4191-02U
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 publis
hing final rules for portions of the rules we
proposed in October 2007 that relate to pers
ons, other than the cl
aimant or any other
party to the hearing, appearing by tele
phone. We are also clarifying that the
administrative law judge (ALJ) will allow the cl
aimant or any other pa
rty to a hearing to
appear by telephone under cert
ain 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 the hearings
backlog. In addition, we made some minor edito
rial changes to our regulations that do not
have any effect on the rights of
claimants or any other parties.
DATES: This rule is effective
[INSERT DATE 30 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL
REGISTER
].
2
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 pr
ograms under title II of
the Social Security Act (Act) and the supplem
ental 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 claima
nt or any other part
y 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 me
dical expert’s testimony by tele
phone without pr
ior notice to
the claimant, and over the claimant’s objecti
ons, 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 ha
ve made similar rulings. These final
rules address concerns raised in
Edwards
and other cases.
3
We proposed these changes in a noti
ce 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
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 th
e 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 w
ill notify the claimant and any other party
to the hearing in advance of the hearing. If th
e claimant or any other party to the hearing
objects to any other person a
ppearing by video teleconferen
cing or by telephone, the ALJ
will decide how that person will appear. Our fina
l rules also clarify that the claimant or
any other party to the hearing may request to
appear at the hear
ing 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 vi
deo teleconferencing.
1
The NPRM is available at:
http://www.gpo.gov/fdsys/pkg/FR-2007-10-29/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
4
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 peri
od, which ended on December 28, 2007. We
received 111 public comments on telephone tes
timony. 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 expert
s and other witnesses. Regard
ing expert witnesses, one
commenter believed that an expert testifyi
ng via telephone would need to provide the
underlying documentation for his or her testim
ony at the hearing, and suggested that, if
requested, the expert witnesses could be ob
ligated to fax such documentation to the
claimant or representative. Ot
her commenters expressed concer
n that it would be difficult
for claimants or representatives to verify
the qualifications or i
nvestigate disciplinary
problems relating to expert witnesses testif
ying via telephone. Another commenter said
that an appearance of bias is
introduced when experts from
one area of the
country testify
5
via telephone in cases located
in another area of the c
ountry. With respect to lay
witnesses, one commenter believed the proposed
rule needed additiona
l clarity to convey
that ALJs could not use it to prevent the clai
mant 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 w
itness appearing by tele
phone, 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 telephon
ic 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 th
e matters at issue. If witnesses appear by
telephone, we will continue to provide the clai
mant and any other party to the hearing the
same right to question and cross-examine w
itnesses, as well as access to the hearing
record.
In addition, the final rule
s 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 mu
st “qualify” them by eliciting information
including, but not limited to, impartiality,
expertise, and professional qualifications.
Furthermore, MEs and VEs will continue to s
ubmit their professional qualifications into
6
the written record. The claimant and any othe
r 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 exam
ination or personal evaluation of the
claimant. Thus, a claimant or representative
will have a complete
opportunity to confront
and examine an expert witness on qualific
ations or adverse te
stimony 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 test
imony. In addition, the claimant and any other
party to the hearing retain th
e right to 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 requireme
nts 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 indivi
duals. Accordingly, a
7
regulatory flexibility analysis as provided in
the Regulatory Flexibility Act, as amended,
is not required.
Paperwork Reduction Act
These final rules contain public reporting requi
rements in the regulation sections listed
below, which we did not previously clear
through an existing Information Collection
Request.
Regulation
Section
Description
of Public
Reporting
Requirement
Number of
Respondents
(annually)
Frequency
of
Response
Average
Burden
Per
Response
(minutes)
Estimated
Annual
Burden
(hours)
404.936(c)(1);
404.938(b);
405.315(c)(1);
416.1436(c)(1);
416.1438(b)
You or any other
party may
request to appear
at the hearing by
telephone; ALJ
will allow
telephone
hearing when
extraordinary
circumstances
prevent
appearance in
person or by
video
teleconference
1,000 1 30 500
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 qua
lity, utility, and clarity; and wa
ys to minimize the burden
on respondents, including the use of automated techniques or other forms of information
technology. If you would like to submit commen
ts, please send them to the following
locations:
Office of Management and Budget
Attn: Desk Officer for SSA
Fax Number: 202-395-6974
8
E-mail address: OIRA_Submission@omb.eop.gov
Social Security Administration
Attn: Reports Clearance Officer
1333 Annex
6401 Security Blvd
Baltimore, MD 21235-0001
Fax Number: 410-965-6400
E-mail: OR.Reports.Clearance@ssa.gov
You can submit comments until (
INSERT DATE 30 DAYS AFTER DATE OF
PUBLICATION IN THE FEDERAL REGISTER
), 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 us
ing 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 Securi
ty – Retirement Insurance; 96.004, Social
Security – Survivors Insurance; a
nd 96.006, Supplemental Security Income)
List of Subjects
20 CFR Part 404
Administrative practice a
nd procedure; Blind; Disability benefits; Old-Age,
Survivors, and Disability Insurance; Repor
ting and recordkeeping requirements; Social
Security.
20 CFR Part 405
Administrative practice a
nd procedure; Blind, Disability benefits; Old-Age,
Survivors, and Disability Insurance;
Public assistance programs; Reporting and
recordkeeping requirements; Social Securi
ty; Supplemental Security Income (SSI).
20 CFR Part 416
9
Administrative practice a
nd procedure; Aged, Blind, Disability benefits, Public
Assistance programs; Reporting
and recordkeeping requirement
s; Supplemental Security
Income (SSI).
Dated: May 9, 2013.
_______________________________
Carolyn W. Colvin,
Acting Commissioner of Social Security.
10
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, SURVIV
ORS 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), a
nd (j), 221, 223(i), 225, and
702(a)(5) of the Social Security Act (42 U.S.
C. 401(j), 404(f), 405(a)–(b), (d)–(h), and
(j), 421, 423(i), 425, and 902(a)(5)); sec.
5, Pub. L. 97–455, 96 Stat. 2500 (42 U.S.C. 405
note); secs. 5, 6(c)–(e), and 15, Pub. L. 98–460,
98 Stat. 1802 (42 U.S.C. 421 note); sec.
202, Pub. L. 108–203, 118 Stat. 509 (42 U.S.C. 902 note).
2. In §404.936, revise the reference to “par
agraph (c)” in the first sentence of
paragraph (h) to “paragraph (c
)(1)” and revise paragraph
(c) to read as follows:
§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:
11
(1) We will consult with the administra
tive 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 conducte
d by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e 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 pr
events the use of video teleconferencing to
conduct the appearance. You or
any other party to the hearin
g 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 th
e other party who makes the request from
appearing at the hearing in pers
on or by video teleconferencing.
(2) The administrative law
judge will determine whether any person other than
you or any other party to the hearing, includ
ing a medical expert or
a vocational expert,
will appear at the hearing in person, by vide
o teleconferencing, or by telephone. If you or
any other party to the he
aring objects to any other person appearing by video
teleconferencing or by telephone, the administ
rative 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 admini
strative 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 th
e hearing objects to
12
appearing by video teleconferencing, to a
ppear by video telec
onferencing or telephone
when the administrative
law judge determines:
(i) Video teleconferencing or te
lephone 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 ot
her reason why video teleconferencing or
telephone should not be used.
* * * * *
3. In §404.938, revise paragraph
(b) to read as follows:
§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 decide
d and tell you that you may desi
gnate 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 heari
ng 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 pers
on, by video teleconferencing, or, for a person
other than you or any other party to the he
aring, by telephone. If we have scheduled you
to appear at the hearing by
video teleconferencing, the notic
e 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 te
leconferencing. The notic
e will also tell you
13
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 noti
ce will also tell you that you may ask us if
you want to appear by telephone, and that th
e administrative law judge will grant your
request if he or she determines that ex
traordinary circumstances prevent you from
appearing in person or by
video teleconferencing.
* * * * *
4. In §404.950, revise paragraphs (a
) and (e) to read as follows:
§404.950 Presenting evidence at a hearing
before an administrative law judge
(a) The right to appear and present evidence.
Any party to a hear
ing has a right to
appear before the administrative law judge, ei
ther in person, or, when the conditions in
§404.936(c)(1) exist, by video tel
econferencing 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 §404.936(c)(1) exist, by
video teleconferen
cing or telephone.
* * * * *
(e) Witnesses at a hearing.
Witnesses may appear at a hearing in person or, when the
conditions in §404.936(c)(2) exist, by video
teleconferencing or
telephone. They will
testify under oath or affirmation unless the ad
ministrative 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.
* * * * *
14
Part 405 – ADMINISTRATIVE REVIEW
PROCESS FOR ADJUDICATING INITIAL
DISABILITY CLAIMS
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).
6. In §405.315, revise paragraph
(c) to read as follows:
§ 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 conduc
ted by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e 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 pr
events the use of video teleconferencing to
conduct the appearance. If you
object to appearing personall
y by video teleconferencing,
we will re-schedule the hear
ing to a time and place at which you may appear in person
before the administrative law judge. You ma
y request to appear at the hearing by
telephone. The administrative law judge w
ill allow you to appear by telephone if the
15
administrative law judge determines that ex
traordinary circumstances prevent you from
appearing at the hearing in pe
rson or by video teleconferencing.
(2) The administrative law
judge will determine whether any person other than
you, including a medical expert or a vocationa
l expert, will appear
at the hearing in
person, by video teleconferencing, or by tele
phone. If you object to any other person
appearing by video teleconferencing or te
lephone, 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. Th
e 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 administra
tive law judge determines:
(i) Video teleconferencing or te
lephone 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 la
w judge determines that th
ere is no other reason why
video teleconferencing or te
lephone should not be used.
Part 416 – SUPPLEMENTAL SECURITY IN
COME FOR THE AGED, BLIND, AND
DISABLED
Subpart N - [Amended]
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).
16
8. In §416.1436, revise the reference in para
graph (h) from the “first sentence of
paragraph (c)” to the “first se
ntence of paragraph (c)(1)” and
revise paragraph (c) to read
as follows:
§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 administra
tive 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 conducte
d by video teleconferencing if video
teleconferencing equipment is
available to conduct the
appearance, use of video
teleconferencing to conduct th
e appearance would be more
efficient than conducting the
appearance in person, and the administra
tive law judge determines there is no
circumstance in the particular case that pr
events the use of video teleconferencing to
conduct the appearance. You or
any other party to the hearin
g 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 th
e other party who makes the request from
appearing at your hearing in pe
rson or by video teleconferencing.
(2) The administrative law
judge will determine whether any person, other than
you or any other party to the hearing, includ
ing a medical expert or
a vocational expert,
17
will appear at the hearing in person, by vide
o teleconferencing, or by telephone. If you or
any other party to the he
aring objects to any other person appearing by video
teleconferencing or by telephone, the administ
rative 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 admini
strative 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 th
e hearing objects to
appearing by video teleconferencing, to a
ppear by video telec
onferencing or telephone
when the administrative
law judge determines:
(i) Video teleconferencing or te
lephone 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 la
w judge determines there is no other reason why video
teleconferencing or telep
hone should not be used.
* * * * *
9. In §416.1438, revise paragraph (b) to read as follows:
§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 decide
d and tell you that you may desi
gnate 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 heari
ng without good cause the administrative law
18
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 pers
on, by video teleconferencing, or, for a person
other than you or any other party to the he
aring, by telephone. If we have scheduled you
to appear at the hearing by
video teleconferencing, the notic
e of hearing will tell you the
scheduled place for the hearing is a video tel
econferencing site and explain what it means
to appear at your hearing by video telec
onferencing. The notice
will also tell you how
you may let us know if you do not want to ap
pear by video telec
onferencing 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 ad
ministrative law judge will grant your request
if he or she determines that extraordinar
y circumstances prevent you from appearing in
person or by video teleconferencing.
* * * * *
10. In §416.1450, revise paragraphs (a)
and (e) to read as follows:
§416.1450 Presenting evidence at a hearing
before an administrative law judge
(a) The right to appear and present evidence.
Any party to a hear
ing has a right to
appear before the administrative law judge, ei
ther in person, or, when the conditions in
§416.1436(c)(1) exist, by video te
leconferencing 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 §416.1436(c)(1) exist, by vi
deo teleconferenci
ng or telephone.
* * * * *
19
(e) Witnesses at a hearing.
Witnesses may appear at a hearing in person or, when
the conditions in §416.1436(c)(2
) exist, by video teleconf
erencing or telephone. They
will testify under oath or affirmation unle
ss 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 05/20/2013 at
8:45 am; Publication Date: 05/21/2013
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