20 CFR 404.927, 404.929-930, and 404.934(b)
A question has been raised as to whether the Social Security Administration (SSA) may provide a "hearing on the record" rather than an "oral" hearing for an inmate of a prison if no arrangement can be made for the inmate to receive an oral hearing outside the prison compound.
Regulations No. 4, section 404.934(b), provides, with respect to a hearing "on the record":
In contrast to a hearing "on the record," the oral "hearing" provided by Subpart J of the Regulations No. 4 has the following elements: the party has the opportunity to request that a subpoena be issued for the attendance and testimony of witnesses (§ 404.926); the hearing shall be open to the parties, the Administrative Law Judge (ALJ) shall inquire fully into the matters at issue, the ALJ shall receive in evidence the testimony of witnesses, the order in which evidence and allegations are presented and the procedure generally shall be of such nature as to afford the parties a reasonable opportunity for a fair hearing (§ 404.927); the ALJ shall allow the parties or their representatives to examine the witnesses (§ 404.929); the parties shall be allowed a reasonable time for the presentation of oral argument (§ 404.930); a complete record of the proceedings at the hearing shall be made (§ 404.931); any party to a hearing has the right to appear before the ALJ, personally or by representative, and present evidence and contentions. (§ 404.934).
Section 205 of the Act provides, in pertinent part:
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The foregoing provisions require SSA to give an opportunity for an oral hearing to any individual who alleges his rights may be prejudiced by a decision it has rendered on his social security claim.
From the language in the Act itself, it appears that Congress intended to include within the meaning of the term "hearing," specified procedures usually associated with oral hearings. Such procedures include issuance of subpoenas requiring attendance and testimony of witnesses, examination of witnesses under oath, use of informal rules of evidence, mandatory provision of transcripts of the hearing record, issuance of a decision based on evidence adduced at the hearing, and claimant participation as a "party" to the hearing. It is true that certain procedures, e.g., the issuance of subpoenas and examination of witnesses by an ALJ, are authorized but not required by section 205. The statute uses discretionary language with respect to these processes to enable the Secretary to limit their use when they are unnecessary, not to preclude their use altogether where they would assist in the resolution of factual and legal issues and ultimately contribute to the Secretary's findings. Thus, section 404.926 of Regulations No. 4, which concerns the issuance of subpoenas, provides that subpoenas may be issued "[w]hen reasonably necessary for the full presentation of a case." Further, while section 205 merely authorizes use of subpoenas and the Secretary's examination of witnesses, this option afforded the Secretary may not properly be construed to limit in any way the right of a claimant to appear before a hearing officer and testify or have others testify voluntarily on his behalf. The claimant's right to a de novo hearing, if he wishes one, is made clear by the reference in section 205(b) to the claimant's right to a decision based on evidence "adduced at the hearing."
Further, if in any case the above-described elements of an oral hearing presently required by Subpart J of SSA Regulations No. 4, were dispensed with by administrative fiat, it is unlikely, in the event of a judicial challenge, that the court would conclude that the Secretary's findings of fact were supported by "substantial evidence" under the standard for judicial review prescribed in section 205(g). The court likely would remand the case for consideration by the Secretary of oral evidence relevant to any disputed fact.
The provision in Regulations No. 4, section 404.934 for a hearing "on the record" for non-residents of the U.S. is at the option of the claimant, though the ALJ may direct an oral hearing even though a claimant would be satisfied with a hearing "on the record." Under the subject proposal, however, a prisoner would be required to receive a hearing "on the record" unless arrangement could be made for him to receive an oral hearing outside the prison compound. Without the availability to him of the procedures described above, which characterize only an oral hearing, a claimant would be severely handicapped in fully presenting the evidence in his case. A "hearing on the record" would also substantially diminish the capacity of the presiding officer to provide the claimant with guidance and assistance where necessary.
Several courts have required the hearing officer to assist the claimant in presenting his case, particularly where a claimant is unrepresented or does not have the necessary education or background to make an adequate presentation himself.
See, also, Hess v. Secretary of H.E.W., 497 F.2d 837 (3rd Cir., 1974); Arms v. Gardner, 353 F.2d 197 (6th Cir., 1965); Sellars v. Secretary of H.E.W., 458 F.2d 984 (8th Cir., 1972); Zeno v. Secretary of H.E.W., 331 F.Supp. 1095 (D. P.R., 1970).
Accordingly, it is held that section 205 of the Social Security Act requires SSA to give every claimant an opportunity for an oral hearing when he alleges in writing that a cognizable right may be prejudiced by a determination the Secretary has rendered. Conclusions pertaining to a title II hearing would be equally applicable to the hearing required by section 1631(c) of the Act. There is no indication in the language of section 1631 or its legislative history that Congress contemplated anything less than an oral hearing for the Supplemental Security Income Program. Further, the same basic considerations of fairness which would mandate affording a claimant an opportunity to make full evidentiary presentation of a title II or title XVIII claim, would likewise apply to a title XVI claim.
 Considerable case law exists to support the proposition that where an agency must determine adjudicative facts by means of a hearing, the agency must provide opportunity for an oral or trial type of hearing. These judicial decisions rest largely on interpretations of the meaning of the term "hearing" in statutes or on constitutional considerations of due process. See §§ 7.01, 7.02, and 7.04 of K. Davis, Administrative Law Treatise (1958 ed. and 1970 Supp.). Prof. Davis defines adjudicative facts as facts about "the parties and their activities, businesses, and properties."
1 K. Davis, Administrative Law Treatise 413 (1958).
The Social Security Administration, from the time of enactment of section 205, has interpreted that provision to require oral hearings. See, e.g., "Basic Provisions Adopted by The Social Security Board for the Hearing and Review of Old-Age and Survivors Insurance Claims," pp. 7-8 and particularly the last paragraph of p. 10 (January, 1940). See also §§ 403.706- 403.709 of Social Security Administration Regulations No. 3, as amended October 18, 1940; 5 F.R. 4169.
 See footnote 1 with respect to the interpretation of the word "hearing" in section 1631(c). The title XVI hearing and review procedures are now virtually identical to the title II procedures as a result of section 1 of P.L. 94-202. The House and Senate reports, in commenting on section 1, state that it would provide "the same rights to hearing and administrative and judicial review with respect to claims under title XVI (SSI) of the Act as . . . apply to title II (Social Security) and title XVIII (Medicare) claims under section 205(b) and 205(g) of the Act." S. Rep. No. 94-550, 94th Cong., 1st Sess. pps. 3-4; H.R. Rep. No. 94-679, 94th Cong., 1st Sess. p. 3.
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