Full opinion text
MEMORANDUM OPINION GLEN M. WILLIAMS, District Judge. This complaint was filed on November 12, 1982 by seven applicants for Social Security benefits, seeking injunctive and declaratory relief and challenging a proposed experiment whereby a government advocate appeared at their Social Security and Supplemental Security Income (SSI) disability hearings. The challenged program began operations October 12, 1982 and was considered a demonstration project under the supervision of the Office of Hearings and Appeals (OHA) called SSA Representation Project (SSARP). The court notes initially that it is contended by the plaintiffs in this case that this is an experimental program of the Social Security Administration (SSA); whereas, the Department of Health and Human Services (HHS) in the various memoranda regarding this matter refer to it as “Adjudicatory Improvement Project” (AIP), indicating that there is a difference between an experiment and a project. Initially this program was to be conducted in the SSA’s Offices of Hearings and Appeals (OHA) in Kingsport, Tennessee; Baltimore, Maryland; Columbia, South Carolina; Brentwood, Missouri; and Pasadena, California. However, for reasons which are not necessary to go into at this time, the Brentwood, Missouri Program has been discontinued. The Kings-port, Tennessee OHA serves the Southwest Virginia area and appeals from many of the decisions from the Kingsport office are therefore filed in this court. Thus, in the early stages of this program, this court was invited to attend a seminar-type hearing at which the program was explained for the edification of lawyers, the public and the court. This court was not able to attend in person but United States Magistrate Roy V. Wolfe, Jr. did attend this hearing as a representative of the court and informed the court of the general nature of the proceedings. As the exhibits in this case reveal, this program was to last for one year. Since this suit was instituted on November 12, 1982, exactly one month after the program came into being, and since the original suit papers moved for a preliminary injunction, an immediate hearing was scheduled by the court. On March 16, 1983, twenty-one additional plaintiffs filed a complaint concerning this same matter, requesting leave to intervene in this case and alleging that they were parties who had hearings either scheduled or completed before the Kingsport, Tennessee OHA and had been adversely affected by the program. These plaintiffs were permitted to intervene by an Order dated March 28, 1983 and Margaret Heckler, the new Secretary of HHS, was named as the party defendant. On March 28,1983, the court conducted a hearing on the motion for preliminary injunction, heard argument of counsel and evidence was presented in support of the respective positions of the parties. The court expressed the opinion at that time that since the program was for one year only and that the evidence needed to be further developed, the parties should proceed with discovery and an ample opportunity should be given to see how the program was working before the court arrived at any decision. Defendant filed a motion to dismiss and the plaintiffs renewed their motion for permanent injunction and for summary judgment. On October 4, 1983, approaching the end of the year’s experimental program the court entered an Order denying defendant’s motion to dismiss and overruling the plaintiffs’ motion for summary judgment and directing the defendant to file with the court certain statistical data from the Kingsport, Tennessee OHA and other reports pertaining to the effect of the program and the case was continued. In the meantime, the plaintiffs instituted a discovery process which is now a part of the record. Also many documents have been submitted on behalf of the defendant. This court has continued to monitor this program through cases which have come before this court, through various documents which have come into the hands of this court from various sources, and in particular, from documents which have been obtained from the Kingsport, Tennessee OHA. Among the early documents filed by the defendant in this case is a report dated September 28, 1983 filed by Joy Loving. Ms. Loving is identified as the Acting Director of the SSARP. Joy Loving is described further as a person who reports to AU Edward Steinman, Director of the Office of Field Administration, OHA. The Chief AU of OHA is Phillip P. Brown. The report of Joy Loving dated September 28, 1983 is directed to Louis B. Hayes, Associate Commissioner, OHA, and the subject of the report is “Status of SSA Representation Project — Decision.” In this document, Loving summarizes as follows: I do not believe we yet have sufficient data to accurately assess the effects of the project. Of special significance is that a number of events and circumstances have occurred during the project’s initial implementation period which have significantly affected HO performance. These include: the increases in receipts of requests for hearings and in the proportion of project and non-project cases in which the issue is continuing disability; installation of the Wang equipment; staffing problems in part the result of the hiring of decision writers from the participating HO’s as SSAR’s and the publication of numerous Social Security rulings, to establish a single set of adjudicatory standards for SSA decision makers ... rulings which the SSAR’s have been using extensively in stating the SSA’s position in SSARP hearings. The report goes on to state that the data is so inconclusive that it cannot show any effect of the SSARP one way or the other. The report takes note of the fact that this particular lawsuit challenging the project is pending and discusses various options as to what should happen at the end of the one-year period of the project. The report considers the pros and cons of three options: (1) discontinuing the SSARP; (2) continuing the SSARP for one year; and (3) continuing the SSARP and expand it to additional offices. In discussing the cons of these various options, Loving states as follows: “Since there have been significant difficulties with three of the five current SSARP OHAs, continuation alone might not yield wholly useful data.” Loving goes on to note that if options (1) or (2) are selected, they could get by without any Federal Register notice; but option (3) would require a Federal Register notice. In keeping with a well-known dogma in the current world of bureaucratic operations, that a bureaucracy feeds upon itself, it is not surprising that Loving recommended option (3) That is, that the program be continued beyond its original year and that it be expanded to additional offices. On December 18,1984, this court permitted nine more plaintiffs to intervene in this suit. In the meantime, various parties who had been permitted to intervene as plaintiffs had arrived at a position where their cases were pending before this court and were being delayed pending the outcome of this case. Therefore, this court opted to allow various plaintiffs to have their cases heard individually on the merits and permitted them to withdraw from this action. Many of the plaintiffs took advantage of this procedure. At that point in time, the court was still under the impression that this was a one-year program and that once the plaintiffs’ cases had been disposed of on their merits, and particularly assuming a favorable decision had been arrived at, the case would become moot. However, as we shall see, the program has fed upon itself and is now embarked upon a period of expansion. Therefore, the time has come when it is necessary for the court to consider this case on its merits. Before going into the operation of SSARP, it is necessary to review the administrative procedures involving Social Security and the role of SSARP in the overall administrative procedure as it exists today. JURISDICTION The original plaintiffs and all intervening plaintiffs contend that this court has jurisdiction under § 205(g) of the Act, 42 U.S.C. § 405(g). The defendant Secretary of HHS conversely contends that this court lacks jurisdiction because none of the original plaintiffs nor intervening plaintiffs exhausted their administrative remedies before filing this action or intervening therein. This contention was also advanced in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (Brennan, J. dissenting), the controlling Supreme Court decision in procedural due process cases involving exhaustion of administrative remedies as a jurisdictional prerequisite to district court appellate review. While it is all but axiomatic that in the usual case of appellate review of decisions of administrative agencies that exhaustion of administrative remedies is an essential prerequisite to appellate review, the Eldridge majority carved out an exhaustion exception in the following calculus: Implicit ... is the principle that this condition [exhaustion of administrative remedies] consists of two elements, only one of which is purely ‘jurisdictional’ in the sense that it cannot be ‘waived’ by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary. Absent such a claim there can be no ‘decision’ of any type. And some decision by the Secretary is clearly required by the statute. Id. at 328, 96 S.Ct. at 899 (emphasis added). The Eldridge Court further concluded: That this second requirement is an essential and distinct precondition for § 405(g) jurisdiction ... Eldridge [as have the original plaintiffs and intervening plaintiffs] has fulfilled this crucial prerequisite. Id. at 329, 96 S.Ct. at 900. Continuing, the Eldridge majority said: Eldridge [as do the plaintiffs herein] concedes that he did not exhaust the full set of internal-review procedures provided by the Secretary____ [But the Court] ... recognized, the Secretary may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief that is sought is beyond his power to confer____ the power to determine when finality has occurred ordinarily rests with the Secretary since ultimate responsibility for the integrity of the administrative program is his. But cases may arise where a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate. Id. at 330, 96 S.Ct. at 900 (emphasis added). As the Court observed in Eldridge, “This is such a case,” we hold that this also is a case in which deference to the agency’s judgment is inappropriate. As in Eldridge, the constitutional challenge of the original plaintiffs and the intervening plaintiffs is entirely collateral to his (their) substantive claim(s) of entitlement. Without exception each of the plaintiffs has raised a colorable constitutional claim that because of their physical condition or dependency upon disability benefits, an erroneous determination brought about or contributed to by the SSARP would deprive him of due process, and would damage him in a way not recompensable through retroactive payments. See, Id. at 331, 96 S.Ct. at 900. The court, therefore, holds that it does have 405(g) jurisdiction in this case. Cf. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (where the Court held that a pretermination evidentiary hearing is necessary to provide a welfare recipient with procedural due process; the Eldridge Court differentiated Goldberg primarily on the basis of the dire economic circumstances of a welfare recipient as contrasted to those of a social security disability insurance benefits recipient); and Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) (where the Court held that 42 U.S.C. § 405(h) requires exhaustion of administrative remedies before seeking district court appellate review in a social security § 405(g) appeal but found that the Secretary had waived the exhaustion requirement. The Eldridge Court distinguished claimant Salfi’s situation from that of claimant Eldridge and construed Salfi in the process). AN OVERVIEW OF THE ADMINISTRATIVE PROCESSES AND COURT PROCEEDINGS AVAILABLE TO PLAINTIFFS SEEKING SOCIAL SECURITY BENEFITS Because almost every wage earner and self-employed person in the United States are required by law to pay into the Social Security system, these citizens have every right to expect that, when the time comes for them to be recipients of the Social Security fund, they will be treated fairly by those administering the program. Therefore, the administrative processes in the SSA should be the fairest in any of the various administrative procedures of government. It should be simple, efficient, streamlined and speedy within due process limitations. In actuality, the administrative procedures for obtaining Social Security are the most cumbersome, unfair, contradictory, inefficient to be found in all the various government agencies in all the bureaucracy. Every person who applies for disability Social Security benefits should be considered to be an honest citizen until shown to the contrary. Instead, the process appears to infer that the applicant is viewed with suspicion and the burden is on him or her to prove to the contrary. The administrative processes which are conducted in Social Security cases should be designed to seek out the truth; instead, the hearing processes from the time a person applies for disability Social Security benefits through the Appeals Council procedures are geared to deny claims rather than pursue truth wherever it leads. If it is true in the criminal process that it is better for several guilty people to go free than that one innocent be put behind bars, it seems better for a few people to obtain disability Social Security benefits who may not be entitled to them or who may be borderline cases than that deserving disabled people be stripped of benefits or denied benefits because of cumbersome bureaucratic proceedings. This court has no doubt that in every city and hamlet that there are people on the street who are drawing disability Social Security benefits and are as able to work as anyone. On the other hand, it is just as easy to look to the other side of the street and see an individual near death, from common observation, completely unable to perform any kind of function and yet, his or her claim has been pending four or five years or more, or been completely and finally denied. Of course, perfect justice is elusive, but something is wrong in this society where this particular process is so lengthy, the procedures so cumbersome, and the rules and regulations so subject to change. There are four essential steps in the Social Security claims procedure before a case is brought to this court: (1) the initial stage; (2) reconsideration; (3) hearing; and (4) Appeals Council review. Since the procedure is practically identical, the court will discuss the initial stage and reconsideration under the same heading. A. INITIAL STAGE AND RECONSIDERATION When a person files a Social Security claim involving disability, it is first filed in the SSA District Office and is then forwarded from the District Office to the state Disability Determination Service (DDS). The DDS of each individual state therefore makes the initial determination of whether or not a person is disabled. In 1981, the average denial at the first stage of state review was 60%. The percentage of allowances on initial claims varied from 41.5% in Rhode Island to 19.3% in Puerto Rico. Neither at the initial stage nor at the reconsideration stage is the individual ever seen by any of the persons who make the decision in the DDS. When a person is denied benefits at the initial stage, he has a right to ask for reconsideration within sixty days. This simply means that the DDS reexamines the file by placing it in the hands of a new adjudicator who is not familiar with the case. Usually, no additional evidence is acquired at this point and the decision is made solely upon the application and medical records in the file. Under the most recent statistics, the reconsideration affirms 87% of the initial denials. The SSA’s ALJs use the Act, as amended, and the Federal Regulations promulgated by the SSA to determine disability and these same standards are also used by the Appeals Council and by United States District Courts and Courts of Appeals. In contrast, the states do not use either the statute or the regulations. They use a manual provided by SSA named Social Security Program Operation Manual System (POMS). The POMS completely ignores federal court decisions interpreting the Act and in many instances are in direct conflict with the Social Security statutes and regulations. Some of the examples of the differences between the POMS and other regulations are: (1) The POMS does not have any guidelines for pain so that pain is simply ignored by state disability analysts, even though the decisions by the courts are in complete unanimity that pain within itself may be a disabling condition. (2) The SSA regulations have a specific definition of a non-severe impairment, while the POMS lists twenty examples of conditions which are considered non-severe; therefore, the examples which are used by the states are arbitrary standards which do not have any standing in law and prevent each case from being decided on its own merits. These rules have been adopted without any opportunity for public comment and do not have any standing in law whatsoever. (3) The Social Security regulations and the POMS also have a different perspective concerning the determination of residual functional capacity. The POMS use their own medical criteria in deciding what a person can do despite his limitations and these cover only three impairment areas of an individual, musculoskeletal, cardiovascular and pulmonary. The POMS is therefore arbitrary in nature and gives no consideration to the possibility that two people may have different limitations based upon the same impairment. Furthermore, the state agencies do not even have the same classifications for work and do not give any consideration to the classification of sedentary work. (4) The POMS does not recognize alcoholism and drug addiction as being disabling in and of themselves, despite the fact that Social Security regulations recognize and define alcoholism and drug addiction. In other words, before one who has an alcoholic or drug condition can be found disabled by a state agency, he must have another impairment which constitutes a disability. (5) The POMS has a different standard for determining a rehabilitation exemption by allowing only persons who are not expected to improve to continue to receive benefits until their rehabilitation process has been completed. Furthermore, the POMS has a time in which recovery is expected in a rehabilitation program and one does not receive disability under the POMS once this period of time has been reached regardless of the condition of the person. (6) The POMS provide an entirely different standard with regard to consultative medical examinations. The state agency gives far more weight to its own consultative examinations than it does to the evidence which is in the claimant’s file. Court decisions require that great weight be given to the existing medical evidence and in particular, the reports of treating physicians. The state agency regards its own consultative examinations as conclusive and is inclined to completely ignore the data which is presented by the claimant. Even if there is sufficient medical evidence already in the file to make a determination of the person’s disability, the POMS requires a mandatory consultative examination before Social Security benefits are granted; therefore at this early stage, conflicting medical reports enter the claimant’s file, which hamper or prevent obtaining medical benefits. B. THE HEARING BEFORE AN ADMINISTRATIVE LAW JUDGE The first face-to-face meeting that an applicant for Social Security disability benefits has after application is with an AU. There are approximately eight hundred AUs within the SSA which makes the SSA-AU corps more numerous than Article III judges. The total number of AUs for all agencies of government is authorized at approximately thirteen hundred and generally, the Social SSA’s corps makes up about 60% of all AUs. When the claimant appears before an AU, he or she will appear before a person not wearing a judicial robe, who is required by law to act with three hats, (1) a judge, (2) a representative of the government who cross examines the claimant, and, (3) an adviser to the claimant, required by regulation to fully develop the case to see that the claimant has a fair hearing regardless of whether the claimant is represented by counsel or otherwise. The proceeding is informal and a hearing assistant will be present to make a tape of the hearing. The AU always begins a hearing by explaining his or her impartiality and the fact that he or she is not paid by the SSA but by the Office of Personnel Management. The hearing by the administrative law judge is a de novo hearing, meaning that all previous decisions are not binding. Thus, AUs’ decisions are not reversals because the AU .looks at the matter from a fresh perspective and, for the first time, hears oral testimony and looks at a live person, rather than reviewing a stale record. The testimony is taken under oath. However, the AU has no contempt power nor very little other powers that ordinary judges possess. The burden of exploring all pertinent facts and issues rests with the AU and in many cases, the person is not represented by counsel nor by any other person. Under mandates of the SSA, not only is the hearing before the administrative law judge informal but it is non-adversarial in nature and the AU must develop the case record on behalf of the SSA and the claimant; informal rules of evidence apply and are much more lenient than in court proceedings. Thus, in seeking justice, an AU may accept into evidence an old scrap of paper by a long-deceased physician as long as it is germane to the claimant’s case. This is the only proceeding in which a claimant is heard and seen by anyone who even claims to be disinterested in his case until such time as his case may be taken to court. Sixty percent of the persons who were denied disability benefits at the reconsideration stage appealed their decisions to an AU and by 1980, the reversal rate had reached 60% overall and 65% in cases involving cessation of benefits for individuals once declared disabled by SSA. While an AU tells a claimant who appears before him that he is an independent person, charged with making an independent decision, and despite the fact that the history of the appointment of AUs and court decisions support the view that an AU is an entirely independent entity, the efforts to control the independence of judges in the last ten years by upper echelon bureaucrats is astounding. The job description of an AU and the fact that he or she is divorced from the SSA itself by being placed over in another agency and paid by another agency would tend to establish the independence of the AU. Furthermore, the Administrative Procedures Act (APA) guarantees the independence of AUs. The United States Supreme Court has made it clear that a hearing examiner’s findings and conclusions should be given weight independent of higher agency evaluation. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Nevertheless, in recent days, the United States Court of Appeals for the Fourth Circuit has held that Universal Camera does not apply to Social Security AUs. Thus, this court reviews the decision of the higher agency, in this case, the Appeals Council, rather than the AU. Kellough v. Heckler, 785 F.2d 1147 (4th Cir.1986); Gross v. Heckler, 785 F.2d 1163 (4th Cir.1986). Furthermore, in 1978, the United States Supreme Court supported the independence of all AUs throughout the bureaucracy by ruling that AUs within federal agencies are entitled to absolute immunity from damage liability. Butz v. Economu, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). In 1980, in Nash v. Califano, 613 F.2d 10 (2nd Cir., 1980), it was held that an AU with the SSA OHA had standing to sue upon the alleged invasion of his statutory right of decisional independence and the case was reversed and remanded to the United States District Court for the Western District of New York for trial on the merits. Despite these decisions, because of high AU reversal rates, both Congress and the Executive Branch of government have carried on a campaign to control the independence of AUs, in theory, to hold down the number of people who are placed on disability Social Security. To understand the thrust of the SSARP it is helpful to review the prior and continuing restraints on AUs. THE QUOTA SYSTEM In 1975, the Bureau of Hearings and Appeals, now the OHA, commenced procedures designed to increase the productivity of AUs. This was accomplished by offering incentives to those AUs who had high production by increasing their support staff, by treating them more favorably in transfers and by providing them trips to the National Judicial College at Las Vegas. On the other hand, productivity was pushed through threats of firing. In 1978, one of the issues in a law suit filed by five AUs against the SSA concerned threats of firing for low productivity. Bono et al v. Social Security Administration et al, No. 77-0819-CVW-4 (W.D.Mo.1979). This case was eventually settled, one of the terms being that OHA would not issue directives or memoranda setting any specific number of dispositions by AUs as quotas or goals. During hearings before a subcommittee on Social Security in 1979 before the House Committee on Ways and Means, the subcommittee staff concluded: The greater emphasis in all phases of the process has been placed on ‘moving the cases’ rather than rendering fair and sound decisions. Up to now, in BHA’s continuing struggle to achieve a balance between quantity and quality, the definite winner has been quantity. The Bono settlement and hearings by Congress however did not end the quota system. In 1982, the Director of Field Administration directed regional chief administrative law judges to take appropriate adverse action against under — achieving administrative law judges. At least one result of this was that four administrative law judges had low productivity charges leveled against them. One of these retired before going to a full hearing, while the other three eventually received exonerating decisions from the hearing board. In 1981, Louis Hayes, Associate Commissioner, told Congress that he had set a goal of forty-five dispositions per month for the administrative law judges. In 1982, in testifying before the Senate Subcommittee on Oversight of Government Management, administrative law judge Francis J. O’Byrne, Sr. testified as follows: Meeting the heavy and ever-increasing caseload has not been without cost. My decisional quality is not as good as it once was. I do not have time to polish decisions. Instead of striving for good to very good decisions, I have to settle for good enough. ... I cannot maintain this level of monthly decisions for any extended period of time. In order to close 166 cases through April 1982, I have come to the office early, have worked on Saturday, traveled to out of state hearing sites on my own time and worked a 70-hour week on a hearing trip to Wisconsin. Judges all over the country have been making this extra effort because we wish to accommodate claimants waiting for a hearing. The judges do not get paid for overtime or receive compensatory time. This AU was disposing of cases at the rate of 41 per month. It matters not whether one calls this “quotas” or “goals.” The net result is that according to Congressional findings and according to AUs and certainly from the viewpoint of this court, the increase of productivity has resulted in harm to the claimants. When one places a goal of numbers rather than the pursuit of truth and justice, then the emphasis is misplaced, particularly in Social Security hearings. The sole emphasis should be on a fair hearing. It is the observation of this court from reviewing opinions of 25 to 30 different AUs per year, that their biggest single failure has been in properly developing the case from the claimant’s standpoint. This duty is specifically charged to the AU and when he is threatened with production goals, he has an inclination to accept the cases as he finds them without obtaining additional reports. QUALITY CONTROL Beginning in 1975, or early 1976, a quality assurance program was instituted in three parts: (1) quality review system; (2) appellate appraisal system; and (3) regional chiefs peer review system. All three of these programs were aimed at picking out those AUs with a high reversal rate of state DDS denials. This program exists in one form or another right on down to the present day. It is basically a system whereby the higher authorities in the OHA continue to monitor the opinions of those judges who render decisions favorable to the claimants. This program operates under the presumption that if an AU is rendering too many decisions in favor of the claimants, he is more inclined to be wrong than those who are denying claims. Among other things that were done to the judges was to send them to school where they were given additional instruction in regulations. As part of the settlement in the Bono case, OHA promised to prepare a memorandum to the AUs describing the operation of the quality assurance program, including the quality review system and to issue a memorandum clarifying the status of the regional peer review and the hearing office manager program. Pursuant to the Bono settlement, the Acting Associate Commissioner for Hearings and Appeals issued a memorandum to the AUs emphasizing that the quality review system was not designed to assess individual AUs or the particular decisions rendered. If, however, there was ever intention to cease the review of those AUs who had a high reversal rate, it was short-lived. In the disability amendments of 1980, the Bellmon amendment (Section 304(g)) called for a pre-effectuation sample review of AU allowances over state denials. These were implemented and without going into details as to the review, the AUs with a high allowance rate were reviewed and if an AU had a proven decisional accuracy as determined by the Bellmon review, then he would be taken out of the review system. The Bellmon review was designed to provide data on the overall percentage of “defective cases” meaning those which had some sort of deficiency as determined by higher authorities. If the AUs did not meet the standards which were set out by the Bellmon review, they would be called in for counselling, or given additional training and were threatened that if improvement did not occur, that is, if the number of reversals did not decline, other steps would be considered. Beginning in October, 1981, 65 AUs who had the highest individual allowance rates received an own-motion recommendation by the Appeals Council. The AUs involved received a memorandum from the Chief AU informing them that they had been selected for review and in essence, was telling the AUs that their rate of reversal decisions was too high and that they would continue under review until this was corrected. If there ever was a chilling of judicial independence, this is it. This is like threatening a lawyer with disbarment if he takes a case of a controversial nature. This is the same as saying that every law judge in the country should be deciding a certain percentage of cases against the claimant. THE GRID SYSTEM This is a system whereby the Secretary has established tables known as the “grids” which outline major functional and vocational patterns in order to assess a claimant’s ability to work relative to that of an able-bodied person. It is applied in a sequential evaluation whereby the AU begins by determining if the individual is engaged in substantial gainful activity and if he or she is, they are not disabled. Next, there is a determination of whether a person has a severe impairment. Then whether he or she has an impairment which meets or equals a listed impairment in App. 1, Subpt. P, Pt. 4, 20 C.F.R. See 20 C.F.R. §§ 404.1520 and 416.920. If it is found that a person does not meet a listing, the question comes, whether or not the individual can return to his or her past relevant work. As this court has pointed out, the grids focus upon a mechanical non-human type of determination to place everyone in the same type of disability mold. It does not take into account that a problem which might handicap one person might not handicap another. This was another device arrived at by the SSA to decrease the number of reversals which were occurring from the AUs’ reversals of state DDS findings. This court has discussed the grids in detail in Phillips v. Harris, 488 F.Supp. 1161 (W.D.Va.1980). The United States Supreme Court has upheld the grid regulations, however, it found that the grids cannot be applied where there are both exertional and non-exertional impairments present in a claimant, but that a vocational expert should be called to address the issue of transferability of skills if pertinent to the case. Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). When the grids were implemented, the SSA thought that there would be a decrease in reversals by AUs. However, the statistics show that the effect has been just the opposite. The new regulations require findings of disability in many cases that would have previously been denied because the grids group individuals by age, education and work skills. This arbitrary grouping of classifications does not allow the AUs to consider the claimant as an individual, that is, a separate human being. This arbitrary grouping by classification of the grids requiring the AU to find disability was in direct conflict with the state judgment made under the POMS. Therefore, in 1980, reconsideration denial under the state POMS had grown to 82.2%, whereas, the AU allowance rate was increasing because of the use of the grids. The primary result of the grids was to increase the number of people over age 50 being entitled to an automatic finding of disabled. DOCTRINE OF NON-ACQUIESCENCE The Second Circuit stated in an opinion in 1980: The position of any administrative tribunal whose hearings, findings, conclusions and orders are subject to direct judicial review is much akin to that of the United States district court ... and as must a district court, an agency is bound to follow the law of the circuit. Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.1980); cert. denied 449 U.S. 975, 101 S.Ct. 386, 66 L.Ed.2d 237 (1980). This, of course, is simply a restatement of the historic and fundamental doctrine of Marbury v. Madison, 1 Cranch. 137, 2 L.Ed. 60 (1803). The lower federal court rulings are laws which an agency must follow. In one of many decisions in which federal courts of the United States have expressed concerns by the failure of the Appeals Council to follow decisions of the courts {stare decisis), the courts have chastized the Appeals Council for its actions. In Finnegan v. Mathews, 641 F.2d 1340 (9th Cir.1981), it was held that an SSI recipient could not have his benefits terminated unless there had been an improvement in the medical condition or the prior state determination had been clearly erroneous. The SSA reacted to this decision by non-acquiescence and openly stated that its own policy provided that the claimant could be taken from the disability rolls at any time that he was found not to meet the requirements, meaning that even if they had not changed, the SSA could change the ruling at any time. Likewise, in Patti v. Schweiker, 669 F.2d 582 (9th Cir.1982), a similar ruling was made by the Fifth Circuit and again, the SSA refused to acquiesce to the decision. In a memo dated May 23, 1984, the Deputy Commissioner of Programs and Policies, SSA, announced that the SSA was persisting in its policy of non-acquiescence to circuit and district court decisions. Recently, it has been publicly announced that the SSA is reviewing and is inclined to acquiesce, however, even to this date, AUs are in an untenable role and do not know what position to take. This court has interviewed many AUs from five or six different cities and all of them have expressed concern about orders which they receive to follow the policy of the administration rather than to acquiesce in court decisions, while other judges will openly state that they are attempting to follow court decisions and the rule of precedent in order to make an effort toward consistency in the application of law. All AUs with whom this court has spoken on the subject agree that each separate individual seeking benefits through federal court must file a suit simply because the Secretary of HHS refuses to administer precedent throughout the United States. AUs are also concerned by the selectivity of cases for appeal to the various circuit courts and to the United States Supreme Court in order to establish a definite precedent. Therefore, AUs are torn between two masters and cannot comfortably follow court precedent which has been properly indexed and formally reported in cases. If AUs would follow precedent, a reduction in their caseload would immediately occur. This court finds it necessary to remand many, many cases simply because AUs do not follow the precedent of the United States Court of Appeals for the Fourth Circuit. This makes it very difficult for this court. It appears that the purpose of the doctrine of non-acquiescence is to bar deserving claimants from receiving their Social Security benefits. This court recently had a case before it which was remanded in 1982 after having first come on the docket of this court in 1979. This case remained for four years in the administrative system below and the court was shocked at what had occurred while the case had been on remand. The court had remanded the case for reconsideration because of improper interpretation of the grids. Upon remand, the Appeals Council sent the case to an AU and when the AU made a favorable decision, the Appeals Council again reversed and sent it to another AU. Eventually, four separate AUs found in favor of the claimant and the Appeals Council reversed all four of them and then, did not return the case to court until the court ordered it to do so; after which, the court for the fifth time reversed the Appeals Council. In summary, seven years after this claimant came to court, a final decision was made by this court and the claimant is now receiving benefits. THE CESSATION PROBLEM In order to reduce the number of people on Social Security disability rolls, Congress required the Administration to begin a policy of reviewing all of the cases of the people drawing Social Security disability benefits or as many as possible with the idea in mind to cause cessation of benefits to people who had been receiving Social Security disability benefits. This policy created so much chaos by clogging the dockets of the AUs and the dockets of the courts and so much public dissatisfaction that Congress eventually ended this program and directed these cases all be remanded for reconsideration. At the present time, these cases have not come back to this court and the court is not in a position to comment on what the future holds in this regard. But, it illustrates another effort to reduce the number of people who receive Social Security disability benefits. C. THE APPEALS COUNCIL The last level of administrative review available to the claimant before taking his case to court is to request review of his case by the Appeals Council. The Appeals Council has a prerogative to initiate review proceedings on its own. Rarely, if ever, does one find the Appeals Council on its own motion, reviewing a case where the claimant has been denied benefits, however, it is fairly common, where an AU has granted benefits that the Appeals Council will take advantage of its prerogative of own motion review. The Appeals Council does not see the claimant but merely reviews the record. It can receive new evidence, however, it is the experience of this court, that if it does receive new evidence, it usually fails to comment on it or to give any reason why the new evidence is rejected or accepted. The Appeals Council denies 87% of the requests for review outright. As this court has heretofore noted, an Appeals Council decision which reverses an AU's favorable decision or adopts a recommended decision is considered the last decision of the Secretary and is therefore the decision which is subject to review by the courts. However, if the Appeals Council refuses to review or affirms an AU’s decision, the decision of the AU is the Secretary’s final decision subject to review by the courts. Also, as previously noted, this is the only type of administrative proceeding in which the AU actually hearing the case is not given the benefit of his findings of fact. This court is of the opinion that money expended for the Appeals Council and its staff is unnecessary expense. Why should the AU not be the final arbiter in the case? If he does his duty, he is supposed to express the government's viewpoint, develop all the evidence that can be obtained for the claimant or the government, and to conduct a fair and just hearing. If an appeal is to be granted, it should after hearing be taken directly to court because the AU is in the best position to judge the case having seen the claimant and being in an area where he is familiar with the doctors involved. In a time when efforts are being made to save money, the abolishment of the Appeals Council and one of the two stages of state DDS review is worthy of great consideration. SSA REPRESENTATION PROJECT (SSARP) Court Exhibit 1 is 20 C.F.R. Parts 404 and 416 entitled “Project to Improve the Hearing Process through the Involvement of SSA Representatives.” This was published in the Federal Register Volume 47, No. 181, on August 19, 1982. This is called a project the purpose of which is to determine whether SSA representatives in disability cases at the administrative hearing level can contribute toward improving the quality and timeliness of hearing dispositions. These representatives will be able to “sharpen factual issues” and “remove the burden of case record development from AUs.” The project is listed as having a duration of at least one year and is to be instituted in five offices. As a background for these rules, it is stated that there has been a “lack of decisional consistency within SSA’s several levels of disability adjudication and among SSA’s AUs.” It is further mentioned that there has been an unprecedented increase in the number of hearing requests resulting in “backlogs and delays for claimants awaiting hearings.” In other words, this should result in all of the AUs having about the same percentage of reversals, and to speed up the hearing process. It is emphasized that this is a limited test. The program further provides that the SSAR will have the power to “ask that the administrative law judge disqualify himself or herself” and that the SSAR has the power to “recommend that the administrative law judge issue a favorable decision without the need for a hearing.” The SSARs are to appear at the hearing if the other side is represented by counsel. The regulations further specifically state that: “After the hearing, the SSA representative will not participate in any proceedings before the Appeals Council although the Appeals Council may exercise its own authority to review any case on its own motion.” The regulations further provide that the SSARs will be employed directed by the OHA and they will be located in or near the OHAs. Thus, the SSARs are not independently employed but are under the direct control of the OHA. It is made clear that the SSARs’ prehearing case activities are “outside the purview of the AU who will not be assigned to the case until the SSA representative has completed his or her preparation for the hearing.” With regard to the relationship between the SSA representative and the Appeals Council, Section 6 provides that the SSARs shall be allowed “to bring cases to the attention of the Appeals Council for possible review on its own motion.” On the other hand, “nor will the SSA representative submit arguments, comment on new evidence or otherwise participate as a party in Appeals Council proceedings.” An evaluation of this program will be based on whether it has improved timeliness and quality of the disposition of cases. This sounds very much as though this is a continuation of the program of setting quotas and increasing the productivity of the AUs, where quality means fewer reversals. The regulations discuss at length the question of whether the intention is to make this an adversary process. It is clearly stated that it is not the intention that the SSAR would categorically advocate affirmation of DDS decisions and therefore it would remain to be seen whether the SSAR was actually an adversary. Therefore, it would not be subject to the Equal Access for Justice Act for the purpose of providing fees because it would not be presumed that the SSAR will not be “substantially justified.” Beginning the first of April, 1986, the AIP, instead of terminating, embarked upon a new plan which is designated in the following manner: a memorandum from Frank V. Smith, III, Executive Manager of the AIP, dated March 5, 1986, filed as Court Exhibit 2. An AIP statement is filed as Court Exhibit 3 and a memorandum from Peter H. Gilmore, Project Director, AIP, dated April 10, 1986, is filed as Court Exhibit 4. Court Exhibit 2 reflects that the new project got underway on April 1, 1986 and the restructuring was undertaken in accordance with the existing regulations at 20 C.F.R. 404.965 and 416.1465 which provide the project’s purposes and indicate that the project purposes will remain the same and the substantive procedure set forth in these regulations are not being modified. The most significant change in the restructuring of the SSARP is the separation of SSARP offices from the participating OHAs offices, both physically and organizationally. This also results in a revision of the case processing procedures for SSARP cases, makes the SSARP offices entirely independent of the AUs and OHAs, and greatly changes the manner in which a file is handled. This program expands the bureaucratic make-up of the project offices and since the offices are now divorced from the OHAs, this requires more administrative personnel and therefore more employees and upgrades the positions of some of these employees. Charts are provided to illustrate the make-up of these separate SSARP offices. Instead of going to the OHA in Kingsport, the claim file goes directly to the SSARP office and remains under its control until such time as the case is ready for hearing. Only then will the AU see the file and have anything to do with the case. The SSARP offices do all the prehearing screening, case docketing, control, selection of documents to be included in the hearing exhibit, preparation of the exhibit list, preparation and release of development requests, contact with the attorney if there is one, and contact with the claimant where there is no attorney and direct intervention on the part of an SSAR where the person is not represented, by communication with the claimant. Indeed, the AU who will eventually try the case will not know that he is assigned to the case until the case has been received in the OHA for hearing. The SSARP, now AIP, whose employees are employed and under the direct control of the OHA will have complete control of the file without the AU even seeing it until the time of the hearing. This again acts as a halter on the independence of the AUs in the handling of cases, and places the file not in the hand of an independent person but in the hands of an advocate of the government. Once the AU receives the file, assuming that he should decide that additional evidence is needed for development of the case, the SSAR again will be given the opportunity to review the file, including additional development prior to the case being scheduled for hearing. No such provision is made for the representative of the claimant. The SSAR, in addition to appearing, will submit written proposed findings of fact and conclusions of law to the AU after the case has been heard. Court exhibit 3 provides some background information as to why the project will be continued since it was only supposed to last one year after October, 12, 1982 and Court exhibit 4 is a more expanded procedural manual for the restructured offices. FINDINGS OF FACT (1) One of the stated purposes when the project began in October 1982, was to improve timeliness of hearings, and “result in a more expeditious process.” This court finds from the statistics which have been furnished from October 1982 through February 1986, from affidavits which have been submitted by attorneys, from evidence which has been presented by claimants, from personal interviews of AUs, and from other documents presented by the government that the exact reverse has occurred and the time for hearing dispositions has greatly increased. In some instances, the time for hearing a case is three times as long; there is a longer delay between the request for a hearing and the hearing: the number of cases disposed of by the AUs has decreased; more cases are being referred to the Appeals Council for own-motion reviews by the SSARs, many of which should not have been sent to the Appeals Council for own-motion review: which cumulatively has resulted in great harm to claimants by causing delay in their receipt of benefits. From an affidavit filed by Phillip T. Brown, Chief AU of the OHA, dated November 22, 1983, attaching certain statistics in accordance with a court order, the court finds the following: the number of claims closed by the Kingsport OHA from the period of January 1,1982 through October 30, 1982 was 1,589; whereas, the total from January 1, 1983 through October 30, 1983 was 1,570. In addition to this, there were more than one hundred more claims filed in 1983 through October 30, 1983 was 1,570. In addition to this, there were more than one hundred more claims filed in 1983 than during the same period in 1982. Furthermore, the number of hearings conducted declined. For the ten-month period in 1982, it was 1,346 whereas, for the same period of time in 1983, it was 1,242. During the period in 1982, there were no referrals to the Appeals Council for their own-motion review and for this ten-month period in 1983, there were 62 referrals. In other words, every one of these statistics shows that in the period before the SSARP went into effect, compared with the same period after the SSARP went into effect, the timeliness of the hearings and the expeditiousness of the hearings had declined. There are 26 OHAs in Region IV and on April 30, 1982, of the percentage of cases held over 180 days, the Kingsport OHA ranked number eight out of a possible twenty-six. By May, 1982, in this same category, the percentage of cases over 180 days old rose at Kingsport from 7.6% to 11% and Kingsport dropped to fourteenth in Region IV. By May 31, 1983, Kingsport was 25th out of the 27 OHAs in Region IV and on June 30, 1983, Kingsport was 22nd out of 25 OHAs of Region IV. On April 30, 1982, Kingsport ranked 13th out of 24 OHAs in the average processing time and on May 31, 1983, Kingsport was ranked 22nd out of 24 divisions in average processing time. In April, 1982, Kingsport was 7th out the 28 OHAs in average disposition per AU with a monthly disposition rate of 43 cases per AU, whereas, by May 1983, the Kingsport OHA was 17th with an average disposition rate of 41.2 cases per AU. If the statistics had dropped only in one category after the SSARP came into effect, it might be easily explained away, but under the circumstances, the statistics bear out what the witnesses have testified to in the case; i.e., that it takes much longer to conduct a hearing, much longer to get a decision, much longer to develop the case, and has resulted in delays in the case, rather than improving and making a more expeditious process. An affidavit of an attorney, J.D. Morefield, dated February 28, 1983, states that at that time, he had conducted eight hearings in which SSARs were involved; that no prehearing development had been done by them; that the procedure was strictly adversary; that no cases involved a recommendation of approval; that the hearings took over twice as long; that, as of the time of the affidavit, he had received no opinions from the AUs; that he appeared at a hearing on February 7 in which the claimant was very ill and the SSAR strenuously defended the case and the claimant died on February 9, 1983 without a decision; that on February 16, 1983, he represented a claimant who had been in the Southwestern State Hospital, a mental hospital at Marion, Virginia, for three to three and one-half years; that the SSAR strenuously defended the claim and the claimant was returned to Southwestern State Hospital and remained hospitalized as of the date that the attorney made the affidavit. (Plaintiff’s Exhibit F). In Appendix B attached to the affidavit of Chief AU Phillip T. Brown, the record shows that for the year preceding the commencement of the representative program, in all of Region IV, there were 67,744 cases with an average reversal rate of 56.1% and for the period from October 1982 through September 1983, the reversal rate had risen in the entire Region IV on a total of 75,233 cases to 57.72%. The court does not have the exact figures from the Kingsport OHA for this period of time, although an effort has been made to obtain the same; however, the court does have in Court Exhibit 5, the total figures from October, 1980 through February 1986 showing 5,729 total cases received and decision favorable to the claimant of 54.9%, however, this figure also shows an 8.5% dismissal rate and since dismissal are not considered in the cases in which a decision has to be made, because ordinarily, this would be upon recommendation of the SSAR, this again shows the drastic reduction in favorable decision from the Kingsport OHA, as compared to the Region as a whole. This court notes that the proposed new procedure, whereby the file would be sent to an SSAR instead of to the OHA, would cause additional delay because the claimant would be entitled to a de novo hearing at this stage of the proceeding and it should be assigned to an AU immediately so that he can pursue the claim. The April 28, 1983 report of Joy Loving, Director of SSARP, showed that cases awaiting decision in the Kingsport OHA was 212; that the regional average was 167; that in the Kingsport OHA, the number of untyped decisions was 127 and the regional average was 71. Miss Loving goes on to say in this report, which is one of the exhibits presented by the government in response to discovery, that she could not find any evidence that the backlogs are a result of the SSARP. (2) One of the goals of this program was that it was to create some uniformity of decisions. The results have shown that there is not uniformity even among the various offices participating in SSARP. In the May 1983 report directed to Louie B. Hayes, Associate Commissioner for OHA from Joy Loving, the record shows that the percentage of reversals of dispositions in the Baltimore office was 43%; Brentwood, 63%; Columbia, 36%; Kingsport, 49%; and Pasadena, 53%. Loving went on to state in this report, “I estimate that almost onefourth of the reversal decisions issued are the result of GR recommendations.” There was also a great deal of difference between decisions involving unrepresented claimants and those involving represented claimants. For example, the record from October 1982 through February 1986 discloses as between represented and unrepresented claimants in the Kingsport OHA that the unrepresented claimants totaled 1,286 of which there were 412 decisions favorable to the claimants and 454 unfavorable to them and 107 dismissals, showing that nearly 60% of the claimants without counsel lost their claims. On the other hand, according to the report of Loving in May of 1983, in four of the five participating SSARP OHAs, it appears that where an SSAR was involved and there was an adversary status, there was a higher reversal rate. Remarkably, in Pasadena, California, the represented claimants were only awarded benefits 48% of the time whereas, the unrepresented claimants were granted benefits 49% of the time. Thus, in Pasadena, the people who did not have counsel won more cases than those who did have counsel whereas, in the other participating OHAs, the opposite was true, and by a large percentage. One searches in vain among the statistics which have been furnished to find anything to show that there has been uniformity in arriving at decisions nationwide even among those OHAs participating in the SSARP much less compared to those who do not participate. (3) Has the quality of the hearing dispositions improved? The answer to this has to be a resounding no. It was pointed out in the regulations that the duty would be placed upon the SSARs to take away from the AUs the burden of developing the cases so that the AUs could devote their time toward making decisions and getting out opinions. The statistics which the court has been furnished up to this time show that there has been a remarkable decline in decisions, particularly in the Kingsport OHA, as compared to the period of time before October, 1982. Admittedly, these statistics are incomplete, but the court can only deal with the statistics that have been furnished. Furthermore, the attorneys who have filed affidavits in this case have remarked on the slowness of getting decisions. This court is in a good position, due to the number of appeals which come to it, to evaluate the decisions which have come out of the Kingsport OHA compared with those before the SSARP was commenced. This court has not kept statistics on the number of remands for improperly developed files, however, the court is concerned about the lack of proper development on the part of the SSARs. According to affidavits made by the attorneys in this case, the SSARs had done very little in developing the files. If the SSARs found that the claimant’s case was weak, they left it alone; but if the claimant’s case was strong, consultative examinations were sought. This court has issued one published opinion dealing with this problem, Darnell v. Bowen, 631 F.Supp. 96 (W.D.Va.1986). In the Darnell case, the court stated as follows: There is no contradictory evidence in the case sub judice, because the SSAR and the AU totally failed in their duty to fully and fairly develop the evidence by obtaining consultative physical and psychiatric examinations for the indigent SSI claimant, and in so doing, they defeated the intent of Congress in establishing the SSI program. The court went on to state: In short, the SSAR, instead of developing the evidence for hearing, in Darnell’s claim, totally failed in his duty so to do to the benefit of his client, the Secretary, and to the detriment of the indigent SSI claimant. Suc