The Social Security Administration has a backlog of a million disability cases to process, but the leadership of a Senate oversight subcommittee says the plan to reduce the backlog raises too many red flags about due process to move forward.

Sens. James Lankford (R-Okla.) and Heidi Heitkamp (D-N.D.), the chairman and ranking member of the Homeland Security and Governmental Affairs subcommittee on regulatory affairs and federal management, told SSA that its plan to supplement its bench of administrative law judges (ALJs) with administrative appeals judges (AAJs) would be a ripe target for a class-action lawsuit.

“When you take a classification of claimants, and you say, ‘These folks are going to get the ALJs, and these folks aren’t going to get the ALJs,’ you may have an equal protection problem,” Heitkamp said Thursday. “We’re not exaggerating the concern that we have for legal underpinnings. Sometimes, the fix that you create to a problem has unintended consequences.”

Part of the problem, said Theresa Gruber, SSA’s deputy commissioner for disability adjudication and review, is that the Office of Personnel Management hasn’t been screening applicants fast enough to fill its vacancies nationwide.

Given its current backlog, it takes SSA an average of 17 months to decide on disability cases. Gruber said the agency has acted swiftly to solve the problem.

“Given the urgency of the situation, we must take every reasonable step to reduce the amount of time people across the nation wait for a hearing decision,” she said.

SSA currently has 1,506 administrative law judges, and has a hiring goal of reaching a total of 1,900 judges to meet demand. Gruber said the agency hopes to meet this goal by hiring about 250 ALJs every year.

“We know, though, that progress on that front will not come fast enough to address the critical need to increase delusional capacity quickly. So ALJ hiring alone is not our only strategy.”

Rather, Gruber said SSA is looking at an “all hands on deck” approach that moves entire categories of cases from the jurisdiction of ALJs, and instead hands them over to attorney-examiners, also known as administrative appeals judges (AAJs).

Given the costs that go into SSA disability cases, Lankford told witnesses before the subcommittee that the agency’s rapid restructuring of the federal appeals process would violate provisions in the Administrative Protection Act.

“It’s not been done before, it will be challenged,” Lankford said. “To try and transfer a whole class of cases into a new area, rather than individuals, is a big shift. and there will be a lot of challenges.  At the end of the day, I don’t want us to end up with a longer backlog because we tried a novel theory that may or may not have worked.”

Marilyn Zahm, an administrative law judge with SSA’s New York Office of Disability Adjudication and Review, and president of the association of administrative law judges, told the subcommittee that the agency’s plan undermines the role impartiality plays in the appeals process.

“This plan eliminates valuable rights that have been granted to the American public,” Zahm said. “The [Code of Federal] Regulations guarantees the right to a hearing before an ALJ. What SSA plans to do is to remove categories of cases from ALJs, and have these cases heard by their own hand-picked people.”

Zahm said SSA’s initiative to supplement ALJs with AAJs doesn’t achieve the reduction in backlog that it hopes to achieve.

“Not only is this plan ill-advised, it will not make a dent in the backlog of pending cases,” she said. “More likely, a court challenge will necessitate a re-hearing of all of these cases by an ALJ. We adamantly opposed to this plan.”

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