 
impairments, the Medical and Vocational Expert Unit will assign a 
network expert to a claim.
    (iii) The medical or psychological expert so assigned will serve on 
the State agency's adjudication team as a medical or psychological 
consultant and will be deemed qualified as such under Sec. Sec.  
404.1616 and 416.1016 of this chapter.
    (2) Use of network experts at Federal level. Both Federal reviewing 
officials and administrative law judges may request evidence from a 
claimant's treating source, including requesting a treating physician 
to conduct a consultative examination. However, if they need additional 
medical, psychological, or vocational documentary or testimonial 
evidence to adjudicate a claim, they must use the Medical and 
Vocational Expert System.
    (3) Experts who provide evidence at your request. Experts whom you 
ask to provide evidence on your claim are not required to be affiliated 
with the network or meet the qualifications that we establish.
    (c) National registry of vocational experts. Vocational experts 
having the qualifications established by the Commissioner may be 
included in a registry that we will maintain. The registry will be 
maintained for and made available to State agencies.


Sec.  405.20  Good cause for extending deadlines.

    (a) If you wish us to extend the deadline to request a review under 
Sec.  405.210, a hearing under Sec.  405.310, action by the Decision 
Review Board under Sec.  405.427(a), or judicial review under 
Sec. Sec.  405.501-.505, you must establish that there is good cause 
for missing the deadline. To establish good cause, you must show us 
that--
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from filing a timely request; or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from filing a timely request.
    (b) Examples of circumstances that, if documented, may establish 
good cause include, but are not limited to, the following:
    (1) You were seriously ill, and your illness prevented you from 
contacting us in person, in writing, or through a friend, relative, or 
other person;
    (2) There was a death or serious illness in your immediate family;
    (3) Important records were destroyed or damaged by fire or other 
accidental cause;
    (4) You were trying very hard to find necessary information to 
support your claim but did not find the information within the stated 
time period;
    (5) Within the time limit for requesting further review, you asked 
us for additional information explaining our action, and within 60 days 
of receiving the explanation, you requested a review;
    (6) We gave you incorrect or incomplete information about when and 
how to request administrative review or to file a civil suit;
    (7) You did not receive notice of the determination or decision; or
    (8) You sent the request to another Government agency in good faith 
within the time limit, and the request did not reach us until after the 
time period had expired.


Sec.  405.25  Disqualification of disability adjudicators.

    Adjudicators at all levels of the administrative review process 
recognize the need for fair and impartial consideration of the merits 
of your claim. Any adjudicator who has any personal or financial 
interest in the matter pending for determination or decision will 
withdraw from conducting any proceeding with respect to your disability 
claim. If the adjudicator so withdraws, we will assign your claim to 
another adjudicator for a determination or decision.


Sec.  405.30  Discrimination complaints.

    At all levels of the administrative review process, we do not give 
inappropriate consideration to your race, color, national origin, age, 
sex, religion, or nature of your impairment(s). If you believe that an 
adjudicator has improperly discriminated against you, you may file a 
discrimination complaint with us. You must file any such complaint 
within 180 days of the date upon which you became aware that you may 
have been discriminated against.

Appendix to Subpart A of Part 405--Claims That Will Be Handled Under 
the Procedures in This Part

    (a) What is this Appendix for? This appendix lists the type of 
claims that will be handled under the procedures in this part, and 
in which States we will apply these procedures. If you meet the 
criteria in paragraphs (b) and (c) of this appendix, we will apply 
the procedures in this part when we decide your disability claim.
    (b) What claims will be handled under the procedures in this 
part? (1) We will apply the procedures in this part if you file a 
disability claim (as defined in Sec.  405.5) in one of the States 
listed in paragraph (c) of this appendix.
    (2) If you move from one State to another after your disability 
claim has been filed, adjudicators at subsequent levels of review

[[Page 16449]]

will apply the regulations that initially applied to the disability 
claim. For example, if you file a claim in a State in a region in 
which we have implemented the procedures in this part, the 
procedures in this part will apply to the disability claim at 
subsequent levels of review, even if you move to a State in a region 
where we have not yet implemented these procedures. Conversely, if 
you file a claim in a State in a region where we have not yet 
implemented the procedures in this part, we will adjudicate the 
claim using the procedures in part 404 or 416 of this chapter, as 
appropriate, even if you subsequently move to a State where we have 
implemented the procedures in this part.
    (c) Which States are using the procedures in this part? The 
procedures in this part apply in Maine, New Hampshire, Vermont, 
Massachusetts, Rhode Island, and Connecticut.
    (d) Section 405.835 will be effective one year from the 
effective date of this rule.

Subpart B--Initial Determinations


Sec.  405.101  Disability determinations.

    The State agency, unless it makes a quick disability determination 
under Sec. Sec.  405.105-.110, will adjudicate your claim using the 
applicable procedures in subpart Q of part 404 or subpart J of part 416 
of this chapter or both and will apply subpart P of part 404 or subpart 
I of part 416 of this chapter or both. The disability examiner will 
make a determination based on all of the evidence. The written 
determination will explain in clear and understandable language the 
specific reasons for and the effect of the initial determination. It 
will also inform you of your right to review by a Federal reviewing 
official and your right to representation.


Sec.  405.105  Quick disability determination process.

    (a) If we identify your claim as one involving a high degree of 
probability that you are disabled, and we expect that your allegations 
will be easily and quickly verified, we will refer your claim to a 
Quick Disability Determination Unit, comprised of experienced State 
agency disability examiners.
    (b) If we send your claim to a Quick Disability Determination Unit, 
within 20 days of the date your claim is received by the unit, that 
unit must:
    (1) Have a medical or psychological expert (as defined in Sec.  
405.5 of this part) verify that the medical evidence in the file is 
sufficient to determine that, as of your alleged onset date, your 
physical or mental impairment(s) meets the standards we establish for 
making quick disability determinations, and
    (2) Subject to the provisions of paragraph (c) of this section, 
make the quick disability determination as described in Sec.  405.110.
    (c) If the Quick Disability Determination Unit cannot make a 
determination that is fully favorable to you within 20 days of 
receiving it or if there is an unresolved disagreement between the 
disability examiner and the medical or psychological expert, the State 
agency will adjudicate your claim using the applicable procedures in 
subpart Q of part 404 or subpart J of part 416 of this chapter or both, 
and will apply subpart P of part 404 or subpart I of part 416 of this 
chapter or both.


Sec.  405.110  Standards for making quick disability determinations.

    Subject to Sec.  405.105, when making a quick disability 
determination, the State agency will apply subpart P of part 404 or 
subpart I of part 416 of this chapter or both.


Sec.  405.115  Notice of the initial determination.

    We will mail a written notice of the initial determination to you 
at your last known address. The written notice will explain in clear 
and understandable language the specific reasons for and the effect of 
the initial determination. The notice also will inform you of the right 
to review by a Federal reviewing official and explain your right to 
representation.


Sec.  405.120  Effect of an initial determination.

    An initial determination is binding unless--
    (a) You request review by a Federal reviewing official within the 
60-day time period stated in Sec.  405.210 of this part, or
    (b) We revise the initial determination under subpart G of this 
part.

Subpart C--Review of Initial Determinations by a Federal Reviewing 
Official


Sec.  405.201  Reviewing an initial determination--general.

    If you are dissatisfied with the initial determination on your 
disability claim, you may request review by a Federal reviewing 
official.


Sec.  405.210  How to request review of an initial determination.

    (a) Written request. You must request review by filing a written 
request. You should include in your request--
    (1) Your name and social security number,
    (2) If you have filed a claim for benefits based on disability 
under title II of the Act under an account other than your own, the 
name and social security number of the wage earner under whose account 
you are filing,
     (3) The reasons you disagree with the initial determination on 
your disability claim,
    (4) Additional evidence that you have available to you, and
    (5) The name and address of your representative, if any.
    (b) Time limit for filing request. We will review an initial 
determination if you request review in writing no later than 60 days 
after the date you receive notice of the initial determination (or 
within the extended time period if we extend the time as provided in 
paragraph (d) of this section).
    (c) Place for filing request. You should submit a written request 
for review at one of our offices. If your disability claim is under 
title II of the Act, you may also file the request at the Veterans 
Administration Regional Office in the Philippines, or if you have 10 or 
more years of service, or at least five years of service accruing after 
December 31, 1995, in the railroad industry, an office of the Railroad 
Retirement Board.
    (d) Extension of time to request review. If you want us to review 
the initial determination on your disability claim, but you do not 
request review timely, you may ask us for more time to request review. 
Your request for an extension of time must be in writing and must give 
the reasons the request for review was not filed, or cannot be filed, 
in time. If you show us that you have good cause for missing the 
deadline, we will extend the time period. To determine whether good 
cause exists, we will use the standards explained in Sec.  405.20 of 
this part.


Sec.  405.215  Procedures before a Federal reviewing official.

    (a) General. The Federal reviewing official will review existing 
evidence and accept and obtain new evidence in order to make a decision 
on your claim. The decision will be based on all evidence in the 
record.
    (b) Developing the record. If you have additional evidence that you 
did not submit with your request for review, you should submit that 
evidence to the Federal reviewing official as soon as possible. If 
there is additional evidence that you wish to submit and you are having 
difficulty obtaining it, the Federal reviewing official may issue a 
subpoena for the evidence using the process and standards described in 
Sec.  405.217. If the Federal reviewing official determines that 
additional evidence is necessary, we may obtain such evidence from 
other sources, including the State agency.
    (c) Seeking State agency clarification. In reviewing your claim, if 
the Federal reviewing official determines that additional information, 
beyond that provided by the claimant, is necessary, the Federal 
reviewing official may

[[Page 16450]]

obtain it from other sources, including the State agency or a treating 
source. The State agency will provide such clarification or additional 
information to the Federal reviewing official on a timely basis. In 
such circumstances, the Federal reviewing official will retain the 
authority to make the decision as to whether or not you are disabled.


Sec.  405.217  Subpoenas.

    (a) When it is reasonably necessary for the full presentation of a 
claim, we may issue subpoenas for the production of any documents that 
are relevant to an issue before the Federal reviewing official.
    (b) To have documents subpoenaed, you must file a written request 
for a subpoena with us.
    The written request must:
    (1) Identify the documents with sufficient detail to find them;
    (2) State the important facts that the document is expected to 
show; and
    (3) Indicate why these facts could not be shown without that 
document.
    (c) We will pay the cost of issuing the subpoena.
    (d) Within five days of receipt of a subpoena, the person against 
whom the subpoena is directed may ask us to withdraw or limit the scope 
of the subpoena, setting forth the reasons why the subpoena should be 
withdrawn or why it should be limited in scope.
    (e) Upon failure of any person to comply with a subpoena, the 
Office of the General Counsel may seek enforcement of the subpoena 
under section 205(e) of the Act.


Sec.  405.220  Decision by the Federal reviewing official.

    (a) The Federal reviewing official will make a decision based on 
all of the evidence. The written decision will explain in clear and 
understandable language the specific reasons for the decision, 
including an explanation as to why the Federal reviewing official 
agrees or disagrees with the rationale in the initial determination.
    (b) Before making his or her decision, the Federal reviewing 
official may consult with a medical, psychological, or vocational 
expert through the Medical and Vocational Expert System if the Federal 
reviewing official determines that such consultation is necessary. If 
the Federal reviewing official disagrees with the initial 
determination, or if you submit, or the Federal reviewing official 
otherwise obtains, new and material medical evidence, the Federal 
reviewing official will consult with a medical or psychological expert 
through the Medical and Vocational Expert System before making a 
decision. At all times, the Federal reviewing official retains the 
authority to make the decision as to whether you are disabled under our 
rules.


Sec.  405.225  Notice of the Federal reviewing official's decision.

    We will mail a written notice of the Federal reviewing official's 
decision to you at your last known address. We will inform you of your 
right to a hearing before an administrative law judge.


Sec.  405.230  Effect of the Federal reviewing official's decision.

    The Federal reviewing official's decision is binding unless--
    (a) You request a hearing before an administrative law judge under 
Sec.  405.310 of this part within 60 days of the date you receive 
notice of the Federal reviewing official's decision and a decision is 
made by the administrative law judge,
    (b) The expedited appeals process is used, or
    (c) We revise the Federal reviewing official's decision under 
subpart G of this part.

Subpart D--Administrative Law Judge Hearing


Sec.  405.301  Hearing before an administrative law judge--general.

    (a) This subpart explains what to do if you are dissatisfied with a 
decision by a Federal reviewing official. In it, we describe how you 
may ask for a hearing before an administrative law judge, and what 
procedures we will follow when you ask for a hearing.
    (b) The Commissioner will appoint an administrative law judge to 
conduct the hearing. If circumstances warrant after making the 
appointment (for example, if the administrative law judge becomes 
unavailable), the Commissioner may assign your claim to another 
administrative law judge.
    (c) You may examine the evidence used in making the Federal 
reviewing official's decision, submit evidence, appear at the hearing, 
and present and question witnesses. The administrative law judge may 
ask you questions and will issue a decision based on the hearing 
record. If you waive your right to appear at the hearing, the 
administrative law judge will make a decision based on the evidence 
that is in the file, any new evidence that is timely submitted, and any 
evidence that the administrative law judge obtains.


Sec.  405.305  Availability of a hearing before an administrative law 
judge.

    You may request a hearing before an administrative law judge if you 
are dissatisfied with the Federal reviewing official's decision on your 
disability claim.


Sec.  405.310  How to request a hearing before an administrative law 
judge.

    (a) Written request. You must request a hearing by filing a written 
request. You should include in your request--
    (1) Your name and social security number,
    (2) If you have filed a claim for benefits based on disability 
under title II of the Act under an account other than your own, the 
name and social security number of the wage earner under whose account 
you are filing,
    (3) The specific reasons you disagree with the decision made by the 
Federal reviewing official,
    (4) A statement of the medically determinable impairment(s) that 
you believe prevents you from working,
    (5) Additional evidence that you have available to you, and
    (6) The name and address of your representative, if any.
    (b) Time limit for filing request. An administrative law judge will 
conduct a hearing if you request one in writing no later than 60 days 
after the date you receive notice of the Federal reviewing official's 
decision (or within the extended time period if we extend the time as 
provided in paragraph (d) of this section). The administrative law 
judge may decide your disability claim without an oral hearing under 
the circumstances described in Sec.  405.340.
    (c) Place for filing request. You should submit a written request 
for a hearing at one of our offices. If you have a disability claim 
under title II of the Act, you may also file the request at the 
Veterans Administration Regional Office in the Philippines, or if you 
have 10 or more years of service, or at least five years of service 
accruing after December 31, 1995, in the railroad industry, an office 
of the Railroad Retirement Board.
    (d) Extension of time to request a hearing. If you want a hearing 
before an administrative law judge, but you do not request it timely, 
you may ask us for more time to request a hearing. Your request for an 
extension of time must be in writing and must give the reasons the 
request for review was not filed, or cannot be filed, in time. If you 
show us that you have good cause for missing the deadline, we will 
extend the time period. To determine whether good cause exists, we use 
the standards explained in Sec.  405.20 of this part.
    (e) Waiver of the right to appear. After you submit your request 
for a hearing, you may ask the administrative law judge to decide your 
claim without a hearing, as described in Sec.  405.340(b).

[[Page 16451]]

The administrative law judge may grant the request unless he or she 
believes that a hearing is necessary. You may withdraw this waiver of 
your right to appear at a hearing any time before notice of the hearing 
decision is mailed to you, and we will schedule a hearing as soon as 
practicable.


Sec.  405.315  Time and place for a hearing before an administrative 
law judge.

    (a) General. The administrative law judge sets the time and place 
for the hearing. The administrative law judge will notify you of the 
time and place of the hearing at least 75 days before the date of the 
hearing, unless you agree to a shorter notice period. If it is 
necessary, the administrative law judge may change the time and place 
of the hearing. If the administrative law judge changes the time and 
place of the hearing, he or she will send you reasonable notice of the 
change.
    (b) Where we hold hearings. We hold hearings in the 50 States, the 
District of Columbia, American Samoa, Guam, the Northern Mariana 
Islands, the Commonwealth of Puerto Rico, and the United States Virgin 
Islands.
    (c) Determination regarding in-person or video teleconference 
appearance of witnesses at the hearing. In setting the time and place 
of the hearing, the administrative law judge will determine whether you 
or any other person will appear at the hearing in person or by video 
teleconferencing. If you object to appearing personally by video 
teleconferencing, we will re-schedule the hearing to a time and place 
at which you may appear in person before the administrative law judge. 
If you object to any other person appearing by video teleconferencing, 
the administrative law judge will decide whether to have that person 
appear in person or by video teleconference. Section 405.350 explains 
how you and witnesses appear and present evidence at hearings. Except 
when you object to appearing by video teleconferencing as described 
below, the administrative law judge will direct that a person's 
appearance will be conducted by video teleconferencing when:
    (1) Video teleconferencing technology is available,
    (2) Use of video teleconferencing technology would be more 
efficient than conducting an examination of a witness in person, and
    (3) The administrative law judge does not determine that there is 
another reason why video teleconferencing should not be used.


Sec.  405.316  Notice of a hearing before an administrative law judge.

    (a) Issuing the notice. After the administrative law judge sets the 
time and place of the hearing, we will mail notice of the hearing to 
you at your last known address, or give the notice to you by personal 
service. We will mail or serve the notice at least 75 days before the 
date of the hearing, unless you agree to a shorter notice period.
    (b) Notice information. The notice of hearing will tell you:
    (1) The specific issues to be decided,
    (2) That you may designate a person to represent you during the 
proceedings,
    (3) How to request that we change the time or place of your 
hearing,
    (4) That your hearing request may be dismissed if you fail to 
appear at your scheduled hearing without good reason under Sec.  
405.20,
    (5) Whether your or a witness's appearance will be by video 
teleconferencing, and
    (6) That you must submit all evidence that you wish to have 
considered at the hearing no later than five business days before the 
date of the scheduled hearing, unless you show that your circumstances 
meet the conditions described in Sec.  405.331 for missing the 
deadline.
    (c) Acknowledging the notice of hearing. In the notice of hearing, 
we will ask you to return a form to let us know that you received the 
notice. If you or your representative do(es) not acknowledge receipt of 
the notice of hearing, we will attempt to contact you to see if you 
received it. If you let us know that you did not receive the notice of 
hearing, we will send you an amended notice by certified mail.


Sec.  405.317  Objections.

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


Sec.  405.320  Administrative law judge hearing procedures--general.

    (a) General. A hearing is open only to you and to other persons the 
administrative law judge considers necessary and proper. The 
administrative law judge will conduct the proceedings in an orderly and 
efficient manner. At the hearing, the administrative law judge will 
look fully into all of the issues raised by your claim, will question 
you and the other witnesses, and will accept any evidence relating to 
your claim that you submit in accordance with Sec.  405.331.
    (b) Conduct of the hearing. The administrative law judge will 
decide the order in which the evidence will be presented. The 
administrative law judge may stop the hearing temporarily and continue 
it at a later date if he or she decides that there is evidence missing 
from the record that must be obtained before the hearing may continue. 
At any time before the notice of the decision is sent to you, the 
administrative law judge may hold a supplemental hearing in order to 
receive additional evidence, consistent with the procedures described 
below. If an administrative law judge requires testimony or other 
evidence from a medical, psychological, or vocational expert in your 
claim, the Medical and Vocational Expert Unit (see Sec.  405.10 of this 
part) will provide an appropriate expert who has not had any prior 
involvement in your claim.


Sec.  405.325  Issues before an administrative law judge.

    (a) General. The issues before the administrative law judge include 
all the issues raised by your claim, regardless of whether or not the 
issues may have already been decided in your favor.
    (b) New issues. Any time after receiving the hearing request and 
before mailing notice of the hearing decision, the administrative law 
judge may consider a new issue if he or she, before deciding the issue, 
provides you an opportunity to address it. The administrative law judge 
or any party may raise a new issue; an issue may be raised even though 
it arose after the request for a hearing and even though it

[[Page 16452]]

has not been considered in an initial or reconsidered determination.
    (c) Collateral estoppel--issues previously decided. In one of our 
previous and final determinations or decisions involving you, but 
arising under a different title of the Act or under the Federal Coal 
Mine Health and Safety Act, we already may have decided a fact that is 
an issue before the administrative law judge. If this happens, the 
administrative law judge will not consider the issue again, but will 
accept the factual finding made in the previous determination or 
decision, unless he or she has reason to believe that it was wrong, or 
reopens the previous determination or decision under subpart G of this 
part.


Sec.  405.330  Prehearing conferences.

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


Sec.  405.331  Submitting evidence to an administrative law judge.

    (a) You should submit with your request for hearing any evidence 
that you have available to you. Any written evidence that you wish to 
be considered at the hearing must be submitted no later than five 
business days before the date of the scheduled hearing. If you do not 
comply with this requirement, the administrative law judge may decline 
to consider the evidence unless the circumstances described in 
paragraphs (b) or (c) of this section apply.
    (b) If you miss the deadline described in paragraph (a) of this 
section and you wish to submit evidence during the five business days 
before the hearing or at the hearing, the administrative law judge will 
accept the evidence if you show that:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from submitting the evidence earlier; 
or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from submitting the evidence earlier.
    (c) If you miss the deadline described in paragraph (a) of this 
section and you wish to submit evidence after the hearing and before 
the hearing decision is issued, the administrative law judge will 
accept the evidence if you show that there is a reasonable possibility 
that the evidence, alone or when considered with the other evidence of 
record, would affect the outcome of your claim, and:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from submitting the evidence earlier; 
or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from submitting the evidence earlier.


Sec.  405.332  Subpoenas.

    (a) When it is reasonably necessary for the full presentation of a 
claim, an administrative law judge may, on his or her own initiative or 
at your request, issue subpoenas for the appearance and testimony of 
witnesses and for the production of any documents that are relevant to 
an issue at the hearing.
    (b) To have documents or witnesses subpoenaed, you must file a 
written request for a subpoena with the administrative law judge at 
least 10 days before the hearing date. The written request must:
    (1) Give the names of the witnesses or documents to be produced;
    (2) Describe the address or location of the witnesses or documents 
with sufficient detail to find them;
    (3) State the important facts that the witness or document is 
expected to show; and
    (4) Indicate why these facts could not be shown without that 
witness or document.
    (c) We will pay the cost of issuing the subpoena and pay subpoenaed 
witnesses the same fees and mileage they would receive if they had been 
subpoenaed by a Federal district court.
    (d) Within five days of receipt of a subpoena, but no later than 
the date of the hearing, the person against whom the subpoena is 
directed may ask the administrative law judge to withdraw or limit the 
scope of the subpoena, setting forth the reasons why the subpoena 
should be withdrawn or why it should be limited in scope.
    (e) Upon failure of any person to comply with a subpoena, the 
Office of the General Counsel may seek enforcement of the subpoena 
under section 205(e) of the Act.


Sec.  405.333  Submitting documents.

    All documents prepared and submitted by you, i.e., not including 
medical or other evidence that is prepared by persons other than the 
claimant or his or her representative, should clearly designate the 
name of the claimant and the last four digits of the claimant's social 
security number. All such documents must be clear and legible to the 
fullest extent practicable and delivered or mailed to the 
administrative law judge within the time frames that he or she 
prescribes. Documents that are typewritten or produced with word 
processing software must use type face no smaller than 12 point font.


Sec.  405.334  Prehearing statements.

    (a) At any time before the hearing begins, you may submit, or the 
administrative law judge may request that you submit, a prehearing 
statement as to why you are disabled.
    (b) Unless otherwise requested by the administrative law judge, a 
prehearing statement should discuss briefly the following matters:
    (1) Issues involved in the proceeding,
    (2) Facts,
    (3) Witnesses,
    (4) The evidentiary and legal basis upon which your disability 
claim can be approved, and
    (5) Any other comments, suggestions, or information that might 
assist the administrative law judge in preparing for the hearing.


Sec.  405.340  Deciding a claim without a hearing before an 
administrative law judge.

    (a) Decision wholly favorable. If the evidence in the record 
supports a decision wholly in your favor, the administrative law judge 
may issue a decision without holding a hearing. However, the notice of 
the decision will inform you that you have the right to a hearing and 
that you have a right to examine the evidence on which the decision is 
based.
    (b) You do not wish to appear. The administrative law judge may 
decide a

[[Page 16453]]

claim on the record and not conduct a hearing if--
    (1) You state in writing that you do not wish to appear at a 
hearing, or
    (2) You live outside the United States and you do not inform us 
that you want to appear.
    (c) When a hearing is not held, the administrative law judge will 
make a record of the evidence, which, except for the transcript of the 
hearing, will contain the material described in Sec.  405.360. The 
decision of the administrative law judge must be based on this record.


Sec.  405.350  Presenting evidence at a hearing before an 
administrative law judge.

    (a) The right to appear and present evidence. You have a right to 
appear before the administrative law judge, either in person or, when 
the administrative law judge determines that the conditions in Sec.  
405.315(c) exist, by video teleconferencing, to present evidence and to 
state your position. You also may appear by means of a designated 
representative.
    (b) Admissible evidence. The administrative law judge may receive 
any evidence at the hearing that he or she believes relates to your 
claim.
    (c) Witnesses at a hearing. Witnesses who appear at a hearing shall 
testify under oath or by affirmation, unless the administrative law 
judge finds an important reason to excuse them from taking an oath or 
making an affirmation. The administrative law judge, you, or your 
representative may ask the witnesses any questions relating to your 
claim.


Sec.  405.351  Closing statements.

    You or your representative may present a closing statement to the 
administrative law judge--
    (a) Orally at the end of the hearing,
    (b) In writing after the hearing and within a reasonable time 
period set by the administrative law judge, or
    (c) By using both methods under paragraphs (a) and (b).


Sec.  405.360  Official record.

    All hearings will be recorded. All evidence upon which the 
administrative law judge relies for the decision must be contained in 
the record, either directly or by appropriate reference. The official 
record will include the applications, written statements, certificates, 
reports, affidavits, medical records, and other documents that were 
used in making the decision under review and any additional evidence or 
written statements that the administrative law judge admits into the 
record under Sec. Sec.  405.320(a) and 405.331. All exhibits introduced 
as evidence must be marked for identification and incorporated into the 
record. The official record of your claim will contain all of the 
marked exhibits and a verbatim recording of all testimony offered at 
the hearing; it also will include any prior initial determinations or 
decisions on your claim. Subject to Sec.  405.373, the official record 
closes once the administrative law judge issues his or her decision 
regardless of whether it becomes our final decision.


Sec.  405.365  Consolidated hearing before an administrative law judge.

    (a) General. (1) We may hold a consolidated hearing if--
    (i) You have requested a hearing to decide your disability claim, 
and
    (ii) One or more of the issues to be considered at your hearing is 
the same as an issue involved in another claim you have pending before 
us.
    (2) If the administrative law judge consolidates the claims, he or 
she will decide both claims, even if we have not yet made an initial 
determination or a Federal reviewing official decision on the other 
claim.
    (b) Record, evidence, and decision. There will be a single record 
at a consolidated hearing. This means that the evidence introduced at 
the hearing becomes the evidence of record in each claim adjudicated. 
The administrative law judge may issue either a consolidated decision 
or separate decisions for each claim.


Sec.  405.366  Posthearing conferences.

    (a) The administrative law judge may decide, on his or her own 
initiative or at your request, to hold a posthearing conference to 
facilitate the hearing decision. A posthearing conference normally will 
be held by telephone unless the administrative law judge decides that 
conducting it in another manner would be more efficient and effective 
in addressing the issues raised. We will give you reasonable notice of 
the time, place, and manner of the conference. A record of the 
conference will be made and placed in the hearing record.
    (b) If neither you nor the person you designate to act as your 
representative appears at the posthearing conference, and under Sec.  
405.380(b), you do not have a good reason for failing to appear, we 
will issue a decision based on the information available in your claim.


Sec.  405.370  Decision by the administrative law judge.

    (a) The administrative law judge will make a decision based on all 
of the evidence, including the testimony adduced at the hearing. The 
administrative law judge will prepare a written decision that explains 
in clear and understandable language the specific reasons for the 
decision. While the administrative law judge will not consider the 
Federal reviewing official's decision to be evidence, the written 
decision will explain in detail why the administrative law judge agrees 
or disagrees with the substantive findings and overall rationale of the 
decision.
    (b) During the hearing, in certain categories of claims that we 
identify in advance, the administrative law judge may orally explain in 
clear and understandable language the specific reasons for, and enter 
into the record, a wholly favorable decision. The administrative law 
judge will include in the record a document that sets forth the key 
data, findings of fact, and narrative rationale for the decision. 
Within five days after the hearing, if there are no subsequent changes 
to the analysis in the oral decision, we will send you a written 
decision that incorporates such oral decision by reference and that 
explains why the administrative law judge agrees or disagrees with the 
substantive findings and overall rationale of the Federal reviewing 
official's decision. If there is a change in the administrative law 
judge's analysis or decision, we will send you a written decision that 
is consistent with paragraph (a) of this section. Upon written request, 
we will provide you a record of the oral decision.


Sec.  405.371  Notice of the decision of an administrative law judge.

    We will send a notice and the administrative law judge's decision 
to you at your last known address. The notice accompanying the decision 
will inform you whether or not the decision is our final decision, and 
will explain your right to representation. If it is not our final 
decision, the notice will explain that the Decision Review Board has 
taken review of your claim.


Sec.  405.372  Finality of an administrative law judge's decision.

    The decision of the administrative law judge becomes our final 
decision and is binding on you unless--
    (a) The Decision Review Board reviews your claim,
    (b) An administrative law judge or the Decision Review Board 
revises the decision under subpart G of this part,
    (c) A Federal court reverses the decision or remands it for further 
administrative action, or
    (d) The administrative law judge considers new evidence under Sec.  
405.373.

[[Page 16454]]

Sec.  405.373  Requesting consideration of new evidence.

    (a) If the administrative law judge's decision is our final 
decision, the administrative law judge will consider new evidence 
submitted after the issuance of the decision if your claim has not been 
referred to the Decision Review Board. To obtain such consideration, 
you must request consideration by the administrative law judge at the 
earliest possible opportunity, but no later than 30 days after the date 
you receive notice of the decision.
    (b) The administrative law judge will accept the evidence if you 
show that there is a reasonable probability that the evidence, alone or 
when considered with the other evidence of record, would change the 
outcome of the decision, and:
    (1) Our action misled you;
    (2) You had a physical, mental, educational, or linguistic 
limitation(s) that prevented you from submitting the evidence earlier; 
or
    (3) Some other unusual, unexpected, or unavoidable circumstance 
beyond your control prevented you from submitting the evidence earlier.
    (c)(1) The administrative law judge will notify you within 10 days 
whether or not he or she will reconsider the final decision.
    (2) If the administrative law judge declines to reconsider his or 
her decision, the decision remains final. If you choose to seek 
judicial review, you must file in Federal court within the 60-day 
period beginning with the date you originally received the final 
decision.
    (3) If the administrative law judge agrees to reconsider his or her 
decision based on the new evidence, the final decision is vacated and 
not subject to judicial review. After considering the new evidence, the 
administrative law judge will take appropriate action, including 
rendering a decision under Sec.  405.370, and we will send you notice 
of the decision under Sec.  405.371.
    (d) If the administrative law judge's decision is not our final 
decision, you must submit your evidence to the Decision Review Board, 
and the Board will consider it if you make the showings required in 
paragraph (b) of this section.


Sec.  405.380  Dismissal of a request for a hearing before an 
administrative law judge.

    An administrative law judge may dismiss a request for a hearing:
    (a) At any time before notice of the hearing decision is mailed, 
when you withdraw the request orally on the record at the hearing or in 
writing;
    (b)(1) If neither you nor the person you designate to act as your 
representative appears at the hearing or at the prehearing conference, 
we previously notified you that your request for hearing may be 
dismissed if you did not appear, and you do not give a good reason for 
failing to appear; or
    (2) If neither you nor the person you designate to act as your 
representative appears at the hearing or at the prehearing conference, 
we had not previously notified you that your request for hearing may be 
dismissed if you did not appear, and within 10 days after we send you a 
notice asking why you did not appear, you do not give a good reason for 
failing to appear.
    (3) In determining whether you had a good reason under this 
paragraph, we will consider the factors described in Sec.  405.20(a) of 
this part;
    (c) If the doctrine of res judicata applies because we have made a 
previous determination or decision on your disability claim on the same 
facts and on the same issue or issues, and this previous determination 
or decision has become final;
    (d) If you have no right to a hearing under Sec.  405.305;
    (e) If you did not request a hearing in time and we have not 
extended the time for requesting a hearing; or
    (f) If you die and your estate or any person to whom an 
underpayment may be distributed under Sec. Sec.  404.503 or 416.542 of 
this chapter has not pursued your claim.


Sec.  405.381  Notice of dismissal of a request for a hearing before an 
administrative law judge.

    We will mail a written notice of the dismissal of the hearing 
request to you at your last known address. The notice will tell you 
that you may ask the administrative law judge to vacate the dismissal 
(see Sec.  405.382), and will explain your right to representation. The 
notice will also tell you that you may ask the Decision Review Board to 
review the dismissal if the administrative law judge does not vacate 
it.


Sec.  405.382  Vacating a dismissal of a request for a hearing before 
an administrative law judge.

    If you ask in writing within 30 days after the date you receive the 
notice of dismissal, an administrative law judge may vacate a dismissal 
of a hearing request. The administrative law judge will vacate the 
dismissal if he or she finds that it was erroneous. We will notify you 
of whether the administrative law judge granted or denied your request.


Sec.  405.383  Effect of dismissal of a request for a hearing before an 
administrative law judge.

    The administrative law judge's dismissal of a request for a hearing 
is binding and not subject to further review, unless it is vacated by 
the administrative law judge under Sec.  405.382 or by the Decision 
Review Board under Sec.  405.427 of this part.

Subpart E--Decision Review Board


Sec.  405.401  Procedures before the Decision Review Board--general.

    (a) This subpart describes the Decision Review Board and explains 
the Board's procedures for reviewing administrative law judge 
decisions. It explains which claims the Board will review and the 
effects of that review on your claim.
    (b) This subpart also describes how the Board may review the 
administrative law judge's dismissal of your hearing request and sets 
out the procedures that we use when you request that the Board vacate 
the administrative law judge's dismissal order.


Sec.  405.405  Decision Review Board.

    (a) The Board is comprised of administrative law judges and 
administrative appeals judges, who are appointed to the Board by the 
Commissioner. It is responsible for evaluating and reviewing certain 
decisions made by administrative law judges under this part before the 
decisions are effectuated.
    (b) As described in Sec.  405.410, the Board will review 
administrative law judge decisions. You may not appeal an 
administrative law judge's decision to the Board. The Board may affirm, 
modify, or reverse the administrative law judge's decision. It also may 
remand your claim to the administrative law judge for further action 
and decision.
    (c) The Board is also the final step in the administrative review 
process if the administrative law judge dismissed your request for a 
hearing under Sec.  405.380 of this part. As explained in Sec.  405.382 
of this part, you must ask the administrative law judge to vacate his 
or her dismissal order before you may ask the Board to vacate the 
order.
    (d) In addition, the Board may review your claim after the 
administrative law judge's decision has been effectuated to study our 
disability determination process. If the Board reviews your claim under 
this paragraph, it will not change the administrative law judge's 
decision in your claim, unless the Board determines that the rules in 
subpart G of this part apply. If the Board

[[Page 16455]]

determines that subpart G applies, it may reopen and revise the 
administrative law judge's decision.
    (e) The Board also may identify issues that impede consistent 
adjudication at all levels of the disability determination process and 
may recommend improvements to that process.


Sec.  405.410  Selecting claims for Decision Review Board review.

    (a)(1) The Board may review your claim if the administrative law 
judge made a decision under Sec. Sec.  405.340 or 405.370 of this part, 
regardless of whether the administrative law judge's decision was 
unfavorable, partially favorable, or wholly favorable to you.
    (2) Claims the Board will review may include those where there is 
an increased likelihood of error or that involve the application of new 
policies, rules, or procedures. The Board will review both allowances 
and denials of benefits. It will not review claims based on the 
identity of the administrative law judge who decided the claim.
    (b)(1) The Board may reopen claims under subpart G of this part 
without regard to the time limits therein, if, in the view of our 
effectuating component, the administrative law judge's decision cannot 
be effectuated because it contains a clerical error affecting the 
outcome of the claim, the decision is clearly inconsistent with the Act 
or our regulations, or the decision is unclear regarding a matter that 
affects the outcome of the claim.
    (2) If the Board reopens your claim, it will do so no later than 60 
days from the date of the administrative law judge's decision.


Sec.  405.415  Notification by the Decision Review Board.

    When the Board reviews your claim, we will notify you. The notice 
will explain that the Board will review the decision and will complete 
its action on your claim within 90 days of the date you receive notice. 
The notice also will explain that if the Board does not complete its 
action on your claim within 90 days, the administrative law judge's 
decision will become our final decision.


Sec.  405.420  Effect of Decision Review Board action on the right to 
seek judicial review.

    (a)(1) Subject to the provisions of paragraph (a)(2) of this 
section, if the Board reviews your claim, the administrative law 
judge's decision will not be our final decision.
    (2) If the Board does not complete its review within 90 days of the 
date you receive notice that the Board will review your claim, the 
administrative law judge's decision will become our final decision. If 
you are dissatisfied with this final decision, you may seek judicial 
review of the decision under section 205(g) of the Act within 60 days 
of the expiration of the 90-day time period. The Board will take no 
further action with respect to your claim, unless it determines that it 
can make a decision that is fully favorable to you under the provisions 
of paragraph (a)(3) of this section.
    (3) If the administrative law judge's decision becomes our final 
decision under the provisions of paragraph (a)(2) of this section, but 
the Board determines that it can make a decision that is fully 
favorable to you, it will reopen the administrative law judge's 
decision in accordance with subpart G of this part without regard to 
the time limits therein, and revise it as appropriate. If you have 
already sought judicial review of the final decision under section 
205(g) of the Act, the Board will notify the Office of the General 
Counsel, which will then take appropriate action to request that the 
court remand the claim for the purpose of issuing the Board's decision.
    (4) Paragraphs (a)(2) and (3) of this section do not apply to 
dismissals that you have asked the Board to review. You must wait for 
the Board to take action. The appeal rights, if any, that will be 
available at that time depend on the nature of the Board's action and 
will be explained in the Board's notice.
    (b)(1) When the Board reviews your claim, it will either make our 
final decision or remand the claim to an administrative law judge for 
further proceedings consistent with the Board's remand order.
    (2) If the Board makes our final decision in your claim, it will 
send you notice of the decision, as explained in Sec.  405.445. If you 
are dissatisfied with the final decision, you may seek judicial review 
of the decision under section 205(g) of the Act.
    (3) If the Board remands your claim to an administrative law judge, 
the Board's remand order is not our final decision and you may not seek 
judicial review of the remand order under section 205(g) of the Act. 
The administrative law judge's decision after remand will become our 
final decision, unless the Board reviews the decision under Sec.  
405.410.
    (c) The Board's action under Sec.  405.427 on your request to 
vacate the administrative law judge's dismissal of your request for 
review is not subject to further review.


Sec.  405.425  Procedures before the Decision Review Board.

    (a) The Board may limit the issues that it considers and when it 
does, will notify you of those issues.
    (b) You may submit a written statement within 10 days of the date 
you receive notice of the Board's review or the Board may ask you to 
submit a written statement within a certain time period. The written 
statement may be no longer than 2,000 words, and if typed, the typeface 
must be 12 point font or larger. The written statement should briefly 
explain why you agree or disagree with the administrative law judge's 
decision and should cite applicable law and specific facts in the 
record.


Sec.  405.427  Procedures before the Decision Review Board in claims 
dismissed by an administrative law judge.

    (a) If you are dissatisfied with the administrative law judge's 
action on your request to vacate a dismissal under Sec.  405.382 of 
this part, you may request that the Board vacate it. The Board will not 
consider your request to vacate a dismissal until the administrative 
law judge has ruled on your request. Your request to the Decision 
Review Board must be in writing and must be filed within 60 days after 
the date you receive the notice of the administrative law judge's 
action under Sec.  405.382 of this part.
    (b) When you request the Board to review the administrative law 
judge's dismissal of your claim, you may submit additional evidence, 
but the Board will accept only evidence that is relevant to the 
dismissal issue. All other evidence will be returned to you.
    (c)(1) If you request the Board to vacate the administrative law 
judge's dismissal of your request for a hearing, you may submit a 
written statement with the Board at the time that you ask the Board to 
vacate the dismissal order. The written statement may be no more than 
2,000 words, and, if it is typed, the typeface must be 12 point font or 
larger. The written statement should briefly explain why you agree or 
disagree with the administrative law judge's decision and should cite 
to the relevant facts in the record and applicable law.
    (2) If you file a written statement with the Board after you 
request it to vacate the dismissal, the Board will not consider your 
written statement and will return it to you without placing it in the 
record.
    (d) If you request the Board to vacate the administrative law 
judge's dismissal of your request for a hearing, the Board will take 
one of the following actions:

[[Page 16456]]

    (1) Vacate the administrative law judge's dismissal order. If the 
Board issues an order vacating the administrative law judge's dismissal 
order, it will remand the claim to the administrative law judge for 
further proceedings consistent with the Board's order, or
    (2) Decline to vacate the dismissal order.


Sec.  405.430  Record before the Decision Review Board.

    Subject to Sec.  405.373(b) of this part, in claims reviewed by the 
Board, the record is closed as of the date of the administrative law 
judge's decision, and the Board will base its action on the same 
evidence that was before the administrative law judge. When it reviews 
a claim, the Board will consider only that evidence that was in the 
record before the administrative law judge.


Sec.  405.440  Actions that the Decision Review Board may take.

    (a) General. The Board may review the administrative law judge's 
findings of fact and application of the law. It will apply the 
substantial evidence standard in reviewing the findings of fact, but 
review de novo the application of the law.
    (b) Subject to the provision of Sec.  405.420(a)(2), when it 
reviews a claim that has been referred to it, the Board may take one of 
the following actions:
    (1) If the administrative law judge's decision is supported by 
substantial evidence and there is no significant error of law, affirm 
the decision;
    (2) Where there is an error of law, issue its own decision which 
affirms, reverses, or modifies the administrative law judge's decision;
    (3) Where there are factual findings that are unsupported by 
substantial evidence and further development is necessary to reach a 
decision, remand your claim to the administrative law judge for further 
proceedings consistent with the Board's order. If the Board remands 
your claim to the administrative law judge for further proceedings, the 
administrative law judge must take any action that is specified by the 
Board in its remand order and may take any additional action that is 
not inconsistent with the Board's remand order.


Sec.  405.445  Notification of the Decision Review Board's action.

    We will send notice of the Board's action to you at your last known 
address. The notice will explain in clear and understandable language 
the specific reasons for the Board's action. If the Board issues a 
decision, it will explain in clear and understandable language the 
specific reasons for its decision and the notice will also explain how 
to seek judicial review, and explain your right to representation. If 
the Board issues a remand order, the notice will explain that the 
remand order is not our final decision.


Sec.  405.450  Effect of the Decision Review Board's action.

    (a) The Board's decision is binding unless you file an action in 
Federal district court, or the decision is revised under subpart G of 
this part.
    (b) The administrative law judge's decision is binding if the Board 
does not complete its action within 90 days of the date you receive 
notice that the Board will review your claim, unless you file an action 
in Federal district court, or the decision is revised under subpart G 
of this part.
    (c) The Board's action to remand your claim to an administrative 
law judge is binding and not subject to judicial review.
    (d) The Board's action under Sec.  405.427 on a request to vacate 
an administrative law judge's dismissal order is binding and not 
subject to further review.

Subpart F--Judicial Review


Sec.  405.501  Judicial review.

    You may file an action in a Federal district court within 60 days 
of the date our decision becomes final and judicially reviewable.


Sec.  405.505  Extension of time to file a civil action.

    If you have received our final decision, you may request that we 
extend the time for seeking judicial review in a Federal district 
court. Your request must be in writing and explain why the action was 
not filed, or cannot be filed, on time. The request must be filed with 
the Board. If you show that you have good cause for missing the 
deadline, we will extend the time period. We will use the standards in 
Sec.  405.20 of this part to determine if you have good cause for an 
extension of time.


Sec.  405.510  Claims remanded by a Federal court.

    When a Federal court remands a claim decided under this part to us 
for further consideration, the Board may make a decision based upon the 
evidence in the record, or it may remand the claim to an administrative 
law judge. If the Board remands a claim to an administrative law judge, 
it will send you a notice.


Sec.  405.515  Application of circuit court law.

    We will follow the procedures in Sec. Sec.  404.985 and 416.1485 of 
this chapter for claims decided under this part.

Subpart G--Reopening and Revising Determinations and Decisions


Sec.  405.601  Reopening and revising determinations and decisions.

    (a) Subject to paragraph (b), the reopening procedures of 
Sec. Sec.  404.987 through 404.996 of this chapter apply to title II 
claims and the procedures of Sec. Sec.  416.1487 through 416.1494 of 
this chapter apply to title XVI claims.
    (b) When we have issued a final decision after a hearing on a claim 
that you seek to have reopened, for purposes of this part, the time 
frames for good cause under Sec. Sec.  404.988(b) and 416.1488(b) of 
this chapter are six months from the date of the final decision and we 
will not find that ``new and material evidence'' under Sec. Sec.  
404.989(a)(1) and 416.989(a)(1) of this chapter is a basis for good 
cause.

Subpart H--Expedited Appeals Process for Constitutional Issues


Sec.  405.701  Expedited appeals process--general.

    You may use the expedited appeals process if you have no dispute 
with our findings of fact and our application and interpretation of the 
controlling law, but you believe that a part of that law is 
unconstitutional. By using the expedited appeals process you may go 
directly to a Federal district court without first completing the 
administrative review process that is generally required before the 
court will hear your claim.


Sec.  405.705  When the expedited appeals process may be used.

    If you have filed a disability claim, you may use the expedited 
appeals process if all of the following requirements are met:
    (a) You have received an initial determination and a decision by a 
Federal reviewing official, but an administrative law judge has not 
made a decision;
    (b) You have submitted a written request for the expedited appeals 
process; and
    (c) You have our written agreement to use the expedited appeals 
process as required in Sec.  405.715.


Sec.  405.710  How to request an expedited appeal.

    (a) Time limit for filing request. If you wish to use the expedited 
appeals process, you must request it--
    (1) No later than 60 days after the date you receive notice of the 
Federal

[[Page 16457]]

reviewing official's decision (or within the extended time period if we 
extend the time as provided in paragraph (c) of this section), or
    (2) At any time after you have filed a timely request for a hearing 
but before you receive notice of the administrative law judge's 
decision.
    (b) Place for filing request. You should file a written request for 
an expedited appeal at one of our offices. If you have a disability 
claim under title II of the Act, you may also file the request at the 
Veterans Administration Regional Office in the Philippines, or if you 
have 10 or more years of service, or at least five years of service 
accruing after December 31, 1995, in the railroad industry, an office 
of the Railroad Retirement Board.
    (c) Extension of time to request expedited appeals process. If you 
want to use the expedited appeals process but do not request it in 
time, you may ask for more time to submit your request. Your request 
for an extension of time must be in writing and must give the reasons 
why the request for the expedited appeals process was not filed in 
time. If you show that you had good cause for missing the deadline, the 
time period will be extended. To determine whether good cause exists, 
we use the standards explained in Sec.  405.20 of this part.


Sec.  405.715  Agreement in expedited appeals process.

    If you meet all the requirements necessary for using the expedited 
appeals process, our authorized representative shall prepare an 
agreement. The agreement must be signed by you and by our authorized 
representative. The agreement must provide that--
    (a) The facts in your claim are not in dispute;
    (b) The sole issue in dispute is whether a provision of the Act 
that applies to your claim is unconstitutional;
    (c) Except for your belief that a provision of the Act is 
unconstitutional, you agree with our interpretation of the law;
    (d) If the provision of the Act that you believe is 
unconstitutional were not applied to your claim, your claim would be 
allowed; and
    (e) Our decision is final for the purpose of seeking judicial 
review.


Sec.  405.720  Notice of agreement to expedite appeal.

    If we agree that you can use the expedited appeals process, a 
signed copy of the agreement will be mailed to you and will constitute 
notice. If you do not meet all of the requirements necessary to use the 
expedited appeals process, we will advise you that your request to use 
this process is denied and that your request will be considered as a 
request for a hearing, if you have not already requested a hearing.


Sec.  405.725  Effect of expedited appeals process agreement.

    After an expedited appeals process agreement is signed, you will 
not need to complete the remaining steps of the administrative review 
process. Instead, you may file an action in the Federal district court 
in the district where you reside. You must file within 60 days after 
the date you receive notice that the agreement has been signed by our 
authorized representative.

Subpart I--Quick Disability Determination Unit and Other State 
Agency Responsibilities


Sec.  405.801  Purpose and scope.

    This subpart describes the standards of performance and 
administrative requirements and procedures for States making quick 
disability determinations for the Commissioner under titles II and XVI 
of the Act. It also establishes the Commissioner's responsibilities in 
carrying out the disability determination function and what action we 
will take if the State agency does not meet the quick disability 
determination processing standard. It supplements, and does not 
replace, the standards of subpart Q of part 404 or subpart J of part 
416 of this chapter.


Sec.  405.805  Basic responsibilities for us and the State.

    (a) General. We will work with the State to provide and maintain an 
effective system for processing quick disability determinations. We 
will provide program standards, leadership, and oversight. We do not 
intend to become involved in the State's ongoing management of Quick 
Disability Determination Units, except as is necessary and in 
accordance with these regulations. The State will comply with our 
regulations and other written guidelines.
    (b) Our responsibilities. In addition to the responsibilities we 
have under Sec. Sec.  404.1603 and 416.1003 of this chapter, we will:
    (1) As described in Sec.  405.10 of this part, to the extent 
practicable, provide medical, psychological, and vocational expertise 
needed for adjudication of a claim if such expertise is not otherwise 
available to the State, and
    (2) Pay the established Federal rate for the State agency's use of 
any medical or psychological expert affiliated with the national 
network and arranged by the Medical and Vocational Expert System.
    (c) Responsibilities of the State. (1) In addition to the 
responsibilities the State has under subpart Q of part 404 or subpart J 
of part 416 of this chapter, any State that performs the quick 
disability determination function will organize a separate Quick 
Disability Determination Unit that will comply with the requirements 
set out in this subpart. The unit will use experienced disability 
examiners in making quick disability determinations.
    (2) In all States to which this part applies, the medical, 
psychological, and vocational experts employed by or under contract 
with the State agency must meet the Commissioner's qualification 
standards prescribed under Sec.  405.10 of this part in order for the 
State agency to receive reimbursement for the experts' salaries or the 
cost of their services.


Sec.  405.810  Deemed notice that the State wishes to perform the quick 
disability determination function.

    Any State that currently performs the disability determination 
function under subpart Q of part 404 or subpart J of part 416 of this 
chapter will be deemed to have given us notice that it wishes to 
perform the quick disability determination function, in lieu of or in 
addition to the disability determination function.


Sec.  405.815  Making quick disability determinations.

    (a) When making a quick disability determination, the State agency 
will apply subpart B, part 405, of our regulations.
    (b) The State agency will make quick disability determinations 
based only on the medical and nonmedical evidence in its files.
    (c) Quick disability determinations will be made by the Quick 
Disability Determination Unit and a medical or psychological expert, as 
defined in Sec.  405.5 of this part.
    (d) The State agency will certify each determination of disability 
to us in the manner that we prescribe.
    (e) The State agency will furnish us with all the evidence it 
considered in making its determination.
    (f) The State agency will not be responsible for defending in court 
any determination made, or any procedure for making determinations, 
under these regulations.


Sec.  405.820  Notifying claimants of the quick disability 
determination.

    The State agency will prepare notices in accordance with Sec.  
405.115 of this part

[[Page 16458]]

whenever it makes a quick disability determination.


Sec.  405.825  Processing standard.

    The processing standard for quick disability determinations is 
processing 98 percent of all of the claims that we refer to the Quick 
Disability Determination Unit within 20 days from the day each claim is 
received by the State agency, including Saturdays, Sundays, and 
holidays.


Sec.  405.830  How and when we determine whether the processing 
standard is met.

    (a) How we determine processing time. For all quick disability 
determinations, we calculate the number of days, including Saturdays, 
Sundays, and holidays, from the day the claim is received by the State 
agency until the day the State agency releases the claim to us or until 
the day the State agency places the claim into its regular disability 
claims adjudication process.
    (b) Frequency of review. We will monitor the processing time for 
quick disability determinations on a quarterly basis separately from 
the other State disability determinations. We will determine whether or 
not the processing standard has been met at the end of each quarter.
    (c) Provision of performance support for the processing standard. 
(1) Optional support. We may offer, or a State agency may request, 
performance support at any time that the regular monitoring and review 
process reveals that support could enhance performance. The State 
agency does not have to be below the processing standard described 
Sec.  405.825. Support will be offered, or granted upon request, based 
on available resources.
    (2) Mandatory support. We will provide a State agency with 
mandatory performance support if regular monitoring and review reveal 
that the processing standard described in Sec.  405.825 is not met for 
one calendar quarter.
    (3) Support we may provide. In determining what support we may 
provide, we will apply Sec. Sec.  404.1662 and 416.1062 of this 
chapter.


Sec.  405.835  Action we will take if a State agency does not meet the 
quick disability determination processing time standard.

    If a State agency does not meet the established processing standard 
described in Sec.  405.825 for two or more consecutive calendar 
quarters and does not have good cause under Sec.  405.840 for failing 
to meet the processing standard, we will notify the State agency in 
writing that we propose to find it has substantially failed to comply 
with our standards regarding quick disability determinations and that 
it may request a hearing on that issue. After giving the State notice 
and an opportunity for a hearing, if it is found that a State agency 
has substantially failed to make quick disability determinations 
consistent with the Act, our regulations, or other written guidelines, 
we will assume responsibility for performing the quick disability 
determination function.


Sec.  405.840  Good cause for not following the Act, our regulations, 
or other written guidelines.

    We will follow the procedures in Sec. Sec.  404.1671 and 416.1071 
of this chapter to determine if the State has good cause for not 
following the Act, our regulations, or other written guidelines.


Sec.  405.845  Hearings and appeals.

    We will follow the provisions of Sec. Sec.  404.1675 through 
404.1683 and Sec. Sec.  416.1075 through 416.1083 of this chapter when 
we propose to find that the State agency has substantially failed to 
comply with our standards regarding quick disability determinations.


Sec.  405.850  Assumption of the quick disability determination 
function when we make a finding of substantial failure.

    (a) Notice to State. When we find that substantial failure exists, 
we will notify the State in writing that we will assume responsibility 
for performing the quick disability determination function from the 
State agency and the date on which the assumption will be effective.
    (b) Effective date of assumption. The date of assumption of the 
quick disability determination function from a State agency may not be 
earlier than 180 days after our finding of substantial failure, and not 
before compliance with the requirements of Sec. Sec.  404.1692 and 
416.1092 of this chapter.
    (c) Other regulations. The provisions of Sec. Sec.  404.1691, 
404.1693, 404.1694, 416.1091, 416.1093 and 416.1094 of this chapter 
apply under this subpart to the same extent that they apply under 
subpart Q of part 404 and subpart J of part 416 of this chapter.

Subpart J--Payment of Certain Travel Expenses


Sec.  405.901  Reimbursement of certain travel expenses.

    When you file a disability claim, you may incur certain travel 
expenses that may be reimbursable. We use Sec. Sec.  404.999a through 
404.999d of this chapter for title II claims and Sec. Sec.  416.1495 
through 416.1499 of this chapter for title XVI claims in determining 
reimbursable expenses and for explaining how and where you may request 
reimbursement.

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

Subpart I--[Amended]

0
21. The authority citation for subpart I of part 416 is revised to read 
as follows:

    Authority: Secs. 702(a)(5), 1611, 1614, 1619, 1631(a), (c), 
(d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and (p), and 
1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 98'460, 
98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 note, 
1382h note).

Subpart I--[Amended]

0
22. Amend Sec.  416.902 by revising the definition of ``nonexamining 
source'' to read as follows:


Sec.  416.902  General definitions and terms for this subpart.

* * * * *
    Nonexamining source means a physician, psychologist, or other 
acceptable medical source who has not examined you but provides a 
medical or other opinion in your case. At the administrative law judge 
hearing and Appeals Council levels of the administrative review 
process, and at the Federal reviewing official, administrative law 
judge, and Decision Review Board levels of the administrative review 
process in claims adjudicated under the procedures in part 405 of this 
chapter, it includes State agency medical and psychological 
consultants, other program physicians and psychologists, and medical 
experts or psychological experts we consult. See Sec.  416.927.
* * * * *
0
23. Amend Sec.  416.903 by adding a sixth sentence to paragraph (a), 
and by removing the parenthetical statement after the first sentence of 
paragraph (e), to read as follows:


Sec.  416.903  Who makes disability and blindness determinations.

    (a) * * * Subpart I of part 405 of this chapter contains additional 
rules that the States must follow in making disability and blindness 
determinations in cases adjudicated under the procedures in part 405 of 
this chapter.
* * * * *

0
24. Amend Sec.  416.912 by revising paragraph (b)(6) and the second 
sentence of paragraph (c) to read as follows:

[[Page 16459]]

Sec.  416.912  Evidence.

* * * * *
    (b) * * *
    (6) At the administrative law judge and Appeals Council levels, and 
at the Federal reviewing official, administrative law judge, and 
Decision Review Board levels in claims adjudicated under the procedures 
in part 405 of this chapter, findings, other than the ultimate 
determination about whether you are disabled, made by State agency 
medical or psychological consultants and other program physicians or 
psychologists, and opinions based on their review of the evidence in 
your case record expressed by medical experts or psychological experts 
that we consult. See Sec. Sec.  416.927(f)(2) and (f)(3).
    (c) * * * You must provide evidence, without redaction, showing how 
your impairment(s) affects your functioning during the time you say 
that you are disabled, and any other information that we need to decide 
your claim. * * *
* * * * *

0
25. Amend Sec.  416.913 by revising the first sentence of paragraph (c) 
to read as follows:


Sec.  416.913  Medical and other evidence of your impairment(s).

* * * * *
    (c) * * * At the administrative law judge and Appeals Council 
levels, and at the reviewing official, administrative law judge, and 
Decision Review Board levels in claims adjudicated under the procedures 
in part 405 of this chapter, we will consider residual functional 
capacity assessments made by State agency medical and psychological 
consultants, medical and psychological experts (as defined in Sec.  
405.5 of this chapter), and other program physicians and psychologists 
to be ``statements about what you can still do'' made by nonexamining 
physicians and psychologists based on their review of the evidence in 
the case record. * * *
* * * * *

0
26. Amend Sec.  416.919k by revising paragraph (a) to read as follows:


Sec.  416.919k  Purchase of medical examinations, laboratory tests, and 
other services.

* * * * *
    (a) Subject to the provisions of Sec.  405.805(b)(2) of this 
chapter in claims adjudicated under the procedures in part 405 of this 
chapter, the rate of payment to be used for purchasing medical or other 
services necessary to make determinations of disability may not exceed 
the highest rate paid by Federal or public agencies in the State for 
the same or similar types of service. See Sec. Sec.  416.1024 and 
416.1026 of this part.
* * * * *

0
27. Amend Sec.  416.919m by revising the third sentence to read as 
follows:


Sec.  416.919m  Diagnostic tests or procedures.

    * * * A State agency medical consultant, or a medical expert (as 
defined in Sec.  405.5 of this chapter) in claims adjudicated under the 
procedures in part 405 of this chapter, must approve the ordering of 
any diagnostic test or procedure when there is a chance it may involve 
significant risk. * * *

0
28. Amend Sec.  416.919s by revising paragraph (c) to read as follows:


Sec.  416.919s  Authorizing and monitoring the consultative 
examination.

* * * * *
    (c) Subject to the provisions of Sec.  405.805(b)(2) of this 
chapter in claims adjudicated under the procedures in part 405 of this 
chapter, and consistent with Federal and State laws, the State agency 
administrator will work to achieve appropriate rates of payment for 
purchased medical services.
* * * * *

0
29. Amend Sec.  416.920a by revising the third sentence and adding a 
new fourth sentence to paragraph (d)(2) and revising paragraph (e) to 
read as follows:


Sec.  416.920a  Evaluation of mental impairments.

* * * * *
    (d) * * *
    (2) * * * We will record the presence or absence of the criteria 
and the rating of the degree of functional limitation on a standard 
document at the initial and reconsideration levels of the 
administrative review process. We will record the presence or absence 
of the criteria and the rating of the degree of functional limitation 
in the decision at the administrative law judge hearing and Appeals 
Council levels (in cases in which the Appeals Council issues a 
decision), and in the decision at the Federal reviewing official, 
administrative law judge, and the Decision Review Board levels in 
claims adjudicated under the procedures in part 405 of this chapter. * 
* *
* * * * *
    (e) Documenting application of the technique. At the initial and 
reconsideration levels of the administrative review process, we will 
complete a standard document to record how we applied the technique. At 
the administrative law judge hearing and Appeals Council levels (in 
cases in which the Appeals Council issues a decision), and at the 
Federal reviewing official, administrative law judge, and the Decision 
Review Board levels in claims adjudicated under the procedures in part 
405 of this chapter, we will document application of the technique in 
the decision.
    (1) At the initial and reconsideration levels, except in cases in 
which a disability hearing officer makes the reconsideration 
determination, our medical or psychological consultant has overall 
responsibility for assessing medical severity. At the initial level in 
claims adjudicated under the procedures in part 405 of this chapter, a 
medical or psychological expert (as defined in Sec.  405.5 of this 
chapter) has overall responsibility for assessing medical severity. The 
State agency disability examiner may assist in preparing the standard 
document. However, our medical or psychological consultant (or the 
medical or psychological expert (as defined in Sec.  405.5 of this 
chapter) in claims adjudicated under the procedures in part 405 of this 
chapter) must review and sign the document to attest that it is 
complete and that he or she is responsible for its content, including 
the findings of fact and any discussion of supporting evidence. When a 
disability hearing officer makes a reconsideration determination, the 
determination must document application of the technique, incorporating 
the disability hearing officer's pertinent findings and conclusions 
based on this technique.
    (2) At the administrative law judge hearing and Appeals Council 
levels, and at the Federal reviewing official, administrative law judge 
and the Decision Review Board levels in claims adjudicated under the 
procedures in part 405 of this chapter, the written decision must 
incorporate the pertinent findings and conclusions based on the 
technique. The decision must show the significant history, including 
examination and laboratory findings, and the functional limitations 
that were considered in reaching a conclusion about the severity of the 
mental impairment(s). The decision must include a specific finding as 
to the degree of limitation in each of the functional areas described 
in paragraph (c) of this section.
    (3) Except in cases adjudicated under the procedures in part 405 of 
this chapter, if the administrative law judge requires the services of 
a medical expert to assist in applying the technique but such services 
are unavailable, the administrative law judge may return the case to 
the State agency or the

[[Page 16460]]

appropriate Federal component, using the rules in Sec.  416.1441 of 
this part, for completion of the standard document. If, after reviewing 
the case file and completing the standard document, the State agency or 
Federal component concludes that a determination favorable to you is 
warranted, it will process the case using the rules found in Sec.  
416.1441(d) or (e) of this part. If, after reviewing the case file and 
completing the standard document, the State agency or Federal component 
concludes that a determination favorable to you is not warranted, it 
will send the completed standard document and the case to the 
administrative law judge for further proceedings and a decision.

0
30. Amend Sec.  416.924 by revising the text of paragraph (g) to read 
as follows:


Sec.  416.924  How we determine disability for children.

* * * * *
    (g) * * * When we make an initial or reconsidered determination 
whether you are disabled under this section or whether your disability 
continues under Sec.  416.994a (except when a disability hearing 
officer makes the reconsideration determination), we will complete a 
standard form, Form SSA-538, Childhood Disability Evaluation Form. We 
will also complete the standard form when we make an initial 
determination in claims adjudicated under the procedures in part 405 of 
this chapter. The form outlines the steps of the sequential evaluation 
process for individuals who have not attained age 18. The State agency 
medical or psychological consultant (see Sec.  416.1016 of this part) 
or other designee of the Commissioner, or the medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter, has 
overall responsibility for the content of the form and must sign the 
form to attest that it is complete and that he or she is responsible 
for its content, including the findings of fact and any discussion of 
supporting evidence. Disability hearing officers, administrative law 
judges, and the administrative appeals judges on the Appeals Council 
(when the Appeals Council makes a decision) will not complete the form 
but will indicate their findings at each step of the sequential 
evaluation process in their determinations or decisions. In addition, 
in claims adjudicated under the procedures in part 405 of this chapter, 
Federal reviewing officials, administrative law judges, and the 
Decision Review Board will not complete the form but will indicate 
their findings at each step of the sequential evaluation process in 
their decisions.

0
31. Amend Sec.  416.926 by revising the first sentence of paragraph (d) 
and by revising paragraph (e) to read as follows:


Sec.  416.926  Medical equivalence for adults and children.

* * * * *
    (d) * * * A medical or psychological consultant designated by the 
Commissioner includes any medical or psychological consultant employed 
or engaged to make medical judgments by the Social Security 
Administration, the Railroad Retirement Board, or a State agency 
authorized to make disability determinations, and includes a medical or 
psychological expert (as defined in Sec. 405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter. * 
* *
    (e) Responsibility for determining medical equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec.  416.1016 of this part) has the overall 
responsibility for determining medical equivalence. In claims 
adjudicated at the initial level under the procedures in part 405 of 
this chapter, the medical or psychological expert (as defined in Sec.  
405.5 of this chapter) has the overall responsibility for determining 
medical equivalence. For cases in the disability hearing process or 
otherwise decided by a disability hearing officer, the responsibility 
for determining medical equivalence rests with either the disability 
hearing officer or, if the disability hearing officer's reconsideration 
determination is changed under Sec.  416.1418 of this part, with the 
Associate Commissioner for Disability Programs or his or her delegate. 
For cases at the administrative law judge or Appeals Council level, the 
responsibility for deciding medical equivalence rests with the 
administrative law judge or Appeals Council. In claims adjudicated at 
the Federal reviewing official, administrative law judge, and the 
Decision Review Board levels under the procedures in part 405 of this 
chapter, the responsibility for deciding medical equivalence rests with 
the Federal reviewing official, administrative law judge, or Decision 
Review Board.

0
32. Amend Sec.  416.926a by revising paragraph (n) to read as follows:


Sec.  416.926a  Functional equivalence for children.

* * * * *
    (n) Responsibility for determining functional equivalence. In cases 
where the State agency or other designee of the Commissioner makes the 
initial or reconsideration disability determination, a State agency 
medical or psychological consultant or other designee of the 
Commissioner (see Sec.  416.1016 of this part) has the overall 
responsibility for determining functional equivalence. In claims 
adjudicated at the initial level under the procedures in part 405 of 
this chapter, the medical or psychological expert (as defined in Sec.  
405.5 of this chapter) has the overall responsibility for determining 
functional equivalence. For cases in the disability hearing process or 
otherwise decided by a disability hearing officer, the responsibility 
for determining functional equivalence rests with either the disability 
hearing officer or, if the disability hearing officer's reconsideration 
determination is changed under Sec.  416.1418 of this part, with the 
Associate Commissioner for Disability Programs or his or her delegate. 
For cases at the administrative law judge or Appeals Council level, the 
responsibility for deciding functional equivalence rests with the 
administrative law judge or Appeals Council. In claims adjudicated at 
the Federal reviewing official, administrative law judge, and Decision 
Review Board levels under the procedures in part 405 of this chapter, 
the responsibility for deciding functional equivalence rests with the 
Federal reviewing official, administrative law judge, or Decision 
Review Board.

0
33. Amend Sec.  416.927 by revising paragraph (f)(1) and by adding 
paragraph (f)(4) to read as follows:


Sec.  416.927  Evaluating opinion evidence.

* * * * *
    (f) * * *
    (1) In claims adjudicated by the State agency, a State agency 
medical or psychological consultant (or a medical or psychological 
expert (as defined in Sec.  405.5 of this chapter) in claims 
adjudicated under the procedures in part 405 of this chapter) will 
consider the evidence in your case record and make findings of fact 
about the medical issues, including, but not limited to, the existence 
and severity of your impairment(s), the existence and severity of your 
symptoms, whether your impairment(s) meets or equals the requirements 
for any impairment listed in appendix 1 to subpart P of part 404 of 
this chapter, and your residual

[[Page 16461]]

functional capacity. These administrative findings of fact are based on 
the evidence in your case record but are not themselves evidence at 
these steps.
* * * * *
    (4) In claims adjudicated under the procedures in part 405 of this 
chapter at the Federal reviewing official, administrative law judge, 
and Decision Review Board levels of the administrative review process, 
we will follow the same rules for considering opinion evidence that 
administrative law judges follow under this section.

0
34. Amend Sec.  416.929 by revising the third and fifth sentences of 
paragraph (b) to read as follows:


Sec.  416.929  How we evaluate symptoms, including pain.

* * * * *
    (b) * * * In cases decided by a State agency (except in disability 
hearings under Sec. Sec.  416.1414 through 416.1418 of this part), a 
State agency medical or psychological consultant, a medical or 
psychological consultant designated by the Commissioner, or a medical 
or psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter, 
directly participates in determining whether your medically 
determinable impairment(s) could reasonably be expected to produce your 
alleged symptoms. * * * At the administrative law judge hearing or 
Appeals Council level of the administrative review process, or at the 
Federal reviewing official, administrative law judge, and Decision 
Review Board levels in claims adjudicated under the procedures in part 
405 of this chapter, the adjudicator(s) may ask for and consider the 
opinion of a medical or psychological expert concerning whether your 
impairment(s) could reasonably be expected to produce your alleged 
symptoms. * * *
* * * * *

0
35. Amend Sec.  416.946 by revising the text of paragraph (a) and by 
adding a new paragraph (d) to read as follows:


Sec.  416.946  Responsibility for assessing your residual functional 
capacity.

    (a) * * * When a State agency makes the disability determination, a 
State agency medical or psychological consultant(s) (or a medical or 
psychological expert (as defined in Sec.  405.5 of this chapter) in 
claims adjudicated under the procedures in part 405 of this chapter) is 
responsible for assessing your residual functional capacity.
* * * * *
    (d) Responsibility for assessing residual functional capacity in 
claims adjudicated under part 405 of this chapter. In claims 
adjudicated under the procedures in part 405 of this chapter at the 
Federal reviewing official, administrative law judge, and Decision 
Review Board levels of the administrative review process, the Federal 
reviewing official, administrative law judge, or the Decision Review 
Board is responsible for assessing your residual functional capacity.

Subpart J--[Amended]

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

    Authority: Secs. 702(a)(5), 1614, 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1382c, 1383, and 1383b).


0
37. Amend Sec.  416.1001 by adding a new third sentence to the 
introductory text to read as follows:


Sec.  416.1001  Purpose and scope.

    * * * Subpart I of part 405 of this chapter contains additional 
rules that the States must follow in making disability and blindness 
determinations in cases adjudicated under the procedures in part 405 of 
this chapter.
* * * * *

0
38. Amend Sec.  416.1016 by adding a new third sentence in paragraph 
(b) and a new paragraph (e)(4) to read as follows:


Sec.  416.1016  Medical or psychological consultants.

* * * * *
    (b) * * * In claims adjudicated under the procedures in part 405 of 
this chapter, medical experts employed by or under contract with the 
State agencies must meet the qualification standards prescribed by the 
Commissioner.
* * * * *
    (e) * * *
    (4) In claims adjudicated under the procedures in part 405 of this 
chapter, psychological experts employed by or under contract with the 
State agencies must meet the qualification standards prescribed by the 
Commissioner.
* * * * *

0
39. Amend Sec.  416.1024 by revising the first sentence to read as 
follows:


Sec.  416.1024  Medical and other purchased services.

    Subject to the provisions of Sec.  405.805(b)(2) of this chapter in 
claims adjudicated under the procedures in part 405 of this chapter, 
the State will determine the rates of payment to be used for purchasing 
medical or other services necessary to make determinations of 
disability. * * *

Subpart N--[Amended]

0
40. 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).

0
41. Amend Sec.  416.1403 by removing ``and'' at the end of paragraph 
(a)(20), by removing the ``.'' at the end of paragraph (a)(21) and 
replacing it with ``;'' and by adding paragraphs (a)(22) and (23) to 
read as follows:


Sec.  416.1403  Administrative actions that are not initial 
determinations.

    (a) * * *
    (22) Determining whether to select your claim for the quick 
disability determination process under Sec.  405.101 of this chapter; 
and
    (23) The removal of your claim from the quick disability 
determination process under Sec.  405.101 of this chapter.

PART 422--ORGANIZATION AND PROCEDURES

Subpart B--[Amended]

0
42. The authority citation for subpart B of part 422 is revised to read 
as follows:

    Authority: Secs. 205, 232, 702(a)(5), 1131, and 1143 of the 
Social Security Act (42 U.S.C. 405, 432, 902(a)(5), 1320b-1, and 
1320b-13), and sec. 7213(a)(1)(A) of Pub. L. 108-458.

0
43. Amend Sec.  422.130 by revising the first sentence of paragraph (b) 
and the first and second sentences of paragraph (c) to read as follows:


Sec.  422.130  Claim procedure.

* * * * *
    (b) * * * An individual who files an application for monthly 
benefits, the establishment of a period of disability, a lump-sum death 
payment, or entitlement to hospital insurance benefits or supplementary 
medical insurance benefits, either on his own behalf or on behalf of 
another, must establish by satisfactory evidence the material 
allegations in his application, except as to earnings shown in the 
Social Security Administration's records (see subpart H of part 404 of 
this chapter

[[Page 16462]]

for evidence requirements in nondisability cases and subpart P of part 
404 of this chapter and part 405 of this chapter for evidence 
requirements in disability cases). * * *
    (c) * * * In the case of an application for benefits, the 
establishment of a period of disability, a lump-sum death payment, a 
recomputation of a primary insurance amount, or entitlement to hospital 
insurance benefits or supplementary medical insurance benefits, the 
Social Security Administration, after obtaining the necessary evidence, 
will make a determination as to the entitlement of the individual 
claiming or for whom is claimed such benefits, and will notify the 
applicant of the determination and of his right to appeal. Section 
404.1520 and subpart I of part 405 of this chapter have discussions of 
the respective roles of State agencies and the Administration in the 
making of disability determinations and Sec.  404.1521 and subparts B 
and I of part 405 of this chapter have information regarding initial 
determinations as to entitlement or termination of entitlement in 
disability claims. * * *
* * * * *

0
44. Revise Sec.  422.140 to read as follows:


Sec.  422.140  Reconsideration or review of initial determination.

    Subject to the provisions of subpart C of part 405, if you are 
dissatisfied with an initial determination with respect to entitlement 
to monthly benefits, a lump-sum death payment, a period of disability, 
a revision of an earnings record, with respect to any other right under 
title II of the Social Security Act, or with respect to entitlement to 
hospital insurance benefits or supplementary medical insurance 
benefits, you may request that we reconsider the initial determination. 
In claims adjudicated under the procedures in part 405 of this chapter, 
if you are dissatisfied with an initial determination, you may request 
review by a Federal reviewing official. The information in Sec.  
404.1503 and part 405 of this chapter as to the respective roles of 
State agencies and the Social Security Administration in making 
disability determinations is also generally applicable to the 
reconsideration (or review by Federal reviewing officials) of initial 
determinations involving disability. However, in cases in which a 
disability hearing as described in Sec. Sec.  404.914 through 404.918 
and 416.1414 through 416.1418 of this chapter is available, the 
reconsidered determination may be issued by a disability hearing 
officer or the Associate Commissioner for Disability Programs or his or 
her delegate. After the initial determination has been reconsidered (or 
reviewed by a Federal reviewing official in claims adjudicated under 
the procedures in part 405 of this chapter), we will mail you written 
notice and inform you of your right to a hearing before an 
administrative law judge (see Sec.  422.201 and subpart D of part 405, 
and 42 CFR 405.904(a)).

Subpart C--[Amended]

0
45. 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
46. Amend Sec.  422.201 by revising the first and second sentences in 
the introductory text and by adding a new third sentence to the 
introductory text and by revising paragraphs (b) and (c) to read as 
follows:


Sec.  422.201  Material included in this subpart.

    This subpart describes in general the procedures relating to 
hearings before an administrative law judge of the Office of Hearings 
and Appeals, 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 such hearing or Appeals Council review, and 
for instituting a civil action for court review for cases decided under 
these parts. Procedures related to hearings before an administrative 
law judge, review by the Decision Review Board, or court review in 
claims adjudicated under the procedures in part 405 of this chapter are 
explained in subparts D, E, and F of part 405 of this chapter. * * *
* * * * *
    (b) Title VIII of the Act, Sec. Sec.  408.1040 through 408.1060 of 
this chapter;
    (c) Title XVI of the Act, Sec. Sec.  416.1429 through 416.1483 of 
this chapter;
* * * * *
[FR Doc. 06-3011 Filed 3-27-06; 12:39 pm]
BILLING CODE 4191-02-P