Resolution Regarding the Proposed Changes to the Regulations Governing Adjudication of SSDI and SSI Claims

WHEREAS, approximately 2,663,000 persons applied for Social Security Disability Insurance and/or Supplemental Security Income benefits in 2006, with the number of applicants expected to grow as “the baby boom generation advances through their disability prone years”;

WHEREAS, approximately 65% of disability claims filed nationwide in fiscal year 2006 were denied at the initial level and 87% were denied at the reconsideration level, leaving the balance of applicants desiring to further pursue their claims to do so through the Administrative Law Judge hearing process and potentially beyond;

WHEREAS, approximately 62% of disability claims that go to the Administrative Law Judge level are approved nationwide;

WHEREAS, approximately 2 % of claims denied at the Administrative Law Judge level and appealed to the Appeals Council of the Social Security Administration are reversed and benefits awarded at this agency level and another 25% of the claims appealed to the Appeals Council of the Social Security Administration are remanded to Administrative Law Judges for a new adjudication;

WHEREAS, many cases denied at either the Administrative Law Judge or Appeals Council level and further appealed to the federal courts are either approved or remanded to the Social Security Administration for further administrative adjudicative review by the federal courts;

WHEREAS, Congress, The United States Supreme Court, and the Social Security Administration itself have long recognized that the informal and non-adversarial adjudicatory process of Social Security claims is a critical aspect of the disability program which is designed to correctly determine eligibility of claimants;

WHEREAS, it is inherently unfair to claimants, represented and unrepresented, to impose upon them procedural rules that greatly threaten the right to a decision based upon all of the evidence to be adduced after a full and fair hearing consistent with their rights to due process under the Social Security Act;

WHEREAS, the Social Security Administration issued proposed Rules to effectuate substantial changes in the administration and adjudication of Social Security Disability Insurance and Supplemental Security Income claims, published in the Federal Register, Volume 72, No. 208 commencing at page 61218 on Monday, October 29, 2007 (“NPRM” or “Regulations”);

WHEREAS, the proposed changes in the Regulations governing the adjudication of Social Security Disability Insurance and Supplemental Security Income claims include but are not limited to:
a) placing potential limitations upon the submission of evidence to Administrative Law Judges at the hearing level (see proposed changes to 20 CFR Section 404.935);
b) the administrative record closing forever upon the issuance of an Administrative Law Judge decision such that even upon an administrative or judicial remand of a claimant an Administrative Law Judge cannot review evidence after the initial Administrative Law Judge denial to determine disability (see proposed changes to 20 CFR Sections 404.972 and 973);
c) allowing for dismissal of claims for failure of claimants or their representatives to attend pre-hearing conferences which no longer have a minimum notice requirement for scheduling as compared with the former provision of not less than 7 days notice in scheduling pre-hearing conferences, which change the Social Security Administration has indicated is necessitated by the prior 7 days notice requirement being “too rigid” (proposed revisions to 20 CFR Section 404.957);
d) changing the existing Rules concerning reopening of earlier adjudications such that once an Administrative Law Judge decision or an Appeals Council (to become Review Board) decision has been made, new and material evidence establishing disability as of the period previously adjudicated can no longer be considered (see proposed changes to 20 CFR Section 404.989);

WHEREAS, the Social Security Disability Committee of the Philadelphia Bar Association has reviewed the proposed Rules published as aforesaid and has concluded that many of the proposed Rules would have an adverse impact upon persons seeking Social Security Disability Insurance and Supplemental Security Income benefits by way of casting aside people’s rights to a full and fair hearing in accordance with the right to due process in the supposed interests of administrative efficiency and cost savings, for reasons including (but not limited to):

a) restricting the submission of evidence in violation of the Social Security Act which entitles claimants the right to a hearing with a decision based upon “evidence adduced at the hearing” (42 U.S.C. Section 405(b)(1);
b) eliminating the Social Security Administration’s present obligation to fully and fairly develop the record (see Hecker v. Campbell, 461 U.S. 458, 471 n.1 (1983)) and to issue a decision based upon all evidence of record at the time of the issuance of the decision;
c) giving Administrative Law Judges the discretion to refuse to accept evidence without any effective mechanism to protect from such potential abuses of discretion within the agency; and
d) leading to more federal court filings as complaints will be filed not only for determining whether an individual is disabled, but also for the purpose of determining whether the Social Security Administration was wrong to refuse to consider evidence submitted (as sentence 6 of 42 U.S.C. Section 405(g) allows a federal court to remand a case for consideration of additional evidence if it is new and material and there is good cause for the failure to submit the evidence earlier).

NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association urges the Commissioner of Social Security and the Social Security Administration to abandon the proposed Rules or to further change them such as to:

a) reflect the reality that medical providers, not claimants and their counsel, control the release of medical records and the ability of claimants to submit medical evidence to the Social Security Administration;
b) reflect the reality that some medical conditions are not readily apparent and require evaluation and testing over time before accurate diagnoses can be made and thus medical evidence furnished to the Social Security Administration which is relevant to disability claims;
c) not leave in the hands of Administrative Law Judges unfettered discretion in accepting or rejecting receipt and consideration of medical evidence;
d) not limit the record and fail to require the adjudicator to consider new evidence for purposes of deciding cases either initially, upon remand or for reopening of earlier decisions at either the Administrative Law Judge or Appeals Council/Review Board levels; and
e) with regard to the scheduling of pre-hearing conferences and allowing dismissal of claims for failing to attend same upon “reasonable notice, reflect the reality that counsel routinely have their calendars filled up to 90 days in advance and that “reasonable notice” is too vague to be allowed for dismissal of claims.

AND BE IT FURTHER RESOLVED that the Chancellor or her designee is authorized and directed to take such steps as may be necessary or appropriate to effect this resolution, including communicating with the Commissioner of Social Security and/or the Social Security Administration by way of forwarding comments to said agency regarding the notice of proposed rulemaking set forth in the Federal Register, Volume 72, No. 208 on Monday, October 29, 2007.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: NOVEMBER 29, 2007