[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE DISABILITY APPEALS PROCESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
of the
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
APRIL 24, 1997
__________
Serial 105-11
__________
Printed for the use of the Committee on Ways and Means
U.S. GOVERNMENT PRINTING OFFICE
43-586 CC WASHINGTON : 1998
______________________________________________________________________________
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON WAYS AND MEANS
BILL ARCHER, Texas, Chairman
PHILIP M. CRANE, Illinois CHARLES B. RANGEL, New York
BILL THOMAS, California FORTNEY PETE STARK, California
E. CLAY SHAW, Jr., Florida ROBERT T. MATSUI, California
NANCY L. JOHNSON, Connecticut BARBARA B. KENNELLY, Connecticut
JIM BUNNING, Kentucky WILLIAM J. COYNE, Pennsylvania
AMO HOUGHTON, New York SANDER M. LEVIN, Michigan
WALLY HERGER, California BENJAMIN L. CARDIN, Maryland
JIM McCRERY, Louisiana JIM McDERMOTT, Washington
DAVE CAMP, Michigan GERALD D. KLECZKA, Wisconsin
JIM RAMSTAD, Minnesota JOHN LEWIS, Georgia
JIM NUSSLE, Iowa RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas MICHAEL R. McNULTY, New York
JENNIFER DUNN, Washington WILLIAM J. JEFFERSON, Louisiana
MAC COLLINS, Georgia JOHN S. TANNER, Tennessee
ROB PORTMAN, Ohio XAVIER BECERRA, California
PHILIP S. ENGLISH, Pennsylvania KAREN L. THURMAN, Florida
JOHN ENSIGN, Nevada
JON CHRISTENSEN, Nebraska
WES WATKINS, Oklahoma
J.D. HAYWORTH, Arizona
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
A.L. Singleton, Chief of Staff
Janice Mays, Minority Chief Counsel
______
Subcommittee on Social Security
JIM BUNNING, Kentucky, Chairman
SAM JOHNSON, Texas BARBARA B. KENNELLY, Connecticut
MAC COLLINS, Georgia RICHARD E. NEAL, Massachusetts
ROB PORTMAN, Ohio SANDER M. LEVIN, Michigan
JON CHRISTENSEN, Nebraska JOHN S. TANNER, Tennessee
J.D. HAYWORTH, Arizona XAVIER BECERRA, California
JERRY WELLER, Illinois
KENNY HULSHOF, Missouri
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
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C O N T E N T S
__________
Page
Advisory of April 17, 1997, announcing the hearing............... 2
WITNESSES
Social Security Administration, Carolyn W. Colvin, Deputy
Commissioner, Programs and Policy; accompanied by Rita Geier,
Associate Commissioner, Hearings and Appeals, and Arthur Fried,
General Counsel................................................ 5
U.S. General Accounting Office, Jane L. Ross, Director, Income
Security Issues, Health, Education, and Human Services
Division; accompanied by Cynthia Bascetta, Assistant Director,
Income Security Issues, Health, Education, and Human Services
Division....................................................... 58
______
Association of Administrative Law Judges, Inc., Hon. Ronald G.
Bernoski....................................................... 80
National Association of Disability Examiners, Debi Gardiner, and
Tom Christopher................................................ 95
National Council of Disability Determination Directors, Douglas
W. Willman..................................................... 74
National Organization of Social Security Claimants'
Representatives, Nancy G. Shor................................. 107
National Treasury Employees Union, James A. Hill................. 98
SUBMISSIONS FOR THE RECORD
Allsup, Inc., Belleville, IL, James F. Allsup, statement......... 130
American Bar Association, John H. Pickering, statement........... 131
Fusco, Victor, Scheine, Fusco, Brandenstein & Rada, P.C.,
Woodbury, NY, letter........................................... 133
Mooney, Michael J., Mooney & Park, Cincinnati, OH, letter........ 143
Public Employees Federation, New York, NY, Larry Jacks, statement 146
OVERSIGHT OF THE DISABILITY APPEALS PROCESS
----------
THURSDAY, APRIL 24, 1997
House of Representatives,
Committee on Ways and Means,
Subcommittee on Social Security,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:04 a.m., in
room 1100, Longworth House Office Building, Hon. Jim Bunning
(Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY
FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON SOCIAL SECURITY
FOR IMMEDIATE RELEASE CONTACT: Ari Fleischer or
April 17, 1997 Scott Brenner (202) 225-8933
No. SS-3
Bunning Announces Hearing on
Oversight of the Disability Appeals Process
Congressman Jim Bunning (R-KY), Chairman, Subcommittee on Social
Security of the Committee on Ways and Means, today announced that the
Subcommittee will hold a hearing on oversight of the disability appeals
process. The hearing will take place on Thursday, April 24, 1997, in
the main Committee hearing room, 1100 Longworth House Office Building,
beginning at 9:00 a.m.
In view of the limited time available to hear witnesses, oral
testimony at this hearing will be from invited witnesses only. However,
any individual or organization not scheduled for an oral appearance may
submit a written statement for consideration by the Committee and for
inclusion in the printed record of the hearing.
BACKGROUND:
The Social Security Disability Insurance (DI) program provides cash
benefits to insured, severely disabled workers. Applications for
disability benefits are filed with one of the Social Security
Administration's (SSA's) more than 1,300 field offices. Applications,
along with supporting medical evidence, are then forwarded to State
disability determination services (DDSs), which make the initial
medical determination of disability according to SSA's policy and
procedures. Applicants who are dissatisfied with an initial
determination may request reconsideration by different staff at the
DDS. Applicants who disagree with a reconsideration denial have the
right to appeal the decision to the Office of Hearings and Appeals
(OHA), where cases are heard by administrative law judges (ALJs).
A steadily increasing number of appeals has caused workload
pressures and processing delays, particularly for OHA. In the decade
ending in 1995, the number of disability cases appealed to OHA had
increased by about 140 percent. Despite SSA's attempts to manage this
workload, between 1985 and 1995, its inventory of appealed cases
increased from about 107,000 to almost 548,000. The case inventory was
reduced to 511,000 at the end of 1996. However, some individuals who
appeal their disability claims report unsatisfactory public service
after waiting over a year for their appeal to be processed.
In addition, decisional inconsistency between DDSs and ALJs
continues to lower public confidence in the disability program. In
1996, approximately 75 percent of individuals who were denied benefits
by DDSs appealed their decisions to an ALJ. On average, ALJs are
reversing DDS decisions 67 percent of the time. Last year, Chairman
Bunning asked the General Accounting Office (GAO) to report on factors
that contribute to differences between DDS and ALJ decisions and what
actions SSA is taking to obtain greater consistency between the
decisions in initial and appealed cases.
Over the past few years, SSA has initiated both near-term and long-
term initiatives to improve public service. These initiatives include
the Short-Term Disability Plan (an initiative to reduce case
inventories at OHA) and SSA's Plan for a New Disability Claim Process,
referred to as the ``redesign plan,'' to address systemic problems
contributing to inefficiencies in the disability program.
FOCUS OF THE HEARING:
During the hearing, the Subcommittee will: (1) review the current
status of OHA workloads and their impact on service to the public; (2)
examine the effects of SSA's short- and long-term initiatives to
address those workloads, including what is working, what isn't working
and what else needs to be done; and (3) consider the findings of the
GAO regarding SSA's management of the timeliness and consistency of
SSA's disability decisions.
DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:
Any person or organization wishing to submit a written statement
for the printed record of the hearing should submit at least six (6)
copies of their statement and a 3.5-inch diskette in WordPerfect or
ASCII format, with their address and date of hearing noted, by the
close of business, Thursday, May 8, 1997, to A.L. Singleton, Chief of
Staff, Committee on Ways and Means, U.S. House of Representatives, 1102
Longworth House Office Building, Washington, D.C. 20515. If those
filing written statements wish to have their statements distributed to
the press and interested public at the hearing, they may deliver 200
additional copies for this purpose to the Subcommittee on Social
Security office, room B-316 Rayburn House Office Building, at least one
hour before the hearing begins.
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Note: All Committee advisories and news releases are available on
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noted above.
Chairman Bunning. The Subcommittee will come to order.
This morning, the Subcommittee picks up where it left off
the last Congress examining the management of the disability
program at SSA, the Social Security Administration. Today, as
before, we will focus on, number one, the action SSA is taking
to address the tremendous backlog of cases, waiting for a
decision at the appeals level; and, number two, learn more
about why there is a decisional inconsistency between the
examiner physician teams who make decisions at the State
disability determination agencies and ALJs, the administrative
law judges.
As I have stated before, my primary objective in looking
into the disability program is to make sure that those who are
truly disabled receive benefits quickly and relatively easily
and that those who have recovered and are no longer eligible
for benefits are removed from the rolls. Effective customer
service and public confidence must be restored at SSA,
especially in the disability program. It is still difficult for
persons with disabilities to believe they are receiving
adequate services when they are forced to wait 1 year or longer
for a decision, and it is extremely disheartening to the
American taxpayers to hear their hard-earned dollars are
supporting disability benefits for people who are able to work.
It is clear from testimony we will hear today that SSA is
trying to make progress. I am pleased to hear about these
efforts and look forward to hearing the details.
During the 104th Congress, I asked GAO to investigate the
reasons for the inconsistencies between the decisionmakers at
different levels of the disability determination process at
SSA. Today, they will share with us their findings.
We will conclude with testimony from a panel of witnesses
who work in the disability process every day. I believe they
will be able to give us valuable insight into what is working,
what isn't working, and offer their suggestions for
improvement.
In the interest of time, it is our practice to dispense
with opening statements, except from the Ranking Democrat
Member. All Members are welcome to submit statements for the
record. I yield to Congresswoman Kennelly for any statement she
wishes to make.
Mrs. Kennelly. Thank you, Mr. Chairman.
I venture to say most Americans don't spend a great deal of
time thinking about the disability appeals process. If they do
think about it, they are hoping they will never have to use it,
but if misfortune comes their way and they are forced to apply
for disability benefits, there are probably two things they
will expect from the process--let it be speedy and let it be
fair.
They want to receive their benefits in a timely fashion.
They want to be treated fairly by the Federal Government.
The backlog of cases at the Office of Hearings and Appeals
is currently nearly half a million cases. Moreover, applicants
who appeal their cases wait well over 1 year, on average,
before they receive a decision. Such a lengthy wait can cause
severe financial hardship for many disabled people who are
unable to support themselves through work.
SSA has taken some positive steps to reduce these backlogs
and has had some measures of success, but progress remains
slow.
I look forward today to hearing more from SSA about the
effectiveness of its activities in this area. In addition to a
swift decision, the public has a right to expect a fair
hearing. Most people would expect to receive a hearing before
an individual with some independence from the agency. This is
the agency, after all, that has rejected the applicant's claim
for benefits. If the public does not believe that SSA provides
a fair and impartial hearing, then more people will appeal
their decisions to the Federal courts. The result will be to
clog the Federal court system and further delay decisions. I
don't believe that is a result anyone desires.
Clearly, a very high reversal rate for ALJs is in no one's
best interest. It is slow, expensive, and undermines the
integrity of the process. However, the public must be confident
that when they have been inappropriately denied benefits, they
will nevertheless receive a fair an impartial hearing on that
denial.
It was not so long ago in the early eighties that the
public concluded that applicants were being unjustly denied
benefits, and ALJs were applauded for their independence and
willingness to buck the agency by reversing DDS, disability
determination services, denials. We must be careful the
administration plan which we put in place to streamline the
process and speed decisions does not have the potential to
strangle the fair hearing process. No one would be the winner
in that case.
Thank you, Mr. Chairman.
Chairman Bunning. Thank you, Mrs. Kennelly.
Today, we will begin with testimony from--if the first
panel will be seated--Carolyn Colvin. Is that correct?
Ms. Colvin. Yes.
Chairman Bunning. From the Social Security Administration,
Ms. Colvin is the Deputy Commissioner for Programs and Policy.
She is accompanied by Rita Geier, Associate Commissioner for
Hearings and Appeals; and Arthur Fried, General Counsel.
Ms. Colvin, would you please begin.
STATEMENT OF CAROLYN W. COLVIN, DEPUTY COMMISSIONER, PROGRAMS
AND POLICY, SOCIAL SECURITY ADMINISTRATION; ACCOMPANIED BY RITA
GEIER, ASSOCIATE COMMISSIONER, HEARINGS AND APPEALS; AND
ARTHUR FRIED, GENERAL COUNSEL
Ms. Colvin. Good morning, Mr. Chairman, Members of the
Subcommittee. I am very pleased to be here to discuss the
Social Security disability appeals process today.
To my right is Rita Geier, who is the Associate
Commissioner of the Office of Hearings and Appeals, and to my
left is Arthur Fried, who is our General Counsel.
We appreciate the opportunity to submit a statement for the
record. I will describe today many short-term and long-term
initiatives designed to strengthen and streamline our appeals
process.
It is important to note that more than 70 percent of the
beneficiaries awarded disability benefits in 1996 were allowed
by the DDS. Fewer than 30 percent were allowed at the ALJ
hearing level or at a higher appellate level.
I also want to stress that there is one and only one
standard for determining disability at all levels of the
adjudicative process.
A fundamental goal of SSA's effort to redesign its
disability process is to make the correct decision as early in
the process as possible. When developing our redesign strategy,
we recognized that, in order to achieve this goal, we needed to
minimize those factors within our control which contribute to
the variance in allowance rates between the DDSs and ALJs.
Collectively, we are calling these initiatives Process
Unification. Our goal is to achieve similar results on similar
cases at all stages of the process, through consistent
application of laws, regulations, and rulings with minimal or
no impact on program costs.
I am proud to report that SSA has made significant strides
toward this goal. One of the factors we have identified as
contributing to the different allowance rates is the different
approaches the DDSs and the ALJs take in evaluating claims
which can lead to different conclusions in a particular case.
These are areas which are highly complex.
Last year, we published eight new Social Security rulings
clarifying policy in these complex areas designed to assist all
decisionmakers in applying the policy in the same way. To
assure consistent application of these rulings, we conducted
for the first time joint training for SSA's 15,000 disability
adjudicators. The hearings level allowance rate declined to 59
percent in fiscal year 1996, and data for the second quarter of
fiscal year 1997 indicate an increase in the initial and
reconsideration allowance rates at the DDS with an accompanying
further decrease in the ALJ allowance rate.
Some of this likely can be attributed to the new rulings
and the training. Another initiative designed to improve
consistency is the development of a single presentation of
policy that is binding on all decisionmakers. This will ensure
that different presentations of policies do not result in
different outcomes.
We are taking several other crucial steps, for instance,
preparing revised regulations clarifying the ALJ's
responsibility for considering the medical opinions of DDS
physicians. It must be kept in mind, however, that because of
the new information presented by the claimant as well as other
factors, most ALJ allowances are based on a substantially
different case than the case evaluated by the DDS. Therefore,
as part of our Process Unification effort, we are trying to
minimize this effect by permitting the ALJs to remand cases to
the DDS for a review when new medical evidence is received
prior to the hearing being scheduled. This will permit the DDS
to change its denial to an allowance which will result in fewer
cases going to hearing. For cases that the DDSs do not allow,
the ALJ will benefit from the DDS' assessment of the new
evidence.
Additionally, SSA recently published a ruling reemphasizing
its acquiescence policy, and one of the initiatives in Process
Unification is to streamline the process for issuing these
rulings.
Under SSA's acquiescence policy, SSA issues a ruling in all
cases where the final circuit court decision conflicts with SSA
policy and SSA decides not to appeal the decision to the
Supreme Court. Our adjudicators are not authorized to give
precedential weight to the circuit court decision until these
rulings are issued.
Another key initiative in Process Unification is
implementation of preeffectuation quality review of OHA
allowances. Under this initiative, the Office of Program
Integrity Review will screen approximately 10,000 favorable
hearing decisions each year and forward the case to the Appeals
Council if a possible error is detected.
It is important to note, however, that the hearings process
is different by design from the DDS process. Claims heard by
the ALJ generally are the most complex and the toughest to
evaluate. It is entirely appropriate for such cases to be heard
in a more formal setting allowing presentation of testimony and
questioning of witnesses.
At the same time, we want accurate decisions and more
consistency in our decisionmaking process. To achieve this
goal, SSA is developing a clear vision of what the future of a
quality review should be, a more comprehensive review program
that better defines its quality standards, communicates more
effectively to employees, and continually provides the
employees with a means to achieve them.
Mr. Chairman, I would like to very briefly address the
increased disability workloads which have required us to
evaluate ways to process cases more efficiently. SSA's short-
term disability project successfully achieved a substantial
near-term reduction in both initial and appeals backlogs. From
the inception of the project through the end of fiscal year
1995, the number of initial claims pending in the DDS was
reduced by more than 120,000. And, since its inception, SSA
increased hearing dispositions by almost 100,000 cases.
In another effort to reduce OHA pendings, over 300 ALJs
were hired during the course of fiscal years 1994 and 1995.
The plan for a new disability claim process represents a
long-term initiative to provide world class service within
available resource levels by redesigning SSA's disability
process. The streamlined process is expected to significantly
reduce the time and resources needed to process disability
cases through the hearing stage.
In closing, Mr. Chairman, I want to thank the Subcommittee
for the opportunity to address these important issues. With the
assistance of Ms. Geier and Mr. Fried, we would be very happy
to answer any questions you may have.
[The prepared statement follows:]
Statement of Carolyn W. Colvin, Deputy Commissioner, Programs and
Policy, Social Security Administration
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the workloads at
our Office of Hearings and Appeals (OHA), and the General
Accounting Office's (GAO) findings on inconsistencies in
disability decisionmaking at different levels of the
adjudicatory process. As described below SSA is working on
myriad initiatives designed to improve and streamline the
appeals process. These include short-term initiatives designed
to improve our processing time, as well as long range
initiatives such as the implementation and testing of several
elements of our disability process redesign.
Disability Claims Process
Mr. Chairman, a brief overview of the disability process
might help put this statement in context. The Social Security
Act broadly defines disability as the inability to engage in
any substantial gainful activity. The Act requires the
Commissioner of Social Security to prescribe rules for
obtaining and evaluating evidence and making disability
decisions. The law further requires that initial disability
determinations be generally made by State Disability
Determination Services (DDSs) following Federal rules and
guidelines and financed by Federal funds.
State DDS Process
In the State DDS, a team composed of a disability examiner
and a physician (or sometimes a psychologist) makes the
disability determination based on an evidentiary record. The
State DDS requests medical evidence from the treating
physician(s) and other sources identified by the claimant. If
that evidence is incomplete or conflicting, the disability
examiner may request a consultative examination from the
claimant's treating physician or a physician under contract to
the DDS to perform these examinations. If necessary, the
examiner will also obtain evidence from the claimant's family,
friends, or other third parties which will help explain how the
individual's impairment(s) affects his or her ability to work.
The team then considers all medical and other evidence to make
the disability determination; if the claimant is not disabled,
the DDS releases a denial notice to the claimant.
Appeals Process
A person who is denied disability benefits may pursue an
appeal through three administrative levels, one at the State
DDS and two at SSA, and the Federal courts. The Act requires
the Commissioner to provide a dissatisfied claimant the
opportunity for a hearing before an SSA administrative law
judge (ALJ), and allows for filing of a civil suit in Federal
court after the Commissioner's final decision. SSA has also
provided a reconsideration review at the State DDS prior to the
hearing and a final review after the hearing by SSA's Appeals
Council.
Reconsideration is the first administrative review for
claimants and is a de novo (fresh) review of the claims file
(including any new evidence) by a State DDS doctor/examiner
team who did not participate in the original decision. The new
team considers all of the evidence and issues a reconsideration
decision.
The second level of administrative appeal is a de novo
hearing before an administrative law judge (ALJ). The ALJ can
call on medical and vocational experts to assist in evaluating
the evidence. Usually the claimant will obtain legal
representation at this point. Frequently new evidence is
introduced by the claimant and his or her representative, often
at the hearing itself. They are allowed to present testimony to
the ALJ in person, to subpoena witnesses, and to obtain answers
to interrogatory requests.
The final administrative appeal level is the Appeals
Council (a group of 24 administrative appeals judges), which
may grant, deny, or dismiss a request for review of the ALJ
decision. It will grant review if the ALJ decision contains an
error of law, is not supported by substantial evidence,
involves a broad policy issue, or there appears to be an abuse
of discretion by the ALJ. After an unfavorable Appeals Council
decision or an Appeals Council dismissal, if the claimant is
still dissatisfied, the next step is filing a civil action in
Federal court.
Allowance Rates
Although there is one and only one standard for determining
disability at all levels of the adjudicative process, there are
some inconsistencies in disability decisionmaking at different
levels of the adjudicatory process. Before I cite the
statistics on the different allowance rates at the DDS and OHA
levels, it is important to note that more than 70 percent of
the beneficiaries awarded disability benefits in 1996 were
allowed by the DDS. Fewer than 30 percent were allowed at the
ALJ hearing level or higher levels of appeal.
From the late 1970s and throughout the 1980s while the DDS
allowance rates remained fairly stable at about 35 percent, the
hearing level allowance rate fluctuated between about 48 to 59
percent. From 1990 to 1992 both the DDS and hearing level
allowance rates increased primarily because of the effects of
the Zebley Supreme Court decision. Although the DDS allowance
rate decreased in 1993, to about 39 percent, the hearing level
allowance rate remained at 67 percent through 1995. In contrast
the DDS allowance rates dropped to the low 30 percent range
during those years. However, in FY 1996 the hearing level
allowance rate decreased to about 59 percent and has declined
even further in the second quarter of FY 1997. Additionally,
the DDS allowance rate has risen slightly.
Process Unification
A fundamental goal of SSA's effort to redesign our
disability process is to make the correct decision as early in
the process as possible. When developing our redesign strategy
we recognized that in order to achieve this goal we needed to
minimize those factors, within our control, which contribute to
the variance in allowance rates between the DDSs and the ALJs.
To that end, we are implementing several initiatives designed
to do just that. Collectively, we are calling these initiatives
Process Unification. Our goal is to achieve similar results on
similar cases at all stages of the process, through consistent
application of laws, regulations, and rulings with minimal or
no impact on program costs.
At the outset I want to stress that there is one and only
one standard for determining disability at all levels of the
adjudicative process. As I will explain below, the difference
in the State DDSs and hearing level allowance rates is
influenced by many different factors, including differences in
the process, as described above. I am proud to report that
through the Process Unification initiatives SSA is making
significant strides toward minimizing these factors.
As an initial step, we have convened a group of Agency
experts to identify policy issues that are critical to process
unification. In addition, we have established a senior level
group to oversee all aspects of process unification
implementation.
Consistent Application of Policy at all Levels
A key element in process unification is consistent
presentation of policy both in written instructions and in
training. One of the factors we identified is the different
approaches that the DDSs and ALJs take in evaluating claims
which can lead to different conclusions in a particular case.
These are areas which are highly complex, like how pain and
related symptoms are evaluated, or what weight to give treating
physician opinion, or deciding an individual's residual
functional capacity.
Last year we published eight new Social Security rulings
clarifying policy in several complex areas of disability
evaluation, designed to assist all decisionmakers in applying
the policy in the same way. To ensure consistent application of
these rulings, we conducted--for the first time--joint training
for SSA's 15,000 disability adjudicators. This training
included DDS examiners, quality reviewers, senior attorneys,
and ALJs as well as members of the Appeals Council and their
staffs. Training commenced in July 1996 and was completed in
February 1997. Each training class was comprised of
representatives from all levels of our disability
decisionmakers. The training allowed the participants to
benefit from the experience of adjudicators at every level, to
hear the same information from the same instructors, and to
discuss and resolve any differences in interpretation.
Preliminary results are very favorable. Decisionmakers
surveyed about the training generally praised the quality of
the training and the substance of the new rulings. In fact, our
internal stakeholders--DDS administrators, physicians,
examiners and ALJs--think that process unification, besides
being essential, is progressing positively.
Additionally, we have seen a recent shift in the pattern of
allowances both by the DDSs and the ALJs. As mentioned above,
the hearing level allowance rate declined to 59 percent in FY
1996, and data for the second quarter of FY 1997 indicate an
increase in the initial and reconsideration allowance rates at
the DDS with an accompanying further decrease in the hearing
level allowance rate. Some of this likely reflects an impact
from the process unification initiatives. The rulings published
last summer and the joint training effort recently completed
were expected to affect decision outcomes in these directions.
We plan to have similar joint training sessions on other
complex policy areas in the future. Quality assurance efforts
are in place to support and evaluate the training objectives.
Another initiative designed to improve consistency is the
development of a single presentation of policy (the ``one
book'') that is binding on all decisionmakers. This will ensure
that different presentations of policies, although those
differences may be slight, do not result in different outcomes.
Additionally, the process unification workgroups are
continually looking at ways to improve our guidance in the
areas of policy identified by an intercomponent panel,
described below, as ``problem areas'' . For example, we are in
the process of preparing revised regulations clarifying
residual functional capacity (RFC) assessments for less than a
full range of sedentary work, a particularly difficult area of
assessment.
Expanded Rationales at the DDS
In the early 1990s, in response to workload pressures
caused by the skyrocketing number of new applications for
disability benefits, we allowed the DDSs to use simplified
rationales to document their determinations. Since the DDS
decision is considered evidence at the hearing level, the
simplified rationale did not provide the ALJs with the
information they needed to determine why the DDS denied a case.
Therefore, in some cases, the ALJ was unable to give proper
weight to the DDS determination while evaluating the evidence
in file.
We are now requiring that the DDSs fully rationalize all of
their reconsideration denials so that this valuable expertise
is fully utilized at the hearing level. We are also preparing
revised regulations clarifying the ALJ's responsibility for
considering the medical opinions of DDS physicians.
Remands of Cases to the DDS
In reality, most ALJ allowances are based on a
substantially different case. Thus, an ALJ decision may
``allow'' benefits but it does not necessarily ``reverse'' the
DDS determination. A substantial majority of ALJ decisions are
based on additional and different evidence from that available
to the DDSs.
Also, the ALJ hearing is the first step of the claims
process in which the claimants may appear in person before the
decisionmaker to explain their impairments and present
witnesses who can attest to the effects of their impairments.
DDSs do not meet the claimant. In addition, more than 80
percent of the claimants are represented by an attorney or
other individual at the hearing. Because the representative
assists the claimant in obtaining new evidence to support the
case and explaining the effects of the impairments to the ALJ,
representation can have a substantial impact on the hearing
decision. There is also some anecdotal evidence that
representatives wait until the hearing before submitting some
of the evidence of disability.
Additionally, in some cases the person's condition has
worsened, or the person alleges an additional impairment. Other
cases, denied by the DDS based on expected improvement in the
claimant's condition within 12 months of the onset of the
condition, are allowed by the ALJ because improvement has not
occurred since the DDS determination.
Therefore, as part of our Process Unification effort, the
ALJ can remand to the DDS, for a new determination, those cases
where new medical evidence is received prior to the hearing
being scheduled. In many cases this will permit the DDS to
change its denial to an allowance which will result in fewer
cases going to hearing and decrease the time a claimant must
wait for a favorable decision.
Additionally, for cases that the DDS cannot allow, the ALJ
will be reviewing the same claims file as the DDS and
benefiting from the DDS's assessment of the new evidence.
Precedential Value to Court Cases
Because ALJ decisions are reviewed directly by the district
and appellate courts, ALJs are more inclined than DDSs to be
sensitive to how the courts review disability law and policy.
Under SSA's acquiescence policy, a ruling is issued in all
cases where the final circuit court decision conflicts with SSA
policy and SSA decides not to appeal the decision to the
Supreme Court. Our adjudicators are not authorized to give
precedential weight to the circuit court decision until these
rulings are issued. SSA recently published a ruling
reemphasizing our acquiescence policy, and one of the
initiatives in Process Unification is to streamline the process
for issuing these rulings.
Increased Review of ALJ Cases
Another key initiative in Process Unification is
implementation of pre-effectuation (PER) quality review of OHA
allowances by the Appeals Council under its authority to
conduct ``own motion'' reviews. The Office of Program Integrity
Review (OPIR) (which is not a part of OHA) will screen
approximately 10,000 favorable hearings decisions each year, in
addition to the ongoing quality review of ALJ allowance and
denial decisions, and forward these cases to the Appeals
Council if a potential error is detected.
While we are preparing a regulation describing this new
process, we have begun a post-adjudicative ``dry run'' of
OPIR's identification of cases for Appeals Council review. OPIR
is providing feedback to the ALJs on cases when they detect a
possible error and an intercomponent panel is being established
to review a body of ``tough policy cases'' which can be used to
identify problem areas between the DDSs and ALJs and then to
develop policy solutions. We have put the staffing and
processes in place so that the official reviews can begin
immediately after the regulation is published.
Rewards of Success
The benefits of successful process unification will be
enormous. Obtaining the correct decision as early as possible
in the process will greatly improve administrative efficiency,
often avoiding an expensive hearing. If fewer claimants seek
appeal, OHA workloads will decrease, and service to claimants
will improve. Not the least benefit will be that DDS examiners
and ALJs can work together more harmoniously, and each will be
more effective in their roles as decisionmakers.
Having said all this, however, it is important to note that
the hearing process is different by design from the DDS
process. In a program as important to the American public as
this one is, it is imperative that the process not only be fair
but also be seen as fair to those applying for benefits.
Disability evaluation is a complex task requiring
sophisticated, professional expertise. Claims appealed to the
ALJ generally are the toughest to evaluate, the most complex
and the most subjective. It is entirely appropriate for such
cases to be heard in a more formal setting allowing
presentation of testimony and questioning of witnesses.
I want to emphasize that all of the SSA family (including
the DDSs) is committed to Process Unification. We all recognize
that the goals of process unification are important on their
own, and they are essential for the success of our highest
priority, a better and more efficient disability process.
Quality Review
Current Process
At the same time that we want more consistency in our
decisionmaking process, we also want accurate decisions. To achieve
this goal, SSA's quality review activities comprise an integrated
system designed to provide the Agency with a ``report card'' of
management information (MI) about how different components within the
disability decisionmaking process are doing in terms of well
documented, policy-consistent correct decisions. At the State level,
each DDS conducts inline quality reviews on samples of determinations
before they are returned to SSA's field offices. Subsequently, SSA
reviews, at the regional level, DDS determinations issued at the
initial and reconsideration steps. When appropriate, determinations are
returned to the DDS to either change the decision or obtain additional
documentation. Some of the cases which are sampled at the DDS level and
regionally also receive a review by a component at SSA Headquarters.
Known as a consistency review, this assessment enables SSA to check on
the consistency with which the regional review components are applying
Agency policy. All of these reviews of DDS determinations are
integrated in that there is a sharing of findings so that any
adjustments in the reviews resulting from this data can be coordinated
to achieve greater efficiency and an improved product through the
planning and scheduling of DDS/SSA training initiatives.
At the hearing level, the history of quality review is more recent.
Prior to 1993, there was no ongoing quality review of hearing decisions
per se, and as a result, the Agency lacked a basic source of ongoing MI
with respect to that level. To some extent, the Appeals Council was
viewed as a quasi-quality review component because of its review of
hearing decisions. However, its formal position as the last step in the
administrative appeals process is separate and distinct from that of a
quality review component.
In 1993, SSA began its first ongoing quality review of ALJ
allowance and denial decisions. This sample is stratified 50 percent
allowances and 50 percent denials. Valuable MI has been obtained which
has resulted in both ALJ training and process unification initiatives.
Moreover, this review also includes a review of the initial and
reconsideration denial determinations which preceded each ALJ decision.
This unique aspect of the review enables the Agency, for the first
time, to obtain a multilevel longitudinal assessment of each case. In
addition to identifying process unification issues arising between the
DDS and the hearing level, this review enables SSA to ascertain whether
hearing allowances were allowed at the earliest possible point in the
adjudicative process, which is a fundamental goal of policy
unification.
Transitioning to a New Quality Review Vision
With respect to the future of quality review within a redesigned
process, SSA is developing a clear vision of what the future of quality
review should be--a more comprehensive quality review program that
better defines its quality standards, more effectively communicates
them to employees in a consistent manner and continually provides
employees with the means to achieve them.
SSA's existing quality review system has always demonstrated the
flexibility necessary to adapt to the new concerns and many changes
which have occurred in the disability program over the years. The
enhancement of the hearing-level reviews is just one example of that
flexibility. As SSA continues forward with its redesign activities, its
quality review system will continue to be adaptable and meet the
growing needs of the new processes which SSA introduces.
Workload Issues
The enormous demands confronting SSA in the form of
increasing disability workloads required us to evaluate
policies and procedures which might be streamlined or altered
to process the workload more efficiently. Record numbers of
disability applications were received in the early 1990s,
leading to skyrocketing hearing requests and ever larger OHA
pendings. Additionally, we expect more than 125,000 additional
hearings from now through FY 1998 relating to the legislation
passed last year affecting individuals disabled due to drug
addiction and alcoholism and children and non-citizens
receiving Supplemental Security Income payments. SSA has sought
both short-term and long-term solutions to manage the
unprecedented workload increases.
Short-Term Disability Project
SSA's Short-Term Disability Project was designed to achieve
a substantial near-term reduction in both initial and appeals
backlogs. From the inception of the Project in October 1994
through the end of FY 1995, the number of initial claims
pending in the DDS was reduced by more than 120,000. Project
initiatives designed for OHA had to await completion of hiring,
redeployment, and training of staff, as well as approval of a
new regulation. This initiative allowed us to increase hearings
dispositions by almost 100,000 cases (and doubled the number of
CDRs processed), while maintaining most of the progress made in
basic DDS initial claims pendings.
Some of the more successful elements are being continued,
including:
expanding the prehearing conference procedures to
ensure claimants' files are complete;
granting temporary authority to experienced staff
attorneys and paralegal specialists to make allowances in
certain prehearing cases; and
establishing screening units to identify appealed
reconsideration decisions which can be allowed based solely on
the record without additional development or a hearing.
In addition, SSA increased decision drafting capacity by
detailing employees to decision drafting functions. Through
September 1996, these employees produced nearly 58,000 decision
drafts.
New ALJ Hires
In another effort to help reduce OHA pendings, over 300
ALJs were hired during the course of fiscal years 1994 and
1995, increasing the total number of ALJs on duty by over 25
percent to about 1050. New ALJ hires in FY 1996 essentially
covered attrition, which is also the plan for FY 1997. In order
to help with the new ``welfare reform'' legislation workloads,
60 ALJs are being hired this year in anticipation of FY 1998
attrition and will report in June.
Additionally, SSA is exploring ways to hire ALJs with
subject matter-specific experience. These ALJs would be able to
become proficient immediately and would help address the short-
term need of ``welfare reform'' legislation.
Disability Redesign
The Plan for a New Disability Claim Process represents a
long-term initiative to provide world-class service within
available resource levels by redesigning SSA's disability
process. It is expected to significantly reduce the time and
resources needed to process disability cases, and is the
Agency's highest priority. We are concentrating most of our
redesign efforts on several key elements and have begun testing
an integrated redesign process that incorporates many of these
elements. While redesign's project life is expected to run over
many years, SSA is moving to implement those aspects of the new
process that can be implemented in the nearer-term.
Two of these projects are of particular pertinence to the
appellate process. First is the Adjudication Officer (AO),
currently being piloted in 25 sites nationwide. The AO will
serve as the focal point for claimants who request a hearing
and will have full authority to issue a favorable decision, if
the evidence so warrants. Of the over 20,000 AO cases processed
since testing began in November 1995, about 30 percent have
been allowances, with the remainder being fully developed by
the AO and forwarded to the ALJ for hearing. At slightly less
than one case per day, productivity is lower than expected but
improvements are anticipated. While quality review of
allowances has found some problem areas that need work, the
quality of the information being forwarded to ALJs is high.
Second is the Full Process Model, which tests several
redesign features working together, including the AO, a pre-
decision interview similar to the face-to-face interaction of a
hearing, and elimination of the reconsideration step prior to
the ALJ hearing. Testing began in eight states this month.
Testing of an additional feature--elimination of mandatory
Appeals Council review prior to the filing of a civil suit in
Federal court--will begin after publication of a revised
testing regulation.
Conclusion
In closing Mr. Chairman, I would like to thank the
subcommittee for the opportunity to address these important
issues. We expect, based on the short-term efforts mentioned
earlier and followed by improvements related to implementing
the redesigned disability process, to increase hearings
dispositions significantly.
While process unification has already accomplished a great
deal, much still remains to be done. You may rest assured that
SSA is fully committed to obtaining correct, similar results in
similar cases at all stages of the disability claims process.
Although all indicators suggest that our initial efforts are
succeeding, SSA will continue to monitor carefully the results
of all our initiatives.
Chairman Bunning. Thank you.
First, let me say that I am pleased to see there has been
some progress made and I commend the agency for its work. I
know you would be disappointed if I didn't get to ask you some
questions, so let me begin.
There is no question that these issues are complex and DDS
and ALJ processes are different by design. Nevertheless, many
of the reasons for differences between DDS and ALJ
determinations have been around for a long time.
For example, let me quote, ``The council believes that the
lack of uniformity in application of eligibility standards stem
from: One, a lack of specificity in the rules for determining
disability; two, an inadequately controlled, Federal-State
arrangement for administering DI and SSI Programs; and three,
an appeals process which fails to encourage the development of
complete and correct evidence early in the process.'' This
quote is from the report of the Disability Advisory Council,
March 11, 1988.
There is another statement, ``The high reversal rates after
the initial decisions have been attributed to: One, inadequate
documentation of the initial claim; two, the progressive nature
of an applicant's medical condition; three, the nature of
disability; and four, different sets of rules governing
different levels of disability decisionmaking processes.'' This
quote is from the final report of the National Commission on
Social Security, March 12, 1981.
These issues have been around for a long time, and
certainly, the American people deserve better from its Federal
Government. Clearly, you are trying to make a number of
improvements in your disability process, but what about the
legislative changes? Certainly, as a fully independent agency
which operates two of the largest disability programs in the
country, you must have some suggestions for improvements that
could be made into law. None have been submitted since I have
been Chairman of this Subcommittee, not one.
There are many positive comments in testimony received
today about the benefits of training ALJs and DDS personnel
together. Did this job training occur regarding the legislation
ending eligibility for drug addicts and alcoholics or for the
SSI children provision?
Ms. Colvin. Let me address your last question first. The
training we recently provided to the 15,000 adjudicators, which
includes both OHA staff as well as DDS staff, our quality
review staff and our Appeals Council staff, was designed to
review the eight new rulings that were recently developed to
ensure consistency of application of the laws and regulations
at all levels of the adjudicative process. This would certainly
impact on all of the disability reviews, the childhood
disability cases, or the noncitizen cases that we have
processed will be coming forth, as well as, of course, the many
DA&A, drug addicts and alcoholics, cases.
Chairman Bunning. Will you answer my question? Did this job
training occur because of the legislation ending eligibility
for drug addicts and alcoholics or for the SSI children's
provisions? Is that why you did it, or did you do it for some
other reason?
Ms. Colvin. We did it because it was recognized that we
needed to unify the process for disability determinations to
try to ensure that we would get the correct decision as early
in the process as possible. Certainly, Mr. Chairman, this will
impact implementation of the legislation on the DA&A and SSI
children.
Chairman Bunning. In other words, that wasn't the initial
or main purpose for your joint training? You just decided to do
it on your own?
Ms. Colvin. We decided to do it as part of the Process
Unification Initiative, which is a part of our overall
disability redesign initiative.
Chairman Bunning. The reason I push that is because SSA
must pay attention to the Congress when it passes laws, so that
as an independent agency, you can fully implement those laws.
The American people and the Congress are interested in knowing
that you are complying with the new laws that we pass.
Ms. Colvin. Let me be clear, Mr. Chairman, that we are, in
fact, complying with the new laws. The Process Unification
training will enable us to comply more thoroughly with those
laws because by unifying the process we can ensure that the
decisions we have to make about the DA&A workload, under the
new law, are adjudicated in a fair and accurate manner early in
the process. So, clearly, the Process Unification training will
allow us to comply with the DA&A law.
Chairman Bunning. I will inquire later.
Barbara, would you like to question?
Mrs. Kennelly. Thank you, Mr. Chairman.
Thank you for coming.
Ms. Colvin, are you aware of an article that was in the New
York Times, Monday, April 21, 1997, the United States
challenges courts on disability?
Ms. Colvin. Yes, we are.
Mrs. Kennelly. So I can ask you a few questions about it.
For people who are interested, the New York Times asserted that
SSA has told its administrative law judges that they could
disregard Federal court decisions if these decisions are in
conflict with agency policy. ``An ALJ is bound to follow agency
policy even if in the ALJ's opinion on that policy is contrary
to law. The Federal courts seem to disagree with SSA's
pronouncement that ALJs should ignore the law. In the Hutchison
charter case, the court said, regardless of whether the
Commissioner formally announces her acquisition, she is still
bound by the law of this circuit and does not have the
discretion to decide whether to adhere to it. The Congressional
Research arm also agreed saying whether SSA issues an
acquisition ruling or not, the agency must follow the court's
decision that is binding on SSA.'' Yet, from reading this
article, I think there is a disagreement from SSA. It appears
SSA is asking the ALJs to ignore the Federal courts. Is that
correct?
Mr. Fried. No, it is not correct. The SSA's policy is to
follow circuit court decisions, and that has been the SSA's
policy since the late eighties, and it is pursuant to
regulations that were issued by Social Security on January 11,
1990.
The most recent issuance was on July 2, 1996, and it was a
ruling that merely restated the policy reflected in the 1990
regulations.
Mrs. Kennelly. Thank you, Mr. Fried.
Well, is SSA providing DDSs and ALJs with timely
interpretations of these court decisions, of the Federal court
decisions?
Mr. Fried. Unfortunately, in the past, there have been some
extensive delays in providing what are called acquiescence
rulings. However, we have recently committed to issuing
acquiescence rulings as fast as possible. The goal of the
agency is to issue them within 120 days.
Mrs. Kennelly. What is the backlog now?
Mr. Fried. Currently, SSA has four circuit court decisions
under serious consideration for publication of an acquiescence
ruling.
Mrs. Kennelly. OK. My problem is, as a Member of Congress,
we get numerous constituents who don't have the decisions they
are seeking, and then they come to us to see if we can help
them, and sometimes we can, and obviously, as you well know,
sometimes we can't. But another problem we are constantly
dealing with is the clogged courts. If SSA ignores the Federal
court decision, I am afraid the courts could get even more
clogged, and here, we have got this huge agency that has
everything set up to do what should be done, and then it ends
up in a court situation at the highest level. So I will
continue to follow this situation.
Let me ask you another question, Ms. Colvin. As one
possible reason for differences in DDS and ALJ decisions, you
have cited the type of cases we viewed at each level; that is,
allowances are reviewed at the DDS level and denials are
reviewed at the ALJ level. This would tend to make DDS--or I
would think, maybe, this would tend to make DDS reluctant to
award cases and ALJs reluctant to deny cases. So your solution
is to review more allowances at the ALJ level.
DDS has immediate review of their allowances by quality
assurance personnel, but there is no immediate review of
denials. Doesn't it make sense, also, to review more denials at
the DDS level?
Ms. Colvin. Let me say, first, that there is review of
denials at the DDS level. As part of our Quality Assurance
Program, we review a sample of both denials and allowances from
each DDS. In addition, by law, we are required to perform a
preeffectuation review of 50 percent of all title II concurrent
allowances by the DDSs.
Also, in 1993, we began reviewing a small percentage, about
1 percent, of all ALJ decisions split between approvals and
denials.
Mrs. Kennelly. Thank you.
I am new to this Subcommittee, and I am doing a great deal
of reviewing and reading. Last night, reading about this
situation and looking at, obviously, the problems. To a
layperson, it just jumps out to you that the first step is
dealing with paper, and there is a certain percentage of
dissatisfaction. Then, you go to the second step, and you get
medical opinions. You get a person. Is there any thought that
maybe we should be looking at the person or getting a doctor
who knows the case earlier in the process?
I am not going to try to do your business this morning. As
I said, I am new to this, but it jumps out at me that we are
dealing totally in a paper fashion. Denials are happening, and
then, when we get to the level where you have individual and
the medical opinions, then we see things change. Obviously, you
have thought about this.
Ms. Colvin. In fact, we have looked at those issues that
you raise, and the full process model under our disability
redesign plan will test a number of those issues, including an
early opportunity for the claimant to actually appear before
the decisionmaker.
We have recognized that some of the differences result from
the fact that the first opportunity for the claimant to
actually appear before the person making the decision is at the
ALJ level. So one of the models we are testing is designed to
see what difference would exist if the appearance were earlier.
Mrs. Kennelly. Thank you.
Thank you, Mr. Chairman.
Chairman Bunning. Mr. Collins will inquire.
Mr. Collins. Thank you, Mr. Chairman.
Ms. Colvin, this is one of the areas in the district
offices back in Georgia that we have more inquiries and
complaints about, I think, than most any other area of
constituent work. What is the procedure for a person to apply
for disability, and what is the criteria?
Ms. Colvin. The procedure to apply for disability would be
to make application at one of our field offices where there is
a nonmedical determination made, and then, the medical
determination of disability is made at the State DDS level.
Individuals would submit or SSA would obtain evidence that is
used to evaluate their disability. A review would be made of
that evidence, and a decision would be made by the DDS team
composed of a disability examiner and a medical consultant.
Mr. Collins. It seems like it is just an automatic denial
on the largest percentage of the applicants that submit
application. Is this common across the country?
Ms. Colvin. Your second question that you raised, Mr.
Collins, is what is the definition of disability. The person
has to demonstrate they are unable to perform substantial
gainful activity for at least a 12-month period or which will
result in death. If the evidence does not substantiate that,
then, more than likely, the person is going to receive a
denial.
Mr. Collins. OK.
Ms. Colvin. We believe the application of the definition is
consistent throughout the country, regardless of the region,
and we do have quality reviews to take a look at the accuracy
of the decisions that are made.
Mr. Collins. Like I say, though, it just seems like it is
an automatic denial on the first go-around, and then, with the
appeal for reconsideration or ask for reconsideration by other
staff, then it seems to be, again, a denial, and then, when you
get to the administrative law judge step in the process, there
are a lot of reversals. It looks like the first approach to
this thing is what is bottlenecking the whole system. Why do we
have such a large denial rate to begin with, denial again, and
reversing the denials?
Ms. Colvin. Let me----
Mr. Collins. Are we all working off the same page and the
same criteria, the same requirements, or is this different
somewhere?
Ms. Colvin. You are describing many of the issues that we
have identified and which resulted in our implementation of
Process Unification.
Let me just say that we have a 30-percent award rate at the
initial DDS level, so about 70 percent are initially denied.
By the time the case gets to the ALJ level, in many
instances, it is not the same body of evidence. You will recall
we mentioned additional evidence can be presented at the ALJ
level. This is the first time the individual appears before the
person making the decision. Substantial time has often passed,
which may mean the medical problems have increased.
What Process Unification is designed to do is to identify
those problems that prevent an early decision so that we will
get the correct decision earlier in the process and fewer cases
go to the ALJ level. About two-thirds of the cases that are
heard at the ALJ level are not the same cases that were heard
at the DDS level.
Mr. Collins. Well, we don't have a way of handling this
without going to the ALJ level when this new evidence is
submitted, this medical documentation?
Ms. Colvin. I understand your question. You are asking do
we have a way of handling new evidence----
Mr. Collins. This is a long, drawn-out process for the
individual that has replied.
Ms. Colvin. One of the things we are testing under the
Process Unification Initiative is having cases where new
evidence is presented at the hearing level, returned to the DDS
level, so that the evidence can be reviewed and any revised
decisions can be made at the DDS level and will not, in fact,
be heard at the ALJ level.
Mr. Collins. OK.
Ms. Colvin. So that is an area of concern we have
identified and are attempting to address with the Process
Unification Initiative.
Mr. Collins. We thank you, and with the long list of
panelists we have today, we have to move on.
Thank you.
Chairman Bunning. First of all, I am going to take the
privilege of the Chair and say that, since 1981, these same
problems have been around, as I reviewed for you. Only since
1991 have we made significant progress. At that time, 40
percent of the initial DDS claims were being allowed. That
meant 60 percent were being denied in 1991.
The reversal rate at that time was 66 percent at the ALJ
levels. So, of the 60 percent that had been denied and
appealed, 66 percent were being allowed on appeal to ALJs.
Now, over 1991, 1992, 1993, 1994, 1995, and 1996, 30
percent of initial claims are allowed at the DDS level. So 70
percent are being denied. Of those 70 percent, approximately 60
percent are now being reversed at the ALJ level.
Now, what Mr. Collins is getting at and what everybody up
here wants to know, Why can't we do a better job on the initial
claim and make sure there isn't a running evidence trail from
the time the process begins until the time of the ALJ
pronouncement? Wouldn't it be much easier for everyone,
including the applicant, on overall program costs, if we did it
right in one decision? I think that is what we are trying to
get at here, because it is acceptable for applicants to wait
for over 1 year.
In Kentucky, the waiting times are not that bad. It
averages 4 or 5 months, but in other States, additional
evidence often prolongs the disability application process to
over 1 year. Considering the 30 percent DDS initial allowance
rate in 1996, with ALJs overturning 60 percent of those 70
percent that are denied by the DDS who appeal, suggests there
ought to be a better way of handling evidence.
Ms. Colvin. I am going to ask Rita Geier to help me with
this question, but I want to emphasize that we are looking at
ways to improve. We are expecting through our Process
Unification Initiatives to be able to address those problems
you have just identified, the problem of getting all of the
evidence earlier, so that the case can be decided correctly at
the DDS level.
This is the problem I spoke about earlier; there is often
additional information at the ALJ level, and there is a
personal----
Chairman Bunning. We are familiar with that. We are
familiar. We don't think that is acceptable. We think all the
information should be on the original application, and we are
going to explore doing something about it legislatively
because, obviously, it is not satisfactory if people have to
wait over 1 year for their initial claim to be decided. They
die. People actually die while waiting for the benefits, and
that is not acceptable to me.
Mr. Hayworth will inquire.
Mr. Hayworth. I thank the Chairman, Ms. Colvin, and those
with us on the panel. I thank you for joining us today.
Part of the frustration expressed by those of us in the
Congress has already been outlined, I think, quite eloquently
by the Chairman, and we are going to hear from a lot of
different people today who will testify in support of SSA's
initiative to develop one book where all decisionmakers are
following the same set of instructions. To reasonable people,
that makes immanently good sense.
So I am interested today, Ms. Colvin, in getting your
assessment of just where SSA is on its development of the one
book and when will it be made available to all decisionmakers.
Ms. Colvin. We are making significant progress in that
direction, Mr. Hayworth.
We have just recently, as I mentioned, trained the 15,000
disability adjudicators on the same rulings. This is the first
time in our history we have actually had training together for
all of those individuals who adjudicate disability cases on the
same laws, regulations, and rulings.
The one book will pull that together even more. I am not
prepared today to give you an exact date of when that one book
will be available, but we will be very happy to provide that to
you for the record.
Mr. Hayworth. That would be good.
It is my understanding that in the discussions with staff,
we have been told the one book is still at least 2 years away,
and that is very disturbing when you consider the fact that
this notion was first put forth in October 1994.
Certainly, since we are dealing with such a critical need,
even understanding the complexities, I am a bit miffed with the
notion of waiting an additional 2 years.
Ms. Colvin. I am not prepared to respond to that at this
point. This is an area we recognize will have a significant
impact on the process. This is a very high priority for us. It
is very complex with the various rulings and regulations, but
as I said before, I would be very happy to provide you more
specific detail for the record.
Mr. Hayworth. Well, we appreciate that, and we look forward
to getting your assessment of the timeline to complete this
work, and we will wait with great interest on that.
[The following was subsequently received:]
Compilation of the ``one book'' is an iterative process. As
an interim measure, we have been putting the exact text of
regulations and Social Security rulings into the POMS so that
decisionmakers at all levels will have the identical
presentation of policy. Decisionmakers at the administrative
appeals level already use the regulations and rulings directly.
As part of our strategy to build a single presentation of
policy, which is what the ``one book'' is designed to be, we
are also maximizing the use of Social Security rulings as a
means of conveying policy clarification rather than providing
such guidance in operating instructions that apply to only one
level of the process. Rulings are binding on all levels of
decisionmaking and review in our process and are thus ideally
suited to enhancing uniformity of appilication of policy. As
you know, regulations are also binding on all decisionmakers
and reviewers.
SSA began this effort by placing the text of the
regulations on symptoms including pain in the POMS in early
1995; eight rulings on the areas of symptoms, residual
functional capacity, and weighing of evidence were put into the
POMS in July 1996 and the recently published childhood
regulations were put into the POMS in March of this year.
This process will continue with the ultimate goal being the
presentation of all substantive disability policy identically
at all decisionmaking through use of regulations and rulings.
Mr. Hayworth. Ms. Colvin, you mentioned training for folks
involved in the adjudication process. How much medical training
do the ALJs receive?
Ms. Geier. I will answer that, Congressman Hayworth. When
the ALJs come on board, they are initially involved in a 5-week
training program. This involves medical training, as well as
training on the conduct of a hearing and full training in the
specifics of the disability statute, regulations, and rulings.
About 1 year after they are on board, we bring them back
for supplementary medical training geared to reinforce the
earlier training.
There are also ongoing means of medical training through
seminars and participation of ALJs in CLE-type training.
Mr. Hayworth. So, Ms. Geier, you are saying the initial
training process is about 5 weeks in duration, but if you had
to isolate the specific medical training, are we not, in fact,
looking at about 1 week, initially?
Ms. Geier. Well, it is difficult to say. In terms of only
medical training, that may be accurate, but medical training
involves casework, too. So, as we train through casework, we
are also teaching the application of medical standards and
evaluation.
Mr. Hayworth. And then, in the refresher course, for lack
of a better term, you mention after people have been in the
field when they come back, how long does that medical training
run?
Ms. Geier. That is about 1 week.
Mr. Hayworth. About 1 week. I thank you, ma'am.
Mr. Chairman, my time is up, so I yield back.
Chairman Bunning. Mr. Portman.
Mr. Portman. I have to do a little followup on that
questioning. That is how much training the ALJs get. Clearly,
we have an issue with the ALJs reversing these decisions from
the earlier decisionmakers. How much training do the earlier
decisionmakers get? What does the DDS get in terms of medical
training as compared to the--roughly, it sounds like 1 week of
medical training, initially, and then some refresher training
throughout the year. Obviously, those folks aren't looking at
these individual cases in the same way the initial
decisionmakers are. How much medical training do the initial
decisionmakers receive?
Ms. Geier. It is my understanding that that is about 5 or 6
weeks for the initial level at DDS.
Mr. Portman. But DDS only gets 5 or 6 weeks----
Ms. Geier. Weeks.
Mr. Portman [continuing]. Of training, 5 or 6 weeks of
training? Is that initial training?
Ms. Colvin. Yes, that is my understanding.
Mr. Portman. Five or six weeks----
Ms. Colvin. Yes.
Mr. Portman [continuing]. Of medical training?
Ms. Colvin. Yes.
Mr. Portman. OK.
Mr. Fried. That is just for the disability examiner. At the
initial level, there are also medical advisers who participate
in the decisionmaking process, and they are doctors with
specialties in various areas.
Mr. Portman. Well, in fact, every initial decision has to
be signed off by a physician. Isn't that correct?
Mr. Fried. Currently, that is correct. There are tests Ms.
Colvin referred to before of what is called the single
decisionmaker, and we are also looking at early decision lists
which may, in appropriate cases, depart from that, but
currently, the standard is for a doctor to sign off----
Mr. Portman. To sign off.
Mr. Fried [continuing]. The initial decision.
Mr. Portman. So give me a generalized comment here, if you
would. Where is the medical expertise located in the system? Is
it more at the outset? Mr. Bunning told us that 70 percent of
the initial applications are being denied at the initial level,
and then, about 67 percent are being appealed later on in the
process once you go through the two steps. Where is more of the
medical exper-
tise, at the beginning of the process or at the ALJ part of the
process?
Ms. Colvin. I would----
Mr. Fried. The----
Ms. Colvin. Go ahead.
Mr. Fried. The ALJs, if they determine it is necessary, can
bring a medical adviser to testify at the hearing or can
submit----
Mr. Portman. That is not really answering my question,
though. Do they do that on a typical----
Ms. Colvin. It is really throughout.
Mr. Portman. Do more than----
Mr. Fried. The answer is it is throughout the process.
Mr. Portman [continuing]. One-half of the ALJs do that, Mr.
Fried?
Ms. Colvin. They do----
Mr. Portman. Do the majority of the ALJs do that?
Mr. Fried. The ALJs have significant medical evidence in
the file. They have the medical evidence that was developed at
the----
Mr. Portman. But answer my question. Do they bring in
medical experts or a doctor?
Ms. Geier. They do, Congressman Portman.
Mr. Portman. They do in more than one-half of the cases?
Ms. Geier. Yes, 40 percent or so have medical expert or
consultative medical input.
Mr. Portman. Forty percent or so?
So, in every instance at the outset--I am just trying to
figure out. This is such a bizarre system we have, and one must
wonder to the extent this is a medical determination, which it
really is, where does that expertise lie, and you are telling
me that in roughly 40 percent of the cases with regard to the
ALJs, they actually bring in some medical professional to help
them analyze the case, and in every case at the outset with the
DDS examiner, there is a doctor that signs off on the initial
decision?
Mr. Fried. In every case, the ALJ has the expertise of
medical professionals and evidence in the file.
Mr. Portman. Has evidence in the file.
Mr. Fried. In addition to 40 percent, they actually
specifically get medical advice for----
Mr. Portman. That evidence in the file comes from the
applicant?
Ms. Colvin. What was your question, the last one?
Mr. Portman. Well, Mr. Fried is indicating there might be
some objective medical expertise at the ALJ level, and my time
is almost up, but it sounds as though that is more evidence
that is in the file that clearly would be available to them in
rendering their decision, but not something that they would be
receiving independently.
My only point, because I have got--unfortunately, the
Chairman is good at keeping these sessions going. So I am not
going to go overtime. Otherwise, I will never get another
question.
I think part of the issue Mr. Collins alluded to, and the
Chairman alluded to it, is to determine how we can get more of
that medical expertise at the front end of the process, or if
it is already there, maybe rely more on that end of the process
and have all that information provided initially, to the extent
it is possible. I know new information might arrive, conditions
change, so that we don't have this kind of--as I said earlier,
a bizarre situation where you have got all of these denials
initially and then go through this long process and then have
them reversed, two-thirds of them being reversed.
One other comment I need to make, and that is, I was very
supportive of the independent agency. I think it is a great
idea, and the reason I think it is such a good idea is, in
large measure, because it allows you to have independent
judgment with regard to tough issues like this.
You have got to give us your thinking on this, independent
of HHS, independent of the administration, what really makes
sense. Give us legislative recommendations. I don't think you
have given us any in 3 or 4 years, and I would just encourage
you to do that, look at it objectively, how you can do your job
best, and tell us how we can help you do that.
Thank you, Mr. Chairman.
Chairman Bunning. Thank you, Rob.
Let me ask--who hires the ALJs?
Ms. Geier. Congressman, the----
Chairman Bunning. Would you please bring your microphone a
little closer. I am having an awful time hearing you.
Ms. Geier. Is that better?
Chairman Bunning. Go ahead.
Ms. Geier. The process of selection----
Chairman Bunning. That mike is not working. Would you try
another one?
Ms. Geier. The SSA actually hires the ALJs, but it hires
the ALJs from a certificate of eligible candidates that is
provided by OPM.
OPM maintains a register of eligibles, of persons who
satisfy the basic threshold qualifications for ALJ positions
throughout all of the government. The agencies request the
number of ALJs they need to hire from that register, and OPM
provides a certificate.
Chairman Bunning. Who pays them?
Ms. Geier. The agency pays.
Chairman Bunning. The SSA?
Ms. Geier. Yes, sir.
Chairman Bunning. OK. Who hires the DDSs?
Ms. Geier. That would be the States. They are State----
Chairman Bunning. They are State-determined employees----
Ms. Geier. That is correct.
Chairman Bunning [continuing]. Hired by each individual
State. Who pays them?
Ms. Colvin. They receive Federal funding from SSA for their
staff. So, we do. The SSA pays them.
Chairman Bunning. Pays them. So you pay both the DDSs and
the ALJs?
Ms. Colvin. Yes.
Mr. Fried. If I may just clarify to make sure it is
accurate, we provide funds to the DDSs. The DDS employees
receive State agency checks. They don't receive a Federal
check, but the funds are funds provided by SSA through a
regulatory arrangement. We have no direct relationship with an
employee of the State DDSs.
Chairman Bunning. In other words, you don't hire the DDS
personnel, they are hired by the State.
Ms. Colvin. That is correct.
Chairman Bunning. But you pay them.
Mr. Fried. We pay the State.
Chairman Bunning. Which pays them.
Mr. Fried. We reimburse the State for its expenses in
operating the DDS----
Chairman Bunning. But what I am getting at is the
decisionmaking process and who is paying for it and why people
are losing confidence in the decisionmaking process. If SSA
pays the ALJs and the DDSs, and people are coming to SSA for
disability benefits, there is always the possibility of the
applicants thinking the reason they are not getting
satisfaction or the reason they are not getting a fair hearing,
so to speak, is because the decisionmakers are employees of
SSA.
There have been bills introduced to make the ALJs
independent, and I am not really happy with that bill. I never
liked that bill, but the fact of the matter is, unless we can
solve this problem of credibility, particularly at the initial
decisionmaking process, and then have a reasonable appellate or
appeal process, we are not going to build the confidence we
need in this program. People should not think we are trying to
rip them off and keep them out of the program. We, on this
Subcommittee, need your assistance in order to help you do your
job better. We haven't had any assistance from the SSA in
trying to solve this problem, other than efforts from within
SSA, which you are doing on your own. We think we can assist
you by writing a better disability law and making sure all the
evidence is up front and that there can't be a different set of
evidence for the DDSs and the ALJs. Then SSA can make the
decision without 60 percent being reversed as in 1996.
Ms. Colvin. Mr. Chairman, we appreciate that offer, and we
are, in fact, continuing to evaluate what legislative proposals
might be desirable under the Process Unification Initiatives.
[The questions of Chairman Bunning to Acting Commissioner
John J. Callahan and Mr. Callahan's answers follow:]
Question.1A. In their testimony, GAO discussed the fact
that should an applicant be determined to have a functional
capacity of less than the full range of sedentary work, this
classification is likely to lead to an award. GAO reports that
decisionmakers in the State DDSs make this classification in
less than 6% of the allowed cases. ALJs, however, utilize this
classification in 63% of allowed cases. How does this happen?
Answer. We are continuing to study functional capacity
assessment at all levels of the process to determine the
reasons for differences and have taken steps to address this
issue, including recent issuance of Social Security Ruling 96-
9p which explains SSA policy on assessing functional capacity
for less than a full range of sedentary work. This ruling is
part of a broad array of Process Unification activities,
designed to reduce decisional inconsistencies between OHA and
the DDSs. Much of our efforts at process unification are
directed at the issue of assessing functional capacity,
especially in the more difficult cases involving pain and other
symptoms and evaluating treating physician opinion. As
mentioned in our testimony, we have recently completed a large,
national training effort in which we trained more than 15,000
individuals involved in assessing disability. This included
disability examiners, State agency medical consultants,
Administrative Law Judges (ALJs), agency attorneys, and quality
review personnel from all levels. In that training, we specifi-
cally discussed the issue of use of a functional capacity for
less than a full range of sedentary work.
Question.1B. ALJs may ask independent medical experts to
testify, yet they do so in only 11% of the hearings. How are
they, then, making what must be very difficult judgment calls
regarding how long a person can stand or walk or how much a
person can lift?
Answer. Although ALJs use the testimony of medical experts
in 11% of the hearings, the ALJ has an extensive case record
before a hearing is held. At the very least, there has been an
initial determination by the State agency followed by a
reconsideration determination by the State agency. At both
levels, the DDS is expected to document all known alleged
impairments and limitations. In addition, we have begun testing
the use of an Adjudication Officer (AO) who serves as the focal
point for all prehearing activities when a claimant requests a
hearing before an ALJ. The AO has the responsibility for
assisting the claimant and claimant's representative, as well
as ensuring that the case record is ready for a hearing.
Therefore, the ALJ has, in most cases, extensive medical
evidence which must be weighed according to SSA regulations and
rulings in order to make a disability decision. The file
includes evidence from the claimant's treating sources, as well
as the assessment of that evidence by a State agency medical
consultant.
Question. 1C. I understand that, in the long term, you are
planning to develop a simplified decision-making process which
will expand the role of functional capacity assessments. Since
differences in functional assessments are the primary reason
for inconsistent decisions, how do you justify expanding the
use of these assessments?
Answer. The adjudicator's findings, based on his or her
review of the medical and other evidence, are called a
``residual functional capacity,'' or RFC assessment. Our plans
do not call for expanding use of RFC assessments. Rather, they
call for investigating alternative ways of assessing
functioning.
As a part of its Disability Process Redesign, SSA is
engaged in a long-term research project to develop a simpler,
more efficient disability decisionmaking process. Conceptually,
this new process is expected to be based, in part, on a more
objective assessment of the functional consequences of an
individual's impairment, i.e., by using standardized measures
of functional ability. In the medical field, these standardized
measures are called functional capacity assessments or
functional capacity evaluations. We believe that reliance on
more objective functional measures will have many advantages,
including greater decisional consistency. However, we will not
use any functional assessment tool until extensive research has
been conducted and testing has been completed.
2. SSA's testimony states that the agency is also planning
to implement quality review of 10,000 favorable ALJ decisions
each year. Will these cases be reviewed by the same group of
people who review State DDS decisions? How was this number
determined and is it a valid sample?
At this time, we have not determined exactly how we will
implement the quality review nor which group will be
responsible for the review. We will advise you when the
implementation strategy is finalized.
3. A number of witnesses testified in support of SSA's
initiative to develop a ``one book'' approach, where all
decisionmakers are following the same instructions. Exactly
where is SSA on their development of ``one book'' and when will
it be made available to all decisionmakers?
Compilation of the ``one book'' is an iterative process. As
an interim measure, we have been putting the exact text of
regulations and Social Security Rulings into the POMS so that
decisionmakers at all levels will have the identical
presentation of policy. (Decisionmakers at the administrative
appeals level already use the regulations and rulings
directly.) As part of our strategy to build a single
presentation of policy, which is what the ``one book'' is
designed to be, we are also maximizing the use of Social
Security Rulings as a means of conveying policy clarification,
rather than providing such guidance in operating instructions
that apply to only one level of the process. Rulings are
binding on all levels of decisionmaking and review in our
process and are thus ideally suited to enhancing uniformity of
application of policy.
SSA began this effort by placing the text of the
regulations on symptoms, including pain, in the POMS in early
1995. Eight Rulings on the areas of symptoms, residual
functional capacity, and weighing of evidence were put into the
POMS in July 1996 and the recently published childhood
regulations were put into the POMS in March, 1997.
This process will continue with the ultimate goal being the
presentation of all substantive disability policy identically
at all levels of decisionmaking through use of regulations and
rulings.
4. In SSA's testimony, it mentioned that as part of the
Process Unification, the ALJ can remand, or return a case of
the State DDS, those cases where new medical evidence is
received prior to the hearing. This permits the DDS to allow
the case, if warranted, or to provide an explanation why the
evidence doesn't change the decision. Is this an option for the
ALJs? Isn't the public better served if the DDS can go ahead
and allow the claim, rather than have the claimant wait well
over a year for a hearing? How exactly does this process work?
Our regulations include the authority to have cases
returned to the DDS by an ALJ after the claimant has requested
a hearing and before it is held for the purpose of deciding
whether the determination may be revised. However, the case
review that is being established under process unification is
not solely to identify favorable decisions that can be
expedited (although the DDSs will have the opportunity to
prepare favorable determinations, when appropriate.) Most of
the cases that are being identified for this review are ones in
which the claimant has provided new medical evidence since the
reconsideration determination.
One purpose for sending the case to the DDS is to obtain a
review and explanation of the new medical evidence by a State
agency medical consultant. Of course, if the evidence supports
a favorable determination, the DDS will revise its
determination.
5. According to SSA testimony, the State DDSs are now being
asked to fully rationalize all of their decisions so that the
ALJ will give the DDS decision proper weight. ALJs have been
described as wearing three hats; one representing the claimant,
one representing SSA, and one as the independent decisionmaker.
It was stated that more than 80% of claimants are represented
by an attorney or other individual at the hearing, so the
claimant and their representative provide evidence in support
of their claim. How do the ALJs represent the Administration?
Do they develop evidence from other medical sources? Do they
order consultative examinations? Do you have objective data and
have you studied cases to know the degree to which this is
done?
It is the policy of the Social Security Administration that
its ALJs will fairly and fully develop any claim for benefits
which reaches the Office of Hearings and Appeals. Social
Security hearings are non-adversarial and not all claimants are
represented or capable of representing themselves. Therefore,
the ALJs have the duty to assist these claimants in getting the
evidence to perfect their claims.
There is case law in some Federal circuits holding that the
ALJs are responsible for developing the record even if the
claimant is represented. If the ALJ concludes that the evidence
is insufficient to make a decision, the ALJ can order a
consultative examination of the claimant. The ALJs may order
these examinations on their own motion or on the recommendation
of staff or medical advisors. The ALJs can also order the
examination based on a request from the claimant or
representative.
When the record is complete, the ALJs act as fact finders
and decide the case. The role of the ALJs in securing evidence,
both favorable and unfavorable to the claimant, and then
deciding the case, has led to the three hat analogy. However,
as the Supreme Court stated in Richardson v. Perales, 402 U.S.
389 (Supreme Court, 1971): ``Neither are we persuaded by the
advocate-judge-multiple-hat suggestion .... The social security
hearing examiner, furthermore, does not act as counsel. He acts
as an examiner charged with developing the facts.''
ALJs must order the consultative examination through the
State Disability Determination Services. The ALJs ordered
consultative exams for 59,168 cases in FY 1996 and 26,494 cases
for the first 6 months in 1997.
6. Do all of the ALJs write their own decisions? If not,
how many do? Why aren't the ALJs asked to write their own
decisions?
ALJs draft their own decisions when by doing so, the ALJ
would be providing better service to the public. Such a
situation would arise when the time required to draft the
decision is the same or less than the time required for the ALJ
to prepare decision draft instructions. However, when a
particular decision draft may be more time consuming, the
public is better served by having the draft prepared by an
attorney advisor or paralegal specialist. This permits the ALJ
to focus on those activities which are uniquely the province of
the ALJ, i.e., hearing and deciding cases.
During FY 1996, ALJs drafted about 66,000 decisions. During
the first half of FY 1997, ALJs have drafted about 30,000
decisions. Although some ALJs dictate or handwrite decision
drafts, the majority of ALJs who prepare drafts do so on
personal computers.
7. In his testimony, Judge Bernoski raised a series of
questions regarding the relationship of any quality assurance
system to the constitutional due process rights of claimants,
as follows. Will the rights of the claimants be protected? Will
the claimant have notice of review? Will the claimant have the
right to appear and defend their interests? How do you plan to
protect the rights of the claimants through-
out the quality review process you are establishing? Please
respond to these questions.
SSA has always ensured that the due process rights of the
claimants who file for benefits are protected. The quality
assurance review of ALJ decisions is designed to ensure
accurate and equal treatment in the decisionmaking process.
This review will be conducted under the existing regulatory
authority of the Appeals Council. Every claimant whose case is
selected for review by the Appeals Council will be notified
within the 60 day timeframe provided for by the regulation.
Where the case is remanded and corrective action is taken by
the presiding ALJ--including conducting another hearing where
needed--the claimant and/or representative will have full
access to the appropriate files, including the Appeals Council
basis for remand; and the opportunity to raise objections or
concerns. If the decision is reversed, we will provide proper
notification and the claimants appeal rights will be further
protected.
8. One of the witnesses, Senior Attorney Mr. Hill,
recommends that subject matter expertise should be included in
the ALJ selection criteria. Is it not part of the selection
criteria now? What criteria are used and how are the judges
selected?
The Office of Personnel Management (OPM) retains the
responsibility for administering the merit selection and pay
systems for ALJs government-wide. The basic qualifying
experience for ALJs includes 7 years as a practicing attorney,
preparing for, participating in, and/or reviewing formal
hearings or trials, involving administrative law and/or
litigation at the Federal, State or local level. The current
process administered by OPM for the selection of ALJs involves
OPM certifying candidates for appointment consideration from
the top of the register (i.e., those with the highest score)
without reference to a particular subject matter area or
experience in the program of the agency that requested a list
of eligibles. Under the current process, it has been OPM's
policy that if agencies can justify by empirical data gathered
through job analysis that agency-specific subject matter
expertise enhances performance on the job, OPM will give
special consideration to those applicants in certifying them to
agencies.
SSA had requested OPM to enter into an agreement to conduct
a pilot study to determine the effect that subject-matter-
specific experience has on the productivity of recently hired
ALJs at SSA. We requested that OPM consider subject-matter-
specific experience in certifying ALJ applicants because our
productivity data have shown that new ALJs with SSA disability
program experience have significantly higher productivity
during the first 9 months on the job than those ALJs without
this experience. We also found that new ALJs with such
experience can be trained more quickly and require less
mentoring from experienced ALJs. OPM had agreed to participate
in the pilot; however, we recently learned that OPM no longer
agrees to conduct the pilot. SSA considers the pilot to be
particularly important to SSA given our current disability
workload and the additional workloads projected from Welfare
Reform legislation.
The pilot study would not involve a permanent change in the
hiring process for ALJs. At the conclusion of the study, which
would last for 1 year, a determination will be made concerning
the need for change to the policy and regulation, if any, for
selection of ALJ candidates. In addition, as part of the study
requirements, SSA would continue to hire some ALJs from regular
ALJ certificates. On June 8, 1997, 31 new ALJs, who were hired
from the regular ALJ certificate, reported for duty. We have
made no selections thus far from a subject-matter-specific ALJ
certificate.
SSA has legal authority to select candidates from
certificates, including subject-matter-specific certificates,
provided to it by OPM. Furthermore, OPM has determined its own
legal authority to provide certificates to agencies requesting
them. In addition, the subject-matter-specific certificate does
not violate the intent of Congress with respect to merit
selection.
9. The National Council of Disability Determination
Directors recommends that SSA develop a shared vision of the
program among all components: quality, policy, operations and
budget. They seem to feel they are getting different messages
from each component. What are your views?
SSA works very hard on communication. The State-Federal
relationship, while very effective, provides additional
challenges in communications. The disability program has many
complex factors affecting day-to-day program administration.
Over the last several years, program administration has been
particularly complex for DDSs because of special one-time
legislated workloads they have been asked to handle in tight
timeframes, efforts to assist the Office of Hearings and
Appeals, and the various disability redesign initiatives
underway. Through all of this, DDSs have responded to the
challenges, focusing on providing the best possible service.
It is understandable that DDSs may feel they are getting
different messages from time to time as SSA strives to provide
management direction that is responsive to the workload
pressures that we face, while we continue to make needed
refinements to our processes. In addition to our ongoing daily
contacts with DDSs, SSA executives make special efforts to
communicate frequently and openly with the officers of the
National Council of Disability Determination Directors during
quarterly meetings of the National Disability Issues Group, and
with all DDS administrators twice a year during DDS Management
Forums. We will continue to do all that we can to provide
coordinated, clear direction to DDSs as we balance all of the
various facets of disability program administration.
10. Over the years, a number of questions have been raised
regarding the scope of SSA's management authority over its
ALJs. I understand that in January 1997, the Office of the
General Counsel provided a memorandum to the Commissioner which
provided clarification to this matter. Would you please comment
on the primary contents of the memorandum?
The purpose of the memorandum (attached at Tab A) was to
review the scope of management authority that SSA may exercise
over its ALJs, considering the factors that led to the passage
of the Administrative Procedure Act (APA), the protections
afforded by the APA to both ALJs and to those utilizing the
administrative process, and the often misunderstood concept of
the ALJ's ``decisional independence.''
The memorandum's primary message is that the agency has the
right and duty to ensure that its ALJs, like any other agency
adjudicators, perform their jobs with appropriate demeanor and
decorum and without bias, and that the decisions they issue on
behalf of the Commissioner be made timely, be of the highest
quality, supported by the evidence found in the record, and
consistent with the agency's procedures and interpretations of
law. The memorandum also states that, to achieve these goals,
the agency can ask ALJs to follow reasonable administrative
practices and programmatic policies as long as these do not
interfere, either directly or indirectly, with the duty of
impartiality that ALJs owe to claimants when hearing and
deciding cases. Specifically, the memorandum discusses the
agency's responsibility to ensure that its ALJs are well versed
in its interpretations of the law, and reinforces the agency's
ability to use a number of tools to guarantee that its hearing
process is operated efficiently and effectively, including the
use of reasonable production targets and quality assurance
programs.
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11. In his testimony, Judge Bernoski indicated that the
Office of General Counsel memo appears to be an attempt to
provide a legal basis to require ALJs to follow SSA policy that
is not consistent with the law. What is your reaction?
SSA's policy is to acquiesce in final circuit court
decisions which conflict with SSA's interpretation of the
Social Security Act or regulations regardless of our
disagreement with the holding. This policy has not changed
since SSA's current regulations (20 C.F.R. Sec. Sec. 404.985
and 416.1485) on acquiescence were published on January 11,
1990 (55 Fed. Reg. 1012). (See May 21, 1997, letter to you from
Acting Commissioner John J. Callahan, attached at Tab B). The
Office of the General Counsel memorandum makes no changes to
the acquiescence policy. It merely restates well-established
law that an ALJ is not free to apply his or her own
interpretation of the law, but, instead, is bound to apply the
law as enacted by the Congress as set forth by the Commissioner
through regulations and rulings.
As explained by the General Counsel in his testimony before
the Subcommittee on Commercial and Administrative Law Committee
on the Judiciary on May 22, 1997: ``Circuit court decisions are
written to decide individual cases, not to provide adjudicatory
instructions to decisionmakers, and are therefore often subject
to disparate interpretations, particularly when the myriad
possible situations to which they may apply are considered. If
each of SSA's thousands of decisionmakers were responsible for
interpreting circuit court holdings, it could result in
conflicting decisions by different decisionmakers, even within
the same circuit. SSA would have no way to ensure uniform
application of eligibility standards as required by law,
leading to further litigation. Indeed, SSA would have no
mechanism to ensure that agency rules are consistently applied,
since under this approach, it would be the adjudicator's role
to interpret circuit court decisions for him or herself.
Instead, the interpretation of a circuit court's decision and
its consistency with SSA policy is appropriately made with
careful scrutiny by SSA officials who have a broad
understanding of national policy and who work closely with
Department of Justice attorneys in this effort. If an ALJ or
other decisionmaker believes that a particular circuit court
decision conflicts with SSA policy, the decisionmaker can
provide input to the Office of General Counsel through the
appropriate channels about either appealing the case or issuing
an Acquiescence Ruling.''
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12. Judge Bernoski also asked the question ``how does an
agency `manage' the administrative hearing process and not
trample on the rights of the claimants?'' How do you respond?
As the January 28, 1997, Office of the General Counsel
memorandum makes clear, part of the agency's responsibility in
managing the administrative hearing process is to ensure that
the rights of the claimants are protected, and that the
agency's adjudicators are conducting themselves appropriately
through the hearing process, including issuing fair and legally
sufficient decisions. If a claimant believes that the hearing
process used to decide the case did not comport with legal
requirements, he or she can appeal the decision through the
administrative appeals process and seek review in federal
court. It would be far more likely that the rights of
individual claimants would be ``trampled'' if each ALJ were
free to determine for himself or herself what the proper
procedures and policy should be, than under the current system
in which it is the agency which promulgates rules and
regulations, in accordance with statute, to protect claimants'
rights and can be held accountable for ensuring that such rules
and regulations are properly administered.
13. In his testimony, Judge Bernoski indicated that the
largest distinguishing factor for difference in results between
DDSs and ALJs is the use of the legal standard at the appellate
level which provides the claimant with the benefit of the full
scope of the law for the adjudication of the claim. The DDS
standard is set forth in instructions used only by DDS
decisionmakers and not the judges (these are referred to as
POMS). What are your views?
For the past two years, SSA has had a workgroup of senior
SSA and DDS officials studying the disability process at both
the DDS and ALJ levels. This included looking at the so-called
``medical'' versus ``legal'' model. We have concluded that
disability is now, and always has been, a medical-legal issue,
and we disagree with Judge Bernoski that the largest
distinguishing factor for difference in results is ``the use of
the legal standard at the appellate level.''
SSA has also looked extensively at the regulations,
rulings, and POMS that provide instructional guidance to our
adjudicators and concluded that there is no substantive
difference between the regulations and rulings used by the ALJs
and the POMS used by the DDSs. In other words, there is not a
different substantive legal standard applied at the appellate
level. However, we are aware that there is a perception by some
(such as Judge Bernoski) that the different instructional
materials result in differences. That is why we are preparing a
single presentation of policy that will be used by all
decisionmakers.
Finally, there are some differences between the DDS and ALJ
levels that are intentional. The ALJ conducts a formal hearing
in which the claimant can appear before an ALJ and has due
process rights, such as the right to request subpoenas and to
cross-examine witnesses. These procedural differences naturally
have some affect on the ALJ decisions; however, the policies
for determining disability are the same for all adjudicative
levels.
Chairman Bunning. Thank you. Thank you all for your
testimony. We appreciate it very much.
If the next panel would come forward.
GAO, the General Accounting Office, at my request, has been
investigating SSA's management of the disability program with
particular focus on the reasons for differences in DDS and ALJ
decisions. Presenting the GAO findings are Jane Ross, the
Director, and Cynthia Bascetta, Assistant Director of Income
Security Issues of the Health, Education, and Human Services
Division.
Ms. Ross, would you please begin, once you get settled.
STATEMENT OF JANE L. ROSS, DIRECTOR, INCOME SECURITY ISSUES,
HEALTH, EDUCATION, AND HUMAN SERVICES DIVISION, U.S. GENERAL
ACCOUNTING OFFICE; ACCOMPANIED BY CYNTHIA BASCETTA, ASSISTANT
DIRECTOR, INCOME SECURITY ISSUES, HEALTH, EDUCATION, AND
HUMAN SERVICES DIVISION
Ms. Ross. Good morning, Mr. Chairman. Thank you for
inviting me to testify on SSA's management of its disability
programs.
My testimony is based on our reports and ongoing study
which we are conducting for you. As you know and as you have
just heard, SSA set out in 1994 to redesign disability
decisionmaking to improve its timeliness, efficiency, and
consistency. It undertook redesign because the lengthy and
complicated decisionmaking process and the inconsistent
decisions between adjudicative levels compromise the integrity
of disability determinations and result in poor service for
people applying for benefits.
SSA has an opportunity now if it follows through on its
plans to finally address some of the longstanding problems with
disability decisionmaking.
I want to talk briefly about the number of cases awaiting
ALJ hearings. This backlog began to grow dramatically in 1987.
By 1996 the backlog had reached 475,000 cases. The huge
increases in the number of appeals contributed to a rise in
averaging processing time which now exceeds 375 days.
SSA acted to try and reduce this backlog by developing
their short-term disability project, and under this project,
SSA staff review and attempt to resolve appealed cases before
they are actually assigned to ALJs, but despite this short-term
initiative, the agency wasn't able to reach its goal, so the
current backlog is now about 491,000 cases.
The point we would like to make here is, even though the
goal hasn't been reached, about 98,000 more cases would have
been added to the backlog without this short-term initiative.
So we urge SSA to continue its short-term effort while it is
moving ahead to more fundamentally change their disability
determination process.
Besides the backlog, high ALJ allowances have been a
subject of concern for many years, as you have said. Because
ALJs allow about two-thirds of all the cases they decide, there
is a real incentive for claimants to appeal, and indeed, for
several years, about three-quarters of everyone whose claim has
been denied at the DDS reconsideration level has appealed their
claims.
Under Process Unification, which is a part of SSA's
redesign plan, several initiatives were developed specifically
with the objective of achieving similar decisions on similar
cases regardless of whether the case was decided at the DDS or
ALJ level.
SSA expects that improving the consistency of decisions
will result in a substantial reduction in the proportion of
appealed cases and a reduction of ALJ allowance rates as well.
You can observe in table 1 of the written testimony you may
have before you the current high rate of inconsistency between
DDSs and ALJs. You can notice that DDS award rates vary by
impairment type from 11 percent for back impairments to 54
percent for mental retardation.
In contrast, ALJ award rates are uniformly high, with much
smaller amounts of variation. For physical impairments, as you
can see on the table, ALJs award about 74 percent of their
claims, and for mental impairments, about 87 percent.
We were able to determine three major reasons for these
inconsistencies. Briefly, it has to do with the differences in
approach between ALJs and DDSs, the difference in their
procedures, and the difference in their quality assurance
reviews.
Let me just summarize my conclusion. SSA is on the verge of
implementing several initiatives to reduce these three sources
of inconsistency and issued rulings last July to remind DDSs
and ALJs of agency policies related to evaluating evidence and
following the Commissioner's guidance.
They also plan to return to DDSs about 100,000 cases a year
for further consideration when new evidence is introduced at
the ALJ level and to review about 10,000 ALJ awards per year to
assure the ALJ allowances are appropriate, but here is our
major point we would like to emphasize.
There are other high priority issues that are causing
workload pressures for SSA, for all of their adjudicators. For
instance, SSA is required to conduct hundreds of thousands more
continuing disability reviews to ensure that beneficiaries are
still eligible for benefits. They are required to readjudicate
over 300,000 childhood disability cases by February 1998. Our
concern is how they are going to be able to manage all of these
initiatives at the same time, along with keeping a high
priority on Process Unification.
To follow through on its initiatives to address the
longstanding problem of decisional inconsistency, we believe
that SSA, in consultation with this Subcommittee and others,
will need to sort through its many priorities and do a better
job of holding itself accountable for meeting its deadlines.
Otherwise, plans and target dates will remain elusive goals and
may never yield the benefits of helping to restore public
confidence in decisionmaking and improving service to the
public.
Mr. Chairman, this concludes my prepared statement. I would
be glad to answer your questions.
[The prepared statement follows:]
Statement of Jane L. Ross, Director, Income Security Issues, Health,
Education, and Human Services Division, U.S. General Accounting Office
SSA Actions to Reduce Backlogs and Achieve More Consistent Decisions
Deserve High Priority
Mr. Chairman and Members of the Subcommittee:
Thank you for inviting me to testify on the Social Security
Administration's (SSA) management of the Disability Insurance
(DI) and Supplemental Security Income (SSI) programs. In 1995,
these programs paid benefits approaching $60 billion a year and
served nearly 7 million working-age adults. As you are aware,
SSA's process has been overwhelmed with a large number of
appealed cases, which grew from about 225,000 in fiscal year
1986 to about 498,000 in fiscal year 1996.
Today I will discuss actions that SSA undertook, beginning
in 1994, to improve the timeliness, efficiency, and consistency
of disability decisions. Its actions resulted from a
realization that the lengthy and complicated decision-making
process and the inconsistency of decisions between adjudicative
levels compromise the integrity of disability determinations.
More specifically, I will describe SSA's actions to reduce the
current backlog of cases appealed to the agency's
administrative law judges (ALJ). Then I will discuss how
functional assessments, differences in procedures, and quality
review contribute to inconsistent results between different
decisionmakers and describe SSA's strategy to obtain greater
decisional consistency. My testimony is based on our reports
and our ongoing studies of SSA's disability programs being
conducted for the Chairman of the Subcommittee. (See the list
of related GAO products.)
In summary, our work shows that while SSA has developed
broad-based plans to improve the management of its disability
programs, many initiatives are just beginning and their
effectiveness can be assessed only after a period of full-scale
implementation. For example, in the short term, SSA has taken
action to try to deal with the backlog crisis, but it is still
about 116,000 cases over its December 1996 goal of 375,000
cases. In the longer term, SSA needs to come to grips with the
systemic factors causing inconsistent decisions, which underlie
the current high level of appealed cases and, in turn, the
backlog crisis. For example, we found that differences in
assessments of functional capacity, different procedures, and
weaknesses in quality reviews contribute to inconsistent
decisions. Although SSA is on the verge of implementing
initiatives to deal with these factors, we are concerned that
other congressionally mandated workload pressures, such as
significantly increasing the number of continuing disability
reviews and readjudicating childhood cases, could jeopardize
the agency's ability to move ahead with its initiatives to
reduce inconsistent decisions.
Background
SSA's disability programs provide cash benefits to people
with long-term disabilities. The DI program provides monthly
cash benefits and Medicare eligibility to severely disabled
workers; SSI is an income assistance program for blind and
disabled people. The law defines disability for both programs
as the inability to engage in substantial gainful activity
because of a severe physical or mental impairment that is
expected to last at least 1 year or result in death.
Both DI and SSI are administered by SSA and state
disability determination services (DDS). SSA field offices
determine whether applicants meet the nonmedical criteria for
eligibility and at the DDSs, a disability examiner and a
medical consultant (physician or psychologist) make the initial
determination of whether the applicant meets the definition of
disability. Denied claimants may ask the DDS to reconsider its
finding and, if denied again, may appeal to an ALJ within SSA's
Office of Hearings and Appeals (OHA). The ALJ usually conducts
a hearing at which applicants and medical or vocational experts
may testify and submit new evidence. Applicants whose appeals
are denied may request review by SSA's Appeals Council and may
further appeal the Council's decision in federal court.
Between fiscal years 1986 and 1996, the increasing number
of appealed cases has caused workload pressures and processing
delays. During that time, appealed cases increased more than
120 percent. In the last 3 years alone, average processing time
for appealed cases rose from 305 days in fiscal year 1994 to
378 days in fiscal year 1996 and remained essentially the same
for the first quarter of fiscal year 1997. In addition,
``aged'' cases (those taking 270 days or more for a decision)
increased from 32 percent to almost 43 percent of the
backlog.\1\
---------------------------------------------------------------------------
\1\ Processing time represents total OHA workloads, which include
appealed Medicare cases.
---------------------------------------------------------------------------
In addition to the backlog, high ALJ allowances (in effect,
``reversals'' of DDS decisions to deny benefits \2\) have been
a subject of concern for many years. Although the current ALJ
allowance rate has dropped from 75 percent in fiscal year 1994,
ALJs still allow about two-thirds of all disability claims they
decide. Because chances for award at the appeals level are so
favorable, there is an incentive for claimants to appeal. For
several years, about three-quarters of all claimants denied at
the DDS reconsideration level have appealed their claims to the
ALJ level.\3\
---------------------------------------------------------------------------
\2\ ALJ decisions are said to be de novo, or ``afresh.''
\3\ About one-third of claimants denied at the initial DDS-level
appeal, while the rest abandon their cases.
---------------------------------------------------------------------------
In 1994, SSA adopted a long-term plan to redesign the
disability decision-making process to improve its efficiency
and timeliness. As a key part of this plan, SSA developed
initiatives to achieve similar decisions on similar cases
regardless of whether the decisions are made at the DDS or the
ALJ level. In July 1996, several of these initiatives, called
``process unification,'' were approved for implementation by
SSA's Commissioner. SSA expects that process unification will
result in correct decisions being made at the earliest point
possible, substantially reducing the proportion of appealed
cases and ALJ allowance rates as well.
Because SSA expects that implementation of its redesigned
disability decision-making process will not be completed until
after the year 2000, SSA developed a Short Term Disability
Project Plan (STDP) to reduce the existing backlog by intro-
ducing new procedures and reallocating staff. STDP is designed
to expedite processing of claims in a way that will support
redesign and achieve some near-term results in reducing the
backlog. SSA expects that STDP's major effect will come
primarily from two initiatives--regional screening unit and
prehearing conferencing activities. In the screening units, DDS
staff and OHA attorneys work together to identify claims that
could be allowed earlier in the appeals process. Prehearing
conferencing shortens processing time for appealed cases by
assigning OHA attorneys to perform limited case development and
review cases to identify those that could potentially be
allowed without a formal hearing. The plan called for reducing
the backlog to 375,000 appealed cases by December 31, 1996.
Despite SSA's Efforts, SSA Still Faces a High BAcklog
Despite SSA attempts to reduce the backlog through its STDP
initiatives, the agency did not reach its goal of reducing this
backlog to 375,000 by December 1996.\4\ SSA attributes its
difficulties in meeting its backlog target to start-up delays,
overly optimistic projections of the number of appealed cases
that would be processed, and an unexpected increase in the
number of appealed cases. The actual backlog in December was
about 486,000 cases and has risen in the last few months to
491,000 cases, still about 116,000 over its goal. Although SSA
did not reach its backlog goal, about 98,000 more cases may
have been added to the backlog if STDP steps had not been
undertaken. The contribution made by STDP underscores the need
for SSA to continue its short-term effort while moving ahead to
address the disability determination process in a more
fundamental way in the long term.
---------------------------------------------------------------------------
\4\ SSA's goal included Medicare claims, which ALJs also decide.
However, the STDP initiatives focused only on disability claims, which
represented about 94 percent of the backlog in fiscal year 1996.
---------------------------------------------------------------------------
Decision-Making Process Yields High Degree of Inconsistency Between
DDSs and ALJs
In addition to the backlog problem, SSA's decision-making
process has produced a high degree of inconsistency between DDS
and ALJ awards, as shown in table 1. Although award rates
representing DDS decision-making vary by impairment, ALJ award
rates are high regardless of the type of impairment. For
example, sample data showed that DDS award rates ranged from 11
percent for back impairments to 54 percent for mental
retardation. In contrast, ALJ award rates averaged 77 percent
for all impairment types with only a smaller amount of
variation among impairment types.
Table 1: Award Rates at DDS and ALJ Levels by Impairment Type
------------------------------------------------------------------------
DDS award ALJ award
rates rates
(percent) (percent)
------------------------------------------------------------------------
Physical................................ 29 74
Musculoskeletal......................... 16 75
Back cases.............................. 11 75
Other musculoskeletal................... 23 76
Other physical.......................... 36 74
Mental.................................. 42 87
Illness................................. 39 87
Retardation............................. 54 84
All impairments......................... 30 77
------------------------------------------------------------------------
Note: ALJ data are from an ongoing SSA study. Data include ALJ cases
decided from September 1, 1992, through April 30, 1995. Study samples
excluded certain types of cases, such as children's cases. DDS data
for the same period and types of cases were obtained from SSA's
administrative database.
Disability Determinations Require Complex Judgment
SSA's process requires adjudicators to use a five-step
sequential evaluation process in making their disability
decisions (see table 2). Although this process provides a
standard approach to decision-making, determining disability
often requires that a number of complex judgments be made by
adjudicators at both the DDS and ALJ levels.
Table 2: Five-Step Sequential Evaluation Process for Determining Disability
----------------------------------------------------------------------------------------------------------------
Action or decision taken if answer to question
Questions asked in the is:
Step sequential process -------------------------------------------------
Yes No
----------------------------------------------------------------------------------------------------------------
1.................................... Is the claimant Stop--claimant is not Go to step 2
engaging in disabled.
substantial gainful
activity?.
2.................................... Does the claimant have Go to step 3........... Stop--claimant is not
an impairment that has disabled
more than a minimal
effect on the
claimant's ability to
perform basic work
tasks and is expected
to last at least 12
months?.
3.................................... Do the medical facts Stop--claimant is Go to step 4
alone show that the disabled.
claimant's impairment
meets or equals the
medical criteria for
an impairment in SSA's
Listing of
Impairments?.
4.................................... Comparing the Stop--claimant is not Go to step 5
claimant's residual disabled.
functional capacity
with the physical and
mental demands of the
claimant's past work,
can the claimant
perform his or her
past work?.
5.................................... Based on the claimant's Claimant is not Claimant is disabled
residual functional disabled.
capacity and any
limitations that may
be imposed by the
claimant's age,
education, and skill
level, can the
claimant do work other
than his or her past
work?.
----------------------------------------------------------------------------------------------------------------
As the application proceeds through the five-step process,
claimants may be denied benefits at any step, ending the
process. Steps 1 and 2 ask questions about the claimant's work
activity and the severity of the claimant's impairment. If the
reported impairment is judged to be severe, adjudicators move
to step 3. At this step, they compare the claimant's condition
to a listing of medical impairments developed by SSA. Claimants
whose conditions meet or are medically equivalent to the
listings are presumed by SSA to be unable to work and are
awarded benefits. Claimants whose conditions do not meet or
equal the listings are then assessed at steps 4 and 5, where
decisions must be made about the claimant's ability to perform
prior work and any other work that exists in the national
economy. To do this, adjudicators assess the claimant's
capacity to function in the workplace.
DDS and ALJ adjudicators exercise considerable judgment
when making these functional assessments. They must consider
and weigh all available evidence, including physician opinions
and reported symptoms, such as pain. Mental impairment
assessments include judgments about the claimant's ability to
understand, remember, and respond appropriately to supervision
and normal work pressures. For physical impairments,
adjudicators judge the claimant's ability to walk, sit, stand,
and lift. To facilitate this, SSA has defined five levels of
physical exertion ranging from very heavy to sedentary.
However, for those claimants unable to perform even sedentary
activities, adjudicators may determine that a claimant can
perform ``less than a full range of sedentary'' activities, a
classification that often results in a benefit award.
DDSs and ALJs Differ Primarily Over Claimant's Functional Abilities
Our analysis found that differing functional assessments by
DDSs and ALJs are the primary reason for most ALJ awards. Since
most DDS decisions use all five steps of the sequential
evaluation process before denying a claim, almost all DDS
denial decisions appealed to ALJs included such a functional
assessment. On appeal, the ALJ also follows the same sequential
evaluation process as the DDS and also assesses the claimant's
functional abilities in most awards they make.
Data from SSA's ongoing ALJ study indicate that ALJs are
much more likely than DDSs to find that claimants have severe
limitations in functioning in the workplace (see table 3).
Table 3: DDS and ALJ Differences in Functional Assessment
Classifications for Physical Impairment Awards
------------------------------------------------------------------------
Percentage of awards
-------------------------------
Level of physical exertion determined by Quality
functional assessment reviewers Original
using DDS awarding ALJs
approach
------------------------------------------------------------------------
Heavy work (or no limiting effect on
physical effort)....................... 0 0
Medium work............................. 22 1
Light work.............................. 56 8
Sedentary work.......................... 15 25
Less than the full range of sedentary
work................................... 6 66
------------------------------------------------------------------------
Note: Data are for ALJ awards made from September 1992 through April
1995.
Most notably, in the view of the awarding ALJs, 66 percent
of the cases merited a functional capacity assessment of ``less
than the full range of sedentary'' work--a classification that
is likely to lead to an award. In contrast, reviewers, using
the DDS approach, found that less than 6 percent of the cases
merited this classification.
Functional assessment also played a key role in a 1982 SSA
study, which controlled for differences in evidence. This study
indicated that DDS and ALJ decisionmakers reached different
results even when presented with the same evidence.\5\ As part
of the study, selected cases were reviewed by two groups of
reviewers--one group reviewing the cases as ALJs would and the
other reviewing the cases as DDSs would. Reviewers using the
ALJ approach concluded that 48 percent of the cases should have
received awards, while reviewers using the DDS approach
concluded that only 13 percent of those same cases should have
received awards.
---------------------------------------------------------------------------
\5\ Implementation of Section 304 (g) of Public Law 96-265, Social
Security Disability Amendments of 1980: Report to the Congress by the
Secretary of Health and Human Services, SSA, Department of Health and
Human Services (Jan. 1982). This report is commonly known as the
``Bellmon Report.''
---------------------------------------------------------------------------
The use of medical expertise appears to influence the
decisional differences at the DDS and ALJ levels. At the DDS
level, medical consultants are responsible for making
functional assessments. In contrast, ALJs have the sole
authority to determine functional capacity and often rely on
claimant testimony and the opinions of treating physicians.
Although ALJs may call on independent medical experts to
testify, our analysis shows that they do so in only 8 percent
of the cases resulting in awards.
To help reduce inconsistency, SSA issued nine rulings on
July 2, 1996, which were written to address pain and other
subjective symptoms, treating source opinions, and assessing
functional capacity.\6\ SSA also plans to issue a regulation to
provide additional guidance on assessing functional capacity at
both the DDS and ALJ levels, specifically clarifying when a
``less than sedentary'' classification is appropriate.\7\ In
addition, based on the nine rulings, SSA completed nationwide
process unification training of over 15,000 adjudicators and
quality reviewers between July 10, 1996, and February 26, 1997.
In the training, SSA emphasized that it expects the ``less than
sedentary'' classification would be used rarely. In the longer
term, SSA plans to develop a simplified decision-making
process, which will expand the role of functional capacity
assessments. Because differences in functional capacity
assessments are the primary reason for inconsistent decisions,
SSA should proceed cautiously with its plan to expand the use
of such assessments.
---------------------------------------------------------------------------
\6\ Federal Register, 61 F.R. 34466-34492 (July 2, 1996).
\7\ SSA told us that the notice of proposed rulemaking on the
``less than sedentary'' regulations is ready for release but did not
provide the date when it would be issued.
---------------------------------------------------------------------------
Procedures Limit Use of DDS Decisions as a Foundation for ALJ Decisions
Procedures at the DDS and ALJ levels limit the usefulness
of the DDS decision as a foundation for the ALJ decision.
Often, ALJs are unable to rely on DDS decisions because they
lack supporting evidence and explanations of the reasons for
denial, laying a weak foundation for the ALJ decision if the
case is appealed. Moreover, although SSA requires ALJs to
consider the DDS medical consultant's assessment of functional
capacity, procedures at the DDS level do not ensure that such
assessments are clearly explained. In a 1994 study, SSA found
that written explanations of critical issues at the DDS level
were inadequate in about half of the ap-
pealed cases that turned on complex issues.\8\ Without a clear
explanation of the DDS decision, the ALJ could neither
effectively consider it nor give it much weight.
---------------------------------------------------------------------------
\8\ Findings of the Disability Hearings Quality Review Process,
Office of Program and Integrity Reviews, Social Security Administration
(Sept. 1994).
---------------------------------------------------------------------------
At the ALJ level, claimants are allowed to claim new
impairments and submit new or additional evidence, which also
affects consistency between the two levels. Moreover, in about
10 percent of cases appealed to the ALJ level, claimants switch
their primary impairment from a physical claim to a mental
claim. In addition, data from a 1994 SSA study show that
claimants submit additional evidence to the ALJ in about three-
quarters of the sampled cases, and that additional evidence was
an important factor in 27 percent of ALJ allowances.
To address the documentation issues, SSA plans to take
steps to ensure that DDS decisions are better explained and are
based on a more complete record so that they are more useful if
appealed. On the basis of feedback during the process
unification training, SSA plans further instructions and
training in May 1997 for the DDSs on how and where in the case
files they should explain how they reached their decisions. SSA
also plans to issue a regulation clarifying the weight given to
the DDS medical consultants' opinions at the ALJ level.\9\
---------------------------------------------------------------------------
\9\ SSA told us that the notice of proposed rulemaking on the DDS
medical consultants' opinions is in final clearance within SSA.
---------------------------------------------------------------------------
To deal with the potential effect of new evidence, SSA
plans to return to the DDSs about 100,000 selected cases a year
for further consideration when new evidence is introduced at
the ALJ level. In cases where the DDS would award benefits, the
need for a more time-consuming and costly ALJ decision would be
avoided. SSA plans to implement this project in May 1997.
Moreover, SSA's decision to limit such returns to about 100,000
cases may need to be reassessed in light of the potential
benefits that could accrue from this initiative.
Quality Reviews do not Focus on Inconsistency Between DDSs and ALJs
Although SSA has several quality review systems to examine
disability decisions, none is designed to identify and
reconcile factors that contribute to differences between DDS
and ALJ decisions. For example, although ALJs are required to
consider the opinion of the DDS medical consultant when making
their own assessment of a claimant's functional capacity, such
written DDS opinions are often lacking in the case files.
Quality reviews at the DDS level do not focus effectively on
whether or how well these opinions are explained in the record,
despite the potential importance of such medical opinion
evidence at the ALJ level. Moreover, SSA reviews too few ALJ
awards to ensure that ALJs give appropriate consideration to
the medical consultants' opinions or to identify means to make
them more useful to the ALJs. Feedback on these issues could
help improve consistency by making the DDS decision a more
useful part of the overall adjudication process.
To improve consistency, SSA is completing work on a notice
of proposed rulemaking, with a target issue date of August 1997
for a final regulation, to establish the basis for reviewing
ALJ awards, which would require ALJs to take corrective action
on remand orders from the Appeals Council before benefits are
paid. SSA has just started conducting preliminary reviews of
ALJ awards, beginning with 200 cases a month. After the
regulation is issued, they plan to increase the number of cases
per month. SSA has set a first-year target of 10,000 cases to
be reviewed, but this reflects only about 3 percent of
approximately 350,000 award decisions made by ALJs in 1996.
Ultimately, SSA plans to implement quality review measures to
provide consistent feedback on the application of policy. By
doing this, the agency hopes to ensure that the correct
decision is made at the earliest point in the process.
Competing Workloads Could Jeopardize Initiatives to Improve Consistency
of Decisions
At the same time that SSA is trying to begin implementation
of its process unification initiatives, it faces significantly
increasing workloads at all levels of adjudication. In
particular, efforts to improve decisional consistency will
compete with specific congressional mandates for time and
resources. For example, the Social Security Independence and
Program Improvements Act of 1994 and the Personal
Responsibility and Work Opportunity Reconciliation Act of 1996
require hundreds of thousands of more continuing disability
reviews (CDR) to ensure that beneficiaries are still eligible
for benefits. By law, SSA will be required to conduct CDRs for
at least 100,000 more SSI beneficiaries annually through fiscal
year 1998. Last year, the Congress increased CDR requirements
for children on SSI, requiring them at least every 3 years for
children under age 18 who are likely to improve and for all
low-birthweight babies within the first year of life. In
addition, SSA is required to redetermine, using adult criteria,
the eligibility of all 18-year-olds on SSI beginning on their
18th birthdays and to readjudicate 332,000 childhood disability
cases by August 1997. Finally, thousands of noncitizens and
drug addicts and alcoholics could appeal their benefit
terminations, further increasing workload pressures.
Concluding Observations
Despite SSA's Short Term Disability Project Plan, the
appealed case backlog is still high. Nevertheless, because the
backlog would have been even higher without STDP, SSA will need
to continue its effort to reduce the backlog to a manageable
level until the agency, as a part of its long-term redesign
effort, institutes a permanent process to ensure timely and
expeditious disposition of appeals.
In addition, SSA is beginning to move ahead with more
systemwide changes in its redesign of the disability claims
process. In particular, it is on the verge of implementing
initiatives to redesign the process, including ones for
improving decisional consistency and the timeliness of overall
claims processing. However, competing workload demands could
jeopardize SSA's ability to make progress in reducing
inconsistent decisions.
We urge the agency to follow through on its initiatives to
address the long-standing problem of decisional inconsistency
with the sustained attention required for this difficult task.
To do so, SSA, in consultation with this Subcommittee and
others, will need to sort through its many priorities and do a
better job of holding itself accountable for meeting its
deadlines. Otherwise, plans and target dates will remain
elusive goals and may never yield the dual benefits of helping
to restore public confidence in the decision-making process and
contributing to permanent reductions in backlog.
Mr. Chairman, this concludes my prepared statement. At this
time, I will be happy to answer any questions you or the other
Subcommittee members may have.
For more information on this testimony, please call Cynthia
Bascetta, Assistant Director, at (202) 512-7207. Other major
contributors are William Hutchinson, Senior Evaluator; Carol
Dawn Petersen, Senior Economist; and David Fiske, Ellen
Habenicht, and Carlos Evora, Senior Evaluators.
Related GAO Products
Appealed Disability Claims: Despite SSA's Efforts, It Will Not
Reach Backlog Reduction Goal (GAO/HEHS-97-28, Nov. 21, 1996).
Social Security Disability: Backlog Reduction Efforts Under Way;
Significant Challenges Remain (GAO/HEHS-96-87, July 11, 1996).
Social Security Disability: Management Action and Program Redesign
Needed to Address Long-Standing Problems (GAO/T-HEHS-95-233, Aug. 3,
1995).
Disability Insurance: Broader Management Focus Needed to Better
Control Caseload (GAO/T-HEHS-95-233, May 23, 1995).
Social Security: Federal Disability Programs Face Major Issues
(GAO/T-HEHS-95-97, Mar. 2, 1995).
Social Security Disability: SSA Quality Assurance Improvements Can
Produce More Accurate Payments (GAO/HEHS-94-107, June 3, 1994).
Social Security: Most of Gender Difference Explained (GAO/HEHS-94-
94, May 27, 1994).
Social Security: Disability Rolls Keep Growing, While Explanations
Remain Elusive (GAO/HEHS-94-34, Feb. 8, 1994).
Social Security: Increasing Number of Disability Claims and
Deteriorating Service (GAO/HRD-94-11, Nov. 10, 1993).
Social Security: Rising Disability Rolls Raise Questions That Must
Be Answered (GAO/T-HRD-93-15, Apr. 22, 1993).
Social Security Disability: Growing Funding and Administrative
Problems (GAO/T-HRD-92-28, Apr. 27, 1992).
Social Security: Racial Difference in Disability Decisions Warrants
Further Investigation (GAO/HRD-92-56, Apr. 21, 1992).
Social Security: Results of Required Reviews of Administrative Law
Judge Decisions (GAO/HRD-89-48BR, June 13, 1989).
Chairman Bunning. Thank you, Ms. Ross.
In reading your testimony, it is clear the ALJ association
has a number of disagreements with many of your findings. Did
GAO talk to the ALJs in conducting its work for this study?
Ms. Ross. First of all, let me just say that our study
hasn't been released yet. So I am not sure what it is the ALJ
association is actually objecting to, except, perhaps, a one-
page summary that went out with your hearing notice, but more
specifically to the point of whom we talked to, we talked to
the current acting president of the ALJ association, as well as
the former president. In addition, we talked to 20
administrative law judges and some regional chief judges and
hearing office judges. So we think we have done a very good job
of making the ALJ context at the whole range of the ALJ level,
but let me also say the major focus of the work we are doing
for you is a data analysis. We are looking at the data on how
these inconsistencies occur, where and why. We are using our
interviews to confirm what we find, but the major thing is a
solid analysis from data that SSA has shared with us.
Chairman Bunning. In looking at that data, as you say GAO
is doing, do you find the disability determination being done
on a medical or legal basis?
Ms. Ross. I think the appropriate answer is that disability
determination is a mix of the two. On the medical dimension,
both the DDSs and the ALJs are required to go through a fairly
extensive sequential evaluation of a person's impairment. Is it
severe? Does it meet medical listings? Does it allow people to
continue to function in the workplace? So both the ALJ and the
DDS examiner are supposed to use that same set of criteria.
The way in which they evaluate that is different, and that
is part of the issue, but they both are supposed to have a
medical dimension, and obviously, they are both supposed to do
their evaluation within the law, the regulations, and the
rulings of the SSA. So I think it is both legal and medical,
and it ought to be consistent for both levels.
Chairman Bunning. Would it help for a more consistent
ruling if, when the applicant applies, nothing could be added
to the record from that point forward? Do you think that that
would help or hinder the ALJs and the DDSs in being more
consistent in their determinations and reduce this high rate of
overturning at the ALJ level?
Ms. Ross. You have put your finger on something important
because the ALJs say that in 27 percent of the cases they
allow, new evidence has been an important factor. So we have to
be aware that for over one-quarter of the cases, new evidence
was not only added, but was quite relevant.
Under Process Unification, what Social Security is
contemplating doing is taking 100,000 of those cases with new
evidence and shipping them back for the DDSs to look at again.
I think there, the idea behind that is, if people understand
that they ought to get their evidence in earlier, perhaps they
will.
Chairman Bunning. But what if we just cut it off? In other
words, what if a new law said that once you start the process,
if you have significant new evidence, you have to go back to
the starting line? In other words, you can't just add to the
process as you move to the ALJ and the appellate level because,
obviously, with different evidence, the ALJs are going to rule
differently than the DDSs did at the beginning. That is the
problem we are having, or at least a major portion of the
problem.
Ms. Ross. That is a piece of the problem.
Let me tell you what GAO's major concern is, and I alluded
to it at the end of my testimony. From a management
perspective, we are concerned about how many things SSA can
take on all at the same time, and I would put this closing the
record in that category. It may very well be a good idea.
When we testified before you a year and a half ago, we said
it may well be a good idea, but I have some concerns about how
many things SSA can undertake at the same time, and so I would
just put it into that category of let's be cautious about how
many more things we ask SSA to do.
Chairman Bunning. This will be the last question because I
had given myself 5 minutes and I am over 5 minutes, but the
fact of the matter is, by law, SSA, as an independent agency,
is supposed to do CDR reviews. They are supposed to do
disability determinations. They are supposed to do all of these
things you are concerned about.
You have yet to make a recommendation to us, if you want
to, on how SSA might do things so that they can process all of
the workloads they are expected to.
So, if you want to make some recommendations to this
Subcommittee on how to alleviate SSA's problems in their
workload processing that by law they are required to do, we are
willing to listen to anything you might suggest because we want
them to do their job more efficiently and effectively.
Ms. Ross. I would suggest that that is SSA's business and
SSA's responsibility.
As you suggested earlier on when you were speaking with
them, you asked them for legislative proposals, and I think one
of the things that might be appropriate to come forward with is
some balancing of a set of things. If, in fact, they don't have
the resources to do all of these requirements at the same time,
I think it behooves them to come back to you and say, We want
to do them all, we don't have the resources, or we need to make
some adjustments.
GAO has the concern, but they have the expertise to tell
you whether they can get these all done.
Chairman Bunning. Ms. Ross, we did put an awful lot of
money in CDR reviews, and when given good cause to do things
like that, we have tried to cooperate with the SSA.
Ms. Ross. Absolutely.
Chairman Bunning. So, when they come with proposals, we
will examine them, but yet, they didn't come to us with the CDR
proposal. We did that on our own.
Ms. Ross. I am urging that they think about coming because
we have heard some concerns about their workload. So I think it
behooves them to come and discuss it with you.
Chairman Bunning. Thank you.
Mrs. Kennelly.
Mrs. Kennelly. Thank you.
I would like to go back to the medical piece. The DDSs get
a medical decision very often from a doctor who hasn't seen the
patient. Then you get to the point where you appeal to the
judge, and the judge has a physician there, often, the treating
physician.
So I would, once again, assume that this is part of the
problem, and I will take that a step further, asking your
opinion. If the Chairman suggests no new information, God
forbid we would start with the DDS and not be able to get the
medical information from the doctor who understands the case.
I wonder if you would comment on this process of, first,
having a doctor who doesn't know the patient personally, then
when appeals come, the doctor who somewhat knows the patient
gets more involved. Obviously, that is setting you up for
somewhat of a different opinion.
Does it make sense to give weight to a medical finding when
the physician has never seen the applicant, as the DDSs do?
Ms. Ross. The DDSs have available to them the medical
evidence from the treating physician. They have or can have
available evidence from the treating physician and all of their
medical records. That is the sort of thing that is supposed to
be shipped to the DDS initially.
Mrs. Kennelly. But I believe the figures that some of the
information we have show that they very often don't ask for
that doctor. I believe the Federal Government pays for it. Who
pays for that? Does anybody know who pays? SSA pays the doctor
if they require the doctor to come in at the DDS level?
Ms. Ross. I don't know, but I would be glad to find out for
you. I am talking about getting the medical records, the
medical history, which is available at the DDS level, and then
every case at the DDS level has an expert, a medical expert
look at that paperwork.
You contrasted--so the treating physician has an
opportunity to make their records available at the DDS level.
That is the only point I am trying to make.
At the administrative law judge----
Mrs. Kennelly. Well, I just want to put on the record that
I will be asking for that breakdown, and I will have that put
on the record because we should know that there is a difference
of opinion even up here.
Ms. Ross. At the administrative law judge level, I don't
know, but I would be glad to find out what proportion of the
treating physicians actually make appearances.
What information I do have is that in 8 percent of the
cases, there is a medical person who testifies at the ALJ
level. So I don't know how many of the 8 percent are treating
physicians, but it is in only a small proportion of the cases
there are physicians present to testify in ALJ hearings.
[The following was subsequently received:]
As to who pays a treating physician at the DDS if a
personal appearance is requested, DDSs, like ALJs, are required
to assure complete medical evidence development, including
evidence from a claimant's treating physician. At both the DDS
and ALJ levels, SSA pays for requested written medical
evidence. DDS decisions are based almost exclusively on a paper
review of the case file, and no provision exists to pay for the
in-person appearance of the treating physician. For claimants
who do not have a treating physician, SSA will send the
applicant to a physician for a consultative examination and
will pay for it.
As to what proportion of the treating physicians actually
make appearances at the ALJ level, data on the proportion of
treating physicians who made an appearance to testify at
hearings is not readily available, although OHA officials told
us it is a rare occurrence. In almost all appeals, ALJs rely on
treating physicians' written medical reports rather than their
testimony at a hearing. However, at the claimant's request and
with the agreement of the treating physician, the treating
physician may be asked to testify. When this occurs, SSA does
not pay for the treating physician's appearance. However, if
the ALJ requests the treating physician to testify when it is
believed that a more fully inquiry is needed, SSA will pay the
treating physician. If the treating physician will not testify
voluntarily, the ALJ may issue a subpoena.
Mrs. Kennelly. Thank you, and I will pursue this, but
before you finish--or I finish asking you questions, Ms. Ross,
there are those that argue, one sitting right next to me, if
his--well, I shouldn't say that because the Chairman has a
suggestion I really haven't studied.
Mr. Chairman, you have a one-step type of----
Chairman Bunning. Appeal. An appeal.
Mrs. Kennelly. OK, with an appeal.
Chairman Bunning. Surely.
Mrs. Kennelly. OK, but I have heard people argue that there
should be no ALJs at all. What do you think of the idea that it
just be the SSA? And my worry is that there would be no
independent review of the DDS which, obviously, there is some
need for review of the DDS.
Have you looked at eliminating the judges?
Ms. Ross. We haven't looked at that at all. It would seem
really quite surprising to think of some sort of a benefit
determination process that didn't have some level of appeal,
short of the Federal court system. So whatever it is you want
to make of it, it would seem like a pretty unsatisfactory way
for beneficiaries.
Mrs. Kennelly. And I would never want to eliminate the
appeal either. But it just seems to me the way it is set up
now, it is setting itself up to have these two very different
systems looking at the same situation with different
information. We would like to figure out how to make this more
efficient, and I will read your report again, and thank you for
the good work you have done.
Ms. Ross. Thank you.
Chairman Bunning. Mr. Collins.
Mr. Collins. Thank you, Mr. Chairman.
Sitting here listening and reading and trying to understand
this whole process, it is no wonder folks back home are very
confused about this whole matter when they apply for the
disability.
I find with interest that the ALJ--all of these acronyms
get me--SSA, DDS, OHA, ALJ, and most people think that they are
just OL, and that is out of luck, but I find that interesting,
too, that the ALJs don't give much weight to the DDS decisions.
Why is that? Is the record just not complete enough, or has it
just gotten to be a formality that these things are denied and
reconsidered and denied and wind up on their desk and so they
just take it anew and try to start all over with it without
much weight from the previous considerations that were given?
What is the problem here?
Ms. Ross. One of the problems that we identified as part of
our study was that the record that comes from a disability
determination service examiner explaining why they have denied
the case isn't really sufficient in a great many cases. There
is not enough analysis of how they came to their decision for
the ALJ to really understand what went on.
So I briefly stated that I think there is inadequate
documentation. That is something this Process Unification
effort is trying to work with DDSs on in order to improve
because you can't expect the ALJ to take seriously something
that isn't in the record. So improvement of the analysis of
what is in the record seems really important.
Mr. Collins. In your table 2, step 3, am I reading that
right? Do the medical facts alone show that the claimant's
impairment meets or equals the medical criteria for an
impairment in SSA's listing of impairments? If the answer is,
Yes, stop, the claimant is disabled. Is that accurate? If it
is, No, go to step 4, or do you just do steps 4 and 5,
regardless of the answer to step 3?
Ms. Ross. If your impairment meets or equals the medical
listings which were designed to suggest if you could--if you
had a listed impairment or one in the medical listings that was
sufficient evidence that you were disabled, so if you get to
step 3 and your impairment is exactly like this one in the
listing, you are considered disabled. There isn't any further
evaluation of your condition.
Mr. Collins. So you don't just go on to steps 4 and 5?
Ms. Ross. No, you don't.
Mr. Collins. OK. In your study, how much training do these
people at step 3 have in determining these medical facts?
Ms. Ross. Well, both the DDS level and the ALJ level go
through this same sequence or they are supposed to. And, as Ms.
Geier suggested earlier, and I don't have any different
information, there is much more extensive medical training in
DDSs than there is for ALJs, although she is in a better
position than I to tell you exactly how much training is given
at each level. Clearly, there is more at the DDS level.
Mr. Collins. OK. That is all.
Thank you.
Chairman Bunning. Mr. Portman.
Mr. Portman. Thank you, Ms. Ross, and for GAO's work on
this.
I said earlier, it is sort of a bizarre situation. Let me
just look at of your report. You talk about a specific example
which is back-related problems. Something seems a little off
here when the DDSs are approving back-related problems for
disability benefits, 10 percent of the time, and then at the
ALJ level, 75 percent of the time.
So I think we have got some real problems in the system,
and again, I get back to I think what you are saying, and let
me see if I am properly characterizing it. The problem is there
are different approaches at different levels. There is
different training, and until we have some consistency in the
approach, we will continue to have the backlogs and the
problems associated with this illustration of the back
problems. Is it accurate that consistency is the key?
Ms. Ross. Consistency is at least the first step. Then we
can figure out if there are other issues, but I agree, that is
first.
Mr. Portman. Let me follow up, then, on two specific ones.
You talked about training. How about training the ALJs and
their staff--I assume that that is part of the issue here, is
that they are not always writing these decisions--at the same
time that you are training the State folks, the DDS personnel,
train them together, give them the same training? Does that
make sense?
Ms. Ross. It makes a lot of sense, and there is precedent
that occurred during the past year when SSA took nine rulings
on the very toughest kinds of cases to decide, like back pain--
--
Mr. Portman. Yes.
Ms. Ross [continuing]. And trained these folks together. I
hope they will do that in the future.
Mr. Portman. OK. So training--getting the same training and
training together makes sense.
Let me ask you about the different approaches. In response
to Mr. Collins, you paraphrased what SSA had said previously as
being that there is much more extensive training at the DDS
level than at the ALJ level. I didn't hear her say that, but
that is how you paraphrase what she said previously, and I
think the record probably sustains that. Certainly, your report
would indicate that.
Let me just give you one example. I asked SSA the extent to
which medical advisers were used at the ALJ level, and I asked
whether it was more than half because I was told that that is
an option, and I was told it is about 40 percent.
Your report tells us, I am just reading, and I will read
your report, ``Although ALJs may call on independent medical
experts to testify, our analysis shows that they do so in only
8 percent,'' 8 percent of the cases resulting in awards. Why is
there that discrepancy between 40 percent and 8 percent? Did I
ask the question wrong, or is there a difference in opinion
between you and SSA on this?
I get at this because of this larger question of the
different approaches, and I am not sure whether one approach is
right or another, frankly, but I do think it is very clear that
different approaches are one of the main problems that we have
here. Why is there this discrepancy between the 40 percent that
is now on the record and the 8 percent?
Ms. Ross. Our analysis of the 8 percent comes from Social
Security data, and it refers to the proportion of cases where a
medical expert came to testify at an ALJ hearing.
It is also possible that ALJs asked for medical experts to
give them written documentation, and maybe that explains the
difference. I don't know, but if you are asking how many times
a medical expert came to the hearing, our data show that it was
8 percent of the time.
Mr. Portman. Again, let me just read one thing, and then I
will end my questioning, Mr. Chairman.
In your report, you state, ``The use of medical expertise
appears to influence the decisional differences at the DDS and
ALJ levels. At the DDS level, medical consultants are
responsible for making functional assessments. In contrast, the
ALJs have the sole authority to determine functional capacity
and often rely on claimant testimony and the opinions of
treating physicians. Although the ALJs may call on these
experts, they only do so in 8 percent of the time.''
So I think, again, we can't lose sight of the focus here,
which I think is consistency in the different approaches and
the medical training and the medical expertise involved.
Clearly, it is different at the different levels, and I think
that seems to be one of our issues.
Thank you, Mr. Chairman.
Chairman Bunning. Mr. Levin.
Mr. Levin. Thank you, Mr. Chairman.
Let me just pursue this a bit further, and I am sorry I am
going to have to go to another hearing. So I won't hear the
further testimony that may address our frustrations and I think
your natural frustration and all of ours about the difficulties
with this process, but there has been reference here to closing
a record, but let me just be clear. The DDS determination is
done without any hearing. Isn't that correct?
Ms. Ross. That is correct.
Mr. Levin. They do it strictly on the basis of paper that
flows into their office?
Ms. Ross. That is correct.
Mr. Levin. And so they don't meet either the claimant or
anybody else before they make their determination, right?
Ms. Ross. That is right.
Mr. Levin. I may be wrong, but I don't know of a process
within the U.S. system where we close a record when there has
been no hearing. I guess it is not fair to ask you that, but I
don't see--as we look for improvements, I don't know how you
prevent new evidence if it is the first procedure, formal
procedure. It would seem to me, the focus has to be on
improving the processes before that to try to have a more
effective disposition and perhaps to improve the formal
procedure, but I don't see how you close off testimony when
there has been no hearing.
Are there many more--is there much more legal
representation at the ALJ level than at the earlier procedure,
the DDS level? Do you know?
Ms. Ross. Yes, I do know, and there are very few
individuals who are represented with legal counsel at the DDS
level, and about 80 percent are represented, as I understand
it, at the ALJ level, at the hearing level.
May I add one thing to amplify what I said earlier about no
in-person review at the DDS level? That is certainly true now,
but one of the initiatives that Social Security is pursuing as
part of its Process Unification or as part of its reengineering
proposal is to have an interview with the claimant at the DDS
level.
So, before they would deny a client, they would see this
person and make sure they had all the evidence and the person
understood what they needed and so on. I am not speaking
specifically to the closing-the-record issue, but there would
be this opportunity much earlier on to have the client have an
in-person interview.
Mr. Levin. I would think that might very much improve the
process. I don't think it would turn it into a hearing, but it
might mean there would be a much greater parallelism between
what is done at the DDS level and at the hearing level.
Thank you very much, Mr. Chairman.
Chairman Bunning. Ms. Ross, Mr. Hill, a senior attorney who
is president of the union chapter which represents attorney/
advisers in the hearing offices around the country, says in his
testimony that the redesign has had no meaningful, measurable
effect upon the workload of OHA, except consuming resources,
both human and material, that could have been put to better
use.
Have GAO findings been consistent with this statement?
Ms. Ross. I would like to give you a two-part answer. First
of all, most of the reengineering proposals are still in their
developmental stages. So you wouldn't expect to have much
overall effect on the process. That is not surprising.
In work we did for you, which we issued in December, we
said that we thought SSA's reengineering work was much too
extensive and much too lengthy and that they ought to try and
reduce the scope of what they had in mind and get on with it,
and in response to us and I think to their own sense of it,
they have cut back on the scope of their reengineering
proposals, but it is still quite a long process. So I can
sympathize with Mr. Hill, but I think these major things in any
case take a lot of time.
Chairman Bunning. In his testimony, it appears Mr. Hill
points out that as is often the case with major initiatives,
senior officials who conceive major initiatives are never
around long enough to take responsibility for the problems
caused by their creations. Aren't these views consistent with
testimony GAO has provided this Subcommittee in the past?
Ms. Ross. Yes, sir, they are. Our concern about this
massive project and the very long timeframe they had in mind
was that you lose senior people and you lose the enthusiasm of
your work force, and I think that is a risk.
Chairman Bunning. In fact, the reengineering that has been
designed was done by the former Acting Commissioner of SSA, and
she is no longer there. So somebody else has to pick up the
ball, sometimes with less enthusiasm than the prior person
because it is not their initiative, and therefore, they lose
something in the picking up of the ball to carry it forward?
Ms. Ross. There is that risk any time you have a major
initiative that the people who start it won't be there, and
that is a problem SSA is dealing with now.
Chairman Bunning. I hope the new Commissioner designee will
be there as long as the term of office that we put in the new
legislation, so that there can be a more consistent outlook at
SSA over a 6-year window. Then SSA can become more independent
and do things in SSA's and the people's best interest rather
than what HHS and the administration might think is in the best
interest of SSA. That is why we designed the new independent
agency bill.
I thank you for your testimony.
Mrs. Kennelly, do you have anything else?
Mrs. Kennelly. No, I don't.
Chairman Bunning. Thank you very much.
Now, we conclude with a panel of professionals who work
with the disability process every day, some of whom have
previously testified before this Subcommittee: Douglas Willman,
president of the National Council of DDS Directors; Hon. Ronald
Bernoski, acting president of the Association of ALJs; Debi
Gardiner, president-elect of the National Association of
Disability Examiners, accompanied by the past president, Tom
Christopher; James Hill, president of the National Treasury
Employees Union, chapter 224; and Nancy Shor, executive
director of the National Organization of Social Security
Claimants' Representatives.
Mr. Willman, will you please begin.
STATEMENT OF DOUGLAS W. WILLMAN, PRESIDENT, NATIONAL COUNCIL OF
DISABILITY DETERMINATION DIRECTORS
Mr. Willman. Chairman Bunning and Members of the
Subcommittee, thank you for the opportunity to appear here
today to present the views of State directors on the
differences and decisional outcomes between the State DDSs and
the SSA Office of Hearings and Appeals.
We believe that presently the disability program is simply
failing the reasonable minimum expectations of the American
public because too many persons who receive benefits are not
allowed until they reach the appeals level.
Even though SSA quality assurance reviews of our work tell
us that at the DDSs, our decisional error rate is only about 4
percent, about 60 percent of the persons who appeal their State
decisions are awarded benefits by OHA. But first, they must
ensure an unreasonably long and anxiety-producing delay and
usually hire an attorney to represent them.
According to a statement by the Association of
Administrative Law Judges, there is no other appellate system
in the entire world with such a consistently high reversal
rate. If these reversals are appropriate allowances, they
should be allowed earlier in the process. If they are not good
allowances, and many are not, they should not be allowed at
all.
The decisional outcomes between the two components are so
different because the two components have developed along
separate tracks with historically inadequate coordination by
higher management.
Examples of the ways the components differ would include
the following. Each component has its own separate manual of
policy and procedural instructions, and the two components
conduct entirely separate training in the application of these
different policies and procedures.
There are separate and conflicting systems for reviewing
decisions to detect and correct errors. Most of the DDS
decisions selected for review are allowances, and almost all
reviews of ALJ decisions are on denials. There is a vast
difference in the relative weight given to different types of
medical evidence. DDSs tend to focus more on objective medical
facts, while OHA gives more weight to subjective symptoms and
to the opinions of the claimant's treating physicians, and DDSs
function strictly as part of the executive branch of
government, while OHA tends to behave as though it were part of
the judicial branch. This results in DDSs adhering strictly to
SSA policies while ALJs compromise those policies by, instead,
following court decisions that they regard as precedential.
In view of these differences and others, it is no wonder
that the two levels fail to produce similar results. In some
important ways, things are beginning to get better. Today's top
managers in SSA deserve credit and recognition for having taken
some important first steps toward bringing the processes closer
together.
Under an initiative known as Process Unification, SSA has
recently completed the remarkable achievement of training all
of its adjudicators in the application of a new set of rulings.
The rulings were explained locally by trained traveling
facilitators who were supported by a live interactive video
presentation originating at SSA headquarters.
Last week, I personally had the opportunity to observe a
meeting in which top SSA managers gave careful attention to the
recommendations of frontline workers who delivered the
training. The SSA managers received information which can be
extremely helpful in bringing the two processes together, and I
can tell you that in over 20 years as a manager in the
disability program, I have never before seen such a rich
presentation of useful ideas from frontline workers to top
managers, but much more needs to be done.
Some improvements can be made by SSA, and in some other
ways, statutory changes will be needed. For SSA, it should
accelerate the development of the single policy manual or the
``one book'' for use by adjudicators in all components. It
should develop a quality assurance case review system complete
with enforcement power over all components because without
enforcement, the very finest policies may be simply
inconsequential.
SSA should greatly increase the training of ALJs on medical
issues, and it should balance its demands for high productivity
with concerns that similar decisional outcomes be produced at
all levels of adjudication.
Congress can help both with continued oversight and with
legislation. Statutory changes could support SSA's authority to
conduct and enforce quality assurance case reviews, could
clarify the extent of management control over ALJs, establish
SSA's recent acquiescence ruling in the law, and set statutory
guides for the weight to be given to the opinions of treating
physicians and close the record.
Continued monitoring such as today's hearing, a sort of
high inside fast ball, can also help assure that SSA management
contains the motivation and the organizational will to continue
to address this serious problem in service delivery to the
American public.
Thank you.
[The prepared statement follows:]
Statement of Douglas W. Willman, President, National Council of
Disability Determination Directors
Chairman Bunning and members of the subcommittee, on behalf
of the NCDDD, thank you for the opportunity to appear here
today to present our views regarding the differences in
decisional outcomes between the state Disability Determination
Services (DDSs) and SSA's Office of Hearings and Appeals (OHA).
The NCDDD is a professional organization of the directors
and other management staff of the state Disability
Determination Services agencies. The DDSs participate in the
disability program by making the initial determinations of
eligibility for disability benefits. We appear here today
experiencing great concern about the public's loss of
confidence in the disability program resulting from the huge
difference in decision making between the initial and appeal
levels of eligibility determinations. We desire a program that
produces correct and consistent determinations of eligibility,
that makes these determinations in the shortest possible time,
and that operates at the least reasonable cost to the tax
payer. By ``correct'' decisions, we mean that benefits are
received by persons who are unable to work because of a medical
impairment. By ``consistent'' decisions, we mean that decision
making should not substantially vary between the initial and
appellate levels of determination. We know that the current
process can be and must be improved in terms of its ability to
achieve these objectives. We want to work with SSA, with other
representatives of the DDS community and with Congress to
increase the accuracy of the process, to reduce processing
time, and to control costs.
We believe that presently the disability program is failing
the reasonable minimum expectations of the American public. We
are failing primarily because too many of the allowed
applications are not allowed until they reach the appeals
level. Even though SSA quality assurance reviews show a
decisional accuracy of more than 96% at the DDS level, the OHA
reversal rate for applicants whose cases have been twice denied
at the DDS level has, until very recently, been above 65%.
According to a statement by the Association of Administrative
Law Judges, there is no other appellate system in the entire
world with such a consistently high reversal rate. Since about
75% of all denied reconsideration cases are appealed to OHA,
the net effect is that about half of all reconsideration
denials are subsequently allowed at the OHA level. But first
the claimants must endure the hardship of a delay which is
usually around eighteen months, and most such applicants feel
that they need to hire an attorney or other representative for
help in the appeals process. Claimants pay their
representatives, collectively, about $500 million a year which
is about half of the total cost of operating all the DDSs.
Claimants who successfully appeal their reconsideration
denials often ask, ``If my case was going to be allowed anyway,
why did I have to endure two denials, wait 18 months, and then
pay 25% of my back benefits to an attorney?'' The disability
examiners who process the denials are fully aware of the
reversal rate and wonder why they can't save the claimants time
and money by making at the beginning of the process the
decisions they know will be made at the end. As managers of the
state eligibility determination programs, we know that if cases
allowed at the OHA level are good allowances, they should have
been paid earlier in the process, and if they are not good
allowances, they should not be paid at all.
For many years, SSA has been less than completely
forthright about the existence, extent, and causes of this
service delivery problem. In previous public statements,
including those to Congress, SSA has attempted to focus
attention on a few minor causes of the decisional differences
while attempting to divert attention from comparatively more
important causes which a better management system could
control. SSA has treated the phenomena of vastly different
decision making as a public relations problem that could be
finessed with carefully contrived explanations rather than as a
serious service delivery problem which could be solved with
better management. Recently, as part of disability redesign,
SSA has acknowledged the reality, seriousness, and extent of
the problem, has formulated and begun to develop some
components of a long range plan, and has taken some
constructive initial actions toward a solution. SSA's plans and
actions in this regard have come to be known as the Process
Unification portion of disability redesign. Although NCDDD has
very serious reservations about many aspects of disability
redesign, we certainly agree with the emphasis that SSA is
placing on Process Unification. In the long term, if Process
Unification succeeds, and all other Redesign experiments fail,
reengineering of the disability process will still be viewed as
a success. On the other hand, if Process Unification fails, and
other parts of redesign succeed, SSA will have tinkered at the
margins of the program, but will have redesigned the disability
process on a foundation of sand.
The testimony that follows will focus on the causes of the
present decisional disparity, the components of the Process
Unification approach, the adequacy of that approach, and on
what else needs to be done.
I--Causes of the Present Decisional Differences Between DDSs and OHA
SSA has historically emphasized factors such as the passage
of time, worsening of claimants' conditions, availability of
new evidence, attorney representation, and face-to-face
hearings as the explanations for such a high reversal rate at
OHA. While all these factors are present, they account for a
minority of the differences between DDS and OHA decision
making. The more causative reasons are listed and explained
below.
There has historically been an absence of uniformly stated
policy instructions for adjudicators at the two levels.
Decision makers at both levels must apply the statutory
definition of disability and the regulations. However, the
language of the statute and the regulations is far less
specific than that of the separate vehicles used to convey
policy to DDSs and to OHA. For DDSs there is manual called the
POMS (Program Operational Manual System). Adherence to POMS
directives is required at the DDS level and ignored at OHA
which has its own separate manual. These manuals substantially
differ from each other in content.
There has historically been no common training for personnel at
the two levels.
Both in the initial orientation of new employees and in
communicating program changes, DDS and OHA conduct their
training on entirely separate tracks. DDSs have a much stronger
emphasis on providing training in medical concepts while OHA
provides almost no medical training to its decision makers.
Separate and opposite quality assurance and case review systems
tend to drive the two components apart rather than to bring
them together.
For DDS decision makers, the majority of cases reviewed and
returned as errors by the quality assurance system are
allowances. For OHA decision makers, nearly all cases reviewed,
either by the Appeals Council or the federal courts, are
denials. The feedback tends to focus the attention of the DDS
decision maker on not making errors on allowances while the OHA
decision maker knows that errors are almost impossible on
allowances since almost none are reviewed.
SSA management has permitted the development of an inaccurate
view of the immunity from management control of Administrative
Law Judges under the Administrative Procedures Act.
ALJs have successfully asserted broad decisional
independence and freedom from management control, and the
assertion has gone largely unchallenged by management. This
accounts not only for the difference in decision making between
DDSs and OHS, but also for the extreme differences in allowance
rates among individual ALJs. SSA has recently obtained an
opinion from its General Counsel that declares management
authority for requiring ALJs to attend training, apply the
agency policy, conform to administrative rules, etc. Hopefully,
exercise of the authority that has existed all along will
mitigate the problems that flow from the perception of ALJs
that they are free from control.
There is a vast difference in the weight the components give to
detailed medical analysis.
At the DDS, decision makers have broad access to physicians
and psychologists and a medical or psychological review is
completed on each case. At OHA, medical experts participate in
the analysis of only about 10% of the cases. The analysis of
DDS physicians and psychologists seems to be largely ignored at
the OHA level.
Different approaches to the assessment of residual functional
capacity are largely responsible for the differences in
decisional outcomes.
According to the law and the regulations, decision makers
must consider the effect of the medical impairment(s) on the
applicant's ability to perform work related tasks. The
resulting conclusion is called the claimant's 'residual
functional capacity'. This finding is based on the medical
facts and any opinions that may have been provided by a
claimant's treating physicians. OHA decision makers tend to
place much greater weight on the conclusionary statements of
treating physicians while DDS decision makers tend to place
more weight on objective medical findings.
An extreme difference in decisional outcomes emerges from
the conclusions reached about claimants' remaining ability to
work. One classification of residual functional capacity is
known as the ability to perform less than the full range of
sedentary work which has been the subject of careful inquiry by
SSA. This finding almost always results in allowance. At the
DDS initial level, this finding is reached on about 1% of all
cases. At the reconsideration level, the finding is reached on
about 3% of the cases. Based on the evidence available at the
time of a hearing, the medical reviewers at SSA have concluded
that the finding is appropriate in about 7% of the cases. But
ALJs, based on the same evidence, find claimants limited to
less than the full range of sedentary work in more than 50% of
the cases. More than any other quantifiable factor, this
difference is responsible for the high reversal rate at OHA.
SSA has permitted what could be called the ``judicialization''
of OHA, that is the transformation from an administrative to a
judicial entity.
Although Administrative Law Judges are employees of the
executive branch of government, in many ways they behave as
though they were part of the judicial branch. This tends to
result in a loss of consistency of decision making among ALJs
and in a compromise of the extent to which agency policy is
applied correctly. This is especially true when ALJs exercise
individual interpretations of federal court decisions and apply
them as precedents even if they run contrary to policy.
II--SSA'S Process Unification Initiative
After a long history of failing to address the problem of
the disparity in decision making between DDS and OHA, SSA has,
at last, taken some positive steps under a project known as
Process Unification. This project consists of a set of rulings
by the Commissioner, an ambitious attempt to train more than
14,000 adjudicators at all levels in the application of these
rulings, a very limited quality review process for some
allowance decisions of ALJs, and a process for remanding to the
DDSs some cases awaiting hearing on which new evidence has been
received.
With regard to the rulings, many of the historical problems
described above have been addressed. If the rulings are
correctly applied, they can reasonably be expected to reduce
the decisional disparities. The training is a remarkable
accomplishment which has now been completed. In addition to
acquainting all decision makers with relevant program
instructions, the training was valuable just for having brought
together case analysts from all components to experience the
same training in the same setting at the same time. But the
plan for a quality review process of ALJ allowances is
disappointingly modest both in scope and in nature. Such a
review will be useful only if its intent is to determine if
ALJs have applied the rulings correctly and to enforce
corrective action on cases found to be in error. Without a
means of enforcement of the rulings on ALJ decision making, all
other actions will be ineffective. Yet SSA plans to review only
about 10,000 OHA cases per year and the nature of the review
process will exclude many erroneous cases from being identified
as errors and returned.
The number of cases to be reviewed is only about one case
per ALJ each month. Even presuming an error rate of, say, 33%,
this would result in only about one piece of feedback per ALJ
each calendar quarter. This number is not high enough to
provide meaningful feedback to ALJs, nor to establish useful
enforcement in cases in which ALJs are not correctly applying
agency policy, nor to create a quality review system which is
reasonably consistent between components.
The standard to be applied for determining errors in this
review process is even more discouraging that the size of the
case review. While DDS case completions are reviewed under the
``preponderance of evidence'' rule (meaning that the decision
supported by the greater weight of the evidence must be made)
the ALJ allowances would be reviewed under a ``substantial
evidence'' rule (meaning that a decision is correct if it is
supported by any substantial evidence even if greater and more
substantial evidence would support an opposite decision). We
understand the definition of the word ``substantial'' will be
``more than a scintilla.'' Under this case review scenario, a
DDS could twice deny a case because most of the evidence
supports a denial, the claimant could wait a year for a
hearing, an ALJ could allow the case because some evidence
supports an allowance, and both decisions would be considered
by SSA to be correct.
This is not our idea of Process Unification. We feel that
Process Unification must mean that every SSA component will
arrive at similar decisions on similar cases. Process
Unification must result in one program with similar decisional
outcomes across all levels of appeal. Process Unification means
a focus on a single SSA Disability program, rather than on
differing appearances that applicant due process can take at
the different steps in the adjudicatory process.
SSA does report modest but promising changes in the
allowance rates at the two levels over the last several months.
An increase in the DDS allowance rate in the neighborhood of
two or three percent and a decrease in the OHA allowance rate
of six to eight percent is reported. While these data are very
preliminary and could result from factors other than process
unification, this is an encouraging sign.
Any review of the rulings issued under Process Unification
would not be complete without comment on the labor intensive
nature of some of the requirements and the consequent impact on
the resources needed for implementation. Most of the rulings
will require additional direct time for obtaining the required
evidence, analyzing the evidence, and explaining how the
decision was made. DDSs, at their current staffing levels and
with their current caseloads, cannot apply these rulings and
still process all the cases coming in the door. Hopefully,
additional resources invested at the DDS will pay off in the
form of a greater number of cases being decided at the DDS
level and therefore not being appealed to OHA where a lesser
need for personnel and resources should be the result.
III--What Else Must Be Done
SSA has taken some encouraging first steps toward bringing
consistency to the program, but we are not where we need to be
yet, and we are not even close. Some of the necessary actions
can be taken by SSA, but in other areas, Congress could help.
Recommendations for SSA:
1) SSA should accelerate the development of a single
presentation of policy for use by all decision makers at all
levels. The ``one book'' approach was a cornerstone of the SSA
plan to redesign the disability program released in October of
1994. Now, more than two and half years later, we are told that
the ``one book'' is still about two years away from being a
reality. Until all decision makers are following the same
instructions, we cannot reasonably expect their decisions to
comport with one another.
2) The ``one book'' approach must be enforced with a
quality assurance system which applies the same policy and
review criteria to decision makers at all levels.
3) SSA should find ways to sharply increase the medical
training provided to ALJs.
4) SSA should develop a shared vision of the program among
all components. SSA must insure that the Office of Disability
(SSAs component that sets policy), the Office of Program and
Integrity Review (SSAs component that checks quality),
Operations, and Budget are reasonably consistent with their
expectations as to how the program will operate. The point is
that while we often think of Process Unification as being
necessary only between DDSs and OHA, in reality, Process
Unification also must bring together the many disparate voices
among the varied components of SSA as well. We cannot attain
real Unification until every component focuses on doing cases
accurately, quickly, and cost effectively rather than having
one component focus only on accuracy, another only on
processing time, and another only on cost.
5) SSA must place its primary emphasis on quality and
reallocate resources so that the time is available to apply the
rulings as they are written. For at least the last decade the
driving force within SSA (as far as the DDSs were concerned)
has been productivity improvements. This must change. While we
must always strive to improve administrative efficiencies, we
must insure that no corners are cut in our efforts to do each
case correctly, quickly and cost efficiently and in that order.
Process Unification will be neither easy nor cheap. It is,
however, critical if we ever expect to build a truly unified
SSA disability process that the public will trust.
Considerations for the Congress:
Legislative support for the following changes would help
clear the way for reasonable consistency in decision making
between the two levels.
1) The evidentiary record should be formally closed at some
time between the reconsideration decision and a stated number
of days following the hearing.
2) SSA should be authorized and required to conduct a
formal quality assurance review of ALJ allowances and denials
using the law, regulations, and SSA rulings as the review
criteria. SSA should be authorized, in addition to a random
sample, to conduct 'high risk' quality assurance reviews of
individual ALJs or OHA offices based on any accuracy,
productivity, timeliness, or efficiency criteria established by
SSA. The quality assurance review must be consistent across all
levels of appeal, must use the same standard (preponderance of
evidence or substantial evidence), must include a reasonably
equal mix of allowances and denials for all levels, and must
include enforcement power.
3) The program needs a statutory clarification of the
extent of independence of ALJs from management control.
Statutory language should more clearly state that ALJs are
``independent'' decision makers only insofar as the ALJ
decision comports with SSA law, regulations, and rulings. The
law should make clear that SSA has the full responsibility and
authority to set performance standards, workload requirements,
work processes and workflows for ALJs and OHA.
4) SSA's ``acquiescence ruling'' promulgated in July 1997,
should be given the force of law. This ruling requires ALJs to
use only SSA law, regulations, and rulings as adjudicative
standards and prohibits individual ALJ interpretation of court
decisions, absent an Acquiescence Ruling by SSA. SSA should be
required to publish Acquiescence and Non-acquiescence Rulings
in all Circuit Court decisions without unreasonable delay, such
as 90 days.
5) Congress should establish by law the adjudicative weight
to be given to the statements of treating, examining, and
reviewing physicians. The determination of what functional
abilities are retained by the applicant after considering the
claimant's medical history, nature of the impairment, severity,
prognosis, and medical contraindications should be a decision
reserved to the Commissioner rather than being placed in the
hands of the treating physician.
Because of the very substantial extent to which this single
aspect contributes to the variance in allowance rates, some
additional perspective in support of a legislated solution is
necessary. Please see the attachment which contains a more de-
tailed explanation of the nature of the problem and the need
for a legislative solution.
6) SSA's history on this issue shows that it likely will
need continued monitoring from the Congress. SSA's history has
been to understate the problem, to find creative ways to
rationalize why the DDS and OHA outcomes were not really all
that different, and to divert attention from problems that
ought to have been managed rather than to manage them. While
SSA's recent approach is refreshingly different from its
history, the comparative ease of denying the problem to fixing
it may persuade SSA to return to its old ways.
Mr. Chairman and members of the committee, NCDDD offers the
above observations and suggestions in the hope that the
disability process can be improved so that claimants who are
due benefits can obtain them without unreasonable delay and so
that ineligible persons are not added to the disability roles.
Presently, the DDSs are probably denying benefits to
significant numbers of persons who should be allowed, and OHA
is probably allowing benefits to significant numbers of persons
who are not disabled. With SSA's continued efforts to bring the
processes closer together and with continued Congressional
oversight, we hope that consistency will be established to the
advantage of both persons applying for benefits and to the tax
payers.
Thank you for the opportunity to present our views on this
important subject.
Chairman Bunning. Judge Bernoski.
STATEMENT OF HON. RONALD G. BERNOSKI, ACTING PRESIDENT,
ASSOCIATION OF ADMINISTRATIVE LAW JUDGES, INC.
Judge Bernoski. Thank you, Mr. Chairman.
The major focus of this hearing is to examine the dual
adjudication standards that are employed at the DDS and OHA
levels of the disability process. These systems are based upon
a procedure that has been developed by the Social Security
Administration, the so-called POMS standard that is used at the
DDS, while a more legal-based standard is used by OHA.
We are not here to judge which standard is the best, but we
do know that if the claim gets to the Federal courts that the
legal standard will be employed to adjudicate the case.
We also know the reversal rate of DDS decisions by ALJs has
been declining. In fiscal year 1995, the reversal rate was 65
percent. By fiscal year 1997, it dropped to 54.8 percent.
The GAO has prepared a report for this hearing, and with
deep regret, we question the reliability of that report. The
GAO did not interview any officer or director of our
association for their preparation of this report.
The report does not analyze the reasons for the differences
in the approach in assessing the RFC, residual functional
capacity, at each level. It does not consider the impact on the
RFC of the treating physician rules that may vary between the
Federal circuits.
The GAO does not consider that the ALJ hearing is de novo
and not certiorari to the DDS determination. The GAO places
great weight on the SSA quality assurance systems, but it does
not consider the impact of these systems on the constitutional
peering. The hearings of this system, the quality assurance
system, has considerable potential to abuse the constitutional
due process rights of the claimant.
Any attempt to ``manage'' the ALJ decision process has the
potential to lead to the type of undue agency influence that
led to the passage of the Administrative Procedures Act.
The GAO fails to acknowledge the agency program of Process
Unification. While we do not agree with all aspects of that
program, we believe the best solution for the problems raised
by the GAO is to develop a single standard of adjudication for
all levels. This standard must be based upon the legal model
because this is the standard that the claim will ultimately be
judged by when he gets to the court system. This single
standard will allow the claim to be awarded at the earliest
point in the adjudication system and thereby reduce the case
backlog for the ALJs at the OHA level.
Now, in summary, GAO has completely failed to consider the
relationship between agency policy and the judicial function.
The words ``due process,'' ``law,'' ``courts,'' or
``constitution'' are not mentioned anywhere in that report.
Yet, when you consider the Zebley case, the Hyatt case, the
Samuels case, and the Minnesota Mental Health case, we see the
tremendous impact the court system has on the disability
process, and until this relationship is understood by both the
GAO and the agency, many of these problems in the disability
system will not be corrected.
As ALJs, we take an oath to uphold the law and the
constitution, and that we understand our responsibility to
follow the constitution and apply the law, and we will enforce
the law.
On the other hand, we have considerable difficulty applying
agency policy that is inconsistent with the law. If Congress
were to change the statutory law to achieve the results of the
DDS process, we as ALJs would enforce the new law.
Mr. Chairman, we are neither proclaimant nor proagency. It
is our duty to decide each case based on the law and the facts
of that particular case.
Thank you for the opportunity to appear here.
Mr. Chairman, I just have one thing that I would like to
introduce into evidence, and that is a report. It is called an
SSA tracking report, and it sets forth the reversal rate of
ALJs and is the reference for my statement. It is 54.8 percent.
There have been three or four different numbers cast on it.
Chairman Bunning. Without objection, it will be put into
the record.
[The information follows:]
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Mr. Bernoski. OK. Thank you, Mr. Chairman.
[The prepared statement follows:]
Statement of Hon. Ronald G. Bernoski, Acting President, Association of
Administrative Law Judges, Inc.
Mr. Chairman:
I. Introduction
My name is Ronald G. Bernoski, I am an administrative law
judge (ALJ) assigned to the Office of Hearings and Appeals of
the Social Security Administration in Milwaukee, Wisconsin.
This statement is presented in my capacity as the Acting
President of the Association of Administrative Law Judges, Inc.
(Association), a professional organization whose purpose is to
promote judicial education and full due process hearings for
those individuals seeking adjudication of controversies within
the Social Security Administration (SSA).
The subject matter of this hearing is to review the effect
of reversals of DDS determinations at the SSA appellate level.
This is an area of Social Security disability process that has
been examined repeatedly over the past years. The Congress
expressed concern with this issue when it enacted the
Disability Benefits Reform Act of 1984 which provided that
``[t]he Secretary shall establish by regulation uniform
standards which shall be applied at all levels of
determination, review and adjudication in determining whether
individuals are under disabilities as defined in section 216(i)
of 223(d).'' Since SSA has had a long established policy of
evaluating disability claims by different standards at both the
DDS and appellate levels, it should not be a surprise that a
potential exists for a different finding for a single case at
each level of review. It probably should be repeated that a
Social Security Disability claim at the DDS level is decided
under the Program Operations Manual System (POMS). This is less
than a full legal review of the claim and it is a system that
has been created by the agency for this purpose. At the
appellate level the disability claim is adjudicated under the
full scope of the legal standard which consists of the
statutory law, case law, SSA regulations and SSA rules. Many
reasons have been advanced for the difference in results
between cases determined at the DDS level and those adjudicated
at the administrative law judge level. These reasons have
included the following differences at the administrative
hearing; the appearance and testimony of the claimant, the use
of expert testimony (medical and vocational), attorney
representation, additional and different medical evidence, and
a more advanced medical impairment. However, the largest
distinguishing factor is the use of the legal standard at the
appellate level which provides the claimant with the benefit of
the full scope of the law for the adjudication of the claim.
This factor clearly shows that the SSA disability adjudication
system is a ``top down'' process. The standard to be used to
adjudicate SSA disability claims must be the legal standard
(which is based upon the Constitution, statutory law and case
law) which is established by the courts because ``it is,
emphatically, the province and duty of the judicial department,
to say what the law is'' Marbury v. Madison, 1 Cranch 137, 177,
2 L.Ed. 60 (1803). The Association has long recommended a
single standard at each level for deciding SSA disability
claims which is based upon the law.
II. GAO Findings
The GAO findings, that have been presented by the
Subcommittee, appear to be the anchor upon which the major
thrust of the hearing in based. It is with deep regret and even
dismay that we question the reliability of the GAO findings.
The methodology used in creating the report is deficient. No
officer or director of the Association was interviewed by the
GAO during the preparation of the report. The report fails to
develop the history of the dual standards of SSA; it does not
analyze the constitutional basis of the due process
administrative hearing and it does not describe the agency
policy addressing this issue.
The GAO states that the percentage of ALJ reversals of DDS
disability determinations has been a long-standing problem for
SSA. The report does not state that the dual standards for SSA
disability determinations is based upon a long-standing policy
of the agency. Within this system the DDS claims are decided by
a standard set forth in the POMS while the disability claims at
the appellate level are adjudicated under the legal standard.
The major defect in the GAO report is that it does not grasp
that if the same fact situation is analyzed under two different
standards that two different results can be achieved. The
report also fails to acknowledge that the ALJ reversal rate of
DDS determinations is declining. SSA records indicate that the
ALJ allowance rate was 65% in FY 1995 and that by FY 1997 it
had dropped to 54.8%. The GAO report also fails to explain the
difference in DDS allowance rates while all DDSs are using the
same standard. SSA records show that in FY 1997 differences in
DDS allowance rates ranged from 22.2% TO 49.6%.
The GAO states that the ALJs and DDSs each employ a
different approach in assessing the residual function capacity
of the claimant. The GAO apparently is unaware that this
difference in approach is based upon the fact that the ALJs
follow the legal standard; may review a more complete medical
record; hear the testimony of the claimant and other expert
witnesses; and depending on the Federal circuit, may be
required to follow a more demanding treating physician when
weighing the medical evidence. The agency has been challenged
in court for applying a different standard of review at the DDS
and the Federal administrative level. These challenges are
generally based upon the theory that the DDS does not provide a
legally sufficient review of the claim (see Bentley et al. v.
Sellars Case No. 92-40-Civ-J-20 Middle Dist. of Florida). We
understand that several class actions are pending against the
agency which raise this issue.
The GAO places considerable emphasis on the SSA quality
assurance system, and claims that the use of this process could
``minimize'' the inconsistency in the current SSA dual
disability system. This contention fails to acknowledge that
SSA has by design created a dual process for disability claims,
and that the only way to address this issue is to go to the
root cause of the problem and adopt a single standard that is
to be used by all SSA components. The allegation of the GAO
also fails to consider the relationship of any quality
assurance system to the constitutional due process rights of
the claimants. If the case is to be reviewed by a quality
assurance examiner, and the interest of the claimant has the
potential of being adversely effected, how will the rights of
the claimant be protected? Will the claimant have notice of the
review? Will the claimant have a right to be heard? Will the
claimant have an opportunity to appear and defend his/her
interests? These are complex constitutional issues that were
not adequately addressed in the GAO report. The GAO should be
requested to address these constitutional issues and present a
comprehensive explanation of the impact of any quality
assurance system on the due process rights of the claimant.
On January 28, 1997 the Office of General Counsel of Social
Security prepared a memorandum entitled Legal Foundations of
the Duty of Impartiality in the Hearing Process and its
Applicability to Administrative Law Judges. The memorandum
appears to be an attempt to provide a legal basis to require
administrative law judges to follow SSA policy that is not
consistent with the law. The threat of disciplinary action
before the Merit Systems Protection Board is the enforcement
tool for the same. We are concerned that this hearing is an
attempt to strengthen the hand of the agency to enforce this
disciplinary action on SSA administrative law judges and the
endorsement of the promulgation of agency policy that is not
consistent with the law. This policy is contrary to the
recommendations of the Judicial Conference of the United
States, which is set forth in the Long Range Plan For The
Federal Courts (December 1995), which includes recommendations
that the Congress and the agencies concerned should be
encouraged to take measures to broaden and strengthen the
administrative hearing and review process for disputes assigned
to agency jurisdiction and to generally prohibit agencies from
adopting a policy of nonacquiescence to the precedent
established in a particular federal circuit.
The GAO report stated that the SSA procedures contribute to
inconsistent results because they limit the usefulness of the
DDS decision as a foundation for the administrative law judge
decision. The GAO fails to consider that the administrative law
judge hearing is de novo and not certiorari to the DDS
determination. It is thereby a completely new hearing and is
not a continuation of the DDS process. The GAO report also
fails to mention that the new SSA policy of Process Unification
requires the administrative law judge to give the DDS medical
evidence consideration when weighing the medical evidence in
the case.
The GAO report stated that SSA must take decisive action to
improve management of the decisionmaking process, but the
report failed to describe how this is to be accomplished. How
does an agency ``manage'' the administrative hearing process
and not trample on the constitutional rights of the claimants?
The GAO fails to recognize that the administrative hearing is
based upon the due process clause of the 5th and 14th
amendments of the U.S. Constitution which provides the claimant
with certain guaranteed fundamental rights. The U.S. Supreme
Court has held that ``a fair trial in a fair tribunal is a
basic requirement of due process, In re Murchinson, 349 U.S.
133 (1955). That ``when governmental agencies adjudicate or
make binding determinations which directly affect the legal
rights of individuals, it is imperative that those agencies use
the procedures which have traditionally been associated with
the judicial process,'' Hannah v. Larche, 363 U.S. 420 (1960).
The due process requirement of a fair trial in a fair tribunal
``applies to administrative agencies which adjudicate as well
as to courts,'' Withrow v. Larkin, 421 U.S. 35 (1975).
In the late 1930's the Congress became aware of the
criticism that many agencies were interfering with the function
of hearing examiners (now administrative law judges) and
thereby denying the litigants their constitutionally protected
right of a due process hearing. The Congress enacted the
Administrative Procedure Act to correct this problem, Ramspeck
et al. v. Federal Trial Examiners Conference et al., 345 U.S.
128 (1953). The legislation elevated the status of the
administrative law judge by making them semi-independent agency
employees and it further created a procedure which ensured that
the constitutionally protected due process hearing was provided
to the litigants by the agencies. The U.S. Supreme Court then
defined the function of the administrative law judge within
this due process hearing system. In the case of Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474
(1950) the Court stated that one of the important purposes of
the Administrative Procedure Act was the ``enhancement of the
status and function of the trial examiner'' in the
administrative process. The Court then went further and held
that the findings of the hearing examiner would be considered
as part of the record when applying the ``substantial
evidence'' standard even if the agency disagreed with the
findings of the administrative law judge. In Butz et al. v.
Economou et al., 438 U.S. 478 (1978), the Court found that:
``There can be little doubt that the role of the modern federal
hearing examiner or administrative law judge within this
framework is ``functionally comparable'' to that of a judge.
His powers are often, if not generally comparable to those of a
trial judge: He may issue subpoenas, rule on proffers of
evidence, regulate the course of the hearing, and make or
recommend decisions. More importantly, the process of agency
adjudication is currently structured so as to assure that the
hearing examiner exercises his independent judgment on the
evidence before him, free from pressures by the parties or
other officials within the agency.''
This law clearly establishes that the administrative law
judge is to render a decision that is based upon the facts and
the law and which is free from undue agency influence. How can
the agency ``manage'' the decisionmaking process without
violating this basic constitutional principle? The GAO should
be requested to describe the content of its proposal that SSA
should manage ``the decisionmaking process'' and further
explain how it is compatible with the U.S. Constitution. If the
agency attempts to manage or interfere with the function of the
administrative law judge it will be engaging in the very
conduct that the Administrative Procedure Act was enacted to
correct.
III. New Agency Policy
In 1996 SSA promulgated a policy which addressed many of
the issues raised by the GAO report. The agency policy of
Process Unification created a single standard for deciding SSA
disability claims at all levels in the process which is based
upon the legal standard. It mandates a more comprehensive
review of the claim at the DDS reconsideration level and
requires consideration of the DDS medical review at the hearing
level. At a recent SSA Redesign meeting a SSA representative
stated that the single standard will be based upon the SSA
regulations with certain elements of the POMS incorporated into
the regulations. The GAO report did not acknowledge this new
agency policy or consider its impact on the SSA disability
process.
IV. Recommendation
In 1975 the average number of monthly case dispositions was
16 per administrative law judge. By FY 1996 the administrative
law judges in SSA achieved a new high mark of 531,536 case
dispositions. This computes to over 44 cases a month per judge.
This is a commendable performance in view of the fact that the
cases have become complex, more voluminous, require the use of
more expert witnesses, have more attorney representation and
are more time consuming. Our judges are accustomed to working
hard, and we ask only to be permitted to function within the
scope of the law.
The Association has long recommended that a single standard
be used for the determination of SSA disability claims at all
levels of the process. This single standard must be based upon
the legal standard, because this is the standard upon which the
claim will be decided should the case be appealed to the
Federal courts. The Association has expressed concern with
certain aspects of the agency policy of Process Unification. We
have raised issue with the failure to develop a policy for
compelling the presence of DDS medical authorities at the
administrative law judge hearing should the claimants decide to
insist upon the production of this evidence with subpoena power
using the case of Lidy v. Sullivan, 911 F.2d 1075 (5th Cir.
1990) as authority. We are most concerned with the policy of
nonacquiescence which is part of Process Unification. This is a
separation of powers issue which caused the agency considerable
stress in the 1980's. Our concerns have been expressed to the
Commissioner in writing.
Our judges take an oath to uphold the law and the U.S.
Constitution which we have a duty to follow. We understand our
responsibility to follow the Constitution and apply the law,
agency regulations and agency policy which we take very
seriously. But we believe that it is beyond the scope of our
oath of office to apply agency policy that is inconsistent with
the law. It is the rule of law that protects against the abuses
of power. This can only be accomplished by respecting the due
process of law.
Respectfully submitted,
Ronald G. Bernoski
Acting President
Chairman Bunning. Ms. Gardiner.
STATEMENT OF DEBI GARDINER, PRESIDENT-ELECT, NATIONAL
ASSOCIATION OF DISABILITY EXAMINERS; ACCOMPANIED BY TOM
CHRISTOPHER, PAST PRESIDENT
Ms. Gardiner. Chairman Bunning and Members of the
Subcommittee, my name is Debi Gardiner. I am a hearing officer
with the Baton Rouge, Louisiana, Disability Hearing Unit, and I
am also president-elect of NADE, the National Association of
Disability Examiners.
On behalf of the membership of NADE, I would like to thank
you for the opportunity to present our views on the differences
in the DDS and OHA disability decisions.
NADE is a professional association whose membership
includes disability examiners and other professionals in State
agencies where Social Security disability decisions are made,
as well as within SSA. We also have attorneys, physicians,
ALJs, program advocates, and other individuals with interest in
the disability program.
Because of the experience our members have in adjudicating
Social Security and SSI disability claims, NADE has a keen
interest in the issues before this Subcommittee. We believe
this is an important hearing. Until now, few within SSA would
acknowledge that we do have two different disability programs,
one in DDS and one in OHA.
Now that there is more acknowledgement that the problem
exists, how do we fix it? NADE believes that SSA took an
important first step with the cross component, Process
Unification training, which stressed selected critical policy
to every individual making or reviewing disability decisions.
We understand that preliminary data suggests that following
Process Unification, the ALJ allowances have somewhat
decreased.
Expansion on this initiative by SSA is a must. Additional
training for the ALJs, especially medical training, is
essential if the discrepancy is to be resolved. SSA needs to
take advantage of new pol-
icy issues to provide consistent training on key policy issues
to all decisionmakers within the DDSs and the OHAs.
The general counsel has issued an opinion asserting SSA's
authority to establish programmatic policies that ALJs must
follow. This should assure their authority over the
programmatic policy to all components involved in disability
adjudication.
Currently, there is limited review of ALJ allowances. This
is an important first step. However, a significant number of
reviews must be done prior to effectuation so that
inappropriate allowances can be readily corrected. We suggest
that this number be sufficient to provide meaningful data and
feedback regarding the accuracy of the ALJ decisions, as is
currently done in the DDS.
We continue to have concerns that the DDS decisions will be
reviewed by SSA's Office of Program and Integrity Review, while
the ALJ decisions are reviewed by the appeals counsel. Also,
the same evidentiary standards must apply to DDS and ALJ
decisions.
The congressionally mandated 50-percent preeffectuation
review of DDS allowances lends itself to the perception that
DDS are sanctioned with error citations for predominantly
favorable decisions. This perception is reversed for the ALJ
decisions since there is only very minimal review of ALJ
allowances. Thus, the two bodies, the DDSs and the ALJs, are
sanctioned with error citations for completely opposite
decisions. As a result, NADE recommends Congress require SSA to
initiate steps to ensure that a greater percentage of ALJ
allowances be subjected to preeffectuation review. We feel this
would be an additional step toward resolving this discrepancy.
Reducing OHA backlog is essential. Because of delays, some
claimants are much more impaired by the time they receive their
hearing than when they were denied at DDS. This further serves
to create the perception of discrepancy between the two
components and, more importantly, is a hardship on the
individual who is deserving of disability benefits.
The ultimate goal for SSA within the umbrella of Process
Unification is to create the single book of program policy for
decisionmakers. Currently, the DDSs have their procedure and
policy vehicles and OHA has theirs. Obviously, we must all be
working from the same book in order to have a more uniform
system. NADE is very concerned that the delivery date for this
critical piece keeps slipping away, and we would encourage SSA
to make this a top priority.
One policy area which is being applied differently between
the DDSs and the ALJs is proper adjudicative weight being given
to the training source opinion. This is a policy area SSA has
tried to address, and this is one policy area in which a
congressional fix might be in the program's best interest. We
would be delighted to work with you on this.
I would like to reiterate that SSA has taken the first
tentative steps toward meaningful reform to narrow the gap
between the DDS and ALJ allowance rates. We appreciate the
Subcommittee's interest in and attention to this critical issue
facing the disability program and for the opportunity to appear
before you.
[The prepared statement follows:]
Statement of Debi Gardiner, President-Elect, National Association of
Disability Examiners; Accompanied by Tom Christopher, Past President
Chairman Bunning and members of the Subcommittee, on behalf
of the National Association of Disability Examiners (NADE) I
wish to thank you for the opportunity to present our views on
the differences in DDS and OHA disability decisions,
emphasizing possible remedies to this situation.
NADE is a professional association whose membership
includes disability examiners and other professionals in State
Agencies where Social Security Disability Decisions are made,
and within SSA, as well as physicians, attorneys,
administrative law judges, program advocates, and other
individuals with interest in the disability program.
Our interest in the issues before this committee today goes
back many years and has been the subject of extensive writing
by many of our members some of which has been designated as
official position papers by the Association. On September 12th
of last year we presented testimony to you addressing the
discrepancy between DDS and ALJ decisions. These comments were
subsequently expanded, to include an analysis of the causes of
the discrepancy, and submitted for the hearings record at your
request. Today, we would like to review recent initiatives by
SSA to confront this problem and, finally, to suggest
additional administrative and legislative remedies.
We continue to believe that SSA took an important first
step with the cross-component process unification training
which emphasized selected critical policy to every individual
involved in making or reviewing disability decisions, e.g,
restating the requirement that ALJs give appropriate weight, as
the opinion of a nonexamining physician or psychologist, to
findings of residual functional capacity, and other findings,
by DDS medical consultants. Following up on the unification
initiative by expanding quality review of ALJ allowances will,
we trust, reinforce the positive messages of the training. We
understand from SSA officials that very preliminary data
suggests that ALJ allowance rates have decreased somewhat
following the process unification training. I will make
suggestions for additional revisions to the review process
later on in my comments.
Also, SSA has, though, perhaps, somewhat belatedly,
obtained an opinion from General Counsel that asserts the
Agency's authority to establish programmatic policies that ALJs
must follow, require ALJs to attend training on the Agency's
policy interpretations, and to follow them, while safeguarding
the duty of impartiality owed to claimants. We are hopeful that
this finding will remove any ambiguity that may remain
regarding SSA's authority in matters involving programmatic
policy at all levels of adjudication.
SSA must continue and expand each of these initiatives.
Additional training for ALJs, particularly medical training, is
essential if that part of decisional discrepancy comprised of
unsupported allowances by ALJs is to be corrected. I would
cite, by way of example, the requirement to afford controlling
weight to the opinion evidence of treating physicians when that
opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques. This requirement becomes an
empty one if ALJs are not sufficiently grounded in knowledge of
medically acceptable diagnostic techniques to make supportable
determinations in this regard. The alternative is uncritical
acceptance of medical opinion.
Initiatives already undertaken to include review of ALJ
allowances must be expanded and revised. The current limited
review for data gathering and advisory purposes is an important
first step; however, without a statistically significant number
of reviews, done prior to effectuation so that inappropriate
allowances can be readily corrected, true unification will not
occur. We applaud SSAs plan to write a regulation requiring a
``live'' preeffectuation review of ALJ allowances. We suggest
to them that the number of such reviews comport with the number
of reviews of DDS allowances. We continue to be concerned,
however, that DDS determinations will be reviewed by SSA's
Office of Program and Integrity Reviews (OPIR) while ALJ
decisions will be reviewed by the Appeals Council. We have
spoken frequently of the differences that exist between the
various regional OPIRs that militate against consistency. We
believe that the same kinds of differences, perhaps magnitudes
greater, will exist between OPIR and the Appeals Council.
Finally, the same evidentiary standards must apply in review of
DDS and ALJ decisions.
Full resolution of the quality review-based aspect of
discrepant decisions may require legislative remedies. It has
become a commonplace to cite the fact that the congressionally
mandated 50% preeffectuation review of DDS allowances, in
conjunction with the historical fact that the vast
preponderance of reviews of ALJ decisions were of denials by
the courts has led to the perception that DDSs are sanctioned
with error citation predominantly for favorable decisions while
ALJs are sanctioned by court reversals of unfavorable
decisions. In that context, we once again recommend creation of
a Social Security Court. Additionally, we support closing the
record after a hearing by an ALJ.
We also recommend legislative review of the mandated
preeffectuation review. Congress might consider requiring the
same percentage of DDS and ALJ allowances to correct the
discrepant signals these components receive from the review of
favorable decisions.
Finally, I would offer a brief comment on OHA backlogs.
Efforts to reduce these are absolutely essential. It is well-
known that ALJs often decide cases on individuals who, because
of delays, are much more impaired than when they were denied by
the DDS. This creates a perception that the discrepancy between
these two components is greater than it actually is. More
importantly, however, it causes an inordinate amount of
hardship to individuals deserving of disability benefits. We
urge close administrative and legislative scrutiny of this
issue.
In closing, I would like to reiterate that SSA has
undertaken several important initiatives to narrow the gap
between DDS and ALJ allowance rates. These tentative first
steps lay the groundwork for meaningful reform. We appreciate
the Committee's interest in and attention to these critical
issues facing the disability program and the opportunity to
appear before you to present our views.
Chairman Bunning. Mr. Hill, please.
STATEMENT OF JAMES A. HILL, PRESIDENT, NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 224
Mr. Hill. Good morning, Mr. Chairman. My name is James
Hill. I am employed by the Office of Hearings and Appeals of
the Social Security Administration as a senior attorney in its
Cleveland, Ohio, hearing office. I am also the president of the
National Treasury Employees Union, chapter 224, which
represents attorney-advisers in 96 hearing offices across the
United States. I wish to thank the Subcommittee for inviting me
to testify this morning.
The massive increase in the disability backlog that OHA
experienced from 1992 to 1996 has been contained. There has
been no significant change in that backlog since July 1996.
While no one at OHA is satisfied with the status quo, we are at
least moving in the right direction.
This stabilization of the backlog is due in great part to
the senior attorney program which, if continued, will permit
significant reductions in case backlog, processing times, and
even in the reversal rate, thereby providing greatly improved
service to the public.
For some time, the disability program has been beleaguered
by two intractable problems, the lack of an effective CDR
Program and the OHA backlog. SSA decided to create an entirely
new disability adjudication system, the disability process
redesign. However, at the outset of the redesign, SSA admitted
that it was not intended to deal with either of the
aforementioned problems.
In order to cover this somewhat embarrassing oversight, SSA
subsequently claimed that one goal of AO, the adjudication
officer, initiative was to reduce that backlog.
Testing for the AO project began in November 1995, and
despite the highest level of priority, carefully selected
personnel, and the establishment of closely controlled ideal
test conditions, AO productivity remains at less than one-half
of the level predicted by the redesign model.
Through February 21, 1997, despite the resources lavished
upon it, the AO had produced only 5,689 decisions. Further, the
quality of those decisions, based on agency quality assurance
evaluations, is considerably less than that of similar ALJ and
senior attorney decisions. To date, the redesign has had no
measurable impact on the workload at OHA except consuming
resources, both human and material that could have been put to
much better use.
The primary short-term initiative directed at OHA workload
is a senior attorney program which is also known as Action 7 of
the Short-Term Disability Project. This program produced
approximately 47,000 decisions in fiscal year 1996. Recent
management initiatives have significantly improved the
operational efficiency of this program. During the first 3
months of 1997, nearly 16,000 Action 7 decisions were issued.
This is an annual rate of over 62,000 cases.
Quality assurance studies have demonstrated that the
accuracy rate of senior attorney decisions significantly
exceeds that of adjudication officers and is slightly higher
than ALJ on-the-record decisions. The accuracy of the senior
attorney decisions, combined with their 22-percent payment
rate, refutes any allegation that the program is designed to
pay down the backlog.
Additionally, the implementation of Action 7 has not
resulted in an unacceptable increase in the number of ALJ
decisions awaiting drafting. Action 7 has resulted in deserving
claimants receiving favorable decisions with an average
processing time of only 120 days.
The prime factors in achieving both decisional accuracy and
consistency are expertise, experience, accountability, and
decisional independence. A considered effort must be made to
ensure that all decisionmakers meet these criteria.
A consistent quality assurance process at all levels and
vigorous enforcement of the Process Unification rulings will
significantly improve decisional consistency.
The lower payment rate of senior attorneys who are applying
the same standards and considering the same factors as ALJs as
compared to the payment rates of ALJs is documented, but has
not been analyzed. Such an analysis could prove instrumental in
achieving a higher level of decisional accuracy and consistency
inasmuch as senior attorney decisional behavior seems to fall
between the decisional behaviors of the State agencies and the
ALJs.
Thank you.
[The prepared statement follows:]
Statement of James A. Hill, President, National Treasury Employees
Union, Chapter 224
My name is James A. Hill. I am employed by the Office of
Hearings and Appeals (OHA) of the Social Security
Administration (SSA) as a Senior Attorney. I am also the
President of National Treasury Employees Union (NTEU) Chapter
224 which represents Attorney-Advisors in 96 Hearing Offices
across the United States. I served as a member of the
Reengineering Social Security Steering Committee and am
presently a member of the Disability Process Redesign Advisory
Committee. I also served on the original Short Term Disability
Project Committee which formulated the Short Term Disability
Project and am a member on the committee that oversaw the
implementation of the Project. I wish to thank the Subcommittee
for inviting me to testify regarding the state of the Social
Security disability insurance program.
Summary
The Current Status of OHA Workloads and Their Impact on Service
to the Public
The massive increase in the disability backlog at OHA
experienced from 1994 to 1996 has been contained; there has
been no significant change in the backlog from July 1996
(529,113 cases) to March 1997 (527,125 cases). This
stabilization of the backlog affords OHA the opportunity to
effect incremental changes in its processes within its current
structure, such as the Senior Attorney Program, which will
permit a significant reduction in the case backlog, in
processing times, in the average age of pending cases, and in
the reversal rate during the next two years.
The Effects of Long-Term Initiatives on OHA Workloads
The primary Long-Term Initiative purporting to improve the
OHA workload situation is the Redesigned Disability Process
(Redesign). However, at the outset of the Redesign SSA admitted
that the Redesign was not intended to deal with the two largest
problems plaguing the Social Security disability system: The
lack of an effective Continuing Disability Review (CDR) and the
backlog at OHA. The Redesign consists of 83 separate
initiatives of which GAO recently noted none had been
completed. The initiative with the most potential to impact the
workload situation of OHA is the Adjudication Officer (AO)
Initiative which began testing in November 1995. Despite the
highest level of priority, carefully selected personnel, a
priority on data processing equipment, and the establishment of
closely controlled, ideal test conditions, AO productivity
remains at less than half the level predicted by the Redesign
model. Through February 21, 1997, despite the resources
lavished upon it, the AO test had produced only 5,689 decisions
and 12,985 certifications to ALJs. Further, the quality of
those decisions, based on Agency quality assurance evaluations,
is less than that of similar ALJ and Senior Attorney decisions.
The Redesign has had no measurable effect upon the workload of
OHA except consuming resources, both human and material, that
could have been put to much better use. Furthermore, a full
roll out of this initiative would almost certainly require re-
assignment of substantial numbers of OHA personnel rendering
OHA incapable of performing its mission.
The Effects of Short-Term Initiatives on OHA Workloads
The primary short-term initiative directed at the OHA
workload was the Short Term Disability Project (STDP) which
except for Action # 6 (screening units) and Action #7 (the
Senior Attorney Program) ended December 31, 1996. Senior
Attorneys spend approximately 25-50% of their time performing
Action #7 work and most of the remaining 50-75% of their time
drafting ALJ decisions. The ability of Senior Attorneys to
perform both tasks significantly increases managerial
flexibility allowing human assets to be directed to the highest
priority tasks. Action #7 was hindered by a variety of ``start-
up'' problems and fierce resistence from ALJs, including many
Hearing Office Chief Administrative Law Judges. Despite this
resistence nearly 47,000 Action #7 decisions were produced in
FY 1996. However, recent management initiatives have
significantly improved the operational efficiency of Action #7
resulting in a significant increase in production. During the
first three calendar months of 1997 nearly 16,000 Action #7
decisions were issued; this is an annual rate of over 62,000
cases. Quality Assurance studies have demonstrated that the
accuracy rate of Senior Attorney decisions significantly
exceeds that of Adjudication Officers and is somewhat higher
than that of on-the-record ALJ decisions. During FY 1997 Senior
Attorney decisions have been significantly more accurate than
ALJ on-the-record decisions. The accuracy of the Senior
Attorney decisions combined with the significantly lower
payment rate of Senior Attorneys (approximately 22%) than the
payment rate of ALJ on the Senior Attorney cases that were not
paid by Senior Attorneys (approximately 57.1%) demonstrate that
Action #7 is not an effort to ``pay down the backlog.''
Additionally, the implementation of Action #7 has not resulted
in an unacceptable increase in the number of ALJ decisions
awaiting drafting. Action #7 has resulted in deserving
claimants receiving a favorable decision with an average
processing time of approximately 120 days as compared to the
over 1 year average processing time for a case requiring an ALJ
hearing. Finally, Action #7 has caused a decrease of nearly a
month and a half in processing time even for those Action #7
cases which were not paid by Senior Attorneys and which still
required an ALJ hearing as compared with non-Action #7 cases.
SSA Decisional Inconsistency
A number of well known factors contribute to the decisional
inconsistencies between the various adjudicatory levels. A
quality assurance process that concentrates upon favorable
decisions at the DDS level with insufficient control regarding
the quality of the adverse decisions, and the exact opposite
situation at the appellate level is a prime factor in producing
decisional inconsistency. However, the failure of the State
Agencies to provide adequate written explanations for their
decisions, their failure to adequately develop cases, and their
failure to consider the effect of the claimant's symptoms not
only limits the usefulness of their determinations at the OHA
level, but contributes to incorrect determinations. Vigorous
enforcement of the Process Unification Rulings at the State
Agency level will significantly improve decisional accuracy. In
evaluating the situation at the OHA level, and indeed in
evaluating the entire matter of decisional consistency, the old
paradigm of two levels of decision making (DDS and OHA which
really meant ALJ) must be replaced by a paradigm consisting of
three levels of decision making (DDS, Senior Attorney, and
ALJ). The payment rates of the screening units demonstrate that
even using DDS standards, DDS decisions are wrong a significant
amount of time. The lower payment rate of Senior Attorneys, who
are applying the same standards and considering the same
factors as ALJs, as compared to the payment rate of ALJs has
been documented but not sufficiently analyzed. Such an analysis
could prove enlightening in as much as Senior Attorney payments
rates seem to fall between those of the screening units which
apply ``DDS standards'' and ALJ. Inclusion of subject matter
expertise in the ALJ selection criteria would ensure a more
consistent level of expertise at all decisional levels thereby
increasing decisional accuracy. Finally, increasing ALJ and DDS
accountability for producing accurate decisions.
Recommendations
The Adjudication Officer Program should be
discontinued and the Senior Attorney Program made permanent.
The State Agencies must place greater emphasis
upon compliance with the Process Unification Rulings and fully
developing the medical record.
A study of the factors affecting the decision
making process at the DDS, Senior Attorney, and ALJ level
should be conducted to establish best practices which could be
applied at all levels.
Include subject matter expertise in the ALJ
selection criteria.
Increasing the accountability of decision as
appropriate.
The Current Status of OHA Workloads and Their Impact on Service
to the Public
At the beginning of July 1996 OHA had 529,113 cases
pending; at the end of March 1997 OHA had 527,125 cases
pending. At the end of July 1996 there were 22,445 cases
pending drafting; at the end on March 1997 there were 23,906
cases pending drafting. OHA receipts during that period were at
an annualized rate of 562,010 cases. In July 1996 average
processing time at OHA was 379.84 days; at the end of March
1997 average processing time at OHA was 369.67 days. In July
1996 average age of pending cases at OHA was 275.00 days; at
the end of March 1997 average age of pending cases at OHA was
274.99 days. During the period in question the
number of ALJs increased from 1024 to 1064 while the number of
decision writers declined from 1703 to 1546. While NTEU is not
satisfied by the current status of OHA workloads, the record
clearly demonstrates that the days of massive increases in the
OHA backlog are finally behind us. This is particularly
impressive given the fact that OHA receipts continue to
increase, albeit at a significantly slower rate than during
1994-1996. This stabilization of the OHA backlog affords OHA
the opportunity to effect incremental changes in its processes
within the current structure which will permit a significant
reduction in the backlog, in processing times, in the average
age of pending cases, and in the reversal rate during the next
two years. Action #7 of the Short Term Disability Project,
which empowers Senior Attorneys to review, develop and issue
fully favorable decisions has demonstrated its ability to
increase OHA dispositions without adversely affecting
decisional accuracy, payment rate, program costs, and the
number of ALJ cases awaiting decision drafting.
Effects of Long-Term Initiatives
The primary long term initiative through which SSA is
attempting to modify the disability adjudication system is the
Disability Process Redesign (Redesign). During the past several
years SSA has had two major problems with its disability
program which have significantly reduced the quality of the
service provided to the public--the disability case backlog at
OHA and the lack of an effective Continuing Disability Review
(CDR) program. Amazingly, the Redesign as announced by then
Commissioner Shirley Chater specifically excluded
rehabilitation or continuing disability issues from
consideration, and explicitly stated that Redesign was not
designed to reduce the hearings backlog. In order to divert
some of the criticism regarding this oversight, sometime after
its inception, SSA officials decided to present one part of the
Redesign, the Adjudication Officer, as a vehicle to assist in
reducing the current backlog at the Office of Hearings and
Appeals. Of course, the Adjudication Officer initiative was not
designed for the purpose of reducing the pre-existing backlog.
The Redesign is a prime example of a typical response of a
governmental bureaucracy which entails solving a problem by
instituting a massive and expensive program which is more
responsive to the needs of the bureaucracy that created it than
to the needs of the people it purports to serve. SSA is
currently involved in an extensive review of its customer
service program. To that end a Customer Service Executive Team
(CSET) has been charged with the responsibility of reviewing
the current plan and suggesting improvements. In a meeting on
April 16, 1997 the CSET proposed that the Agency conduct focus
groups and surveys of its ``disability customers'' to update
its understanding of the service desired by these customers. At
that time a senior SSA executive informed the CSET that such
activities would make those managing the Redesign very uneasy
because the customers might indicate desires not consistent
with the Agency's current plans. This is a clear indication
that the driving force behind the Redesign is not improved
service to the public, but advantage in the ongoing power
struggle at the upper echelon of SSA management. As is often
the case with major initiatives in the federal government,
those senior officials who conceived the initiative and began
its implementation are no longer with the Agency, thereby
relieving those individuals from the responsibility of dealing
with the problems caused by their creation. I have often
wondered how many of the seemingly endless number of projects
and initiatives proposed and implemented by senior management
would have been commenced had those administrators expected to
be employed by the Agency when the inevitable problems
developed.
Distilled to its essence, the Disability Process Redesign,
as conceived by Rhoda Davis and championed by Shirley Chater
and Larry Thompson, is a grandiose scheme whose primary goal is
to centralize control of the disability determination process
in the hands of an isolated bureaucracy in Baltimore more
concerned with its own desire for power than the needs of the
public. Indeed, the primary purpose of implementing the
aforementioned Adjudication Officer is to effectively eliminate
the Office of Hearings and Appeals and further centralize
control of the disability process in the hands of the
bureaucracy in Baltimore. Unfortunately, this bureaucracy has
on countless occasions revealed its lack of understanding and
contempt for the concept of due process in the adjudication
process.\1\ At the time the pilot for the Adjudication Officer
began, SSA tried repeatedly to secure an enabling regulation
which provided for a full roll out of the position several
months after the pilot began. At that time, SSA insisted that
the concept of the Adjudication Officer had been confirmed, and
that only minimal testing was needed for fine tuning.
Fortunately, OMB averted disaster by authorizing only a testing
regulation.
---------------------------------------------------------------------------
\1\ Similar disregard for the legal system including the role of
the courts in that system underlies the Agency's developing controversy
with the Federal Courts regarding Agency acquiescence to Circit Court
decision.
---------------------------------------------------------------------------
Testing of the AO began in November 1995 with the opening
of test facilities in 9 state sites. Sixteen additional federal
sites were opened in the following several months.
Approximately 120 Adjudication Officers have been involved in
the test. The initial test period expired in November 1996, but
the results of the test were so discouraging that SSA concluded
that further testing was needed. Therefore testing has been
continued while ``modifying/adjusting policies and procedures''
Currently, SSA plans to commence a full roll out of the AO
process beginning in January 1998.
A review of the results of the test so far demonstrates the
magnitude of the Agency's capacity for understatement. A more
disinterested observer would likely characterize the AO test as
an unmitigated disaster. Productivity for the AO was originally
projected to be at least 2 clearances per AO per day. Actual
test data demonstrates that productivity has peaked at a
production of 0.8 to 0.9 per AO per day. Furthermore, quality
assurances reviews have revealed significant deficiencies in
areas vital to disability determinations including onset,
duration, activities of daily living, past relevant work,
transferability of skills, the existence of others jobs, and
the effects of symptoms upon an individual's ability to work.
The decisions of AOs have consistently had a lower effectuation
rate after review by the Appeals Council than either Senior
Attorney decisions or ALJ on-the-record decisions. While SSA
claims that it is too early to ascertain what the impact of the
AO on program costs is, current indications are that it will
result in a significant increase in those costs. Finally it
should be noted that from its onset in November 1995 through
February 21, 1997, the last date for which NTEU has data, the
AO test had produced only 5,689 deci-
sions and 12,985 certifications to ALJs. For comparison, in the
month of March 1997 alone, Senior Attorneys produced 5,297
decisions and reviewed 21,474 cases.
SSA has provided a number of excuses for the poor
performance of the AO test, but has not yet seriously addressed
the question of whether the problem is with the program itself
rather than its execution. SSA states that training and start
up times have adversely affected production. While this is
undoubtedly true at the outset, the learning curve has long
since stabilized and production has remained essentially
unchanged for many months. Interestingly enough, the most
successful sites have involved staff attorneys from OHA
detailed to the AO test. These individuals, many of whom have
years of experience dealing with cases at the appellate level
and are far more comfortable dealing with the claimants'
attorneys, have provided more efficient service than their non-
professional, less experienced colleagues.\2\ SSA also
attributes reduced production to creating a new hearing level
``culture,'' varying levels of local-site managerial support,
and a ``lack of traditional organizational ownership which has
affected the overall support the AO test has received.''
---------------------------------------------------------------------------
\2\ Some of these attorneys received temporary promotions to the
GS-13 Senior Attorney position. These individuals were permitted to
retain the GS-13 temporary grade despite the fact they were detailed to
a GS-12 non-attorney position.
---------------------------------------------------------------------------
If true, this would be a stunning admission of the
ineptitude of SSA management given the fact that the Redesign
has the highest priority and the AO test itself has the highest
priority on both human and material resources. Many of the AOs
and much of the support clerical staff in AO sites are, in the
eyes of the DPRT, ``the best of the best'' and have been
recruited from across the country and detailed to the AO test
site locations, thereby incurring a considerable cost in
lodging and per diem expenses. It is demonstrative of the level
of priority given to the Redesign that the Agency is willing to
pay lodging and per diem costs to bring AOs and clerical
workers to the AO tests sites including areas such as New York
City for a ``test'' that began in some offices in November 1995
and has no end in sight.\3\ NTEU believes it would be a far
better use of the taxpayers' money to use AOs and clerical
support indigenous to the AO work site areas rather than incur
the additional lodging and per diem costs. This is a prime
example of the high priority given to the AO test by SSA. To
solve the ``managerial problems'' SSA has shifted operational
control from DPRT to the Deputy Commissioner for Operations
(DCO).\4\ In as much as less than half of the AO test sites
report to DCO, this change seems more cosmetic than functional.
More to the point is a statement made at the Redesign
Disability Process Advisory Council meeting in February 1997
when SSA officials stated that the productivity discrepancy is
due to a faulty model. Of course it was the results of these
flawed models upon which the decision to implement the Redesign
was justified.
---------------------------------------------------------------------------
\3\ It is rumored that some of these individuals actually receive
lodging and per diem payments greater than their salary.
\4\ At the same time the DPRT was substantially downsized and its
Director, Charles Jones, left the Agency.
---------------------------------------------------------------------------
The anemic level of AO productivity is a matter of grave
concern. Based upon the model which predicted that productivity
would be in the range of two a day, staffing, material and
physical plant estimates were made. It is clear that SSA cannot
tolerate any program that causes a significant increase in the
disability backlog. Throughout the test cycle, when the AO
sites were incapable of handling even the limited number of
cases assigned to them, intake to them was diverted to the
hearing offices for processing through the current process.
These diversions assured that the Agency would be spared the
embarrassment of the AO creating yet another backlog in the
disability adjudication system, and did little to enhance the
viability of the AO process in a ``real world'' setting.
Diverting intake to hearing offices will not be possible if and
when the AO roll out is commenced. As conceived by the
Redesign, an AO was projected to produce two decisions a day;
currently, long after the learning curve has expired, the
AO test has demonstrated a productivity of only 0.8-0.9
clearances per day. Such a low level of productivity would
require more than doubling the 1250 AOs originally projected.
In fact, processing the more than 600,000 cases appealed to OHA
a year at the rate of one case a day will require at least
2500-2800 AOs. Additionally, supporting staff, office space and
equipment would also have to be more than doubled.
However, that relative lack of productivity is not the only
failing of the AO pilot. Decisional accuracy by AOs is less
than that of Senior Attorneys or ALJs involving on-the-record
cases. Both the productivity and accuracy problems are at least
in part traceable to the Agency's choice of personnel to staff
the AO position. While SSA loudly, but quite inaccurately,
characterizes the AO as a professional adjudicator, the fact of
the matter is most AOs had little previous experience in
dealing di-
rectly with claimant's and their representatives, medical
issues, legal issues, or preparing legally defensible
decisions. In short, not only are these individuals not
``professionals'' as that term is normally used, but many, if
not most, lacked the necessary education, training, and
experience to function successfully as an independent
adjudicator. SSA in the form of staff attorneys in OHA has
hundreds of true professionals that had the necessary
education, training and experience to become successful
adjudicators.
Effects of Short-Term Initiatives
The Short Term Disability Project was designed as a short
term solution to growing backlogs at the DDS level and the far
more serious backlog at the hearings level. STDP formally ended
as intended on December 31, 1996 except that Action # 6 and
Action #7 have continued. While the backlog at OHA was not
significantly diminished during the course of STDP, it did
cease to grow. Considering that it had grown at an annual rate
of approximately 100,000 cases during the two years preceding
the effective implementation of the STDP programs intended to
deal with the OHA situation, STDP can be considered to be an
unqualified success. The most important initiative in the STDP
package regarding backlog reduction at the hearing level was
Action #7 which involves Senior Attorneys at OHA reviewing,
developing and paying on-the-record, if appropriate, cases
determined by a profile to be the most likely payments. Senior
Attorneys spend approximately 25-50% of their time performing
Action #7 work and most of the remaining 50-75% of their time
drafting ALJ decisions. The ability of Senior Attorneys to
perform both tasks significantly increases managerial
flexibility allowing human assets to be directed to the highest
priority tasks. Those cases that could not be paid on-the-
record by Senior Attorneys are forwarded to an ALJ for
processing consistent with normal OHA procedures.\5\ By Senior
Attorneys finding, developing and paying appropriate cases,
deserving claimants received a favorable decision within months
of their filing an appeal and were spared the one to two year
wait for a hearing. It should be noted that further development
of the medical and non-medical record is an integral part of
Action #7; it is this development that both demonstrates that
an individual is in fact disabled and measurably improves the
quality of the decisions rendered. Despite this development,
average processing time for favorable Senior Attorney decisions
(August 1995 through the end of March 1997) is only 124 days.
This places a favorable decision in the hands of deserving
claimants only four months after they file their Request for a
Hearing. Current processing time at OHA for cases that go
through the hearing process for the same time period is 414
days for non Action #7 cases and 376 days for Action #7 cases.
The decrease in processing time of Action #7 cases at the ALJ
level can be attributed to the effects of the case development
performed by Senior Attorneys on those cases that they forward
to the ALJs. Action #7 clearly provides improved service to
claimants.
---------------------------------------------------------------------------
\5\ In many ways the Senior Attorney and the Adjudication Officer
perform similar functions; however the Senior Attorney program has been
the far more effective of the two programs.
---------------------------------------------------------------------------
Despite it obvious success, the Senior Attorney program has
been unjustly criticized ever since its proposal. It was
fiercely opposed by the Association of ALJs, Inc., many of the
state agencies and many in the Redesign bureaucracy, who
objected to any intrusion onto their ``turf.'' Nonetheless,
through the vision and labors of OHA, NTEU, and the STDP Team,
the Senior Attorney program came into being. A key element in
implementing the program was the creation of regulatory
authority. Although the states had the authority to permit
Action #7 to be launched without formal regulatory authority,
except for the states in the Southeast United States, very few
did. Therefore, full implementation of Action #7 had to wait
until the end of the rule making process. In July 1995 the
necessary regulatory language was finally in place, so in
August 1995 the program was commenced in the face of continued
hostility. In fact opposition by local hearing office
management, usually by Hearing Office Chief Administrative Law
Judges, continues to be a major factor in limiting the
effectiveness of Act. This opposition takes many forms
including lower performance evaluations for individual Senior
Attorneys who issue a substantial number of Action #7 cases,
failure to provide even minimal staff assistance, failure to
conform to Agency policy directives, and return to the ``unit
system.'' In fact it was not until late 1996 that OHA
management made a concerted attempt to overcome hearing office
obstructionism to Action #7. The result of that effort was
gratifying. In the first 3 months of 1997 nearly 16,000 fully
favorable decisions were released pursuant to Action #7. The
record clearly demonstrates that Action #7 has significantly
increased the number of dispositions at OHA thereby materially
reducing the number of cases which would be awaiting decision.
If current trends continue, Action #7 will produce more
than 50,000 decisions in FY 1997 and over 100,000 decisions for
FY 1996-1997 without significantly impairing any area of OHA
decisional productivity. It is these decisions, when added to
the decisions of the ALJs which have stopped the increase in
the OHA backlog and which if allowed to further develop,
provide the mechanism by which the OHA backlog will be
eliminated. The following table shows the breakdown by Region
of the number of Senior Attorney decisions made and the Senior
Attorney payment rate since Action #7 commenced.
Senior Attorney Decisions--August 1995-March 1997
----------------------------------------------------------------------------------------------------------------
Region Reviewed Allowed Payment Rate
----------------------------------------------------------------------------------------------------------------
I............................................................... 9,253 2,384 25.8%
II.............................................................. 42,131 12,567 29.8%
III............................................................. 37,739 7,638 20.2%
IV.............................................................. 70,891 19,133 27.0%
V............................................................... 56,252 9,160 16.3%
VI.............................................................. 46,519 7,893 17.0%
VII............................................................. 11,777 1,914 16.2%
VIII............................................................ 8,394 1,781 21.2%
IX.............................................................. 38,256 7,023 18.6%
X............................................................... 11,680 2,710 23.2%
Total......................................................... 332,892 72,203 21.69%
----------------------------------------------------------------------------------------------------------------
There are a number of concerns regarding Action #7 which
have been expressed. Some claimed that it was merely an attempt
to ``pay down the backlog''; some feared that Senior Attorneys
would be subject to coercion by SSA to expedite these cases;
many feared a significant increase in the number of ALJ
decisions awaiting drafting; and some feared that the quality
of the decisions made by Senior Attorneys would be
unacceptable. Many in the state agencies, who bitterly resent
any review of their work product and who were already
distressed by the high payment rate at OHA, believed that
Action #7 would result in reversal rates embarrassing to the
state agencies. Experience has demonstrated that none of these
fears have come to pass.
Number of Favorable Decisions From August 1995 Through March 1997
------------------------------------------------------------------------
Non-
Action #7 Action #7 Non- Action #7
OTR After Action #7 After
Hearing OTR Hearing
------------------------------------------------------------------------
Senior Attorneys............ 72,203 NA NA NA
ALJs........................ 23,657 69,985 71,170 281,098
------------------------------------------------------------------------
Action #7 was designed to assure that deserving claimants
were awarded disability benefits as quickly as possible.
However, as with any such program there is the danger that
those who are not truly disabled would be found disabled. Many,
the Association of ALJ, Inc. most notably, constantly
proclaimed that the purpose of Action #7 was to ``pay down the
backlog.'' To assure that such was not the case, a
comprehensive quality assurance program has been put in place
to monitor on-the-record decisions of Senior Attorneys, ALJs
and Adjudication Officers. The most reliable of the quality
assurance reviews is performed by the Appeals Council. The
Appeals Council has reviewed a sample of on-the-record cases
from Senior Attorneys, Administrative Law Judges, and
Adjudication Officers and determined which cases can be
effectuated, which cases must be remanded, and which cases the
Appeals Council itself would issue a decision. As demonstrated
by the Tables below, this review has resulted in a finding that
the quality of the decisions made by Senior Attorneys is better
than that of the AOs and the on-the-record decisions of ALJs.
The tables also reveal that the accuracy of the Senior Attorney
decisions has increased as Senior Attorneys have become more
experienced.
Appeals Council Review of Unappealed on-the-Record Decisions
Cumulative from August 8, 1995
----------------------------------------------------------------------------------------------------------------
AC TOTAL
Effectuation Percent Remand Percent Decision Percent CASES
----------------------------------------------------------------------------------------------------------------
Senior Attorneys......................... 787 85.92% 123 13.43% 6 .66% 916
ALJs OTR................................. 662 85.64% 101 13.07% 10 1.29 % 773
Adjudication Officers.................... 60 73.17% 20 24.39% 2 2.44% 82
----------------------------------------------------------------------------------------------------------------
Appeals Council Review of Unappealed on-the-Record Decisions
October 1, 1996 to March 12, 1997
----------------------------------------------------------------------------------------------------------------
AC TOTAL
Effectuation Percent Remand Percent Decision Percent CASES
----------------------------------------------------------------------------------------------------------------
Senior Attorneys......................... 196 89.09% 23 10.45% 1 0.45% 220
ALJs OTR................................. 163 85.79% 26 13.68% 1 0.53% 190
Adjudication Officers.................... 22 81.48% 4 14.81 1 3.70% 27
----------------------------------------------------------------------------------------------------------------
Perhaps even more devastating to the arguments of those who
argue that Action #7 is merely a vehicle to pay down the
backlog, is the results of a review of the ``payment rate'' of
the Senior Attorneys and the ``payment rate'' of ALJs on the
very cases that Senior Attorneys concluded they could not pay
on-the-record. As previously noted, the Action #7 favorable
rate on a national basis since the beginning of the program is
21.69%.
ALJ Favorable Rates
------------------------------------------------------------------------
August 1995-
March 1997 FY 1997 March 1997
------------------------------------------------------------------------
Cases Reviewed Under Action #7 55.6% 54.8% 57.1%
Cases not Reviewed Under
Action #7.................... 47.8% 47.7% 51.4%
------------------------------------------------------------------------
The record demonstrates that the ALJs have a higher pay
rate on Action #7 cases than those that do not go through the
Action #7 process which gives some level of validity to the
profile by which those cases are selected. However, the
statistics clearly demonstrate a consistent payment rate by
Senior Attorneys which is well below that payment rate of ALJs
on the Action #7 cases initially reviewed and not paid by
Senior Attorneys. The unmistakable conclusion is that Senior
Attorneys have a more conservative payment rate than ALJs, but
that they nonetheless identify and render favorable decisions
to a large number of deserving claimants in considerably less
time than is required for the hearing process. Clearly, Action
#7 has not resulted in ``paying down the backlog.'' Indeed, the
overall payment rate in OHA has actually declined since the
onset of Action #7, an occurrence which is not coincidental.
There is no qualitative or quantitative evidence of
coercion by the Agency on Senior Attorneys. However, those
advancing the concern, primarily ALJs and to a lesser extent
the state agencies, were concerned that Action #7 was an
attempt to pay down the backlog. Given the payment rate, it is
readily apparent that the feared coercion has simply not
occurred. From my personal knowledge, based upon my
conversations with Senior Attorneys and the conversations
reported to me by other Chapter officials, it is readily
apparent that there has been no effort to affect the individual
decisions of Senior Attorneys. In those areas in which the
payment rate is unusually low, statistical reviews have
revealed systemic problems (e.g., lack of effective
development) which have been addressed on a a systemic basis.
Lack of decisional independence has not been a problem for
Action #7 adjudicators.
SSA Decisional Inconsistency
The prime factors in achieving both decisional accuracy and
consistency are expertise, experience and accountability. A
number of well known factors contribute to the difference
between the various adjudicatory levels. A quality assurance
process that concentrates upon favorable decisions at the DDS
level with insufficient control regarding the quality of the
adverse decisions, and the exact opposite situation at the
appellate level is a prime factor in producing decisional
inconsistency. However, the failure of the State Agencies to
provide adequate written explanations for their decisions,
their failure to adequately develop cases, and their failure to
consider the effect of the claimant's symptoms not only limits
the usefulness of their determinations at the OHA level, but
contributes to incorrect determinations. Vigorous enforcement
of the Process Unification Rulings at the State Agency level
will significantly improve decisional accuracy. In evaluating
the situation at the OHA level, and indeed in evaluating the
entire matter of decisional consistency, the old paradigm of
two levels of decision making (DDS and OHA which really meant
ALJ) must be replaced by a paradigm consisting of three levels
of decision making (DDS, Senior Attorney, and ALJ). The payment
rates of the screening units demonstrate that even using DDS
standards, DDS decisions are incorrect a significant amount of
time. The lower payment rate of Senior Attorneys, who are
applying the same standards and considering the same factors as
ALJs, as compared to the payment rate of ALJs has been
documented but not sufficiently analyzed. Such an analysis
could prove enlightening in as much as Senior Attorney payments
rates seem to fall between those of the screening units and
ALJ. While three years experience as a staff attorney at OHA is
the minimum requirement to become a Senior Attorney, more than
half of the Senior Attorneys have over 10 years experience as
OHA staff attorneys. During that time a primary duty was
drafting the detailed and highly technical denial decisions
required to pass muster at the U.S. District Courts. Their work
as Staff Attorneys has provided Senior Attorneys with a level
expertise unmatched in the Agency. While Senior Attorneys have
the decisional independence necessary to render decisions, they
have exacting performance standards against which their work
activities must be measured insuring a high degree of
accountability. Quality assurance and Appeals Council review
ensure Senior Attorney decisional accuracy.
Chairman Bunning. Thank you all for your testimony, and I
will start out--Ms. Shor, excuse me. I beg your pardon.
STATEMENT OF NANCY G. SHOR, EXECUTIVE DIRECTOR, NATIONAL
ORGANIZATION OF SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES
Ms. Shor. Thank you.
Mr. Chairman, I am delighted to be here today to talk about
the disability appeals process. The hearings and appeals system
is a critical component of the Social Security Disability
Program and certainly warrants your attention. We very much
appreciate your extending the invitation to us to testify.
I used to represent Social Security disability claimants,
and for the past 17 years, I have been executive director of
the National Organization of Social Security Claimants'
Representatives. This is an organization of approximately 3,300
attorneys and others who represent both Social Security and
Supplemental Security Income disability claimants. We have many
years of experience at every level of the process. We know how
the process looks to claimants. Often, our members are the
first person a claimant has come to bewildered as to why they
are encountering difficulty with getting disability benefits
they believe they are entitled to.
We welcome this opportunity to share some observations and
recommendations with you today.
Certainly, your hearing is properly focused on ensuring the
process of determining which claimant is entitled to benefits
and which claimant is not. We know it is extremely important to
today's claimant to know that the process of adjudication is
fair, but it is also important to today's taxpayers, some of
whom will become to-
morrow's claimants. If we are going to try to instill
confidence in the system in the American public, it is
important they have confidence that the disability adjudication
system is producing fair results.
We share SSA's goal in their reengineering and redesign
plan of providing accurate decisions for claimants as early in
the process as possible. I want to stress that changes made at
the front end can have significant beneficial impact on the
hearings and appeals backlog situation. To focus only on the
hearings and appeals process may show us too much of the back
end of the dog and not enough of the front.
Fundamentally, the hearings and appeals system is sound. A
claimant has several levels of appeal from the initial
application, the reconsideration, the administrative hearing,
the Appeals Council, and subsequently access to the Federal
district court. I think it is important to keep in mind that
the Social Security Administration has the capacity to step in
at any one of those levels and stop effectuation of a favorable
decision if the agency believes that that decision is wrong and
require it to be readjudicated.
We want to emphasize that the right of a claimant to file a
request before an ALJ is central to the fairness of the
adjudication process. Certainly, the key factor there is that
the ALJ is an independent decisionmaker who provides impartial
factfinding and adjudication, free from agency coercion or
influence, and considers, evaluates, and weighs all the
evidence in accordance with the Social Security Act, SSA
policy, as well as circuit court case law.
For claimants, a fundamental principle of this due process
right is their opportunity to present new evidence in person to
the ALJ and to receive a decision from the ALJ which is based
on all available evidence.
We are very supportive of the efforts the Office of
Hearings and Appeals is making to try to reduce the size of the
backlog, including the allowance of senior staff attorneys as
adjudicators, where favorable decisions can be issued, as well
as increased emphasis on better development of cases before
they reach the ALJs.
Because the issue has materialized on nonacquiescence, we
certainly would express our concern. This is a policy that
flies in the face of our system of jurisprudence.
I would emphasize that the major shortcoming we see with
the process right now is that of development. It is an
unreliable process, and the observation of our members would
certainly be that the number one factor in cases that their
potential clients bring to them is undeveloped, underdeveloped
records coming from the DDS. It leads us to readily believe
that lots of claims are denied at DDS not because the evidence
establishes the person is not disabled, but because the
evidence is inconclusive and really doesn't establish anything.
We believe the most crucial change SSA could make is to
encourage better development at the very front end of the
process, and certainly, part of that is doing a better job in
explaining to claimants why it is important to get evidence in
and the type of evidence that the agency needs to process their
claim.
We don't believe closing the record at the ALJ level is a
good solution to this problem for a variety of reasons. First
and foremost, almost everyone has a medical condition which
will change, unfortunately often worsen. They are undergoing
treatment, and their treating source is normally providing
continuously updated medical records. So, virtually, any
claimant is going to have new evidence on a fairly routine
basis.
Second, many claimants are really not capable of
understanding the kinds of evidence they need. They may ask
their doctors for it, and their doctors won't respond. The SSA
hasn't well explained to the doctors what it is they are
looking for. Very often, DDS, because of time pressure, will
request the evidence, but not issue followups for it if they
don't get it.
Finally, we think closing the record elevates form over
substance. It elevates the appearance of a system as opposed to
trying to discern truly who is and who is not disabled. For a
variety of reasons, closing the record is not a helpful
solution to the problem of encouraging claimants to get
evidence in earlier.
We commend the Subcommittee for holding the hearing today
to look at the hearings and appeals process. We certainly are
committed to supporting the basic structure of the system and
to working with the agency in all ways to reduce the huge
backlogs. Better development of the claims before they reach
OHA would produce a great benefit both to claimants and to the
hearings and appeals process.
We look forward to working with you, and we would be
pleased to answer any questions you may have.
Thank you.
[The prepared statement follows:]
Statement of Nancy G. Shor, Executive Director, National Organization
of Social Security Claimants' Representatives
Mr. Chairman and Members of the Subcommittee:
I am very pleased to be here today to talk about the
disability appeals process. The hearings and appeals system is
a critical component of the Social Security disability program
and certainly merits your attention. I appreciate your
extending an invitation to me to testify.
For the past seventeen years, I have been the executive
director of the National Organization of Social Security
Claimants' Representatives (NOSSCR). Our current membership is
approximately 3,300 attorneys and others from across the
country who represent claimants for Social Security and
Supplemental Security Income benefits. We have many years of
experience in representing claimants at every level of the
process and welcome this opportunity to share some observations
and recommendations with you.
Today's hearing should focus on ensuring the fairness of
the process of determining which claimant is entitled to
receive benefits and which claimant is not. Certainly it is
extremely important to today's claimant to know that the
process of adjudication is fair. But at a time when opinion
polls as well as our own conversations with neighbors tell us
that the confidence of the American public that Social Security
benefits will be there for them is eroding, we need to assure
today's taxpayers that the process will be fair when some of
them become disabled in the future and file for their benefits.
We share the Social Security Administration's goal of
providing accurate decisions for claimants as early in the
process as possible. Changes made at the ``front end'' can have
significant beneficial impact throughout the hearings and
appeals backlogs.
The hearings and appeals system--A sound structure
A claimant files an application for benefits, most often at
the Social Security district office. The state disability
determination agency will decide whether or not that claimant
is eligible for benefits. If the claim is denied, the claimant
can file for a reconsideration by the same state agency. If the
claim is denied on reconsideration, the claimant can pursue the
appeal to an Administrative Law Judge at SSA's Office of
Hearings and Appeals. If the claim is denied by the ALJ, the
claimant can file a request for review with the Appeals
Council. A claimant who is denied by the Appeals Council can
file suit in federal court.
The right of a claimant to file a request for hearing
before an Administrative Law Judge is central to the fairness
of the adjudication process. This process provides the right to
a full and fair administrative hearing by an independent
decision-maker who provides impartial fact-finding and
adjudication, free from agency coercion or influence. The ALJ
asks questions of and takes testimony from the claimant, may
develop evidence when necessary, considers and weighs the
medical evidence, evaluates the vocational factors, all in
accordance with the statute, agency policy, and Circuit
caselaw. For claimants, a fundamental principle of this right
is the opportunity to present new evidence in person to the ALJ
and to receive a decision from the ALJ which is based on all
available evidence.
Because of the importance of the administrative hearing
step, we support the initiatives of the Office of Hearings and
Appeals to address the backlog of cases without infringing on
the right of claimants to a full and fair hearing. We support
OHA's allowing experienced staff attorneys to review cases and
issue fully favorable decisions where warranted. We support the
agency's efforts to better develop cases that reach the OHA
before those cases go to an ALJ for a hearing, although we
would like to see more consideration of alternatives to the
adjudication officer program. But we are dismayed by the
agency's recent restatements of its policy on non-acquiescence.
SSA's position, that it is not bound by Circuit Court
precedent, is at odds with fundamental premises of
jurisprudence. As we have long advocated, the agency's pursuit
of this policy should be abandoned.
For ALJ decisions, SSA's ``process unification'' plans call
for broad own-motion review by the Appeals Council. We
understand that the Appeals Council will be reviewing only
those ALJ decisions which are favorable to claimants. The plan
resonates with overtones of Bellmon review, which resulted from
a mandate in the early 1980's to review favorable decisions
exclusively from ALJs whose allowance rates were considered
``too high.'' Bellmon review was struck down by the courts as
interfering with the decisional independence of ALJs because it
``targeted'' those ALJs who had higher allowance rates. By its
plans to review only claimant-favorable ALJ decisions, this
process unification plan is subject to the same criticism. What
message does it send to claimants? What message does it send to
ALJs? We believe that any own-motion review that the Appeals
Council conducts must be even-handed, so that the Council
reviews both favorable and unfavorable decisions, so that there
is no perception of bias.
The last, and very important, element in the hearings and
appeals structure is access to review in the federal district
and circuit courts of appeal. At this level, the review is not
de novo; rather, judges are applying the substantial evidence
test. We believe that both individual claimants and the system
as a whole benefit from the federal courts hearing Social
Security cases. Given the wide variety of cases they
adjudicate, federal courts have a broad background against
which to measure the reasonableness of SSA's practices. Federal
court review in Article III courts should be maintained.
How evidence is obtained--An unreliable process
Developing the record so that relevant evidence from all
sources can be considered is fundamental to full and fair
adjudication. The decision-maker needs to review a wide variety
of evidence in a typical case, including, for example, the
medical records of treatment, opinions from medical sources,
pharmacy records of prescribed medications, statements from
former employers, and vocational assessments. The decision-
maker needs these types of information to determine the
claimant's residual functional capacity, ability to return to
former work, and ability to engage in other work which exists
in the national economy in significant numbers.
Unfortunately, very often the files that claimants with
denials from the reconsideration level bring to our members
show how little development was done at the initial and
reconsideration levels. Until this lack of development is
addressed, the correct adjudication of the claim cannot be
made. Claims are denied not because the evidence establishes
that the person is not disabled, but because the limited
evidence cannot establish that the person is disabled.
A properly developed file is usually before the ALJ because
the claimant's counsel has obtained evidence, or because the
ALJ has developed it. This is one part of the explanation for
the disparity in the claims files at the DDS and at the OHA.
Not surprisingly then, different evidentiary records can
readily produce different results on the issue of disability.
To address this, the agency needs to emphasize the full
development of the record at the beginning of the claim. This
includes encouragement to claimants to submit evidence as early
as possible. The benefit is obvious: the earlier a claim is
adequately developed, the earlier it can be approved and the
earlier payment can begin. Despite the obvious benefit to
claimants, the fact that early submission of evidence does not
occur more frequently indicates that factors beyond the
claimant's control contribute to this problem. This means that
proposals to close the record are not beneficial to claimants,
or to the system of fair adjudication.
First, most medical conditions change over time: they may
worsen or improve, diagnoses may change, or the diagnosis may
become more finely tuned after further testing or assessment.
Individuals may undergo new treatment or procedures which
affect their condition. They may be hospitalized or referred to
different specialists. Some conditions, such as multiple
sclerosis, may take longest to diagnose. Some claimants may
also mischaracterize their own impairments, either because they
lack understanding of their illness or its treatment. By their
nature, these claims are not static and a finite set of medical
evidence does not exist. If the record is closed, individuals
will be forced to file new applications merely to have new
evidence reviewed, such as reports from a recent
hospitalization or a report which finally assesses and
diagnoses a condition. Closing the record to such evidence does
not serve either the claimant or the agency well.
Second, claimants benefit by submitting evidence early.
However, there are many reasons why they are unable to do so
and for which they are not at fault. Closing the record
punishes them for factors beyond their control, including
DDS failure to obtain necessary and relevant
evidence.
SSA failure to explain to the claimant what
evidence is important and necessary.
Claimants are unable to obtain medical records due
to cost.
Medical providers, especially treating sources,
receive no explanation from SSA or DDS about the disability
standard and are not asked for evidence relevant to the claim.
Medical providers ignore, or respond very slowly
to, requests for evidence.
So that claimants are not wrongly penalized for events
beyond their control, the current system provides a process to
submit new evidence. This should not be eliminated in the name
of the streamlining.
Third, closing the record at the reconsideration level may
make the process more formal but it will not improve the
quality of the decision-making on the merits of the disability
claim. For decades, Congress and the United States Supreme
Court have recognized that the informality of SSA's process is
a critical aspect of the program. Imposing a time limit to
submit evidence and then closing the record is inconsistent
with the legislative intent to keep the process informal and
with the philosophy of the program. Additionally, closing the
record will not ultimately improve the process from an
administrative perspective. A claimant would be required to
file a new application merely to have new evidence considered,
even though that evidence was relevant to the recent prior
claim. As a result, SSA can expect to handle more applications,
unnecessarily clogging the front end of the process. Further,
we anticipate there will be additional administrative costs for
SSA since the cost of handling a new application is higher than
reviewing new evidence in the context of a pending claim.
Legislative Reforms--Encouraging Return to Work
NOSSCR supports efforts which encourage disabled
beneficiaries to work. Many beneficiaries fear losing medical
insurance. They fear that a brief episode of employment will
terminate their Social Security benefits, even if they are
unable to sustain the employment. Many do not understand the
provisions in the current law for trial work periods and
extended periods of eligibility. SSA needs to provide more
information and answers to specific questions on an on-going
basis for those on the disability rolls.
New legislation is necessary to provide the foundation for
beneficiaries to test their capacity to return to employment.
Key provisions of an ideal return-to-work legislative
initiative include a package of access to Medicare, earned
income exclusion, tax credit, and options for vocational
rehabilitation services.
Conclusion
We commend the Subcommittee for holding this hearing today
to look at the Social Security disability appeals process. We
are committed to support the basic structure of the hearings
and appeals process, and to work with the agency on reducing
the huge backlogs. Better development of the claims before they
reach the OHA would produce a great benefit, both to claimants
and to the hearings and appeals system. We also commend the
Subcommittee for its attention to return-to-work initiatives,
which we anticipate will be enthusiastically received by many
beneficiaries.
We look forward to working with the Subcommittee to improve
the adjudication process and to improve the disability program.
Chairman Bunning. Now I can thank you all for your
testimony, and we will start out with Mr. Willman.
Many of the Process Unification Initiatives will impact
resources needed by DDS. Since SSA has put these additional
burdens on you to obtain more evidence, more extensive
analysis, and so forth, has SSA reduced any of their
expectations for your agency in terms of productivity? Doesn't
productivity affect your findings?
Mr. Willman. Yes. No, sir. The expectations have not been
reduced. Much of the Process Unification rulings, much of the
content of that would be good improvements in the program. They
will not be free. They will not be easy to administer, and they
will not be free.
If we are going to do more, a broader range of tasks on
each case, then we either must do fewer cases or obtain more
resources to do all the cases better.
Chairman Bunning. Contrary to Ms. Shor, you recommend
closing the record. Why is this?
Mr. Willman. Because at some point, I think we have to say
this is the record. If we are going to manage this backlog and
produce decisions in reasonable amounts of time, we have to be
able to say this is it, it is over now, we are going to analyze
this evidence and get on with it.
I certainly--I don't want to close the record so early as
to elevate form over substance. That is not the intent at all.
I think if we were to have an understanding with claimants and
make it clearly understood that at some point the record is
going to be closed and explain what closing the record is, we
give the claimant every reasonable opportunity to submit all
the evidence that she or he wants to have considered while
still being able to manage the backlog.
Chairman Bunning. With 491,000 people in the backlog, we
have to do something to make it more credible that we are
actually trying to get them on the system. The 491,000 people
are now backlogged in this system.
I am going to ask a general question to all of you. How do
we do this legitimately and not jeopardize the credibility of
the system? In other words, if we are not going to close the
record and we have almost a half a million people in the
backlog, how do we justifiably go forward and reduce the
backlog in a systematic way? We are trying to do this in a
systematic way, without jeopardizing the credibility of the
system.
Anybody can answer. Speak up.
Judge Bernoski. Well, I will take a shot at that, Mr.
Chairman.
One way we can do it, as we indicated in our testimony, is
to use the single standard of adjudication at all levels in the
system, so that would allow----
Chairman Bunning. I think everybody agrees with that.
Judge Bernoski. Agrees with that.
The next thing would be, from the ALJ perspective, that we
feel you could consider closing the record after the ALJ
hearing because, at that time, the claimant has had an
opportunity to appear, provide evidence, testify and, at that
time, make a solid record that can go forward on appeal to
either the Appeals Council or to the district court.
To close the record before that, you could be--you would be
interfering with the de novo hearing because you would be
foreclosing evidence that the claimant should have an
opportunity to present at the hearing.
Chairman Bunning. But, Judge, the ALJ hearing may occur 9
months, 12 months down the road----
Judge Bernoski. Well----
Chairman Bunning [continuing]. From the initial claim----
Judge Bernoski. Correct.
Chairman Bunning. We may be 9 months into the process, and
that is not acceptable. I am telling you right up front, that
is not acceptable.
Judge Bernoski. Right.
Chairman Bunning. That is how we built 491,000 people in
the backlog.
Judge Bernoski. Right. Now, the redesign system has its
theory to move that space between the ALJ hearing and the DDS
determination closer, but I can tell you from experience that
back in the late eighties, there was a period in time when the
caseload shrunk to a very small level, and at the ALJ level, we
were actually sitting around at that time waiting for cases.
Chairman Bunning. Gee, wouldn't that be wonderful now?
Judge Bernoski. It would be wonderful today, the good old
days, but when those cases----
Chairman Bunning. Let me hear from others.
Judge Bernoski [continuing]. When those cases would come
in, we would set them for hearing, and the claimant would say
we don't want the case this soon. So there is a period of time
that the case has to ripen, and I would say that 5 to 6 months,
the claimants--it is difficult to move those cases on for
hearing before that time. There is this, and that is----
Chairman Bunning. Some of the claimants die, and we don't
want that to happen.
Judge Bernoski. No.
Chairman Bunning. Other views?
Mr. Hill.
Mr. Hill. Yes. I think that the biggest single problem I
see in cases coming into OHA is they are not fully developed. I
think when I get a case as a senior attorney, it may have been
in the office 10 days, and I can call up, either look through
the record, call doctors, or if there is an attorney, call the
attorney representing the claimant, and I can get a stack of
documents in like this within a couple of weeks that were
there, but nobody has gotten them yet. It is time consuming.
Developing cases takes a lot of time. It isn't something--
they don't magically come in to you. You have to work on it,
and I think that, in fairness to the DDSs, that requires more
assets because you are going to spend human person time, and
there is very little substance for that.
Chairman Bunning. In other words, to build the record more
completely?
Mr. Hill. Completely, right at the outset, yes, because----
Chairman Bunning. Well, that is what we are trying to
figure out how to do.
Mr. Hill. Now, currently, the senior attorney program does
what I just said. The case comes into the hearing office, and
we look at it right off the bat, and if we can pay it, it
doesn't have to wait for an OHA hearing. We can pay it within
120 days.
Chairman Bunning. Do others have an opinion on this?
Mrs. Kennelly, go ahead.
Mrs. Kennelly. Thank you, Mr. Chairman.
Ms. Shor----
Ms. Shor. Yes.
Mrs. Kennelly [continuing]. I heard all of the experience
you have in various areas of this situation. I wonder if you
would comment on the medical records kept at the DDS level, if
you think enough is being done. Do you think it makes sense not
to have the individual's doctor at that point? Then, I would
like you to comment on the judge's level, what you think the
adequacy is of the medical records and the information.
Ms. Shor. Thank you.
I think the primary difficulty we see with the records
being kept at the State agency level is coming from State
agency physicians, doctors who have never examined the claimant
and who are rendering opinions based upon the record before
them.
There is minimal effort made and minimal cooperation in
many cases, unfortunately, from claimants' treating doctors to
provide anything more than a copy of a hospitalization report
or possibly copies of office notes.
For a variety of reasons, unfortunately, treating
physicians oftentimes are not particularly cooperative with
requests from DDS to submit evidence. There is also very short
timeframes and often very little followthrough.
In contrast, when a case reaches OHA, whether performed by
personnel within that office or performed by the claimant's
attorney, there is a lot more effort made for this medical
development. There is much more effort made to explain to the
physician what the rules are, what Social Security's criteria
are, to get a narrative report from the physician, and to offer
a broader assessment than simply a photocopy of office notes.
Mrs. Kennelly. So if you could choose one thing, it would
be to improve the evidence right from the beginning of the
system.
Ms. Shor. Absolutely.
Mrs. Kennelly. Thank you.
Mr. Willman, at some place, you said in your testimony that
the amount spent for attorneys is half the budget for the DDS.
Do you think people are getting an attorney for the next step
because--I believe you can have an attorney for the DDS step,
if you want to, but most people don't. Am I----
Mr. Willman. Right, very few.
Mrs. Kennelly. Yes. Do you think they are getting an
attorney for the next step because they are going into a more
judicial atmosphere, or do you think they are getting an
attorney because, Oh, my heavens, they didn't realize, I am
turned down, I am sick and I am turned down. You go to your
government and you are sick and you get turned down, and you
say, Oh, I should have hired an attorney. Then, you go to the
next level, and this is going to cost money. Is there anything
we can do about this?
Mr. Willman. Well, I certainly think there are a couple of
reasons and maybe another one as well.
People at their initial reconsideration level feel they
don't need an attorney because they don't have much
participation in the process. They just fill out an application
and indicate who their medical sources are and what their
impairment is and sit back and wait for a decision.
Then, when they are denied, they find out the next level is
to go for a hearing, and they feel they can't represent
themselves at a hearing and so they will need help.
And the third reason a lot of attorneys are involved is
because there are attorneys who do a lot of recruiting of
claimants to represent them in these processes.
I think the answer----
Mrs. Kennelly. Yes, but they have been turned down. So
there is somewhat of a need for, you know----
Mr. Willman. Yes.
Mrs. Kennelly. Maybe we should advertise--I am thinking
about Mr. Hill's and Ms. Shor's remarks. Maybe we should tell
people to get an attorney early so the documents are collected
and get them on the DDS desk. Then maybe you won't have to have
an attorney for a long and lengthy hearing.
Mr. Willman. We wouldn't need to do that. We should be able
to get all the medical evidence on the DDS desk without the
claimant being represented by an attorney.
Mrs. Kennelly. But we are not doing it. But we are not
doing it.
Mr. Willman. Pardon me?
Mrs. Kennelly. Obviously, from the testimony today of 2
hours, it is not happening.
Mr. Willman. We think that when--as far as I can see and
what I know from the feedback of the cases I get and from the
cases I see every day and those that are returned back to me
after they are allowed at the OHA level, I personally am not
seeing this difference in the amount of documentation.
Certainly, as time goes by and new information becomes
available because of the deterioration of the condition or
because of treatment that the claimant has sought since the
denial at the DDS level, that evidence becomes available, but I
really am seeing very few instances of cases where the evidence
was available at the time the DDS made the decision and we
didn't get it.
Mrs. Kennelly. I think that is something, Mr. Chairman, we
are going to have to continue to look at.
One last question for Ms. Gardiner. You make
recommendations about changes for the ALJ level. What do you
think should be changed at your level?
Ms. Gardiner. Oh, I think we should have additional
training as well. I think it is essential we all have the same
training, which is what Process Unification was trying to do or
is hopefully going to do for us.
I think we need training equally as much as the ALJs do. It
was just an emphasis on the medical portion for the ALJs.
Mrs. Kennelly. Well, then I have got to ask another
question. Who would like to comment on how the present new
training is working? Is it worthwhile? Is it making things
better? Because we now see that the DDS says we should have
that training.
Judge Bernoski. Well, I think it is a step in the right
direction. I think it is too early to see what is actually
going to happen because the program is just in its inception,
but it is an attempt to go to the single standard, and it is an
attempt to have a more--a complete review of the case at the
reconsideration level, which meets the concern GAO raised, and
so those are--would be positive.
As Jim Hill indicated, one of the problems--or one of the
benefits would be if the record would come to us more complete,
the more timely and easier it is to move that case along
because sometimes that case goes to a hearing and then the
record isn't completed there, and the claimant requests the
record be held open for more evidence. So, then, you see that
is claimant-induced delay to a certain extent, but still, it is
to add to the record.
Mrs. Kennelly. Well, we are talking about time again, and I
have a feeling the Chairman is losing patience, and time is
part of the problem.
Judge Bernoski. I have a couple of--go ahead.
Mr. Christopher. If I could offer just a thought on the
training piece of this, that would be if I were starting a
program from scratch and I had different appeals processes,
which we do and we need to have, it would seem to me there
would be two things I would want to do for sure. I would want
to be sure everybody receives the same basic training, so that
everybody has the same basics on which to work from. It would
seem to me, beyond that, I would want to ensure that all the
decisionmakers are applying the same rules and regulations in
the same way, that is, the same book, and I guess if I had a
thought for both of you, I think it would be useful to SSA, it
would be to put a much higher priority on the single-book
concept, and it would be to put a much higher priority on more
consistent training for all the decisionmakers.
There are so many of us out there, we all want to do the
right thing. Obviously, we are doing it somewhat differently,
and it is frustrating to all of us, and I think we are
entitled, if you will, to more consistent training so that we
can try to provide the clients with the most consistent process
we can.
Chairman Bunning. Since the problem has been around for a
long time and we don't seem to be making as much progress as
all of you seem to think we are, I have a couple more questions
I would like to ask the judge.
Mrs. Kennelly. Can I just make a final statement before I
finish?
Chairman Bunning. Oh, go right ahead.
Mrs. Kennelly. I want to thank the Chairman for having this
hearing. It has been very helpful to me, but I would just like
to make the comment, often when I deal as a Congresswoman at a
Federal level, you get huge numbers. We are talking this
morning about a program with $60 billion, 7 million people, but
we cannot forget about those individuals who make up those
numbers. I just want to end by saying we have got to figure out
some way that an individual who got sick and doesn't want to be
sick, can't work, has bills, can, in fact, get the fair
treatment they need and deserve. I just have to say to you,
what I fear so about our country's future is people losing
faith in their government. We hear about it all the time.
We are talking this morning about a very arcane issue, but
really, at the heart of the matter, if we don't do something,
then we will have to answer for the weakness in our Federal
Government.
Chairman Bunning. I have three questions for the judge,
since he so violently disagreed with the GAO report we
received.
You mention in your testimony that judges understand their
responsibility to follow the constitution and apply the law,
agency regulations, and agency policy, which you take very
seriously. You also say that it is beyond the scope of your
oath of office to apply agency policy that is inconsistent with
the law. Are you saying it is up to each individual judge to
interpret agency policy?
Judge Bernoski. No, sir. Mr. Chairman, No, that is not what
I am saying.
The agency establishes the policy, and it is not our role
to interpret the policy or even the regulations to the point
where we create a policy within ourselves. No, sir. We
understand that is the agency's role.
What I was referring to there was when the agency adopts a
policy, which is inconsistent with the law, such as when it got
into conflict with the courts under the pain standard which
resulted in the Hyatt case, which I referred to, which was a
massive class action with thousands of cases coming back for
readjudication; the Samuels case, the Minnesota Mental Health
case, the Zebley case, these are the types of things I am
referring to.
Chairman Bunning. Are you telling me the SSA is writing
agency policy inconsistent with those rulings?
Judge Bernoski. Well, there are----
Chairman Bunning. Their chief counsel sat right here today
and didn't indicate to me that they deliberately wrote policy
inconsistent with court law or with law that has been
determined by the courts.
Judge Bernoski. The best way I can answer that, Mr.
Chairman, is that the courts certainly have said that. In the
Zebley case, for instance, the court very clearly said the
regulation that was promulgated was contrary to the basic
underlying statute, and the Hyatt case, the result was the
same. The Minnesota Mental Health case was the same. So the
answer is, Yes. In certain circumstances, the agency has
promulgated policy that has been inconsistent with the basic
law, and the evidence is there in the form of these massive
class actions, which are very, very expensive and very time
consuming.
Chairman Bunning. Yes, I am familiar.
Judge Bernoski. And the Steberger case is another one in
New York--very, very expensive.
Chairman Bunning. Well, you mentioned the judges have
increased their productivity recently. Have you heard of
instances where a judge's productivity is being restricted by
individual office policy? There are offices whereby according
to union agreement, no hearing can be scheduled after 2:30 p.m.
Judge Bernoski. Yes, sir, I am familiar with that
situation.
The office escapes me at the moment, but, yes, sir, that
did come up, and the answer to the question is, Yes.
Chairman Bunning. But don't you think that restricts
productivity just a little bit?
Judge Bernoski. Yes, sir. Yes, Mr. Chairman.
Chairman Bunning. OK. I want to thank you all for your
input because, if we are going to get to the bottom of how we
can improve this huge SSDI Program, we need to make sure we
don't have people dying before they get in and that people who
become healthy get out in a timely fashion.
I did see a report which indicated that each percentage
point of the ultimate award rate represents $2 billion in
lifetime costs. Accurate decisionmaking is critical to the
long-term solvency of the trust funds.
We thank you for your testimony.
Judge Bernoski. Thank you, Mr. Chairman.
Mr. Willman. Thank you.
[The following questions were subsequently submitted by
Chairman Jim Bunning to Mr. Willman:]
1. In your testimony, you recommended a ``shared vision''
of the disability program among all components. How do you see
this happening and why is it so important to you?
2. You indicated that SSA quality reviews show a decisional
accuracy of more than 96% at the DDS level, yet ALJs reverse
two-thirds of your decisions. How can this happen and how can
it be fixed?
3. You expressed concern in your testimony that the quality
review process being planned for the ALJs is modest in scope
and nature, and may not be useful. Why do you feel this way?
[The response of Mr. Willman follows:]
National Council of Disability
Determination Directors
June 19, 1997
The Honorable Jim Bunning
Chairman, House Subcommittee on Social Security
U.S. House of Representatives
Washington, D.C. 20515
Dear Congressman Bunning:
This responds to your letter of May 20, 1997, in which you asked
three questions in follow up to testimony presented at a hearing on
April 24, 1997. I am happy to have the opportunity to respond to your
questions.
First, relative to the development of a shared vision common to all
components of the disability program, you asked why this is so
important and how it could happen.
The various tasks necessary to administer the disability program
are completed by personnel in several different organizational
components of SSA. I feel that a substantial obstacle to improving
service to the American public is the tendency of each component to
focus on the program only from its individual point of view. For
example, the component responsible for developing policy instructions
issues its directives without adequate consideration of the resources
that will be needed in the field to actually apply the instructions;
the budget component provides limited resources based on its
expectation that productivity must constantly improve and without
regard to the fact that new policies are more labor intensive; the
quality assurance personnel attempt to ``enforce'' the labor intensive
policy requirements in openly stated disregard of the fact that the
operational component lacks the resources to apply the policies;
decision makers at the initial level attempt to faithfully apply
policies that they know will not be applied by decision makers at the
appeals level. All of this creates inefficiencies in service delivery
and compromises the morale and day to day efforts of the persons
performing the front line work.
The problem can be solved only by management actions that see that
the tough decisions are made at the appropriate level and that they are
fully communicated and applied consistently across organizational
lines. SSA's recent process unification initiative is an example of an
overdue attempt to get the several involved components working
together.
Second, you asked for an explanation of how DDS decisions that are
determined to have been 96% accurate could be overturned at the rate of
about two thirds when they are decided by the Office of Hearings and
Appeals.
This question has been mystifying knowledgeable observers,
including those from the Congress, for two decades that I know of.
I believe that the explanations historically put forth by SSA
account for a minor part of the true explanation. Worsening of the
claimants' conditions, the development of new evidence, the face-to-
face appearance, and attorney representation all account for some of
the difference but leave most of it unexplained. I believe that, with
respect to cases allowed at OHA, if DDS personnel were to consider the
updated evidence, meet face-to-face with the claimants, and hear from
the claimants' attorneys, the great majority of the cases would still
be found not disabled.
The more important reasons include the following: the policy
instructions are not uniformly stated for adjudicators at the two
levels, and OHA is permitted to develop policy interpretations not
shared or even known to the DDSs; there is no common training for
personnel at the two levels; separate and opposite quality assurance
and case review systems, with DDSs being reviewed mostly on allowed
cases and OHA being reviewed almost exclusively on denials, tend to
drive the two components apart; SSA management has permitted the
development of a view that ALJs are immune from management control
including the adherence to agency policy; the difference in medical
training and expertise between the two components is extreme with DDS
decision making being driven by detailed medical analysis of claimants'
conditions and OHA decision making permitting the medical facts to be
overwhelmed by a priority on legal due process and on conclusions about
the claimants' credibility; SSA has permitted what could be called the
``judicialization'' of OHA, that is the transformation from an
administrative to a judicial entity.
The path to achieving greater consistency of decision making
between the two levels must include the reversal of the factors
described above. To these should be added a meaningful system of
quality review of ALJ decisions (with enforcement power) and closing
the evidentiary record.
Third, you asked why I feel that SSA's current plan for a quality
review process for ALJs is too modest in scope and in nature.
Regarding the scope of the review, SSA plans to review only about
10,000 OHA cases per year which amounts to about one case per ALJ each
month. Even presuming an error rate of 33%, this would result in only
about one piece of feedback per ALJ each calendar quarter. This number
is not high enough to provide meaningful feedback to ALJs, nor to
establish useful enforcement in cases in which ALJs are not correctly
applying agency policy, nor to create a quality review system which is
reasonably consistent between components.
Regarding the nature of the review, the differing standards SSA
intends to apply to DDS and OHA cases review goes far in the direction
of weakening the usefulness of the review. DDS case completions are
reviewed under the ``preponderance of evidence'' rule (meaning that the
decision supported by the greater weight of the evidence must be made),
but SSA intends to review the ALJ allowances under a ``substantial
evidence'' rule (meaning that a decision is correct if it is supported
by any substantial evidence even if greater and more substantial
evidence would support an opposite decision). I understand that the
definition of the word ``substantial'' will be ``more than a
scintilla''. Under this case review scenario, a DDS could twice deny a
case because most of the evidence supports a denial, the claimant could
wait a year for a hearing, the evidence could be unchanged, an ALJ
could allow the case because some evidence supports an allowance, and
both decisions would be considered by the SSA to have been correct. I
would tend to perceive this sequence of actions to be a textbook
example of bureaucratic inefficiency and wasted effort rather than a
meaningful step toward improving service to the American public.
Thank you for the opportunity to have provided this additional
clarification. As always, if I can be of additional help, please
contact me at your convenience.
Sincerely,
Douglas Willman
NCDDD President
[The following questions were subsequently submitted by
Chairman Jim Bunning to Mr. Hill:]
1. Your testimony included some very encouraging statistics
regarding a certain project utilizing Senior Attorneys. Why do
you believe this program has been so successful and why doesn't
SSA make the project permanent?
2. You also mentioned the Adjudication Officer pilot
project and pointed out the many ways that the project seems to
be failing, yet, instead of abandoning the project, SSA is
extending the project for more testing. Why do you believe so
strongly that the project isn't working and why hasn't SSA
stopped it?
3. Based on your experience working side-by-side with ALJs,
what percentage write their own decisions? When you are asked
to write a decision for an ALJ, how specific is their direction
to you in terms of what to say in the decision?
[The response of Mr. Hill follows:]
Summary
The Senior Attorney Program
The Senior Attorney Program is a highly focused
program designed to attack a specific set of problems--the
disability backlog at OHA and the inability of OHA to timely
adjudicate the applications of disability claimants. The Senior
Attorney Program involves the use of experienced OHA Senior
Attorneys at their normal work sites, within the already
existing organization structure, using currently available
technology and staff resources, focused upon a set of cases and
using a process that identifies and develops only those cases
most likely to be paid. This process permits timely payment for
many of those claimants who are in fact disabled, and permits
SSA to focus its most expensive decision making resource,
Administrative Law Judges, on the cases less likely to result
in a favorable decision or which for other reasons require an
administrative hearing. By facilitating SSA focusing its
Administrative Law Judges on its more difficult workload and
not upon cases that can be more efficiently and more
inexpensively decided by other OHA decision makers, the more
difficult work load can be processed in a more timely manner.
The Senior Attorney Program will cause a decrease in both
processing time and age of pending cases at OHA.
The Senior Attorney Program has not been made
permanent because it is not part of the Disability Process
Redesign, and it is inconsistent with the short term goal of
the Agency to eliminate OHA and its long term goal to eliminate
the due process hearing. Indeed, the antipathy of many in SSA
towards traditional American adjudicatory principles as
embodied in our legal system and the involvement of legal
professionals in the disability adjudication system, whether it
be as claimant's representatives, ALJs, Senior Attorneys, Staff
Attorneys, or the judges (and justices) of the U.S. court
system, is a potent force and the underlying philosophy driving
the Disability Process Redesign. The efficient and inexpensive
Senior Attorney Program is in marked contrast to the expensive,
inefficient, and heretofore unsuccessful Adjudication Officer
Program and is therefore a direct threat to the Agency's
Disability Process Redesign. To make the successful Senior
Attorney Program permanent would be a repudiation of the
foundering Adjudication Officer Program and the Disability
Process Redesign as a whole.
The Adjudication Officer Program
To admit that the Adjudication Officer Program is
a failure would require abandoning its goal of eliminating the
due process adjudication system with its protection of
claimant's rights and the vigorous participation of the legal
community.
Abandoning the Adjudication Officer Program would
require admitting that the plan was poorly conceived, poorly
planned, and poorly executed and has wasted substantial amounts
of taxpayer moneys.
To terminate the Adjudication Officer Program
would damage many personal reputations and careers.\1\ Since
SSA has loudly proclaimed for the last two years that the
Disability Process Redesign would solve the Agency's disability
problems, admitting failure would place the Agency's reputation
at risk.
---------------------------------------------------------------------------
\1\ Currently, there are a number of ``reorganization of OHA''
plans floating around SSA headquarters in Baltimore. While the plans
are very different, one factor is common: the power and prestige of the
official offering the plan will be greatly increased if his/her plan is
adopted.
Administrative Law Judge decision writing and decisional
---------------------------------------------------------------------------
instructions
The issues of how many decisions are written by
ALJs and the nature and extent of ALJ decisions instructions
are relatively new to OHA. The staff attorney program was begun
in 1975 to relieve ALJs of decision drafting responsibilities,
and in fact it is the single most important reason that ALJ
productivity has increased from 16 decisions a month to the
current 40+ decisions per month.
However, with the advent of computer technology,
ALJs are being encouraged to draft their simplest, fully
favorable decisions using Agency developed ``macros''.
Currently, the Agency's approximately 1000 ALJs draft about
4,000-5000 cases per month, approximately 10-15% of the total
decision drafting workload. However, ALJs draft virtually none
of the more complex, time consuming denial decisions.
The nature and extent of ALJ decisions
instructions is a relatively new issue to OHA. Since the Agency
has increasingly relied upon the considerably less skilled
paralegal specialists as decision drafters, the importance of
more specific instructions has increased. However, except in
rare instances, decisional instructions are general in nature
and supply very little to the specific rationale explaining the
decision. Nonetheless, it remains the responsibility of the
individual drafting the decision to create an acceptable
rationale explaining the resolution of each issue necessary for
a legally defensible decision.
In my personal experience, instructions have
ranged from ``you make the decision'' to lengthy narratives
which the ALJ wants inserted into the decision. However, I have
seen decisional instructions from one ALJ (not from Cleveland)
that consisted of an ink stamp of a dancing pig (favorable
decision) and an homeless waif (a denial). Much more commonly,
ALJ instructions indicate the decision (pay or deny) and the
step in the sequential evaluation at which the decision was
made, for example, ``deny--range of light work''. It would be
most unusual for an ALJ to include specific language for
insertion in the decision or to include specifics on assigning
probative value to various exhibits, the claimant's
credibility, evaluating subjective symptoms, or explaining
discrepancies in the record. Quite often the instructions are
incomplete and fail to deal with the complete range of issues
required for a legally defensible decision.
The Senior Attorney Program
The Senior Attorney Program, also known as Action
#7, was originally developed as the key component of the Short
Term Disability Program. It has been successful despite intense
ALJ opposition,\2\ because it is designed to accomplish a
limited goal within the current organizational structure, using
currently available technology, and to the greatest extent
possible, using existing human and material resources. Action
#7 is designed to identify those claimants most likely to be
disabled and render favorable disability decisions to those
claimants who are in fact disabled and for whom a decision can
be made without the time and expense of a hearing before an
Administrative Law Judge. Action #7 employs experienced OHA
Senior Attorneys, who have temporary regulatory authority to
review and develop selected cases and issue fully favorable
disability decisions in appropriate situations. Senior
Attorneys work in their normal workplace within the current
organizational structure and use currently available
technology. Unlike the Adjudication Officer Program, there are
no new offices, no additional office space, equipment, or
support staff, no one is detailed for months (now years) at a
per diem expense, and no extensive and expensive off-site
training program was required. Aside from additional decision
writers, the Senior Attorney Program requires little in the way
of additional office space, staff or equipment, and does not
require changes in work processes in other SSA components or
expensive and not yet available ``enablers'' as does the
Adjudication Officer Program.
---------------------------------------------------------------------------
\2\ This has resulted in active sabotage of the program by many
Hearing Office Chief Administrative Law Judges.
---------------------------------------------------------------------------
These characteristics are in stark contrast to the
Disability Process Redesign which requires global changes in
workload, work sites, work processes in multiple SSA
components, technology, disability criteria, decisional
processes, organizational structure, and fundamental changes in
SSA's relationship with claimants, their rep-
resentatives, and the health care community. The Disability
Process Redesign is typical of the large bureaucratic response
to a problem which has come to typify the Federal Government in
the latter half of the 20th Century. Action #7 is a ``small
program'' that works.
Prime benefits of the Action #7 are:
Substantial reduction of time, in many cases of
more than a year, which many disabled claimants must wait for a
favorable disability decision;
Immediate reduction of the OHA backlog;
More timely hearings for those claimants for whom
hearings must be conducted because cases that can be decided
without a hearing are removed from the que;
A reduction in overall OHA processing time
Transferring some of the workload of developing
cases from OHA employees to the claimant's attorneys;
A decrease in overall ``reversal rate'' at the
hearing level;
Senior Attorneys are also available to OHA to
assist in the traditional OHA work processes particularly
drafting of the more complex Administrative Law Judge denial
decisions.
Substantially increases OHA decision making
capacity without hiring more ALJs;
Provides SSA with additional decision making
capacity at a lower marginal cost, significantly less cost than
an ALJ or an adjudication officer;
Has resulted in higher quality decisions, when
measured by the Appeals Council effectuation rates, than either
comparable ALJ or Adjudication Officer decisions.
The Senior Attorney program involves about 40% of the cases
received at OHA, those cases most likely to result in a
decision favorable to the claimant. Unlike the AO program which
involves reviewing every case in which a Request for Hearing is
filed, focusing the attention of the Senior Attorney upon cases
more likely to result in a favorable decision is a far more
efficient use of the Senior Attorney's time. Concentrating on a
work load which is more likely to result in favorable decisions
has proved quite productive. An initial review reveals those
cases unlikely to result in a favorable decision and those
cases are quickly forwarded to the master docket for assignment
to an ALJ. This reduces the expenditure of assets on cases
requiring ALJ adjudication and permits the concentrated effort
to be directed to those cases more likely to result in a
favorable decision. Senior Attorneys are comfortable working
with claimant attorneys, and perhaps more to the point,
claimant attorneys are comfortable working with Senior
Attorneys and recognize the advantage of supplying the medical
evidence requested by the Senior Attorney. The program is
perceived by claimants and their representatives as beneficial
to their interests; not because the payment rate of Action #7
cases is high, it is only 22-25% of the cases reviewed, but
because they know if they are contacted by a Senior Attorney,
there is a good likelihood that a favorable decision will be
rendered. This serves as an incentive for the claimant and the
claimant's representative to actively cooperate in a timely
manner. In many cases, the case development is done by the
claimant's representative rather than by Agency personnel. In
my personal experience, if I tell a claimant's attorney that
unless specific pieces of evidence are in the record, I will
have to pass the case to an ALJ, that attorney will quickly
secure the evidence and present it to me. Shifting part of the
work load to non-OHA employees is an obvious benefit to OHA.
Senior Attorneys have substantial experience in evaluating
disability cases; some have as much as 22 years experience as
OHA staff attorneys and have analyzed and written thousands of
cases. This depth of knowledge in both the medical and legal
aspects of the disability program cannot be obtained through a
training program of only a few weeks, and permits the Senior
Attorney to produce both more accurate, and better written
decisions in a shorter period of time.
The Senior Attorney Program functions within the existing
structure of OHA and individual hearing offices. It does not
require establishing new work sites, the acquisition of office
furniture and office equipment, or the hiring of additional
support staff. Senior Attorneys continue to bear a substantial
responsibility for drafting ALJ denial decisions. This permits
OHA management a considerable degree of flexibility to assign
assets, both human and material, efficiently and quickly to
address short-term as well as long-term operational necessities
such as balancing ALJ and Action 7 decision writing work loads.
Why hasn't SSA made the Senior Attorney Program permanent:
Action #7 was originally developed as a ``short term''
program designed to help decrease the backlog at OHA prior to
the implementation of the Adjudication Officer Program. The
intent of SSA is that Senior Attorneys would be phased out
during the roll out of the Adjudication Officer Program of the
Disability Process Redesign because adjudication officers
render continued employment of Senior Attorneys, or for that
matter nearly all Staff Attorneys, unnecessary. The
expectations of SSA in this regard were first stated in a 1995
memo from then Principal Deputy Commissioner Lawrence Thompson
and more recently, and more graphically, demonstrated in the
infamous ``Fiander Memorandum''.
Action #7 was originally scheduled to end no later than
December 31, 1996. After a lengthy struggle in which several
SSA components vigorously contested extending the program
despite its success and despite the lack of any other vehicle
available for reducing the OHA backlog, it was subsequently
extended to June 30, 1997 and then to December 31, 1997. The
authorizing regulatory authority will be extended to September
30, 1998 but not necessarily the program itself. The concept of
a small program specifically targeted to solve a major problem
with a minimal use of Agency assets is a threat to the
expensive comprehensive program favored by many. Many in SSA
would be concerned if its Disability Process Redesign was shown
to be unnecessary. To make the Senior Attorney Program
permanent would be a repudiation of the Disability Process
Redesign, and this for a variety of reasons, SSA is loath to
do.
At the creation of the Disability Process Redesign, SSA
conceded that it was not designed to reduce the already
existing backlog. Only when it became obvious that the Agency's
comprehensive plan for the future ignored the current backlog
problem wan. The inappropriateness of the Adjudication Officer
Program as a vehicle for backlog reduction is made quite clear
if one reviews the projections of new work loads expected by
OHA. However, the propensity of the Agency to advance plans
using other components in a backlog reduction scheme is
demonstrated by the current plan to ``informally remand''
100,000 cases currently in OHA for readjudication by the State
Agencies. I was surprised to learn that the State Agencies had
the time and resources to deal with such a large workload. I
will be surprised if many more than 10% of the 100,000 cases
result in favorable decisions at the State Agency. Permitting
Senior Attorneys to review those 100,000 cases would require
far less in the way of administrative costs and almost
certainly result in a more productive program in terms of
identifying those cases which deserve favorable decisions.
However, SSA has historically exhibited an antagonism
towards OHA and has consistently failed to facilitate its
operations. In this instance, permitting OHA to significantly
reduce its backlog would prove that the Disability Process
Redesign is unnecessary or at least overly inflated. The
antipathy of many in SSA towards traditional American
adjudicatory principles as embodied in our legal system and the
involvement of legal professionals in the disability
adjudication system, whether it be as claimant's
representatives, ALJs, Senior Attorneys, Staff Attorneys, or
the judges (and justices) of the U.S. court system, is a potent
force and the underlying philosophy driving the Disability
Process Redesign. Indeed, the Disability Process Redesign can
only be fully understood in light of this antipathy. The
underlying purpose of the Disability Process Redesign is to
fundamentally limit the current due process disability appeals
process. A permanent and efficiently operated Senior Attorney
Program would facilitate OHA successfully handling its
disability workload and frussire to eliminate the current dues.
The Failure of the Adjudication Officer Program
The Adjudication Officer Program is doomed to failure, as
is most of the Disability Process Redesign, because its success
is predicated upon a number of assumptions which are not valid.
Perhaps the most fundamental of these assumptions is that
claimants will be satisfied with their initial denials because
they are impressed by the operation of the disability
determination process and not file requests for hearings. Those
who work in the field believe that claimants want to be found
disabled and will pursue their claims as far as necessary to
achieve that goal. Claimants do not want quick accurate
decisions, they want favorable decisions as quickly as
possible. Other assumptions that in the light of experience
seem unlikely are a payment rate of 20% from ALJs, a paperless
process, the complete and timely cooperation of medical and
mental health professionals in supplying medical evidence, the
existence of a simplified disability decisional process, a
functioning disability claims manager process, and a completely
integrated data processing system. At its outset, the success
of the Disability Process Redesign was predicated on a
substantial number of ``enablers''. As far as I can tell, none
of those enablers are in place and none are likely to be in the
immediate future. GAO recently commented that none of the 83
goals for the Disability Process Redesign had been
accomplished. Some will probably never happen. Without the
enablers, the Adjudication Officer Program has absolutely no
chance of success, a fact vividly demonstrated by the current
Adjudication Officer Program testing results.
SSA can expect to receive approximately 600,000 Requests
for Hearing per year for the next several fiscal years.
According to the Disability Process Redesign, each of these
cases must be processed by an Adjudication Officer. After more
than a year of testing in the most favorable of situations, AO
productivity remains at approximately .8 to .85 dispositions
per day per AO. It is my belief that this level of production
represents a good and realistic projection of the productivity
that can reasonably be expected from an adjudication officer,
given the relative difficult job duties. A federal employee has
a work year of 2087 hours, approximately 261 days. A federal
employee with the amount of service typical for an AO will use
about 40 days annual leave and sick leave and approximately 10
holidays. Therefore, only approximately 210 work days are
available. One typical AO working one typical year will produce
approximately 168 dispositions per year (210 .8). At
that rate approximately 3,600 adjudication officers will be
needed. This is at least three times the number originally
forecast when DPR was announced. Additionally, it was
originally estimated that additional staff supporting the AO
would be 5 staff persons for 3 AOs. While this ratio has proven
to be somewhat optimistic, even accepting its validity, another
6,000 employees would be required. The total employees
associated with the AO Project would be at least 9,600, far
more than OHA's current workforce of approximately 6,500
employees. Of course OHA currently handles adjudications
through the Appeals Council; the AO would pay approximately 25
% of its cases and forward the rest to ALJs and their staffs
for further development. Full implementation of the AO project
would double the number of employees involved in the disability
appeals process. This is the kind of ``progress'' that has made
us ``famous''.
The Adjudication Officer Project has failed to meet the
expectations of it designers. By 1993 it was's process was
failing to provide even minimal levels of service. The backlog
was growing at an alarming rate, and the payment rate of OHA
ALJs was in the minds of many observers, including the
undersigned, significantly higher than what was justified. This
presented a unique opportunity for SSA executives to achieve
two long term goals--the elimination of OHA and the destruction
of the due process disability hearing process, both fueled I
believe, by SSA's antipathy towards our legal system and its
practitioners. The reasons for eliminating OHA included
``empire building'' for certain senior SSA executives,
elimination of a despised component which was perceived as
receiving favored treatment, and removing involvement of the
``legal system'' including claimant's attorneys and the Office
of Hearings and Appeals. SSA has bitterly resented the roles of
claimant's attorneys, ALJs, Senior Attorneys, Staff Attorneys,
the courts, and the whole legal system in the disability
adjudication process which it perceives as thwarting its good
judgment regarding disability. The Disability Process Redesign
offers a mechanism to eliminate or greatly curtail the
influence of the legal system. This attitude which pervades SSA
is illustrated in a memorandum dated March 8, 1995 from Manuel
J. Vaz, currently the Regional Commissioner of Region I.
``The redesign proposal points out that claimants `resent
the need for attorney assistance to obtain benefits.' However,
rather than minimizing the need for attorney involvement at the
first level of appeal, the AO process encourages it. Requiring
the AO to explain to the claimant his/her right to
representation will surely intimidate many individuals (akin to
`reading them their rights') into feeling that legal
representation is a critical issue. Providing a list of legal
referral sources will only reinforce this perception. The
claimant will be further induced to retain legal counsel in the
event that the AO is an attorney.
``Since attorney representatives receive 25% of past due
benefits, we must take care not to cause an unnecessary
increase in their use, particularly at the first level of
appeal. Contrast this with the current reconsideration process
in which claimants rarely retain legal counsel and it becomes
apparent that our present first appeal step is in this respect
more `user friendly'.
``To retain the user friendly approach in the first stage
of appeal, we strongly recommend that the subject of
representation rights only be brought up by the AO at the point
the case is referred for the ALJ hearing (unless the claimant
inquires about this earlier in the process). Further, to avoid
the natural tendency for claimants to retain their own lawyer
when dealing with a government attorney, we firmly believe the
AO position should NOT be an attorney.''
Properly represented claimants are more likely to receive
benefits than unrepresented claimants and certainly more likely
to pursue remedies outside the Social Security Administration.
I find this anti-claimant attitude, which is widespread in SSA
to be troubling indeed. It demonstrates less interest in
serving the public than maintaining its proprietary hold on the
disability system. SSA has a very proprietary attitude towards
the disability system. This attitude is clearly demonstrated in
its attitudes towards the public, the courts, and while less
obvious, this attitude controls its interaction with the
Congress and even other components of the Execu-
tive Branch. This Committee has frequently requested that SSA
advise it on what it needed to effectively operate the program.
SSA refuses to answer, not I suspect because it does not have
any ideas, but rather because it is loath to have the Congress
``interfere'' with its conduct of the disability system.
To admit that the Adjudication Officer Program is a failure
would require abandoning the goal of reducing or eliminating
the influence of the legal system and would subject SSA to a
good deal of ridicule. SSA has spent enormous amounts of money
and other assets on this program. Many of those involved in the
current test including the adjudication officers and the
clericals, are receiving per diem payments in addition to their
salary. Clerical workers have been detailed to AO sites all
over the country, even New York City, rather than use clerical
workers already in the locales where testing is occurring.
Admitting that huge sums of money and other resources have been
wasted is difficult to do in today's climate of smaller, more
efficient government.
SSA has loudly proclaimed for the last two years that the
Disability Process Redesign would solve the Agency's disability
problems. Unfortunately many personal reputations and careers
\3\ and perhaps even the Agency's reputation are at risk.
Admitting they were wrong would be difficult and potentially
damaging to their careers. The situation is made even more
unpalatable because of the attitude and statements of SSA
officials as the Disability Process Redesign was designed and
amended. At the outset of the Adjudication Officer Program, the
Agency sought an implementation regulation. Testing, senior
agency officials said was unnecessary. A very high level
committee has worked for almost two years on reorganizing the
disability appeals process (the elimination of OHA); its
charter assumed the success of the Adjudication Officer Program
hence reorganization schemes are predicated upon a successful
Adjudication Officer Program. OMB did not accept the Agency's
opinion that testing was unnecessary. However, the Agency
quickly minimized its embarrassment regarding the necessity of
testing. Even as OMB demanded a testing program for the
Adjudication Officer Program, SSA officials emphasized that the
testing was not designed to test the adjudication officer
concept, only fine tune implementation. In a memorandum from
Charles Jones, then Director of the Disability Process Redesign
Team dated June 9, 1995 Mr. Jones stated:
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\3\ Currently, there are a number of ``reorganization of OHA''
plans floating around SSA headquarters in Baltimore. While the plans
are very different, one factor is common: the power and prestige of the
official offering the plan will be greatly increased if his/her plan is
adopted.
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``I recommend that testing and subsequent rollout
implementation of the AO process as quickly as possible. A
testing as opposed to final regulation was required by OMB to
ensure that the AO process does not escalate program costs. We
have already concluded favorably the efficacy of the AO process
and project dramatic productivity increases and savings both in
human and monetary resources within two years of full
implementation. The purpose of testing is to reassure OMB
regarding program costs and fine tune procedural aspects of the
process.''
The rationale was that since Commissioner Chater had
already decided the Adjudication Officer Program would work,
there was no sense in testing the concept. Agency employees
were told that after a four month testing period commencing
November 1995 which would validate the process, full roll out
would commence at the rate of 10 adjudication officer sites per
month until the originally planned 200 sites of 5 adjudication
officers each were in place. While these officials could be
characterized as being overly-optimistic, a better
characterization might be ``delusional''. Over the past several
years literally scores of senior agency officials have
privately commented to me and other OHA employees that the AO
test was a failure, but that the Agency would declare it a
success and implement the program anyway. SSA has consistently
avoided any forum in which an unbiased decision maker might
become involved. SSA illegally terminated impact and
implementation negotiations with the National Treasury
Employees Union and to this day alleges that such negotiations
are unnecessary. This is so even though AO sites remove cases
that would normally be processed by Senior Attorneys; SSA
contends that this does not impact upon Senior Attorneys. The
real reason for the refusal to negotiate is that eventually a
impartial party would review the situation; SSA cannot afford
such a review. NTEU began litigation contesting the Agency's
failure to negotiate, but terminated that process despite our
complete faith that this was any easy winner because the
failure of the test was so evident that it would fail. We saw
no reason to terminate the test which would only prove us
right, and we did not want to be cited as a reason for its
failure. We made the right decision.
ALJs, Decision Writing, and Instructions
The issues of how many decisions are written by ALJs and
the nature and extent of ALJ decision instructions are
relatively new to OHA. The staff attorney program was begun in
1975 to relieve ALJs of decision drafting responsibilities, and
in fact it is the single most important reason that ALJ
productivity has increased from 16 decisions a month to the
current 40+ decisions per month. Over the years following 1975,
as the program was more fully staffed, more and more ALJs wrote
fewer and fewer of their own decisions. Additional decision
writer resources were added with paralegal specialists to write
the easier ALJ decisions so that eventually, few ALJs were
writing any decisions at all. However, using ``fill-in-the-
blank'' and other macros, more and more emphasis is being
placed on ALJs writing some of their own decisions. The Agency
is currently in the process of supplying each ALJ with a
notebook computer in order to encourage decision drafting.
However, even today, few ALJs draft even their simple favorable
decisions and practically none draft the far more complex and
demanding affirmation decisions.
Currently, the Agency's approximately 1000 ALJs draft about
4,000-5000 cases per month, approximately 10% of the total
decision drafting workload. Again, ALJs draft virtually none of
the more complex denial decisions. This is unfortunate because
drafting the more complex decisions requires an adjudicator to
recognize, understand and explain discrepancies in the record,
develop and evaluate the claimant's subjective complaints,
consider and assign the appropriate probative weight to all the
evidence in the record and weigh the testimony at the Hearing.
Decision making, without some decision drafting, does not
develop these skills and is a decisional process that leads to
increased instances of incorrect (not legally defensible)
decisions. While these may seem like skills necessary to the
decision making process, they are only necessary to the
complete and accurate decision making process. The lack of
these skills and the lack of knowledge of the nuances of SSA's
disability program results in imprecise decisional processes
and increased instances of incorrect (legally indefensible)
decisions.
As noted earlier, the issue of specificity of ALJ
instructions is relatively new. Many experienced Staff
Attorneys neither need nor want more than general directions
regarding the decision. We prefer to rely upon our ability to
review and analyze a case and rely on our own analytic
abilities to craft a legally defensible decision. To such
individuals, detailed instructions, unless they are accurate
and carefully thought out, which is not usually the case, are
often more an impediment than an asset. However, as the Agency
has increasingly relied upon the considerably less skilled
paralegal specialists as decision drafters, the importance of
more specific instructions has increased. These individuals do
not have the analytic capacities nor the extensive legal
writing experience of staff attorneys and hence require more
detailed instructions. However, except in rare instances,
decisional instructions are general in nature and supply very
little to the specific decision.
There are over a thousand ALJs currently employed by the
Social Security Administration. In my personal experience,
instructions have ranged from ``you make the decision'' to
lengthy narratives which the ALJ wants inserted into the
decision. However, I have seen decisional instructions from one
ALJ (not from Cleveland) that consisted of an ink stamp of
dancing pig (favorable decision) and an homeless waif (a
denial). Much more commonly ALJ instructions indicate the
decision (pay or deny) and the step in the sequential
evaluation at which the decision was made, for example,
``deny--range of light work''. It would be most unusual for an
ALJ to include specific language for insertion in the decision.
Likewise, it would be most unusual for instructions to include
specifics on assigning probative value to various exhibits, the
claimant's credibility, evaluating subjective symptoms, or
explaining discrepancies in the record. Quite often the
instructions are incomplete and fail to deal with the complete
range of issues required for a legally defensible decision.
The responsibilities of the decision drafter are set forth
in considerable detail in the position description of the GS-12
Attorney Advisor.
``Serves as a program/legal expert with full responsibility
for formulating legally defensible decisions which address all
medical and legal aspects of even the most difficult cases ad
as supported by the evidence. Ensures that the decisions are
consistent with the Social Security Act and with the
Secretary's adjudication policies as reflected in Social
Security Regulations and Rulings. Provides the rationale for
the ALJ's findings on the relevant issues and on the ultimate
decision in the case. The rationale includes appropriate
reference to the applicable statutes, regulations and Social
Security Rulings and a discussion of the weight assigned to the
various pieces of evidence in resolving conflicts in the
overall body of evidence; e.g., conflicts between treating and
nontreating medical sources, including a statement as to which
evidence is more persuasive and the supporting analysis. The
rationale in-
cludes a resolution of all the claimant's subjective
allegations, especially those regarding symptoms and an
assessment of the credibility of the evidence. Ensures that the
rationale includes any specific language required by court
orders, class action settlements or SSA policy embodied in
Acquiescence Rulings, as well as an explanation of how the case
law was applied. Is responsible for ensuring the decisions
properly address those issues identified by the Circuit Courts
as significant. Identifies the pivotal issues in a case and
ensures that the decisional rationale includes sufficient
discussion to demonstrate that he or she has properly
considered the issue according to circuit law''
Given the paucity of specific instructions typically
provided by the ALJ to the Staff Attorney, and the complexity
of the written decision, the text of most denial ALJ decisions
is the intellectual property of the writer not the ALJ. The ALJ
normally provides certain ``findings'', but the rationale
supporting each conclusion is the work of the Staff Attorney.
Because of the increased importance of ALJ instructions,
several offices have prepared ``decision format'' for use by
ALJs. If the decisional format form is complete, it will
require the ALJ to address most of the relevant issues, but
again, in a very abbreviated format. It remains the
responsibility of the individual drafting the decision to
create an acceptable rationale explaining the resolution of
each issue necessary for a legally defensible decision.
[The following questions were subsequently submitted by
Chairman Jim Bunning to Ms. Shor:]
1. You mentioned in your testimony that you would like to
see more consideration of alternatives to the Adjudication
Officer program. What alternatives did you have in mind?
2. You indicated in your testimony that you are not in
favor of closing the record. Can you provide more details as to
why you believe the record should not be closed?
3. In testimony before the Subcommittee, we learned that
75% of individuals denied benefits by the State DDS file an
appeal to appear before an ALJ. We also learned that in about
75% of all appealed cases, the claimant submits additional
evidence. Do you have any sense of how often this evidence is
really new, or was simply held back so it could be considered
by the ALJ? How can we ensure this doesn't happen?
[The response of Ms. Shor follows:]
National Organization of
Social Security Claimants' Representatives
6 Prospect Street
Midland, New Jersey 07432
June 19, 1997
Rep. Jim Bunning, Chairman
Subcommittee on Social Security
Committee on Ways and Means
U.S. House of Representatives
Washington, DC 20515
Dear Congressman Bunning,
Thank you for the opportunity to respond to questions arising from
my testimony to the Subcommittee on April 24. I want to express again
our appreciation for the opportunity to testify at that important
hearing concerning the disability program.
Adjudication Officer
In my testimony, I indicated that we support the agency's goal of
deciding claims correctly at the earliest possible stage. SSA's
redesign plan created the Adjudication Officer position to screen cases
before they reach an Administrative Law Judge. We would encourage
consideration of alternatives which would more successfully achieve
this goal. First, there should be a final automatic screening for all
cases before a reconsideration denial is issued. Note that in the AO
scheme, it is necessary for a dissatisfied claimant to file a request
for a hearing before an ALJ before the case can be sent to an AO. As a
result, those claimants who are fearful of appearing ``in court''
before an ALJ and who do not file a request for hearing for that reason
will not have an AO look at their claims. Second, we have urged the
agency to con-
sider a magistrate-type position instead of the AO. The magistrate
would be a lawyer who would draft recommended decision, both allowances
and denials, for the ALJ's consideration. Third, we encourage the
agency to consider whether increases in staffing at the Offices of
Hearings and Appeals for preparation of the record and summaries of the
evidence might obviate the need for creation of additional positions
altogether.
Closing the Record
Claimants should be strongly encouraged to submit evidence as early
in the process as possible. The benefit is obvious: the earlier a claim
is adequately developed, the earlier it will be approved and the
earlier payment can begin. However, closing the record is not the
solution. Past efforts to close the record to new evidence have failed,
since such proposals are (1) inconsistent with Supreme Court precedent
and the Social Security Act; (2) not beneficial to claimants; and (3)
not administratively efficient for SSA.
A. Constitutional and statutory rights of claimants.
1. Claimant's right to impartial decisionmaker's developing the
facts of the case.
Closing the record before the hearing level would not be consistent
with the due process and statutory rights of disability claimants.
Based on due process and the Social Security Act, a claimant has the
right to have an impartial decisionmaker gather the evidence and make a
decision based on evidence adduced a the hearing. See 42 U.S.C.
Sec. 405(b); Richardson v. Perales, 402 U.S. 387 (1971); Goldberg v.
Kelly, 397 U.S. 254 (1970). Thus, the ALJ has the ultimate
responsibility to develop the facts of the case. Richardson, 402 U.S.
at 410. Subsequent case law has emphasized the remedial purpose of the
[Act] and the duty of the Administrative Law Judge to fully develop the
record. Lashley v. Secretary of HHS, 708 F.2d 1048, 1051 (6th Cir.
1983). Closing the record prior to a hearing would co-opt the ALJ's
duty to gather the evidence and develop the record. It further
precludes the ALJ from issuing a decision which is based on evidence
brought out at, and not before, the hearing.
2. Maintaining informality of the process.
Requiring evidence to be submitted at an earlier point in the
process and then closing the record would impose a formality on the
appeals process not intended by the Act. For decades, Congress and the
United States Supreme Court have recognized that the informality of
SSA's process is a critical aspect of the program. Proposals to
eliminate this informality have generally been rejected by Congress. In
Richardson, the Supreme Court noted that from the current procedures:
There emerges an emphasis upon the informal rather than the form.
This, we think, is as it should be, for this administrative procedure,
and these hearings, should be understandable to the layman claimant,
should not necessarily be stiff and comfortable only for the trained
attorney, and should be liberal and not strict in tone and operation.
This is the obvious intent of Congress so long as the procedures are
fundamentally fair.
Richardson, 402 U.S. at 401-01
The value of keeping the process informal should not be
underestimated: it encourages individuals to supply information, often
regarding the most private aspects of their lives. Technical
requirements, such as closing the record at an earlier level, raise
obstacles to claimants which are inconsistent with the philosophy of
the program. Rather, SSA should be encouraged to work with claimants to
obtain necessary evidence and more fully develop the claim at an
earlier point.
B. Closing the record is not fair to claimants.
Despite the obvious benefit to claimants, the fact that early
submission of evidence does not occur more frequently indicates that
factors beyond the claimant's control contribute to this problem. In
attempting to find a solution, Congress should be careful not to make
the process less ``user-friendly.'' There are several crucial reasons
why closing the record at an earlier level is not beneficial to
claimants.
1. Conditions change. Most medical conditions change over time:
they may worsen, the diagnosis may change or become more finely tuned
after further testing or assessment. Individuals may undergo new
treatment or procedures. They may be hospitalized or referred to
different specialists. Some conditions, such as multiple sclerosis, may
take longer to diagnose. Some claimants misdiagnose their own claims
either because they are in denial or lack judgment about their illness.
By their nature, these claims are not static and a finite set of
medical evidence does not exist. If the record is closed, individuals
will be forced to file new applica-
tions merely to have new evidence, such as reports from a recent
hospitalization or a report which finally assesses and diagnoses a
condition, reviewed.
2. Claimants are unable to submit evidence earlier for reasons
beyond their control. Claimants are always benefited by submitting
evidence as soon as possible. However, there are many reasons why they
are unable to do so and for which they are not at fault. Closing the
record punishes them for factors beyond their control, including:
Neither SSA nor DDS explains to the individual what
evidence is important and necessary to obtain for the claim.
Medical providers, especially treating sources, receive no
explanation from SSA or DDS about the disability standard and are not
asked for evidence relevant to the claim.
DDS's fail to obtain necessary and relevant evidence.
Claimants are unable to obtain medical records either due
to cost of because of state laws preventing them from directly
obtaining their own medical records.
Medical providers delay or refuse to submit evidence.
So that claimants are not wrongly penalized for events beyond their
control, the current system provides a process to submit new evidence
if certain conditions are met. This exception should not eliminated in
the name of streamlining the system.
C. Closing the record will cause further administrative problems for
SSA.
In addition to the reasons why closing the record would not
benefits individuals, closing the record would not improve the process
from an administrative perspective. As mentioned above, a claimant
would be required to file a new application merely to have new evidence
considered, even though it was relevant to the recent, prior claim. As
a result, SSA could expect to handle more applications, unnecessarily
clogging the front end of the process. Further, there would be more
administrative cost for SSA since the cost of handling a new
application is higher then reviewing new evidence in the context of a
pending claim.
New Evidence
As discussed above, there are many reasons that additional evidence
is submitted at the hearing level. Most of these reasons are outside
the control of claimants, as well as their representatives. Clearly,
claimants benefit by submitting evidence as early in the process as
possible, and should be so advised throughout the pendency of their
claims.
If we may provide additional information and perspective, please do
not hesitate to contact me.
Very truly yours,
Nancy G. Shor
Executive Director
NGS/ct
Chairman Bunning. In conclusion, I would like to thank
everybody that has testified today. Your testimony has been of
great value in updating the Subcommittee regarding the
disability appeals process at SSA.
The Subcommittee is now adjourned.
[Whereupon, at 11:16 a.m., the hearing was adjourned.]
[Submissions for the record follow:]
Statement of James F. Allsup, Founder and President, Allsup, Inc.
Mr. Chairman and members of the subcommittee. My name is
James F. Allsup and I am president and CEO of Allsup
Incorporated in Belleville, Illinois. My written testimony
differs markedly in experience and perspective from the other
testimony you will hear today. Specifically, I have experienced
the Social Security disability program from multiple
perspectives--as a Social Security employee, and as a Social
Security disability representative for both individuals and
employers.
Since I founded my company in 1984, we have obtained
disability awards for about 25,000 people. Prior to starting my
company, I was a claims representative and a field
representative for four and one-half years with the Social
Security Administration. Many of my employees also have Social
Security disability claims experience, working both inside and
outside the Social Security system. Cumulatively, we have more
than 500 years' experience as either claims representatives or
claims examiners for SSA and Disability Determination Services
or as private non-attorney representatives.
Disability claims can be referred to us by individual
claimants, their employers or their insurers. If an individual
approaches us directly and does not have private disability
coverage, our fee is paid on a contingency basis. We obtain the
fee directly from the individual, not from the Social Security
Administration. Unlike other organizations, we do not believe
it is necessary to strain Social Security's limited resources
to collect our fees.
When claimants are referred to us by their employers or
insurers, the referring party pays our fee because of its
financial stake in the outcome--an offset against the
disability benefit they pay. This offset exists because
employer-provided disability plans integrate with Social
Security disability, and both employers and their employees
share the FICA tax burden.
With all due respect to the dedicated Social Security and
Disability Determination Services employees who will offer
testimony today, their knowledge and perspective is limited--as
was my employees and mine before we left the Social Security
Administration. While employed by SSA, we were not privy to the
actual law we were supposed to be administering. We followed
the agency's extremely narrow policy contained in its Program
Operations Manual System, or POMS. We assumed the agency's
policy was the law. And because our knowledge of the law was
obscured by agency policy, we frequently became upset when
administrative law judges reversed our denials. We did not
understand why and how an administrative law judge could allow
a claim that we had denied because we followed the directions
given to us in the POMS.
That's why I can understand the concern the Social Security
and Disability Determination Services employees have with the
high reversal rate of administrative law judges. But I also
understand that their viewpoint is limited because they never
left the Social Security disability system to represent
individuals with disability claims. Only by leaving the agency
and subsequently representing disability claimants can one
really understand that administrative law judges are simply
following the law. Unless you are aware of the law, you will
never understand it. So what may appear as inconsistencies in
the Social Security disability decision-making process are only
inconsistencies because the agency itself takes a narrow view
of the law.
The only solution is to replace the dual standards used in
the decision-making process with a single standard--the legal
standard.
I abhor the attempt by Social Security Administration
policy makers to intimidate administrative law judges into
abandoning their oath to provide due process and a fair hearing
to individual claimants in accordance with the law. This is a
brutal attack on working Americans who expect their government
to make good on its promise to provide a safety net when they
are no longer able to work. If SSA's attempt to overrule the
law succeeds, even more claims will be denied and even more
people with disabilities will be deprived of the disability
income and Medicare coverage they so desperately need. It will
also deprive them of extended COBRA coverage if they elected
such coverage upon leaving work because of their disability.
Allsup Incorporated is concerned with their welfare. We
will not sit back and be silent while they are attacked by
policy makers isolated from the world of disabilities. Because
our fees are not guaranteed by the Social Security
Administration, I am free to speak with total honesty and
without restraint in criticizing this attack on disabled
claimants. Therefore, I am not concerned about potential
retribution through the loss of a guaranteed fee collection
system.
In addition to serving as authorized representatives of
disabled individuals, we often serve as unofficial
representatives of their employers' interests who referred
their claims to us. We must recognize that employers also have
a big stake in the outcome of these disability claims.
Employers not only pay half of the total FICA taxes for each of
their employees, they many times also provide their own
disability and health coverage. If the disability claim is
denied, the employer is denied the offset against its
disability claim, and the Medicare coverage that allows the
employer health plan to revert to secondary payer. The employer
is left paying the entire bill for both disability income and
health insurance coverage, eliminating any incentive to provide
this coverage. We must understand that both disabled
individuals and active employees are harmed each time Social
Security unfairly denies a disability claim.
We will not allow this lawlessness on the part of Social
Security policy makers to go unnoticed. We have launched a
campaign to rally disability associations, individuals,
employers and other organizations to stop this ill-conceived
effort. We are gathering petitions throughout the country and
demanding that this outrage be terminated immediately. We are
also urging all disabled individuals to contact their elected
representatives in Congress to put a halt on this attack.
This is the United States of America where the rule of law
reigns supreme. As law-abiding taxpayers, we demand law-abiding
administrators.
Statement of John H. Pickering, Chair, Senior Lawyers Division and
Commissioner Emeritus, Commission on Legal Problems of the Elderly; on
Behalf of American Bar Association
Mr. Chairman and Members of the Subcommittee:
My name is John H. Pickering. I chair the American Bar
Association's Senior Lawyers Division, and serve as
Commissioner Emeritus of the ABA Commission on Legal Problems
of the Elderly, which I also chaired for a number of years.
I appreciate the opportunity to submit this statement on
behalf of the American Bar Association, in conjunction with the
April 24, 1997, Oversight Hearing on the Disability Appeals
Process.
As representative of the legal profession in the United
States, the American Bar Association is particularly concerned
with equal access to justice for those members of our society
who are generally least able to protect their own rights--low-
income persons, individuals with disabilities and older people.
We have a long-standing interest in the Social Security
Administration's disability benefits review process, and have
worked actively over the years to promote increased efficiency
and fairness in this system. In recent years, we have followed
carefully the Social Security Administration's efforts to
redesign this process, and we commend the agency on its efforts
to ensure that the correct decision is made as early in the
process as possible. Like members of this Subcommittee, we are
concerned about the growing backlog in processing appeals and
the impact of those delays, on the public confidence in the
system, on agency staff and most importantly, on the claimant.
We are quite aware that the timeliness and the quality of
decision making can have a profound effect on the lives and
well-being of millions of Americans, and that for many
individuals, Supplemental Security Income and Social Security
disability benefits constitute the sole source of income and
access to health care.
Over a decade ago, the ABA joined with the Administrative
Conference of the United States (ACUS) to sponsor a national
symposium on the Social Security Administrative Appeals
process. Since that time, the Association has drawn upon the
considerable expertise of a membership with backgrounds as
claimant representatives, administrative law judges,
academicians and agency staff, to develop a wide ranging body
of recommendations that emphasize clarity in communications
with and due process protections for claimants, and that urge
the application of appropriate, consistent legal standards at
all stages of the disability adjudication process. In 1986, in
an amicus curiae brief in the landmark U.S. Supreme Court case,
Bowen v. City of New York, the Association argued successfully
that the Social Security Administration should reopen the cases
of thousands of mentally disabled claimants who were denied
disability benefits because they failed to meet sub rosa
requirements and appeal deadlines Brief for the American Bar
Association, Amicus Curiae, in Support of the Respondents,
Bowen v. City of New York, 476 U.S. 467 (1986). It is with this
background that we offer some recommendations to the
Subcommittee for consideration. We believe that implementation
of these recommendations can lead to the development of a fair
and efficient administrative appeals process, and minimize the
delays that are threatening to overwhelm that system.
The stated goal of the Social Security Administration's
``process unification'' initiative is to improve efficiency and
create consistency of decision making at different levels of
the disability appeals process. Yet in all too many cases still
in the system today, claims that could have been decided at the
initial stages are awarded at the hearing level simply because
the evidence presented is more complete by the time it is
presented to the administrative law judge. SSA could improve
this situation at the front-end of the process, by providing
individuals applying for benefits with a clear statement of
applicable eligibility requirements, the claimant's
responsibilities, a description of the administrative steps in
the process, an explanation of relevant medical and vocational
evidence and notice of the availability of legal
representation.
We agree that many claimants, either independently or with
the assistance of a representative or other agent, should be
encouraged to take more responsibility for providing
documentation in support of their claim. However, many persons
eligible for disability benefits are unable, as a result of
their disability, or because of linguistic or cultural
barriers, to follow through on certain tasks. Moreover, few
claimants have a legal representative to assist them at this
stage of the process. To improve the quality of medical and
vocational evidence at the initial stages and reduce the need
for appeal, we suggest that the agency consult the claimant's
health care providers, and compensate them adequately for
providing relevant medical information. We encourage SSA to
take affirmative steps to compile accurate documentation and to
supplement reports (particularly those from treating
physicians) that are not sufficiently detailed or
comprehensive. Agency staff could speed up the process by
educating the medical community about eligibility criteria used
in the disability program, and the kind of evidence required to
establish eligibility for benefits, and by assisting claimants
in compiling necessary documentation and in supplementing
incomplete reports.
We recommend that, prior to denying claims, the Social
Security Administration notify claimants of the pending adverse
action; inform claimants of reasons why the finding of
disability cannot be made and ensure that they have access to
all the evidence in their file, including medical reports;
provide them the opportunity to submit further evidence, and
advise claimants' health care providers of deficiencies in the
medical evidence and give them the opportunity to supply
additional information. We recommend that disability claims
managers be encouraged to consult with legal as well as medical
resources in their evaluation of a claim. Our policies support
face-to-face interviews between claimants and agency decision-
makers before a final decision is made, and elimination of the
reconsideration level of appeal. If the quality of intake and
development of evidence at the early stages is improved, there
is little reason for reconsideration, particularly given the
historically low reversal rate and substantial delays involved
at this level.
In the event that the claim is denied after full and
complete development of the file, we suggest certain additional
steps to enhance the integrity and efficiency of the appeals
process while guaranteeing the claimant due process. The
Association has long-standing policy supporting the right of
claimants to due process, including a hearing on the record,
before an administrative law judge whose authority as an
independent fact-finder is assured. This hearing is an
essential element in ensuring a full and fair review of the
claim, providing administrative law judges the opportunity to
take testimony from the claimant, develop evidence when
necessary, consider and weigh the medical evidence, and
evaluate vocational factors in order to reach an impartial
decision free from agency coercion.
In 1995, in response to SSA's efforts to eliminate the
backlog of cases that threatened (and continues to threaten)
the ability of administrative law judges to assure due process,
the ABA House of Delegates endorsed additional reforms at the
hearing and pre-hearing stages. We recommended the designation
of adjudication officers with supporting staff who, immediately
following the initial denial of a claim, would work with the
disability claims manager to develop the evidence, assemble a
file and, where appropriate, allow the claim. Additional
evidence may be necessary to establish a change in medical
condition, or to include evidence that the claimant was unable
to obtain due to cost or other circumstances beyond the
claimant's control. Should the case proceed to a hearing, the
adjudication officers could be responsible for presenting the
agency's position during the hearing. Concerned about the
disadvantage such a system might pose to unrepresented
claimants, we proposed that the administrative law judge be
permitted to assert direct control over the development of the
record, and have access to investigative sources.
We are aware of proposals to provide finality to the
process by closing the record during the administrative appeal
process, and urge that such proposals be carefully considered,
and that the record certainly not be closed prior to the
hearing. To close the record before the hearing would serve
only to penalize claimants who may have been unable through no
fault of their own to gather the evidence necessary for a full
and fair hearing, and would lead to additional costs for the
agency as claimants file new applications simply to submit new
evidence. The record should not be closed until the conclusion
of the hearing, and then only if provisions are made for
allowing claimants to reopen the record within one year of an
adverse decision, upon a showing of good cause (such as newly
discovered evidence or a material change in condition).
Finally, we are most concerned that SSA's ``process
unification'' plans provide for the Appeals Council to review
decisions of administrative law judges on its own motion. The
ABA has advocated for many years for a complete study of
Appeals Council procedures and functions, to determine whether
such review is necessary and to explore possible changes in the
Council's role. Fully aware of past attempts to control the
rates at which ALJs allowed claims (e.g. the Bellmon Review),
we caution that the independence and impartiality of
administrative law judge decision making must not be
compromised by discretionary review. The scope of such review
should be limited to clear errors of law or lack of substantial
evidence for factual conclusions, with the latter based on
specific documentation and review of the hearing tapes.
We commend the Subcommittee for holding the hearing on
these important issues, and appreciate the opportunity to
submit this testimony. We look forward to working with the
Subcommittee and with the Social Security Administration on
these issues in the future.
Scheine, Fusco, Brandenstein & Rada, P.C.
Woodbury, NY
May 15, 1997
A.L. Singleton
Chief of Staff
Social Security Subcommittee
Committee on Ways and Means
U.S. House of Representatives
1102 Longworth House Office Building
Washington, D.C. 20515
RE: Oversight Hearing on the Disability Appeals Process April 24, 1997
Dear Chairman Bunning and Members of the Subcommittee:
I write to you as an experienced practitioner with over twenty
years experience in the field of Social Security Disability. As I
understand the concerns of your subcommittee, they may be capsulized as
follows:
1. Why does it seem to take so long to process a disability claim?
2. Why does there seem to be such a discrepancy between decisions
by administrative law judges and the state agency disability
determination services?
3. Why don't we get enough people off the rolls?
These are valid questions that deserve honest answers. However,
having reviewed the position papers submitted to your subcommittee, by
various stakeholders in the system, it seems to me that, at best, you
have a great deal of conflicting information, and varying opinions as
to why the system is in the state it is in. At worst, you have what
appears to be one group back stabbing another, perhaps for the
understated purpose of preserving their jobs, even at the other guys'
expense.\1\
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\1\ The most glaring example of this is the statement of Larry
Jacks of the Disability Determination Services. Mr. Jacks would have
your committee believe the ALJ's are not following the law and giving
benefits away on a wholesale basis. He would like to see the private
bar removed from the process, and the Federal Courts removed as well.
If there ever was a prize given to position paper biased to protect
one's own interest this one would take a pulitzer.
Another Disability Examiner, Douglas Willman of the National
Council of Disability Determinations Directors, starts out his
statement by taking a pot shot at ALJ independence, and supports
institutionalized non-acquiescence. This underscores Judge Bernoski's
observations that the DDS don't follow the law, and don't want to, and
in fact, Willman, doesn't even want to consider the evidence from the
treating physician on the issue of disability.
See the statement of James A. Hill, Esq., of the National Treasury
Employees Union, at page 8, noting the resistance of both state
agencies and the ALJ's to the highly successful Senior Attorney
project. Hill alludes facing unjust criticism from the Redesign
bureaucracy which had a stake in the largely unsuccssful adjudication
officer program, as well as office obstructionism within the confines
of local Hearing Offices.
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Allow me to share my observations, based upon twenty years of
working with Social Security Disability claims at all adjudicative
levels. I am the managing partner of a firm with a substantial Social
Security practice. I have lectured extensively in the area, and serve
on the Board of Directors of the National Organization of Social
Security Claimant's Representatives. I have handled over 2000 hearings,
and over 500 Federal Court appeals. More significant, however, is that
I have handled many thousands of cases which were favorably adjudicated
at the initial and reconsideration levels, or by on-the-record
decisions at the Office of Hearing and Appeals. The views expressed
herein however are solely my own, and not necessarily endorsed by
NOSSCR.
I. The Disability Standard and The ``Duration'' Requirement
Before giving my answer to the question as to why is there
a backlog, it would do well to remind ourselves that the legal
standard of disability under the Social Security Act, requires
a showing that the disability has lasted (or is expected to
last) for 12 consecutive, continuous months. Curiously, the
statement of Carolyn W. Colvin, Deputy Commissioner for
Programs and Policy of SSA, neglected to include this rather
significant part of the definition of disability. Ms. Colvin's
statement was merely that ``The Social Security Act broadly
defines disability as the inability to engage in substantial
gainful activity.'' That's hardly accurate, in light of the
duration requirement. If we don't understand the duration
requirement, we will have a very difficult time understanding
anything about the disability process at all.
With some minor exceptions, it is very difficult to
anticipate whether most impairments will last twelve continuous
months. In some instances a State Agency DDS will need to defer
a decision until it can determine if the otherwise severe
impairment will, in fact, meet the duration requirement. In
other cases, they will disallow a claim because administrative
experience in similar cases has shown that a particular
impairment would ordinarily not last twelve months at a
disabling level of severity although it may be quite disabling
at the point when a claimant applies. In short, my experience
is that many claimants are denied because people file
prematurely, and no one ever bothers to explain the duration
requirement to them.
Second, as I will demonstrate, there is a backlog because
claimants are not generally represented by independent counsel
at the initial application stage and many people apply who have
no business applying, either because they do not meet and never
will meet the disability standard, or they will not meet the
duration requirement, or apply so prematurely that they invite
a denial, or are unable to produce medical evidence in support
of their claim because they are not under regular care. Or,
perhaps they are not insured for disability at the time they
claim to be disabled due to spotty work records.
The bottom line is there are too many claims of dubious
quality coming in to flood the system. These claims help clog
the appeals process and delay the disposition of more
meritorious claims.
II. Getting People Off the Rolls Early
We can't get people off the system, because we make them
such vital stakeholders in getting on the system.
In the first place we (wrongly) convince them that they
need to be ``permanently totally disabled'' to get benefits.
Neither permanency nor total disability is a requirement of the
Social Security Act, but if you let people think they are
permanently and totally disabled, by defining their eligibility
for a disability benefit in such terms, they will eventually
come around to perceiving themselves as actually being
permanently and totally disabled. We do not emphasize the
availability of ``closed periods of disability,'' which is
really all that many applicants want in the first place.
Most Americans, and I would not be surprised if members of
the subcommittee were included in this, may be unaware that
Social Security awards closed periods of Social Security
Disability for people who are so disabled they can't work, but
only for the limited period that they are so disabled. Once
they recover, the benefits stop. This doesn't require any
legislation. It has been part of the Social Security Disability
process for years, but rarely invoked, except by the much
aligned Administrative Law Judges.\2\
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\2\ Statistically, when an ALJ awards a ``Closed Period'' (and they
award many) it shows up as a favorable decision, thus skewing the
numbers of ``favorable'' decisions attributable to ALJ's much higher
than they should be.
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Congress can hardly expect to purge the rolls of those who
have recovered, when SSA is taking five years to get them on
the rolls in the first place, and at least another three years
to review them. (And, we doubt SSA can keep up with even that
pace of review.) By that time, any transferable skills, or
general aptitudes the claimant may possess, have long been
neglected by disuse, the claimants are considerably older and
may fall into a different disability classification under the
medical vocational rules, they are less motivated, are
``retired'' in their minds, and have adjusted to whatever
standard of living they now have. Moreover, as is well known,
they are afraid of losing their medical benefits. (The recent
proposals by Representative Kennelly and Senator Jeffords may
address this latter part of the problem.)
Moreover, think of the actual dollar cost of having to
finally pay someone five years of retroactive benefits because
it sometimes currently takes that long to resolve a case, and
then to pay continuing payments for at least three years before
the case is even looked at!
It is my view that the sooner you let someone into the
system the sooner you can get them out, if you act fast.
However, getting people in sooner, doesn't mean getting them in
prematurely, it means expediting the process, once they have
applied.
III. Why is There a Backlog at the Hearing Level?
1. The Initial Claims Process is Designed to Exclude Evidence.
It is my view that the main reason there is a hearing
backlog is, simply stated, the State Agencies (DDS) do not do
their jobs. They do not develop medical evidence, and they base
their decisions on scanty files. You've already heard this from
Judge Bernoski and from Nancy Shor of NOSSCR, and from OHA
Staff Attorney James A. Hill, so it should come as no surprise
to hear it from a practitioner. See Ms. Shor's statement at
page 4, listing five reasons why the evidentiary record at the
State Agency DDS is often lacking. The DDS's also do not follow
the law, despite what they've told the subcommittee in their
position papers.
Second, the Social Security Administration itself tacitly
institutionalizes procedures designed to cause backlogs at the
initial levels and forces claims up to the hearing level.
District Offices, (with the exception of some on the East
Coast, such as the ones on Long Island, where I practice) put
major obstacles in the path of an attorney who even tries to
represent a claimant at these levels, including the often
repeated advice to the claimant that they don't need and
shouldn't have an attorney until there is a hearing. SSA's Ms.
Colvin's states that ``there is some anecdotal evidence that
representatives wait until the hearing before submitting new
evidence.'' However, our experience is that it is almost
impossible for a representative to get involved in cases before
the hearing level, and very difficult to track down a file \3\
while it is pending a hearing, and it is for that reason that
representatives who have not been on the case since the
inception, have no choice but to wait until the hearing to
submit evidence.
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\3\ Once a case is assembled at the District Office it is shipped
off to the DDS--when exactly this occurs is a mystery. After the DDS
acts, we are told, (but don't believe) the file is then shipped to
Baltimore. If a hearing is requested, the request is filed at the
District Office and then sent to the servicing hearing office; however,
to meet local demands, judges are often brought in from other parts of
the country, which means the files are shipped out of the area, and
counsel cannot get access to them. I've had the unfortunate experience
of submitting medical to the District Office, to have it returned with
the notation the case has been decided, though we have no notice to
that effect. I have submitted evidence to a local hearing office to
have it returned on the grounds the file was not there. Two months
later it turns out the file was there--and then the judge was upset
that we took so long to submit the evidence that was now two months
old!
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What generally happens in Social Security Disability claims
is that claimants appear at the District Office, a claim is
taken, and then sent on to the State Agency to process.
Claimants, and probably most people on your subcommittee,
believe that the DDS goes about gathering the medical evidence
for the claim. (See Ms. Colvin's statement at page 1: ``The
State DDS requests medical evidence from treating physicians
and other sources identified by the claimant.'' That's the way
it's supposed to be anyway.)
For twenty years I have observed that, at best, DDS will
send some perfunctory forms to treating sources. These forms
are either inadequate to allow the doctor to provide the
information SSA really needs to adjudicate a claim, or are so
long and involved that it is rare that any busy practitioner
would have the time to decipher them and complete them. Lacking
timely evidence, and to supposedly ``expedite'' the claim, the
DDS sends the claimant to a volume provider of medical
examinations for a substandard exam, and the claim is decided,
usually adversely. Moreover, as pointed out by James A. Hill,
``The payment rates of the screening units \4\ dem-
onstrate that even using DDS standards, DDS decisions are
incorrect a significant amount of time.''
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\4\ These are units which re-review cases at the Reconsideration
level, after a Hearing Request has been filed, but before the case is
shipped to the Office of Hearings and Appeals. Using the same
``standards'' as the DDS, they still find a great deal of error
requiring reversal of DDS denials.
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The process is repeated at Reconsideration, and then, and
only then, after the claim has been twice denied and on its way
to the hearing level is the claimant advised that he or she may
want to secure counsel. Counsel goes about gathering all the
medical evidence that you would like to believe should have
been gathered by the DDS. Counsel presents the evidence to the
judge, who based on that evidence, appropriately grants
benefits under the law. For that reason alone the proposal to
close the record before the hearing level is problematic. (Yet,
this notion is embraced by at least one of the disability
examiners, see statement of Larry Jacks at page 2, wherein he
advocates closing the record after the DDS reviews the claim,
but offers no supporting rationale for the suggestion.)
2. It's the Evidence, Not Standards that Causes the
Discrepancy.
In reading the position papers presented to the
subcommittee, the great debate appears to be over whether the
decisional differences between the DDS and the OHA is due to
the use of differing standards or better quality evidence. DDS
witnesses seem to be under the impression that ALJ's use widely
divergent standards for the assessment of disability, and they
don't appreciate that the evidentiary records compiled in their
agencies are sorely lacking. Clearly, it's the evidence.
My experience is not that there is a wide disparity between
the standards imposed by the State Agency and the standards
used by Administrative Law Judges. ALJ's are not push-overs,
and not interested in simply giving benefits away, as the
statistics may lead one to think. Come to a hearing with me, if
you think these judges are giving away the store, you'll be
readily disabused of that notion. Most of the ALJ's are quite
tough.
Nor are the OHA staff attorneys ``paying down the
backlog,'' as James A. Hill has proven statistically. My
experience is that there is a great deal more evidence before
administrative law judges who are bound by case law and the
regulations to help the claimant develop the record,
particularly when the claimant is unrepresented. When the
claimant is represented, most often the representative will
develop the record. And, as Judge Bernoski pointed out, often
the medical sources drag their feet in supplying evidence. I
would like to believe it is because they have other matters of
more pressing concern. Judges can and do subpoena records,
attorney can and do badger the doctors until they provide
what's necessary.
3. Some Actual Case Studies:
I have ample evidence from my own practice to demonstrate
that a disability claim need not be a long drawn out process
and that most cases would not have to go to hearing if
representation was involved at the early stages.
My office handled 88 cases which were resolved at the
initial application level in 1996. These are not necessarily
cases RETAINED in 1996, only cases RESOLVED in 1996.
Of these cases, the average length of time between the date
retained and the date resolved (date of the wage earner's award
notice) is 5 1/2 months. This includes the time we spend
developing our files so that the average amount of time between
the actual filing of the application is substantially less than
5 1/2 months.
Let me tell you about a few of these cases:
[a] Mark C. is a forty-one year old truck driver. He last
worked on March 28, 1995 when he was severely injured in an on-
the-job accident. He consulted us about his Social Security
case on September 23, 1996. We began to prepare and to
investigate \5\ the case and filed his application on December
12, 1996. On February 25, 1997, we received a favorable award
certificate in his case. Total elapsed time--two and half
months.
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\5\ This consisted of obtaining files from his Workers'
Compensation case files and from his personal injury case, visiting the
Workers' Compensation Board to review their file, writing to his
doctors and hospitals for their records, and obtaining a narrative
report from his treating doctor and arranging a consultation with a
specialist for a functional capacity evaluation. When and only when all
of this was completed, and we were convinced of the validity of the
claim, did we file the application for benefits. As officers of the
court we view our duty as requiring reasonable investigation so that
frivolous or fraudulent claims are not filed.
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[b] Linda T. consulted us in October 1996. She was a fifty
year old who had battled MS for many years, and finally had to
stop working in June of 1996. We sent for her medical records
and her vocational rehabilitation assessment. We had her
examined by a neurologist to determine her functional capacity.
In February of 1997 her application was filed. In April a
favorable decision was issued. Elapsed time in the system was
about 2 months.
[c] Nilda C., our S96-0148, consulted us on March 7, 1996.
We investigated her claim and had sufficient information to
file her application as of April 1996. She was a fifty year old
person with a ninth grade education, who had worked as an
assembler for fifteen years. She suffered severe depression and
left hip pain since August of 1995. Her date of entitlement, if
she was successful, would be February 1996. The application
that we filed on April 15, 1996, was favorably adjudicated on
September 27, 1996, by the issuance of an award certificate.
Social Security completed all the work on the claimant within a
period of five months.
[d] Jack T., (our S96-0328), was a chiropractor who became
disabled as a result of post traumatic stress disorder
following an accident in which several of his friends were
killed. He became disabled in December of 1995, and consulted
us in July of 1996, when his short-term disability benefits
expired. It was too early to file a claim for disability as we
could not determine whether his disability would last for
twelve months. We began to gather medical evidence and in
September of 1996, decided to file his application. The
application was filed on September 18 and denied on October
10th. (Three weeks!) Reconsideration was filed on November 8
and that was denied on December 12, 1996. (Five weeks!) Jack
had been disabled only for a year at this point, and the denial
by the state agency at both levels was not unreasonable
considering the fact that the claimant had hardly met the
duration requirement.
The total adjudicative time for Jack's claim was September
18, 1996; the initial filing, to the hearing decision of
January 14, 1997--approximately four months. Hardly a long
drawn out appeals process.
The case also points out why so many cases would be denied
at the state agency level, that are obviously grants at the
Administrative Law Judge level. Many of these cases have not
yet met the duration requirement and DDS personnel are
reluctant to presume disabilities will persist for twelve
months, the statutory requirement. DDS examiners have no
crystal ball; some people do get better and yes, some get
worse. Had I been an employee of the DDS, I too, would have
been reluctant to grant benefits on this case. However, by the
time the case reached the Office of Hearing and Appeals, it had
aged appropriately, and the award of benefits was warranted.
[e] Robert J. H. (our file S96-0487) first consulted us on
November 5, 1996. We investigated his workers' compensation
file and found sufficient enough medical evidence upon which to
base the filing of an application. The application was filed on
November 15, 1996. Robert had become disabled as a result of
and on-the-job injury involving his back, right leg, and right
foot. On April 26, 1997, the Social Security Administration
issued a fully favorable decision once the claimant had reached
the one-year threshold.
Apparently SSA refrained from making a decision until the
claimant had attained the duration requirement. Shortly after
his disability met the one year mark, a fully favorable
decision was issued, presumably once they had verification that
the claimant remained disabled for twelve continuous months.
The favorable decision was issued a mere five days after
the one-year anniversary of disability.
As Ms. Colvin observes on page 6 of her prepared statement:
``....cases denied by the DDS based on expected improvement in
the claimant's condition within 12 months of the onset of the
condition are allowed by the ALJ because improvement has not
occurred since the DDS determination.'' (However, if anyone
thinks that remanding of these cases back to the DDS as
envisioned in process unification will speed up claims, they
are misguided. It can't possibly do anything but slow down the
process by bouncing files back and forth. Since an ALJ makes a
de novo (fresh) determination, why shouldn't the ALJ be able to
consider that the DDS was right at the time it made its
decision, but that subsequent events have changed the picture?)
Merely because we take a case in at the initial application
level, however, does not mean that it will be granted at that
level. Some cases do require the intervention of judges or the
accumulation of medical evidence over a period of time in order
to prove that the disability will be longstanding and
continuous.
[f] Consider the case of Mei Shi L., our S96-0280. We were
retained in this case on June 11, 1996. We filed our
application shortly thereafter, on July 2, 1996. This
application was denied on September 5, 1996. That is within two
months. We think that any charge of unnecessary delay by Social
Security or the DDS is simply not supported by the speed in
which this case was initially adjudicated. We immediately filed
a request for reconsideration and that was adjudicated on
October 29, 1996.
It is important to note that the claimant's date of
entitlement was January 1996 based on disability beginning July
1995. A hearing request was filed and adjudicated by an
Administrative Law Judge on March 18, 1997--within nine months
of the initial application filing. As you can well appreciate,
the speedy adjudication of this claim made it possible to limit
attorneys fees to only $970 out of the claimant's past due
benefits.
Unfortunately, upon review of the award certificate, it
became apparent that Social Security miscomputed the Workers'
Compensation award and it was the award certificate that had to
be appealed, but this is not something that goes to the merits
of disability.
[g] Gary L. was a forty-two year old police officer who had
sustained serious injuries to both of his legs. However,
because of his age and vocational profile, skilled work and
education (a B.S.) this was not an easy claim for disability.
Gary alleged disability as of July 1995. He consulted us in
April of 1996, and we began collecting medical evidence at that
time. The filing of an application at that point in time would
have been premature in our view, as the claimant could quite
possibly have recovered within a year. The nature of his
condition was either that he was going to recover or probably
become worse.
By July of 1996, we determined that the claimant had not
yet recovered and we filed an application. The state agency
acted on this application in less than two months, issuing a
denial. Reconsideration was filed in November of 1996 after
reevaluating the case and obtaining more evidence to see if the
claimant still, in fact, was disabled. The denial was issued
within a month. We do not think the DDS dragged its feet. Nor
could we convincingly argue that in light of the vocational
issues in this case, DDS necessarily should have granted the
case. This was the type of case which should have gone on to
additional scrutiny to consider the impact of the limitations
on the claimant's vocational capacity.
The case went to the Office of Hearing and Appeals and
after a conference with a staff attorney, at which the
additional issues were explored in depth,\6\ benefits were
approved for Gary. The decision was dated January 17, 1997.
Gary's case was in the system for a total of six months. We do
not think Social Security in any way dragged its feet. The
claimant did have a severe condition, there was a question at
the outset of duration, and there was a very significant
vocational issue to be considered in this case. By the time the
case reached the hearing level, it became clear that the
claimant's condition approached, but did not meet the listings.
Additionally, it was very difficult getting information from
the claimant's treating physician. However, by the time the
case reached the Office of Hearing and Appeals, we did have the
necessary information from the treating physician, which
buttressed information from consultants, to whom both we and
the Social Security Administration had referred the claimant.
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\6\ This largely supports the observations by James Hill referring
to the success of the Senior Attorney program at the Office of Hearing
and Appeals, which permits experienced Senior attorneys to screen out
the obvious cases, and issue favorable decisions. Generally, these are
cases that should have been granted by the State Agency, had the law
been followed. (See Hill at page 8.)
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[h] The case file of Police Officer Daniel R. is an
instructive one on two counts. First of all, it shows how
quickly a case can go through the system. Second, it shows that
despite state agencies claims that they have far more medical
sophistication than an Administrative Law Judge, experience has
shown the opposite to be true. Dan was a forty-two year old
police officer who stopped working in January 1995 due to
cardiac symptoms. He suffered idiopathic cardiomyopathy with a
markedly depressed ejection fraction of 15%. This condition far
surpassed the criteria of the listings of impairments. Dan was
a very disabled man. Somehow, the fact that this man's
condition objectively met the listings escaped disability
examiners and state agency review physicians at the initial
level, and at the reconsideration level. Dan's disability claim
was filed on February 14, 1996. This was approximately a year
and a month after he had become disabled. He clearly had met
the duration requirement. Nonetheless, the state agency denied
his claim on June 4, 1996. Reconsideration was filed and was
denied on July 15, 1996, (within six weeks).
A hearing request was filed on July 23, 1996, and this case
was resolved by favorable decision on the record, as it should
have been, on September 20, 1996. Dan's case was in the system
for approximately seven months from application to hearing.
Again, although this claim probably should have been paid at
the time of the initial application, the appeals process worked
quickly enough so that one would be hard pressed to state that
the adjudication of this claim was unduly prolonged.
4. The Myth that ALJ's Are Not Medically Trained.
I take great issue with the insinuation by Debi Gardiner of
the National Organization of Disability Examiners to the effect
that ALJ's are not sufficiently grounded in the knowledge of
medically acceptable diagnostic techniques to make supportable
determinations, and instead exercise uncritical acceptance of
medical opinion. That is not, and has not been, my experience
over a twenty year career in which I have appeared before
approximately 150 different Administrative Law Judges from all
over the country. The statement that these judges are not
medically trained is at best preposterous, and amounts to
nothing more than judge bashing.
In the first instance, many of the hearings have medical
advisors present; \7\ second, some of the judges are
experienced trial attorneys and know as much medical evidence
as do doctors. If anything, the state agency examiners appear
to think they know more than do treating physicians.\8\ Thus on
three separate occasions within the same case, I recently had
to stop a local DDS examiner from trying to put one of my
clients with severe hypokinesia of the heart, and two prior
heart attacks, from taking an exercise stress test prohibited
by his treating physician. The problem is not that ALJ's don't
understand medical evidence, the problem is that disability
examiners begin to play doctor after they've been in the job
for a while and think they know more than the treating doctors
do. State agency doctors rarely do more than sign off on
perfunctory rationales prepared by examiners. Rarely does one
find a probing intelligent analysis by a DDS doctor in a
disability file.
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\7\ One commentator decried the fact that only 8% of ALJ favorable
decisions resulted from hearings with medical advisors. Of course, this
doesn't tell us how many denials resulted from the availability of a
medical advisor. Also, a number of commentators, particularly, Jane
Ross of the GAO, Carolyn Colvin of SSA, Judge Bernoski and Staff
Attorney Hill have reported that the DDS medical analyses were
routinely found to be poorly articulated, and lacking evidentiary
support or rationale.
\8\ Mr. Willman, apparently would give reports from treating
physicians no weight at all.
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5. Misplaced Concern Over Attorneys Fees.
A reading of the statements of Mr. Willman, and Mr. Jacks
of the disability examiner community, clearly indicates their
extreme displeasure with the attorneys role in the disability
process. Mr. Jacks suggests that Congress should ``deregulate
attorneys fees...SSA should not expend resources arranging or
collecting attorneys fees.'' This issue had been debated before
the Subcommittee last year, in connection with a similar
provision in the Senior Citizens Right to Work bill. That
provision was deleted by bi-partisan action in the Senate
Finance Committee where members of both parties unanimously
agreed that removal of the attorney fee collection mechanics
would effectively deprive most claimants of representation. We
need not revisit the debate here. We suggest that the
disability examiners would like nothing more than to see
claimants deprived of effective representation, which would,
undoubtedly, negatively effect the number of OHA reversals and,
as such, perhaps ``make the DDS folks look better.''
As to the notion that attorneys' fees are unjustified or
excessive, or that attorneys are ambulance chasing to bring in
Social Security cases, I must again tell you about real cases:
[i] My firm has represented Kurt H. since June 1, 1994. We
filed an application on his behalf and finally resolved the
matter on August 30, 1995, after going through three stages of
the process. The total attorney fee in this case for some
sixty-five hours of work on a file, approximately ten inches
thick, was $2,798.75, or about $46.64 per hour. I doubt you
could find an auto mechanic who would work for $46.64 per hour.
(Doing away with contingency fees, for a client such as Mr. H.,
would have precluded his ability to obtain any representation
whatsoever had he been required to pay an hourly rate on a pay-
as-you-go basis.)
[j] Roseanne G. was a forty-nine year old woman who had
worked as an electronics assembler and became disabled due to
an on-the-job back injury. We took the case in May of 1990. We
developed all available evidence and ultimately filed a claim
on behalf of the claimant. This claim was denied initially and
upon reconsideration, then by the Administrative Law Judge, and
then by the Appeals Council. However, it was reversed in
federal court. When all was said and done, we exerted 72 and a
half hours on administrative level services, including
extensive appeal and file development. The total fee on this
case was $3,705, or about $51.11per hour.
[k] Maria P. (our S96-0261) retained us in May of 1996. We
obtained a favorable result by December 24, 1996. We put in
approximately thirty-six hours on the case and our total fee
was $92.50. You read it right. The claimant was significantly
offset as a result of Workers' Compensation. Nonetheless,
although we realized this at the outset of the case, we still
accepted the case in order that the claimant's rights could be
protected.
As you might have gathered, we do not look to see how much
of an ultimate fee a case will pay, we look to the merits of
the case in deciding whether to represent the claimant.
6. Re-examination of the Role of an Attorney in the Disability
Process.
We interview a great many people. We only accept a small
portion of these prospective clients for representation in
Social Security Disability matters. (Maybe 20% of those we
interview.) We screen out most of the claims, not by
discouraging people from applying, but by suggesting
alternatives. So many people come to us who are fearful of
working because they might lose their Workers' Compensation,
yet they are not disabled enough for Social Security
Disability. We explain to them that New York has a reduced
earnings statute under Workers' Compensation which allows them
to work and still get partial Workers' Compensation for any
disparity in earnings. Others we refer to the State Division of
Vocational Rehabilitation. We take very seriously the
responsibility of supporting someone's notion and encouraging
someone's notion that they are in fact ``disabled.'' Much like
the members of the Subcommittee, we too believe that people who
can work should and that Social Security disability is an
extraordinary remedy for extraordinary circumstances. Along
with all of you, we are very concerned about clogging the
system with cases of dubious merit. It simply delays
disposition of the meritorious cases; moreover, it doesn't
bolster our credibility before the agency or before Congress.
One of the problems that plagues the disability process is
the apparent perception that the attorneys and the agency are
in an adversarial position to each other. It is a perception
which is more that of the agency, than the organized bar. It
causes great delay and other problems in administering the
program. From observations made at the oral hearing before the
Subcommittee, I gather that there are those on the subcommittee
who do not appreciate the role the bar can play to expedite the
disability process if only we would be permitted to do so. The
role of an attorney in the Social Security Disability process
should mirror what attorneys do in society. Think of your own
legal needs. Many of us consult attorneys as a preventative
measure, not for the purpose of litigation. We consult
attorneys for counsel, for advice, for help by preparing our
contracts and agreements, and for formulating our legislation.
We utilize attorneys in every facet of our lives, and
businesses, and yet most attorneys rarely, perhaps never, need
to see the inside of a court room.
I would suggest that the role of attorney in a Social
Security case should be first and foremost to investigate the
claim.
(1) An attorney should determine that it is a legally
viable claim. That does not necessarily mean that the claim is
a winner, but attorneys should screen out claims that don't
belong in the system--at least as a preliminary screening.
(2) In advising a claimant, the Social Security law is
complex. One needs to know issues such as Workers' Compensation
offset, tax consequences, insured status, what the effect would
be if the claimant chooses a later onset date than merely
trying to win benefits based on a date last worked (which may
not be supportable). The effect of Social Security benefits on
other benefits claimant may be receiving such as long-term
disability insurance or pensions, and issues such as taxability
or the effect of an SSD award on a matrimonial or an ADA
action.
These are complex legal questions, and it is unlikely that
any disability case manager will ever have the answers to these
types of questions. Certainly, most claimants cannot, at
present, get these answers from Social Security. Social
Security can certainly answer questions about Social Security,
but they cannot answer questions about the ramifications that a
Social Security Disability award has on other legal rights and
entitlements. These are legal questions requiring legal
knowledge of other areas of law. Did you know, for example,
that we have had to counsel to withdraw claims because of
taxable consequences would have exceeded the amount of the
award?
The attorneys role should be to help the claimant produce
the evidence and then to file an application--not to stuff
undocumented applications into an already overburdened system
and not to come in late in the game at the last minute to try
to resurrect a claim that could have been granted early on in
the process with similar intensity of effort. One of the
reasons that the system is bogged down is because there are
many applications filed which should never have been filed in
the first place. Social Security rushes people into filing
applications. Private carriers rush people into filing
applications. Doesn't anyone investigate these applications to
see if they are at least colorable claims? That should or could
be the role of the bar.
The key to all of this is a contingency fee system. If we
allow attorneys to be paid only when the claims are successful,
then the attorneys will have every incentive to thoroughly
develop the cases and to make sure ``clunkers'' don't get in
the system. If we stop putting false barriers in the way of
attorneys representing people at the initial application level,
and if process unification truly works, as it should, then you
would see more claimants getting paid on the application and
fewer claimants being paid at the Administrative Law Judge
level. One, there will be fewer claimants going to the hearing
level and, two, the claims that do need to go, will have
already been developed. Those claims will be the ones that rise
and fall in close legal questions or vocational issues,
extremely complex medical issues, and credibility issues.
Because we are bound by the ethical rules of conduct which
apply to all attorneys, we are duty bound to remove from the
system claims of doubtful veracity.
[l] For example, on October 8, 1996, we were retained by
Mr. Albert W. in connection with a possible claim for Social
Security Disability benefits. We began to represent Mr. W. and
based on the evidence that we were able to obtain, it appeared
that Mr. W had a viable claim. We, therefore, filed his
application. While that application was pending, we continued
to develop evidence which led us to conclude Mr. W. was not
disabled. Based on that evidence, we withdrew the claim for
disability.
The risk of developing the claim was ours, not SSA's, and
the responsibility for withdrawing the claim was also ours. SSA
didn't have to waste time adjudicating a claim that we withdrew
on the merits. We have withdrawn hundreds of claims, when the
facts did not support them, or we felt there was even a
suggestion of fraud on the claimant's part.\9\
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\9\ Our incentives for keeping fraudulent and dubious claims out of
the system should be obvious: (1) We are taxpayers and stakeholders in
the system too; (2) We are officers of the court and by implication the
agency, sworn to uphold the law; (3) We are subject to suspension by
SSA, censure and even disbarment; (4) An attorney is bound to avoid
even the appearance of impropriety; (5) Allowing phonies on to the
rolls makes it harder for the legitimately disabled people we
represent; (6) Promoting a fraudulent claim is a felony; (7) Our
interest is in promoting a stable disability system, as our own
livelihoods, in part, revolve around the stability of the system; and
(8) It is important for us to maintain our credibility before SSA and
the ALJs.
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7. The Danger of Closing the Record.
As we have discussed above, the evidentiary record
established by DDS offices for unrepresented claimant's is
usually scanty, often for reasons beyond the control of DDS. It
is often only the clout of an attorney or a judge that can
compel the doctors to produce records. Second the manner in
which SSA bounces files around from one component to another
also makes it difficult for evidentiary submission to reach the
person adjudicating the file. (Hopefully some of SSA's re-
engineering initiatives will deal with these problems. The re-
engineering model certainly recognizes and appreciates the
depth of the problems.) To close the record before the hearing
will essentially preclude most claimants from producing any
evidence at all, so they will have no option but to lose at the
hearing. Then they will file new claims, and the system will be
even more clogged than it is now, as Nancy Shor has observed in
her statement pages 4 & 5.
Another danger in closing the administrative record at any
time prior to the hearing level is that the claimant may
actually recover from the disability. If Administrative Law
Judges are restricted to a review of only the record available,
the DDS in such cases, they may be constrained to award ongoing
disability benefits rather than closed periods of benefits only
through the date of the claimant's recovery. If the record is
closed and additional evidence is not allowed in, it is
possible that Social Security will be paying on-going benefits
to many people whose claims should merely be closed periods.
One of the reasons that Social Security has such a terrible
backlog is that all components of the agency are too quick to
deny, rather than to determine that all the claimant is really
seeking is a closed period.
8. DDS Perspective is Biased.
Some of Social Security's re-engineering models suggested
the State DDS would be eliminated as part of the disability
process. Understandably, the DDS community is afraid their jobs
could be eliminated. As a result, they have made unprecedented
attacks upon all other components of the Social Security
process, particularly the judges and the claimants'
representatives. I do not believe they have given an accurate
depiction of what is wrong with the disability process, and
there is plenty wrong.
The problems start at the inception of the process. SSA's
re-engineering model recognizes this. The ALJ's recognize it.
Nancy Shor recognizes it. Even the DDS witnesses recognize it.
However, it is interesting that no representative of the
Disability Examiner community understands the grave legal
implications of an institutionalized non-acquiescence policy as
recently announced by SSA in one of its much touted recent
rulings. Debi Gardiner, of the National Association of
Disability Examiners, and Mr. Willman applaud SSA's ruling that
it will disregard Circuit Court decisions. This position
clearly backs up Judge Bernoski's (and my) assertion that State
Agencies routinely disregard the law.
The proposal for a Social Security Court seems to be
something supported by disability examiners, but by no one else
in the process. Why do we need to set up an expensive new
bureaucracy to do what Federal Courts have been doing well, and
inexpensively, for the last forty years?
As Nancy Shor stated, ``Given the wide variety of cases
they adjudicate, federal courts have a broad background against
which to measure the reasonableness of SSA's practices.''
The Social Security Bulletin's Annual Statistical
Supplement for 1996 establishes that in 1985 only 9076 new
Social Security cases were filed in federal courts at a time
when over 588,596 hearing requests were filed. This averages
out to 182 cases per each state.
This means that the total number of court cases amounted to
less than 2% of the total hearing load. That year, Federal
Courts decided 6867 cases of which only 673 were reversed,
(about 10%). If the notion of limiting Federal Court
jurisdiction is based on the premise that the Federal Courts
have too many SS cases and are reversing too many; such is
clearly not borne out by SSA's own statistics. Only a very
small number of cases are appealed into the Federal Courts, and
of that, even a much smaller number are reversed.
In 1996 there were 630,000 hearing dispositions. Comparing
673 Federal Court reversals to total administrative
dispositions shows that only about 1/100 Federal court cases
result in a reversals vis-a-vis total administrative
dispositions.
In summary
I agree with Judge Bernoski, that the extent to which there
are two different standards utilized between the DDS and the
ALJs, is a phenomenon of agency creation, in that the Social
Security Administration has permitted the State agencies to
disregard the law, and instead decide claims on the basis of
the POMS and other unpublished, and illegal guidelines. Like
other commentators, I do expect process unification training to
obviate this issue to a significant degree.
I also agree with Judge Bernoski that the ALJ's review
quite a different evidentiary record, because the state
agencies don't bother to develop the record and SSA basically
places obstacles in the ability of claimants to secure counsel
at the early stage. This sentiment was echoed in the statement
of Nancy Shor to the effect that: ``Very often the files that
claimants with denials from the reconsideration level coming to
our members show how little development was done at the initial
and reconsideration levels. Until this lack of development is
addressed, the correct adjudication of the claim cannot be
made. Claims are denied not because the evidence established
that the person is not disabled, but because the limited
evidence cannot establish that the person is disabled.... a
properly developed file is usually before the ALJ because the
claimant's counsel has obtained evidence or because the ALJ has
developed it.''
Judge Bernoski and James A. Hill and other commentators
including the DDS people are all correct when they point out
that the recent process unification initiative should help
narrow the gap between the ALJ allowances and state agency
adjudications, if, and only if, the state agencies follow the
unified standards.
Nancy Shor's statement that ``changes made at the 'front
end' of the process can have a significant, beneficial impact
throughout the hearings and appeals backlogs,'' also is
entirely correct and borne out not only by my personal twenty
years of experience, but also by the thrust behind the redesign
proposals--proposals which are receiving more resistance from
within SSA than from the outside. This is echoed in Mr. Hill's
observation that State Agencies fail to ``provide adequate
written explanation for the decisions'' and fail to
``adequately develop cases....''
Expediting the process may not require massive
reengineering, it may simply require SSA to use rules and
regulations which they've had for years but have steadfastly
ignored.
Encouraging representation at the earlier levels rather
than discouraging it, could significantly impact the backlog at
the hearing level, and help foreshorten the wait at the hearing
level. Clients will benefit by paying lower attorney fees, as
cases get resolved more quickly. Attorneys benefit because they
would have more rapid case turn around. Contrary to
conventional wisdom, we don't make more money as a case drags
on, we make less per each hour of additional work. Attorneys
are better off with high turnover and happy clients who refer
more clients, not with unhappy clients who waste the attorneys
time with incessant telephone calls about ``what's hap-
pening with my case'' and think the attorney, rather than the
system is delaying their cases. SSA would benefit by having
lower processing times, and having cases be reviewed that much
sooner. Some readers may take the position that I am merely
trying to bolster the employment of attorneys. In response to
that I argue:
1. My proposals result in lower attorneys fees for
claimants;
2. My proposals result in privatizing, at no cost to SSA,
much of the file development chores which are time consuming
and expensive;
3. My proposals would be unnecessary if the DDS did their
job.
4. I am for the following:
(a) discouraging premature claims that clog the system;
(b) screening out of cases of dubious merit;
(c) quicker resolution, by better development;
(d) providing the DDS with better and more complete
evidentiary records so that they can do their job of
adjudicating in a quality manner and concentrate on
adjudicating rather than chasing after evidence.
(e) paying the obviously meritorious claims as early in the
process as is possible.
In my own practice, I have (not without battling certain
obstructionists within the Social Security Administration and
Office of Disability Determinations) achieved these goals. I
believe they can be achieved nationwide without massive re-
engineering, threatening the jobs of state agency DDS
personnel; or unduly clogging the system with unnecessary
repeated re-applications for benefits. I firmly believe that if
all components to the disability process (SSA, DDS, OHA, and
the bar) concentrate on what they do best, and stop the back
stabbing, the entire process will function with the high degree
of efficiency that Congress envisions when it enacts Social
Security legislation.
Respectfully submitted,
Victor Fusco, Esq.
Mooney & Park
The Nathaniel Ropes Building
May 6, 1997
A. L. Singleton
Chief of Staff
Committee on Ways and Means
U.S. House of Representatives
1102 Longworth House Office Bldg.
Washington, D.C. 20515
Dear Sir:
I am responding to the invitation for public comment on the
following: The current status of OH&A workloads; their impact on
service to the public; Social Security's initiatives for addressing
those workloads, including how the system can be improved, and;
timeliness and consistency issues with respect to SSA disability
decisions. I am submitting these comments on my own behalf, the
statements do not necessarily represent the position of any of my
clients or other persons.
By way of background, I have been an attorney for 25 years, I
represented my first Social Security client in 1974 and have practiced
almost exclusively in the Social Security disability area for the last
7-8 years. I'd like to add that I am consistently impressed with the
competence, intelligence and dedication of the employees of the
government who process disability claims--if there is a problem it is
not due to ``lazy bureaucrats.''
The major focus of the hearings, apparently, is whether the current
hearing and appeals system makes sense. I believe with some fine
tuning, the existing system could be made to work much more efficiently
with the result that decisions could be made more quickly and
accurately, thus benefiting both claimants and the government.
The initial problem with the existing system is that, while there
are two separate methods of qualifying for disability benefits, Social
Security only uses one of those two methods at the application and
reconsideration levels. The two methods of qualifying for Social
Security disability are: 1) establishing the individual has a physical
or emotional impairment that is so severe that it has been ``listed''
by Social Security as automatically qualifying an individual for
benefits. The Social Security regulations contain numerous such
``listed'' impairments. Assuming an individual does not meet a
``listing'' then, 2) they must demonstrate that the limitations caused
by their emotional and physical impairments, either separately or in
combination, make it impossible to do their former work or any other
work.
As may be obvious, if only one of two methods of qualifying for
disability benefits is considered at the application level and at the
reconsideration level (the first level of appeal) then many claims that
otherwise would be granted are denied. Thus, the first change to the
existing system that should be adopted would be to instruct the
decisional apparatus at the application and reconsideration levels to
consider whether an individual qualifies under the second method of
establishing disability and to provide adequate training and support so
that they are knowledgeable as to how to apply that second standard.
The second recommendation for modifying the current system would be
to simply eliminate the reconsideration level. In my experience this is
basically a useless step which results in precisely the same decision
being made for precisely the same reasons by the same people who denied
the initial claim. All it really does is slow the process up.
The third recommendation for making the first two steps of the
process more efficient would be to require the individuals preparing
the decision on the initial application to actually describe to the
applicant's treating physicians what the Social Security standard for
that particular disability is. For instance, if an individual has a
severe heart impairment, Social Security now asks for the treating
physician's records. Remarkably, however, Social Security will not send
the doctor its definition (its ``listing'') of when a heart impairment
is bad enough to qualify for benefits or ask the doctor whether his
patient satisfies that definition. Thus, on the key issue of whether an
individual satisfies Social Security's disability standard for heart
conditions, the one physician in the best position to provide an
accurate answer, the patient's treating physician, is never asked that
question. Instead, his records are sent to Social Security doctors who
have never met the patient, and have no familiarity with his long-term
history, and those individuals, based purely on a review of paperwork,
determine whether or not the standard has been met.
When claimants visit my office for representation, one of the first
things I do is send a copy of the listings for their particular medical
condition and ask the doctor whether his patient satisfies that
condition. I then forward that response to Social Security Judge
assigned to the case who is often persuaded by the treating doctor's
rationale for concluding the patient does satisfy the listing standard
and grants benefits. Why should the claimant have to hire an attorney
to seek this important information and why couldn't this information be
obtained by Social Security at the early stages of the claim thus
avoiding the one year delay in granting benefits while the case is
appealed and then pends at the ALJ level for a decision?
Neither of the above two changes are radical and could be adopted
with much less effort than the various wholesale proposals currently
under consideration. They would also do much to bring a prompt
resolution of the claim and, if an appeal to an ALJ follows, these
changes would do much to bring down the reversal rate by ALJ's which,
as described, is in significant part a result of the ALJ having more
relevant evidence as well as being able to use the second method of
granting disability benefits.
When assessing the current system's efficiency, please remember
that the various recent changes in the disability law are causing
hundreds of thousands of claims to be re-decided e.g.: the new
regulations for children's claims and drug and alcohol claims means
that all of those cases which were decided in the past must now be re-
decided. In addition, the new disability standards must be mastered.
This will inevitably cause delay but it would not be appropriate to
fault the system for this.
With regard to the suggestion that the ALJ hearing itself be
modified in some fashion, I would strongly oppose that. Just as the
expression ``A picture is worth a thousand words,'' is commonly
recognized as true, a personal appearance is worth ``a thousand
pictures.'' That is, when a claimant actually appears before an ALJ, it
is the first time in the 1-2 year history of a claim that anyone in a
position of deciding the claim actually has seen the claimant. Such in-
person experience in extremely educational. A medical record cannot
convey any of the following:
The fact that a 40 year old looks 85.
The fact that a claimant has great difficulty
understanding even basic questions and cannot recall simple facts,
including his birthdate.
How severe the personal experience of pain is for an
individual claimant.
How humiliating it is for a claimant to have to apply for
disability after years of self-sufficiency and self-support.
All of these and thousand of others bits of information are
presented directly, and indirectly, by a personal appearance at an ALJ
hearing. In addition, the claimant has the opportunity to have a
dialogue with the ALJ, to answer his or her questions, to explain
inconsistencies in the record, to describe details of his condition
that have escaped the evaluations done by Social Security doctors in
their 15 minute, one-shot consultative exams. Because it is a dynamic
process with much give and take, the ALJ hearing is the best method of
gathering evidence, processing that evidence, learning about the
claimant as an individual, and understanding the dimensions of his or
her physical and mental impairments. Therefore, the ALJ hearing should
be preserved in its entirety.
Unlike many of my colleagues I am not a strong believer in the
Appeals Council as a source of review of ALJ decisions. Currently, it
takes the Appeals Council 18 months to review claims and virtually
every appeal I have made in the last two years has been denied anyhow.
Given the enormous delay and the fact that, at this point, the Appeals
Council is simply rubber stamping its approval of all ALJ denials
without any critical review, it would seem that this method of review
could be eliminated without any denial of fairness to claimants.
Also, unlike some of my colleagues, I would strongly support the
establishment of a Social Security Court to review decisions. This is
currently being done in the veterans' disability area and I have
practiced before the Court of Veterans Appeals on numerous occasions.
The contrast between appealing a VA disability case to COVA and
appealing a Social Security case to District Court or to a Circuit
Court is striking. The COVA Judges and staff are extremely well
informed as to the law, it's nuances and precedents, and have a global
view of how the system should work. District Court Judges and Circuit
Court of Appeals Judges are, by and large, entirely uninformed and
uninterested in Social Security and are entirely unenthused about
hearing ``yet another'' Social Security Disability claim. I do not
believe the current federal court system provides meaningful review of
Social Security decisions and, therefore, would actively support its
abolishment and replacement by a specialized review court hearing only
Social Security claims. Such a court would have to be adequately
staffed, however, to handle the sizeable workload that would be
expected. Otherwise the change would be meaningless.
It would also be a mistake to close the record to new medical
evidence prior to the ALJ level. The result of this will simply be
numerous re-applications, as the ALJ's decision will not be based on
all of the medical evidence. The proposal that new evidence would
trigger a remand from the ALJ for consideration by the initial
reconsideration staff is similarly flawed. It would cause enormous
delay as the file bounced back and forth between the lower level and
the ALJ level. A similar system is currently used by the VA and is a
constant barrier to reaching a prompt final decision (which frequently
takes 4-6 years).
With regard to the proposal for own motion review of favorable ALJ
decisions, this can only produce cynicism about the decisional process.
If accurate decisions are the goal of the change, then review of
unfavorable decisions should be mandatory. Otherwise, the obvious
message to claimants is that they are playing with a deck stacked to
increase their odds of losing.
Thank you for taking the time to consider these comments. I will be
happy to provide any additional information deemed relevant.
Sincerely yours,
Michael J. Mooney
MJM/jrr
CC: Congressman Robert J. Portman
Nancy Shor
Statement of Larry Jacks, Division Leader, Public Employees Federation,
Office of Disability Determinations
The Social Security Disability Program
Sensible Solutions to Restoring Program Intent
While understanding Congressional reluctance to micro-
manage a huge Federal agency such as the Social Security
Administration (SSA), we are very appreciative of recent
Congressional interest and efforts to restore efficiency and to
maintain the integrity of the Disability Program.
Everyone agrees that the present processing time at the
Office of Hearings and Appeals (OHA) is unacceptable. Short
term initiatives have reduced the OHA backlog from 547,690 at
the end of FY 1995 to 503,481 at the close of FY 1996, but this
is still far in excess of the 172,756 cases pending at OHA as
recently as 1990. Most of the reduction was achieved by
reallocating experienced SSA personnel, in effect robbing Peter
to pay Paul, rather than a true long term solution.
SSA has had a Re-Design plan since 1994. We agree with many
of its goals, but unfortunately many elements of the Plan have
had very limited value. The Re-Design has the following current
priorities:
1. Adjudication Officer (AO).
2. Single Decision Maker (SDM).
3. Full Process Model (FPM).
4. Disability Claims Manager (DCM).
5. Process Unification.
6. Quality Assurance.
7. Simplified Disability Methodology.
8. Computer Systems Development.
SSA recently decided to expand the number of AO's even
though it concedes that the expected production levels have
never materialized and probably never will. The SDM and FPM are
precursors to the DCM position that is the cornerstone of the
Re-Design Plan. SSA has persistently ignored concerns from SSA
employees, DDS's, and its own Advisory Council Members, that
the DCM is too grandiose to be workable.
The ``Simplified Disability Methodology'' has shown very
little progress. This is not surprising because ``simplifying''
increasingly complicated fields like law and medicine will
never be easy.
SSA has tried to achieve some measure of Process
Unification, and had national training for both OHA and DDS
personnel. This was a useful introductory step, but does not
seem to have had any dramatic effect on either level. At some
of the sessions, ALJ's announced that they had no intention of
following SSA's recommendations regarding assessment of
Residual Functional Capacity, weighing evidence, and paying
careful attention to medical analyses provided by Review
Physicians at the DDS. These ALJ's were adamant and insisted
they would follow court interpretations and holdings rather
than be bound by SSA's nationwide policy.
SSA would like to include in-line as well as end of line
reviews in its Quality Assurance process, but has not piloted
this in any efficient way. We remain concerned that under the
Re-design Plan, SSA will not automatically return deficient
cases and erroneous decisions for corrective action. Instead,
it will simply tabulate the data for training purposes. We
strongly object to any agency knowingly implementing incorrect
decisions.
Re-Design also suffers from changing management. The four
principal officials responsible for the Re-Design have now left
SSA. The new Director of Re-design candidly admitted that she
had little experience with Re-Design, and was unfamiliar with
its particulars. A project of this scope requires consistent
leadership.
We need to look beyond the Re-Design plan of SSA and
envision what sensible changes are required. It was never
Congress's intent that 85% of claimants at the OHA level would
need attorney representation, or that the process would be so
delayed and expensive to both claimants and taxpayers, or that
two inconsistent standards of adjudication would be allowed to
evolve. There are steps we can take that will get the Program
back on track and keep it there:
Create a Social Security Court to provide uniform
review of SSA decisions and consistent interpretations of
regulations, replacing the current system of 89 Federal
District Courts and 13 Circuit Courts each issuing disparate
decisions.
Revise the Administrative Procedure's Act to give
SSA the requisite authority to manage the OHA's, including an
effective quality assurance system for ALJ's. This was
highlighted in GAO report GAO/HE'S 96-87.
Clarify the adjudicative weight given objective
evidence vs. subjective elements such as allegations, treating
source opinions. This would help achieve authentic Process
Unification between the DDS's and ALJ's.
Congress should provide a uniform standard for
reviewing decisions. A legislated ``preponderance of the
evidence'' standard would help ensure uniform decisions at all
levels.
SSA and OHA must address the lack of input by
program trained physicians at the OHA level and the lack of
medical training for ALJ's.
SSA should better identify optimum caseloads for
DDS examiners and ensure that necessary resources are available
to DDS administrators.
Close the case file after DDS actions are
completed, unless there is good cause for late submission of
these reports. This should decrease the incidence of
individuals withholding relevant medical evidence which causes
further backlogs at OHA.
Remand targeted OHA cases to DDS's.
Deregulate attorney's fees for disability
representation. SSA should not expend resources arranging or
collecting attorney fees.
In the event that these steps are insufficient, or
meet with excessive resistance, we recommend that the Committee
revisit the testimony of former Social Security Commissioner
Lou Enoff (8/3/95), in which he recommended placing the initial
decision and the hearing decision within the DDS with the use
of an ombudsman to safeguard the applicants. This would combine
more consistent and timely decisions with protection for the
claimants.