APPENDIX E
TESTIMONY OD AALJ PRESIDENT ON JUNE 20,2002
Before the Subcommittee on Social Security,
House Committee on Ways and Means
House Committee on Ways and Means
Hearing on Social Security Disability Programs' Challenges
and Opportunities
June 20, 2002
Mr. Chairman
and Members of the Subcommittee:
I.
INTRODUCTION
Thank you for the opportunity to testify before you today. My name is
Ronald G. Bernoski. I am an Administrative Law Judge (“ALJ”) who has been
hearing Social Security disability cases at the Office of Hearings and Appeals
(“OHA”) of the Social Security Administration (“SSA”) in Milwaukee, Wisconsin,
for over 20 years.
This statement is presented in my capacity as the President of the Association
of Administrative Law Judges (“AALJ”), which represents the ALJs employed in
the SSA OHA and the Department of Health and Human Services (“DHHS”). One
of the stated purposes of the AALJ is to promote and preserve full due process
hearings in compliance with the Administrative Procedure Act for those
individuals who seek adjudication of program entitlement disputes within the
SSA.
I will address the challenges and opportunities for the Social Security
Disability Programs in improving the disability determination appellate process
at the ALJ hearing and Appeals Council administrative review levels.
First, I will list the challenges at the DDS agencies that affect the appellate
levels and at each of the appellate levels. Then I will offer short and
long term solutions that may be implemented to resolve these challenges.
The table of contents is an outline of the challenges and proposed solutions
that I present for the Social Security Disability Programs. This
discussion presumes familiarity with the structure of the SSA OHA and the
initiatives by the SSA management to change or improve the functioning of OHA,
including the Process Unification Training (“PUT”), the Hearing Process
Improvement Plan (“HPI”), and the Appeals Council Improvement Plan (“ACPI”).
II. CHALLENGES
FOR THE SOCIAL SECURITY DISABILITY PROGRAMS
A.
Challenges at the DDS Level:
1. The
Need to Reduce the Number of Cases that Require an ALJ Hearing by Getting the
Claimants a Correct Final Administrative Result Sooner: The reversal
rate of the DDS decisionmakers’ determinations by the ALJs remains high.
In order to reduce the number of ALJ reversals of DDS determinations, in 1996,
the SSA conducted the PUT training to have the DDS decisionmakers use the same
rules to decide cases as the ALJs. This has not resulted in fewer cases
requiring an ALJ hearing because DDS decisionmakers are required to apply a
medical standard set forth in the SSA POMS manuals when determining disability,
which is not the standard used by the ALJs. ALJs use a legal standard
when determining disability that is based upon the Social Security Act, the SSA
regulations and rulings, and the federal case law that interpret them.
Although Congress has expressed concern about the different benefits allowance
rates between the DDS agencies and OHA, there also is a concern about the wide
discrepancy in the benefits allowance rates among the different states’ DDS
agencies. The latter discrepancy cannot be explained by the use of a
different standard for decisionmaking, since all of the DDS agencies use the
same medical standard.
2. The
Need to Reduce Processing Time for the Initial and Reconsidered Determinations
Levels: Rather than carefully develop and examine the claimants’
cases once, DDS often is making its initial determinations based on incomplete
records, and, upon reconsideration, rarely obtains significant additional
medical evidence or changes the outcome of the case. SSA recently reported
that only about three percent of initial determinations are changed at the
reconsideration level.
There are steps that SSA can take that do not require
legislation to (1) improve the quality of DDS decisionmaking, which will reduce
the number of ALJ hearings, and (2) reduce the DDS case processing time.
They are enumerated in Section III below.
B. Challenges
at the ALJ Hearing Level: In brief, the Social Security Disability
Programs’ challenges at this level is to have a large and growing volume of
cases heard and decided by SSA’s ALJs in a timely and high quality manner that
preserves the claimant’s due process rights under the Social Security Act and
Administrative Procedure Act (“APA”). Several specific challenges that
now confront the new Commissioner are as follows:
1. The Need
to Reduce the Number of Cases that Require an ALJ Hearing by Getting the
Claimants a Correct Final Administrative Result Sooner: The burgeoning
caseload at the ALJ hearing level has been growing unabated in recent
years. Prior to HPI, the SSA OHA heard and decided over 500,000 cases
annually, and surpassed 600,000 in one recent year. SSA is projecting
that the annual caseload will climb to about 726,000 by 2005. This has
strained the current structure of OHA to timely handle the volume with quality
because nothing effective has been done to either reduce the number of cases
that require an ALJ hearing or change the structure of OHA to better address
the huge caseload:
(a) OHA’s
structure and process for hearing cases has not changed significantly to adjust
to the large scale of the operation since the APA went into effect in
1947. There is no mechanism for settling cases without a hearing, other
than granting a claim on the record, because SSA has no representative to
assert its interests at the hearing level.
(b) Cases
endlessly are remanded back to the ALJ level for rehearing because the record
remains open without limits, new issues may be raised at all levels of appeal,
and the quality of the Appeals Council review is poor.
There are several steps that SSA can take that do not
require legislation to reduce the number of ALJ hearings. They are
enumerated in Section III below.
2. Challenges
from the ALJ Level HPI Reorganization of OHA: There is a consensus
that HPI, which SSA implemented in 2000, has both exacerbated the case
disposition time problems that it was intended to solve and created new
problems that have caused work flow bottlenecks, reduced the quality of
decision drafts by some decision writers, and increased the case backlog.
The several HPI challenges are as follows:
(a) One purpose
of HPI was to reduce the amount of processing time it takes to obtain the
evidence for the record by doing it more completely before the ALJ hearing, so
that fewer cases would need post-hearing development. The practice of HPI
did not result in a reduction of cases that require post-hearing development.
(b) HPI also was
expected to reduce overall case processing time, ostensibly by reducing the
need for post-hearing development. Instead, case processing time steadily
has lengthened under HPI beyond what was considered to be unacceptable at the
time that HPI was implemented. The creation of teams to handle cases was
intended to decrease the number of people who have to work on each case and
increase individual responsibility for the quality of work within the group,
which were expected to reduce case processing time and increase work
quality. Instead, HPI process has resulted in an increase of the “hand
offs” of the files and the sense of individual responsibility for work quality
has vanished. The cases are assigned to judges later in the process and
the responsibility for early pre-hearing case development has been transferred
to the staff.
(c) The quality
of decision drafts has declined because, as part of the HPI plan, SSA has
promoted to Paralegal Specialist positions as ALJ decision writers clerical
staff members, many who do not have the skills to perform the job adequately.
HPI created promotion opportunities for the clerical staff, which boosted the
morale of those receiving the promotions. However, the implementation of
HPI resulted in the promotion of clerical staff to approximately 350 writer
positions without the need to show that they have the skills to do the
job. This promotion process resulted in positions being filled by
clerical staff, some of whom who have not been successful in performing the
job.
(d) A huge backlog of
case files that need to be prepared for hearing has accumulated as a result of
the SSA promoting about 350 clerks to writer positions and about 300 clerks to
case technician positions as part of the HPI plan without replacing the vacated
clerical positions. (The process of organizing and marking exhibits to
prepare a case for hearing is called “pulling,” which is a clerical
task.) As a result, the backlog of unpulled cases has ballooned
from about 34,000 to 216,000 since HPI has been implemented. The
shortfall in “pulled” cases has resulted in an insufficient number of cases
being scheduled for ALJs to hear in many offices and adds to the case
processing time.
(e) The lack of
acceptance of the failure of HPI by the SSA administrators is a challenge that
the new Commissioner confronts. At a hearing before the House
Subcommittee on Social Security in June 2001, Mr. Stanford Ross, Chair of the
SSAB, testified that the HPI did not improve the hearing process and in some
circumstances it had made the situation worse. Without acknowledgment of
the failure of HPI, new strategies will not be considered seriously and
implemented by SSA administrators.
3. The Challenge of
Preserving Due Process While Achieving Greater Efficiency:
I have a strong concern with recent information that AALJ
has received relating to three proposals to transfer the SSA administrative law
judge hearing and final adjudication of Social Security Act claims to non-ALJ
claims personnel within the District Offices, non-ALJ claims personnel within
the District Offices the Departments of Disability Services, and/or non-ALJ
hearing officers within OHA. A brief summary of the facts about these
proposals that are known to AALJ are as follows:
Transfer of SSA Hearings to non-ALJ Technical Personnel in
the District Offices: Recently, AALJ
learned that the SSA is creating a “Special Title II Disability Workload cadre”
(“ST2DW”) to make final determinations of Title II Social Security Act
claims. The jobs are a for a detail of one year that may be extended in
upstate New York (Buffalo, Schenectady, Albany) that will consist exclusively
of GS-12 level claims personnel employed in the District Offices in that local
area, whose title is “Technical Expert (“TE”).” No OHA personnel
reportedly will be considered for this position. The SSA New York Region
Personnel Operations already has issued solicitations for Technical Experts to
apply for the position that was to close on May 1. There reportedly will
be a two month training period for this one year detail. The training was
to begin in New York City on May 13. The solicitation provided as
follows:
TEs will perform a pre-interview assessment of each ST2DW
case and complete a development sheet. This sheet will be used to conduct
interviews with the claimant and to obtain complete development of the case.
TEs will be responsible for final adjudication of developed cases, and/or
pre-effectuation reviews of cases developed by others. TEs will use all
available tools and controls associated with the ST2DW.
The position reportedly will be at the GS-12 level and no
position description has been prepared. This is a proposal that already
is being translated into action. The use of the words “final
adjudication” of cases in this job announcement is telling, since only ALJ and
Appeals Council decisions may become final decisions of the SSA Commissioner
pursuant to the Social Security Act and APA.
Transfer of SSA Hearings To DDS: Since February, information has surfaced that
report that the Agency may attempt to change the Social Security hearing
process and move the administrative law judge hearing to the reconsideration
level at the DDS. The National Association of Disability Examiners
(“NADE”) has published its detailed proposal for such a change and the fact
that its executive officers met with the SSA Commissioner in February 2002 to
discuss the proposal. NADE also has submitted its proposal in a written
statement that is part of the record of this Subcommittee’s May 2, 2002,
hearing on the Challenges Facing the New Commissioner of Social Security.
The DDS proposal would restrict appeals to the administrative law judge to
questions of law, rather than the de novo review of the claim that is mandated
by the Social Security Act and the APA.
In mid-January, the New York DDS director sent a letter to
the Commissioner that includes suggested reforms of the Social Security
disability system that is like the NADE proposal. The letter contains the
recommendations that the administrative law judge hearing be abandoned and that
the hearing be changed to a "fair hearing" conducted at the state
level by the DDS. At the end of January, the Commissioner attended
a meeting of DDS personnel at which the attendees agreed to continue to
investigate this change.
AALJ has learned that a small committee had been appointed
by the SSA Commissioner to look at alternative hearing methods. There
also is an existing SSA Commissioner's Committee on Disability that is looking
at various aspects of the disability program. AALJ learned that the Committee
soon will send a report to the Commissioner that contains a recommendation to
conduct the de novo Social Security hearing at the Reconsideration level of the
DDS. Under this proposal, administrative law judges would have
jurisdiction only to review cases for errors of law. If error is found,
the case would be remanded to the DDS for hearing. The Commissioner
apparently has not made a policy decision on the transfer of the due process
hearing to a lesser DDS hearing, but this issue clearly is on the table for
consideration.
Any such change would have a profound effect on the rights
of the American people and would deny them a constitutional due process hearing
and decision of their claims as now is protected by the APA. The DDS
proposal also would markedly restrict the claimants’ access to judicial review,
since few cases would reach ALJs and thus be subject to the Appeals Council
review that is a necessary predicate to judicial review.
Transfer of SSA Hearings to Non-ALJ Hearing Officers: AALJ has learned from a reliable, well-placed
source that SSA is planning to budget for hiring of hearing officers at the
GS-14 and GS-15 level. However, AALJ does not have information on the
timing or implementation of the plan. This information is consistent with
a proposed hearing officer job description for a position to handle “small
claims” that the National Executive Board became aware of at the time of its
October 2002 meeting. This news is of considerable concern because it is
a natural "spin off" from the discussions to transfer the hearings to
the DDS. This type assault on the hearings system goes to the very heart
of the purpose and function of administrative law judges.
Any plan to deny Social Security claimants the right to a
full due process hearing under the APA before an administrative law judge will
result in a denial of basic constitutional rights to the American people.
The preservation of APA due process for the claimants, including the hearing
and decision of their claims by ALJs who are appointed pursuant to the APA, is
essential as the new Commissioner devises ways to more efficiently address the
agency’s large and growing caseload.
The APA was adopted by Congress in 1946 to ensure that the
American people were provided hearings that are not prejudiced by undue agency
influence. The securing of fair and competent hearing adjudicators was
viewed as the heart of the Administrative Procedure Act.
The APA was enacted primarily to achieve reasonable
uniformity and fairness of the administrative process in the federal government
for members of the American public with claims pending before Federal
agencies. The APA sets forth a due process administrative procedure for
the hearing and decision by administrative law judges of cases brought before
the Federal agencies to which the APA applies. The APA provides the
minimum standards for federal administrative due process in the Executive
Branch, and delineates procedures for adjudicative administrative proceedings,
namely individual case decisions about rights or liabilities as an agency’s
judicial function. This includes uniform standards for the conduct of
adjudicatory proceedings, including the merit appointment of administrative law
judges. U.S. Justice Dept., Attorney General’s Manual on the Administrative
Procedure Act 9 (1947) (the “Manual”). The APA, Pub. L. No. 79-404,
60 Stat. 237 (1946), as amended, is codified at 5 U.S.C. §§ 551-559,
701-706, 1305, 3105, 3344, 4301(2)(E), 5335(a)(B), 5372, and 7521.
By APA mandate, the administrative law judge is an
independent, impartial adjudicator in the administrative process and there is a
separation of the adjudicative and prosecutorial functions of an agency.
The administrative law judge is the only impartial, independent adjudicator
available to the claimant in the administrative process, and the only person
who stands between the claimant and the whim of agency bias and policy.
If SSA returns to using subordinated employees who would be an instrument and
mouthpiece for the SSA, we will have returned to the days when the agency was
both prosecutor and judge.
There is a close relationship between the APA and the
Social Security Act. In the case of Richardson v. Perales, 420
U.S. 389 (1971), the U.S. Supreme stated that the APA was modeled upon the
Social Security Act.
It is clear that Congress intended the APA to apply to
hearings conducted under the Social Security Act. The Attorney General’s
Manual on the Administrative Procedure Act, which is recognized by the U.S.
Supreme Court to be part of the legislative history of the APA, states that
“the residual definition of “adjudication” in section 2(d) was intended to
include....[t]he determination of...claims under Title II (Old Age and
Survivor’s Insurance) of the Social Security Act....” Manual at 14-15
(emphasis added), citing, Senate Judiciary Committee Hearings on the APA
(1941) at 657, 1298, 1451 and S. Rep. No. 752 at 39; 92 Cong. Rec.
5648. (The other programs did not then exist.)
The U.S. Supreme Court defined the role of a federal Administrative
Law Judge in Butz v. Economou, 438 U.S. 478, 513-514 (1978), as follows:
There can be little doubt that the role of the modern
hearing examiner or administrative law judge within this framework is
“functionally comparable’ to that of a judge. His powers are often, if
not generally, comparable to those of a trial judge. He may issue
subpoenas, rule on proffers of evidence, regulate the course of the hearing,
and make or recommend decisions….More importantly, the process of agency
adjudications is currently structured so as to assure that the hearing examiner
exercises his independent judgment on the evidence before him, free from
pressures by the parties or other officials within the agency. Prior to
the Administrative Procedure Act, there was considerable concern that persons
hearing administrative cases at the trial level could not exercise independent
judgment because they were required to perform prosecutorial and investigative
functions as well as their judicial work…and because they were often
subordinate to executive officials within the agency….Since the securing of
fair and competent hearing personnel was viewed as “the heart of formal
administrative adjudication,”…the Administrative Procedure Act contains a
number of provisions designed to guarantee the independence of hearing
examiners. They may not perform duties inconsistent with their duties as
hearing examiners….When conducting a hearing under the APA, a hearing examiner
is not responsible to or subject to the supervision or direction of employees
or agents engaged in the performance of investigative or prosecution functions
for the agency….Nor may a hearing examiner consult any person or party,
including other agency officials, concerning a fact at issue in the hearing,
unless on notice and opportunity for all parties to participate….Hearing
examiners must be assigned to cases in rotation so far as practicable….They may
be removed only for good cause established and determined by the Civil Service
Commission after a hearing on the record….Their pay is also controlled by the
Civil Service Commission.
The Supreme Court recently reaffirmed its holdings in Butz
that a federal ALJ’s role is similar to that of a trial judge and that
administrative adjudications are similar to judicial proceedings when it held
that state sovereign immunity bars the Federal Maritime Commission from
adjudicating a private party’s complaint against a non-consenting state. Federal
Maritime Commission v. South Carolina State Ports Authority, ___ U.S. ___,
slip op. 1, 10-14 (2002).
The Congress has reviewed the function of the
administrative law judge in the Social Security Administration. In 1983,
a Senate Subcommittee on Oversight of Government Management of the Committee on
Governmental Affairs conducted a hearing that inquired into the role of the
administrative law judge in the Title II Social Security Disability Insurance
Program. S. PRT. 98-111. The Committee issued its findings on
September 16, 1983, which provided in part as follows:
The APA mandates that the ALJ be an independent impartial
adjudicator in the administrative process and in so doing separates the
adjudicative and prosecutorial functions of an agency. The ALJ is the
only impartial, independent adjudicator available to the claimant in the administrative
process, and the only person who stands between the claimant and the whim of
agency bias and policy. If the ALJ is subordinated to the role of a mere
employee, and instrument and mouthpiece for the SSA, then we will have returned
to the days when the agency was both prosecutor and judge.
The decisionmaking independence provided by the APA is not
for the benefit of the judge, but instead is provided for the protection of the
American people. The protections are intended to ensure that the American
people receive a full and fair due process hearing with a decision based on the
evidence in the hearing record. This is a right protected by the
constitution. “The APA creates a comprehensive bulwark to protect
ALJs from agency interference. The independence granted to ALJs is
designed to maintain public confidence in the essential fairness of the process
through which Social Security benefits are allocated by ensuring impartial
decisionmaking.” Nash v. Califano, 613 F.2d 10, 20 (2nd
Cir. 1980). Despite these protections, the Social Security
Administration has a history of attempting to assert undue influence on the
decisionmaking of its administrative law judges. This abuse occurred in
the 1980’s after the agency had implemented the Bellmon Review Program.
The Senate Subcommittee on Oversight of Government Management (referred to
above) issued findings on September 16, 1983, on this improper agency conduct
that provided in part as follows:
The principal findings of the subcommittee is that the SSA
is pressuring its ALJs to reduce the rate at which they allow disabled persons
to participate in or continue to participate in the Social Security Disability
Program.
The Bellmon Review Program also was challenged in the
courts in Association of Administrative Law Judges v. Heckler, 594
F.Supp. 1132 (1984). In that case, a Federal district court judge found
in part as follows:
In sum, the Court concludes, that defendant’s unremitting
focus on allowance rates in the individual ALJ portion of the Bellmon Review
Program created an untenable atmosphere of tension and unfairness which
violated the spirit of the APA, if no specific provision thereof.
Defendants’ insensitivity to that degree of decisional independence the APA
affords to administrative law judges and the injudicious use of phrases such as
“targeting”, goals and “behavior modification” could have tended to corrupt the
ability of administrative law judges to exercise that independence in the vital
cases that they decide.
The efforts of the administrative law judges of the Social
Security Administration to protect the Social Security hearing process
and the rights of Social Security claimants was recognized in an award
presented to the judges of the agency by the President of the American Bar
Association in August 1986. The award acknowledged the efforts of the
Social Security administrative law judges in protecting the integrity of the
hearing system. The award specifically stated:
That the American Bar Association hereby commends the Social
Security Administrative Law Judge Corps for its outstanding efforts during the
period from 1982-1984 to protect the integrity of administrative adjudication
within their agency, to preserve the public confidence in the fairness of
governmental institutions and uphold the rule of law.
On January 9, 2001 Commissioner Kenneth S. Apfel affirmed
the relationship between the Administrative Procedure Act and the Social
Security Act for Social Security hearings. He stated as follows:
The Social Security Administration (SSA) has a long
tradition, since the beginning of the Social Security programs during the
1930s, of providing the full measure of due process for people who apply for or
who receive Social Security benefits. An individual who is dissatisfied
with the determination that SSA has made with respect to his or her claim for
benefits has a right to request a hearing before an Administrative Law Judge,
an independent decisionmaker who makes a de novo decision with respect
to the individual’s claim for benefits. As the Supreme Court has
recognized, SSA’s procedures for handling claims in which a hearing has been
requested served as a model for the Administrative Procedure Act (APA).
Congress passed the APA in 1946 in part to establish uniform standards for
certain adjudicatory proceedings in Federal agencies, in order to ensure that
individuals receive a fair hearing on their claims before an independent
decisionmaker. SSA always has supported the APA and is proud that the SSA
hearing process has become the model under which all Federal agencies that hold
hearings subject to the APA operate. SSA’s hearing process provides the
protections set forth in the APA, and SSA’s Administrative Law Judges are
appointed in compliance with the provisions of the APA.
In a recent study prepared for the Social Security Advisory
Board by Professors Paul Verkuil and Jeffrey Lubbers, entitled Alternative
Approaches to Judicial Review of Social Security Disability Cases, the
authors recommended the establishment of an Article I court for Social Security
cases. The report favorably refers to the over 1000 administrative law
judges in the Social Security Administration as an objective source of
decisionmaking that can be effectively integrated into an article I court review
structure. This recommendation seeks to improve and strengthen the Social
Security disability process, not to diminish the system as would result from
abandoning the administrative law judge hearing. In fact, articles
recently have been published that recommend that the Veterans disability
appeals system be improved by modeling it after the Social Security
administrative law judge hearing process. James T. O’Reilly, Burying
Caesar: Replacement of the Veterans Appeals Process Is Needed to Provide
Fairness to Claimants, 53 Admin. L. R. 223 (2001); William F. Fox, Jr., A
Proposal to Reform the VA Claims Adjudication Bureaucracy: One Law Professor’s
View, FBA Veterans Law Sec., Tommy: A Lawyer’s Guide to Veterans Affairs, 1
(Issue 3, 2001).
Any retreat from this long and proud tradition of the
Social Security Administration with regard to the manner in which it conducts
hearings will have a substantial adverse effect on Social Security claimants
and will deny them basic constitutional rights. American citizens will
have less rights than they had prior to the enactment of the APA.
We urge Congress to protect the constitutional rights of
the American people and to continue to provide the Social Security claimants
the full range of due process rights for a Social Security hearing under both
the APA and the Social Security Act.
C. Challenges
at the Appeals Council Level: Several specific challenges that now confront
the new Commissioner are as follows:
1. Long
Case Processing Time: The long case processing time at the Appeals
Council often is measured in years, rather than months.
2. Poor
Decision Quality: The chronically poor quality of the Appeals Council
decisions has declined further in recent years. The decisions rarely have
legal citations of authority or rationales for the positions taken, and often
are factually inaccurate regarding what the record shows. The informality
of the decisions does not give the impression of the careful deliberation to
which the claimants are entitled.
3. Excessive
Number of Lost Hearing Record Tapes and Files: The chronic loss of
hearing record tapes and files by the Appeals Council requires a lengthy
rehearing process for the claimants. Anecdotal evidence suggests that
thousands of hearing tapes and files have been lost. SSA recently
reported that there are about 5,000 remands per year for lost or inaudible
hearing tapes, most of which are for lost tapes. The loss of tapes and
files reportedly is caused by three problems: (a) the repeated crashing of the
Appeals Council’s antiquated computer case tracking system and loss of case
names from the database that are not recoverable, (b) a large backlog of cases
that have not been entered into the case tracking system but instead are stored
on shelves without being alphabetized, numbered or coded, and (c) separating
hearing tapes from the hearing file to save storage space and prevent jamming
paper shredder machines when the files ultimately are destroyed.
4. Achieving
Acceptance of the Failure of the Appeals Council Level ACPI Reorganization of
OHA: Acceptance by SSA administrators of the failure of the ACPI that
was implemented in 2000 to correct these three chronic challenges of the
Appeals Council operation also is a challenge that the new Commissioner
confronts. Without acceptance of the failure of ACPI, new strategies will
not be considered seriously and implemented by SSA administrators.
III. PROPOSED ACTIONS
TO MEET THE CHALLENGES FOR THE SOCIAL SECURITY DISABILITY PROGRAMS
A. Overview of
Needed Reforms for the SSA Hearing Process
1. Reorganize
the Hearing Office Process: Because of the failure of HPI, SSA should
reorganize the hearing office process. The reorganization should correct
the defects in HPI. We propose that the recommendations of the
Commissioner’s HPI Steering Committee be used as a guide for the
reorganization. The reorganization should consist of both short term and
long term changes. The short term changes should be structured in a manner
that permits easy transition to the long term reforms. The objective
should be to immediately return to the efficiency and level of case production
that existed in the hearing offices immediately before the introduction of HPI
(over 500,000 cases a year). The long term reform should then build on
that base. There is no single change that will accomplish this
objective. It instead must be accomplished by a series of coordinated
changes in several different areas. The changes will allow the agency to
improve the service provided to the American public.
We recommend that the short term changes should include the
following elements:
(a) The process
must be simple, and administrative law judges should be assigned to cases from
master docket according to law.
(b) Each
administrative law judge should have adequate and properly trained support
staff. The support staff should include a clerical worker, paralegal and
attorney/writer.
(c) The support
staff should be assigned to perform the work product of a particular
administrative law judge according to the instructions and guidance of the
judge.
(d) The administrative
law judge should have control of all case development.
(e) The
administrative law judge should have the responsibility to determine when a
case decision is legally sufficient and the judge should have the authority to
return the decision for rewrite to achieve the same.
(f) Case files of
each administrative law judge should be maintained separately.
(g) The assigned
support staff of each administrative law judge should be under the supervision
of the hearing office management staff for personnel actions.
(h) Staff members
should be accountable for their work product. Case work should be
assigned on an individual basis to support staff to provide for accountability
and enhance the employees’ sense of ownership.
We recommend that the long term changes should include the
following elements:
(a) Close the
hearing record after the administrative law judge hearing as of the date of the
ALJ’s decision.
(b) Assignment of
Social Security Administration representatives to represent the agency at
administrative hearings. Such representatives would be responsible to
defend the position of the agency at the hearing, recommend favorable cases,
exercise settlement authority, and assist unrepresented claimants. When
most claimants were unrepresented, having a non-adversarial process made sense
to keep the benefits process simple and not intimidating. However, now,
approximately 82% of the claimants who have an ALJ hearing are represented,
according to recent statistics assembled by the SSA OHA Office of the Chief
ALJ.
(c) Create a case
manager and law clerk position for the support staff of each administrative law
judge (as recommended by the Commissioner’s HPI Steering Committee).
(d) Allow
administrative law judges to issue bench decisions and short form decisions.
(e) Adopt
regulations for issue exhaustion as suggested by the United States Supreme
Court in the case of Sims v. Apfel, 530 U.S. 103 (2000), if SSA
representatives are available to assist the unrepresented claimants.
(f) Reform the
Appeals Council to issue decisions in some cases, limit the scope of appeal for
claimants who have received the requested relief from the administrative law
judge, and support the administrative law judge in “no-show” dismissals.
(g) Implement a
sustainable agency policy on the issue of pain and the treating physician rule
and defend the same if challenged.
(h) Require the
DDS to follow the same legal standard as the ALJs when determining disability,
which is based upon the Social Security Act, the SSA regulations and rulings,
and the federal case law that interpret them.
(i) Improve
the use of technology in the hearing process (i.e. an improved case processing
and management system, and electronic file, voice to print software, improved
equipment for recording hearings, etc., most of which already is in the
planning and pilot stages).
(j) Adopt
rules of procedure for the hearing process.
(k) Reorganize
the Office of Hearings and Appeals.
B. Strategies
to Reduce the Number of Cases Heard at the ALJ Hearing Level that May Be
Effected in the Short Term by Regulation Changes and Preserve Due Process
1.
Require DDS Decisionmakers to Follow the Same Legal Standard as the ALJs,
not a Medical Standard: SSA should issue regulations that require DDS
decisionmakers to adjudicate cases pursuant to the Social Security Act, the SSA
regulations and rulings, and the federal case law that interpret them.
This can be implemented on a short term basis and immediately would serve to
reduce the number of cases appealed to the ALJs.
2. Have
the DDS Do One Thorough Case Development and Determination to Increase the
Accuracy and Quality of the DDS Determinations: If the DDS were
enabled to do one thorough development of the medical record and carefully
considered determination, rather than two incomplete reviews of incomplete
files, the accuracy and quality of the determinations would rise and result in
fewer appeals to the ALJ level. Either eliminate the reconsideration
level to save processing time at the DDS level or make it into a meaningful
decision level in which evidence is further developed and a meaningful second
look is taken at the claimants’ files that has a realistic chance of a more
accurate outcome for the claimants than at the initial level.
3. Close
Record as of the Administrative Law Judge decision date: The
amendment of SSA’s regulations to close the record after the ALJ hearing and as
of the date of the ALJ decision would reduce the number of cases that ALJs must
hear upon remand from the Appeals Council and courts based upon new
evidence. New evidence is one of the most common reasons for remand of
cases. This adds to the ALJ caseload and greatly delays a final
administrative decision for the claimants. This change will place the
responsibility upon the claimants’ representatives for producing all relevant
and material evidence at the hearing.
By SSA regulation, the hearing record in the Social
Security disability system is not closed at any stage in the appeals
process. This system precludes administrative finality and allows the
claimant to introduce new evidence at each step of the process, including the
Appeals Council level. 20 C.F.R. §§ 404.900(b), 404.976(b). This is
true even when the evidence was in existence and available during the prior
stage of the appeal. The reason the SSA keeps the record open at the
administrative levels is that the Social Security Act authorizes the courts to
remand a case to SSA when a claimant shows that there is material new evidence
and there is good cause for not including it in the record earlier. 42
U.S.C. § 405(g).
In a recent report, the Social Security Advisory Board
(“SSAB”) stated that “Congress and SSA should review again the issue of whether
the record should be fully closed after the ALJ decision.” Charting
the Future of Social Security’s Disability Programs: The Need for Fundamental
Change, January 2001, p. 20. This change will bring administrative
finality to the Social Security disability case and will encourage all known
relevant and material evidence to be produced at the hearing.
New documentary medical evidence of disability based upon
treatment that occurred before the date on which the ALJ hearing closed should
be admitted into evidence by the Appeals Council only upon a showing that the
new evidence is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding. This
standard is in keeping with the standard that the Social Security Act allows
for the courts. Unrepresented claimants should be excepted from the
requirement to show good cause.
4. The
SSA Should Have a Representative at the ALJ Hearings: After
conducting a pilot program to work out the details in practice, the SSA should
amend its regulations to provide for a government representative at the ALJ
hearing. This change would permit SSA to complete the documentary record
faster, enter into settlements without the need for a hearing in some cases,
and present the government’s position on each case. SSA representation will
allow the SSA to present its evidence, present the type of expert witnesses it
deems necessary, and advance its legal theories in the case. The
government representative also should provide assistance and advice to
claimants in unrepresented cases.
In order to meet the requirements of due process, the APA
provides that “[a] party is entitled to appear in person or by or with counsel
or other duly qualified representative in an agency proceeding.” 5 U.S.C.
§ 555(b). Therefore, the SSA, as a party, has the right to appear on its
own behalf at the proceedings before the OHA. However, the Social
Security Administration is not represented at the disability hearing before an
administrative law judge. SSA regulations long have stated that it “conducts
the administrative review process in an informal, nonadversary manner,” 20
C.F.R. § 404.900(b), so SSA thus has waived its right to appear at the ALJ
hearings. The present system worked well when most claimants in Social
Security cases were not represented at the hearing. However, there has
been a dramatic rise in the number of claimants who are represented at the
hearing. Presently, well over 80% of the claimants are represented at the
hearing. The Social Security Advisory Board has noted that “[t]he percentage
. . . of claimants represented by attorneys at ALJ hearings has nearly doubled
[between] 1997 [and 2000].” SSAB, Disability Decision Making:
Data and Materials, Chart 56 – Attorney and Non-attorney Representatives at
ALJ Hearings Fiscal Years 1997-2000, p. 73 (January 2001).
In its recent report, the SSAB recommended that the SSA
have representation at the Social Security disability hearing: “We think
that having an individual present at the hearing to defend the agency’s
position would help to clarify the issues and introduce greater consistency and
accountability into the adjudicative system.” Charting the Future of
Social Security’s Disability Programs: The need for Fundamental Change, January
2001, p. 19.
The SSA had a pilot program for its representation at the
hearing in 1982. This pilot program was discontinued after an unfavorable
court decision on the project. Salling v. Bowen, 641 F.
Supp. 1046 (W.D.Va. 1986). The past pilot program on the government
representative project was not an adequate test of this system. The SSA
should implement a new test program for agency representation at the
hearing. This pilot project should be implemented in coordination with
the claimants’ bar, SSA employee organizations, our Association, and other
interested groups. The pilot program should address the issues raised by
the court in Salling. The objective is to establish a hearing
process that provides a full and fair hearing for all parties who have an
interest in the case.
In addition, in the current non-adversarial setting, the
SSA ALJ has the legal responsibility to “wear three hats” in each case.
The ALJ legally is bound to ensure that all of the claimant’s relevant and
material evidence is made part of the record and the claimant’s interests are
protected, to protect the interests of the government in the hearing, and to
make a fair decision which is based on the evidence in the record.
Additionally, the judge must take care to not become overly protective of the
interests of the government for fear that the case will be reversed on appeal
on a claim of bias against the claimant. The inherent conflict in all of
these roles is patent and would be resolved by having the government
represented at the hearing.
5. If
the SSA Provides for a Government Representative at the Hearing, Require Issue
Exhaustion at the Appeals Council Level for Represented Claimants:
As the Supreme Court stated in Sims v. Apfel, 530 U.S.
103, 120 S.Ct. 2080, 147 L. Ed. 2d 80 (2000), there is no statute or regulation
that requires that a claimant must list the specific issues to be considered on
appeal on the request for review by the Appeals Council of an ALJ’s decision,
in order to preserve those issues for judicial review. Although agencies
often issue “regulations to require issue exhaustion in administrative
appeals,” which are enforced by the courts by not considering unexhausted
issues, “…SSA regulations do not require issue exhaustion.” Id.
at 2084. The Supreme Court refused to impose a judicially inferred
issue exhaustion requirement in order to preserve judicial review of the issues
upon a claimant for Title II and Title XVI Social Security Act benefits because
the issues in SSA hearings are not developed in an adversarial administrative
proceeding and the “[Appeals] Council, not the claimant, has primary
responsibility for identifying and developing the issues.” Id.
at 2086. However, the Court, deferring to the agency, noted that
“…we think it likely that the Commissioner could adopt a regulation that did
require issue exhaustion.” Id at 2084. The Supreme Court thus
explicitly invited SSA to draft new regulations.
Unrepresented claimants should be excepted from the
requirement to show good cause. Expecting unrepresented claimants to bear
the burden of preserving specific legal issues for judicial review does not
comport with a sense of fair play and keeping the claims process
claimant-friendly.
Issue exhaustion would bring finality to the administrative
process and it is consistent with the general principles of administrative law
and the procedure of other agencies in the Federal government.
C. Strategies
to Reduce Case Processing Time and Increase Quality of Service at OHA While
Preserving Due Process
1. Administratively
Reform the HPI Process: SSA should change the HPI process by
assigning cases to ALJs at an earlier point in the process, such as when the
cases are entered into the computerized master docket. This would return
the control of pre-hearing case development to the ALJs, leave the ALJ in
control of the hearing, and support the ALJ’s responsibility for determining
when a draft decision is legally sufficient. SSA also should return
individual accountability for work product to the employees by assigning staff
employees to work with each ALJ, which should consist of a clerical person,
paralegal, and staff attorney. This will enhance morale through a sense
of ownership by employees working on particular cases for an individual judge.
These changes are needed to permit the ALJs to provide full and fair hearings
for the American public in an efficient and timely manner. SSA may effect
these changes administratively on a short term basis.
2. Redefine
Paralegal Specialist Job To Include Clerical Duties: SSA OHA may
redefine the GS-0950 Paralegal Specialist ALJ decision writer job across a
broad band of General Schedule levels to permit the assignment of appropriate
clerical duties to the people promoted to this position who have not performed
the ALJ decision writing function well. The clerical work could include
the case pulling and other clerical work that has been accumulating. This
permits the necessary clerical work of the agency to get done while permitting
the promoted staff to stay at their new grade levels and experience
satisfaction from a job well done.
3. Enhance
the Appeals Council Case Tracking System by Including it in the First Phase of
the Accelerated e-DIB Project: SSA should install a modern computerized
case tracking system with bar coding for the Appeals Council as expeditiously
as possible to prevent loss of files and tapes by the Appeals Council.
SSA is in the process of developing a new Case Processing and Management System
(“CPMS”) for OHA that is part of the Accelerated e-DIB project, the first phase
of which will be implemented in January 2004. Although both the ALJ-level
offices and the Appeals Council are expected to have the capacity to read an
electronic file by January 2004, senior SSA management reportedly is including
only the ALJ-level offices in the implementation of the CPMS by January
2004. Implementation of the CPMS for the Appeals Council reportedly is
being deferred to a later phase of the Accelerated e-DIB project, despite the
chaos in its case tracking system. If 140 OHA offices can be brought into
the CPMS by January 2004, the Appeals Council, with its one location, also can
be included in the first phase of implementation.
4.
Reorganize the Office of Hearings and Appeals
(a) Proposed
Legislation to Reform the Office of the Chief ALJ and Create an Office of
Administrative Law Judges within SSA:
Current Status:
The adjudication of administrative claims by the SSA
currently is done by administrative law judges who are part of the
OHA. The function for both administrative law judge hearings and
the appellate process for the review of administrative law judge decisions by
the Appeals Council are located in the OHA. The OHA is under the dual
leadership of a Chief Administrative Law Judge and an Associate
Commissioner. The position description of the Chief Administrative Law
Judge places the Chief Judge in charge of the hearings function and hearings
field operation of the agency. The Associate Commissioner is placed in
charge of the Appeals Council and major policy-making and policy-implementation
responsibilities of the OHAs. The Chief Judge reports to the Associate
Commissioner, who in turn reports to the Deputy Commissioner for Disability and
Income Security Programs (“ODISP”), who in turn reports to the Commissioner.
Problems with Current System:
In the current organization of SSA, the Office of Hearings
and Appeals is buried in the bureaucracy and is far removed from the
Commissioner. This structure prevents the Commissioner from having
effective oversight of the agency hearing process. The administrative law
judge adjudication function should not be treated as a staff responsibility in
the agency. The administrative law judge adjudication function is a major
program of the agency with every individual in this nation being a potential
claimant within the system. The SSA Administrative Law Judge hearing
system protects a constitutional right of our citizens and provides a
constitutionally protected due process hearing to the American public.
This vital process should have direct oversight from the Commissioner and the
Chief Judge should have direct interaction with the Commissioner.
Another major defect in OHA is created by the dual
leadership responsibilities of the Chief Judge and the Associate
Commissioner. Frequently these two leaders are competing for power to
control the administrative and/or policy decisions for this component of SSA
that has deprived OHA of strong effective leadership. The lack of
effective leadership and direction of the Office of Hearings and Appeals has
resulted in an organization that has been deteriorating. During the past
10 plus years several reforms have been imposed on the SSA hearing
process. Each attempt has resulted in failure. Subsequent to a
recent change in the hearing office process that was implemented in January
2000 (HPI), the number of case depositions have dropped while the case
processing time and the case backlog have increased. The result has been
poorer service for the American public. Within the past several years,
the Associate Commissioner attempted to reorganize the responsibilities of the
Chief Judge and divest the Chief Judge of most of the powers of that office
leaving the Chief Judge with some minor duties relating to judicial education
and staff support for the Associate Commissioner. This scheme was
thwarted by the efforts of interested individuals and organizations together
with the oversight action of the Congress.
The problem has now returned with the present Associate
Commissioner of the Office of Hearings and Appeals. He has striped most
of the power from the Office of the Chief Judge. He treats the Chief
Judge as a staff person instead of a vital policy maker who is in charge of the
field operations for the hearings function of the agency as provided for in the
Chief Judge’s position description. This action of the Associate
Commissioner has led to a crisis within the Office of Hearings and Appeals with
the last Acting Chief Judge leaving the position last March after having served
for only a few weeks in office. The Chief Judge position was vacant until
June 3, when a new Acting Chief Judge was appointed. This position has
not been filled permanently since the last Chief Judge left over a year ago.
Proposed Reform:
This system requires basic reform that places an
established Chief Judge in charge of the agency hearing process with reporting
responsibility directly to the Commissioner. We propose legislation
that separates the agency hearings function from the Appeals Council and places
the hearing component in an Office of Administrative Law Judges under the
control of a Chief Judge who reports directly to the Commissioner. Our
bill to effect this reform imminently will be introduced in the House.
The following improvements in service to the American
public will result from the proposed legislation:
a. The Commissioner
will have direct oversight of the hearing component of the agency that is
necessary to effectively administer this important program which provides
constitutional due process hearings for the American public.
b. Improved leadership and
efficiency in the hearings component will permit the SSA to provide better
service for the American public by increasing case dispositions, reducing
processing times and reducing case backlogs.
c. The change will
improve the SSA hearing process and will continue to ensure that the American
public receives a fair constitutional due process hearing.
d. The proposed legislation
creates an Office of Administrative Law Judges (“Office”) in the SSA. The
national ALJ hearings function and hearings field operation that presently is
within the OHA would be transferred to the Office by the proposed legislation.
e. The Chief Judge
would be in charge of the Office, would report directly to the Commissioner, be
appointed by the Commissioner for a term of six years that is renewable once,
and be subject to removal only upon a showing of an enumerated cause.
f. The
administrative law judge hearing component of SSA is regarded as an
organization that is responsible for administering a major agency program which
reports directly to the Commissioner. It will be no longer
organized as a staff function within the agency.
g. The Office of
Administrative Law Judges will have one individual, the Chief Judge,
responsible for administrative operations and policy making. This will
result in effective leadership of the administrative law judge function.
h. The Associate
Commissioner of OHA will continue to head the Appeals Council.
i. The change is a reorganization within
the agency and will not result in any additional costs to the agency.
This change is endorsed by the SSAB. The SSAB
recently prepared a report on the Social Security disability system that states
that “[m]any believe that the Office of Hearings and Appeals is buried too low
in the agency and should be elevated so that the head of the office would
report directly to the agency leadership. Others believe that there
should be independent status for an administrative law judge
organization.” Charting the Future of Social Security’s Disability
Programs: The need for Fundamental Change, January 2001, p. 19.
(b) In the
Alternative, Reorganize OHA to Have the Chief ALJ Report Directly to the
Commissioner and Replace the Appeals Council with a Right of Appeal to
Appellate Panels Staffed by ALJs that Would Be Administered by the Chief
ALJ: This proposal is identical to AALJ’s proposal for an independent
adjudication agency that would provide a hearing before an ALJ with a right of
appeal from the individual ALJ’s decision to an appellate panel staffed by
ALJs, which is explained in suggestion 6(b) below, except that the Chief ALJ
would report to the Commissioner rather than be the head of an independent
agency. Such a reorganization may be effected by the SSA without
legislation.
(c) As an
Alternative to Reorganizing OHA, Create A New Independent Agency within SSA to
Issue the Final Administrative Decisions of Social Security Act Claims,
Including Medicare Claims: A consensus has formed that the SSA’s
administration of OHA and its efforts to bring DDS decisionmaking into accord
with ALJ decisionmaking have failed and that fundamental change is
needed. Management initiatives such as process redesign, process
unification, prototype, and, most recently, the Hearing Process Improvement
Plan (“HPI”) and Appeals Council Process Improvement Plan (“ACPI”), have not
achieved their goals. The Appeals Council, which originally was intended
as a policy making body, is universally recognized as a failure in its function
as the final step in the administrative review of Social Security
claims.
OHA performs an adjudicatory function in an executive
agency that was created by Congress, and handles the largest appellate
administrative caseload of any agency in the world. SSA’s many misguided
efforts to implement policy through OHA’s adjudication function, some of which
are described in this statement and AALJ’s Statement that is published in the
Report for the June 28, 2001, First Hearing in the Series on Social Security
Disability Programs’ Challenges and Opportunities, House Subcommittee on Social
Security, No. 107-35, 107th Cong., 1st Sess., pp. 80-93,
reveal the nature of the change in the Social Security claims process the
American public needs: Separation of OHA’s appellate administrative
adjudication function into an entity that is independent of the political
policy making and implementation portions of SSA. An independent
adjudication agency would provide members of the American public who file
claims for Social Security Act entitlement program benefits that have been
denied by the SSA timely adjudications that give due process, including a
timely and fair hearing free of policy implementation and political pressure.
The rationales that have justified Congressional separation
of the appellate administrative adjudication function from Executive Branch
agencies include an efficient and low cost process for the claimants, high case
volumes, expertise, and decisional independence of adjudicators.
The maintenance of a reasonably efficient, orderly and low cost adjudication
system in the traditional domain of public rights is in the public’s interest,
especially for programs that distribute benefits on a large scale.
Specialized tribunals are more likely to make correct decisions in subject
areas that are legally complex or have technical facts. The large
increase in the administrative case volume also supports the use of specialized
adjudication agencies. The most important rationale is the experience that
effective protection of individual rights before agencies through independent
decisionmaking cannot take place unless adjudications are separated from the
agency’s rulemaking/policy, prosecutorial/enforcement and investigatory
functions.
These rationales, particularly the need to separate the
adjudicatory function from other conflicting agency functions, led Congress to
create the Occupational Safety and Health Review Commission (“OSHRC”) in 1970,
29 U.S.C. § 661, and the Federal Mine Safety and Health Review Commission
(“FMSHRC”) in 1977, 30 U.S.C. § 823, as independent Executive Branch agencies
outside the Department of Labor with only adjudicative authority. The
OSHRC determines whether regulations promulgated and enforced by the
Occupational Safety and Health Administration have been violated. The
FMSHRC adjudicates violations of standards promulgated and enforced by the Mine
Safety and Health Administration.
Therefore, when an agency, such as SSA, exclusively uses
rulemaking proceedings to set policy, rather than also using adjudications to
set policy, there no longer is any rationale for keeping the adjudicatory
function within the agency. The Congressional interest in providing a
check on SSA’s enforcement powers, i.e., to withhold disability and
other program benefits, is best served by having entitlement determinations
decided by an independent adjudicatory agency based on the benefits entitlement
standards set by SSA. Hence our proposal that the independent agency be
an adjudicatory body that is self-administered by the ALJs with a right of
appeal from an individual ALJ’s decision to an appellate panel staffed by ALJs.
There are additional reasons why an independent
adjudication agency administered by ALJs would provide a more efficient and
higher quality of due process for Social Security benefits claimants than the
current SSA Appeals Council or an independent but politically appointed
Commission or Board structure. First, a small body, such as the current
Appeals Council, or a Commission or Board, cannot be of sufficient size to do
meaningful administrative review of appeals from the ALJ decisions, which now
number near 100,000 per year. The SSA ALJs are a large group of highly
qualified judicial professionals who are capable of administering themselves
and the appellate administrative process in a competent and effective
manner. Second, creating an independent agency would eliminate political
oversight by appointees (ie., Commissioners or Board members) who do not
have due process and adjudicative independence as their foremost goal in agency
administration. Finally, if the SSA ALJs administer themselves, they will
draft and issue the procedural regulations and rules of the new agency based
upon their experience and needs of the process, rather than expediency and
other policy concerns as they are now. There now is no coherent set of
procedural regulations and rules for the SSA appellate administrative process.
For all of these reasons, the Social Security Act hearing
process should be reformed by the transfer of the authority to make final
administrative adjudications of Social Security Act claims, which currently are
made at the ALJ and SSA Appeals Council levels, from the Social Security
Administration to a new ALJ-administered independent adjudication agency within
SSA. This agency may be called the United States Office of Hearings and
Appeals (“USOHA”).
The USOHA would have the exclusive jurisdiction to make the
final administrative decisions of Social Security Act Title II and XVI
claims. The USOHA would have permissive jurisdiction over other classes
of cases, including Medicare cases under Social Security Act Title XVIII.
[On December 4, 2001, the House passed the Medicare Regulatory and Contracting
Reform Act of 2001, H.R. 3391, section 401 of which authorizes the transfer of
the ALJ function from SSA to the Department of Health and Human Services by
October 1, 2003, to hear and decide Medicare cases pursuant to Title XVIII of
the Social Security Act. AALJ’s proposal advocates placing all of the
ALJs hearing Social Security Act cases into one independent agency, including
Medicare cases.]
AALJ recommends the creation of a new ALJ-administered
independent adjudication agency for Social Security Act claims that would
provide a hearing before an ALJ with a right of appeal from the individual
ALJ’s decision to an appellate panel staffed by ALJs. The panels would
consist of three ALJs who would review the cases locally. This Social
Security Appellate Panel Service within the USOHA would replace the Appeals
Council, a failed appellate review step that already exists and is funded.
The ALJ appellate panels would be akin to the Bankruptcy
Court appellate panels and is one of the key features that makes the ALJ
self-administration model superior to the current SSA Appeals Council model,
which is a small body that cannot timely and effectively handle a heavy
caseload. Based upon the Bankruptcy Court experience, the
appellate panel model (1) is an appellate system that can handle a large
caseload, (2) results in a shorter disposition time because the large pool of
about 1,000 ALJs throughout the United States permits the timely determination
of appeals that cannot take place with a small body such as the Appeals Council
or a Commission or Board, (3) results in higher quality decisions because of
expertise, (4) results in substantially fewer appeals to the courts and a substantially
lower reversal rate by the courts because of the confidence in the high quality
of the decisions, which reflects a higher degree of decision accuracy, (5)
results in a substantially reduced federal court caseload, and (6) affords the
claimants access to a local administrative appellate process.
This proposal would provide the claimants with timely, high
quality, impartial and fair decisions of their claims pursuant to the Social
Security Act and APA by adjudicators who are in an agency independent of, but
within, the SSA.
The USOHA would be located within the SSA for logistical
reasons, but its officers and employees will not be supervised by any other
part of SSA. The USOHA will be accountable only to Congress and the
President. Placing the USOHA within SSA results in no new costs for
office space and information systems and is a practical necessity, given the
USOHA’s substantial space needs that currently are in place at SSA, the need to
share the SSA’s information services and data bases, and the need to use the
same case files.
A Chief ALJ appointed by the President for a term of
years would administer the agency.
The final decisions of the USOHA that are made by its
appellate panels would be appealed only to the federal courts, with the District
Courts as the first step in the judicial review. A District Court
appeal step is essential for several reasons: (1) The huge size of the Social
Security appellate caseload would overwhelm the Circuit Courts if the District
Court step is removed. An Article I court as a substitute for the
District Courts would suffer from the same problems of being too small to
effectively handle the case load that the Appeals Council does. (2)
Retaining District Court judicial review keeps local decisional generalists in
the appeals chain who are sensitive to due process concerns, including
adherence to the Administrative Procedure Act. (3) Social Security
claimants have come to rely on the availability of the District Courts as a
part of the judicial review due process. (4) Congress has a demonstrated
preference for local control and decisionmaking with Social Security
programs. (5) It is desirable to retain local access to the judicial
review process for the often indigent Social Security claimants.
The appeals from the District Courts will remain with the
regional Circuit Courts of Appeal, as they do now, rather than go only to the
D.C. Circuit or the Federal Circuit. Even with District Court review,
placing all of the Social Security Circuit-level appeals in either of these
courts would increase their workload by over 50%. The SSAB’s recent
suggestion of a specialized Social Security Court of Appeals superficially may
sound attractive as a device to have one national interpretation of the Social
Security Act. However, the SSAB does not demonstrate a strong need for
such a specialized court. First, as SSAB points out, the Supreme Court
already serves the function of providing a national interpretation of the
Social Security Act, and having the regional circuits address the issues allows
for legal debate that would otherwise not occur. Second, continuing to
have the appeals go to the regional Circuits allows somewhat local access to
the claimants. This is the same procedure as for appeals from both
Bankruptcy Court decisions after District Court review and Tax Court decisions,
which are appealed to the regional Circuits, which makes sense since they also
serve individual claimants throughout the country who often have limited
means. (Although the Tax Court is based in Washington, D.C., it sits
throughout the country.) Regional circuit review has worked for tax and
bankruptcy cases, despite the obviously strong argument that a single standard
for construing the tax and bankruptcy laws is desirable so that they are
applied the same to everyone. Finally, the regional circuits are not
being overrun with Social Security cases. During the years that ended on
September 30, 1999, and September 30, 2000, only 891 and 845 Social Security
cases respectively were filed with the regional Circuit Courts of
Appeals. Judicial Business, 1999 and 2000 Reports, Table
B-1A. This is less than two percent of the 54,693 cases that were filed
in 1999 and 54,697 cases filed in 2000 in the regional Circuit Courts. Judicial
Business, 1999and 2000 Reports, Table B.
Thus, no substantive changes in the process of judicial
review after the final administrative decision are recommended by AALJ, other
than to amend the Social Security Act to reflect that judicial review will be
from the final decisions of the new agency, not the SSA. Our
recommendations pertain only to the appellate administrative adjudication
process that results in a final administrative decision of the claimants’
entitlement to Social Security benefits, since that is where the problems lie.
This proposal requires legislation that would amend the
Social Security Act.
A detailed version of the features of the proposed new
agency and the rationales for such a new agency is presented in the AALJ’s
Statement that is published in the Report for the June 28, 2001, First Hearing
in the Series on Social Security Disability Programs’ Challenges and
Opportunities, House Subcommittee on Social Security, No. 107-35, 107th
Cong., 1st Sess., pp. 80-93. A very detailed version of the features
of the proposed new agency and the rationales for such a new agency, including
legislative language, is presented in the AALJ’s “Report and Recommendations
for the Transfer of the Authority to Make Final Administrative Adjudications of
the Social Security Act Claims from the Social Security Administration to a New
Independent Regulatory Agency,” which is available upon request or on the AALJ
website, www.aalj.org.
The AALJ proposal for a new adjudication agency is a
detailed and practical blueprint to improve the Social Security disability
process. The AALJ proposal would improve the timeliness and quality of
ALJ and final administrative review decisions that, at the same time, likely
will reduce the claimant’s need to resort to federal court review and thus
reduce the federal court Social Security caseload. The process AALJ is
proposing is realistic in terms of handling the large caseload, which I
respectfully submit is not the case for the other proposals in this area.
All of the agencies and academicians who comment on the disability process
correctly recognize the need for change, but rely on the creation of small
bodies, such as a Review Board or Social Security Court, that would suffer from
the same problems of low decision quality and untimely action as the SSA
Appeals Council, another small body, has had for years.
d) As an
Alternative to Reorganizing OHA, Create A New Independent Agency outside SSA to
Issue the Final Administrative Decisions of Social Security Act Claims,
Including Medicare Claims: Another alternative is to create a
separate adjudication agency to hear Social Security Act claims, including
Medicare claims. This agency would have the same organization structure
as is described in section 4(c) immediately above, but it would be a separate
agency outside the SSA.
e) As an
Alternative to Reorganizing OHA at the ALJ Level, Create a Unified Corps of
ALJs outside SSA: A more comprehensive reform of the ALJ hearing
process may be achieved through the House Judiciary Committee by creating a
unified corps of ALJs outside SSA and other agencies that includes SSA ALJs and
ALJs from other agencies in any one of the following three configurations:
1. a unified corps of all ALJs from the agencies that hear
benefits cases, including SSA,
2. a unified corps of all ALJs from SSA and the
Cabinet-level Executive Branch agencies, and
3. a unified corps of all ALJs in the Executive Branch,
including all of the independent agencies.
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