Hearing of the Regulatory Affairs and Federal Management Subcommittee of the Senate Homeland Security and Governmental Affairs Committee - Opening Statement of Sen. Lankford, Hearing on Administrative Law Judges

Hearing

Good morning and welcome to today's Subcommittee hearing. Today we will look into
several issues surrounding administrative law judges, their independence and the importance of
due process as provided by the Administrative Procedure Act. The APA validates due process
principles through the guarantee of an administrative hearing before an independent decisionmaker.

These independent and impartial decision-makers are most often administrative law
judges, or ALJs.

The office of the ALJ is unique in our federal government. Although they are like federal
judges in the sense that we expect them to preside over formal administrative adjudications
independently, ALJs are in fact executive branch employees selected by the Office of Personnel
Management to oversee adjudications as required by law. Though ALJs are spread throughout
the executive branch, our focus today will center on ALJs from the Social Security
Administration, as they employ the largest number of federal ALJs. ALJs are hired through the
Office of Personnel Management. OPM is tasked with reviewing all ALJ's qualifications. OPM
has made strides in providing qualified ALJs to the Social Security Administration and
elsewhere across the executive branch.

At the same time, over the last 4 years, Congress has appropriated significant resources
so that the Social Security Administration could hire more ALJs to address its backlog of
disability claims. Yet, the agency has been unable to hire sufficient numbers of approved ALJs to
tackle the rising backlog of cases--a backlog which topped one million last year. But instead of
hiring more ALJs, in a misguided effort to expedite the adjudications process, SSA is in the
process of moving tens of thousands of pending cases from ALJs to non-APA attorney
examiners, who are regular employees of the agency and lack the requisite decisional
independence. In March, SSA posted close to 30 non-APA "Attorney Examiners" job openings,
to support this initiative. This SSA proposal raises important questions about whether cases
heard by non-APA attorneys constitutes a violation of the Administrative Procedure Act. Further,
Social Security regulation makes repeated reference to a claimant's right to an independent
decision from an ALJ.

SSA's newfound policy also raises procedural issues--given the magnitude and potential
economic effect of SSA's proposed reinterpretation of its own rule here, it appears that the rule
should also have been submitted by SSA to the Office of Information and Regulatory Affairs.

Economics aside, the proposal creates an inequity where some claimants will receive the
independent decision guaranteed to them by the APA and others will not. Furthermore, for nondisability
cases the loss of due process is compounded by the fact that a majority of these
individuals are unlikely to have access to attorney representation due to a lack of financial
incentive. But once a sizable number of claimants have been denied a hearing before an ALJ,
there is the potential that SSA's proposal to move cases away from ALJs to non APA attorneys
could result in a large, class action lawsuit.

While we all share the goal of eliminating the hearing backlog, our concern isn't just
about meeting desired results; we must also focus on how we get there. Accordingly, there are
three main points I would like to address today: First, I would like to focus on the how attorney
examiners, drawn from the SSA's own ranks, can be said to appear impartial, especially to the
extent that they review cases de novo. Second, I would like to know more about SSA's policy
pivot, which in the past allowed for certain transfers on a case-by-case basis, to permit largescale
transfers of entire classes of cases. Third, I believe we need to carefully consider alternative
proposals to SSA's untested and legally ambiguous policy, such as using retired ALJs from local
offices to hear these cases. If SSA believes that there aren't enough qualified ALJs to meet the
current demand, shouldn't they and OPM instead be focused on new recruitment efforts to
increase the supply of worthy applicants?

We are happy to have with us today Deputy Commissioner Theresa Gruber from SSA,
Associate Director for HR Solutions Joseph Kennedy from the Office of Personnel Management,
and Marilyn Zahm, an ALJ from the Social Security Administration to help us navigate these
important issues. We are grateful for your testimony and I look forward to the issues discussed at
this hearing. With that, I will recognize Ranking Member Heitkamp for her opening remarks.

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