[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Proposed Rules]
[Pages 33745-33749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13282]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 408, 416, and 422

[Docket No. SSA-2008-0005]
RIN 0960-AG75


Clarification of Evidentiary Standard for Determinations and 
Decisions

AGENCY: Social Security Administration.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: These proposed rules clarify that we apply the preponderance 
of the evidence standard when we make determinations and decisions at 
all levels of our administrative review processes. These proposed rules 
would not change our policy that the Appeals Council applies the 
substantial evidence standard when it reviews an administrative law 
judge's decision to determine whether to grant a request for review. We 
also propose to explicitly define substantial evidence and 
preponderance of the evidence in applying these rules.

DATES: To be sure that your comments are considered, we must receive 
them no later than August 12, 2008.

ADDRESSES: You may submit comments by any one of four methods--
Internet, facsimile, regular mail, or hand-delivery. Commenters should 
not submit the same comments multiple times or by more than one method. 
Regardless of which of the following methods you choose, please state 
that your comments refer to Docket No. SSA-2008-0005 to ensure that we 
can associate your comments with the correct regulation:
    1. Federal eRulemaking portal at http://www.regulations.gov. (This 
is the most expedient method for submitting your comments, and we 
strongly urge you to use it.) In the ``Comment or Submission'' section 
of the Web page, type ``SSA-2008-0005'', select ``Go,'' and then click 
``Send a Comment or Submission.'' The Federal eRulemaking portal issues 
you a tracking number when you submit a comment.
    2. Telefax to (410) 966-2830.
    3. Letter to the Commissioner of Social Security, P.O. Box 17703, 
Baltimore, MD 21235-7703.
    4. Deliver your comments to the Office of Regulations, Social 
Security Administration, 922 Altmeyer Building, 6401 Security 
Boulevard, Baltimore, Maryland 21235-6401, between 8 a.m. and 4:30 p.m. 
on regular business days.
    All comments are posted on the Federal eRulemaking portal, although 
they may not appear for several days after receipt of the comment. You 
may also inspect the comments on regular business days by making 
arrangements with the contact person shown in this preamble.
    Caution: All comments we receive from members of the public are 
available for public viewing on the Federal eRulemaking portal at 
http://www.regulations.gov. Therefore, you should be careful to include 
in your comments only information that you wish to make publicly 
available on the Internet. We strongly urge you not to include any 
personal information, such as your Social Security number or medical 
information, in your comments.

FOR FURTHER INFORMATION CONTACT: Joshua Silverman, Office of 
Regulations, Social Security Administration, 6401 Security Boulevard, 
Baltimore, MD 21235-6401, (410) 594-2128, for information about these 
rules. 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,

[[Page 33746]]

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.

Explanation of Changes

Our Administrative Review Process

    We currently decide claims for benefits using an administrative 
review process that consists of four levels. See 20 CFR 404.900, 
408.1000, and 416.1400. We make our initial determination at the first 
level. In most States,\1\ if an individual is dissatisfied with our 
initial determination, the individual may request reconsideration. If 
an individual is dissatisfied with the reconsidered determination, the 
individual may request a hearing before an administrative law judge 
(ALJ).\2\ Finally, if an individual is dissatisfied with the ALJ's 
decision,\3\ the individual may request that the Appeals Council review 
the ALJ's decision. Once an individual has completed these 
administrative steps and received our final decision, the individual 
may request judicial review of the final decision in Federal district 
court.
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    \1\ For claims for disability benefits, there are ten States 
that are participating in a ``prototype'' test under Sec. Sec.  
404.906 and 416.1406. In these States, the second step for 
individuals who are dissatisfied with their initial determinations 
in disability cases is a hearing before an ALJ. The ten States are: 
Alabama, Alaska, California (Los Angeles North and West Branches), 
Colorado, Louisiana, Michigan, Missouri, New Hampshire, New York, 
and Pennsylvania.
    \2\ In some cases, attorney advisors in our Office of Disability 
Adjudication and Review may make wholly favorable decisions before 
an ALJ hearing is conducted. See Sec. Sec.  404.942 and 416.1442.
    \3\ The words ``determination'' and ``decision'' are terms that 
are defined in Sec. Sec.  404.900 and 416.1400. At the initial and 
reconsideration levels of the administrative review process, we 
issue ``determinations.'' At the ALJ hearing and Appeals Council 
levels (when the Appeals Council makes a decision), we issue 
``decisions.''
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    At the initial, reconsideration, and ALJ levels of the 
administrative review process, adjudicators make a new decision based 
on the evidence in the case record.\4\ For example, ALJs do not review 
the State agency's initial and reconsideration determinations to 
determine whether they were supported or correctly made; rather, they 
make their own new decisions.
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    \4\ In some States, adjudicators must consider, and sometimes 
adopt, certain findings made in prior adjudications under 
acquiescence rulings (ARs) we have issued to address circuit court 
holdings. See AR 97-4(9), 62 FR 64308, available at: http://www.socialsecurity.gov/OP_Home/rulings/ar/09/AR97-04-ar-09.html; AR 
98-3(6), 63 FR 29770, available at: http://www/socialsecurity.gov/OP_Home/rulings/ar/06/AR98-03-ar-06.html.; AR-98-4(6), 63 FR 29771, 
corrected at 63 FR 31266, available at: http://www.socialsecurity.gov/OP_Home/rulings/ar/06/AR98-04-ar-06.html; 
and AR 00-1(4), 65 FR 1936, available at: http://www.socialsecurity.gov/OP_Homing/rulings/ar/04/AR2000-01-ar-04.html.
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    However, when an individual is dissatisfied with an ALJ's decision 
and asks the Appeals Council to ``review'' that decision, the Appeals 
Council first considers the ALJ's decision and the evidence before the 
ALJ to determine whether to grant the request for review. If the 
Appeals Council does not grant the request for review, the ALJ's 
decision becomes our final decision.\5\ However, if the Appeals Council 
grants the request for review, it will generally either remand the case 
to an ALJ for additional proceedings and a new decision or issue its 
own decision affirming, modifying, or reversing the ALJ's decision.
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    \5\ The Appeals Council may also dismiss the request for review 
either with or without granting the request first. It may also 
review a case on its own motion; that is, without an individual 
asking it to do so. See Sec. Sec.  404.967, 404.969, 404.984, 
416.1467, 416.1469, and 416.1484. See also Sec.  408.1050, which 
incorporates the relevant provisions of Sec. Sec.  416.1467-416.1482 
by reference.
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Our Standard of Evidence

    Adjudicators at each level of the administrative review process use 
an evidentiary standard called the ``preponderance of the evidence'' 
when they make a determination or decision. As we state in proposed 
Sec. Sec.  404.901 and 416.1401 below, we define this standard as 
meaning ``such relevant evidence that as a whole shows that the 
existence of the fact to be proven is more likely than not.''
    However, when the Appeals Council considers an ALJ's decision and 
whether to grant a request for review, it does not use a preponderance 
of the evidence standard. Instead, it considers four issues, including 
whether the action, findings, or conclusions of the ALJ are supported 
by substantial evidence. Sec. Sec.  404.970 and 416.1470. The 
substantial evidence standard is different from the preponderance of 
the evidence standard and is more deferential to the findings of the 
ALJ.
    While our policy has been that the preponderance of the evidence 
standard applies when we make determinations or decisions on claims 
under parts 404, 408, and 416, we do not have any regulations that say 
this clearly. The absence of explicit language in parts 404, 408, and 
416 explaining the standards we use at each level of the administrative 
process has caused some confusion about the applicable standard.\6\
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    \6\ Federal courts also consider whether the Agency's findings 
are supported by substantial evidence or whether there is an error 
of law. 42 U.S.C. 405(g), 1009(b), and 1383(c)(3).
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Proposed Changes

    We propose to revise several regulation sections in parts 404, 408, 
416, and 422 to explicitly state that we use the preponderance of the 
evidence standard to adjudicate claims at all levels of the 
administrative review process. We also propose to add definitions of 
the terms ``preponderance of the evidence'' and ``substantial 
evidence'' in Sec. Sec.  404.901, 408.1001, and 416.1401.
    The proposed definitions of ``preponderance of the evidence'' and 
``substantial evidence'' are the same definitions we currently use in 
Sec.  405.5. We believe these clarifications will improve the accuracy 
and consistency of the decision-making process.
    Sections 205(a), 702(a)(5), 810(a), and 1631(d)(1) of the Act 
authorize the Commissioner of Social Security to prescribe these rule 
changes.

Clarity of These Proposed Rules

    Executive Order (E.O.) 12866, as amended, requires each agency to 
write all rules in plain language. In addition to your substantive 
comments on these final rules, we invite your comments on how to make 
them easier to understand.
    For example:
     Have we organized the material to suit your needs?
     Are the requirements in the rules clearly stated?
     Do the rules contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rules easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rules easier to 
understand?

Regulatory Procedures

Executive Order 12866, as Amended

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these proposed rules do not meet the criteria for a 
significant regulatory action under Executive Order 12866, as amended. 
Thus, they were not subject to OMB review.

Regulatory Flexibility Act

    We certify that these proposed rules will not have a significant 
economic

[[Page 33747]]

impact on a substantial number of small entities as they affect 
individuals only. Therefore, a regulatory flexibility analysis as 
provided in the Regulatory Flexibility Act, as amended, is not 
required.

Paperwork Reduction Act

    These rules would impose no additional reporting or recordkeeping 
requirements requiring OMB clearance.

(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; 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 408

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

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.

    Dated: June 6, 2008.
Michael J. Astrue,
Commissioner of Social Security.

    For the reasons set forth in the preamble, we propose to amend 
subpart J of part 404, subpart J of part 408, subpart N of part 416, 
and subparts B and C of part 422 of chapter III of title 20 of the Code 
of Federal Regulations as set forth below:

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

Subpart J--[Amended]

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

    Authority: Secs. 201(j), 204(f), 205(a), (b), (d)-(h), and (j), 
221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 
U.S.C. 401(j), 404(f), 405(a), (b), (d)-(h), and (j), 421, 423(i), 
425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 
U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 
Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 
Stat. 509 (42 U.S.C. 902 note).

    2. Amend Sec.  404.901 by adding the definitions for 
``Preponderance of the evidence'' and ``Substantial evidence'' in 
alphabetical order to read as follows:


Sec.  404.901  Definitions.

* * * * *
    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.
* * * * *
    Substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.
* * * * *
    3. Amend Sec.  404.902 by revising the second sentence in the 
undesignated first paragraph to read as follows:


Sec.  404.902  Administrative actions that are initial determinations.

    * * * The initial determination will state the important facts, 
give the reasons for our conclusions, and be based on the preponderance 
of the evidence. * * *
* * * * *
    4. Amend Sec.  404.917 by revising the second sentence of paragraph 
(b) to read as follows:


Sec.  404.917  Disability hearing--disability hearing officer's 
reconsidered determination.

* * * * *
    (b) * * * The reconsidered determination must be based on the 
preponderance of the evidence offered at the disability hearing or 
otherwise included in your case file.
* * * * *
    5. Revise Sec.  404.920 to read as follows:


Sec.  404.920  Reconsidered determination.

    After you or another person requests a reconsideration, we will 
review the evidence considered in making the initial determination and 
any other evidence we receive. We will make our determination based on 
the preponderance of the evidence.
    6. Amend Sec.  404.941 by revising the second sentence of paragraph 
(a) to read as follows:


Sec.  404.941  Prehearing case review.

    (a) * * * That component will decide whether the determination may 
be revised based on the preponderance of the evidence. * * *
* * * * *
    7. Amend Sec.  404.942 by revising the second sentence of paragraph 
(a) to read as follows:


Sec.  404.942  Prehearing proceedings and decisions by attorney 
advisors.

    (a) * * * If upon the completion of these proceedings, a decision 
that is wholly favorable to you and all other parties may be made based 
on the preponderance of the evidence, an attorney advisor, instead of 
an administrative law judge, may issue such a decision. * * *
* * * * *
    8. Amend Sec.  404.948 by revising the first sentence of paragraph 
(a) to read as follows:


Sec.  404.948  Deciding a case without an oral hearing before an 
administrative law judge.

    (a) * * * If the evidence in the hearing record supports a finding 
in favor of you and all the parties on every issue, the administrative 
law judge may issue a hearing decision based on a preponderance of the 
evidence without holding an oral hearing. * * *
* * * * *
    9. Amend Sec.  404.953 by revising the second sentence of paragraph 
(a), the first sentence in paragraph (b), and the first sentence of 
paragraph (c) to read as follows:


Sec.  404.953  The decision of an administrative law judge.

    (a) * * * The decision must be based on the preponderance of the 
evidence offered at the hearing or otherwise included in the record. * 
* *
    (b) * * * The administrative law judge may enter a wholly favorable 
oral decision based on the preponderance of the evidence into the 
record of the hearing proceedings. * * *
    (c) * * * Although an administrative law judge will usually make a 
decision, where appropriate, he or she may send the case to the Appeals 
Council with a recommended decision based on a preponderance of the 
evidence. * * *
    10. Amend Sec.  404.979 by adding a new third sentence to read as 
follows:


Sec.  404.979  Decision of Appeals Council.

    * * * If the Appeals Council issues its own decision, the decision 
will be based upon the preponderance of the evidence. * * *
    11. Amend Sec.  404.984 by revising the last sentence in paragraph 
(a), the second sentence of paragraph (b)(3), and the last sentence in 
paragraph (c) to read as follows:

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Sec.  404.984  Appeals Council review of administrative law judge 
decision in a case remanded by a Federal court.

    (a) * * * The Appeals Council will either make a new, independent 
decision based on the preponderance of the evidence in the record that 
will be the final decision of the Commissioner after remand, or remand 
the case to an administrative law judge for further proceedings.
    (b) * * *
    (3) * * * If the Appeals Council assumes jurisdiction, it will make 
a new, independent decision based on the preponderance of the evidence 
in the entire record affirming, modifying, or reversing the decision of 
the administrative law judge, or remand the case to an administrative 
law judge for further proceedings, including a new decision. * * *
    (c) * * * After the briefs or other written statements have been 
received or the time allowed (usually 30 days) for submitting them has 
expired, the Appeals Council will either issue a final decision of the 
Commissioner based on the preponderance of the evidence affirming, 
modifying, or reversing the decision of the administrative law judge, 
or remand the case to an administrative law judge for further 
proceedings, including a new decision.
* * * * *

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

Subpart J--[Amended]

    12. The authority citation for subpart J of part 408 continues to 
read as follows:

    Authority: Secs. 702(a)(5) and 809 of the Social Security Act 
(42 U.S.C. 902(a)(5) and 1009).

    13. Amend Sec.  408.1001 by adding the definition ``Preponderance 
of the evidence'' in alphabetical order to read as follows:


Sec.  408.1001  Definitions.

* * * * *
    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.
* * * * *
    14. Amend Sec.  408.1002 by adding a new third sentence to read as 
follows:


Sec.  408.1002  What is an initial determination?

    * * * Initial determinations are based on the preponderance of the 
evidence.
    15. Amend the second sentence in Sec.  408.1020 by revising it to 
read as follows:


Sec.  408.1020  How do we make our reconsidered determination?

    * * * We will make our determination based on the preponderance of 
the evidence in the record. * * *

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

Subpart N--[Amended]

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

    Authority: Secs. 702(a)(5), 1631, and 1633 of the Social 
Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. 
L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    17. Amend Sec.  416.1401 by adding the definitions for 
``Preponderance of the evidence'' and ``Substantial evidence'' in 
alphabetical order to read as follows:


Sec.  416.1401  Definitions.

* * * * *
    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.
* * * * *
    Substantial evidence means such relevant evidence as a reasonable 
mind might accept as adequate to support a conclusion.
* * * * *
    18. Amend Sec.  416.1402 by revising the second sentence in the 
undesignated first paragraph to read as follows:


Sec.  416.1402  Administrative actions that are initial determinations.

    * * * The initial determination will state the important facts, 
give the reasons for our conclusions, and be based on the preponderance 
of the evidence. * * *
* * * * *
    19. Amend Sec.  416.1417 by revising the second sentence of 
paragraph (b) to read as follows:


Sec.  416.1417  Disability hearing--disability hearing officer's 
reconsidered determination.

* * * * *
    (b) * * * The reconsidered determination must be based on the 
preponderance of the evidence offered at the disability hearing or 
otherwise included in your case file.
* * * * *
    20. Revise Sec.  416.1420 to read as follows:


Sec.  416.1420  Reconsidered determination.

    After you or another person requests a reconsideration, we will 
review the evidence considered in making the initial determination and 
any other evidence we receive. We will make our determination based on 
the preponderance of the evidence. The person who makes the 
reconsidered determination will have had no prior involvement with the 
initial determination.
    21. Amend Sec.  416.1441 by revising the second sentence of 
paragraph (a) to read as follows:


Sec.  416.1441  Prehearing case review.

    (a) * * * That component will decide whether the determination may 
be revised based on the preponderance of the evidence. * * *
* * * * *
    22. Amend Sec.  416.1442 by revising the second sentence of 
paragraph (a) to read as follows:


Sec.  416.1442  Prehearing proceedings and decisions by attorney 
advisors.

    (a) * * * If upon the completion of these proceedings, a decision 
that is wholly favorable to you and all other parties may be made based 
on the preponderance of the evidence, an attorney advisor, instead of 
an administrative law judge, may issue such a decision. * * *
* * * * *
    23. Amend Sec.  416.1448 by revising the first sentence of 
paragraph (a) to read as follows:


Sec.  416.1448  Deciding a case without an oral hearing before an 
administrative law judge.

    (a) * * * If the evidence in the hearing record supports a finding 
in favor of you and all the parties on every issue, the administrative 
law judge may issue a hearing decision based on a preponderance of the 
evidence without holding an oral hearing. * * *
* * * * *
    24. Amend Sec.  416.1453 by revising the second sentence of 
paragraph (a), the first sentence of paragraph (b), and the first 
sentence of paragraph (d) to read as follows:


Sec.  416.1453  The decision of an administrative law judge.

    (a) * * * The decision must be based on the preponderance of the 
evidence offered at the hearing or otherwise included in the record. * 
* *
    (b) * * * The administrative law judge may enter a wholly favorable 
oral decision based on the preponderance of the evidence into the 
record of the hearing proceedings. * * *
* * * * *
    (d) * * *Although an administrative law judge will usually make a 
decision, where appropriate, he or she may send

[[Page 33749]]

the case to the Appeals Council with a recommended decision based on a 
preponderance of the evidence. * * *
    25. Amend Sec.  416.1479 by adding a new third sentence to read as 
follows:


Sec.  416.1479  Decision of Appeals Council.

    * * * If the Appeals Council issues its own decision, the decision 
will be based upon the preponderance of the evidence. * * *
    26. Amend Sec.  416.1484 by revising the last sentence in paragraph 
(a), the second sentence of paragraph (b)(3), and the last sentence in 
paragraph (c) to read as follows:


Sec.  416.1484  Appeals Council review of administrative law judge 
decision in a case remanded by a Federal court.

    (a) * * * The Appeals Council will either make a new, independent 
decision based on the preponderance of the evidence in the record that 
will be the final decision of the Commissioner after remand, or remand 
the case to an administrative law judge for further proceedings.
    (b) * * *
    (3) * * * If the Appeals Council assumes jurisdiction, it will make 
a new, independent decision based on the preponderance of the evidence 
in the entire record affirming, modifying, or reversing the decision of 
the administrative law judge, or remand the case to an administrative 
law judge for further proceedings, including a new decision. * * *
    (c) * * * After the briefs or other written statements have been 
received or the time allowed (usually 30 days) for submitting them has 
expired, the Appeals Council will either issue a final decision of the 
Commissioner based on the preponderance of the evidence affirming, 
modifying, or reversing the decision of the administrative law judge, 
or remand the case to an administrative law judge for further 
proceedings, including a new decision.
* * * * *

PART 422--ORGANIZATION AND PROCEDURES

Subpart B--[Amended]

    27. The authority citation for subpart B of part 422 continues 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.

    28. Amend Sec.  422.130 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  422.130  Claim procedure.

* * * * *
    (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 based on the preponderance of the evidence 
(see Sec. Sec.  404.901 and 416.1401) 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. * 
* *

Subpart C--[Amended]

    29. 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).

    30. Revise the last sentence of Sec.  422.203(c) to read as 
follows:


Sec.  422.203  Hearings.

* * * * *
    (c) * * * Hearing decisions must be based on the preponderance of 
the evidence of record, under applicable provisions of the law and 
regulations and appropriate precedents.

[FR Doc. E8-13282 Filed 6-12-08; 8:45 am]
BILLING CODE 4191-02-P