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it is important to have a method of knowing how well the ALJ's perform-not just how much they produce.

And Professor Dixon writes:

Production statistics reveal that there are extreme disparities among an appreciable number of hearing examiners, not only nationally but within the same region, regarding their rate of reversal of SSA decisions. Such data provides a further basis for questioning the uncertainty of the standards and the resultant large amount of examiner discretion and also for questioning the adequacy of present Appeals Council review as a centralizing, standardizing force. (p. 76, "Social Security Disability and Mass Justice" (1973).)

Moreover, since Professor Dixon wrote his book the amount of Appeals Council review has significantly decreased. Yourman points out that "at one time, an (Appeals Council) analyst reviewed each hearing allowance to determine whether to recommend own-motion review. This has now been reduced to the extent that only about 5 percent of ALJ allowances, on the average, are reviewed." In the past there was program agency review (Bureau of Disabilitity Insurance primarily) but Yourman states that is is now "infrequent because a combination of volume of work and the 90-day limit within which the Appeals Council can take own-motion review frequently makes it impractical for the program bureaus to identify decisions for which they believe a review is important". Both the Committee Staff Report and Yourman suggest possible reinstitution of program agency review but with such a request for review clearly on the record so that APA safeguards of an independent adjudication are preserved.

Some of the same questions which exist at the hearing level exist on reconsideration though there are significant differences. The percent of reversals by the State agencies on reconsideration over the years have been relatively stable between 30 and 40 percent. The variation in rates between State agencies-like that on initial determinations-was quite substantial in calendar 1974, varying from a low of 19.5 percent in Kentucky to 45.9 percent in New Jersey with a national average of 30.5. Opinions differ as to the significance of these statistics. Like Appeals Council review, Federal agency review of State decisions has changed in recent years from a 100-percent check before the decision was effectuated to a small sample after the decision has been communicated to the claimant.

Finally, mention should be made of the dearth of precedent material which is available to ALJ's. They must adjudicate their cases on the law, regulations, and whatever pertinent social security rulings are published. As is noted in chapter E of the Committee Staff Report (pp. 45-50) the development of regulations has been slow and they still lack specificity. The social security rulings have not been too useful in the disability area and the Appeals Council does not publish precedent opinions of ALJ's. Some commentators have suggested that in this situation one can only expect highly individualized and nonuniform decisions. The inherent difficulty of providing precedent material with respect to such a highly subjective concept as the social security definition of disability must, however, be recognized.

Impact of Social Security Litigation

The number of social security cases which are appealed to the courts have been steadily increasing. The first sizable flow of the supplemental security income (SSI) cases will soon reach the judicial review stage and a large number of black lung cases are being appealed to the courts. In this section, attention will be placed both on the workload aspects and the impact on the Federal judiciary. Also the implications on the hearings process of the Eldridge case, which is pending before the Supreme Court, are briefly discussed.

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CASELOAD

In the fiscal 1960, 618 social security cases were filed in district courts; in fiscal 1973, 2,267 were filed. Disability filings for the last quarter of 1972 were 444. They had increased to 631 for the third quarter of 1973. The great majority of social security cases (75 to 80 percent) are disability claims. The following table shows the growth in terms of pending cases at the end of the fiscal year.

! These statistics have been supplied by the Office of General Counsel. ? Including black lung cases. 384 black lung cases were pending on June 17, 1974; 1,200 were pending on Jan. 1, 1975; and 3,338 were pending on Aug. 31, 1975.

The statistics of the Administrative Office of the U.S. Courts for fiscal 1973 shows a median time of 3 months for disposal of social security cases, but that at the other extreme, 10 percent requiring 29 months (Annual Report, p. A-28). Perhaps related to these statistics are those of the backlog of cases facing social security and regional attorneys. An indication of the impact of social security cases on the Department of Health, Education, and Welfare is the fact that this August they prepared 502 social security and black lung court briefs.

Social security court workload is very uneven throughout the country. More claimants seem to apply for benefits and to appeal denials with more frequency in certain parts of the country than in others. For instance of the 2,595 pending social security cases at the end of fiscal 1973, 887 (34 percent) were before the following five district courts:

The jurisdictions noted account for considerably less than 10 percent of the disabled workers receiving benefits, even though all these jurisdictions have an extremely high incidence of disability compared to the national average.

In terms of court workload by circuit the same disparity existed. The fourth and fifth circuits have had 47 percent of all the disability court cases. The fourth, fifth, and sixth circuits taken together have had 69 percent of the cases and they will be even harder hit when the black lung cases mature. On the other hand, New York and California which have had roughly 20 percent of the disability caseload have had only 6 percent of the court cases.

IMPACT ON JUDICIARY

Finally, there is the question of the effect on the Federal court system of a growing disability caseload which will be greatly accelerated in the next few years by black lung appeals and, more importantly over the long run, by cases coming up under the supplemental security income program.

It can be argued that in the recent past the impact of social security was not particularly significant in that it constituted, as late as fiscal 1973, only 2.5 percent of Federal district court civil filings. Pursuing this line of argument, it could also be noted that although the number of cases may be large, they are

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nearly all decided on motions for summary judgment and presumably take relatively little of the court's time. It might also be pointed out that the volume of social security disability litigation in fiscal 1973 was only twice that arising under the Federal Employers' Liability Act (applicable to about three-quarters of a million railroad employees) and only slightly more than half of the number of cases filed under the Jones Act (applicable to a million seamen). On the other hand, these latter statutes are not analogous to the social security, SSI, and black lung programs with their many layers of administrative review nor do they have the potentialities for growth of the latter. Social Security, SSI, and black lung cases are now approaching 10 percent of all civil filings. Obviously, the impact of the social security disability caseload on various courts in the country is uneven and, undoubtedly, will be of crisis proportions in certain judicial districts in the next few years. For instance, in the second and tenth circuit social security cases constituted only 1 percent of civil caseloads; but in the fourth circuit they made up 5 percent. În the District Court for Eastern Kentucky they were 22 percent of the civil caseload.

EMERGING CASE LAW ON HEARINGS BEFORE TERMINATION OF BENEFITSELDRIDGE v. WEINBERGER

Persons who are denied social security or SSI benefits upon initial consideration are not paid benefits pending appeal. There is no particular controversy about these provisions of the law. However, the law and regulations regarding termination of benefits under both social security and SSI have become increasingly controversial because of the decision in Goldberg v. Kelly, 397 U.S. 254 (1970). In this decision the Supreme Court held that under due process requirements federally aided public assistance payments could not be suspended or terminated without first giving the recipient adequate notice and an effective opportunity to confront adverse witnesses and to present his own evidence and arguments orally. The Department of Health, Education, and Welfare has substantially adopted the Goldberg decision standards for the SSI program. In contrast to SSI, the Department of Health, Education, and Welfare has not fully adopted Goldberg for social security cases and is terminating benefits without an evidentiary hearing. Whether this can be done constitutionally will be squarely presented to the Supreme Court in the October term in the case of Eldridge v. Weinberger, 361 F. Supp. 520 (1973).

Some of the major arguments of the Administration in opposition to the application of Goldberg to social security terminations are the fiscal ramifications of continuing benefit payments during the appeal period and the impact of further rights to appeal on an extremely hard-pressed appeals process. The Administration estimates that an adverse decision would require about 11,000 additional hearings a year. Currently there are over 110,000 hearing cases pending before the Bureau of Hearings and Appeals-about a year's backlog. Of course, it is not altogether clear how the Social Security Administration might conduct Goldberg v. Kelly hearings since presumably the requirements of the Administrative Procedure Act, which are followed in title II (social security) cases and are imitated in title XVI (SSI) cases, would not necessarily have to be followed under the due process requirements of the Eldridge opinion. Thus, as a contingency measure in the event the Government loses the Eldridge case before the Supreme Court, the Social Security Administration has launched a "due process" project to test the feasibility of the state agencies conducting "hearings" or "conferences" to meet Kelly v. Goldberg requirements. If after such a hearing the initial determination of cessation of disability is affirmed, benefits then are stopped, but the individual is still entitled to request a hearing before an ALJ. The test is being conducted in Indiana, Iowa, Kentucky, Michigan, Montana, Pennsylvania, and Washington. The ramifications of such a procedure on the State agency operation is a subject which will be discussed by the panelists on October 3, 1975.

This means that there are no jury trials which may be time consuming. On the other hand, the examination of the often voluminous record in disability cases can be time consuming and most cases require written opinions of substantial length.

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Pending Legislation-Appeals Procedure

H.R. 8018 (Mr. Sisk) and similar bills introduced by him and other Members involves a basic rewriting of the social security appeals process to make a number of significant changes. Section 205(b) of the Social Security Act which contains hearing procedure requirements would be expanded by H.R. 8018 into nine separate paragraphs. Section 205, as amended by the bill, will be discussed paragraph by paragraph to show the changes in existing law and possible ramifications.

SEC. 205(b)(1)-HEARING ON TERMINATION OF BENEFIT

The Secretary of HEW is directed to make findings of fact, and decisions as to rights of any individual applying for a payment under this title II (social security). This is identical to existing law. The subcommittee may also wish to consider whether the statute should spell out the hearing rights for beneficiaries whose benefits are terminated, suspended, or reduced and the status of benefits during the hearing. Cases, however, are not pending before the U.S. Supreme Court and U.S. courts of appeals which will probably further delineate constitutional requirements in this area.

SEC. 205(b) (2)-MANDATORY RECONSIDERATION-TIME OF APPEAL

Gives statutory support to certain administrative procedures that have been utilized for many years, i.e., a mandatory reconsideration before a hearing is authorized. Most commentators believe that this reconsideration which is undertaken by the State agency that conducted the initial determination is a useful procedure. Roughly a third of the reconsidered cases result in an allowance of benefits. The issue is more fully discussed in the Committee Staff Report, pp. 35-38, and Mr. Yourman has endorsed mandatory reconsideration in his recent report. The staff survey indicates that a large majority of the State agencies do not want mandatory reconsideration eliminated (see pp. 47-48, 415-422).

This paragraph also requires the claimant to file for a reconsideration within 30 days from the date of the mailing of notice of the initial determination. Some administrators of the program have suggested that reducing the time period of appeal would have a beneficial effect on the social security disability program in speeding up the appeals process. In the SSI program the time for a claimant to appeal is 30 days. They point out that in social security an individual has a full 6 months to decide whether to request reconsideration and then another 6 months to decide whether to appeal to an administrative law judge. The law states merely that "any such request with respect to such a decision must be filed within such period after such decision as may be prescribed by regulations of the Secretary, except that the period so prescribed may not be less than 6 months after notice of such decision is mailed to the individual making such request." The possible double 6-month period is the inevitable result of the imposition of the mandatory reconsideration requirement for, as the Social Security Administration puts it, "if the claimant had less than 6 months in which to exercise his right to reconsideration and, failing to exercise this right, was thereby precluded from exercising his right to hearing, he would in effect be deprived of right to a full 6-month period after notice of SSA's decision in which to request a hearing." Thus, the problem of the length of time and mandatory reconsideration are closely linked. Statistics show that about 80 percent of persons appealing both for a reconsideration and a hearing do so by 120 days and about 44 percent have done so within 30 days. A listing of the elapsed days before filing of appeals, based on an analysis done in 1972, follows:

SEC. 205(b) (3)-FACE TO FACE CONTACT ON RECONSIDERATION

This language makes the current face-to-face experiment on reconsideration a statutory requirement (see pages 10 and 11) which the claimant may take advantage of or waive as he desires. Probably the biggest issue in this area is how would it be effectuated administratively since in most of the reconsidered cases the issue will be disability and thus, State agency personnel skilled in evaluating disability would be involved. Most State agencies are not decentralized and such a development may make rather major changes in their current operation. This subject will be addressed by the panel of State agency administrators scheduled to testify on October 3.

Sec. 205(b)(4)—Reconsideration Required in 90 Days

This language appears to be a spelling out of administrative practice with the exception of the requirement that the reconsideration be accomplished within 90 days. The latest statistics available (May 1975) indicate that the median time for reconsideration is 43 days on affirmances and 86 days for reversals.

This is also a provision whose ramifications should be discussed with the State agency administrators.

SEC. 205(b) (5)—Defining the ISSUE FOR HEARING

This language is a spelling out of current administrative practice to notify the claimant in writing of the denial of benefits on the reconsideration. It goes beyond present practice in requiring that he be provided with:

and

(i) a summary of the evidence pertinent to the issues,

(ii) a citation and discussion of the pertinent law and regulations,

(iii) the determination made on the issues and a summary of the reasons therefor.

Under existing practice only very generalized statements are sent to the claimant. Moreover, the trend in recent years have been for briefer and more generalized denial notices.

SEC. 205(b) (6)-HEARINGS

Gives the claimant 30 days to file for a hearing. Unlike the current practice where a hearing can be obtained on simple request in writing, the bill would require that the request shall set forth specific allegations of error of fact or law related to specific items in the statement of the case; and failure to do so shall be grounds for dismissal of the claim. The claimant shall be presumed to