[Federal Register Volume 78, Number 98 (Tuesday, May 21, 2013)]
[Rules and Regulations]
[Pages 29624-29628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11932]


=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

[Docket No. SSA 2007-0044]

20 CFR Parts 404, 405, and 416

RIN 0960-AH40


Rules on Determining Hearing Appearances

AGENCY: Social Security Administration.

ACTION: Final rule.

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

SUMMARY: This final rule is another step in our continual efforts to 
handle workloads more effectively and efficiently. We are publishing 
final rules for portions of the rules we proposed in October 2007 that 
relate to persons, other than the claimant or any other party to the 
hearing, appearing by telephone. We are also clarifying that the 
administrative law judge (ALJ) will allow the claimant or any other 
party to a hearing to appear by telephone under certain circumstances 
when the claimant or other party requests to make his or her appearance 
in that manner. We expect that these final rules will make the hearings 
process more efficient and help us continue to reduce

[[Page 29625]]

the hearings backlog. In addition, we made some minor editorial changes 
to our regulations that do not have any effect on the rights of 
claimants or any other parties.

DATES: This rule is effective June 20, 2013.

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

SUPPLEMENTARY INFORMATION: 

Background

    As part of our ongoing commitment to improve the way we process 
claims for benefits under the old age, survivors, and disability 
insurance programs under title II of the Social Security Act (Act) and 
the supplemental security income (SSI) program under title XVI of the 
Act, we are revising some of the procedures we follow at the ALJ 
hearing level. To address recent court cases, we are making final the 
rules that allow the ALJ to determine that a person other than the 
claimant or any other party to the hearing may appear at the hearing by 
telephone. In a recent Federal case, a District Court Judge held that 
we could not take a medical expert's testimony by telephone without 
prior notice to the claimant, and over the claimant's objections, 
unless we amended our regulations to allow witnesses to appear by 
telephone. Edwards v. Astrue, No. 3:10cv1017, 2011 WL 3490024 (D. Conn. 
Aug. 10, 2011). Other courts have made similar rulings. These final 
rules address concerns raised in Edwards and other cases.
    We proposed these changes in a notice of proposed rulemaking (NPRM) 
we published in the Federal Register on October 29, 2007 (72 FR 61218). 
The preamble to the NPRM discussed the changes from the current rules 
and our reasons for proposing those changes.\1\ We also have made 
changes to these final rules to make them consistent with final rules 
we published in the Federal Register on December 18, 2008 (73 FR 76940) 
\2\ and July 8, 2010 (75 FR 39154).\3\
---------------------------------------------------------------------------

    \1\ The NPRM is available at: http://www.gpo.gov/fdsys/pkg/FR2007-1029/pdf/E7-20690.pdf.
    \2\ The final rules are available at: http://www.gpo.gov/fdsys/pkg/FR-2008-12-18/pdf/E8-30056.pdf.
    \3\ The final rules are available at: http://www.gpo.gov/fdsys/pkg/FR-2010-07-08/pdf/2010-16549.pdf.
---------------------------------------------------------------------------

Appearing at the ALJ Hearing by Telephone

    Our final rules provide that the ALJ will determine how any person 
other than the claimant or any other party to the hearing will appear 
at the hearing, whether in person, by video teleconferencing, or by 
telephone. If the ALJ determines that any person will appear at the 
hearing by telephone, the ALJ will notify the claimant and any other 
party to the hearing in advance of the hearing. If the claimant or any 
other party to the hearing objects to any other person appearing by 
video teleconferencing or by telephone, the ALJ will decide how that 
person will appear. Our final rules also clarify that the claimant or 
any other party to the hearing may request to appear at the hearing by 
telephone. The ALJ will allow the claimant or other party to appear by 
telephone if the ALJ determines that extraordinary circumstances exist 
which prevent the claimant or other party from appearing in person or 
by video teleconferencing.

Other Provisions From the NPRM

    At this time, we are not proceeding with the other proposed rules 
in the October 2007 NPRM.

Public Comments on the NPRM

    On October 29, 2007, we published an NPRM in the Federal Register 
at 72 FR 61218 and provided a 60-day comment period, which ended on 
December 28, 2007. We received 111 public comments on telephone 
testimony. Nine of the comments related to testimony provided by 
telephone by someone other than the claimant or any other party to the 
hearing.
    Comment: Several commenters suggested that telephone appearances by 
witnesses would impede the claimant's ability to adequately examine, 
observe and be observed by, or question experts and other witnesses. 
Regarding expert witnesses, one commenter believed that an expert 
testifying via telephone would need to provide the underlying 
documentation for his or her testimony at the hearing, and suggested 
that, if requested, the expert witnesses could be obligated to fax such 
documentation to the claimant or representative. Other commenters 
expressed concern that it would be difficult for claimants or 
representatives to verify the qualifications or investigate 
disciplinary problems relating to expert witnesses testifying via 
telephone. Another commenter said that an appearance of bias is 
introduced when experts from one area of the country testify via 
telephone in cases located in another area of the country. With respect 
to lay witnesses, one commenter believed the proposed rule needed 
additional clarity to convey that ALJs could not use it to prevent the 
claimant from calling other witnesses to testify on his or her behalf.
    Response: We disagree with the concerns raised in this comment. 
Under these final rules, the claimant can object to a witness appearing 
by telephone, and the ALJ has discretion to determine that the 
appearance of any witness be conducted in person. Thus, to the extent 
that circumstances could arise in which it would be advisable to 
schedule an in-person appearance by a witness even though a telephonic 
appearance would be possible, the ALJ may schedule such an appearance.
    All claimants or representatives are entitled to conduct 
questioning and cross-examination as needed to inquire fully into the 
matters at issue. If witnesses appear by telephone, we will continue to 
provide the claimant and any other party to the hearing the same right 
to question and cross-examine witnesses, as well as access to the 
hearing record.
    In addition, the final rules do not change the standard procedures 
we use when medical experts (MEs) and vocational experts (VEs) testify. 
Before MEs and VEs testify as impartial witnesses at the hearing, ALJs 
must ``qualify'' them by eliciting information including, but not 
limited to, impartiality, expertise, and professional qualifications. 
Furthermore, MEs and VEs will continue to submit their professional 
qualifications into the written record. The claimant and any other 
party to the hearing will have the same access to this information if 
the ME or VE is appearing in person, by video teleconferencing, or by 
telephone. ME and VE testimony is based on the evidence entered into 
the record and not on any examination or personal evaluation of the 
claimant. Thus, a claimant or representative will have a complete 
opportunity to confront and examine an expert witness on qualifications 
or adverse testimony regarding the matters that are important with 
respect to expert testimony--i.e., the expertise of the witness and the 
accuracy of his or her testimony. In addition, the claimant and any 
other party to the hearing retain the right to

[[Page 29626]]

object to a witness based on bias or qualifications.

Regulatory Procedures

Executive Order 12866 as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that these final rules meet the requirements for a 
significant regulatory action under Executive Order 12866 as 
supplemented by Executive Order 13563. Thus, OMB reviewed these final 
rules.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    These final rules contain public reporting requirements in the 
regulation sections listed below, which we did not previously clear 
through an existing Information Collection Request.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                         Number of                      Average  burden     Estimated
              Regulation section                  Description of public reporting       respondents      Frequency of     per response    annual burden
                                                            requirement                  (annually)        response        (minutes)         (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
404.936(c)(1); 404.938(b); 405.315(c)(1);      You or any other party may request to           1,000                1               30              500
 416.1436(c)(1); 416.1438(b).                   appear at the hearing by telephone;
                                                ALJ will allow telephone hearing
                                                when extraordinary circumstances
                                                prevent appearance in person or by
                                                video teleconference.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    SSA submitted an Information Collection Request for clearance to 
OMB. We are soliciting comments on the burden estimate; the need for 
the information; its practical utility; ways to enhance its quality, 
utility, and clarity; and ways to minimize the burden on respondents, 
including the use of automated techniques or other forms of information 
technology. If you would like to submit comments, please send them to 
the following locations:

Office of Management and Budget, Attn: Desk Officer for SSA, Fax 
Number: 202-395-6974, Email address: [email protected].
Social Security Administration, Attn: Reports Clearance Officer, 1333 
Annex, 6401 Security Blvd., Baltimore, MD 21235-0001, Fax Number: 410-
965-6400, Email: [email protected].

    You can submit comments until June 20, 2013, which is 30 days after 
the publication of this notice. To receive a copy of the OMB clearance 
package, contact the SSA Reports Clearance Officer using any of the 
above contact methods. We prefer to receive comments by email or fax.

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

List of Subjects

20 CFR Part 404

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

20 CFR Part 405

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

20 CFR Part 416

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

    Dated: May 9, 2013.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we are amending 20 CFR 
chapter III parts 404, 405, and part 416 as set forth below:

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

Subpart J--[Amended]

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

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


0
2. In Sec.  404.936, revise the reference to ``paragraph (c)'' in the 
first sentence of paragraph (h) to ``paragraph (c)(1)'' and revise 
paragraph (c) to read as follows:


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

* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) We will consult with the administrative law judge to determine 
the status of case preparation and to determine whether your 
appearance, or the appearance of any other party to the hearing, will 
be made in person or by video teleconferencing. The administrative law 
judge will determine that your appearance, or the appearance of any 
other party to the hearing, be conducted by video teleconferencing if 
video teleconferencing equipment is available to conduct the 
appearance, use of video teleconferencing to conduct the appearance 
would be more efficient than conducting the appearance in person, and 
the administrative law judge determines that there is no circumstance 
in the particular case that prevents the use of video teleconferencing 
to conduct the appearance. You or any other party to the hearing may 
request to appear at the hearing by telephone. The administrative law 
judge will allow you or any other party to the hearing to appear by 
telephone if the administrative law judge determines that extraordinary 
circumstances prevent you or the other party who makes the request from 
appearing at the hearing in person or by video teleconferencing.
    (2) The administrative law judge will determine whether any person 
other

[[Page 29627]]

than you or any other party to the hearing, including a medical expert 
or a vocational expert, will appear at the hearing in person, by video 
teleconferencing, or by telephone. If you or any other party to the 
hearing objects to any other person appearing by video teleconferencing 
or by telephone, the administrative law judge will decide, either in 
writing or at the hearing, whether to have that person appear in 
person, by video teleconferencing, or by telephone. The administrative 
law judge will direct a person, other than you or any other party to 
the hearing if we are notified as provided in paragraph (e) of this 
section that you or any other party to the hearing objects to appearing 
by video teleconferencing, to appear by video teleconferencing or 
telephone when the administrative law judge determines:
    (i) Video teleconferencing or telephone equipment is available;
    (ii) Use of video teleconferencing or telephone equipment would be 
more efficient than conducting an examination of a witness in person, 
and;
    (iii) The ALJ determines there is no other reason why video 
teleconferencing or telephone should not be used.
* * * * *

0
3. In Sec.  404.938, revise paragraph (b) to read as follows:


Sec.  404.938  Notice of a hearing before an administrative law judge.

* * * * *
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell you that you 
may designate a person to represent you during the proceedings. The 
notice will also contain an explanation of the procedures for 
requesting a change in the time or place of your hearing, a reminder 
that if you fail to appear at your scheduled hearing without good cause 
the administrative law judge may dismiss your hearing request, and 
other information about the scheduling and conduct of your hearing. You 
will also be told if your appearance or that of any other person is 
scheduled to be made in person, by video teleconferencing, or, for a 
person other than you or any other party to the hearing, by telephone. 
If we have scheduled you to appear at the hearing by video 
teleconferencing, the notice of hearing will tell you that the 
scheduled place for the hearing is a video teleconferencing site and 
explain what it means to appear at your hearing by video 
teleconferencing. The notice will also tell you how you may let us know 
if you do not want to appear by video teleconferencing and want, 
instead, to have your hearing at a time and place where you may appear 
in person before the administrative law judge. The notice will also 
tell you that you may ask us if you want to appear by telephone, and 
that the administrative law judge will grant your request if he or she 
determines that extraordinary circumstances prevent you from appearing 
in person or by video teleconferencing.
* * * * *

0
4. In Sec.  404.950, revise paragraphs (a) and (e) to read as follows:


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

    (a) The right to appear and present evidence. Any party to a 
hearing has a right to appear before the administrative law judge, 
either in person, or, when the conditions in Sec.  404.936(c)(1) exist, 
by video teleconferencing or telephone, to present evidence and to 
state his or her position. A party may also make his or her appearance 
by means of a designated representative, who may make the appearance in 
person, or, when the conditions in Sec.  404.936(c)(1) exist, by video 
teleconferencing or telephone.
* * * * *
    (e) Witnesses at a hearing. Witnesses may appear at a hearing in 
person or, when the conditions in Sec.  404.936(c)(2) exist, by video 
teleconferencing or telephone. They will testify under oath or 
affirmation unless the administrative law judge finds an important 
reason to excuse them from taking an oath or affirmation. The 
administrative law judge may ask the witness any questions material to 
the issues and will allow the parties or their designated 
representatives to do so.
* * * * *

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

0
5. The authority citation for part 405 continues to read as follows:

    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).

0
6. In Sec.  405.315, revise paragraph (c) to read as follows:


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

* * * * *
    (c) Determining how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) The administrative law judge will determine whether your 
appearance will be made in person or by video teleconferencing. The 
administrative law judge will determine that your appearance be 
conducted by video teleconferencing if video teleconferencing equipment 
is available to conduct the appearance, use of video teleconferencing 
to conduct the appearance would be more efficient than conducting the 
appearance in person, and the administrative law judge determines that 
there is no circumstance in the particular case that prevents the use 
of video teleconferencing to conduct the appearance. 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. You may request to appear at the hearing 
by telephone. The administrative law judge will allow you to appear by 
telephone if the administrative law judge determines that extraordinary 
circumstances prevent you from appearing at the hearing in person or by 
video teleconferencing.
    (2) The administrative law judge will determine whether any person 
other than you, including a medical expert or a vocational expert, will 
appear at the hearing in person, by video teleconferencing, or by 
telephone. If you object to any other person appearing by video 
teleconferencing or telephone, the administrative law judge will 
decide, either in writing or at the hearing, whether to have that 
person appear in person, by video teleconferencing, or by telephone. 
The administrative law judge will direct a person, other than you if 
you object to your appearing by video teleconferencing as provided in 
paragraph (c)(1) of this section, to appear by video teleconferencing 
or telephone when the administrative law judge determines:
    (i) Video teleconferencing or telephone equipment is available,
    (ii) Use of video teleconferencing or telephone equipment would be 
more efficient than conducting an examination of a witness in person, 
and
    (iii) The administrative law judge determines that there is no 
other reason why video teleconferencing or telephone should not be 
used.

[[Page 29628]]

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

Subpart N--[Amended]

0
7. The authority citation for subpart N of part 416 continues to read 
as follows

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

0
8. In Sec.  416.1436, revise the reference in paragraph (h) from the 
``first sentence of paragraph (c)'' to the ``first sentence of 
paragraph (c)(1)'' and revise paragraph (c) to read as follows:


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

* * * * *
    (c) Determination how appearances will be made. In setting the time 
and place of the hearing, we will consider the following:
    (1) We will consult with the administrative law judge to determine 
the status of case preparation and to determine whether your 
appearance, or the appearance of any other party to the hearing, will 
be made in person or by video teleconferencing. The administrative law 
judge will determine that your appearance, or the appearance of any 
other party to the hearing, be conducted by video teleconferencing if 
video teleconferencing equipment is available to conduct the 
appearance, use of video teleconferencing to conduct the appearance 
would be more efficient than conducting the appearance in person, and 
the administrative law judge determines there is no circumstance in the 
particular case that prevents the use of video teleconferencing to 
conduct the appearance. You or any other party to the hearing may 
request to appear at the hearing by telephone. The administrative law 
judge will allow you or any other party to the hearing to appear by 
telephone if the administrative law judge determines that extraordinary 
circumstances prevent you or the other party who makes the request from 
appearing at your hearing in person or by video teleconferencing.
    (2) The administrative law judge will determine whether any person, 
other than you or any other party to the hearing, including a medical 
expert or a vocational expert, will appear at the hearing in person, by 
video teleconferencing, or by telephone. If you or any other party to 
the hearing objects to any other person appearing by video 
teleconferencing or by telephone, the administrative law judge will 
decide, either in writing or at the hearing, whether to have that 
person appear in person, by video teleconferencing, or by telephone. 
The administrative law judge will direct a person, other than you or 
any other party to the hearing if we are notified as provided in 
paragraph (e) of this section that you or any other party to the 
hearing objects to appearing by video teleconferencing, to appear by 
video teleconferencing or telephone when the administrative law judge 
determines:
    (i) Video teleconferencing or telephone equipment is available,
    (ii) Use of video teleconferencing or telephone equipment would be 
more efficient than conducting an examination of a witness in person, 
and
    (iii) The administrative law judge determines there is no other 
reason why video teleconferencing or telephone should not be used.
* * * * *

0
9. In Sec.  416.1438, revise paragraph (b) to read as follows:


Sec.  416.1438  Notice of a hearing before an administrative law judge.

* * * * *
    (b) Notice information. The notice of hearing will contain a 
statement of the specific issues to be decided and tell you that you 
may designate a person to represent you during the proceedings. The 
notice will also contain an explanation of the procedures for 
requesting a change in the time or place of your hearing, a reminder 
that if you fail to appear at your scheduled hearing without good cause 
the administrative law judge may dismiss your hearing request, and 
other information about the scheduling and conduct of your hearing. You 
will also be told if your appearance or that of any other person is 
scheduled to be made in person, by video teleconferencing, or, for a 
person other than you or any other party to the hearing, by telephone. 
If we have scheduled you to appear at the hearing by video 
teleconferencing, the notice of hearing will tell you the scheduled 
place for the hearing is a video teleconferencing site and explain what 
it means to appear at your hearing by video teleconferencing. The 
notice will also tell you how you may let us know if you do not want to 
appear by video teleconferencing and want, instead, to have your 
hearing at a time and place where you may appear in person before the 
administrative law judge. The notice will also tell you that you may 
ask us if you want to appear by telephone, and that the administrative 
law judge will grant your request if he or she determines that 
extraordinary circumstances prevent you from appearing in person or by 
video teleconferencing.
* * * * *

0
10. In Sec.  416.1450, revise paragraphs (a) and (e) to read as 
follows:


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

    (a) The right to appear and present evidence. Any party to a 
hearing has a right to appear before the administrative law judge, 
either in person, or, when the conditions in Sec.  416.1436(c)(1) 
exist, by video teleconferencing or telephone, to present evidence and 
to state his or her position. A party may also make his or her 
appearance by means of a designated representative, who may make the 
appearance in person, or, when the conditions in Sec.  416.1436(c)(1) 
exist, by video teleconferencing or telephone.
* * * * *
    (e) Witnesses at a hearing. Witnesses may appear at a hearing in 
person or, when the conditions in Sec.  416.1436(c)(2) exist, by video 
teleconferencing or telephone. They will testify under oath or 
affirmation unless the administrative law judge finds an important 
reason to excuse them from taking an oath or affirmation. The 
administrative law judge may ask the witness any questions material to 
the issues and will allow the parties or their designated 
representatives to do so.
* * * * *
[FR Doc. 2013-11932 Filed 5-20-13; 8:45 am]
BILLING CODE 4191-02-P