April 21, 1986 EXTENSIONS OF REMARKS 8219 EXTENSIONS OF REMARKS IT'S TIME FOR SOCIAL Seventh. No issue should be the subject of individuals. Moreover, the evidence and issues SECURITY REFORM judicial review that has not been addressed by increase as the case progresses to the ALJ the agency in the final decision. level. The result: In 1983 there were 366,691 HON.THOMASJ.TAUKE Eighth. The appeals process should be de­ fewer initial claims than there were in 1976 OF IOWA signed to resolve controversies. Higher level but 203,805 more requests for ALJ hearings. IN THE HOUSE OF REPRESENTATIVES decisions should be binding on lower levels Sixth. Although the statutory standard for ju­ unless appealed. Monday, April21, 1986 dicial review is a quite narrow appellate one, Ninth. When a case presents a major policy in practice the hundreds of judges in the 94 Mr. TAUKE. Mr. Speaker, today I am intro­ issue, for example, a challenge to a statutory Federal district courts conduct their own inde­ ducing a bill that depoliticizes our Nation's or regulatory provision, the issue should be pendent evalution of the evidence and decide largest entitlement program and establishes a properly framed for judicial review to ensure cases under their own standard instead of the system of claims adjudication that guarantees that first, the legal question will be decided regulatory standard that appears to be re­ the independence of SSA decision makers. It and second, there is no doubt that the deci­ quired by the statute. also establishes an appeals process that is sion will be precedential and binding unless Seventh. Plaintiffs routinely introduce issues equitable, balanced, and much more cost ef­ appealed. before the courts that were not presented to fective than the current chaotic and complex Tenth. When there is disagreement about a the SSA during the administrative appeals system. The new appeals process will do decision, the party that disagrees should not process. This is a standard operating proce­ what it should do: resolve controversies in- have the authority to unilaterally change the dure for class action suits and makes a mock­ stead of creating them. · decision. Rather, both sides to the dispute ery of the well-established principle that My bill is not designed to be a quick fix; it should have the right to appeal to an inde­ before a claim is presented to a court, admin­ was not developed within an environment of pendent, knowledgeable third party. istrative remedies must have been exhausted. crisis caused by reaction to any one of SSA's Eleventh. The appeals process should be Eighth. At the height of the continuing dis­ claims evaluation policies. Rather, my bill is as efficient and cost effective as possible ability review controversy, SSA data showed the result of an exhaustive, in-depth analysis while ensuring due process. of the entire process of deciding Social Secu­ Mr. Speaker, I doubt that there would be that 98 percent of the disability cessation de­ rity benefit claims. In conducting this analysis, much disagreement with these principles. Yet, terminations issued by the State agencies I began with certain principles regarding how even a cursory examination of the current ap­ were correct; yet when these cases were ap­ an equitable and efficient appeals process peals process for Social Security disability pealed to ALJ's, more than two-thirds were re­ should work, taking into account the enor­ claims reveals that the system violates each versed. Obviously, something was wrong with mous number of benefit claims generated and every one of these basic, commonsense the way State agencies were deciding these under Social Security and the issues these principles. To illustrate, taking each of the cases, but the ALJ decisions had no discerni­ cases present. principles mentioned in order: ble effect on the evaluation practices of the I think it is important to state those princi­ First. In two major lawsuits, one in Minneso­ State agency. Currently, there are more than ples for the record: ta and the other in New York, it was revealed 70 class actions relating to Social Security First. The purpose of the appeals/ review that SSA was not following its own regulations claims pending before the courts. They in­ process is twofold: To provide claimants who in evaluating mental impairment cases. volve virtually every SSA policy for evaluating are dissatisfied with an initial decision the op­ Second. There was a steady decline in the disability. Under court orders SSA must read­ portunity to present, in a meaningful way, their percentage of case paid at the initial and re­ judicata hundreds of thousands of claims and reasons for disagreement; and to provide the consideration level and a steady increase in apply the standard(s) imposed by the courts agency with a meaningful oversight mecha­ the percentage of case paid by ALJ's from for pending and future cases. Cases present­ nism to ensure that adjudicators are following 1976 until 1984 when the Disability Reform ing the same issue and similar facts are decid­ the policies of the agency which have been Act was enacted. ed differently depending on where the claim­ promulgated through rule making. Third. A claimant must file for reconsider­ ant happens to reside. It is important to note Second. The appeals process should be de­ ation within 60 days of the initial denial. Re­ that funds have never been budgeted to signed to allow deserving cases at the earliest consideration has become a rubber stamp of handle the enormously increased workload possible step. the initial determination because it is frequent­ created by class actions. Third, Because of the 12-month duration re­ ly based on essentially the same evidence Despite the utter chaos no resolution is in quirement and the 5-month waiting period re­ and must be done in many instances before it sight within the existing judicial appeals proc­ quirement contained in the statutory definition can be determined if the statutory duration re­ ess. Even though the class action phenome­ of disability, many cases present issues that quirement will be met. Also, for initial applica­ non has been extremely active for at least the cannot be correctly resolved at the time the tion cases, it is just another paper review and past 5 years, very few cases have been ulti­ initial determination is made. relevant evidence that can only be elicited at mately decided by the Supreme Court. I am Fourth. No step in the appeals process a face-to-face hearing cannot be considered. aware of three: Campbell, Ringer, and Day, all should duplicate another. Each step should Fourth. In addition to the essentially duplica­ of which have been decided in favor of SSA. have a separate and distinct function. tive nature of the initial and reconsideration In view-of this, it is difficult to understand the Fifth. As the appeals process progresses, levels for initial application cases, there is also Department of Justice's reluctance to quickly the issues should be more narrow, albeit more an evidentiary hearing at both the reconsider­ and aggressively appeal these class actions. complex. The issues should relate less to ation and ALJ levels for continuing disability Nevertheless, the fact remains that SSA is questions of fact and more to questions of in­ review cases. SSA's Appeals Council upholds complying with all of the court orders and thus terpretation of law and regulations. The proc­ the ALJ decision 90 percent of the time and applying different evaluation standards for dif­ ess should replicate a pyramid; that is, start its standard for review is essentially the same ferent regions of the country. It is interesting with a large base of initial claims and proceed as the one for judicial review. to note that HHS has changed its policy on upward with progressively fewer cases at Fifth. The initial, reconsideration and ALJ nonacquiescence. Under the new policy SSA each level of appeal. levels each independently evaluate the evi­ examined more than 800 circuit court deci­ Sixth. The issues for judicial review should dence and determine the facts in the case. sions to identify cases where circuit law was essentially be confined to questions of law This is essentially nothing more than having in conflict with SSA policy or regulations. In and agency practice. the same question decided by three different those instances, SSA would publish a ruling of e This "bullet" symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor. Matter set in this typeface indicates words inserted or appended, rather than spoken, by a Member of the House on the floor. 8220 EXTENSIONS OF REMARKS April 21, 1986 acquiescence. The circuit law will be followed after notice to the claimant, by SSA's Appeals Second. Change the function of the AW except in a rare case that is chosen as a vehi­ Council. Thus, throughout the first three steps level to that of deciding first, did the claimant cle for litigation. The problem with this is that of the process, the agency can second guess have a full opportunity to present his claim? SSA cannot initiate judicial review. SSA has decisionmakers who are operating under duly Second, was the record adequate for a proper not been able to identify any major disability delegated authority. Of course, there must be decision? and third, did the hearing officer cor- evaluation policy that significantly varies from oversight authority for the agency to ensure rectly apply the statute and regulations to the circuit court law. The situation is so confusing that its regulations are being correctly applied facts presented by the case? Deference will that even though SSA apparently is desperate but this is a cumbersome way of achieving be given to the judgment of the hearing officer to acquiesce, it is not able to find anything in that purpose.