August 01, 2016

SSA not planning to move forward with proposed adjudication augmentation program

The Social Security Administration (SSA) Office of Disability Adjudication and Review has decided, for budgetary reasons, not to move forward at this time on an ABA-opposed proposal to hold hearings without administrative law judges (ALJs) in certain categories of cases.

The proposal, which was the subject of a May 12 Senate hearing, would have shifted certain cases from ALJ hearings to proceedings presided over by administrative appeals judges (AAJs) and attorney examiners within the agency’s Appeals Council. While the original proposal will not be implemented at this time, further discussions are expected concerning the future of various aspects of the proposal.

The Senate Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management convened the May hearing amid concerns about due process as the SSA attempts to address a backlog of pending cases. During the hearing, subcommittee Chairman James Lankford (R-Okla.) emphasized that the Administrative Procedure Act (APA) validates due process principles through the guarantee of administrative hearings before independent decision makers who are most often ALJs. “The SSA proposal raises important questions about whether cases heard by non-APA attorneys constitutes a violation of the APA,” he said.

In a June 1 letter for the record of the hearing, ABA Governmental Affairs Director Thomas M. Susman explained that longstanding ABA policy calls for due process, on-the-record hearings presided over by ALJs pursuant to the APA and applying standards consistent with the law and published regulations. The association also supports an informal and non-adversarial hearing before an ALJ that allows the ALJ to function as an independent fact-finder who has a duty to develop the record.

“The ABA has worked actively for more than two decades to protect the adjudicative independence of the administrative judiciary and promote increased efficiency and fairness in the system,” Susman wrote. “A fair and impartial administrative judiciary is indispensable to our system of justice.”

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