Senators Press SSA To Slow Its Plans For Reallocating Hearings

Regulatory Affairs and Federal Management Subcommittee Chairman James Lankford, R-Okla., was joined by Sen. Heidi Heitkamp, ranking minority member, D-N.D., in pressing the Social Security Administration about changes it is making to the Appeals Council process, during a May 12 hearing titled, “Examining Due Process in Administrative Hearings.”

The subcommittee is under the U.S. Senate Homeland Security & Governmental Affairs Committee, which held the hearing in light of SSA’s plans to remove two classes of hearings from the review of administrative law judges (ALJs) and place them under the purview of administrative appeals judges (AAJs).

The two classes of hearings are non-disability cases (CFR 404.956 and 416.1456), and supplemental hearings in cases the council would otherwise remand to ALJs (CFR 404.983 and 416.1483).

While ALJs are independent adjudicators selected by the U.S. Office of Personnel Management, the AAJs are hired directly by and work for the SSA. One of the primary concerns, voiced by Sen. Lankford, is the need for Social Security claimants to receive due process under the Administrative Procedure Act (APA), requiring hearings before an independent arbitrator.

Theresa Gruber, deputy commissioner of Disability Adjudication and Review for the SSA, defended Agency’s plan, stating the move would assist with the backlogs and expands the existing capability for AAJs to hear cases. Gruber said the SSA had looked at what options were available to the SSA legally, as well as cost effectiveness and operational viability.

Marilyn D. Zahm, president of the Association of Administrative Law Judges, and an ALJ in the Buffalo, New York, Office of Disability Adjudication & Review, testified the plan is a violation of due process and the APA. She provided a comparison outlining the distinctions between ALJs and AAJs that included qualifications and hiring, discipline, hearing authority, ex parte contact and other factors, which she said represent the safeguards that ensure a fair hearing for the public.

Both senators indicated concerns that the SSA has not prepared an adequate legal defense of the move, and that the change risks exposing the federal agency and the taxpayers to a class-action lawsuit if specific classes of Social Security claimants receive different treatment than other classes of Social Security claimants.

The discussion included a review of the SSA’s efforts to boost ALJ hiring. Gruber outlined the difficulties the SSA has experienced due to the time-consuming process that is administered by the U.S. Office of Personnel Management. The OPM coordinates candidate advertising, examinations and the vetting process, and then selects candidates for specific ALJ posts throughout the country.

Gruber said the SSA is not receiving enough candidates for the positions that need to be filled. Joseph Kennedy, associate director of Human Resources Solutions for the OPM, also testified and provided a description of the screening process. Kennedy said the SSA and OPM are working together, and they are trying to remedy the SSA’s ALJ hiring needs.

Sen. Heitkamp asked Gruber if the SSA was going to proceed with its plans, and Gruber told the committee she was willing to engage in additional discussion. Sen. Lankford said he is concerned that the SSA will face a legal challenge by making this move. He also said he does not want to end up with a longer hearing-level backlog because the SSA “tried a novel theory that may or may not have worked.”

Click here to view the video and read witness testimony.