20 CFR 404.927, 404.929-930, and 404.934(b)

SSR 77-4

Sections 205 and 1631 of the Social Security Act require the Social Security Administration to give a claimant an opportunity for an oral hearing when he alleges that his rights may be prejudiced by a decision that the Secretary has rendered.

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":

"* * * Where a party residing outside the United States at a place not readily accessible to the United States does not indicate that he wishes to appear in person or through a representative before an Administrative Law Judge, and there are no other parties to the hearing who wish to appear, the Administrative Law Judge may decide the case on the record. In any case where the decision is to be based on the record, the Administrative Law Judge shall make a record of the relevant written evidence, including applications, written statements, certificates, affidavits, reports, and other documents which were considered in connection with the initial determination and reconsideration, and whatever additional relevant and material evidence the party or parties may present in writing for consideration by the Administrative Law Judge. Such documents shall be considered as all of the evidence in the case."

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:

"(b) The Secretary is directed to make findings of fact, and decisions as to the rights of any individual applying for a payment under [title II]. Upon request by [an] individual . . . who makes a showing in writing that his . . . rights may be prejudiced by any decision the Secretary has rendered, [the Secretary] shall give such applicant . . . reasonable notice and opportunity for a hearing with respect to such decision, and if a hearing is held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse his findings of fact and such decision.

* * * * *

In the course of any hearing . . ., [the Secretary] may administer oaths and affirmations, examine witnesses, and receive evidence. Evidence may be received at any hearing before the Secretary even though inadmissible under rules of evidence applicable to court procedure.

* * * * *

(d) For the purpose of any hearing, . . . the Secretary shall have power to issue subpoenas requiring the attendance and testimony of witnesses . . . .

* * * * *

(g) Any individual, after any final decision of the Secretary made after a hearing to which he was party, . . . may obtain a review of such decision by a civil action . . . . As part of his answer [to such action] the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based . . . . The findings of the Secretary, as to any fact, if supported by substantial evidence, shall be conclusive . . . . The court . . . may, at any time, on good cause shown, order additional evidence to be taken before the Secretary, and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based." (Emphasis supplied.)

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,[1] 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.

"[R]ights and privileges are in issue and [when] the guiding hand of counsel is not present to advocate their existence, a duty devolves on the hearing examiner to scrupulously and conscientiously probe into, and inquire of, and explore for all the relevant facts surrounding the alleged right or privilege." Gold v. Secretary of H.E.W., 463 F.2d 38 (2d Cir., 1972) quoting Henning v. Gardner, 276 F.Supp. 622, 624-5 (N.D. Tex., 1967).

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.[2] 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.

[1] 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.

[2] 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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