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May 9, 2002

Honorable E. Clay Shaw, Jr.
Chairman
Subcommittee on Social Security
Committee on Ways and Means
U.S. House of Representatives
Washington, D.C. 20515

Re:	Subcommittee Hearing on "Challenges Facing the New Commissioner of Social Security" Scheduled for May 2, 2002

Dear Mr. Chairman:

On behalf of the American Bar Association ("ABA") and its more than 400,000 members nationwide, I write to express our initial concerns regarding several informal proposals that would reform the process of determining disability under the Social Security Act. We understand that various proposals are being discussed, and the ABA likely will submit final comments on these proposals if and when specific legislation or regulations are prepared. In the meantime, we are particularly concerned about a proposal to transfer hearings before administrative law judges of the Social Security Administration ("SSA") to state agencies. It is our understanding that this and other related issues were discussed at your subcommittee's May 2, 2002, hearing on "Challenges Facing the New Commissioner of Social Security Jo Anne B. Barnhart." I ask that this letter be included in the record of the May 2, 2002, hearing.

We are concerned that transferring the SSA hearing process to the state agencies would effectively eliminate the right of claimants to present a full case before a qualified administrative law judge who has been selected by the Office of Personnel Management under the Administrative Procedure Act ("APA"). The ABA has long opposed any attempt to deny Social Security claimants the right to a full due process hearing under the APA before an administrative law judge. The APA was adopted by Congress in 1946 to ensure that the American people were provided with hearings that are not prejudiced by undue agency influence. Any transfer of the SSA hearing process to the state agencies would deny a claimant his or her rights to a due process hearing, on the record, before an ALJ appointed under the APA. Further, federal ALJ's apply the law and published regulations on a uniform and national basis, and such a transfer would seriously undermine both the fairness and predictability of the claims process.

It has also come to our attention that the Social Security Administration may be considering changing the position of administrative law judge to the position of "hearing officer," and that the agency may have taken steps to budget for such a hearing officer position. The suggestion that the use of administrative law judges at SSA is a matter of beneficial convenience to the agency and not an established right held by each claimant is of grave concern to the American Bar Association.

One of the purposes of the APA is to establish the position of an independent administrative law judge selected on a merit basis and insulated from agency bias and pressure in performing their adjudicative functions. See Butz v. Economu, 458 U.S. 478, 513 (1978). Replacing administrative law judges in the Social Security Administration with hearing officers who do not have these same attributes will effectively deny claimants their rights to a due process hearing, and the ABA opposes any such change.

Thank you for considering our views on these important matters, and we look forward to providing additional comments on these and other issues if specific legislation is introduced. In the meantime, if you would like more information regarding the ABA's positions on these issues, please contact our senior legislative counsel for Social Security issues, Lillian Gaskin, at (202) 662-1768.

Sincerely,

Robert D. Evans

cc: Members of the Subcommittee on Social Security