The Association of Administrative Law Judges
At-A-Glance:
The Significance of Changes to the Position Description of ‘Administrative Law Judge’ in the Social Security Administration
Introduction
The long-standing 1994 Position Description (PD#66622)[1] of federal Administrative Law Judges serving in the Social Security Administration was changed without notice to the serving cadre of some 1,500 judges on November 26, 2013. The Office of Personnel Management endorsed fundamental changes to the Position Description, replacing “PD#66622” with “PD#2E089.” Amidst rising concern that the change in Position Descriptions is substantive, the following ‘at-a-glance’ allows the reader to quickly examine selected key sections of the former “PD 66622” and the new “PD 2E089.” At issue remains the question whether the changes are, in fact, substantive. That question will be addressed in a separate document. For purposes of this comparison, if the changes are substantive the question becomes, does this new PD 2E089 implicate the defined duties, responsibilities and protections embodied within the federal Administrative Procedure Act?[2]
Comparative PD Provisions At-A-Glance
1994 Position Description Section (“PD#66622”) / 2013 Position Description Section (“PD#2E089”) / Implications of the ChangeSignificant Changes are italicized and highlighted in bold in each excerpt, shown below:
I. Introduction
Administrative Law Judges within the Social Security Administration (SSA) Office of Disability Adjudication and Review (ODAR), are located throughout ten geographically dispersed SSA regions, encompassing the entire United States and Puerto Rico. Administrative Law Judge offices are established in approximately 142 offices throughout the nation. / I. ORGANIZATIONAL LOCATION OF POSITION
This position is located in a hearing office or hearing center under the Office of the Regional Chief Administrative Law Judge or the National Hearing Center, Office of the Chief Administrative Law Judge, Office of Disability Adjudication and Review (ODAR), Social Security Administration (SSA), which are located throughout ten geographically dispersed regions, encompassing the United States and Puerto Rico. / Discussion
While this is introductory language, these new additions echo the theme of the new position description, to-wit: Administrative Law Judges are now described as part of a top-down hierarchy “under” the “office of the Regional Chief.” The Administrative Procedure Act provides for judicial independence in decision-making. The general question is whether the ‘direction’ of other Administrative Law Judges, serving in AL-02 or AL-01 designations can serve to interfere with independence in decision-making by their direction to judges who serve in the AL-03 designation. The answer, of course, is dependent upon the nature of the ‘direction.’[3]
II. Functions
Under the direct delegation from the Commissioner of SSA, and in the manner prescribed by the Administrative Procedure Act, the Administrative Law Judge holds hearings and makes and issues decisions on appeals from determinations made in the course of administration of Titles II and XVI of the Social Security Act. The basic types of cases are: (a) appeals by disability benefits under Title II, (b) appeals under Title II involving entitlement of individuals to old age and survivor’s benefits, and (c) appeals by individuals involving eligibility for supplemental security income (Title XVI) based on being aged, blind or disabled and meeting the needs test regardless of the degree of difficulty or complexity of the issues.
Administrative Law Judge decisions are final decisions of the Commissioner unless subsequently reviewed as provided in the regulations. They either affirm, modify, or reverse any previous determinations and are issued and forwarded directly to the parties in the Administrative Law Judge’s own name. / II. FUNCTIONS
Under a direct delegation from the Commissioner of Social Security, and pursuant to agency regulations implementing the Social Security Act, as amended (Act), the incumbent has authority to hold hearings and make and issue decisions on appeals from determinations made in the course of administration of titles II, VIII, and XVI of the Act in conformity with the Administrative Procedure Act. The types of case heard include: (1) appeals involving old age, survivors, and disability benefits under title II of the Act; (2) appeals involving special veteran’s benefits under title VIII of the Act; and (3) appeals involving supplemental security income under title XVI of the Act. The incumbent may handle any of these types of cases, regardless of the degree of difficulty or complexity of the issues. / Discussion
The significant variance between the 1994 PD and the 2013 PD is the subtle but important change in the reference to the Administrative Procedure Act (“APA”). By replacing the original language – “in the manner prescribed by the Administrative Procedure Act” with “in conformity with the Administrative Procedure Act” it would appear that a mandatory reference has become a permissive reference. Of related import, is the deletion of the language in the original PD referencing outcomes under the APA:
(“Administrative Law Judge decisions are final decisions of the Commissioner unless subsequently reviewed as provided in the regulations.”)
The absence of this language is troubling, as the APA specifically provides that an Administrative Law Judge shall preside over a hearing in the absence of the head of the Agency and the ability to issue a “final” decision is a direct result of this delegation.[4] In this regard the new PD deletes the specific reference to the delegation of the Commissioner’s authority under the APA to Administrative Law Judges.[5]
Overview: These subtle changes in both the reference to the APA, and the significant deletions noted above, potentially signal a fundamental ‘sea change,’ to the effect that the Agency may be raising the fundamental question, whether Social Security hearings are governed by the APA. In view of the changes noted, and the language substituted (“Under a direct delegation from the Commissioner of Social Security, and pursuant to agency regulations implementing the Social Security Act, as amended (Act)”) it would not be surprising if there were a subsequent legislative effort to make just such a finding. The substitution of the “Social Security Act” for the “Administrative Procedure Act” would seem to clearly indicate such a move. In this regard, it should be noted that the phrasing of the new reference to the APA is reminiscent of the language in Richardson v. Perales wherein the court essentially ‘ducked’ the question of APA applicability, pointing out that the APA was modeled after the Social Security Act.[6]
III. Duties and Responsibilities
Subsection A.
Under the provisions of Title II and XVI of the Social Security Act and applicable Federal, State, and foreign laws, and in conformity with the Administrative Procedure Act, and with full and complete individual independence of action and decision, and without review, the Administrative Law Judge has full responsibility and authority to hold hearings and issue decisions as stated under the above Titles and (1) dismiss or allow requests for hearings and rule on requests for extensions ; (2) identify problems and issues to be resolved; (3) analyze all previously developed evidence and appraise previous licensing, regulatory, and adjudicative processes by the administrative agency; (4) determine whether there are other parties with adverse interest to be joined in the case; (5) issue subpoena and rule on petitions to revoke subpoenas; (6) correlate and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold prehearing conferences with the appellant and/or his counsel and the government representative; (9) make all evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with a material point or issue; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the entire course of the proceedings; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) appraise the credibility of witnesses, and resolve conflicts in law and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimants or government representative; (17) make findings of fact on each issue, giving the reasons therefore and render conclusions of law as sole Trier of fact and law; (18) fully consider all the evidence of record and issue decisions within the requirements of the Administrative Procedure Act which decisions are completely independent and final, signed only by him, and published to parties in interest without prior review; and (19) entertain petitions for attorneys representative fees and issue orders designating the amount of fee permitted.
Subsection B.
The Administrative Law Judge may also take other action not inconsistent with the Administrative Procedure Act, perfecting a record or presiding at hearings and issuing decisions in matters remanded by the Federal courts.
Subsection C.
The incumbent may be assigned to act as Hearing Office Chief Administrative Law Judge of a hearing office under the direction of the Deputy Commissioner, Chief Administrative Law Judge and Regional Chief Administrative Law Judge. As such, the incumbent would be responsible for the management of the hearing office to which assigned, as well as holding hearings and making and issuing decisions on appeals pursuant to the Act, as amended. Such assignment, however, would be accomplished only with the approval of the incumbent and would be subject to the duties, responsibilities and authorities set forth in the amendment for the Hearing Office Chief Administrative Law Judge. / III. DUTIES AND RESPONSIBILITIES
Under the direction and supervision of the Hearing Office Chief Administrative Law Judge or the Hearing Center Chief Administrative Law Judge, the incumbent holds hearings and makes and issues decisions on appeals from determinations on claims filed under titles II, VIII, and XVI of the Act. Specific duties and responsibilities include but are not limited to:
Subsection A.
Investigating the facts of each claim and developing the arguments both for and against granting benefits. Generally, the incumbent holds non-adversarial hearings on the record, and issues decisions based on all the evidence presented. The incumbent derives authority from the Commissioner of Social Security and has, under section 205(b) of the Act, the authority to find facts and to conduct hearings in accordance with the agency’s regulations, rulings, policy statements, and other interpretations of the law. Under agency regulations that implement titles II, VIII, and XVI of the Act, the incumbent holds hearings and issues timely and legally sufficient decisions and may: (1) dismiss a request for hearing and rule on a request for an extension of time; (2) identify issues to be resolved; (3) analyze the evidence; (4) determine whether there are other parties to be joined in the case; (5) issue subpoenas and rule on petitions to revoke subpoenas; (6) consider and resolve conflicting evidence; (7) hear testimony and rule on all motions, petitions, or exceptions involving questions of law, procedure, and the admissibility of evidence; (8) hold pre-hearing conferences with the claimant, representative, or both; (9) make the evidence of record available to the parties and inform them of any evidence or expert testimony required in connection with the hearing; (10) administer oaths and affirmations; (11) govern the conduct of the parties at the hearing, and in general regulate the course of the hearing; (12) control the examination and cross-examination of witnesses; (13) introduce into the record documentary and other evidence deemed necessary for the completion or full development of the record; (14) hear oral argument, and receive and consider briefs that are submitted; (15) evaluate the credibility of witnesses, and resolve conflicts in lay and expert evidence; (16) consider and dispose of proposed findings of fact and conclusions of law submitted by the claimant; (17) make findings of fact in accordance with the Act, the agency’s regulations, rulings, and policy on each issue, giving reasons therefore, and render conclusions of law; (18) fully consider all the evidence of record, and issue timely and legally sufficient decisions within the requirements of the Act, which decisions are final, and which are individually signed or individually approved by the incumbent prior to issuances; and (19) entertain petitions for representative fees and issue orders designating the amount of fee authorized.
Subsection B.
Taking other action not inconsistent with the Act, the Commissioner’s regulations, rulings, and other policies, such as issuing decisions in matters remanded by the Federal courts in accordance with the Appeals Council’s instructions.
Subsection C.
In the absence of the Hearing Office Chief Administrative Law Judge or Hearing Center Chief Administrative Law Judge, may be assigned to act as the Hearing Office Chief Administrative Law Judge of a hearing office or Hearing Center Chief Administrative Law Judge of a hearing center under the general direction and supervision of the Regional Chief Administrative Law Judge or Associate Chief Administration Law Judge for the National Hearing Center, Deputy Chief Administrative Law Judge, Chief Administrative Law Judge, and the Deputy Commissioner for Disability Adjudication and Review. As such, the incumbent would be responsible for the management of the hearing office or hearing center, and would also be responsible for holding hearings and making and issuing decisions on hearing requests made pursuant to the Act. Assignment as a Hearing Office Chief Administrative Law Judge or a Hearing Center Chief Administrative Law Judge is subject to the duties, responsibilities, and authorities set forth in the addendum for the Hearing Office Chief Administrative Law Judge and Hearing Center Chief Administrative Law Judge. / Discussion
Notable in Section (III), as above is the removal of references to the Administrative Procedure Act (APA). Instead of contemplated action “not inconsistent with the Administrative Procedure Act,” action is contemplated as “not inconsistent with Commissioner’s regulations, ruling and other policies…” The overt language that is now included describes hearing as conducted not under the APA but under “the agency’s regulations, rulings, policy statements, and other interpretations of the law.” The question again arises whether these carefully crafted redactions of the former references to the Administrative Procedure Act signal an impending change in status?