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									                                           Legal Services of New Jersey
                                           100 Metroplex Drive at Plainfield Avenue
                                                  Suite 402, P.O. Box 1357
                                               Edison, New Jersey 08818-1357
Melville D. Miller, Jr.                                Phone: (732) 572-9100
President and General Counsel
                                                SSI Project Toll Free: 1-877-576-5774
Dawn K. Miller
Executive Vice President
                                                  SSI Project Fax: (732) 248-5008
and Assistant General Counsel                           E-mail: lsnj@lsnj.org
Claudine M. Langrin                                         www.lsnj.org
Senior Vice President
and Assistant General Counsel
Harris David
                                                        October 10, 2005
Vice President
and Assistant General Counsel
Connie Pascale
Vice President                   Commissioner of Social Security
and Assistant General Counsel
Kristin A. Mateo
                                 PO Box 17703
Assistant Vice President         Baltimore, MD 21235-7703
and Staff Attorney

Senior Attorneys
Beatrix W. Shear
Mary J. Acevedo                         COMMENTS OF LEGAL SERVICES OF NEW JERSEY
Andrea Auerbach
Regan Almonor
                                          SUPPLEMENTAL SECURITY INCOME PROJECT
Deborah Fennelly                                                ON
Stephanie Setzer
Timothy R. Block
                                             COMMISSIONER OF SOCIAL SECURITY
Linda M. Garibaldi                           NOTICE OF PROPOSED RULEMAKING
Michele Olvera
David McMillin                    ADMINISTRATIVE REVIEW PROCESS FOR ADJUDICATING INTIAIL
Maura Sanders                                          DISABILITY CLAIMS
Cary Winslow
James Treanor                                 70 F.R. 143, 43590-43610 (July 27, 2005)
Rosendo R. Socarras                                         Submitted by
Carrie Ferraro
Gwen Orlowski                                           David M. Pantos, Esq.
Rebecca Schore                                      Legal Services of New Jersey
Jo Anne T. Mantz
Keith Talbot                                           100 Metroplex Dr. #402
Mary M. McManus
Sherril Reckord
                                                          Edison, NJ 08817
Supervising Attorneys
David Pantos                             The Legal Services of New Jersey Supplemental Security Income
Christopher Hill                 Project (LSNJ SSI Project) has represented indigent welfare recipients in the
Rita E. Robles-Navas
Rachel R. Elkin                  State of New Jersey who suffer from mental or physical disabilities in the SSI
Assistant Supervising Attorney   application and appeals process since 1999. The LSNJ SSI Project has on
Samir Lone                       average 1,400 clients at all stages of the application and appeals process,
Staff Attorneys                  including at least 100 pending claims at the Appeals Council and in Federal
Milva Diaz
Shifra Rubin                     District Court. Additionally, since 1999, the LSNJ SSI Project has filed several
Dan Florio                       hundred initial applications for SSI benefits in accordance with agreements
Danielle Joseph
Monica Gural                     reached between the LSNJ SSI Project and the New Jersey State Disability
Engy Abdelkader                  Determination Services and the New York regional Social Security office.
Pursuant to R.1:21-3(c)          What follows are the comments of the LSNJ SSI Project on the
Henry P. Wolfe
                                 Commissioner’s notice of proposed rulemaking regarding the application
Pursuant to R.1:21-3(b)
Hadley L. Matarazzo
                                 process. Notice of Proposed Rulemaking, Administrative Review Process for
                                 Adjudicating Initial Disability Claims, 70 Fed. Reg. 43,590-610 (to be codified
                                 at 20 C.F.R. § 404, 405, 416 and 422) (proposed July 27, 2005) [hereinafter,
                                 July 2005 NPRM.]

                                        The LSNJ SSI Project lauds the Commissioner’s stated goals of
                                 improving the “accuracy, consistency, and timeliness of decision making
                                 throughout the disability determination process.” [July 2005 NPRM, 43,590.]
                                 However, the July 2005 NPRM adds to the burden of disabled, indigent

                                          Coordinating New Jersey’s Legal Services System
claimants by eliminating the Appeals Council review of less than fully favorable Administrative
Law Judge decisions, reducing the time period in which to submit medical evidence at the
Administrative Law Judge stage, and restricting the ability of adjudicative officials to reopen
prior claims.

I. The Social Security Administration should not eliminate the Appeals Council.

         The July 2005 NPRM proposes to eliminate the Appeals Council review of less than
fully favorable (i.e. partially favorable or unfavorable) administrative law judge decisions.
Appeals Council review is being replaced by a Decision Review Board, which “will select and
review both favorable and unfavorable administrative law judge decisions that are likely to be
error-prone.” [July 2005 NPRM, 43,598.] However, under the new proposal, “you will no longer
have the right to request administrative review of a disability decision issued by an
administrative law judge.” [Ibid.] This means that a dissatisfied SSI claimant whose decision is
less than fully favorable and whose claim is not selected by the Decision Review Board must in
all situations file a lawsuit against Social Security in Federal District Court. This adds a
tremendous burden to indigent SSI claimants, since filing in Federal District Court is a much
more time-consuming and potentially costly process than requesting Appeals Council review.

       The current process of requesting Appeals Council review of an Administrative Law
Judge decision is quite simple. One files a “written request for review” at “one of our offices”
within 60 days of receipt of the original decision. 20 C.F.R. § 416.1468 (2005). At its most
simple, a dissatisfied claimant can complete and sign SSA Form HA-520 and deliver or mail it to
the nearest Social Security office1 to preserve his or her appeal. This form is only one page long,
and the claimant only has to complete the top half of it. The Appeals Council can then proceed
to make a determination on the request for review.

        Federal Court review is much more complicated. Claimants in New Jersey must file a
Complaint and Summons within 60 days of receipt of an unfavorable final decision of the
Commissioner of Social Security at one of only three Federal District Court offices. The
complaint must comply with both the Federal Rules of Civil Procedure as well as Local Rule 9.1
(Social Security matters). The claimant, now a plaintiff, in order to avoid a $250 filing fee, must
complete an application to proceed in forma pauperis. The complaint cannot proceed until the
District Court Judge assigned to the case files an order to proceed in forma pauperis. If, due to a
technical error, the application is filled out incorrectly and the Judge denies the application, the
claimant must file the fee (which may be complicated by the fact that it may now be more than
60 days since the final decision of the Commissioner) or petition for reopening under Federal
Rule of Civil Procedure 60(b).

      If the application to proceed in forma pauperis is approved, then the Judge may order the
U.S. Marshall to serve the summons and complaint on the Commissioner and the U.S. Attorney.
However, except in cases involving prisoners, this requirement is discretionary. Fed.R.Civ.P.

1
  In New Jersey, at least one Social Security office is located in each county (except sparsely populated Warren
County), usually in cities where the low-income SSI applicant population lives (e.g. Jersey City, Newark, Elizabeth
and Paterson.)
(4)(c)(2) (2005). If the Judge does not order the U.S. Marshall to deliver the summons and
complaint, the plaintiff is required to do so at his or her own expense.

       Assuming the plaintiff is able to meet this logistical burden, the Defendant Social
Security Administration then must file an answer to the complaint within 60 days, along with a
completed transcript of the entire claim record, including a verbatim transcript of the
administrative hearing. Due to the costs and delays associated with producing the transcript,
Social Security’s attorneys often petition for additional time to answer the complaint. In our
experience, this adds an additional 60-90 days to the case. Once the complaint is answered, a
New Jersey plaintiff is required under local rules to mail a settlement letter to Defendant counsel.

        If the Defendant fails to respond or refuses to settle, the plaintiff must write a brief
supporting a summary judgment motion and send it to opposing counsel. As the New Jersey
plaintiff is required by local rules to submit his/her opening brief and reply brief along with the
defendant’s brief to the clerk of the Court, the plaintiff must often remind the defendant to
produce Social Security’s brief. This often adds additional delays. Once all briefs are submitted,
the Federal Judge is under no time deadline to respond and can often take six months to a year to
issue a decision. If the plaintiff is ultimately successful in achieving a remand or a reversal, the
plaintiff can then apply for fees under the Equal Access to Justice Act. These fees are routinely
granted, are borne by the Social Security Administration, and average around $4,000 per case.

        Clearly, then, the elimination of the Appeals Council will result in more federal district
court filings. This is a more complicated and time consuming process than appeals council
review. The July 2005 NPRM seems to recognize this reality by countering, “While we agree
that the Appeals Council has identified erroneous administrative law judge decisions and
provides recourse in some instances, we believe that the current Appeals Council review process
adds substantial processing time to the disability adjudication process without intercepting large
numbers of claims that do not withstand Federal district court review. The district courts are
currently remanding more than 50 percent of the disability cases filed against us.” [July 2005
NPRM, 43599.]

        The opposite is true. In Fiscal Year 2004, the Appeals Council received 92,540 requests
for review,2 which is a typical amount. On average, the Appeals Council reverses 20-25% of the
cases it receives, approximately 23,000 per year. Of the 70-75,000 claimants whose cases are not
reversed, only 15,000 file in the U.S. District Court. Social Security Advisory Board, “Disability
Decision Making: Data and Materials” (Jan. 2001), at 86. According to the Commissioner, then,
about 7,500 of these cases are remanded by the district court. Therefore, of all reversed cases,
about 75% (23,000 divided by the sum of 7,500 and 23,000) are reversed by Social Security
through its own administrative process. This means that, of all reversed cases, the Commissioner
explicitly agrees that 75% should be reversed, as the Appeals Council is part of the Social
Security Administration and represents its final word on a case. This gives the lie to the claim
that the Appeals Council review process “adds substantial processing time to the disability
adjudication process without intercepting large numbers of claims…” [Ibid, emphasis added.]
On the contrary, since Social Security catches 75% of its own mistakes on its own volition, it is
actually intercepting a large number of incorrectly decided claims.

2
    Social Security Administration, “General Appeals Council Statistics,” http://www.ssa.gov/oha/ac_statistics.html.
        By eliminating the Appeals Council, the Commissioner essentially is stating that these
additional 23,000 appeals that the Commissioner would have found to have merit under the
existing procedures must be subjected to the more difficult, time-consuming and expensive
federal court review process. This burden will be felt much more severely by low income
individuals. Instead of a very simple appeal process, the indigent claimant must now become a
plaintiff in a federal district court lawsuit and face the many hurdles associated with filing the
complaint described above. Many poor people are likely to give up rather than face such a
daunting task. Many of those who give up are the same people whose cases would have been
reversed by the Appeals Council. There is no guarantee that the Decision Review Board will
select these cases for review.

        In the past, the Appeals Council had been derided for its failure to timely act on requests
for review, taking 450 days on average to render a decision. However, it has been the LSNJ SSI
Project’s recent (i.e. in the last year) experience that the Appeals Council has greatly reduced its
processing time. In most of our SSI disability appeals, the Appeals Council has been responding
with a decision in two to six months. In one recent case, a Request for Review on an
unfavorable decision was remanded in 45 days. This shows that, working efficiently, the Appeals
Council can provide fair and useful review of SSI claims in a reasonable time frame. The NPRM
regarding the Appeals Council seems to be based on old data before the Appeals Council began
taking steps to improve its efficiency.

        For these reasons, the Appeals Council should be retained for the purpose of reviewing
less than fully favorable Administrative Law Judge decisions.

II. The Social Security Administration should not set strict deadlines on submitting evidence at
hearing.

        The July 2005 NPRM proposes to close the administrative record after the ALJ issues a
decision in a case, unless there is new and material evidence under certain limited circumstances.
[July 2005 NPRM, 43,596-7.] While the LSNJ SSI Project seems some problems with this
proposal in the context of unrepresented claimants, this general proposal will not be further
commented upon. However, under the rubric of closing the administrative record, the July 2005
NPRM also proposes that “you must submit all of the evidence you will rely upon in your case to
the administrative law judge no later than 20 days before the hearing.” [NPRM, 43,597.] This
additional requirement is unduly burdensome, especially to indigent claimants, and should be
removed. Claimants should be able to submit evidence up to the date of the hearing, and
thereafter if permitted by the ALJ, based on the facts of the situation.

        The July 2005 NPRM states that the 20-day time limit will be easily met because “we are
also proposing that the administrative law judge must notify you of your hearing date at least 45
days before the hearing.” [July 2005 NPRM, 43,597.] On its face, this gives claimants only
around 25 days submit their updated medical records, which is in most cases unrealistic and
impractical. The NPRM seems to assume that claimants have all of their updated medical
records in their possession, and simply need to mail them to the ALJ when they are notified of
their hearing date. This is not usually the case. Usually, claimants and their representatives must
request medical records from their source: hospitals, clinics, and doctor offices. This is already a
timely process with built-in delays that make the 20-day time limit insurmountable.

        In New Jersey, for example, hospitals and doctors are permitted by state regulation to
take up to 30 days to respond to a request for medical records. New Jersey Administrative Code
8:43G-15.3. In addition, the same code allows doctors and hospitals to charge $1.00 per page,
with a $10.00 search fee, for those records. In a typical situation, our office will send a request
for records to a doctor or hospital immediately after receiving phone notice from the Office of
Hearings and Appeals that the hearing has been set. Within about two weeks, we will receive a
bill from the provider indicating the number of pages and the cost. We must then process the
check, mail the check, and wait for the records. We usually receive the records about two weeks
after we mail the check. Then, we must review the records and send them to the OHA. This
process takes about 35-45 days.

        Part of the delay has to do with the fact that many New Jersey hospitals have contracted
medical record duplication services with private, out-of-state companies such as Chart One. That
is, we are not sending the funds to pay for records directly to the provider; rather, we must send
the funds to the copy services corporate office.

        Even in the best possible situation, where the provider waives the copy fee, they still
operate under a 30 day deadline. Many smaller doctor offices do not have the staff to quickly
respond to requests for records, and may take up to six weeks to respond. In the case of indigent
claimants who receive most of their treatment at free clinics and emergency rooms, the delays
are often compounded.

        The response to these scenarios might be that claimants and their representatives should
begin the process of requesting records before the day they are notified about the hearing. Even
though this has been the practice of the LSNJ SSI Project, it does not amount to a solution. For
example, assume that a representative requests medical records for a client immediately after
requesting a hearing. The representative receives the records 45 days later and submits them.
Eight months after the request for hearing, the representative is notified of the hearing. In the
interim, the claimant has been hospitalized twice and received physical therapy for 3 months.
The representative still has to request the updated records, and must submit them before the 20-
day limit arrives.

        The July 2005 NPRM sets out very limited “good cause” provisions for submitting
records after the 20-day deadline. These provisions limit by exclusion the ALJ’s discretion as to
what evidence to allow in what circumstances. This has the effect of curtailing the ALJ’s ability
to conduct a de novo review of the disability claim. That is, the ALJ is barred from reviewing
relevant evidence material to the claim that exists prior to the ALJ’s decision. This runs contrary
to the NPRM’s own mandate to “Preserve the right of claimants to request and be provided a de
novo hearing…” [July 2005 NPRM, 43,593.]

       For these reasons, the 20-day deadline for submission of evidence should be removed
from the Commissioner’s proposals.
III. The Social Security Administration should not change its current rules regarding reopening
and revising initial determinations.

         The July 25, 2005 NPRM proposes to remove the current reopening criteria allowing
Social Security to reopen a determination or decision within one year of the date of the notice of
the initial determination “for any reason.” [July 2005 NPRM, 43,603.] Furthermore, the NPRM
proposes to remove the submission of “new and material evidence” provision from the list of
“good cause” reasons for reopening a decision within two years in the context of SSI, and four
years in the context of Social Security Disability Insurance Benefits. [Ibid.] See also 20 C.F.R. §
416.1488 (2005); 20 C.F.R. § 404.988 (2005). The NPRM proposes to only allow reopening in
the context of clear error, or fraud or similar fault. [Ibid., to be codified at 20 C.F.R. §405.601 et.
seq.]

       This proposal is simply unfair and will present a huge burden to low income and indigent
claimants. It will serve to deny deserved retroactive benefits to large classes of individuals who
have been determined to be disabled, even when the evidence exists to prove their disability.
Furthermore, it will curtail the discretion of adjudicators and administrative law judges to
consider all evidence relating to a disability claim.

         The following example is based on an actual case we handled. Assume an individual who
applies for Social Security Disability Insurance Benefits and SSI on January 1, 2005 based on
schizophrenia, alleging an onset date of June 1, 2004. Due to his earnings, he would be entitled
to $1,200 per month of SSDIB. Assume further that the individual’s date last insured for SSDIB
is May 31, 2005. The DDS adjudicator attempts to get the claimant’s medical records but the
psychiatric hospital, applying strict privacy guidelines, requires its own medical release form.
DDS then schedules the claimant for a consultative examination, which the claimant does not
attend due to paranoid ideations. The claimant is found to be non-compliant, and he is sent an
initial determination denying his claim on June 1, 2005. See, e.g., “If you do not appear at a
consultative examination.”20 C.F.R. §416.918 (2005).

         Due to mental illness, the claimant fails to file a timely appeal. Three months later, the
claimant files a new application for SSI and SSDIB benefits with the assistance of a newly
assigned mental health social worker at his day program, alleging an onset date of June 1, 2004,
as in the earlier claim. (Assume the case worker did not know about the prior application and did
not know she might be able to file a late request for reconsideration.) The mental health social
worker was able to secure the claimant’s psychiatric records which DDS failed to get during the
first claim, and these are submitted with the second application. The claimant is found disabled
with an onset date of June 1, 2004.

        Under the current rules, this claimant would be found eligible for both SSDIB and SSI.
The second application alleged an onset date that was the same as the first application, implicitly
requesting reopening of the application. With the first application reopened due to new and
material evidence, the claimant can receive the monthly SSDIB to which he is entitled along with
several thousand dollars in retroactive SSDIB.

      This is not the case under the July 2005 NPRM. Despite the claimant’s disability, neither
DDS nor SSA would be able to reopen his prior claim, under the proposed 20 C.F.R. §
405.605(c)(2) [July 2005 NPRM, 43,618.] This states that good cause to reopen will not be
granted if the only reason is the “existence of new evidence that was not considered in making
the determination or decision.” The claimant would only then receive SSI, a lesser benefit. Even
though his alleged onset date was found credible by the agency, the prior claim was denied and
closed after his date last insured for SSDIB. Since his DIB claim is effectively barred by
administrative res judicata, he can only get SSI.

         It makes more sense for claimants to get the benefits to which they are entitled. The
current rules are not excessively permissive. While reopening “for any reason” seems quite
liberal, it only applies when the request is made within one year of the earlier determination. This
helps to accommodate those, especially indigent individuals, who for some reason (illness,
incarceration, homelessness, etc.) fail to file an appeal of their original determination. Also,
good cause reopening for “new and material evidence” is a fair rule. Remember that the result of
a “good cause” reopening is not some additional right or privilege, but simply the benefits that
the person would have been entitled to had the evidence been submitted during the earlier claim.
Most would agree that a severely disabled person should not be prevented from getting Social
Security benefits because a hospital or doctor failed to release relevant medical records on time.

       For these reasons, the Social Security Administration should not remove the “new and
material evidence” provision from the conditions warranting the reopening prior determinations,
and should continue to allow initial determinations to be reopened within a year for any reason.

      Thank you for your consideration of these comments on the Commissioner’s July 27,
2005 Notice of Propose Rulemaking.

Sincerely,

David M. Pantos, Esq.
Supervising Attorney
Legal Services of New Jersey SSI Project

								
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