ing Examiners, who may not qualify as Administrative Law Judges under Sec. 3105 of Title 5 of the Administrative Procedures Act. Section 3 (c) of H.R. 8911 would allow the Secretary of HEW to recruit, select and appoint persons as Hearing Examiners, even if such hearing examiners do not meet the requirements for Administrative Law Judges appointed pursuant to 5 U.S.C., Sec. 3105 of the United States Code. Such appointments are to terminate not later than December 31, 1978. The purpose of this provision is to establish a roster of Hearing Examiners sufficiently large to handle the volume of cases anticipated under Title XVIa roster larger than that of persons qualified as Social Security Administrative Law Judges.

It is my understanding that this was intended in drafting the existing provisions of the Title XVI law, but failed because of a drafting error which erroneously exempted the proposed Examiners from the standards of subchapter II of chapter 5 of Title 5, U.S.C., instead of from sec. 3105 of Title 5 of the Administrative Procedure Act. As a result, the Civil Service Commission, acting on "the face of the law" in the discharge of their responsibility to prescribe qualifications for Administrative Law Judges refused to supply the Secretary of HEW with a register of potential Administrative Law Judges on the grounds that section 1631 (d) does not require hearings to be held under the provisions of the Administrative Procedure Act, and the Commission is, therefore, without jurisdiction to establish such a register. A basic conflict between Social Security Hearing Examiners and Administrative Law Judges, as a class, has been created by these differing standards and qualifications. It is apparent that there are at present neither Administrative Law Judges, nor Social Security Hearing Examiners, in sufficient quantity to dispose of the outstanding backlog. The professionalization of the adjudication of constituents claims would best be served by the necessary increase in the number of qualified Administrative Law Judges, including certification thereto by the Civil Service Commission of those Civil Service Commission Hearing Examiners having the necessary qualification. This, however will obviously not enlarge the number of hearings processed, which pending the establishment of the necessary number of Administrative Law Judges, it would appear necessary to continue the Hearing Examiner system. The Hearing Examiner system in addition to being augmented numerically should have its jurisdiction authority enlarged to include all of the Social Security cases i.e., black lung, Medicare, Retirement and Survivors Insurance, and Disability appeals on a temporary basis.

One administrative difficulty which has arisen out of the preesnt dual qualification standards for Administrative Law Judges and Hearing Examiners under Titles II and XVI of the Social Security Act, respectively, is the restrictions imposed on Hearing Examiners under Title XVI, that do not apply to Administrative Law Judges. The fact that SSI Hearing Examiners can hear only SSI cases, and that Black Lung Administrative Law Judges can hear only Black Lung cases, severely limits their ability to dispose of the current backlog. Because of this heavy backlog, the Secretary has made an effort to train those temporary, Grade 14, Hearing Examiners, now hearing Black Lung cases, to hear SSI cases in the future. These Examiners have six years experience, and it is the opinion of the Board of Hearings and Appeals that all 95 will be qualified for certification by the Civil Service Commission as Administrative Law Judges with one more year's experience. However, the Civil Service Commission may not feel in the proper exercise of its discretion, that these Judges meet their standards. Only 4 Black Lung judges are on the Civil Service Commission roster as qualified at the preesnt time. As all the Hearing Examiners now employed by the Bureau of Hearings and Appeals are Grade 13, requiring four years' administrative experience, only 5 Hearing Examiners are on the Civil Service Commission's roster as being certified as Administrative Law Judges.

It is quite clear, however, that at present employment levels, 436 Administrative Law Judges, 124 Hearing Examiners for SSI cases, and 95 temporary Black Lung Judges, who may or may not eventually qualify as Administrative Law Judges, are not going to be able to reduce the existing nine-months backlog or the anticipated future 7-8 month backlog.

In order to correct the present situation, administrative and legislative steps need to be taken to: (1) employ additional Administrative Law Judges and/or hearing examiners; (2) enlarge the jurisdiction of Hearing Examiners' to include all types of Social Security appeals cases, bearing in mind that their qualifications can be reviewed at any time for certification as Administrative Law Judges; (3) provide for a better distribution, nationally, of both temporary and permanently

assigned Administrative Law Judges and Hearing Examiners to relieve the existing current caseload distribution inequities; and (4) foster, financially and administratively, a program whereby Hearing Examiners can eventually qualify by special training for consideration and certification as Administrative Law Judges by the Civil Service Commission.

I would also like to recommend, particularly, that the Subcommittee on Social Security undertake a study relating to current Civil Service Commission regulations pertaining to the certification of Administrative Law Judges and the assignment of grades thereto. I feel such a study would be valuable in assessing the qualifications of applicants who may have sufficient experience to become efficient and well qualified Administrative Law Judges, but who may not meet the present Civil Service Commission qualifications.

The Congress certainly cannot allow claimants for beenfits to which they are entitled to suffer endless delay because of an administrative failure on the part of the Federal government to solve its administrative, procedural and personnel problems pertaining to the Social Security program.

I would respectfully recommend to the Ways and Means Subcommittee on Social Security consideration of these goals in the implementation of any legislation reported out by the Committee to help correct the current problems of the Social Security Administration in efficiently administering the claims programs now under its jurisdiction, particularly under Titles II and XVI of the Social Security Act.

STATEMENT OF HON. JAMES T. BROYHILL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH CAROLINA

Mr. Chairman, I appreciate having this opportunity to testify before the Social Security Subcommittee regarding needed changes in the Social Security system to expedite the consideration of claims for benefits.

As you know, the Social Security Administration has established a procedure for a claimant to follow if his or her claim for benefits has been denied. However, I think it is time for Congress to take a look at this procedure and consider setting up a procedure by law which will not only provide for quicker and faster consideration of claims, but will give claimants assurances that their claims will be heard, as well as certain rights to advice and assistance.

The present appeals procedure specified that the applicant has a certain amount of time in which to request each step in the claims proceedings: six months to request reconsideration; six months to request a hearing before an Administrative Law Judge; 60 days to request a review by the Appeals Council. It is interesting to note that while there are definite time limits imposed on the claimant, there are no time limits imposed on the Social Security Administration to complete action on any of the claims.

This process obviously results in lengthy delays before a potential recipient receives a final determination on his claim. In going through my files, I found numerous examples of unnecessary delays. One man requested a hearing on August 30, 1974; his hearing was finally held on August 28, 1975, and he still has not received a final decision. A woman requested a hearing in December 1974; as of October 1975, her request for a hearing is still pending. These are but two examples from my files, but practically every case in my files shows similar situations occurring. Other Congressmen have like experiences to recount.

I propose, Mr. Chairman, that the Congress take the necessary steps to correct this problem. I suggest, first, that we shorten the length of time in which an applicant may request a reconsideration to 60 days from the date of the notice of the adverse initial decision. In addition, I propose that we allow only 60 days for a claimant to file a formal request for a hearing. It seems to me that the longer periods of time that are in effect now are not necessarily in the best interest of the claimant, inasmuch as it gives the practical effect of extending the total length of time that the claim in under consideration. It would be in the best interest of the claimant to give faster action on his or her claim.

Most importantly, however, there needs to be some requirement that the Social Security Administration must make a determination within a reasonable period of time. I have selected a period of 90 days. Perhaps the Committee might wish to select some other reasonable time period. In any case, however, it should be a specified time limit in which the Social Security Administration must take action and make a final determination.

Obviously, these changes would shorten the extensive time lag in the appeals process and enable the ultimate determination of an appeal to be rendered much

sooner.

I also believe that the Congress should provide for a personal conference between the claimant and a representative of the Social Security Administration before a case reaches the hearing stage. At a personal conference, the claimant can be given advice on how best to document his or her claim, can be assisted in gathering additional information, and can be told exactly on what grounds the claim was denied.

I am convinced that the Congress must take expeditious action to eliminate these inordinate delays in the appeals process for social security benefits claims. Therefore, I hope the Subcommittee will give favorable consideration to these suggestions.

CONGRESS OF THE UNITED STATES,

Hon. JAMES A. BURKE,

HOUSE OF REPRESENTATIVES, Washington, D.C., September 24, 1975.

Chairman, Social Security Subcommittee,
Ways and Means Committee, Washington, D.C.

DEAR MR. CHAIRMAN: I would like to take this opportunity to commend you for the action you have taken in scheduling hearings on the subject of delays in the social security appeals process. I appreciate the opportunity to submit a statement for the record on this important subject.

Since coming to Congress I have had many residents of the 8th district of Wisconsin contact me for assistance in getting a date for their disability hearings. I currently have six constituents who are waiting for a hearing by an administrative law judge so that their eligibility for disability benefits can be determined. These people have been waiting for four to six months for their hearings, and I am certain you can understand the frustrations and financial hardships the delays have caused them.

A case in point is that of a women from Antigo, Wisconsin. One year after the onset of her disability which forced her to cease working, she filed an appeal with her local social security office. The date of this application was February, 1975. My last report on the status of her appeal was received from the Administrative Law Judge in charge of the Milwaukee Social Security Hearing Office on July 31st. I was notified that "every effort is being made to insure that her hearing is held at the earliest possible opportunity." I hardly call a six month wait the earliest possible opportunity. The case has still not been assigned to an administrative law judge.

Another case which demonstrates the problems created by these delays is that of a farmer from Shiocton, Wisconsin. He is 48 years old and was disabled as a result of a farm accident in which he lost the use of his right hand. Although he is currently in the process of receiving physical therapy, the treatment has not been effective in helping him regain the loss he suffered to his hand.

The accident forced this constituent to sell his entire dairy herd and therefore forego his livelihood. Because he has six dependent children to support, this man even tried to obtain rehabilitation help from the state, in an effort to train for a different occupation. He was advised that no funds for this purpose were available.

My constituent's doctor sent statements attesting to his disability and to the fact that it would last from one to one and one-half years. Neverheless, this man was denied disability benefits upon appeal in February. In March, I requested further consideration on his behalf, and I have since learned that the request for a hearing is pending before the Milwaukee Social Security Hearing Office. "You may be assured that this case will be assigned to an administrative law judge as soon as possible" was, again, the response I received, although the case has now been pending for over six months.

As my constituent noted in his original letter, "I am not expecting assistance for a prolonged period of time, but until medical treatment is completed and I can return to work, I feel some assistance should be provided." I agree with him, and I find it inexcusable that he has had to wait so long for a hearing date.

The purpose of the disability program is to protect workers against loss of income during periods when they are unable to be gainfully employed. The intent

of the law and the program cannot be met, however, as long as current delays experienced by applicants persist and as long as those who may be qualified are therefore denied the opportunity to have their eligibility determined.

Through the hearings on the appeals process which you are now holding, I hope the subcommittee will be able to reach a consensus on how best to expedite claims for disability benefits that reach the hearing stage. Perhaps we should simply increase the number of administrative law judges or perhaps we should reexamine the entire program in an effort to make it more realistic and responsive to current needs.

Again, thank you for the opportunity to present this evidence on the problems caused by delays in the appeals process.

With warm regards,

Sincerely,

ROBERT J. CORNELL,
Member of Congress.

STATEMENT OF HON. JOHN J. DUNCAN, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF TENNESSEE

Mr. Chairman, during today's hearings, the subcommitee has addressed the problem of adjudicating disability cases with regard to the difficult work load placed upon judges and hearing examiners and the often complicated and lengthy appeals procedures faced by claimants. I would like to include in the record for consideration by the subcommittee the following comments on this issue as presented by an Administrative Law Judge from my district who has experienced many of the problems with which the subcommittee is concerned :

"During June of this year, Commissioner Cardwell testified before the Public Assistance Sub-Committee that the backlog of cases in the Bureau of Hearing and Appeals (BHA) had risen from 77,000 a year before to 113.000 at that time. It is reasonable to assume that some of the cases are at the pre-hearing level and some are at different levels of appeal after hearings. Everyone would agree that speed in clearing up this large number of cases is desirable. A fair and impartial hearing to each claimant is just as desirable, and a quick hearing should not work to deprive a claimant of benefits that a well developed hearing might ensure him.

"The staff reports of the Ways and Means Committee and its subcommittees have consistantly maintained that Congress intended that the Supplemental Se curity Income Act to be under the Administrative Procedures Act. However, the Civil Service Commission interpreted the act differently and refused to supply a register of Administrative Law Judges to the Social Security Administration (SSA). This resulted in the Security having to appoint non-APA SSI Hearing Examiners to hear these cases who, as such, are not authorized to hear Title II cases. At the beginning of 1976, there will be approximately 175 SSI Hearing Examiners in the field. The BHA management states that we are receiving approximately 70,000 SSI Requests for Hearing per year and about 40,000 of these cases are "concurrent cases", involving both SSI and SSA issues. Because of the SSA issue, the SSI Hearing Examiner is not authorized to hear the concurrent cases. The 30,000 per year case load is not sufficient to justify a corps of 175 SSI Hearing Examiners. BHA is receiving annually approximately 80,000 concurrent and straight SSA cases which may be heard only by Title II judges. There are fewer than 500 such judges to hear the new cases coming in and eliminate the existing backlog, and normal attrition is reducing the corps more rapidly than the Civil Service Commission can supply new judges from its register.

"Quite obviously, one of the first solutions that comes to mind is to use the corps of 175 SSI Hearing Examiners who are trained and in the field hearing cases similar to the SSA cases. Unfortunately this is not as simple as it seems. "In June 1975, Commissioner Cardwell testified before the Public Assistance Subcommittee concerning this problem and stated it is highly desirable that the agency be permitted to use SSI Hearing Examiners to hear SSA cases. As a result of these hearings, H.R. 8911 is now before the full committee. This bill provides authority to the Secretary to appoint temporary Administration Law Judges to hear Title II. Title XVIII and Title XVI cases until December 31, 1978. It eliminates completely the SSI Hearing Examiner and places SSI hearings under APA. The Title II judges, for the most part oppose the bill. They feel it might well be the beginning of a progressive erosion of the judicial independence that is ac

corded them by the APA. A temporary judge that is to be evaluated and re-hired by BHA in order to receive a permanent job at some time in the future cannot maintain the independence that is required to provide and complete and thorough hearing and render a fair and impartial decision.

"Management objectives and the judicial objectives of the hearing officers are of necessity different. The initial claims adjudicator has one motivation-to be very strict in his application of the definition. The Appeals Officer, on the other hand, has been conditioned by his own training to take a very liberal attitude and to put the burden of proof on the federal government. The agency adjudicator is bound by policy and procedure developed by agency management. His decision is circumscribed by agency interpretation. The hearing officer, on the other hand, is a highly trained professional legal officer. He is permitted to interpret the law as written by Congress and his decision is protected by the APA. As far as his decision is concerned, he speaks for Congress. His decision embodies what his professional training and experience tell him is the intent of Congress. He is protected from agency motivation by Congress through the APA.

"The fundamental difference between the two approaches is historic and traditional. Congress, and only Congress, can determine whether it wants to continue a system which contains both the agency adjudication and the appeals hearing officer, or whether it will abolish one or the other. If it wants to provide claimants with a hearing officer which is independent of agency motivation, then the hearing officer must remain inviolate. Title II judges feel that H.R. 8911 is a serious encroachment on the independent hearing that claimants have been accorded in the past. A temporary judge is much more susceptible to agency "motivation" than is a permanent APA judge. The temporary judges want to be permanent judges with the BHA and must necessarily be aware that they will have to be re-hired by BHA to become permanent. They are thus more likely to be motivated by management policy.

"The permanent judges also feel that oughtright "grandfathering" of SSI Hearing Examiners and Black Lung Judges into the program would be undesirable. The action would set a precedent which would make it easier in the future to relax the standards which have provided the safeguards of a fair and impartial hearing. However, between the two alternatives outright "grandfathering” is immeasurably preferable to the temporary appointments.

"The permanent judges and the Hearing Examiners suggest another alternative which is workable and which would eliminate the backlog and at the same time maintain inviolate the APA safeguards. SSI Hearings should be placed under the APA and the present Hearing Examiners and temporary Black Lung Judges should be deemed by Congress to have been appointed as APA Administrative Law Judges. The Legislation should provide a grade no lower than GS-14. Congress has stated through its committee staff reports that this was its original intent when the SSI Bill was passed. The SSI Administrative Law Judge could thus hear and decide SSI cases that do not involve Title II cases. Since this work would not require the full time of the SSI Administrative Law Judges, they could spend the remainder of their time writing Title II decisions under the direction of the Title II judges of cases heard by Title II judges. This procedure would force the Title II judges to hear more Title II cases and thus effectively eliminate the backlog. At the same time, claimants would be accorded the protection of the APA in all hearings and decisions, and SSI Administrative Law Judges would gain experience to become Title II judges."

STATEMENT OF HON. PETE DU PONT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF DELAWARE

Mr. Chairman. In co-sponsoring this legislation, I hope to help my constitutents who are unfortunate enough to be caught in the processing delay of the Social Security appeal system, by correcting some of the inequities within the system. I have been contacted many times by process-weary applicants who have had to wait an unbelievable amount of time for a hearing while their families not only do without but live in a constant state of uncertainty. As you know, Mr. Chairman, from the date of an original application for benefits through the hearing decision, the time involved can be well into two years for the applicant. A review by the Appeals Council could mean an additional two to four months. Regardless of the final outcome, this is too lengthy a time period and the need for a revision is obvious.