advocated additional judges, we have urged the appointment of additional judges, but we do insist that the appointments be in accordance with the Administrative Procedure Act. We believe this is the heart of APA, as Congress itself stated when it passed the act. Many hearing officers are able men, and we have urged them to apply for regular appointment under section 3105 of the Administrative Procedure Act. That they seek promotion to the status and salary of a fully qualified ALJ, without undergoing the rigors or requirements of the regular appointment process as established by the Civil Service Commission, is understandable. But at the same time their interests must not subordinate the interests of the claimant by compromising the appointment process. Those who advocate the temporary appointment process refer to a similar authority in 1959 as a precedent for such action, but it should be recalled that your committee at that time, in its wisdom, warned in clear and unmistakable language that the administration should not seek such temporary authority again. Additionally, I have been advised that many of the SSI hearing examiners have more than adequate caseloads to keep them busy in the foreseeable future, and apparently a need for even more hearing examiners is indicated by the fact that only last month a new class of hearing examiners was completed.

I will not bother you with figures, but we must remember that we have some 17,000 pure and simple SSI cases now to be heard, some more coming in every day, and we have only 124 SSI hearing examiners on the Board. Assuming such to be true, then these hearing officers should continue in their assigned capacity with title XVI cases, and those who do not have sufficient workloads could be utilized very effectively in assisting regular ALJ's in the development of cases and the preparation of decisions. Such utilization of black lung judges has been made before and the Director of the ALJ Division of the Civil Service Commission advises that it would be qualifying experience for subsequent appointment as a regular ALJ. Furthermore, until they qualify as APA, ALJ's all hearing examiners and black lung judges should be classified as GS-14. You can give me all the safeguards, but if you do not give me an independent hearing officer, you have robbed me of the heart of the Administrative Procedure Act. I believe all who have testified and will testify concerning this problem will agree that adequate time for the conducting of hearings is not the primary reason for the present backlog of cases. The real problem is due, first, to inadequate prehearing development which delavs the scheduling of the hearing and, second, to the time required to write the decision, two areas in which the SSI hearing examiners could be of immeasurable assistance in view of their experience.

As I conclude, may I add that we ALJ's are redoubling our efforts within the parameters of the APA to expedite cases without compromising the fairness of the hearing and the integrity of the decision. Also, while more remains to be done, let we congratulate the present Director of BHA for the initiatives he has taken to improve prehearing development, to allow informal remands, to reduce delays encountered by the appeals council's own-motion review of favorable decisions and to implement the law clerk and legal assistant program, the assignment of analysis to the hearing office, and the addition of other supporting personnel. Although in effect for only a few months,

these steps have already proved of substantial help in reducing caseloads daily.

I submit that the actions we have recommended provide for an expeditious, orderly, and fair solution to the backlog problem. Most importantly, these actions afford no compromise of the rights and protections guaranteed under the Administrative Procedure Act.

Gentlemen, may I interject parenthetically here in the midst of all this crisis, and we feel it keenly, as all of you gentlemen do, I think it is a compliment to the ALJ's that we have not panicked. We are still trying to give the claimant a full hearing and protect all his rights under the APA, despite the pressures that may be asserted from a great many sources.

Also let me say that while much remains to be done, and there are other things that need to be done, let me congratulate the present Director of the Bureau for the initiatives he has taken to improve hearing procedures. Much action has been taken in the last nine months.

Gentlemen, this has been a delaying factor. After we ALJ's render a decision, oftentimes, the appeals council will review it on an ownmotion review. The present Director has eliminated that, and I handed down a decision on August 3, and instead of the claimant waiting another 2 months to get the check, on August 25, the claimant had his check for all of the back payments. This is a step that expedites the receipt of payments.

Additionally, the Director has instituted the law clerk and legal assistants program. We have 170 law clerks on board now, and I understand we will have an additional 100 or so. This is a new program, just a matter of 2 months ago. The increased production has gone up better than 50 percent in many of our offices, purely because of the institution of this program.

Mr. BURKE. If you will hold up right there, Mr. Watson, we will be right back. It is another rollcall.

[A recess was taken.]

Mr. BURKE. You are recognized again, Mr. Watson.

Mr. WATSON. Mr. Chairman, let me conclude by saying that, as I mentioned earlier, that the steps that have been taken and the initiatives by the director, they have already proven to be immeasurable help in reducing the backlog, and actually they have not been tried that long to reach their maximum potential, and I think, as stated here, they are a help in reducing the backlog of cases that multiply daily.

The actions that we recommended I think make for an expeditious solution to the backlog problem.

Most importantly, and we urge you to remember this, that while these procedures do provide for an acceleration and the effort to reduce the backlog, they at no time provide for a compromise of the rights guaranteed under the Administrative Procedure Act.

Thank you.

Mr. BURKE. Thank you, Mr. Watson.

Our next panelist is Mr. Kross. You are recognized Mr. Kross.

STATEMENT OF MORRIS H. KROSS

Mr. KROSS. I hope my voice does not crack. I apologize for the fact that I suffer a slight head cold on top of an annual bout of Midwest hay fever right now.

Mr. BURKE. If you wish, your entire statement will appear in the

record.

Mr. KROSS. Mr. Chairman, I was going to ask that the statement I submitted appear in the record.

I would like to proceed quickly to a couple of points here. It appears to me, Mr. Chairman, that the Bureau of Hearing Appeals of the Social Security Administration is faced with an ongoing problem of a tremendous number of requests for hearings which will not be adequately handled with the current staff available, with the current number of judges available.

A lot of these have been suggested here at these hearings today that involve long-range planning and projects, and perhaps in the future reduce the load of request for hearings in the Bureau of Hearings and Appeals.

I suggest, Mr. Chairman, that the immediate problem of 170,000 people as of this month and 154,000 more people between today and this time next year are getting requests for hearings and getting them timely Mr. Chairman, it is the considered opinion and testimony of the people who know best, that is the Commissioner of Social Security, the Director of the Bureau of Hearing Appeals, your committee staff, who are as familiar with the problem as anybody, and members of this committee as well, that that job, with all the management procedures now being taken under the new Director of the Bureau of Hearing Appeals, that job cannot be accomplished without a significant and substantial number of new judges. The Bureau determined this year that they needed 150 new judges this year, and they know that in the next 3 years, 248 of the current administrative law judges will be eligible for retirement. Mr. Chairman, that is 400 judges that the Bureau needs in a 3-year period, in their best judgment, to catch up with the backlog and maintain a current rate of disposition on requests for hearings.

The question, Mr. Chairman, it seems to me, is what is the best and most reasonable, logical, and best way, not for judges, not for hearing examiners, not for the Congress, not for the Bureau, and not for Social Security, but what is the best way to give these claimants a fast and fair hearing with full justice?

Mr. Chairman, I suggest that you have got to give them the APA. I suggest, Mr. Chairman, that every judge who hears any kind of social security case, including SSI, needs an APA judge, because it is the only system we have in the Federal Government today outside the Federal courts that gives them-where the judge is independent of the agency. The question is: Where do you get them? The Civil Service Commission came up with a certificate of eligibles, and they got 43. They are hoping to have a class of 56 in January. They do not know if they are going to get that many or not, because they are just beginning to work with the certificate of eligibles that the Civil Service Commission made available, as I understand, just within the last week or 2 weeks.

Mr. Chairman, a class of 43 judges was appointed this last June, according to Commissioner Cardwell, and he is short, I think, when he says that it takes 9 months from the day of appointment until that judge is producing. Those 43 judges will not be producing until next spring. The 56 we are talking about in January are not going to be producing a full load until this time next year.

Mr. Chairman, you have on the job right now 124 SSI hearing examiners who are on the job, in place, have section, have hearing assistants, have office space, have staff, and are ready and willing to, within 24 hours or less, the day the President signs into law a bill that is effective the day he signs it, that next morning he has 124 hearing examiners on board to become ALJ's, and go to work hearing and deciding cases. Yes, there is an SSI workload, but not enough to keep almost any of the hearing examiners busy, because the fact of the matter is that SSI examiners today do not have a full workload. They cannot have, because 60 percent of the SSI cases Mr. Watson talked about are concurrent with title II. They cannot hear them right now, because they are not APA judges.

The question is should they be appointed, or be made title II judges as if they had been appointed under 3105 without first qualifying under the civil service register?

Nobody has used that, because it is a bad term in Government, Mr. Chairman, but to be frank, it is grandfathered in. That is a term we don't like in Government, because it is only done when circumstances and exigencies are such that it compels it, and there is good reason for doing it.

Now, I suggest to you, Mr. Chairman, that the man who has no ax to grind, and who knows as much about qualifications as SSI hearing examiners as anybody who will appear before you in this hearing is Mr. Wilson Mathews, and he has no ax to grind, and he made it clear, and I alluded to it in my statement, and am not going to go into it now, that on any basis you want to take it, examination, qualification, qualifying experience, SSI hearing examiners have first shown that they have the substance of qualifying experience that is shown by a man when he applies for appointment before the register under 3105.

Perhaps there is something more important, Mr. Chairman, and I don't like to be personal in hearings like this, but I will at this time. I am on the GS 15 and 16 register as a result of 15 years of private trial practice in my hometown of Kansas City. They have me on the 15 and 16 registers.

I say to you, Mr. Chairman, that I was a typical private practitioner. I never had a case before social security in 15 years of practice, and this is true of virtually all lawyers, with few exceptions, who end up getting on the civil service register.

I say to you, Mr. Chairman, that not after a year, but after 6 months of experiences of hearing SSI cases, which are the exact same law as title II, and they are disability cases, and I say to you that I am a lot more expert than the 15 years of private practice ever made me, and that is what got me on the civil service register.

I say, Mr. Chairman, if you want an answer to the current problem, it is right here at hand, and it is simple, and it is not 8911 that makes permanent judges out of them.

What does a Member of Congress say, or a SSA claims representative at the district office, or an administrative law judge, or a temporary administrative law judge, under 9811 when a claimant who doesn't know very much, but who knows something and hears something, says, "How come I got a temporary judge when my next-door neighbor got a regular judge?"

Mr. Chairman, the commissioner, the director of the bureau, the man who knows best, Mr. Wilson Mathews, the substance of your committee staff's report, administrative law judges and rank and file administrative law judges all over the country have all said and say without qualification and without exception that SSI hearing examiners are qualified by experience on the job, as well as by the substance of their prior experience in private practice which got them on the SSI appointment, and which is identical, except in number of years, to title II application.

Even Mr. Dullea in response to one of your committee members last Friday, even Mr. Dullea of the administrative law judges, and I am amazed, but it is there on the record, conceded in effect that hearing examiners were qualified to hear title II disability cases.

Mr. Chairman, the suggestion has been made, and will be made again today, I understand, that SSI hearing examiners and black lung personnel be used as professional assistants to assist the administrative law judges.

The commission has just hired a number and will hire 130 more young lawyers to do that kind of work. You don't need professional assistants at grade 14. You have them at grade 11, you have them there, and they are not being utilized as well as they could be by ALJ's all over the country now.

An administrative law judge, no matter how much professional help he gets, if you go into a conscientious job of reviewing the cases and ferreting out the evidence as we have to do in this proceeding, because you don't have lawyers representing claimants most of the time, and if you are going to do a good job, you have to ferret out the evidence with sometimes ignorant and scared-to-death claimants.

I will conclude, Mr. Chairman, so we won't have to go forward when you come back.

It would be an absolute waste of everybody's time to try to make grade 11 legal assistants qualified examiners who are ready and willing and able to get to work on BHA's and this committee's immediate problem for the next 3 years backlog and how to get rid of it.

We are ready, and we submit the legislation to establish permanent ALJ's that will solve the problem for every social security claimant in the country, and the immediate problem this committee and the Congress is concerned with will be solved, and we can go forward with the long-range problems we are talking about, including the Bureau of Hearings and Appeals.

[The prepared statement follows:]

STATEMENT OF MORRIS H. KROSS, PRESIDENT, ASSOCIATION OF SSI HEARING

EXAMINERS

PURPOSE

The purpose of this statement is to suggest that legislation, to put current SSI Hearing Examiners into permanent Administrative Law Judge positions, is the logical, efficient and most reasonable method of ensuring efficient, speedy, fair and independent hearings of appeals by the Bureau of Hearings and Appeals.

THE NEED FOR MORE ADMINISTRATIVE LAW JUDGES

It would be superfluous to make any further statement here about the urgent necessity of eliminating the current BHA backlog of pending appeals, and to give applicants a speedy and timely hearing and decision on their claims.