17 be in agreement with any statement of fact contained in the statement of the case with respect to no allegation of error is made. Paragraphs (b) (5) and (6) are obviously an attempt to provide by statute a pointing up of the issues for the hearing process so that they can be carried out expeditiously. Many ALJ's have complained about the quality of the records that are sent to them and the inordinate amount of their time that is spent on case development. On the other hand the State agency may argue that they have been pressed to make speedy adjudications and the statement of the case required by (b) (5) may be quite burdensome. From the claimant viewpoints some may consider the requirement of specific allegations of error of fact or law or dismissal of the claim as burdensome and to necessitate legal representation. Probably one of the advantages and disadvantages of the current social security appeal process is the open record concept where new evidence is continually solicited and entered in the record and the facts and issues are continually changing. The administration witnesses, the administrative law experts, and the State agency administrators should all have opinions on this subject. H.R. 5276 (and similar bills) introduced by Congressman Seiberling would provide time limitations for decisions concerning social security benefit claims at each of the determination levels, i.e., the initial determination (90 days), reconsideration (90 days), ALJ hearing (120 days), and Appeals Council (120 days). This bill also provides that if any decision is not made within the time periods specified, a claimant shall be paid monthly benefits determined solely on the basis of his application and wage records, and that such payments will not be considered overpayments for purpose of recovery. SEC. 205(b) (7)-HEARINGS UNDER APA AND GS-16 CLASSIFICATION FOR ALJ's This provision is similar to the Duncan bill (H.R. 2995) and similar bills which say that hearings on social security claims shall be "conducted on the record" and shall be subject to all the operative sections of the Administrative Procedure Act for "adjudications." Under existing law, coverage under the Administrative Procedure Act has been assumed under language which provides for an on the record adjudication but does not use the actual words "on the record." However, the Attorney General's Manual on the APA which was issued in 1947 states that hearings under social security were the type of "adjudications" which were envisioned by the Administrative Procedure Act. Be that as it may this provision would resolve any controversy about the matter and furnish a very explicit and unequivocal congressional declaration that full APA treatment is to be afforded to social security hearings. This paragraph under the other sections of the bill apply only to title II (social security) and title XVII (medicare). The status of SSI procedures and its coverage under the APA are not affected. The paragraph also provides that the administrative law judge conducting hearings under these provisions shall be not less than a GS-16. At present, the Civil Service Commission has classified social security ALJ's at GS-15 while most of the ALJ's of the other departments and the regulatory agencies are classified at GS-16. The reason for the grade differential is not particularly well-articulated by the Civil Service Commission. Those who defend it speak of more "complex and difficult" cases in the regulatory agencies and the fact that they are adversary proceedings. Other commentators point to a Civil Service bias toward the "pure" ALJ's who conduct regulatory hearings and point out that there is no objective evidence of the greater difficulty in regulatory agency cases. Moreover, it can be argued that the fact that the social security hearing is nonadversary puts a greater burden on the ALJ in that he must develop the case as well as make the ultimate decision. Perhaps a more basic reason for Civil Service opposition to GS-16 for social security ALJ's is the numbers involved. 18 There are now over 300 GS-16 ALJ's primarily in regulatory agencies. There are, however, over 400 social security ALJ's and if difficulty of the case is a criterion for the grade of hearing officers it will be extremely difficult to rationalize the GS-13 for SSI hearing examiners. It should be recognized that the grade level of ALJ's throughout the Federal Government is rather chaotic. In recent years there has been a tendency on the part of Congress when it passes a new program to stipulate grade GS-16 for its hearing examiners. An example of this is the legislation on the occupational health and safety program. On the one hand it can be argued that inasmuch as there is very little evidence that adjudications under these programs are more difficult than social security, medicare, or SSI, the GS-16 should be established for Social Security Act ALJ's by statute. On the other hand, some would argue that perhaps Congress should not be in the job classification business on an individual program basis. But this then brings us back to the question of whether the alternative to this-classification by the Civil Service Commission—is being done in a fair and equitable manner. These questions can be explored with representatives of the Commission when they appear before the subcommittee on September 19. SEC. 205(b) (8)-HEARINGS ON SECRETARY'S MOTION This paragraph restates existing law which authorizes the Secretary, on his own motion, to hold hearings and conduct investigations. The following provision of Section 205(b) in existing law is not included in H.R. 8018: *** In the course of any hearings, investigation, or other proceeding, he may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under the rules of evidence applicable to court procedure. SEC. 205(b) (9)-REGULATIONS Authority is given to issue regulations with respect to hearings and appeals. APPENDIX [Excerpt from status report by Social Security Commissioner Cardwell on Ways and Means Committee Staff Report on Disability Insurance Program] Summary 3. SOCIAL SECURITY APPEALS PROCEDURE The staff expresses considerable concern about the appeals process, not only in terms of volume and delay, but also in terms of the question of whether the same disability standards are applied at each level of adjudication and review. Referring to the "appeals crisis," the staff recommends that the Committee may wish to reexamine the complex structure of the appeals procedure to determine what changes would be appropriate. Reference is also made to the staff's belief that the conclusion of the Civil Service Commission with respect to the applicability of the Administrative Procedure Act (APA) to supplemental security income (SSI) hearings is clearly contrary to the intent of the Committee and the Congress. It is suggested that action be taken to clarify Congressional intent in this respect. Action: In-house work groups have reviewed the appeals process and have made numerous suggestions for improvement which have either been implemented or are being considered. For example, SSA has put into effect an experimental procedure authorizing informal remand of disability claims awaiting hearing upon the presentation of new evidence. This should act to reduce the hearing backlog in cases where adverse decisions can be reversed on the basis of the new evidence and to speed up determinations in general. Among the initiatives that have been or soon will be instituted to help reduce the hearing backlog are: 1. Allocation of additional support staff to backlogged hearing field offices. 2. Appointment of permanent assistant chief administrative law judges in all regions. 3. Creation of a strong hearings management capability. 4. Creation of a hearings staff attorney support program to assist individual presiding officers. 5. Assignment of trained analysts from central office to hearing offices on a temporary basis. 6. Acquisition of more sophisticated equipment by the Bureau of Hearings and Appeals for recordkeeping/processing purposes. 7. Counseling program in improved judicial techniques modeled after the Federal court system for low producers. We are continuing to expand our cadre of administrative law judges which in turn has increased our capacity to hear and dispose of cases. Backlogs of disability hearings requests, which constitute the great majority of hearings, are being reviewed and screened in the regions to determine if additional documentation is needed or whether favorable action can be recommended. In addition, we have contracted with an outside consultant, Mr. Edwin Yourman, to conduct an independent study of the SSA hearings, appeals and judicial review process. The findings and recommendations from this study have just been released and are undergoing review and analysis. Professor William D. Popkin of the Indiana University School of Law has been authorized by the Committee on Grant and Benefit Programs of the (19) 20 Administrative Conference to prepare an analysis of the role of representatives in administrative decisionmaking based on a study of five disability programs, one of which was the social security disability program, This report should be released sometime this summer and should provide an independent appraisal of certain aspects of the appeals process. We have initiated a Reconsideration Interview Study which is aimed at obtaining face-to-face or at least telephone contact between the claimant and State agency adjudicator at the reconsideration level. Also, the HEW Audit Agency has reviewed the disability reconsideration operations. This report has not yet been issued. We favor the HEW efforts to make the APA applicable to title XVI hearings. TABLE 1.—Median processing time in calendar days for social security disability cases, by type of determination: selected months 1 1 Processing time is measured from receipt of an initial application (or request for reconsideration or hearing) to disposition. Rates for initial determinations relate to State jurisdiction claims only. Beginning in June 1968, rates were determined from a 2 percent sample. 3 Not available. 4 Affirmances and reversals combined. |