News & Information

CCH® UNEMPLOYMENT INSURANCE — 7/15/08

Proposed rule clarifies evidentiary standard for determinations and decisions

The Social Security Administration recently proposed regulatory amendments that would clarify the evidentiary standard that it uses when making claims determinations under Parts 404 (insured benefits under Title II), 408 (special benefits for certain WWII veterans under Title VIII), and 416 (means-tested Supplemental Security Income benefits under Title XVI). Although it has always been the SSA's policy to apply the “preponderance of the evidence” standard when it makes determinations or decisions as part of the administrative review process, this standard is not something that has been clearly stated in the regulations.

The proposed amendments would explicitly state that the SSA will use the “preponderance of the evidence” standard to adjudicate claims at all levels of the administrative review process. The proposed amendments would also define “preponderance of the evidence” and “substantial evidence.”

Which regulations are being changed, added?

Specifically, determinations at the initial level of determination (Regs. §404.902, §408.1002, and §416.1402), at the reconsideration level (Regs. §404.917, §404.920, §408.1020, §416.1417, and§416.1420), at the prehearing case review (Regs. §404.941, §404.942, §416.1441, and §416.1442), by the Administrative Law Judge (Regs. §404.948, §404.953, §416.1448, and §416.1453), by the Appeals Council when it issues its own decision (Regs. §404.979 and §416.1479), and in cases that are remanded by the district court (Regs. §404.984 and §416.1479) would be revised to reflect that decisions must be based on the preponderance of the evidence. Note that the Appeals Council will continue to use the substantial evidence standard when it considers whether to grant a request for review. This standard is more deferential to the findings of the ALJ.

The new definition for “preponderance of the evidence” would state that it means means “such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not” (Regs. §404.901, §408.1001, and §416.1401). Similarly, the new definition for “substantial evidence” states that it means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (Reg. §404.901).

Comments due by August 12, 2008

Comments on the proposed changes are due by August 12, 2008, and may be sent to one of the addresses listed in the notice of proposed rulemaking, which is published in the June 13, 2008, Federal Register (73 Fed. Reg. 33745).

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