[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



                       SOCIAL SECURITY'S IMPROVED
                    DISABILITY DETERMINATION PROCESS

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                 of the

                      COMMITTEE ON WAYS AND MEANS
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 15, 2006

                               __________

                           Serial No. 109-81

                               __________

         Printed for the use of the Committee on Ways and Means




















                    U.S. GOVERNMENT PRINTING OFFICE

30-449 PDF                  WASHINGTON : 2006
------------------------------------------------------------------
For sale by Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax:  (202) 512-2250. Mail:  Stop SSOP, 
Washington, DC 20402-0001















                      COMMITTEE ON WAYS AND MEANS

                   BILL THOMAS, California, Chairman

E. CLAY SHAW, JR., Florida           CHARLES B. RANGEL, New York
NANCY L. JOHNSON, Connecticut        FORTNEY PETE STARK, California
WALLY HERGER, California             SANDER M. LEVIN, Michigan
JIM MCCRERY, Louisiana               BENJAMIN L. CARDIN, Maryland
DAVE CAMP, Michigan                  JIM MCDERMOTT, Washington
JIM RAMSTAD, Minnesota               JOHN LEWIS, Georgia
JIM NUSSLE, Iowa                     RICHARD E. NEAL, Massachusetts
SAM JOHNSON, Texas                   MICHAEL R. MCNULTY, New York
PHIL ENGLISH, Pennsylvania           WILLIAM J. JEFFERSON, Louisiana
J.D. HAYWORTH, Arizona               JOHN S. TANNER, Tennessee
JERRY WELLER, Illinois               XAVIER BECERRA, California
KENNY C. HULSHOF, Missouri           LLOYD DOGGETT, Texas
RON LEWIS, Kentucky                  EARL POMEROY, North Dakota
MARK FOLEY, Florida                  STEPHANIE TUBBS JONES, Ohio
KEVIN BRADY, Texas                   MIKE THOMPSON, California
THOMAS M. REYNOLDS, New York         JOHN B. LARSON, Connecticut
PAUL RYAN, Wisconsin                 RAHM EMANUEL, Illinois
ERIC CANTOR, Virginia
JOHN LINDER, Georgia
BOB BEAUPREZ, Colorado
MELISSA A. HART, Pennsylvania
CHRIS CHOCOLA, Indiana
DEVIN NUNES, California

                    Allison H. Giles, Chief of Staff

                  Janice Mays, Minority Chief Counsel

                                 ______

                    SUBCOMMITTEE ON SOCIAL SECURITY

                    JIM MCCRERY, Louisiana, Chairman

E. CLAY SHAW JR., Florida            SANDER M. LEVIN, Michigan
SAM JOHNSON, Texas                   EARL POMEROY, North Dakota
J.D. HAYWORTH, Arizona               XAVIER BECERRA, California
KENNY C. HULSHOF, Missouri           STEPHANIE TUBBS JONES, Ohio
RON LEWIS, Kentucky                  RICHARD E. NEAL, Massachusetts
KEVIN BRADY, Texas
PAUL RYAN, Wisconsin

Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public 
hearing records of the Committee on Ways and Means are also published 
in electronic form. The printed hearing record remains the official 
version. Because electronic submissions are used to prepare both 
printed and electronic versions of the hearing record, the process of 
converting between various electronic formats may introduce 
unintentional errors or omissions. Such occurrences are inherent in the 
current publication process and should diminish as the process is 
further refined.














                            C O N T E N T S

                               __________

                                                                   Page

Advisory of June 7, 2006 announcing the hearing..................     2

                               WITNESSES

Social Security Administration, Hon. Jo Anne B. Barnhart, 
  Commissioner...................................................     5

                                 ______

Association of Administrative Law Judges, Inc., Judge Ronald G. 
  Bernoski.......................................................    77
Consortium for Citizens with Disabilities, Marty Ford............    44
Federal Bar Association, Gary Flack..............................    81
National Council of Social Security Field Operations Locals, 
  Wiltold Skwierczynski..........................................    62
National Organization of Social Security Claimants' 
  Representatives, Sarah H. Bohr.................................    52
National Treasury Employees Union, James Hill....................    70
U.S. Government Accountability Office, Robert E. Robertson, 
  Director, Education, Workforce, and Income Security Issues.....    28

                       SUBMISSIONS FOR THE RECORD

Social Security Disability Coalition, Rochester, NY, Linda 
  Fullerton, statement...........................................    91
Tucker, Earl, statement..........................................   104
Union of American Physicians and Dentists, Richard C. Dann, 
  statement......................................................   107






 
                       SOCIAL SECURITY'S IMPROVED

                    DISABILITY DETERMINATION PROCESS

                              ----------                              


                        THURSDAY, JUNE 15, 2006

             U.S. House of Representatives,
                       Committee on Ways and Means,
                           Subcommittee on Social Security,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 11:04 a.m., in 
room B-318, Rayburn House Office Building, Hon. Jim McCrery 
(Chairman of the Subcommittee) presiding.
    [The advisory announcing the hearing follows:]

ADVISORY

FROM THE 
COMMITTEE
 ON WAYS 
AND 
MEANS

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                                CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
June 07, 2006
No. SS-16

             McCrery Announces Hearing on Social Security's

               Improved Disability Determination Process

    Congressman Jim McCrery, (R-LA), Chairman, Subcommittee on Social 
Security of the Committee on Ways and Means, today announced that the 
Subcommittee will hold a hearing on the Social Security Administration 
(SSA)'s improved disability determination process. The hearing will 
take place on Thursday, June 15, 2006, in room B-318 Rayburn House 
Office Building, beginning at 11:00 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 SSA administers two Federal disability programs: Disability 
Insurance (DI), and Supplemental Security Income (SSI). The DI program 
provides benefits to disabled workers and their families based on 
previous employment covered by Social Security, and is funded primarily 
with Social Security payroll taxes. The SSI program is a means-tested 
income assistance program funded with general revenues.
      
    Workloads from these two programs have placed increasing demands on 
the agency. The DI and SSI applications to Federally-funded State 
Disability Determination Service agencies for a decision have increased 
22 percent over the past five years, from 2.1 million in Fiscal Year 
(FY) 2000 to 2.55 million in FY 2005. Despite the increased workloads, 
the SSA has increased its productivity by 12.6 percent since 2001. 
However, the rapid rise in applications, coupled with budgetary 
constraints, have resulted in longer processing times for cases heard 
by Administrative Law Judges--from 415 days in FY 2005 to 477 days in 
April 2006. The number of hearing requests waiting for a decision has 
increased from about 708,000 in FY 2005 to 727,629 in April 2006, and 
the Agency expects this number to rise to 767,000 in FY 2007.
      
    The Commissioner of Social Security, Jo Anne B. Barnhart, undertook 
a comprehensive initiative to evaluate and implement substantive 
process reforms to the disability determination process. These process 
improvements are built upon the SSA's new electronic disability folder 
system, which is being implemented on a phased-in basis. As the 
Commissioner has stated in previous testimony, her goal for the reforms 
has been to have the right decision made as early as possible in the 
process.
      
    The Subcommittee has closely monitored the progress of this 
initiative since the Commissioner announced her intent to move forward 
at a Subcommittee hearing in September 2003. After extensive 
consultation with key stakeholders, including two Subcommittee 
hearings, the SSA published its final rule on March 31, 2006. The final 
rule will be phased in beginning August 1, 2006. In sum, the Disability 
Service Improvement rule (DSI) requires quick decisions (in 20 days or 
less) for individuals with clear-cut disabilities; improves medical and 
vocational expert access and qualifications; and creates a new 
position, the Federal Reviewing Official, to review State agency 
determinations upon the request of the claimant. The reconsideration 
step of the current appeals process is eliminated. The DSI also 
implements a new quality assurance process at every decision-making 
level. A description of the key components of the final rule may be 
found on the SSA's website at: http://www.ssa.gov/disability-new-
approach/.
      
    In announcing the hearing, Chairman McCrery stated, ``I commend the 
Commissioner of Social Security and the dedicated employees of the 
Agency for initiating service improvements to the disability 
determination process. Now the hard work of implementation begins. I 
look forward to learning how the public's comments were incorporated 
into the final regulation and hearing how best to transform the 
regulation into action.''
      

FOCUS OF THE HEARING:

      
    The Subcommittee will examine the SSA's final regulation, including 
how the Agency addressed public comments in developing its final rule 
and how implementation will proceed.
      

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

      
    Please Note: Any person(s) and/or organization(s) wishing to submit 
for the hearing record must follow the appropriate link on the hearing 
page of the Committee website and complete the informational forms. 
From the Committee homepage, http://waysandmeans.house.gov, select 
``109th Congress'' from the menu entitled, ``Hearing Archives'' (http:/
/waysandmeans.house.gov/Hearings.asp?congress=17). Select the hearing 
for which you would like to submit, and click on the link entitled, 
``Click here to provide a submission for the record.'' Once you have 
followed the online instructions, completing all informational forms 
and clicking ``submit'' on the final page, an email will be sent to the 
address which you supply confirming your interest in providing a 
submission for the record. You MUST REPLY to the email and ATTACH your 
submission as a Word or WordPerfect document, in compliance with the 
formatting requirements listed below, by close of business Thursday, 
June 29, 2006. Finally, please note that due to the change in House 
mail policy, the U.S. Capitol Police will refuse sealed-package 
deliveries to all House Office Buildings. For questions, or if you 
encounter technical problems, please call (202) 225-1721.
      

FORMATTING REQUIREMENTS:

      
    The Committee relies on electronic submissions for printing the 
official hearing record. As always, submissions will be included in the 
record according to the discretion of the Committee. The Committee will 
not alter the content of your submission, but we reserve the right to 
format it according to our guidelines. Any submission provided to the 
Committee by a witness, any supplementary materials submitted for the 
printed record, and any written comments in response to a request for 
written comments must conform to the guidelines listed below. Any 
submission or supplementary item not in compliance with these 
guidelines will not be printed, but will be maintained in the Committee 
files for review and use by the Committee.
      
    1. All submissions and supplementary materials must be provided in 
Word or WordPerfect format and MUST NOT exceed a total of 10 pages, 
including attachments. Witnesses and submitters are advised that the 
Committee relies on electronic submissions for printing the official 
hearing record.
      
    2. Copies of whole documents submitted as exhibit material will not 
be accepted for printing. Instead, exhibit material should be 
referenced and quoted or paraphrased. All exhibit material not meeting 
these specifications will be maintained in the Committee files for 
review and use by the Committee.
      
    3. All submissions must include a list of all clients, persons, 
and/or organizations on whose behalf the witness appears. A 
supplemental sheet must accompany each submission listing the name, 
company, address, telephone and fax numbers of each witness.
      
    Note: All Committee advisories and news releases are available on 
the World Wide Web at http://waysandmeans.house.gov.
      
    The Committee seeks to make its facilities accessible to persons 
with disabilities. If you are in need of special accommodations, please 
call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four 
business days notice is requested). Questions with regard to special 
accommodation needs in general (including availability of Committee 
materials in alternative formats) may be directed to the Committee as 
noted above.

                                 

    Chairman MCCRERY. The hearing will come to order. Good 
morning.
    Welcome, everyone, to our hearing on the Social Security 
Administration's (SSA) improved disability determination 
process.
    We last focused on these issues at a joint hearing in 
September where Members of both this Subcommittee along with 
the Human Resources Subcommittee provided their feedback to the 
Commissioner regarding the proposed rule to improve the 
disability determination and appeals process.
    Members from both sides of the aisle praised the 
Commissioner and the employees of the SSA for their continued, 
focused, and collaborative efforts to improve service delivery 
to those with disabilities.
    Concerns were also raised, though, that the proposed 
changes to the system could make what is currently a non-
adversarial administrative process into one that is more 
legalistic and burdensome for very vulnerable claimants.
    In March of this year, another milestone was achieved when 
the final rule was published, but perhaps the most important 
milestone is just a few weeks away, when the Agency begins 
implementing the rule on August 1st in the Boston region. Then 
we will start determining whether the changes achieve the 
desired effect, enabling the right decision to be made as early 
as possible in the process.
    As implementation moves forward, we all know the stakes are 
high, as disability benefits provide a crucial safety net for 
those most in need.
    Commissioner Barnhart has said she is committed to making 
sure that the implementation proceeds carefully so that all 
claims are handled fairly and responsibly.
    Today, we will learn how the Commissioner and her staff 
plan to carry out that commitment.
    Following the Commissioner, our second panel will provide 
their views on the implementation and what we and the 
Commissioner need to be mindful of as the reforms proceed and 
expand beyond the Boston region.
    Mr. Levin, would you like to make an opening statement?
    Mr. LEVIN. Thank you very much, and I'm really very, very 
glad we're having this hearing.
    You mentioned the importance of this matter for our 
society, the importance of this program for the disabled. This 
affects all of us.
    I'm glad that we're having the Commissioner here and a 
broad range of people and viewpoints on the panel. I don't 
think we have anything to fear from a diversity of points of 
view.
    In fact, I think we have a lot to gain from it, and 
hopefully it will all meld into an improved program, Disability 
Service Improvement (DSI).
    Obviously, no regulation can spell out all the details and 
anticipate every circumstance, no matter how well they're put 
together, and the implementation obviously can make or break an 
initiative like this one.
    I think there was widespread feeling about the importance 
of improving the disability process. I think we would all 
agree.
    When we look back at the work of our offices, many, many 
times our offices, especially at home, were contacted because 
of issues relating to disability, and we know that changes were 
necessary. We also thought that some aspects of the proposed 
regulation had some real potential, but there were concerns of 
others.
    So, people got their heads together, and not always 
together, but in the same room, to talk about this, and we 
appreciate the effort of you, the Commissioner, and everybody 
who is here today.
    We also appreciate the important role that SSA employees 
and beneficiary representatives have played in helping to 
understand this regulation and the challenges ahead, and if I 
might just add briefly, I think that we very much agree that we 
need in the Congress to do our part to make sure there's 
adequate funding, because no matter how well a regulation is 
put together or its implementation is brought about, there's 
going to have to be adequate funding.
    We're going today to go into the details of the regulation. 
One last word. An essential part of implementation is careful 
monitoring, and I understand, Commissioner, that you're going 
to track the results to assure that disability claimants are 
not harmed, but indeed their needs are looked after, and that 
there are no unintended results occurring from this and that 
the changes are going to have the desired effect. I'm sure that 
you are going to have--continue to have--excellent oversight 
that you have made sure happens.
    We look forward to your testimony, and then the testimony 
of seven or eight--six or seven--people who are going to join 
us.
    Chairman MCCRERY. Thank you, Mr. Levin.
    Any other Members wishing to make an opening statement may 
present those in writing and they'll be included in the record.
    We do have a rather full second panel, so let's proceed 
with Commissioner Barnhart. Welcome once again, and thank you 
again for the work you've done on this subject and for 
listening to our concerns throughout the rulemaking process.
    You may summarize your remarks in about 5 minutes, and then 
if you would, take our questions.
    You may proceed.

STATEMENT OF THE HONORABLE JO ANNE B. BARNHART, COMMISSIONER OF 
        SOCIAL SECURITY, SOCIAL SECURITY ADMINISTRATION

    Ms. BARNHART. Thank you, Mr. Chairman, Mr. Levin, and 
Members of the Subcommittee.
    I'm always pleased to appear before you, but today I'm 
especially happy to be here, because I'm here to report that 
after 3 years of incredible effort and cooperation, our new 
disability determination process is a reality.
    For the first time in 50 years, we're making significant 
changes to the SSA's disability determination process, changes 
that substantially increase our ability to make accurate 
decisions in a timely way, and that means better service to the 
American people.
    My written statement outlines the elements of the new 
process and goes into it in a great bit of detail, but in the 
interests of time, I'm going to concentrate on how we got to 
this point.
    As you know, it has been a long journey, and this 
Subcommittee has played an important role in this achievement. 
So, have many others within and outside SSA, and I want to 
thank you and everyone who participated, many of them here in 
this room, from the bottom of my heart.
    I'm sure you know that there were people who told us that 
it would be impossible to make major comprehensive changes to 
the disability determination process, but we have done it, and 
we have succeeded because groups involved at every step in the 
disability process came together in a spirit of cooperation and 
professionalism.
    Throughout this process, there was no finer example of that 
spirit than Eileen Sweeney. Sadly, Eileen passed away just a 
few days ago.
    As this Committee well knows, Eileen was a tireless and 
talented advocate for America's most vulnerable, and we will 
all miss her insight, her expertise, and most of all, her 
humanity.
    When I announced my new approach, I began a massive 
outreach effort to obtain and give thoughtful consideration to 
all comments on the current disability system and on our 
proposed improvements. I've acted upon my commitment to listen 
to you, to the interested parties and groups in both the 
government and the private sectors, and to the claimants and 
beneficiaries who rely on us to provide the best possible 
service.
    During the official comment period on the Notice of 
Proposed Rulemaking (NPRM) alone, we received almost 900 
comments, 883 to be precise. At the hearing last September on 
the proposed rule, Members of this Committee urged me to 
carefully consider the issues that were raised and the 
comments.
    I want you to know, Mr. Chairman, that I personally read 
many of the comments in full myself, and I worked with my 
senior staff to review and discuss all of the comments.
    We listened and we made changes in response. As a result, I 
believe the disability determination process that we will be 
implementing in our Boston Region on August 1st is both 
different and better than the original blueprint that I 
discussed with you on July 24, 2003, and the process that was 
outlined in the NPRM last July.
    We were aware that many commenters perceived our proposed 
rule as favoring administrative efficiency over fairness, 
especially with regard to timeframes for submitting evidence 
before a hearing. When I testified last fall, this Subcommittee 
articulated those same concerns, as the Chairman pointed out.
    I want to assure you that that was not our intent. I trust 
that was made clear by the substantive changes that we made in 
the final regulation.
    Specifically, we addressed the concerns about giving 
claimants sufficient time to submit evidence in three ways.
    First, we give claimants at least 75 days notice before a 
hearing instead of the 45 days provided for in the NPRM.
    Second, the final rule allows claimants to submit evidence 
up to five business days before the hearing instead of the 20 
days in the proposed rule.
    Finally, we expanded the range of circumstances in which an 
administrative law judge (ALJ) will accept evidence that does 
not meet the five-day deadline.
    Mr. Chairman, as I look back over the long road to the 
changes that we will begin implementing in just a few weeks, 
and I reflect on the spirit of cooperation, professionalism, 
and dedication to serving the public that has really permeated 
this entire process and been demonstrated by the men and women 
of Social Security, our Disability Determination Service (DDS) 
agencies, advocacy groups, and Members of Congress, I'm 
absolutely convinced we can make this happen. I am also 
convinced that the American public will benefit greatly.
    I assure you that we will continue the dialog that has 
served this process so well, because this is not just about 
getting it done, it's about getting it done right.
    You have my assurance that we're doing all that we can to 
make sure that we implement in an orderly and timely manner. In 
typical fashion, the hardworking men and women of SSA and our 
DDSs have pulled together and they're doing everything that 
must be done for us to move forward.
    In closing, I want to publicly thank you again for your 
advice, insight, and support that have meant a great deal to 
the Agency and to me personally. I know that we can count on 
your continued support and advice as we make DSI a reality.
    Thank you, Mr. Chairman. I'll be happy to try and answer 
any questions that the Members might have.
    [The prepared statement of Ms. Barnhart follows:]
 Statement of The Honorable Jo Anne B. Barnhart, Commissioner, Social 
                        Security Administration
    Mr. Chairman, Mr. Levin, and Members of the Subcommittee,
    I am always delighted to appear before you, but today I am 
especially pleased to be here. Today, I am here to report that, after 
three years of incredible effort and cooperation, our new disability 
determination process is a reality. For the first time in 50 years, we 
are making significant changes to the Social Security Administration's 
(SSA) disability determination process--changes that substantially 
increase our ability to make accurate disability decisions in a timely 
way. And that means better service to the American public.
    I will outline the elements in the new process in a few moments, 
but first I want to take this opportunity to talk about how we got to 
this point. It has been a long journey, and the members of this 
subcommittee have shared with me the journey toward this achievement. 
And so have many others within and outside SSA. And I want to thank you 
and everyone who participated from the bottom of my heart.
    When I became Commissioner in 2001, I said that I did not take this 
job to manage the status quo, and nowhere was the need for change more 
clear than in the disability process. I'm sure you know that there were 
people who told us that it would be impossible to make major, 
comprehensive changes to the disability determination process. But we 
have, and we have succeeded because groups involved at every step in 
the disability process came together in a spirit of cooperation and 
professionalism. We succeeded because of that spirit of cooperation, 
openness, and constructive dialogue that I have seen in the 
conversations we've had with people involved at every stage of the 
process.
    As you know, when I announced my new approach, I began a massive 
outreach effort to obtain and give thoughtful consideration to all 
comments on the current disability system and on our proposed 
improvements. I have acted upon my commitment to listen to you, to the 
interested parties and groups in both the government and private 
sector, and to the claimants and beneficiaries who rely on us to 
provide the best possible service.
    I personally participated in more than 100 meetings with more than 
60 groups involved in the disability process--inside and outside of 
SSA. My staff conducted even more meetings and we received more than 
1000 comments and recommendations over the Internet alone. I was very 
impressed with the spirit of cooperation and professionalism that these 
groups brought to our discussion.
    When we published the proposed rule, I did not expect agreement on 
every element of the approach outlined in the NPRM. However, I hoped 
for--and got--a continuation of the same spirit that we saw in the 
initial outreach period.
    During the comment period, SSA received almost 900 comments. At the 
hearing last September on the NPRM, members of this Subcommittee urged 
me to consider carefully the issues that were being raised in the 
comments. I want you to know that I personally read many of these 
comments in full and worked with my senior staff to review and discuss 
all of them.
    We listened and made changes in response. The disability 
determination process that we will begin implementing in our Boston 
Region on August 1 is both different and better than the original 
blueprint I first discussed with you on July 24, 2003, and the process 
outlined in the Notice of Proposed Rulemaking we published in July 
2005.
    In drafting the final rule, we were aware that many commenters 
perceived our proposed rule as favoring administrative efficiency over 
fairness--especially in regard to timeframes for submitting evidence 
before a hearing. When I testified before this Subcommittee last fall, 
members of the Subcommittee articulated these same concerns. Let me 
assure you that was not our intent. The new approach spelled out in the 
final rule contains many changes which underscore my commitment to an 
open, inclusive dialogue in the true meaning of the word dialogue--
which includes listening.
    We addressed the concerns about giving claimants sufficient time to 
submit evidence in three ways. First, we will give claimants at least 
75 days notice before a hearing instead of the 45 days proposed in the 
NPRM. This will allow claimants and their representatives enough time 
to gather all necessary evidence and prepare for the hearing. Second, 
the final rule allows claimants to submit evidence up to 5 business 
days before their hearing instead of 20. This gives the claimant more 
time to submit evidence and will ensure that all parties to the hearing 
have enough time before the hearing to review the evidence and prepare 
for the hearing. Third, we expanded the range of circumstances in which 
an ALJ will accept evidence that does not meet the 5-day deadline.
Final Rule
    The final rule was published in the Federal Register on March 31. 
It explains the new procedures for adjudicating initial claims for 
disability insurance and for Supplemental Security Income based on 
disability or blindness. The preamble to the final rule explains in 
detail the changes from the NPRM that were made as a result of the 
comments the Agency received. We created a dedicated website, 
www.socialsecurity.gov/disability-new-approach, to provide you with 
information about the new regulation and background related to its 
development.
    The new disability determination process takes full advantage of 
Social Security's new electronic disability claims system, or eDib. 
Using eDib technology, the DSI changes will shorten decision times and 
pay benefits to people who are clearly disabled much earlier. eDib also 
allows us to access the electronic folder from any location making 
possible many of the changes in the new process.
Changes to the NPRM
    As I mentioned at the beginning of my statement, in drafting the 
final rule, we were aware that, although there was broad agreement on 
the need for change, numerous groups perceived our proposed rule as 
favoring administrative efficiency over fairness.
    We made a number of changes in the final rule in addition to the 
changes in the timeframes for submitting evidence that I discussed a 
moment ago.
    We added language to the final rule to make it clear that a 
claimant, unable to make a timely request within 60 days of receiving 
his or her initial notice, can request additional time to request a 
review both before and after the 60-day period has ended. The claimant 
will also be permitted to submit new evidence after requesting review 
up until the date of the Federal Reviewing official, or FedRO decision 
(I will discuss this provision in more detail later).
    We heard many concerns with the proposal that the Decision Review 
Board, or DRB, would consider only statements that it requested from 
claimants. In response, in the final rule, we allow claimants to submit 
statements to the DRB whenever the DRB notifies a claimant that it will 
review his or her claim.
    Without question, elimination of the Appeals Council and its effect 
on the Federal courts was the area in which the most concern has been 
raised. At present, all social security disability cases appealed to 
the Federal courts must first be reviewed by the Appeals Council. 
Despite this final administrative review, nearly 60% of all appealed 
cases are remanded to the Agency either ``voluntarily'' through 
requests made by our General Counsel or as a result of findings made by 
the courts. Accordingly, in the NPRM we proposed gradually to phase out 
the Appeals Council and replace it with a new DRB. While claimants 
would no longer have a right to request review of an ALJ decision, the 
DRB would review an equal number of error-prone allowances and denials.
    Throughout the comment period, concerns were expressed about this 
approach by organizations representing disability claimants who 
expressed fears that clearly erroneous denial decisions might escape 
review. The Judicial Conference and others also expressed concern that 
the Federal courts might be inundated with meritorious claims that 
would otherwise have been intercepted and resolved by the Appeals 
Council. In both instances, these concerns centered on the question of 
whether the Agency could develop an effective method for selecting the 
cases to be reviewed by the DRB.
    In response to these concerns, we have decided that the DRB will 
initially review all of the administrative law judge decisions--
allowances and denials--issued in the Boston region. This 100 percent 
review will allow us carefully to design, test, and validate a 
predictive model for selecting a subset of all ALJ decisions for DRB 
review that include those most likely to be remanded by the U.S. 
District Courts. During this same period, we will analyze the effects 
of the new approach on the workload of the Federal courts within the 
region.
    We also heard many concerns about the changes we proposed regarding 
our reopening rules. Many argued that our existing reopening rules 
already worked well for claims decided at the earlier stages of the 
process. In response, we decided that our existing reopening rules 
would continue to operate for all claims adjudicated prior to the 
hearing level. We retained other changes to the reopening rules to 
allow for the reopening of claims decided at the hearing level or 
beyond while at the same time ensuring that we could efficiently close 
the record, with good cause exceptions, after we have issued a final 
decision.
    Overall, our expectation is that the disability service changes 
will result in substantial improvements that will enable claimants to 
receive more accurate, consistent, timely, and understandable 
decisions. We also believe that this rule ensures an adjudicatory 
process that is consistent with due process, will give claimants a 
meaningful opportunity to be heard, and make accurate allowances as 
early in the process as possible.
Changes in SSA's Structure
    To improve the management of our initiative as we move forward, I 
made two major organizational changes at SSA. I created a new Deputy 
Commissioner-level office named the Office of Disability Adjudication 
and Review to manage the agency's disability adjudication process. The 
Office of Disability Adjudication and Review, or ODAR, will manage the 
new FedRO level, the hearings and appeal functions formerly managed by 
the Office of Hearings and Appeals, and the new Decision Review Board. 
I believe it is important to have a single Deputy Commissioner that I 
can rely on to manage effectively every level of our disability 
adjudication appeals process, so that I can be sure that the entire 
adjudicatory process is functioning efficiently and fairly for every 
single claimant.
    I also established a new Office of Quality Performance to manage 
the Agency's newly developed and still evolving integrated quality 
system which I believe will improve our disability determination 
process, as well as other program areas such as the Social Security 
retirement program and the SSI age-based program. The new Office of 
Quality Performance will manage a new quality system that includes both 
in-line and end-of-line quality review throughout the new DSI process. 
The Office of Quality Performance will be able quickly to identify 
problem areas, implement corrective actions, and identify related 
training as we implement the new DSI process.
Features of the New System
    So how does the new process work? In summary:

      The State Disability Determination Services (DDS) will 
continue to make the initial determination.
      Individuals who are clearly disabled will have a process 
through which favorable determinations can be made within 20 calendar 
days after the date the DDS receives the claim.
      A Medical and Vocational Expert System (MVES) will 
enhance the quality and availability of the medical and vocational 
expertise that our adjudicators at all levels need to make timely and 
accurate decisions.
      A new position at the Federal level--the Federal 
Reviewing Official, or FedRO--will be established to review state 
agency determinations upon the request of the claimant. We intend to 
have well-trained attorneys serve as FedROs and we expect that this 
level of review will help ensure more accurate and consistent decision 
making earlier in the process.
      The right of claimants to request and be provided a de 
novo hearing conducted by an administrative law judge is preserved.
      The record will be closed after the administrative law 
judge issues a decision, with provisions for good cause exceptions.
      A new body, the Decision Review Board (DRB), will be 
created to identify and correct decisional errors and to identify 
issues that may impede consistent adjudication at all levels of the 
process.
      And the Appeals Council will be gradually phased out as 
the new process is implemented throughout the nation.

    Two key improvements are embedded in the process. First are 
improvements in documenting the record at each step, so that all 
relevant information is available to adjudicators, and the claimant 
fully understands the basis for whatever decision is made. Second is a 
greatly strengthened in-line and end-of-line quality review process. In 
addition, quality feedback loops at every level will foster continuous 
improvement.
Implementation
    The DSI process will be rolled out in a careful and measured 
manner. This gradual implementation will allow us to monitor the 
effects that the changes are having in each region, on our entire 
disability process, and the Federal courts. The lessons that we learn 
in the early stages of implementation will help us as we move into the 
later stages of the roll-out.
    Just as we did with the implementation of our electronic system, 
implementation will be phased in and if we find that additional 
improvements are needed during the roll-out, we can and will make them. 
We will continue to listen to those with concerns, and we will make 
changes when necessary.
    Moreover as we roll out the DSI process we intend to continue and 
expand our efforts to make sure that all adjudicators make their 
determinations and decisions based on a record that is as complete as 
possible. To do so, we plan to review and improve our informational 
services to claimants and to medical providers so that they will better 
understand what information adjudicators need to make determinations or 
decisions.
    We also are developing requirements for training physicians and 
psychologists who perform our consultative examinations to make certain 
that they understand our determination process and the information 
adjudicators need to make accurate decisions. As part of this effort to 
improve consultative examinations, we are instituting a quality review 
to ensure that claimants are getting a good evaluation of their 
conditions by the right set of eyes and to ensure these examinations 
are yielding the information we need to make decisions. In addition, we 
are developing templates that adjudicators will use when they request 
examinations to ensure that the appropriate information is requested.
    Decisional templates are also in the works for adjudicators at the 
DDS and FedRO levels that will assist them in writing decisions, and we 
have already started using a decisional template at the administrative 
law judge level. The use of these templates will help ensure that 
claims are properly developed, legally sufficient, and consistent with 
our policies.
    The templates are being or have been created and tested with 
considerable input from adjudicators in the field--the very people who 
will use them in the new process. They are a critical factor in 
ensuring accuracy and consistency, and in enabling the quality feedback 
loops.
    In addition, we are working with medical sources to encourage the 
submission of evidence electronically whenever possible in order to 
expedite the decisional process. Special arrangements are in place to 
obtain both medical and non-medical records from large governmental 
agencies such as the Department of Veterans Affairs, the Military 
Personnel Records Center, and State Division of Vital Statistics. As a 
result, Social Security is already the largest repository of electronic 
medical records in the world. And, we have stringent policies and 
procedures in place to properly safeguard personally identifiable and 
medical information from loss, theft, or inadvertent disclosure.
    We will begin implementation in the Boston Region for claims filed 
on or after August 1, 2006. Boston is one of our smallest regions and 
is comprised of the six States of Connecticut, Maine, Massachusetts, 
New Hampshire, Rhode Island, and Vermont. After full implementation in 
these states, we expect to wait an entire year--to monitor the changes 
and collect management information--before we consider rolling out in a 
second region.
    By taking this careful and measured approach, we will be able to 
address any issues that may arise and ensure that implementation in 
future regions will progress efficiently.
    Under our implementation plan, DSI will only apply to claims that 
are filed in a region where the DSI process has been implemented. If a 
claim is filed in a region where we have not yet implemented the new 
process, we will use current procedures to adjudicate the claim.
    If a claimant moves from one State--where the new process is in 
place--to another State--that does not have the new process--the 
adjudicators will apply the regulations that were initially applicable 
to the claim. In other words, once a claim is under one system, it will 
stay in that system. This also applies to the pending cases in a region 
when roll-out begins. Those cases that are already in the system will 
be worked under the ``old'' rules and new cases will be worked under 
the ``new'' rules.
    For example, the elimination of an Appeals Council review will only 
apply in regions where we have rolled out the new DSI process and to 
disability claims that have been processed from the start under this 
rule.
    Of course, we will continue to monitor the effects on the 
disability determination process and the Federal courts as we implement 
DSI in other regions of the country. Obviously, if we find that there 
are issues, we will make changes as necessary.
Rollout Begins August 1
    As I said, we are rolling out the process on August 1st, 
and you have my assurance that we are doing all that we can to make 
sure that we implement in an orderly and timely manner. In typical 
fashion, the hardworking men and women of SSA and the state DDSs have 
pulled together and are getting the things done that must be done to 
move forward.
    So far, we have developed major new computer systems to support the 
DSI initiative. We have performed all of the personnel and hiring work 
necessary to make sure that we have the new employees in their new 
positions, properly trained, in time to perform their new DSI duties 
when implementation begins. We are working to ensure that effective 
training is prepared and presented to every employee who will be 
involved with the new disability determination process. Although we do 
not have the same kind of personnel or hiring issues at the hearing 
level as we do for other levels, we do have systems needs unique to the 
hearing level, and we are currently working to ensure that the 
necessary computer systems are in place by the time the first DSI claim 
reaches the hearing level.
Conclusion
    As you know, shortly after I became Commissioner, I met with 
President Bush to discuss SSA's disability programs. He asked me three 
questions:

      Why does it take so long to make a disability decision?
      Why can't people who are obviously disabled get a 
decision immediately?
      Why would anyone risk going back to work after going 
through such a long process to receive benefits?

    I am proud to say that our new disability process addresses all of 
these concerns.
    As I look back over the long road to the changes we will begin 
implementing in just a few weeks--and reflect on the spirit of 
cooperation, professionalism and dedication to serving the public that 
has been demonstrated by the men and women of SSA and the DDSs, 
advocacy groups, and Congress--I am convinced that we can make this 
happen. I am also convinced that the American public will benefit 
greatly.
    As we roll out DSI, we plan to continue the dialogue that has 
served the process so well. Because this is not just about getting it 
done; it's about getting it done right.
    In closing, I want to express again my heartfelt thanks to everyone 
who has helped us on our journey toward an effective DSI. As I said at 
the beginning of my testimony today, this subcommittee has traveled 
with us throughout the journey. I want to thank you again publicly for 
your advice, insight and support that have meant a great deal to the 
agency and to me personally. And I know that we can count on your 
continued support and advice as we make DSI a reality.

                                 

    Chairman MCCRERY. Thank you, Commissioner Barnhart, and 
thank you for outlining those changes that you made in response 
to our concerns and concerns expressed by others.
    I mentioned in my opening remarks that on August 1st you're 
going to start not really a pilot program but a kind of a pilot 
program. You're going to start in the Boston Region and operate 
this new system there for 1 year.
    What do you hope to learn in that first year? Are you going 
to try to take things that you learn to modify, at least guide 
the way for the national rollout?
    Ms. BARNHART. I appreciate that question, Mr. Chairman. If 
I may, I'd like to describe what I call a dynamic management 
approach to ongoing evaluation and implementation.
    There are going to be three facets to what we're going to 
be monitoring during that first year in particular, and through 
the whole process, but you asked about the first year.
    Specifically, first of all, we're going to be looking at 
the outcomes.
    By that, I mean how many allowances are there, how many 
denials are there, how soon in the process is it happening, are 
we really shortening the processing times as we thought, what's 
happening with the waterfall of cases as a claim moves through 
each step, are we really making the right decision earlier in 
the process as we have committed to, what is the effect on the 
Federal courts, and what is the situation with remands?
    All those specific things that we look at now in the 
system, we're going to be looking specifically in the new 
process as to how those compare to what's happening today.
    Secondly, we're going to be looking at how we are actually 
implementing the regulation in the way we said we were going 
to? In other words, are we doing everything we said. If there's 
an issue and something doesn't seem to be playing out the way 
we anticipate? Obviously, if we're not implementing it the way 
we said, we'll be going back to make sure that we do, and 
taking steps to correct that.
    Then finally, if we look at the outcomes and we're 
implementing the way we said, and we're not getting the results 
that we anticipated in terms of the right decision as early in 
the process as possible, then we will certainly be open to 
revisiting strategic assumptions that we made in crafting this 
process to begin with.
    It's one of the reasons I think the phased-in rollout that 
we have is important. In fact, we're starting in a smaller 
region, the Boston Region, a region that has less backlogs, 
quite frankly, in the hearing offices and will have none by 
January of this coming year because we're working to move them 
down.
    So, there are a lot of things we're putting in place so 
that we can get a nice, clean measure of what the situation is 
going to be in Boston, and we are fully prepared to take action 
as we move along.
    So, we will not be doing a retrospective evaluation, 
waiting a long time and looking back. We'll be doing it on an 
ongoing basis, and will certainly be happy to provide 
information to this Committee as that process plays out.
    Chairman MCCRERY. Have you thought about enlisting some 
outside review organization to look at the results of the first 
year?
    Ms. BARNHART. We did consider that, but because we're not 
doing an evaluation in the sense of waiting 5 years and then 
doing a report on it, we really thought that the dynamic 
approach we're using, that wasn't necessary for us, and it 
really wouldn't work, because by the time we got the report, we 
hopefully would have taken action to correct it.
    The other thing I would point out is, as you well know, the 
U.S. government Accountability Office (GAO) who is testifying 
on the panel that follows me at the request of this Committee, 
is already looking at how we're doing in terms of implementing 
the implementation, and I appreciate that, and I really 
appreciated the GAO report. I read it earlier this week.
    I would fully anticipate that that kind of outside 
oversight would be taking place probably at the behest of this 
Committee, if not, by GAO's own doing.
    Chairman MCCRERY. Okay. In the hearing last year, we talked 
a little bit about the possible impact on the caseloads of the 
Federal district courts.
    Do you have a plan to measure the impact of this change in 
the Boston Region?
    Ms. BARNHART. We do. In fact, what we're hoping to do is to 
mitigate any, untoward effects, as far as that goes.
    I have worked very closely, and members of my staff have 
worked very closely with the staff of the Judicial Conference 
Subcommittee for Disability. Judge McKibben is the head of it. 
He and I just talked, in fact, just a few weeks ago.
    We've had regular contact, trying to make sure we're 
addressing the issues that they have raised throughout this 
process. Obviously, they don't want a deluge of cases hitting 
the Federal courts. We don't, either. We believe if the process 
works the way we've designed it, we'll see less cases going to 
the Federal court.
    Obviously, we can't stop people from taking cases to 
Federal court. What I would hope is that we would see fewer 
meritorious cases going to Federal court because of us doing 
our job earlier in the process, in other words, that we would 
see less remands from the court, because we would have done the 
right job to begin with, we would be pulling back less cases 
ourselves through what we call voluntary remands.
    To ensure that we are doing the best job we possibly can in 
Boston, we're going to be reviewing 100 percent of the 
decisions at the Decision Review Board (DRB) before they go on, 
so that will allow us to actually validate the model that we're 
going to use as we roll out, for selecting the cases that we 
would refer to the DRB, and by the way I would point out again 
it's going to be an equal percentage of allowances and denials, 
not just one or the other.
    Chairman MCCRERY. Lastly, before I turn it over to Mr. 
Levin for questions, you mentioned the fact that the Boston 
Region is smaller, and they don't have as much backlog. We're 
going to have a witness later that's going to talk about how in 
the Boston Region favorable initial and reconsideration 
decisions are higher in the Boston Region than nationally.
    Does that concern you, that you're using a region that 
maybe is already a little further along the path to reform, so 
to speak, or better outcomes.
    Ms. BARNHART. Well, let me say this. I was just talking to 
some of the members who are--the staff that are here with the 
witness from GAO--and telling them, what I may have told this 
Committee before, that I came to work in Washington in 1977, 
and the very first GAO report I ever read was that State 
allowance rates vary in the DDS disability determinations. That 
was almost 30 years ago.
    It's interesting, it was the first report I read, and I'm 
here testifying on issues related to that today.
    The whole point of creating the Federal reviewing official 
(FedRO) and creating a centralized quality system as opposed to 
a regionally based quality system was to ensure consistency 
across the country, State to State, region to region. We're not 
going to be doing things based on region or based on State.
    In other words, the idea is ultimately when we have this 
fully implemented, reviewing officials will be looking at cases 
from all over the country, they won't be doing a particular 
State. Our quality reviewers will be looking at cases from all 
over the country, they won't be reviewing a particular State. 
It should take out any bias that might exist from looking at it 
on a solely State and regional basis.
    In terms of Boston itself, as I said, I chose it for a 
number of reasons.
    First of all, it seems to be less litigious. Less cases go 
forward to Federal court, and that was important, because 
obviously we wanted a manageable number, since we're going to 
review 100 percent of the cases, and they do have a higher 
allowance rate.
    I believe that the approach we're taking with the FedRO, 
having that Federal review at that very next step, as opposed 
to the DDS recon, is going to equalize any effects of that.
    Chairman MCCRERY. So, you think that the new process you're 
going to eventually have in place nationwide will actually work 
to smooth out the differences in allowances among the States?
    Ms. BARNHART. I think it will, because we're not going to 
have--obviously, when you have individuals doing a review, even 
though you try and make it consistent, you have a certain human 
variance.
    Then you exacerbate that when you have the people in a 
certain area not under centralized management, where they're 
getting exactly the same guidance every single day.
    Then finally, they become familiar with a particular State.
    I think that is just human nature, and the way we do work, 
it builds certain biases into the system, and that was a real 
important part of the design, to make sure that we don't have 
that happening, to equalize that.
    Chairman MCCRERY. Okay. Good.
    Mr. Levin.
    Mr. LEVIN. Let me follow up on that.
    You know, sometimes we complain that the opening statements 
are too long, except if it's Alan Greenspan I guess, but in 
your case, I'm not sure we gave you enough time.
    There are so many of us here. I think the turnout indicates 
the importance and the interest in this.
    So, the discussion of the FedRO, I think, highlights the 
need for you to describe for all of us, for all of us assembled 
here, for those who will be watching, what the two or three or 
four major problems were and how this addresses them, the final 
regulations.
    I think we need to go back a bit----
    Ms. BARNHART. I'll be happy to.
    Mr. LEVIN. --and have you pick them out and how this 
addresses it, how you think the FedRO system will work, and so 
forth, and so forth.
    Ms. BARNHART. Okay. First of all, I think in terms of that 
issue of consistency, Mr. Levin, I appreciate this opportunity, 
because to me the FedRO is actually really the linchpin of the 
new process, so I really appreciate this opportunity to 
elaborate.
    I think, as I said to the Chairman, I believe from a 
consistency perspective, the fact that we'll have Federal 
employees, not people from 55 different jurisdictions, who are 
taking a look early in the process from a consistent 
perspective, is going to be extremely important.
    Secondly, from the claimants' perspective, right now, the 
DDS reconsideration is viewed largely as a rubber stamp of the 
initial DDS decision. If you ask, there are people here 
representing claimant representatives and claimant advocacy 
organizations, and I think most of them would tell you that, 
and with good reason.
    While 40 percent of the cases are allowed--roughly 40 
percent, 35 to 40 percent at the initial stage of determination 
by the DDSs--when it comes to reconsideration, 85 percent of 
the time, the initial DDS decision is sustained.
    Yet what we see is when the cases move on to the hearing 
level, which is the next stage for reconsideration, the 
allowance rate is about 63 percent.
    So, from the claimants' perspective, I think they will feel 
first of all, that they're getting a more independent review of 
their case, which I think is very important. If we're going to 
take the time for a second step, the claimant and their 
representatives should know that they're getting a really, 
truly independent review, and they will not see it so much as a 
rubber stamp, because if we do our job properly, we'll be 
documenting the record better all along the way, and we're in 
the process now of developing, and have completed developments 
on some of them, templates for the DDSs to use in making their 
decision and writing their rationale, for the FedRO to use, and 
we have something called a findings integrated template for the 
ALJs to use, but all the way through, the record will be better 
documented.
    That means more medical evidence will be gathered, better 
decisions will be made earlier in the process, which should 
reduce the number of people who need to go forward to a 
hearing.
    Right now, our hearing process takes over 400-and-some 
days. That's the average processing time. I wish I could report 
to you that the time has gotten better since I became 
Commissioner in terms of the average time. It hasn't. We have 
actually reduced the time by 4 months if you look at a 
particular case, but the average time, no, we haven't, because 
of the volume of cases that are coming in.
    For the claimant who is waiting, it's much better for them 
if they're going to get a ``yes'' to get it sooner in the 
process as opposed to have to wait to go all the way through 
that hearing process to get it.
    Mr. LEVIN. So, there's a problem of consistency of 
effectiveness, would you say, to the older system, the present 
system, so there wasn't consistency, there wasn't 
effectiveness, it was--the process you're saying was so that 
there was allowance and then a rubber stamping of the 
disallowance and then the overturning of the disallowance, and 
so that wasn't an effective system, you're saying?
    Ms. BARNHART. Correct. Yes. I don't think it is when you 
have a rubber stamp, essentially rubber stamping.
    I'm not taking anything away from our DDSs. Understand 
they're under tremendous pressure. So, this is really not about 
them doing a bad job. It's just a system that I think doesn't 
work when you're reviewing it yourself.
    Mr. LEVIN. So, is there another defect that you think is 
being addressed besides those two?
    Ms. BARNHART. Well, I do think development of the record is 
very important, because I think right now what our ALJs have 
told me since I became Commissioner is that when they get these 
records in the hearing offices now, they're not well developed, 
and oftentimes they have to go all the way back to the DDS to 
get information. A good part of the delay at the hearing level, 
Mr. Levin, is the fact that we're having to go back and get 
things that should have been put in the record before.
    By having a decision template that walks you through the 
logic of what you should have been doing, what you should have 
been looking at, the factors that should have been considered, 
and having to write up the logic that you used in coming to the 
conclusion you came to, it's going to necessitate that you do a 
better job getting the documents that you should have in the 
record.
    It's a change in orientation from just worrying about 
initial processing times in terms of speeding it up to making 
sure that while they're doing the best job they can do, being 
as efficient as possible, they're actually doing the right 
thing in terms of documenting the decision, getting the 
evidence.
    We probably could see an expansion of time for initial 
disability, but ultimately, because less cases would go all the 
way through, we would see a great savings in time at the 
hearing level.
    Mr. LEVIN. Just one last quick question.
    So, what do you think is the most controversial or 
questionable aspect of this new approach?
    Ms. BARNHART. Based on the comments that we received, I 
would say that the--I hate to use the word controversial, but 
probably the area that most people expressed concerns about was 
the elimination of the Appeals Council and the creation of the 
DRB, and it's one of the reasons that we decided to leave the 
Appeals Council in effect until the last State is implemented, 
so the DRB will come up in the new States where we're 
implementing the new process, but the Appeals Council will 
continue, as opposed to just eliminating the Appeals Council 
right off the bat.
    It's one of the things that we'll be looking at very 
closely in terms of what happens with the DRB, our ability to 
pull the right cases there, to look at them.
    What happens, going back to your first question, to the 
courts, what happens in terms of the workload on the courts. We 
will be monitoring the DRB very carefully for that reason, 
because I think that's the area that most people had concerns 
about.
    So, what we're doing is putting in a lot of management 
information and checks so we know what's going on. We're 
pledging to monitor and make adjustments as we need to.
    Mr. LEVIN. Thank you. Thank you, Mr. Chairman.
    Chairman MCCRERY. Mr. Hayworth.
    Mr. HAYWORTH. Thank you, Mr. Chairman; and Commissioner 
Barnhart, welcome back.
    Ms. BARNHART. Thank you.
    Mr. HAYWORTH. Seeing you here tempts me to wax both 
nostalgic and rhapsodic about implementation of the first 
ticket to work in my district back a few years ago, and the 
efforts to emphasize ``ability'' in disability.
    With your indulgence, I appreciate hearing what is 
transpiring prospectively, but in real time, there in Tempe and 
in Arizona, in my State, in Region 9, we've got a little 
challenge, to put it euphemistically.
    Last week, Region 9 management let my State's DDS directors 
know that they need to reduce the backlog of initial 
determinations.
    In response, the Arizona DDS director apparently ordered a 
halt to all reconsiderations.
    Now, in order for claimants to request a hearing by an SSA 
ALJ, they must first be denied at the reconsideration level.
    From my understanding, the stoppage will only last as long 
as it takes for the Arizona DDS to reduce the number of initial 
determinations that are pending, and any initial determination 
that is disapproved becomes a potential reconsideration case, 
and with the current stoppage of reconsideration and the focus 
on initial determinations, it looks like the backlog of 
reconsiderations can be expected to grow.
    Nearly 37 percent of additional determinations are approved 
for Social Security Disability Insurance (SSDI) or Supplemental 
Security Income (SSI) benefits, so clearly, focusing no initial 
determinations will ensure that claimants entitled to benefits 
will get them as soon as possible.
    Unfortunately, those claimants who had been approved on 
reconsideration will have to wait even longer for benefits, and 
as I understand it, on average, initial determinations take 95 
days and reconsiderations 97 additional days.
    How long, if you could estimate it, how do you estimate 
temporary stoppage of reconsiderations in Arizona to last?
    Ms. BARNHART. If I could just explain, we haven't totally 
stopped reconsiderations anywhere. The dire needs 
reconsiderations are happening.
    It was done--the action that we took was to look at what 
was going on on a region by region, State by State basis, as 
you point out your own case in Arizona.
    Here's the situation we face. We have now worked almost 
9,000 more reconsiderations this year than we have received, 
which means we got into the ones that came in last year.
    The same thing is not true with the initial claims. We're 
behind. We had 560,000 initial claims pending at the end of 
last year. We now have 660,000 claims pending right now, where 
we are, halfway through the year, a little more than halfway 
through the year.
    The reason for that is the subject of this hearing, the 
hearing that we had just a few weeks ago, which is the fact 
that we didn't get the allocation the President asked for in 
the budget, and it meant that we could only replace people at 
the DDSs, for every two vacancies, one person, so we have not 
been able to keep the DDS staffed this year the way we would 
have liked.
    So, looking at the fact that we're really ahead in terms of 
reconsiderations and way behind in terms of initial claims, and 
it does vary State to State, because obviously population 
growth, What's really happening in terms of increased workload 
and so forth affects it, we took a look to try to balance out 
the workload.
    The hope is that it will only be--the way we're looking at 
it is at the moment, what we're trying to do is direct all 
available resources, as many as we possibly can, to initial 
claims.
    As this Committee knows, last week, the Congress passed $38 
million in the supplemental Katrina appropriation, and I 
appreciate the support from this Committee. We received $38 
million for Social Security, or will in the very near future.
    When we sort of repay ourself for what we spent on Katrina, 
we will then be able to apply that money to increased capacity 
all across the country.
    Obviously, there are going to be limitations on how much 
capacity at this point, because we're halfway through the year, 
but I'm going to be monitoring the situation really closely.
    What it means, and you actually got to the point of it is, 
it's not that we're not doing recons, it's that the recons will 
simply take longer, just like this year, we're restaffing. In 
some field offices, we have to wait 'til eight vacancies to be 
able to back fill some positions now, because the funding 
limitations we have, some people are having to wait longer for 
an initial appointment to come into a field office to make an 
application. It's not that we're never going to do them. It's 
that it's--and that we're not doing them--it's just that it's 
taking longer to get to them.
    I'll be happy to keep you apprised as we look at the 
situation.
    Mr. HAYWORTH. Madam Commissioner, I look forward to that, 
and I thank you for your time, and I yield back, Mr. Chairman.
    Chairman MCCRERY. Thank you, Mr. Hayworth. Mr. Becerra.
    Mr. BECERRA. Thank you, Mr. Chairman.
    Commissioner, thanks again for being here, and one 
additional thank you, and that's for the quick response that 
you and the office gave to the questions that I had raised back 
at our previous hearing about the adult disabled child issue, 
and I want to thank you for the quick response.
    I know you changed your Web site to address some of those 
concerns, and I know you're looking for other ways to try to 
make sure information is received by families that might find 
themselves in these situations with children and adult children 
who might be disabled, so thank you very much for that.
    Ms. BARNHART. I appreciate you flagging it as an issue for 
us, because we weren't aware, so we appreciate it.
    Mr. BECERRA. Thank you.
    Congratulations on moving through the process, and I think 
sometimes we get down in wanting perfection, and we never get 
to implement, so I think most of us are looking forward to 
having a new system up and running and hopefully reducing the 
backlogs.
    Let me just flag some things that I hope you all will 
continue to monitor, because at this stage, you want to 
implement, so it's no longer trying to work something out and 
formulate it, it's implementing.
    The FedRO, I think--I hope you will really, as I think has 
been expressed before, really focus on that, because that's the 
linchpin to the system.
    If that doesn't work, then you're not going to deal with 
your appeals process very well, because you're still going to 
have the problem of these decisions not being done well and 
claimants in the end suffering the consequences.
    Late evidence. I know we--you were able to make some 
changes that I think better accommodate the needs of 
individuals, but I hope we'll always remember that we don't 
want to turn these processes, these appeals processes into 
court hearings. We don't want this to become a court of law 
where everyone follows these rules of evidence to the tee and 
you've got an adversarial situation that confronts you so that 
you can't talk to the other side.
    We want the claimants, who for the most part aren't 
financially well off, to be able to go through a process that's 
friendly.
    So, I hope that when it comes to the issue of evidence, 
especially late evidence for claimants who, through no fault of 
their own necessarily, have good late evidence, that that 
doesn't hurt them.
    I also have a concern about how the statutory requirements 
that say that we must take into account evidence adduced at the 
hearing will not become an obstacle to considering evidence 
that comes late.
    So, how do you deal with the fact that evidence has to be 
adduced at the hearing to come to a decision, yet late 
evidence, which may be critical, comes in, and at what point 
will we have some appellate decision that tells us, well, 
you've got a conflict; the statute says you've got to take 
evidence only that's been only adduced at a hearing versus 
evidence that's critical and credible that comes in late. So, I 
hope we continue to monitor that.
    Then finally the appellate process. I have some concern 
about removing that appeals process and going toward these 
DRBs, but again, I think with have to see them work, and I hope 
what we do is again not give ourselves a system that becomes 
like the courts--very formal, very legalistic, very expensive--
and we continue to give claimants what they deserve. So, I hope 
you monitor those things.
    The final thing I'll flag for you is something that goes 
beyond just this whole process, and that's just that you have 
men and women in your agency who are doing more and more every 
day, and you have fewer and fewer people doing it, and at some 
point, you're going to bust. You can't do this.
    I know you're limited in what you can say and do, but I 
hope we will recognize that the work that you do is critical, 
as critical as any Federal agency or any Federal organ, and 
unless we have the personnel properly trained and equipped to 
do this with the ability to have decent morale in the shop, 
it's all going to fall apart, and you cannot continue to have 
more imposed upon you and the men and women that work for us 
without the resources to pay them well and to have the 
equipment and the materials that you need.
    I think more and more we're beginning to see internally 
that these major backlogs that you've been trying yeomanly to 
try to address are the result not of any neglect, not as a 
result of any inexperience, it's just the fact that you don't 
have enough people, and we've got--I say that to you, and there 
should be a mirror there, because it really should be said to 
the Congress. We need to give you the resources you need to do 
this.
    You've got to be honest with us. You've got to let us know, 
because we hear from a lot of the rank and file in your 
different offices. It's like what happens with all the social 
workers who are asked, or the parole officers who are asked to 
do massive caseloads. You can't do it.
    So, I hope that we'll keep that in mind as we move forward, 
but thank you for the work that you're doing, and we look 
forward to working with you.
    Ms. BARNHART. Thank you. If I could just respond, Mr. 
Chairman.
    Chairman MCCRERY. Sure.
    Ms. BARNHART. You've touched on many things. I'm just going 
to pick a few that I'd really like to comment on.
    One of those is the appellate process and the concern you 
expressed. As I indicated earlier, perhaps that is the area, 
the elimination of the Appeals Council eventually and the 
creation of the DRB, where we got the most comments.
    One of the changes that we made in the final regulation 
that we will be monitoring very closely to look at as we roll 
out to future regions, is that all claimants who move forward--
and in Boston it's everybody, because we're going to look at 
100 percent of the cases--may submit a statement to the DRB. 
That is not something that was provided in the NPRM.
    What we will be looking at is to see if, as we look at our 
predictive model and validate it, if the cases where the 
statement is submitted, where a change was made outside--in 
other words, the point is to see what the value is of that 
statement and how we ought to look at institutionalizing, it or 
changing it, or whatever as we move forward to other regions.
    I just want you to know that's one of the reasons we made 
that change in the final regulation, and we are going to be 
looking at that very closely, because we're aware of those 
concerns.
    Secondly, in terms of resources, I certainly support what 
you're saying. I have attempted to be very clear with Congress. 
Most of those conversations take place at the Appropriations 
Committee, as you know. This Committee has always been 
extremely supportive about the resources that we need. That's 
why I developed the five-year budget plan, to show what you can 
get for the money.
    Just this week, you may be aware that the Appropriations 
Subcommittee provided $200 million less than was requested in 
the President's budget, and if I could just take a moment to 
explain the likely result of that, should that hold.
    First of all, that's exactly the amount of money that was 
set aside in the special funding for the Continuing Disability 
Review (CDR)s, which means we would not do 237,000 CDRs. During 
the last time I was here before this Committee just last month, 
there was a great deal of concern expressed about the CDRs, and 
recognition that we need to do them.
    From a staffing perspective, we would have to cut an 
additional 1,900 work years, because the elimination of that 
$200 million, there are people attached to doing that work, and 
so what that means is the replacement rate we're experiencing 
now, and in some field offices it is one for every eight 
vacancies, one person, depending on whether or not there's 
population growth taking place. In our DDSs it's been one for 
two. For every two who leave replace one. Those will all 
change, and it will be even worse than it is now.
    So, there are very real consequences, and you're absolutely 
right. I laid out the backlogs for the hearings. We're looking 
at backlogs of 660,000 in the DDS. We're trying to get that 
down to 577,000 before the end of the year.
    The point is, not only will we not make headway in terms of 
working those backlogs away, they will grow even more if we 
don't get the requested budget that the President made. So, 
very real terms. We've provided this information to the 
Committee.
    The real, the very real danger, I will be quite candid and 
tell you is if they do an across-the-board reduction as has 
been done in the past, say another 1 percent, we may actually 
be in a position of probably having to furlough staff, for 
approximately a week.
    So, the point is, it's a very serious situation financially 
for the agency.
    Then finally, I would just say your comment about the men 
and women of SSA, I totally ascribe to your views about the 
people in this Agency. They do an unbelievable job.
    Frankly, if they had not done what they've done in terms of 
productivity, which means they're working as hard and 
efficiently as they possibly can, we would be in much worse 
shape. We've increased productivity by almost 13 percent since 
2001. That is due to systems, obviously, but it's also due to 
the men and women in the agency doing what's necessary to make 
it happen, too.
    Mr. BECERRA. Amen.
    Chairman MCCRERY. Ms. Tubbs Jones.
    Ms. TUBBS JONES. Mr. Chairman, thank you. I was just 
fortunate that I decided not to run and get a vote in here 
before the other group did.
    Madam Commissioner, it's always good to see you.
    I want to continue down the path about the impact that the 
200 million reduction in level of funding will have on the 
agency. You already talked about it affecting approximately 
1,900 workers.
    Your plan was to address backlog, so less workers, more 
backlog. Tell me what impact that will have on your ability to, 
if you can put it in numbers, to address backlog. You thought 
you might get through however many cases with this new work. 
How many cases won't you be able to get through?
    Ms. BARNHART. Well, we, as I said, we won't be able to do 
237,000 CDRs. That's a very measurable workload.
    In terms of turning it into cases, I haven't done that 
analysis yet, but I'd be happy to do that. We can do that, Ms. 
Tubbs Jones, and I'd be happy to provide that.
    Ms. TUBBS JONES. I'm not a numbers person. I'm just trying 
to show the real impact that the reduction has. The 237 CDRs 
shows me what we're talking about.
    Ms. BARNHART. I can tell you now, even with level funding 
in our hearing offices, in other words, we're replacing one for 
one in our hearing offices. If someone leaves, we replace them. 
Okay. So, it's a one for--obviously, because of the enormous 
workload. We still have a workload that's growing this year, if 
that helps----
    Ms. TUBBS JONES. Even when you replace one for one, assume 
you replace someone with 1 year of legal experience and lose 
someone with 20 years of legal experience, that's a great, or 
as big an impact, even if you can do one for one.
    Ms. BARNHART. The learning curve issue is huge. We believe 
it takes about 2 years in our field offices to learn the job 
and become proficient. In some of the jobs in our hearing 
offices, it's 2 years.
    For our ALJs, and we just brought 41 new ALJs, on we 
believe it will take 9 months----
    Ms. TUBBS JONES. In Cleveland? No, go ahead.
    Ms. BARNHART. I can tell you. I knew you'd ask that 
question.
    Ms. TUBBS JONES. Always got to talk about home. We can get 
that later.
    Ms. BARNHART. Actually, we've added, since the last time we 
talked about this, I've actually, I think added three judges in 
Cleveland since 2004, but I don't believe there are any 
scheduled for this time.
    There would have been. We were going to hire 100 judges, 
but because of the budget reductions, we didn't get----
    Ms. TUBBS JONES. So, how many less judges are you going to 
be able to hire?
    Ms. BARNHART. We're going to have 59 fewer than we were 
going to----
    Ms. TUBBS JONES. Fifty-nine fewer judges?
    Ms. BARNHART. Next year, with the reduction that we're 
looking at now, if that holds, we probably won't be hiring any 
judges.
    Ms. TUBBS JONES. Talk to me about how many cases a judge 
generally will handle in any period of time.
    Ms. BARNHART. A judge generally handles--well, right now, 
they're disposing of over two cases a day. At the peak last 
year,we were at 2.5 cases a day. So, you take 20 workdays a 
month and you're talking somewhere----
    Ms. TUBBS JONES. A significant number.
    Ms. BARNHART. Yes, very significant. What is it, 400, 450?
    Ms. TUBBS JONES. Significant numbers.
    Ms. BARNHART. Yes, very significant numbers. Our judges are 
carrying enormous caseloads in some areas, sometimes as much as 
950 cases per judge.
    Ms. TUBBS JONES. Talk to me about the Electronic Disability 
Folder System (eDib) and the impact it has on the ability to 
file a claim in a field office.
    Ms. BARNHART. Well, eDib, actually, I'm thrilled with eDib. 
We're in a situation now where every State has electronic 
disability at different stages of--at different levels.
    We have 40 States, though, that now have the ability to 
work in a fully electronic environment. In other words, they no 
longer maintain the paper file and the electronic file. They 
just do the electronic file.
    What we're seeing, I can't give you hard numbers now, but I 
will be able to soon, we're seeing a decrease in the processing 
time in the States that have electronic disability and we're 
seeing a real increase in productivity.
    If I could just cite a couple of examples--unfortunately I 
don't have Ohio here, but I do have Illinois, which has moved 
from 255 cases a month to 279--PPWY of 255 per worker to 279; 
Idaho from 250 in October to 349 in May; Texas from 261 to 287 
in May; and in the Boston Region, where we're going to be 
implementing first, they've gone from an average of 244 cases 
to 296 for the month of May.
    Ms. TUBBS JONES. Last question. Talk to me about the impact 
this reduction of $200 million will have on your whole plan of 
implementing new processes and bringing the agency into a 
position where they have much less backlog.
    Ms. BARNHART. Well, one of the things, as I mentioned, 
we're trying to get, and we believe we will succeed in getting 
rid of all backlogs in the Boston hearing offices by January. 
We'll have pendings, but they won't be backlogs, because you 
need a certain amount of work to keep working.
    My hope is to be able to do that when we move on to Denver, 
when we move on to Seattle, when we move on to Kansas City, and 
do as much as we can as we get to the larger regions.
    Obviously, if we're not able to backfill people at a one-
for-one ratio, and maybe hire some additional people, then 
we're going to be in a situation of not being able to keep 
current with the backlogs, let alone work them down, and it's 
going to make that more difficult.
    One of the reasons we have the phased rollout, though, is 
it will allow us to adapt to whatever the funding situation is, 
and what it may well mean, Ms. Tubbs Jones, is that we end up 
having to delay implementation a little bit and stretch it out 
a little more than the roughly 5 years I project right now.
    Ms. TUBBS JONES. Mr. Chairman, thank you very much. Just 
one more quick thing.
    James Hill, will you stand up wherever you are in here? Hi, 
James Hill, how are you? He is from the great city of 
Cleveland, Ohio, will be testifying on the second panel, and 
just in case I don't make it back here, Mr. Chairman, I would 
for the record welcome a great Buckeye to Washington, D.C. 
Thank you, Mr. Hill.
    Thank you, Mr. Chairman.
    Mr. BRADY. [Presiding.] Thank you.
    Well, Commissioner, this is an exciting day. I have several 
questions.
    First, let me, Commissioner, thank your folks, your 
employees at the agency, for two things.
    Our district abuts Louisiana, and so we took in tens of 
thousands of Katrina evacuees, and then when we got hit by 
Hurricane Rita, we had our own problems. In fact, 10 percent of 
our evacuees have yet to come back to East Texas, but your 
local Social Security personnel were just critical, huge help, 
as we tried to get those people back on their feet and get 
those benefits reestablished and all their questions answered.
    Then secondly, during the rollout of the Medicare 
prescription drug plan, your folks were especially helpful, not 
only in the townhalls explaining benefits, also on their own, 
out there talking to all the senior groups, American 
Association of Retired Persons (AARP) chapters all that, and 
toward the end, as seniors were looking to get--to make those 
decisions, they were very helpful in walking them through the 
extra program, extra help program and the worksheets and all 
that.
    So, please tell your people they did an excellent job in 
two categories in our region.
    Ms. BARNHART. I will do that, and that will mean a lot to 
them. They really worked their hearts out. It was a wonderful 
example, the best I've ever seen of public service, and your 
comments will mean a lot to them. Thank you.
    Mr. BRADY. Great. Thanks.
    Another part of the goal sort of like an emergency room 
that's full of people who can be taken care of in other areas. 
Part of the goal of this change is to get decisions made 
accurately and early so we have fewer lining up at the ALJ 
level of those.
    What criteria--what will you consider a success in progress 
in fewer cases at the ALJ level? How will we view how much 
progress we've made in that area?
    Ms. BARNHART. Yes. I think--we haven't set specific goals 
or targets at this point, Mr. Brady, but it's a really good 
question.
    I think the first thing I will do is I will look to make 
sure that the cases that go on to Federal court, the remand 
rate, in other words, have we reduced the number of the 
incidents of Federal judges returning cases to us saying, ``You 
didn't do your job right''?
    The second thing, I will look at the number of cases that 
our own attorneys pull back once they've gone to Federal court, 
what we call voluntary remands, where we, upon review, before 
going into court to defend a case, actually say, ``Wait a 
minute, we don't think we did our job right.''
    I will look at what the DRB--the results of the DRB. In 
Boston we're going to have the luxury of reviewing 100 percent 
of the cases, to see if they are reaffirming the decisions that 
are made at the ALJ level, saying, ``Yes, we absolutely agree 
this was the right decision.''
    I will be looking--basically, what I'm saying is, at each 
stage, looking back to the stage before, the ALJs, looking to 
see what they said----
    Mr. BRADY. Yes, and I think that's important too, that DDS 
decision, how many are flowing through the--are their higher 
rates than should be, larger caseloads than should be, because 
that's a key.
    Ms. BARNHART. So, one of the things, we know we're going to 
have these feedback loops that go back from each level, but 
what we're working out now is the vehicle for doing it.
    Since the DDSs and the FedROs are different than the ALJs 
in terms of the fact that they do a review based on our 
direction and it's not an independent look, like the de novo 
hearing that the ALJ does, what we're going to do there is 
probably have our quality, our Office of Quality Performance, 
which I just created a few months ago, be the conduit for the 
information for the FedRO to go back to the DDS.
    We also, as you know, provide in the regulation to have the 
ALJ send comments back to the FedRO. What we have to work out 
there is the vehicle for how that physically happens, how do we 
actually get them there, but the idea is it's definitely going 
to go back.
    We would like it to be able to go back on an individual 
basis, but I'm more interested in the aggregate, and I think 
that speaks to the point that you're making, or the question 
you're asking, because if I can look and see that in X percent 
of the comments that went back, the ALJ said, ``I agree, you're 
doing--you made the right decision,'' if the number of times 
that the ALJ says to the FedRO, ``I think you made the wrong 
decision,'' if that decreases over time, then I'll feel like 
the process is working, because learning is taking place. In 
other words, the one level is giving feedback and the other 
level is responding.
    Mr. BRADY. Sure.
    Ms. BARNHART. I have not set specific numeric goals at this 
point.
    Mr. BRADY. What kind of training are you going to conduct? 
Obviously this is--that's key, and that I think also is one of 
the reasons we have disparities between regions and States is 
that training level.
    What have you put in place for that?
    Ms. BARNHART. We are doing a lot of training.
    In fact, one of our first training sessions happens I think 
Monday, we start, and we are going to be training executives 
who are involved in the process inside the Agency, and we have 
a--in fact, I think today we're doing this--I did a video 
that's being shown today--it's part of our ``Main Streets'' 
series--where I talk about the new process and sort of the big 
picture for people, and then we move into the specifics next 
week, and there's more training coming out all the way through 
July.
    We will obviously have to train all of our FedROs, because 
that position has never existed before, and we have to train 
people at the DRB.
    I have prioritized the training based on the 
implementation, because obviously our DDSs need to be trained 
and our field office folks. The DDSs need to receive the first 
training because that's the first point in the process people 
hit. They won't hit the FedRO probably for 3 months, two or 3 
months after August, and then the DRB will be obviously much 
later than that.
    Mr. BRADY. Right. Are we giving you enough resources for 
training?
    Ms. BARNHART. We feel we're in good shape at this point for 
training, we do. We can definitely handle that.
    Mr. BRADY. I like the idea of this Federal expert unit, and 
especially bringing in both the medical and occupational, 
because the change is not so much anymore are you injured, but 
what type of work can you go back to, so the occupational is 
key.
    Why don't we compel complete and full medical records 
before the ALJ level? Why don't we compel that before the DDS 
level? It seems like the more complete the claimant's 
application is, the better we have of making a good decision 
early.
    Ms. BARNHART. You're absolutely right, and that is really 
one of the things that we tried to build into this, the 
incentives for doing that, because the fact is--let's just take 
a case in point.
    If a FedRO overrides a DDS decision, and they do it because 
of evidence that they got at their stage of the process, that 
could have been gotten by the DDS, that's the kind of 
information that's going to go back.
    The earlier we decide the case, if it's going to be a yes, 
the earlier we get to yes, the less expensive it is for us, 
quite frankly, because it's more expensive at each step 
administratively, and that thoroughness of having a complete 
record is one of the absolute goals.
    You know, the main goal is to make the right decision as 
early in the process as possible, but to do that you need to 
have a complete and well-documented record.
    Mr. BRADY. Are there obstacles to completing them earlier 
in the process, technical obstacles?
    Ms. BARNHART. I think one of the things, in all fairness to 
the DDS, is the pressure that's come on the DDSs in, as long as 
I can remember for decades, quite frankly, is process the 
claims faster and faster and faster. You know, do more, do 
more, do more, and do it faster. I do that to some extent, too.
    So, I'm not just talking about former commissioners, all of 
whom I've known.
    What happens is there's a price one pays for that, and what 
we're trying to say to the DDSs and the culture change that 
I've talked about many times--I've spoken to the National 
Association of Disability Examiners (NADE), and to the National 
Council of Disability Determination Directors (NCDDD), and 
we'll be doing that again this year, but the main point I'm 
trying to get across is it may take you a little longer, just 
like it takes our claims reps longer to do Electronic 
Disability Collect System (EDCS), in the field office than it 
did before, but the claim they send to the DDS is a better 
claim and the DDS spends less time going back and getting 
information that should have been gotten at the field office.
    What I've tried to get across to the DDSs is, I understand 
you've just been pressured, pressured, pressured, move, move, 
move the cases. It may take you longer to do what you're 
supposed to do to develop this record, and to get the medical 
evidence that needs to be obtained, but in the long run----
    Mr. BRADY. You'll save time.
    Ms. BARNHART. --the claimant really, what they care about 
is if their case goes all the way through and because you 
didn't do it, it takes another 5 months at the hearing level, 
so we have to look at the whole process, not just in segments.
    Mr. BRADY. Okay. Final question.
    Obviously, you want to measure the progress on this. One of 
the frustrations has been trying to, region-to-region, State-
to-State, there's just disparities in different areas.
    Are you building in a data measurement, a feedback system 
as it's rolled out in Boston, where we can take a look, more 
quickly, more accurately compare how the regions are doing, not 
just in approvals, necessarily, but in time, backlog, negative 
decisions, feedback.
    Ms. BARNHART. Yes. Actually, one of the things that we're 
trying to do in terms of the variance issue is by creating the 
FedRO, eliminate the inconsistencies and actually make the 
process more consistent earlier, and having the FedRO 
centralized.
    I don't mean centralized like in location, although we're 
starting in Falls Church with this first hiring of FedROs. 
Eventually, they'll be all around the country in different 
locations. We can do that because of eDib, but there will be 
central management of the FedRO, which will get away from this 
whole notion of this region versus this region and that kind of 
thing.
    So, we're really trying to get rid of the inconsistencies.
    In terms of looking at the outcomes that you talked about, 
though, allowances, denials, processing times, all those kinds 
of things, we definitely will be tracking that very carefully.
    We have a number, a pretty elaborate management information 
system to collect just about everything I could possibly 
imagine, although this Committee may well think of something I 
should have thought of--you seem to always do that. We're doing 
our best to try and anticipate what you want to know.
    We're going to be tracking it for Boston, and obviously 
we'll be still getting the information we have for the other 
States, and we'll be able to, look at what the difference is, 
yes.
    Mr. BRADY. Hopefully, that FedRO,--there should be--this is 
a Federal program. There's naturally going to be some small 
disparities State to State but there shouldn't be dramatic 
ones, you know what I mean, if we're going to consistently 
apply and interpret, throughout the country, and that's been 
one of the frustrations for everyone in the past.
    Before you conclude your testimony, is there anything else 
you want to add?
    Ms. BARNHART. No, just to say again that I really 
appreciate the interest that this Subcommittee has had in this 
issue.
    It is an undertaking that many people thought was not going 
to happen because of the nature of what we had to work with, 
and all the issues and all the interests that come to bear in 
the disability program, but I do believe that the tone that 
this Committee sets through its oversight hearings, looking at 
these issues, goes a long way in promoting the cooperative 
spirit that I have seen with everybody that I've worked with in 
the Congress and outside of the Congress, and I think it's 
something that's seen far too little, it's a far too rare 
occurrence today.
    Mr. BRADY. Right.
    Ms. BARNHART. I say that as somebody who came to work in 
Washington in 1977 to work in the Senate, and so I truly 
appreciate that level of interest, and I just want you to know 
that we will continue to provide whatever information you and 
your staff have, whatever questions that you have. We want to 
be as responsive as possible.
    We believe this can work. We are committed to making it 
work. We are going to be happy to prove to you that it's 
working.
    If it's not, if something is not working the way it was 
designed, we are going to step in very quickly to address the 
issues.
    So, thank you.
    Mr. BRADY. Right. Well, thank you and good look.
    Our next panel will be introduced by the Chairman.
    Chairman MCCRERY. [Presiding.] I would invite the next 
panel to take their seats.
    We have Robert Robertson, Director, Education, Workforce, 
and Income Security Issues with the U.S. government 
Accountability Office; Marty Ford, Co-Chair, Social Security 
Task Force, Consortium for Citizens with Disabilities; Sarah 
Bohr, President, National Organization of Social Security 
Claimants' Representatives--if we could have a little quiet.
    We have Witold Skwierczynski, President, National Council 
of SSA Field Operations Locals, American Federation of 
government Employees, AFL-CIO, Baltimore, Maryland; James Hill, 
President, Chapter 224, National Treasury Employees Union, 
Cleveland, Ohio; Judge Ronald Bernoski, President, Association 
of administrative law judges, Sussex, Wisconsin; and Gary 
Flack, Chairman, Social Security section, Federal Bar 
Association, Atlanta, Georgia.
    Welcome, everyone, and thank you for coming today.
    As you heard with our first witness, your written testimony 
will be submitted for the record in its entirety, and we would 
like for you to summarize that testimony in about 5 minutes.
    You will see in front of you a little box with a green 
light. When the green light turns to red, that means your 5 
minutes has expired and we would like for you to try to wrap up 
at that time if you haven't already.
    We will begin this afternoon with Mr. Robertson.

    STATEMENT OF ROBERT E. ROBERTSON, DIRECTOR, EDUCATION, 
WORKFORCE, AND INCOME SECURITY ISSUES, UNITED STATES GOVERNMENT 
                     ACCOUNTABILITY OFFICE

    Mr. ROBERTSON. Mr. Chairman, Mr. Levin--do we have a 
working mic here?
    Yes, we do. I'll dispense with the tap, tap, tapping, then.
    I'm very happy to be here this morning to discuss SSA's 
preparations for rolling out its new, revamped disability 
determination process.
    As you're aware, perhaps painfully so, SSA for many years 
has been struggling to address longstanding problems with its 
disability claims process in hopes that the DSI process, or 
DSI, will improve the timeliness and the quality of its 
disability decisions.
    Mr. Chairman, I will make just three points this morning, 
and in the interests of time and my fellow panel members here, 
I'll try to do it very quickly.
    First, from our perspective, it appears that the actions 
SSA has taken to help facilitate the successful implementation 
of the DSI does draw upon many lessons learned from earlier 
redesign efforts, and I might humbly add also that they reflect 
a number of our past recommendations.
    For example, significant aspects of the DSI rollout are 
consistent with our recommendations to focus attention on 
elements that are critical to rollout's success, such as 
quality assurance and computer supports.
    Further, SSA's incremental approach to the rollout, which 
allows for a year of monitoring and evaluation in one region 
before expanding the approach to other regions, is also 
consistent with our past recommendations.
    Finally, and fundamental to all of this, SSA's top 
leadership has shown a commitment to informing affected 
stakeholders and listening to their advice and concerns with 
respect to the development and implementation of this process.
    This type of two-way communication is of course critical to 
any successful change management of the magnitude we've been 
talking about this morning.
    The second point I'd like to make is that while SSA has 
taken many positive steps in preparing for implementing DSI in 
the Boston region, the rollout schedule is extremely ambitious. 
As a result, some parts of the rollout strategy are not yet 
fully developed, including a final plan for its evaluation.
    For example, we would hope that SSA has a solid monitoring 
plan in place once DSI is implemented in Boston. Such a plan is 
absolutely crucial to quickly identifying and correcting 
problems that surely will surface during the implementation.
    Perhaps more importantly, SSA needs a sound evaluation plan 
to be in a position of determining whether or not the DSI 
changes are accomplishing their broader purpose. That is, are 
they producing more quick decisions, are they producing 
consistent decisions, that type of thing.
    As a quick aside here, I appreciate the questions that came 
up early in the hearing, talking just about the evaluation 
plans for this rollout. It is something that every opportunity 
I get during today's hearing I'm going to emphasize, because I 
think it's just absolutely critical.
    We also hope that SSA's top management will be vigilant in 
ensuring that communication lines stay open during the critical 
rollout period in order to fully understand and effectively 
address questions and concerns that affected stakeholders may 
have.
    My last discussion point relates to the elimination of the 
Appeals Council and its replacement with a DRB.
    Obviously, there's been great concern from a number of 
stakeholders who in general have noted that the change could 
increase the workload of Federal courts and additionally 
results in hardships for claimants in terms of the loss of an 
administrative appeal level and difficulties associated with 
pursuing their claims in Federal court.
    At this point, Mr. Chairman, we're not in a good position 
to predict the effects this change will have on Federal court 
caseloads or on claimants. Obviously, we and many other people 
in this room will be closely following SSA's assessment of the 
review board's impact in both of these areas.
    I would point out, however, as has been pointed out 
earlier, that the immediate impact of this change will be 
somewhat softened by SSA's plan to require that the board 
review all ALJ decisions in the Boston Region, not just those 
selected decisions that involve issues that have historically 
posed challenges to accuracy and consistency.
    Mr. Chairman, that ends my prepared remarks and I'll be 
happy to answer questions at the appropriate time.
    [The prepared statement of Mr. Robertson follows:]
 Statement of Robert E. Robertson, Director, Education, Workforce, and 
     Income Security Issues, U.S. Government Accountability Office
    Mr. Chairman and Members of the Subcommittee:
    Thank you for inviting me today to discuss stakeholder concerns 
about various aspects of the Social Security Administration's (SSA) new 
Disability Service Improvement process (DSI) and the steps that SSA has 
taken to address these concerns. SSA is preparing to implement its new 
process first in its Boston region for at least 1 year beginning in 
August 2006.
    In July 2005, SSA issued a notice of proposed rule making to obtain 
public comment on DSI proposals that would fundamentally redesign the 
way claims for disability benefits are processed and considered, with 
the purpose of improving the accuracy, consistency and fairness of its 
disability decisions, and making correct decisions earlier in the 
process. After reviewing comments submitted in response to its notice, 
SSA issued its final rule in March 2006, codifying many of its proposed 
changes. One of the many changes envisioned under DSI is the 
elimination of the Appeals Council, which had afforded claimants the 
ability to appeal unfavorable decisions made by administrative law 
judges (ALJ) to SSA before filing suit with a federal court. Once DSI 
is fully implemented, decisions made by the ALJs become the final 
agency decision, unless they are selected for review by a new Decision 
Review Board. The cases selected for review will be those identified 
through use of a statistical model as claims that are complex or prone 
to erroneous decisions. As you know, many have expressed concern over 
the elimination of the Appeals Council as a forum that claimants could 
avail themselves of before resorting to a federal court.
    The information I am providing today is based on work that we 
conducted between February 22, 2006, and June 2, 2006, as part of 
ongoing work in this area, in accordance with generally accepted 
government auditing standards. I will be discussing (1) concerns raised 
about the replacement of the Appeals Council with the Decision Review 
Board and how SSA has responded to them, and (2) steps SSA has taken to 
help facilitate a smooth implementation of the DSI process.
    To conduct our work, we reviewed a large sample (252 in total) of 
the comment letters that were submitted by the public in response to 
SSA's notice of proposed rule making and that focused on the 
replacement of the Appeals Council with the Decision Review Board. In 
addition, we interviewed 10 stakeholder groups--such as claimant 
representatives, employee groups, and disability advocacy organizations 
that SSA has previously consulted with--to learn more about their 
perspectives on the elimination of the Appeals Council as well as on 
the near-term rollout of the DSI process in the Boston region. In 
addition, we conducted extensive interviews with SSA officials and 
reviewed available agency documents to determine their position on and 
collect data relevant to eliminating the Appeals Council, as well as 
their efforts and plans related to DSI implementation. Further, we 
reviewed our past reports on improving SSA's disability process in a 
number of areas, including human capital; its electronic records 
system--known as eDib; quality assurance; and implementing change and 
managing for success. For a more detailed description of our 
methodology, please see appendix I.
    In summary, we found that the public and stakeholders expressed two 
overriding concerns regarding the replacement of the Appeals Council 
with the Decision Review board--that the workload of the federal courts 
will rise if the council is eliminated and that this change will 
present additional hardship for claimants. In our review of the comment 
letters submitted to SSA that specifically addressed the elimination of 
the Appeals Council, we found that about half expressed concern that 
petitions to federal courts would rise, given the council's 
termination, and that claimants would lose an additional level of 
administrative review. About 40 percent of comments highlighted recent 
improvements in the Appeals Council's processes and noted that 
eliminating the council would not improve adjudication. Stakeholder 
groups we spoke with basically underscored these same two points--that 
eliminating the Appeals Council would result in an increase in 
disability claims cases that are appealed in federal district courts 
and that some claimants may drop meritorious claims rather than pursue 
a seemingly complicated and intimidating federal court appeal. 
Acknowledging these concerns, SSA contends that DSI will improve 
decision making earlier in the process, decrease the time it takes the 
agency to reach a final decision, and reduce the need for appeal. SSA 
also maintains that because DSI affords claimants the right to appeal 
their initially denied claims to reviewing officials who are now 
centrally managed, claimants will not experience an overall loss in 
administrative review at the federal level. At the same time, both 
stakeholders and SSA believe it will be important for the agency to 
closely monitor DSI in order to evaluate its impact on claimants and 
the courts.
    SSA has made substantial preparation for DSI on all fronts related 
to successful implementation--human capital, technical infrastructure, 
and quality assurance. However, the timetable is ambitious and much 
work remains. While stakeholders have expressed concern that SSA will 
not be able to hire and sufficiently train staff in time for the new 
process to get under way, we found that the agency has, to date, posted 
hiring announcements for new positions and developed training packages 
for onboard staff. SSA is also taking steps, as we had previously 
recommended, to ensure that key technical supports, particularly the 
electronic disability system known as eDib, are in place for Boston 
staff to adjudicate claims under the new process. At the same time, the 
agency has allowed itself very little time to identify and resolve any 
potential glitches that may arise before the Boston rollout in August. 
Regarding quality assurance, SSA has taken several steps to lay a 
foundation for a more cohesive program, as we had recommended in our 
earlier reports. For example, features of the new DSI process--
including centralizing quality assurance reviews of initial state 
disability determination service (DDS) decisions, establishing a 
Decision Review Board for hearing decisions, and developing several 
tools to aid decision writing--may address problems with decisional 
consistency that we have identified in the past by allowing for a 
cohesive analysis of decisions. In addition, SSA officials plan to 
monitor and evaluate the execution of the Boston rollout, although some 
performance measures for this initiative, such as for assessing a new 
medical expert system that is part of DSI, are still unclear to us, and 
mechanisms for delivering feedback to staff on the clarity and 
soundness of their decision writing have not yet been fully developed. 
Finally, SSA is undertaking other, broad steps that we consider 
consistent with effective change management strategies that we have 
previously recommended. For example, the decision to implement the new 
system first on a small scale--that is, in one small region--before 
introducing it elsewhere should allow for careful integration of the 
new systems and staff and for working out problems before they become 
serious impediments to success. Additionally, SSA has employed a 
proactive, collaborative approach with the stakeholder community in 
both designing and implementing the new disability determination 
process.
Background
    SSA operates the Disability Insurance (DI) and Supplemental 
Security Income (SSI) programs--the two largest federal programs 
providing cash benefits to people with disabilities. The law defines 
disability for both programs as the inability to engage in any 
substantial gainful activity by reason of a severe physical or mental 
impairment that is medically determinable and is expected to last at 
least 12 months or result in death. In fiscal year 2005, the agency 
made payments of approximately $126 billion to about 12.8 million 
beneficiaries and their families. We have conducted a number of reviews 
of SSA's disability programs over the past decade, and the agency's 
management difficulties were a significant reason why we added 
modernizing federal disability programs to our high-risk list in 2003. 
In particular, SSA's challenges include the lengthy time the agency 
takes to process disability applications and concerns regarding 
inconsistencies in disability decisions across adjudication levels and 
locations that raise questions about the fairness, integrity, and cost 
of these programs.
    The process SSA uses to determine that a claimant meets eligibility 
criteria--the disability determination process--is complex, involving 
more than one office and often more than one decision maker. Under the 
current structure--that is, DSI notwithstanding--the process begins at 
an SSA field office, where an SSA representative determines whether a 
claimant meets the programs' nonmedical eligibility criteria. Claims 
meeting these criteria are forwarded to a DDS to determine if a 
claimant meets the medical eligibility criteria. At the DDS, the 
disability examiner and the medical or psychological consultants work 
as a team to analyze a claimant's documentation, gather additional 
evidence as appropriate, and approve or deny the claim. A denied 
claimant may ask the DDS to review the claim again--a step in the 
process known as reconsideration. If the denied claim is upheld, a 
claimant may pursue an appeal with an ALJ, who will review the case. At 
this step, the ALJ usually conducts a hearing in which the claimant and 
others may testify and present new evidence. In making the disability 
decision, the ALJ considers information from the hearing and from the 
DDS, including the findings of the DDS's medical consultant. If the 
claimant is not satisfied with the ALJ decision, the claimant may 
request a review by SSA's Appeals Council, which is the final 
administrative appeal within SSA. If denied again, the claimant may 
file suit in federal court.
    In March 2006, SSA published a final rule to establish DSI, which 
is intended to improve the accuracy, consistency, and fairness of 
decision making and to make correct decisions as early in the process 
as possible. While DDSs will continue to make the initial 
determination, claims with a high potential for a fully favorable 
decision will be referred to a new Quick Disability Determination (QDD) 
process. If the claimant is dissatisfied with the DDS's initial 
determination or QDD, the claimant may now request a review by a 
federal reviewing official--a new position to be staffed by centrally 
managed attorneys. The federal reviewing official replaces the 
reconsideration step at the DDS level, and creates a new level of 
federal review earlier in the process. The claimant's right to request 
a hearing before an ALJ remains unchanged. However, the Appeals Council 
is eliminated under the new process, and as a result the ALJ's decision 
becomes the final agency decision except in cases where the claim is 
referred to the new Decision Review Board. Claims with a high 
likelihood of error, or involving new areas of policy, rules, or 
procedures, are candidates for board review. \1\ If the board issues a 
new decision, it becomes the final agency decision. As before, 
claimants dissatisfied with the final agency decision may seek judicial 
review in federal court. DSI also includes the introduction of new 
decision-writing tools that will be used at each adjudication level, 
and are intended to streamline decision making and facilitate training 
and feedback to staff. In addition, SSA is creating a Medical and 
Vocational Expert System, staffed by a unit of nurse case managers who 
will oversee a national network of medical, psychological, and 
vocational experts, which are together responsible for assisting 
adjudicators in identifying and obtaining needed expertise. In its 
final rule, SSA indicated that DSI will further be supported by 
improvements, such as a new electronic disability system and an 
integrated, more comprehensive quality system.
---------------------------------------------------------------------------
    \1\ According to SSA, for the first year of implementation in the 
Boston region, the board will review all ALJ decisions.
---------------------------------------------------------------------------
    As noted, the changes introduced by DSI were codified in SSA's 
final rule on the subject. Table 1 highlights these new features and 
associated elements.
Table 1: Key Aspects of DSI

----------------------------------------------------------------------------------------------------------------
             New feature                                          Associated elements
----------------------------------------------------------------------------------------------------------------
Quick Disability Determinations       Expedited processing for certain clear-cut cases.
                                     ---------------------------------------------------------------------------
                                      Use of a predictive model to screen for cases that have a greater
                                       likelihood of allowance and to act on those claims within 20 days.
                                     ---------------------------------------------------------------------------
                                      Nationally standardized training for examiners in DDS on this process.
                                     ---------------------------------------------------------------------------
                                      Medical or psychological experts must verify that the medical evidence is
                                       sufficient to determine that the impairment meets the standards.
----------------------------------------------------------------------------------------------------------------
Medical and Vocational Expert System   A national network of medical, psychological, and vocational experts who
                                       will be available to assist adjudicators throughout the agency.
                                     ---------------------------------------------------------------------------
                                      The national network will be overseen by a new Medical and Vocational
                                       Expert Unit.
                                     ---------------------------------------------------------------------------
                                      All experts affiliated with the network must meet qualifications, which
                                       are still under development.
----------------------------------------------------------------------------------------------------------------
Federal reviewing officials            A cadre of federal reviewing officials--all attorneys--can affirm,
                                       reverse, or modify appealed DDS decisions. Federal reviewing officials
                                       cannot remand cases to the DDSs for further review, but they can ask that
                                       the DDSs provide clarification or additional information for the basis of
                                       their determination.
                                     ---------------------------------------------------------------------------
                                      Reviewing officials may obtain new evidence and claimants can submit
                                       additional evidence at this stage. If necessary, the reviewing official
                                       may issue subpoenas for documents.
                                     ---------------------------------------------------------------------------
                                      If a reviewing official disagrees with the DDS decision, or if new
                                       evidence is submitted, he or she must consult with an expert in the
                                       expert system.
----------------------------------------------------------------------------------------------------------------
Decision Review Board                  The Decision Review Board will replace the Appeals Council. It will be
                                       composed of individuals selected by SSA's Commissioner, and each member
                                       will serve a designated term.
                                     ---------------------------------------------------------------------------
                                      The board will review both allowances and denials, and the board has the
                                       ability to affirm, modify, reverse, or remand ALJ decisions.
                                     ---------------------------------------------------------------------------
                                      A new sampling procedure--or predictive model--will identify ALJ decisions
                                       that are error-prone or complex for the board's review. The predictive
                                       model, which is still under development, is expected to select 10 to 20
                                       percent of ALJ decisions for the board's review.
                                     ---------------------------------------------------------------------------
                                      The board has 90 days from the date the claimant receives notice of board
                                       review to make its final decision. If it fails to act within that period,
                                       the ALJ decision remains SSA's final decision.
                                     ---------------------------------------------------------------------------
                                      A claimant may submit a written statement to the board within 10 days of
                                       receiving notice that the board will review his or her case, explaining
                                       why he or she agrees or disagrees with the ALJ's decision. This statement
                                       may be no longer than 2,000 words.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis.
Note: While DSI does not change the structure or scope of ALJ reviews, the new process has several elements that
  affect hearings at the ALJ level. Namely, SSA will notify claimants at least 75 days prior to the hearing of
  the date and time for which the hearing has been scheduled. Additionally, claimants have to submit evidence at
  least 5 business days before the hearing date itself.

    Implementation of DSI will begin on August 1, 2006, in the Boston 
region, which includes the states of Connecticut, Massachusetts, Maine, 
New Hampshire, Rhode Island, and Vermont.\2\ Therefore, only those 
claims filed with SSA in the Boston region on or after August 1 will be 
subject to the new process.\3\ All claims currently in process in the 
Boston region, and claims filed elsewhere, will continue to be handled 
under current procedural regulations until SSA takes further action.\4\ 
In addition, for cases filed in the Boston region during the first year 
of DSI implementation, all ALJ decisions--both allowances and 
disallowances--will be reviewed by a new Decision Review Board with 
authority to affirm, modify, reverse, or remand decisions to the 
ALJ.\5\ Since DSI will only affect new claims initiated in the Boston 
region, claimants whose cases were already in process before August--as 
well as those filing outside the Boston region--will still have access 
to the Appeals Council.
---------------------------------------------------------------------------
    \2\ According to these regulations, SSA will publish a notice in 
the federal register when it decides to roll out DSI in another region, 
but this notice will not be subject to the formal rule-making process.
    \3\ If a claimant moves to another region from the Boston region, 
and initially filed the claim in the Boston region on or after August 
1, 2006, the conditions of the DSI process will apply to that claimant 
no matter where he or she moves. If a claimant initially filed 
elsewhere and then moves to the Boston region, the DSI process will not 
apply to him or her.
    \4\ These procedures can be found in the Code of Federal 
Regulations, 20 CFR 404.900-404.999d and 416.1400-416.1499.
    \5\ According to SSA, the predictive model used to identify cases 
that are complex or error-prone will be tested against the board's 
review of all cases during the rollout in Boston. The model will be 
tested continually until it has been proven reliable.
---------------------------------------------------------------------------
Concerns Include Fear of Increased Court and Claimant Hardship, while 
        SSA Believes Its New Process Will Reduce the Need for Appeal
    In their written comments to SSA and discussions with us, public 
and stakeholder groups, such as claimant representatives and disability 
advocacy groups, expressed two broad areas of concern regarding the 
replacement of the Appeals Council with the Decision Review Board: (1) 
potential for increasing the workload of the federal courts and (2) 
anticipated hardship for claimants in terms of loss of an 
administrative appeal level and difficulties associated with pursuing 
their claims in federal court. SSA's response to concerns regarding the 
federal court workload is that all changes associated with new DSI 
process--taken together--should reduce the need for appeal to the 
federal courts. At the same time, SSA plans to implement this final 
step gradually and with additional safeguards to minimize the impact on 
the courts. In response to concerns about the loss of appeal rights, 
SSA contends that under the new DSI process, claimants will have a new 
level of federal review earlier in the process, and should experience a 
decline in the amount of time it takes to receive a final agency 
decision without being overly burdened by the Decision Review Board 
under the new process.
Public and Stakeholders Anticipate a Larger Caseload for Courts, while 
        SSA Maintains That Better Decisions Earlier in the Process Will 
        Reduce the Need for Appeal
    Concerns expressed in comment letters to SSA and in our interviews 
revolved largely around the possibility that the replacement of the 
Appeals Council with the Decision Review Board would result in rising 
appeals to the federal courts. Specifically, more than half of the 252 
comment letters we reviewed indicated that the Appeals Council provides 
an important screening function for the federal courts, and that its 
replacement with the Decision Review Board could result in rising 
caseloads at the federal court level. Stakeholder groups with whom we 
spoke reiterated this concern. With the imminent rollout in the Boston 
region, several stakeholders suggested that SSA closely monitor the 
effectiveness of the board and the impact of this change on the federal 
courts.
    Data from SSA suggest that the Appeals Council is both screening 
out a number of cases that might otherwise have been pursued in the 
federal courts and identifying many claims that require additional 
agency analysis. Between 2001 and 2005, the number of disability cases 
appealed to SSA's Appeals Council rose 13 percent. At the same time, 
the number of disability cases filed with the federal courts (both DI 
and SSI) declined 9 percent.\6\ Figure 1 illustrates the volume of 
receipts at both the federal court and the Appeals Council levels 
during this period.
---------------------------------------------------------------------------
    \6\ According to data from the U.S. District Courts, claims from 
15,416 disability insurance cases (both DI and SSI), or 6 percent of 
the court's total workload, were filed during the 12-month period 
ending March 31, 2005--down from 16,921 in 2001.
---------------------------------------------------------------------------
Figure 1: Federal Court and Appeals Council Receipts between 2001 and 
        2005

        
        
    Note: Data on federal court cases are for the 12-month periods 
ending March 31 of the named year. Data on Appeals Council cases are 
collected on a fiscal year basis.
    Further, the Appeals Council consistently remanded about 25 percent 
of the claims it reviewed between 2001 and 2005 for further 
adjudication by the administrative law judge--see figure 2--providing 
more evidence that the Appeals Council is identifying a significant 
number of claims that require additional agency review and 
modification.
Figure 2: Disposition of Appeals Council Cases, by Fiscal Year, 2001-
        2005

        
        
    Note: The Appeals Council will deny review if cases do not meet the 
following criteria--there does not appear to be an abuse of discretion 
by the ALJ; there is no error of law; the actions, findings, or 
conclusions of the ALJ are supported by substantial evidence; or the 
case does not present a broad policy or procedural issue that may 
affect public interest. If the Appeals Council denies review, the ALJ 
decision stands as the final agency decision.
    SSA believes that the implementation of DSI as an entire process 
will help it make the correct disability determination at the earliest 
adjudication stage possible and thereby reduce the need for appeal. 
According to SSA, several elements of the DSI process will contribute 
to improved decision making. These include the federal reviewing 
official position, which presents an enhanced opportunity for the 
agency to thoroughly review case records--with the assistance of 
medical and vocational experts--early in the process, as well as new 
online policy guidance and new tools to aid decision writing, which 
will be used at each adjudication level to facilitate consistency and 
help the agency identify and correct errors more quickly. Last, SSA 
believes that the number of requests for voluntary remands that SSA 
makes to the federal courts is an indicator that the Appeals Council is 
not fully addressing errors in the case or otherwise reviewing the case 
effectively so as to prevent the federal courts from reviewing appeals 
that should have been handled administratively.\7\ SSA believes the 
Decision Review Board will more effectively screen cases from federal 
court review by focusing on error-prone claims identified through a 
predictive model.
---------------------------------------------------------------------------
    \7\ According to SSA officials, request for voluntary remands occur 
when a claimant files an appeal with the federal court and SSA's Office 
of General Counsel determines that the case is not defensible.
---------------------------------------------------------------------------
    SSA acknowledges that the agency cannot predict the likely impact 
on the federal courts' workload and cannot prevent denied claimants 
from filing suit with the federal courts.\8\ To reduce the likelihood 
of too many appeals reaching the federal court level, SSA stated in its 
final rule that it is pursuing a gradual rollout by implementing the 
DSI process in one small region--the Boston region--and plans to have 
the board initially review all of the ALJ decisions in that region. 
According to SSA officials, the board's review of all ALJ decisions 
will allow them to test the efficacy of the new predictive model, to 
help ensure that the model is identifying the most-error prone cases 
that might otherwise find their way to federal court. Further, SSA 
officials told us that they are working with the federal court system 
to develop a way to gauge changes in the court's caseload. Finally, 
SSA's internal counsel told us that the agency has begun a systematic 
data collection process to better understand the circumstances 
surrounding remands from the federal court. To date, SSA attorneys have 
analyzed the reasons for federal court remands in more than 1,600 
cases, but they are still working on a quality control mechanism to 
ensure that their information has been entered properly and are 
therefore unwilling to report on the results of their analysis at this 
time. \9\
---------------------------------------------------------------------------
    \8\ In the 1990s, SSA conducted a pilot--the Full Process Model--
which included, among other changes, eliminating the Appeals Council. 
According to SSA officials, although they collected some data on the 
number of direct appeals from the ALJ level to the federal courts, the 
agency discontinued its pilot before collecting sufficient data for a 
complete assessment of the model's impact.
    \9\ SSA officials also indicated that they intend to develop a 
predictive model, to build on current efforts, that identifies error-
prone cases among those denied by ALJs that are subsequently remanded 
by the federal courts back to SSA for further adjudication.
---------------------------------------------------------------------------
Public and Stakeholders Anticipate Increased Hardship for Claimants, 
        but SSA Believes the New Federal Reviewing Official Position 
        Will Improve Decision Making Earlier
    In their comments on the proposed rule and in subsequent 
conversations with us, stakeholders expressed concern that eliminating 
the Appeals Council would cause claimants hardship both by eliminating 
the opportunity to appeal an ALJ decision to the Appeals Council and by 
increasing the cost and difficulty associated with pursuing cases in 
federal court.
    In particular, 48 percent of the 252 comment letters we reviewed 
expressed concern that the replacement of the Appeals Council with the 
Decision Review Board would represent a loss in claimant appeal rights 
within SSA. These letters, as well as subsequent discussions with 
stakeholders, emphasized the concern that claimants will not have a say 
in which cases are reviewed by the board. Further, stakeholders were 
concerned that in the Boston region, claimants whose cases were allowed 
at the ALJ level could be overturned by the board, presenting 
additional hardship for claimants as they await a decision.
    In addition, claimant representatives and disability advocacy 
organizations are concerned that appealing at the federal court rather 
than Appeals Council level would be costlier and more intimidating for 
claimants. For example, there is a filing fee associated with the 
federal courts, and stakeholders commenting on SSA's final rule said 
that the filing procedure is more complicated than that required for an 
appeal before the Appeals Council.\10\ In addition, claimants seeking 
representation must find attorneys who, among other requirements, have 
membership in the district court bar in which the case is to be filed. 
As a result of these hardships, claimant representatives and disability 
advocacy organizations, in particular, were concerned that claimants 
would drop meritorious claims rather than pursue a seemingly 
complicated and intimidating federal court appeal.
---------------------------------------------------------------------------
    \10\ To appeal to the Appeals Council, applicants need only 
complete a one-page form and return it to SSA. For the federal courts, 
there is a $250 filing fee. Although this fee can be waived (based on 
need), claimant representatives and disability advocates assert that 
the fee may be cost-prohibitive for some claimants, and representing 
oneself at the federal court level is challenging.
---------------------------------------------------------------------------
    About 40 percent of the comment letters asserted that the amount of 
time the Appeals Council spent adjudicating cases--also referred to as 
its processing time--has improved recently, and letter writers did not 
believe that terminating the Appeals Council would improve the 
adjudicative process. Although SSA has contended that the Appeals 
Council has historically taken too much time without providing 
claimants relief, stakeholders' claims that the Appeals Council 
processing time has decreased significantly in recent years was 
confirmed by SSA data--see figure 3. In light of these concerns, many 
stakeholder groups we spoke with suggested that SSA should roll out the 
Decision Review Board carefully and closely evaluate outcomes from 
claimants' perspectives.
Figure 3: Appeals Council Processing Time and Volume of Dispositions, 
        by Fiscal Year, 2001-2005
        


        
    Note: SSA does not track how many of the cases remanded by the 
Appeals Council result in denials that are appealed again to the 
council.
    In their final rule and in conversations with us, SSA officials 
stated that the new process still affords claimants comparable appeal 
rights along with the promise of a faster agency decision. 
Specifically, SSA stated that DSI includes two federal levels of 
thorough case development and administrative review--one by the new 
federal reviewing official and another by an ALJ at the hearings level. 
SSA contends that the new federal reviewing official position is a 
marked departure from the reconsideration step, in that the position 
will be managed centrally and staffed by attorneys specifically charged 
with enhancing the development of a case and working with a new cadre 
of medical and vocational experts to make decisions. SSA believes that 
this new position, along with other changes in the new process, will 
result in many more cases being correctly adjudicated earlier in the 
process, resulting in fewer decisions appealed and reviewed by ALJs at 
the hearings level.
    SSA also argues--recent improvements in processing time 
notwithstanding--that the elimination of the Appeals Council step will 
reduce the length of time it takes the agency to reach a final decision 
on behalf of the claimant. Further, SSA maintains that the replacement 
of the Appeals Council with the board will not be prejudicial to or 
complicated for the claimant. SSA indicated that claimants will have an 
opportunity to submit written statements to the Decision Review Board, 
thus providing another chance to assert their circumstances. SSA 
maintains that aside from the written statement, further action is not 
required on the part of the claimant until the board issues its 
decision.
    SSA has told us that it plans to monitor stakeholder concerns in 
several ways. For example, SSA plans to track the length of time it 
takes to reach final decisions as well as the allowance rate. SSA also 
plans to review written statements submitted by claimants to help 
assess the validity of the board's predictive model.\11\
---------------------------------------------------------------------------
    \11\ Specifically, SSA plans to compare the contents of these 
statements to the results of the predictive model. If SSA determines 
that using claimant statements will improve the model, SSA would 
consider revising the model to incorporate information from these 
documents.
---------------------------------------------------------------------------
SSA Has Taken Constructive Steps to Implement the New DSI Process, but 
        Its Schedule Is Ambitious and Many Details Are Not Yet 
        Finalized2
    SSA has prepared in significant ways for DSI, but the agency's 
timetable is ambitious and substantive work remains. SSA has moved 
forward in key areas that should underpin the new system--human capital 
development, technical infrastructure, and quality assurance. However, 
some essential measures remain under development, particularly for 
quality assurance. Nevertheless, on balance, the agency has begun to 
employ a number of change management strategies we recommended earlier 
for successful transitioning.
SSA Has Moved to Hire and Train Staff, but It Faces Short Timetables
    While stakeholders have expressed concern that SSA will not be able 
to hire and sufficiently train staff in time for the new process, we 
found that the agency has taken a number of steps in this area. With 
respect to hiring for new positions, the agency has already developed 
position descriptions and posted hiring announcements for nurse case 
managers, who will work in the new Medical and Vocational Expert Unit, 
as well as for federal reviewing officials. To date, SSA officials have 
begun assessing more than 100 eligible applicants for the reviewing 
official slots, and expect to hire 70 by late June and another 43 in 
early 2007. SSA officials also said they posted announcements to hire 
nurse case managers, and that they expect to hire as many as 90 before 
the end of the rollout's first year in the Boston region.
    SSA officials also said that the agency has posted announcements to 
hire support staff for both the reviewing officials and nurse case 
managers, but the exact number SSA is seeking to hire has not been 
decided. Several stakeholders we spoke with were particularly concerned 
that SSA will need to hire or otherwise provide adequate support staff 
for reviewing officials to ensure their effectiveness. Specifically, 
several of the ALJs we interviewed told us that at the hearings level, 
judges and their staff currently spend significant time developing case 
files. They noted that if the reviewing official position is designed 
to focus on case development, then attorneys in this role will need 
support staff to help them with this time-consuming work.
    With respect to training, the agency has been creating a variety of 
training materials for new and current staff, with plans to deliver 
training at different times, in different ways. SSA officials reported 
working on development of a uniform training package for all staff with 
some flexible components for more specialized needs. Specifically, 
about 80 percent of the package is common content for all employees, 
and 20 percent will be adaptable to train disability examiners, medical 
experts, ALJs, and others involved in the adjudication process. SSA 
officials said they developed the package with the federal reviewing 
officials in mind, but also with an eye toward a centralized training 
content that could apply to current and new staff down the line. SSA 
plans to provide the full training package, which constitutes about 8 
weeks of course work and 13 modules, to reviewing officials in late 
June, once all attorneys for that position are hired. Among the 
sessions included are the basics of the disability determination 
process, eDib and its use, medical listings and their application, and 
decision writing.
    Given that the rule was finalized in March and rollout is set for 
August, agency timetables for hiring, training, and deploying more than 
100 new staff--as well as for training existing examiners--in the six 
states in the Boston region are extremely short. SSA officials have 
acknowledged the tight time frame, but hope to deliver training by 
using more than one medium--in person, online, or by video. SSA still 
expects to accomplish all hiring and training for the Boston region 
staff in time for an August 1 launch of the new process.
SSA Has Readied eDib for the Boston Region, but Time for Resolving 
        Last-Minute Glitches before Rollout Will Be Limited
    SSA has also taken steps, as we had previously recommended, to 
ensure that key technical supports, particularly an electronic 
disability case recording and tracking system known as eDib, are in 
place in time for Boston staff to adjudicate claims under DSI 
electronically. The agency has made a variety of efforts to familiarize 
employees with the system and facilitate their ability to use it as 
early as possible. First, SSA positioned the Boston region for a fast 
transition to eDib by reducing the region's paper case backlog. 
According to a Boston region ALJ, pending case records are being 
converted now to familiarize judges and decision writers with the eDib 
system so they will be comfortable with it when new cases reach that 
level after August 1. Then SSA worked with Boston region staff to 
certify that the region's DDS offices were ready for full eDib 
implementation.
    According to claimant representatives, SSA has also worked to 
facilitate their transition to eDib, and according to SSA officials, 
the agency has developed a system called Electronic Records Express to 
facilitate medical providers' submission of records to SSA. A 
stakeholder group of claimant representatives told us that SSA has 
offered them training and that they have met regularly with agency 
staff to smooth out eDib issues, such as difficulties associated with 
the use of electronic folders--electronic storage devices that replace 
paper folders as the official record of evidence in a claimant's case 
file. This stakeholders group also reported that its members have 
voluntarily coordinated with SSA to test new techniques that might 
further facilitate eDib implementation.
    SSA has also been developing electronic templates to streamline 
decision writing. ALJs have already received some training on theirs, 
which is known as the Findings Integrated Template. According to SSA 
officials, this template is now used, voluntarily, by ALJs nationwide, 
after months of extensive testing and refinement. For DDS-level 
decisions, SSA is designing a template--called the Electronic Case 
Analysis Tool (E-CAT)--which it expects to be partially operational by 
July and fully implemented by November. DDS examiners in the Boston 
region will receive training on the tool in July and will also receive 
training prior to then on the elements of sound decision making. A 
similar tool is in development for the reviewing officials.
    While SSA officials expressed confidence in having technical 
supports sufficiently in place in time for implementation of DSI in 
August, unanticipated problems associated with new technology may 
challenge their ability to do so. In addition to eDib and E-CAT, SSA is 
implementing other new software systems to support the rollout (such as 
the predictive models and electronic medical records transmission)--any 
one of which may involve unexpected problems. For example, in 2005 we 
reported that a number of DDSs were experiencing operational slowdowns 
and system glitches associated with the new eDib system.\12\ It remains 
to be seen whether the Boston region experiences similar problems with 
eDib, or problems with other new systems, and whether SSA will be able 
to resolve technical issues that may arise before implementation begins 
in August.
---------------------------------------------------------------------------
    \12\ GAO, Electronic Disability Claims Processing: SSA Is 
Proceeding with Its Accelerated Systems Initiative but Needs to Address 
Operational Issues, GAO-05-97 (Washington, D.C.: Sept. 23, 2005).
---------------------------------------------------------------------------
SSA Is Improving Its Quality Assurance System as Part of DSI Roolout, 
        although Key Elements Have Yet to Be Revealed
    SSA is taking steps to improve its quality assurance system that 
have potential for improving the accuracy and consistency of decisions 
among and between levels of review, in a manner that is consistent with 
our past recommendations. As early as 1999, GAO recommended that in 
order to improve the likelihood of making improvements to its 
disability claims process, SSA should focus resources on initiatives 
such as process unification and quality assurance, and ensure that 
quality assurance processes are in place that both monitor and promote 
the quality of disability decisions\13\. Consistent with these 
recommendations, many of SSA's current efforts involve adding steps and 
tools to the decision-making process that promote quality and 
consistency of decisions and provide for additional monitoring and 
feedback. While these developments are promising, many important 
details of SSA's quality assurance system have yet to be finalized or 
revealed to us.
---------------------------------------------------------------------------
    \13\ GAO, SSA Disability Redesign: Actions Needed to Enhance Future 
Progress, GAO/HEHS-99-25 (Washington, D.C.: Mar. 12, 1999).
---------------------------------------------------------------------------
    SSA has recently elevated responsibility for its quality assurance 
system to a new deputy-level position and office--the Office of Quality 
Performance. This office is responsible for quality assurance across 
all levels of adjudication. Listed below are new aspects of the quality 
assurance system that this office oversees and that hold promise for 
promoting quality and consistency of decisions.

      SSA will continue to provide accuracy rates for DDS 
decisions, but these accuracy rates will be generated by a centralized 
quality assurance review, replacing the agency's older system of 
regionally based quality review boards and thereby eliminating the 
potential differences among regional reviews that were a cause for 
inconsistent decisions among DDSs.
      As part of the DSI rollout, SSA plans to incorporate new 
electronic tools for decision writing to be used by disability 
examiners, federal reviewing officials, and ALJs. The tools are 
intended to promote quality in two ways. First, the tools will require 
decision makers to document the rationale behind decisions in a 
consistent manner while specifically addressing areas that have 
contributed to errors in the past, such as failing to list a medical 
expert's credentials or inaccurately characterizing medical evidence. 
Second, the tools will help provide a feedback loop, by which 
adjudicators and decision writers can learn why and under what 
circumstances their decisions were remanded or reversed. SSA officials 
told us that once the tools are in full use, the Office of Quality 
Performance will collect and analyze their content to identify errors 
or areas lacking clarity. They also plan to provide monthly reports to 
regional managers in order to help them better guide staff on how to 
improve the soundness of their decisions and the quality of their 
writing.\14\
---------------------------------------------------------------------------
    \14\ The purpose of this tool is consistent with GAO's prior 
recommendations that SSA develop a more focused and effective strategy 
for ensuring uniform application of SSA's guidance and to improve 
consistency of decisions. GAO, Social Security Administration: More 
Effort Needed to Assess Consistency of Disability Decisions, GAO-04-656 
(Washington, D.C.: July 2, 2004).
---------------------------------------------------------------------------
      The establishment of the Decision Review Board, with 
responsibility for reviewing ALJ decisions, is intended to promote 
quality and consistency of decisions in two ways. First, once DSI is 
rolled out nationwide, the board will be tasked to review error-prone 
ALJ decisions with the intent of further ensuring the correctness of 
these decisions before they are finalized. Second, during the initial 
rollout phase, SSA plans to have the board review all ALJ decisions to 
verify that the predictive model used to select error-prone cases is 
doing so as intended. Importantly, both the tools and the board's 
assessment are consistent with our prior recommendations that SSA 
engage in more sophisticated analysis to identify inconsistencies 
across its levels of adjudication and improve decision making once the 
causes of inconsistency among them have been identified.\15\
---------------------------------------------------------------------------
    \15\ GAO-04-656.

    In addition to these actions, SSA told us it plans to measure 
outcomes related to how DSI is affecting claimants, such as allowance 
rates and processing times at each adjudication stage, and the 
proportion of cases remanded from the federal courts and the rationales 
for these remands. Further, officials told us they will work with the 
federal courts to track changes in their workload. SSA officials also 
told us they are working to monitor changes in costs associated with 
the new DSI process, in terms of both the administrative costs of the 
process, as well as its overall effect on benefit payments. Officials 
also said that SSA will track the length of time it takes the agency to 
reach a final decision from the claimant's perspective, which we have 
recommended in the past.\16\ Although SSA officials told us that ALJ 
accuracy rates will be generated from the board's review of all ALJ 
decisions, they said they were not yet certain how they will measure 
these rates once DSI is rolled out nationwide and the board is no 
longer reviewing all ALJ decisions.
---------------------------------------------------------------------------
    \16\ GAO, Observations on the Social Security Administration's 
Fiscal Year 1999 Performance Report and Fiscal Year 2001 Performance 
Plan, GAO/HEHS-00-126R (Washington, D.C.: June 30, 2000).
---------------------------------------------------------------------------
    While these developments are promising, aspects of these changes 
and of SSA's plans to monitor the DSI implementation have either not 
been finalized or not been revealed to us. For example, SSA has not yet 
revealed the types of reports it will be able to provide decision 
makers based on the decision-writing tools. In addition, while SSA 
plans to measure the effectiveness of the new process, its timeline for 
doing so and the performance measures it plans to use have not been 
finalized. According to SSA officials, potential measures include how 
well the predictive models have targeted cases for quick decisions at 
the initial DDS level or error-prone cases for the board, and whether 
feedback loops are providing information that actually improves the way 
adjudicators and decision writers perform their work.
SSA Has Employed Other Change Management Practices to Implement DSI
    SSA's efforts and plans show commitment to implementing DSI 
gradually, using tested concepts, involving top-level management, and 
communicating frequently with key stakeholders--practices that adhere 
closely to our prior recommendations on effective change management 
practices.
    With regard to gradual implementation, we had previously suggested 
that SSA test promising concepts in a few sites to allow for careful 
integration of the new processes in a cost-effective manner before 
changes are implemented on a larger scale.\17\ SSA's decision to 
implement DSI in one small region is consistent with this 
recommendation. SSA officials told us they selected Boston because it 
represents the smallest share of cases reviewed at the hearings level 
and because it is geographically close to SSA's headquarters to 
facilitate close monitoring. While SSA officials acknowledged that 
unanticipated problems and issues are likely to arise with 
implementation, they assert that they will be able to identify major 
issues in the first 60 to 90 days. SSA officials believe this will give 
them plenty of time to make changes before rollout begins in a second 
region. SSA has also indicated that it plans to roll DSI out next in 
another relatively small region.
---------------------------------------------------------------------------
    \17\ GAO, SSA Disability Redesign: Actions Needed to Enhance Future 
Progress, GAO/HEHS-99-25 (Washington, D.C.: March 12, 1999) and GAO, 
Correspondence to Jo Anne Barnhart, Commissioner of the Social Security 
Administration. (Washington, D.C.: Dec. 19, 2003).
---------------------------------------------------------------------------
    Also consistent with our past recommendations, SSA officials noted 
that some new elements of DSI have been tested prior to integration. 
For example, the ALJ tool for decision writing has been tested 
extensively during development, and they anticipate having fewer 
challenges when similar tools are used more widely. In addition, SSA 
has said that it has rigorously tested its model related to the Quick 
Disability Determination System and that it will continue to check the 
selection of cases and monitor the length of time it takes for quick 
decisions to be rendered.
    SSA's efforts and plans are also consistent with effective change 
management practices in that they ensure the commitment and involvement 
of top management.\18\ Specifically, SSA's Commissioner first proposed 
DSI-related changes in September 2003, and the agency began 
restructuring itself soon after the rule was finalized. In addition, 
SSA created a deputy-level post for its new Office of Quality 
Performance and appointed a new Deputy Commissioner in its newly 
created Office of Disability Adjudication and Review, which oversees 
the hearing and appeals processes.
---------------------------------------------------------------------------
    \18\ GAO, Business Process Reengineering Assessment Guide, GAO/
AIMD-10.1.15 (Washington, D.C.: May 1997).
---------------------------------------------------------------------------
    We have also encouraged top managers to work actively to promote 
and facilitate change, and SSA appears to be adhering to these 
principles as well.\19\ For example, SSA officials told us that the 
Deputy Commissioners from SSA's offices of Personnel and Human Capital 
have collaborated with their counterparts in policy units to develop 
position descriptions and competencies for nurse case managers and 
federal reviewing officials. According to SSA officials, these leaders 
are also collaborating to develop interview questions for eligible 
candidates. Further, SSA officials told us their new human capital plan 
will be released sometime in July and that it will emphasize the goals 
of DSI, as well as the personnel changes that will accompany it.
---------------------------------------------------------------------------
    \19\ GAO/AIMD-10.1.15 and GAO, Results-Oriented Cultures: 
Implementation Steps to Assist with Mergers and Organizational 
Transformations, GAO-03-669 (Washington, D.C.: July 2, 2004).
---------------------------------------------------------------------------
    Finally, SSA's communication efforts with stakeholders align with 
change management principles in several respects. For example, SSA has 
employed a proactive, collaborative approach to engaging the 
stakeholder community both during DSI's design and in its planning for 
implementation in order to explain why change is necessary, workable, 
and beneficial. Even before the notice of proposed rule making on DSI 
was published, SSA began to meet with stakeholder groups to develop the 
proposal that would eventually shape the new structure. Then, once the 
proposed rule was issued, SSA officials told us they formed a team to 
read and analyze the hundreds of comment letters that stakeholders 
submitted. In addition, they conducted a number of meetings with 
external stakeholders to help the agency identify common areas of 
concern and develop an approach to resolving the issues stakeholders 
raised before rollout began. According to SSA officials responsible for 
these meetings, the Commissioner attended more than 100 meetings to 
hear stakeholder concerns directly. Further, SSA recently scheduled a 
meeting for early July with claimant representatives to discuss that 
group's particular concerns about how the new process will affect their 
work and their disability clients. SSA officials told us that senior-
level staff will lead the meeting and that about 100 claimant 
representatives from the Boston region will attend.
    In addition, SSA officials have also worked to ensure that there 
are open lines of communication with its internal stakeholders, thereby 
ensuring that disability examiners and staff in the Boston region are 
knowledgeable about DSI-related changes. For example, SSA solicited 
comments and questions from the Boston region's staff about the 
specifics of the rollout and held a day-long meeting in the region, led 
by Deputy Commissioners, to respond to these concerns.
Conclusding Observations
    For some time, SSA has been striving to address long-standing 
problems in its disability claims process. From our perspective, it 
appears that SSA is implementing the new claims process by drawing upon 
many lessons learned from past redesign efforts and acting on, or at 
least aligning its actions with, our past recommendations. For example, 
significant aspects of the DSI rollout are consistent with our 
recommendations to focus resources on what is critical to improving the 
disability claims process, such as quality assurance and computer 
support. SSA's incremental approach to implementing DSI--taking a year 
to monitor the process and testing new decision-writing tools, for 
example--is also consistent with our recommendation to explore options 
before committing significant resources to their adoption. Thus, the 
agency is positioning itself to make necessary modifications before 
implementing the new process in subsequent locations. Finally, and 
fundamental to all of this, SSA's top leadership has shown a commitment 
to informing affected stakeholders and listening to their advice and 
concerns with respect to the development and implementation of this 
process.
    While SSA's steps and plans look promising, we want to stress the 
importance of diligence and follow-through in two key areas. The first 
is quality assurance, which entails both effective monitoring and 
evaluation. A solid monitoring plan is key to helping SSA quickly 
identify and correct problems that surface in the Boston rollout, 
because any failure to correct problems could put the entire process at 
risk. An evaluation plan is critical for ensuring that processes are 
working as intended and that SSA is achieving its overarching goals of 
making accurate, consistent decisions as early in the process as 
possible. The second key area is communication. It is important for 
SSA's top leadership to support open lines of communication throughout 
implementation if the agency is to facilitate a successful transition. 
Failure to, for example, provide useful feedback to staff--many of whom 
will be new to the agency or at least to the new tools--could 
significantly jeopardize opportunities for improvement. Just as 
important, SSA's top management needs to ensure that the concerns and 
questions of stakeholders affected by the new process are heard, and 
that concerned parties are kept apprised of how SSA intends to respond.
    The eventual elimination of the Appeals Council and its replacement 
with the Decision Review Board with a very different purpose has been a 
great cause of concern for a number of stakeholders. SSA appropriately 
has plans to assess its impact by tracking decisions resulting from 
each stage of the new process, as well as the effect of the process on 
the federal courts' caseloads and claimants at large. To its credit, 
SSA plans to reduce any immediate impact on the courts by requiring 
that the board initially review all ALJ decisions in the Boston region. 
However, given that the agency plans to rely heavily on new positions, 
such as the federal reviewing official, and on new technology, SSA will 
need to ensure that staff are well trained, and that each adjudicator 
has the support staff needed to work effectively. Focusing on one small 
region will, it is hoped, allow the agency to ensure that training, 
technology, and other resources are well developed to achieve expected 
goals before DSI is expanded to other parts of the country.
    Mr. Chairman, this concludes my prepared remarks. I would be happy 
to answer any questions that you or other members of the subcommittee 
may have.
Appendix I: Objectives, Scope, and Methodology
    To learn more about the public's and stakeholders' views with 
regard to the Appeals Council and the Decision Review Board, we 
reviewed and analyzed a large sample of comment letters they submitted 
to the Social Security Administration (SSA) in response to its July 
2005 notice of proposed rule making on the Disability Service 
Improvement process (DSI) that were related to these topics. We also 
interviewed a number of key stakeholder groups to solicit their 
opinions once the rule had been finalized.
Reviewing and Analyzing Comment Letters
    To review and analyze the comment letters, we first downloaded all 
1,143 comments that SSA had received and posted to its public Web site. 
In order to focus our review on only those letters that related to the 
Appeals Council and the Decision Review Board, we then applied a word 
search to restrict our analysis to the responses that used the terms 
``Decision Review Board,'' ``DRB,'' and ``Council.''\20\ Applying these 
search terms reduced the number of comment letters for review to 683. 
We discarded 43 of these 683 letters over the course of our review 
because they were duplicates of letters by the same authors or did not 
contain relevant comments. As a result, our final analysis was based on 
the remaining 640 letters.
---------------------------------------------------------------------------
    \20\ It is possible that statements could have been made about the 
Appeals Council and Decision Review Board that did not use these terms, 
and that we could have missed. If so, the number of responses related 
to these two entities could be greater than we are reporting.
---------------------------------------------------------------------------
    To classify the nature of the comments contained in these 640 
letters, we coded the opinions as related to one of more of the 
following concerns:

      The Appeals Council is improving, and its termination 
will not improve the disability determinations process.
      There is a risk that the Decision Review Board may not 
select the most appropriate cases for review.
      There is a risk that Decision Review Board could unfairly 
evaluate or influence administrative law judge decisions.
      In the absence of an Appeals Council, the claimant no 
longer has the right to initiate subsequent case review.
      There is no opportunity for the claimant or his or her 
representative to argue before the Decision Review Board.
      A claimant's benefit might be protracted or delayed 
during Decision Review Board assessment.
      Petitions to the federal court are likely to increase.
      Appeals to the federal court are costly or intimidating, 
and claimants may not have the wherewithal to pursue the claim at this 
level.

    Of the 640 letters in our review, we initially identified 388 as 
form letters, or letters containing identical comments, even though 
they had different authors. To simplify our review, we coded these form 
letters separately from the other letters. For the 252 letters that we 
did not initially identify as form letters, one analyst reviewed and 
coded each letter, while a second analyst verified that he or she had 
coded the statements appropriately. If the first and second analysts 
did not come to an agreement, a third analyst reviewed the comment and 
made the final decision for how the content should be classified. Table 
2 below indicates the percentage of the 252 letters citing one or more 
of the above concerns.
Table 2: Share of Comment Letters Including Each of the Concern 
        Categories Included in This Study

----------------------------------------------------------------------------------------------------------------
                                                             Percentage of comment letters expressing concern (n
                      Concern category                                              = 252)
----------------------------------------------------------------------------------------------------------------
 Petitions to the federal court are likely to increase.       53
----------------------------------------------------------------------------------------------------------------
 In the absence of an Appeals Council, the claimant no        48
 longer has the right to initiate subsequent case review.
----------------------------------------------------------------------------------------------------------------
 The Appeals Council is improving, and its termination will   38
 not improve the disability determinations process.
----------------------------------------------------------------------------------------------------------------
 Appeals to the federal court are costly or intimidating,     37
 and claimants may not have the wherewithal to pursue the
 claim at this level.
----------------------------------------------------------------------------------------------------------------
 There is no opportunity for the claimant or his or her       28
 representative to argue before the Decision Review Board.
----------------------------------------------------------------------------------------------------------------
 There is a risk that the Decision Review Board may not       25
 select the most appropriate cases for review.
----------------------------------------------------------------------------------------------------------------
 There is a risk that Decision Review Board could unfairly    22
 evaluate or influence administrative law judge decisions.
----------------------------------------------------------------------------------------------------------------
 A claimant's benefit might be protracted or delayed during   18
 Decision Review Board assessment.
----------------------------------------------------------------------------------------------------------------
Source: GAO analysis

    For the 388 form letters, we coded one letter according to the 
process described above. Because the text of the form letters was 
identical for each, we then applied the same codes to each of the other 
form letters. All 388 form letters expressed each of the concerns 
above.
Identifying and Interviewing Stakeholders
    To identify key stakeholders, we first referenced the list of 
organizations that SSA included in its notice of proposed rule making 
as having met with the agency during its development of the final rule. 
We then narrowed this list by obtaining suggestions from SSA officials 
about organizations that are the most active and cover a broad spectrum 
of disability issues. In total, we spoke with representatives from 10 
groups:

      Administrative Office of the U.S. Courts' Judicial 
Conference Committee on Federal-State Jurisdiction,
      Association of Administrative Law Judges (AALJ),
      Consortium for Citizens with Disabilities' Social 
Security Task Force (CCD),
      National Association of Councils on Developmental 
Disabilities (NACDD),
      National Association of Disability Examiners (NADE),
      National Association of Disability Representatives 
(NADR),
      National Council of Disability Determination Directors 
(NCDDD),
      National Council of Social Security Management 
Associations (NCSSMA),
      National Organization of Social Security Claimants' 
Representatives (NOSCCR), and
      Social Security Advisory Board.

                                 

    Chairman MCCRERY. Thank you, Mr. Robertson. Ms. Ford.

STATEMENT OF MARTY FORD, CO-CHAIR, SOCIAL SECURITY TASK FORCE, 
           CONSORTIUM FOR CITIZENS WITH DISABILITIES

    Ms. FORD. Thank you. Chairman McCrery, Representative 
Levin, thank you for this opportunity to testify and for your 
oversight on these important issues.
    We applaud Commissioner Barnhart for establishing 
improvement of the disability determination process as a high 
priority in her tenure. Her goals of increasing the accuracy, 
consistency, and fairness of decisionmaking and in turn 
lessening the need for appeals are critically important.
    Millions of children and adults with disabilities rely upon 
SSI and Title II disability benefits and their related Medicaid 
and Medicare health services. It is critically important that 
those who need and qualify for benefits not be forced to wait 
for months or years to be found eligible.
    The implementation of the final regulations must ultimately 
be measured by its impact on claimants and beneficiaries with 
disabilities.
    The regulations include several major new aspects and also 
some major changes to long-standing procedures in the process 
which must be monitored closely. All of these changes and the 
issues they raise for claimants, their representatives, and 
adjudicators need to be continuously monitored and studied to 
determine whether implementation is going as planned and 
whether there are any unintended consequences for claimants and 
beneficiaries.
    My testimony goes into detail on a number of issues which 
we believe that SSA must carefully assess and which we urge 
this Subcommittee to monitor.
    While not the subject of the regulations, the new eDib, or 
electronic file system, is critical to the success of the DSI 
process, allowing more than one person or people in different 
locations to work on the case at the same time.
    As Commissioner Barnhart has pointed out many times, it is 
critical that there be better development of evidence at 
earlier stages in the review of a claim.
    The QDD and the medical and vocational expert system are 
new steps that offer opportunities for improved adjudication if 
implementation is carefully monitored.
    The reviewing official is also a new step, and importantly, 
the first level for Federal review of an unfavorable decision. 
The SSA must pay close attention to its careful implementation.
    The ALJ level of review has been maintained, but some key 
elements have been revised. This includes the time limits for 
submitting evidence and criteria for submission of evidence 
following the hearing or the decision.
    There is no right to appeal to the DRB, the ALJ decision 
takes on new importance. The SSA should track claimant 
experience with these changes to ensure that there are no 
adverse consequences.
    Finally, the replacement of the Appeals Council with the 
DRB could have major implications for claimants and for the 
Federal courts. Before the DRB replaces the Appeals Council, 
monitoring the effects of the new process in Region I and 
making adjustments to protect claimants will be critically 
important.
    The SSA should: ensure that the predictive model is 
selecting all of the cases with issues that call for 
administrative remedy, ensure that claimants and 
representatives receive clear guidelines on the timelines for 
the DRB and for Federal courts, undertake a thorough review of 
those cases filed in Federal court to determine whether there 
has been a failure of the system anywhere along the line, and 
ensure continuation of the Appeals Council until the DRB has 
proven successful in the vast majority of cases.
    Throughout all of these steps will be the new in-line 
quality assurance system. It will be important to ensure that 
the new feedback loops operate properly to continue educating 
adjudicators about proper evidence gathering and decisionmaking 
without imposing pressures for predetermined or arbitrary 
decisions.
    The SSA's training efforts at all levels and continued 
communication with all stakeholders will be important linchpins 
in whether systems changes will be successful.
    In conclusion, we continue to be strongly supportive of 
efforts to reduce unnecessary delays and to make the process 
more efficient. By examining the experience in Boston closely 
within the framework of the goals of accuracy, consistency, 
fairness, and effectiveness, SSA should aim to ensure 
appropriate revisions in a timely manner.
    The overriding goal is to have the right decision for each 
claimant, not just a legally defensible decision.
    We look forward to continuing work with the Commissioner 
and SSA and with this Subcommittee as the new process unfolds.
    Thank you.
    [The prepared statement of Ms. Ford follows:]
    Statement of Marty Ford, Co-Chair, Social Security Task Force, 
               Consortium for Citizens with Disabilities
    Chairman McCrery, Representative Levin, and Members of the 
Subcommittee, thank you for this opportunity to testify on Social 
Security's improved disability determination process.
    I am a member of the public policy team for The Arc and UCP 
Disability Policy Collaboration, which is a joint effort of The Arc of 
the United States and United Cerebral Palsy. I am testifying here today 
in my role as Co-Chair of the Social Security Task Force of the 
Consortium for Citizens with Disabilities (CCD). I also serve as Vice-
Chair of CCD. CCD is a working coalition of national consumer, 
advocacy, provider, and professional organizations working together 
with and on behalf of the 54 million children and adults with 
disabilities and their families living in the United States. The CCD 
Social Security Task Force (hereinafter ``CCD'') focuses on disability 
policy issues in the Title II disability programs and the Title XVI 
Supplemental Security Income (SSI) program.
    Let me begin by applauding Commissioner Jo Anne Barnhart for 
establishing improvement of the disability determination process as a 
high priority during her tenure. The problems in the disability 
determination process have evolved over time and are not easy or simple 
to resolve. Her placing a high priority on improving the system for 
people with disabilities required dedication and unwavering commitment 
of her time and critical resources. In addition, we commend 
Commissioner Barnhart's work in making the Disability Service 
Improvement (DSI) design process an open one. She has sought the 
comments of all interested parties, including beneficiaries and 
consumer advocacy organizations, in response to her initial draft and 
to the Notice of Proposed Rulemaking. She and her staff have listened 
to disability community concerns and addressed many of them through 
changes in the final regulations. We do not agree with all of her 
decisions, but believe that she has made every effort to understand our 
perspective and to make her decisions in a fair manner.
    We also appreciate Commissioner Barnhart's commitment to continue 
working with us as the final regulations are rolled out to ensure 
proper implementation and to make corrections, as necessary, where 
there are unintended harmful impacts on claimants/beneficiaries.
    We thank the Subcommittee for its continuing oversight of these 
important changes to the disability determination process.
    There are numerous areas in the new disability determination 
process which need to be monitored and studied to determine whether 
implementation is going as planned and whether there are any unintended 
consequences from some of the new policies. I highlight the major 
implementation issues as we currently see them below. Of course, we 
will continue to raise with the Commissioner and with you any new 
issues which may arise in the future as implementation proceeds.
    As you know, the new regulations will become effective on August 1 
in Region 1 (Boston), covering Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont. Commissioner Barnhart has 
indicated her intention to roll out these changes gradually, monitoring 
implementation in the Boston region for at least one year before 
expanding the changes to other regions. We believe that this provides 
an important opportunity to ensure that implementation is occurring as 
intended and/or to make corrections to the system to ensure proper 
implementation.
ELECTRONIC FILES
    As you know, the success of the new Disability Service Improvement 
process is highly dependent on the quality and capacity of the 
electronic system that will ultimately handle all disability claims in 
the Social Security Administration. Known as ``eDib'', this system will 
make it possible for people in different areas of the country to work 
on a case at the same time and it will make it possible to eliminate 
delays caused by loss of case files and from physically sending case 
files from one location to another. The success of the full 
implementation of the DSI process will depend on the success and 
efficiency of the eDib system.
Implementation Issues:
    Will claimants/representatives have early access to the electronic 
files and to new materials added to the files? To know what is in the 
record at any given point during the process, we believe that optimum 
meaningful access will ultimately require secure online access with a 
``read-only'' capacity. Will this be available to claimants/
representatives and, if so, when? In the interim, claimants/
representatives will need immediate access to information in the file 
at each administrative level.
    Will claimants/representatives be able to obtain hearing recordings 
immediately after the hearing (particularly if the claimant first 
acquires a representative after the ALJ hearing)?
    SSA should ensure protection of original documents, which are 
valuable and sometimes irreplaceable evidence, by requiring that exact, 
unalterable electronic copies of all originals be permanently 
maintained in the electronic folder. SSA should track whether 
claimants/representatives experience any problems with having evidence 
included in the electronic record.
MEDICAL AND VOCATIONAL EXPERT SYSTEM
    The rules call for the establishment of a new Medical and 
Vocational Expert System (MVES) which will provide expert assistance to 
adjudicators, especially at the reviewing official (RO) and 
administrative law judge (ALJ) levels of review. The MVES will be 
composed of the Medical and Vocational Expert Unit and a national 
network of medical, psychological, and vocational experts who meet 
qualifications set by the Commissioner.
Implementation Issues
    SSA should track:

      The experience of ROs and ALJs with obtaining expert 
opinions from MVES, including SSA's procedures for ensuring that 
different experts are used at different levels of review for a 
claimant's case.
      How MVEU handles cases where the claimant has multiple 
impairments.
      Use of MVEU for requesting Consultative Examinations.
      Inclusion of treating sources as accepted consultative 
examiners.
    In developing criteria for medical and vocational experts, SSA 
should ensure that:
      Experts are actively practicing and knowledgeable about 
the issues, including those requiring a local perspective.
      Criteria for inclusion in the national network are made 
public.
      Credentials of individual experts are made available to 
claimants/representatives, for example, through a secure, online 
source.

    SSA should expand the range of expertise available to adjudicators, 
including occupational therapists, nurse practitioners, physical 
therapists, registered nurses, psychiatric social workers, and others. 
Since many of the Listings have a functional component and over half of 
adult cases are decided on the Listings, such experts, who are trained 
to evaluate functional limitations and their impact on the ability to 
work, can help the adjudicators make better decisions.
INITIAL DECISION
    As Commissioner Barnhart has pointed out many times, it is critical 
that there be better development of evidence at earlier stages of the 
review process. Success in this area is intended to reduce the demand 
for further review of cases through the appeals process.
    The quality of the information/evidence developed for the record 
will have a significant impact on whether SSA will be able to make the 
correct decision earlier in the process--one of the Commissioner's key 
goals for DSI. Asking focused questions of treating sources can elicit 
information that will be more effective in helping adjudicators reach 
individualized decisions than a scatter-shot approach which results in 
much missed, but critical, detail.
    In addition, the Commissioner has developed a Quick Disability 
Determination (QDD) process to ensure that people who are clearly 
disabled, for whom readily obtainable evidence exists, will move 
through the process very quickly. A predictive model will identify 
these claims so that the decisions can be expedited.
Implementation Issues:
    SSA will need to determine:

      Whether claimants/representatives are assisted to 
understand the disability process and what types of evidence need to be 
obtained.
      Whether providers are given understandable information 
about what information is needed for adjudication of the claim and 
whether the Disability Determination Service (DDS) and the RO obtain 
individualized evidence from the treating sources.

    For the QDD process, SSA should track the experience of cases where 
the QDD unit cannot make a fully favorable determination to ensure that 
the cases return to the normal DSI process without any adverse 
consequences to the claimant.
    SSA should collect data to indicate how the QDD process compares to 
decisions of presumptive disability and the TERI (terminal illness) 
cases.
    SSA should collect data on the implementation of the QDD provisions 
and the predictive model: how many people go through the process; how 
many are allowed; what impairments they have; etc.
    Will the predictive model for the QDD step be public?
FEDERAL REVIEWING OFFICIAL
    The federal Reviewing Official level is new in the adjudicatory 
process. As such, there are many questions about implementation. The RO 
review will be the first step in the appeals process for claimants. It 
will also be the first federal level of review for the claimant. 
Further, it is intended to address the often-raised issues about 
consistency of decision-making across the country. The RO will not 
conduct a hearing, but rather will review the developed record and will 
further develop evidence, as necessary. The RO is a key figure in 
ensuring that evidence is fully developed and is given subpoena power 
to gather evidence. The RO level carries a heavy burden in the new DSI 
and we urge SSA to pay close attention to its careful implementation.
Implementation Issues:
    SSA should ensure proper notification of the right to 
representation and assess whether the earlier notice is resulting in 
more representation and better development of the record before 
claimants reach the ALJ level.
    SSA must ensure that the requirement to consult with MVEU does not 
direct a certain type of decision regardless of the individual 
circumstances. Also, SSA should track whether the RO's required 
consultation with the MVES results in unreasonable delays in reaching a 
decision.
    SSA must ensure that the claimant can submit evidence up to the 
time the decision is issued.
    SSA should track experience with:

      Review by ROs in a different part of the country from 
where the claimant lives.
      Whether nationwide consistency (reduction of state-by-
state disparity) has improved.
      Processing time at the RO level.

    SSA should track the RO use of subpoena power to ensure that 
evidence is fully developed.
ADMINISTRATIVE LAW JUDGE
    The administrative law judge (ALJ) level is not new and the 
claimant's right to a de novo hearing before an ALJ has been preserved. 
However, there are numerous changes in the procedures, including 
timeframes for submitting evidence and scheduling hearings. In 
addition, the ALJ level attains new importance since it may be the 
claimant's last step in the administrative process (except for an ALJ's 
dismissal of a hearing), before filing in federal court, if the 
Decision Review Board (DRB) does not select the case for review. With 
these changes, SSA's vigilance in monitoring implementation will be 
critical.
Implementation Issues:
    SSA should track experience with the scheduling of hearings:

      Track how many claimants waive notice of 75 days.
      Track claimant experience with objections to time/place 
of hearing and issues for the hearing.
      Track experience with the rule for submitting pre-hearing 
evidence 5 business days before the hearing, including tracking denials 
of a request to submit evidence after the 5 days.
      Track post-hearing evidence submission and decisions 
about whether the relevant criteria are met.
      Track whether claimants receive a hearing date within 90 
days of filing the request for hearing.
    Regarding evidence development, SSA should track:
      How many claimants are still missing key evidence from 
their files when they reach the ALJ level and how that compares to the 
previous system.
      Whether ALJs meet their own obligations to develop 
evidence.
    Regarding the exceptions for submitting evidence within five 
business days of the hearing or later, SSA should:
      Ensure ALJ understanding of the requirement to find that 
the exception criteria are met in delineated circumstances.
      Ensure ALJ understanding of ``unavoidable'' to include 
claimant's/representative's inability to acquire evidence from third 
parties (such as treating source, lab, hospital, etc.).
      Ensure ALJ understanding of the difference between 
``reasonable possibility'' that evidence will ``affect'' the outcome 
before the decision is rendered and ``reasonable probability'' that 
evidence will ``change'' the outcome after the decision has been 
issued.
      Assess whether ALJs are properly applying these 
standards. If not, what will SSA do to rectify the situation?

    SSA should ensure that the findings integrated template (FIT) does 
not direct decisions in any particular way.
    SSA must address how it will ensure a safety net for claimants who 
experience ALJ bias or misconduct, including SSA's use of the Merit 
Systems Protection Board procedures.
DECISION REVIEW BOARD
    The Decision Review Board is a new entity which follows the ALJ 
level and replaces the Appeals Council. However, the DRB will be much 
different than the current Appeals Council. Claimants will have no 
right to appeal to the DRB. They may submit a written statement upon 
the request of the DRB or within 10 days of notice that the DRB will 
review the case. The timelines for decisions by the DRB, the deadlines 
for filing in federal court, the timelines for an appeal of an ALJ's 
dismissal of a hearing, and the relationship among all these may prove 
very confusing to claimants and their representatives.
    Since the DRB step is vastly different from the Appeals Council 
step and the impact on the federal courts is unknown, SSA's careful 
monitoring of this step in the Boston region will be critically 
important. For the new DSI process to be successful, SSA should be 
prepared to address major problems immediately and to consider changes 
and adjustments as necessary if the impact on claimants and/or the 
courts is detrimental.
Implementation Issues:
    SSA should ensure that claimants/representatives receive clear 
guidance on the timelines for: submitting a written statement upon the 
request of the DRB or within 10 days of notice that the DRB will review 
the case; decisions by the DRB; the deadlines for filing in federal 
court; the timelines for an appeal of an ALJ's dismissal of a hearing; 
and the relationship among these deadlines.
    During the time in which SSA is reviewing 100 percent of the cases 
at the DRB level in the Boston region, we think it is important for SSA 
to:

      Assess the role of the predictive model in detecting the 
appropriate cases for review--can the model predict the full range of 
error-prone cases? SSA should examine (1) the cases that the DRB would 
have reviewed (using the predictive model) against (2) those cases 
where a significant change was made based on the 100% review but where 
DRB would not have reviewed the case based on the predictive model.
      Assess the role of the claimant's statement in 
highlighting the issues for DRB review. SSA should assess the 
predictive model both with and without the claimant's statements of the 
case. The results may indicate whether SSA needs to re-assess the role 
of claimant statements and whether they are critical in raising issues 
that the predicative model fails to recognize.

    Track the results of the 10-day limit on submitting written 
statements to the DRB, including where a representative or claimant is 
unavailable during that time, and what impact there may be on the 
claimant's case if no statement is filed.
    Where a representative is new to the claimant, ensure that the 
representative can get a copy of the hearing recording and the record 
before the ALJ as soon as possible so as not to miss the 10-day limit 
for submitting a written statement, or to provide an extension of time.
    For those cases which are filed in federal court in the Boston 
region, undertake a thorough review of the case to determine whether 
there has been a failure of the new system anywhere along the line.
    Ensure continuation of the Appeals Council until the DRB has proven 
successful in the vast majority of cases.
    Track notification of claimants regarding their rights to appeal to 
federal court.
    Other questions:

      How and when will the predictive model be updated? Will 
the predictive model be made public?
      How will SSA address the Appeals Council's current role 
in resolving non-disability issues?
FEDERAL COURT
    The impact on the federal courts will be a key factor in 
determining whether the new DSI process is successful. Some of the 
issues are discussed above regarding the DRB.
Implementation Issues:
    In addition to those issues described above regarding the DRB, SSA 
should:

      Track its experience regarding the number of cases going 
to federal court to determine whether there is an increase or a 
decrease.
      Track the number and proportions of SSA's requests for 
voluntary remands of cases appealed to federal court. Assess the 
rationale for these requests for voluntary remands and determine 
whether an earlier failure in the system created the problem.
OTHER/OVERALL ISSUES
    There are several procedures/practices which overarch several 
levels of review. Theses include payments and reimbursement rates to 
providers; differences in Circuit Court decisions; the new in-line 
quality assurance systems and feedback loops; issues regarding 
redaction; operating procedures; and SSA's demonstration authority.
Implementation Issues:
    To address these issues, SSA should:

      Ensure that reimbursement rates (ex.: for consultative 
examinations, copies of records, etc.) are in line with actual costs to 
providers.
      Ensure that quality assurance feedback loops operate as 
intended and do not create pressure on the level below to make a 
certain type of decision regardless of evidence (undue influence).
      Clarify that the requirement that evidence not be 
redacted applies only to redactions by the claimants/representatives, 
not to redactions made by the provider (treating physician, lab, 
hospital, or other treatment source). Redactions that are made by such 
third party outside of the control of the claimant/representative 
should not disqualify that evidence for the claimant.
      Where there are acquiescence rulings or differences among 
the Circuit Courts on an issue, ensure that decision-makers who operate 
nationwide (or who are not located in the same area as the claimant) 
apply decisions and rulings properly in the affected regions/states.
      Ensure that the operating procedures are written in a way 
to ensure the effective and efficient implementation of the final 
regulations with no unintended consequences or burdens falling on 
claimants.
      Make operating procedures available to claimants and 
representatives and include guidance on situations they will newly 
encounter (such as how to send evidence to the RO assigned to the 
case).
      Conduct thorough assessments of the demonstration 
programs (provision of interim minimum health benefits, waiving 24-
months waiting period, medical home centers, etc.).
SSA LIMITATION ON ADMINISTRATIVE EXPENSES
    I would be remiss if I failed to note the importance of fully 
funding SSA's Limitation on Administrative Expenses (LAE).
    To meet the needs of claimants and beneficiaries during the 
hurricane emergencies in 2005, SSA was required to redirect $38 million 
from a budget that had already been reduced $300 million below the 
President's request for this fiscal year (FY'06). A supplemental 
appropriation of $38 million, included in the conference report of the 
supplemental appropriations bill, will help to restore the loss of 
resources due to the hurricanes so that SSA may continue addressing its 
substantial on-going workload.
    SSA must have the resources to handle its day-to-day work. SSA is a 
well-managed agency and does a good job with the resources it has been 
appropriated. However, we have been concerned, and continue to be 
concerned, that SSA does not have adequate resources to meet all of its 
current responsibilities, including those of importance to people with 
disabilities. This includes the need to regularly conduct continuing 
disability reviews (CDRs). As I understand, the House Appropriations 
Subcommittee on Labor, Health and Human Services, Education, and 
Related Agencies has reported a bill that would reduce the President's 
budget request for SSA's LAE by $201 million, funds which would have 
been used for conducting additional CDRs. We are hopeful that the full 
House will ultimately approve a bill that restores the President's full 
request so that SSA can continue its important work on the disability 
programs, including conducting CDRs.
ADDITIONAL CONGRESSIONAL ACTION NEEDED
    Congress should extend SSA's statutory Title II demonstration 
authority. Its authority was extended in the Social Security Protection 
Act of 2004 (P.L. 108-203). The extended authority expired on December 
18, 2005, and no new demonstration programs can be initiated.
Conclusion
    As stated in our testimony before this Subcommittee in September 
2005, while justice delayed can be justice denied, justice expedited 
also can result in justice denied. As organizations representing people 
with disabilities, we strongly support efforts to reduce unnecessary 
delays for claimants and to make the process more efficient. At the 
end, the goal is to have the right decision, not just a legally 
defensible decision. We believe it is necessary to examine all of the 
issues outlined above to assess whether there are any unintended 
results and to ensure appropriate revisions in a timely manner.
    We look forward to continuing to work with Commissioner Barnhart 
and this Subcommittee as implementation of the new DSI process unfolds.
                                 ______
                                 
ON BEHALF OF:
    American Association of People with Disabilities
    American Association on Mental Retardation
    American Council of the Blind
    American Network of Community Options and Resources
    American Occupational Therapy Association
    Association of University Centers on Disabilities
    Council of State Administrators of Vocational Rehabilitation
    Bazelon Center for Mental Health Law
    Inter/National Association of Business, Industry and Rehabilitation
    National Alliance on Mental Illness
    National Association of Councils on Developmental Disabilities
    National Association of Disability Representatives
    National Disability Rights Network
    National Multiple Sclerosis Society
    National Organization of Social Security Claimants' Representatives
    National Organization on Disability
    National Rehabilitation Association
    NISH
    Research Institute for Independent Living
    The Arc of the United States
    Title II Community AIDS National Network
    United Cerebral Palsy
    United Spinal Association

                                 

    Chairman MCCRERY. Thank you. Ms. Bohr.

STATEMENT OF SARAH H. BOHR, PRESIDENT, NATIONAL ORGANIZATION OF 
           SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES

    Ms. BOHR. Chairman McCrery, Representative Levin, and 
Members of the Subcommittee, we thank you for the opportunity 
to testify regarding the changes to the SSA disability 
determination process known as DSI.
    I'm the president of the National Organization of Social 
Security Claimants' Representatives, the members of which 
represent claimants in the disability process and are 
intimately familiar with this process.
    We certainly appreciate the Commissioner's willingness to 
listen to our views and those of other advocates in the 
disability community.
    The final rules reflect a number of changes from the 
proposed rules which will benefit claimants. However, there are 
many areas that will require close monitoring by SSA and by 
claimants and their representatives.
    My written statement covers many topics in detail, but 
today I will focus on three areas that reflect major changes 
from the current practice: the FedRO; the new requirements for 
submitting evidence to the ALJ; and the new DRB, and its 
potential impact on our Federal courts.
    The first level of appeal under DSI is to the FedRO, which 
SSA views as critically important to the new process. Our 
members have already raised a number of questions about this 
level which are detailed in my statement.
    These concerns include:
    Ensuring there will be enough FedROs to handle cases and 
providing them with sufficient support staff.
    Following how many claimants seek representation at the 
FedRO level.
    Are representatives able to effectively communicate with 
the FedROs and submit evidence?
    Does representation earlier in the process lead to better 
developed cases?
    Since FedROs will be required to consult with the medical 
vocational expert system if they want to allow a claim or if 
they receive new evidence at the FedRO level, does this 
requirement cause unreasonable delays and erode the FedRO's 
authority?
    A second key change requires that new evidence be submitted 
to the ALJ five business days before the hearing. After that, 
claimants must meet certain requirements to have new evidence 
considered.
    This is a major departure from the current practice that 
allows evidence, consistent with the Social Security Act, to be 
submitted at the hearing, if necessary.
    This change leaves ALJs with a fair amount of discretion 
and it needs to be closely monitored by SSA to make certain 
that eligible claimants are not wrongfully denied benefits.
    This is an area of particular concern to representatives, 
since the ability to obtain medical evidence is often beyond 
their control.
    Some areas for SSA to monitor include:
    Tracking the number of requests to submit evidence within 
the 5 days of the hearing or later and the ALJs' decisions on 
these requests.
    Do denials of requests lead to more district court filings 
in order for the evidence to be considered by SSA?
    Does the DRB pick up erroneously denied requests to submit 
evidence? Are the rules applied so that claimants who seek 
representation shortly before a hearing, or even after a 
hearing, are not improperly disadvantaged?
    Are the rules applied in a way that is consistent with the 
realities of obtaining medical evidence?
    The third major change is the elimination of the claimant's 
right to appeal the unfavorable ALJ decision to the Appeals 
Council.
    Instead, the DRB will screen both favorable and unfavorable 
ALJ decisions using a ``predictive screening tool'' that will 
select ``error-prone'' cases. If the DRB does not select a 
case, the claimant will appeal the ALJ decision directly to 
Federal court.
    The SSA recognizes that many groups, including disability 
advocates and the Federal court judges, are very concerned 
about the elimination of the Appeals Council step for 
claimants. This change will require very close monitoring. 
However, we believe it will take longer than a year to closely 
monitor and fully assess the impact on our courts.
    My written statement outlines a number of statistics that 
SSA should track, including the disposition of cases by the 
DRB, the number of court filings by unrepresented claimants, 
and the number and the types of court dispositions and the 
underlying reasons.
    The SSA also needs to track whether the new rules on ALJ 
evidence submission affect court filings.
    We also have many questions about the ``predictive 
screening tool'' and the selection of cases for the DRB review 
that SSA should evaluate:
    Will ALJs be able to learn which cases are more likely to 
trigger DRB review?
    Can a computer-based screening tool identify all of the 
issues that arise in a case, including subtle issues like ALJ 
bias or issues specific to the circuit, based on circuit 
precedent?
    We are also concerned about delays in payment of benefits 
that may arise from the time needed for DRB review of favorable 
ALJ decisions.
    In conclusion, as DSI begins, we'll monitor the process 
with our members of Region I states and continue to present our 
concerns to the Commissioner.
    Thank you.
    [The prepared statement of Ms. Bohr follows:]
Statement of Sarah H. Bohr, President, National Organization of Social 
      Security Claimants' Representatives, Atlantic Beach, Florida
     Chairman McCrery, Representative Levin, and Members of the Social 
Security Subcommittee, thank you for inviting NOSSCR to testify at 
today's hearing on the Social Security Administration's (SSA) improved 
disability determination process.
    My name is Sarah H. Bohr and I am the president of the National 
Organization of Social Security Claimants' Representatives (NOSSCR). 
Founded in 1979, NOSSCR is a professional association of attorneys and 
other advocates who represent individuals seeking Social Security 
disability or Supplemental Security Income (SSI) benefits. NOSSCR 
members represent these individuals with disabilities in legal 
proceedings before the Social Security Administration and in federal 
court. NOSSCR is a national organization with a current membership of 
more than 3,600 members from the private and public sectors and is 
committed to the highest quality legal representation for claimants. 
NOSSCR is a member of the Consortium for Citizens with Disabilities 
Social Security Task Force and we endorse the testimony presented today 
by Marty Ford on behalf of the Task Force.
    I currently am an attorney in a small law firm in Jacksonville, FL, 
that specializes in Social Security appellate work. Our firm writes 
briefs for cases before the Appeals Council and in the federal courts, 
including district courts in over 17 states and six circuit courts of 
appeals. I also successfully argued a case before the United States 
Supreme Court, Sims v. Apfel, 530 U.S. 103 (2000). I have specialized 
in Social Security law for over twenty-five years, including 21 years 
with a legal services program in Jacksonville, where I represented 
claimants at all administrative and judicial levels, from the initial 
application through the federal court appellate process. I also am the 
author of Bohr's Social Security Issues Annotated, which surveys Social 
Security caselaw from all of the federal circuits.
    The final regulations on the new Disability Service Improvement 
process (DSI) were published on March 31, 2006, at 71 Fed. Reg. 16424 
(Mar. 31, 2006). The public's interest in these changes can be gauged 
by the nearly 900 comments that were received in response to the July 
27, 2005 proposed rule.
    We appreciate the Commissioner's willingness to discuss her 
proposal and listen to our views. Based on the comments to the proposed 
rule, the final rule reflects a number of changes, including many that 
are definite improvements from a claimant's perspective. However, there 
are many areas that will require close scrutiny by claimants' 
representatives and that SSA will need to monitor to ensure that the 
goals of DSI are achieved. My testimony today will discuss these areas 
of concern, focusing on the Administrative Law Judge (ALJ) and Decision 
Review Board (DRB) levels.
1. Implementation of the DSI Process
    DSI will apply only to those claims that are filed in SSA Region I 
states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, 
and Vermont) on or after August 1, 2006. Region I will be the only DSI 
location for at least one year.
    NOSSCR is working closely with its members in Region I states to 
provide ongoing information and support regarding DSI. In July, NOSSCR 
and the Disability Law Center (DLC) in Boston, MA, will hold an all day 
seminar in Boston. The goal of the meeting is to provide information 
and training to Region I members shortly before DSI starts on August 1. 
Key SSA officials will attend and present updates on DSI 
implementation. NOSSCR also has worked with DLC to set up a listserve 
for Region I representatives to share new and updated information about 
DSI, and to discuss experiences with DSI and issues that will arise. In 
addition, NOSSCR has created a DSI link on its website, www.nosscr.org, 
and information also will be posted on a special website maintained by 
the Disability Law Center, www.masslegalservices.org/cat/3221. Because 
SSA will follow the process under which the claim was originally filed, 
we are encouraging our members in non-Region I states to become 
familiar with the DSI process. Claimants who filed under DSI might move 
to their states outside Region I and seek representation.
II. General Issues
    As noted above, NOSSCR is a member of the Consortium for Citizens 
with Disabilities Social Security Task Force and we endorse and 
incorporate the issues presented in Marty Ford's testimony today. In 
particular, we strongly support the need to fully fund SSA's 
Limitations on Administrative Expenses and give SSA the resources to 
adequately handle its workload. The Subcommittee is well aware of the 
increasing delays in processing disability claims. Just last month, the 
Commissioner testified how cuts in the President's proposed budget for 
SSA impact the agency's ability to meet its current responsibilities. 
For DSI to succeed, SSA needs to receive the President's full budget 
request.
    Other DSI issues covered in more detail in the CCD testimony 
include: better development of the evidence earlier in the process; the 
Quick Disability Decision process; and the Medical and Vocational 
Expert System (MVES). There are several other general issues that we 
would like to mention:

      What is a ``disability claim''? The DSI regulations state 
that the new process applies to ``disability claims.'' 20 C.F.R. 
Sec. 405.1. Many disability claims involve issues which do not strictly 
deal with the evidence of disability, but are integral parts of the 
claim, e.g., work-related issues, Title II insured status. They are 
part of the disability claim and SSA needs to clarify which set of 
procedures applies.
      Dealing with two appeals processes. Most representatives 
will be trying to manage cases in both the current and DSI processes. 
And, as described above, it is possible that one client may have issues 
from the same application in both the DSI and current processes. What 
will be SSA's policy if an appeal is filed in the wrong system? Will it 
provide a protective filing date? This problem is not covered by the 
DSI regulations but needs to be addressed by SSA. Claimants should not 
be penalized.
      The electronic folder--eDIB. NOSSCR generally supports 
Commissioner Barnhart's technological initiatives to improve the 
disability claims process, so long as they do not infringe on 
claimants' rights. The electronic disability folder, ``eDIB,'' has the 
prospect of significantly reducing delays by eliminating lost files, 
reducing the time that files spend in transit, and preventing misfiled 
evidence. We want to thank the Commissioner for her inclusive process 
to seek comments about the eDIB changes, which will help to ensure that 
claimants benefit from these important improvements. We have had 
several very productive meetings and we appreciate this valuable 
opportunity to provide input.

    With electronic folders, claimants' representatives will be able to 
obtain a single CD that contains all of the evidence in the file. Early 
access to the record will allow representatives to determine what 
additional evidence is needed. SSA needs to ensure that access to CDs 
is available at all administrative levels--the DDS, the Reviewing 
Official, the administrative law judge, and the Decision Review Board.
    Given the need for claimants and their representatives to have 
access to the file at all levels of the process as early as possible, 
SSA should explore allowing claimants' representatives to have online 
access to the files through secure sites, such as those now used by the 
federal courts. This would free up SSA staff, now providing information 
about claims, to perform other tasks.

      Reopening. In a major change from the proposed rule, the 
final rule keeps the current reopening rules in place for all claims 
adjudicated prior to the hearing level. This means that ALJs may reopen 
decisions at the state agency or RO level and the RO may reopen 
decisions at the state agency level. However, once an ALJ decision is 
issued and is the Commissioner's ``final decision,'' reopening of that 
decision is limited to six months from the date of the decision and 
``new and material evidence'' is not a basis for good cause.

    Reopening situations currently do not arise that often, but when 
they do, they usually have compelling fact patterns involving claimants 
who did not understand the importance of appealing an unfavorable 
decision. Often they are claimants who have mental impairments, who 
previously were unrepresented, or who were unable to adequately 
articulate their claim in the first application. SSA should monitor 
subsequent claims at the ALJ and DRB levels to determine whether the 
DSI reopening rules preclude claimants from eligibility under a prior 
claim that would be reopened under the current, non-DSI regulations 
based on ``new and material'' evidence.
III. The Federal Reviewing Official
    DSI eliminates the reconsideration level. If a claim is denied at 
the initial level, the claimant will be informed of the right to appeal 
to the Federal Reviewing Official (RO). SSA foresees representative 
involvement at this level by including, for the first time at this 
early point in the process, information about the right to 
representation. 20 C.F.R. Sec. 405.115. The notice also will provide 
more specific reasons and a detailed rationale for the initial denial.
    SSA has described the new RO level as the ``linchpin'' of the DSI 
process. The RO level will be federal and centrally managed by SSA. ROs 
will be attorneys who are ``highly qualified'' and ``thoroughly trained 
in SSA policies and procedures.'' ROs can be located anywhere in the 
country since they will be using electronic folders and will not see 
claimants in person. Initially, all ROs will be located in Falls 
Church, VA. ROs will handle cases from different states.
The Federal Reviewing Official
      Will staffing at the RO level be adequate? How many ROs 
will be hired to handle Region I cases? The agency also has stated that 
it does not want to hire staff attorneys away from hearing offices, 
since that will cause further problems in those offices. But where else 
will SSA find attorneys who are ``highly qualified'' and ``thoroughly 
trained'' in SSA policies?
      Will ROs have adequate support staff to assist in their 
duties, especially, development of the record? What steps will ROs take 
to fully develop the evidence to create a complete record?
      As authorized by the regulations, will ROs use treating 
physicians as the preferred source for consultative examinations (CEs)? 
SSA should track the use of CEs and who performs them.
      Do claimants seek representation at the RO level?
      Are claimants' representatives able to effectively 
contact ROs? Does representation earlier in the process contribute to 
better developed records? Can representatives easily communicate with 
ROs, including both the ability to submit new evidence and the ability 
to get timely responses from the RO?
      Do RO interactions with the MVES go smoothly? ROs are 
required to ``consult'' with the MVES if either new evidence is 
submitted at the RO level or if the RO disagrees with the DDS's 
decision, i.e., wants to allow the claim. Will this requirement to 
consult cause unreasonable delays and/or erode the authority of the RO?
      SSA should maintain statistics on:

          The number of claimants who are represented at the RO 
level
          The time frames for the RO to issue decisions in 
cases where the RO consulted with the MVES and in cases where no such 
consultation occurred
          The frequency with which the MVES agrees or disagrees 
with the decision of the RO
          A comparison in the processing times between the RO 
level and the reconsideration level
          The allowance rates at the RO level compared with the 
allowance rates at the reconsideration level
          The extent to which RO decisions reduce state 
disparities
IV. The Administrative Law Judge Level
    The final DSI regulations include provisions that will benefit 
claimants, including retaining the de novo hearing before an 
administrative law judge (ALJ) and, for the first time, setting a goal 
(but not requirement) that the claimant receives a hearing date within 
90 days after the appeal is filed (although the hearing could be held 
after the 90 days). SSA should monitor the rate at which the goal of 
setting the hearing date within 90 days is achieved. Also, the time for 
providing notice of the hearing date is increased from 20 to 75 days, 
with the goal of providing adequate time to obtain new evidence. The 
final rule includes new limits and procedures for submission of 
evidence. These changes will need to be closely monitored to make sure 
that claimants who meet the statutory definition of disability are not 
wrongfully denied benefits.
A. Submission of Evidence
    The DSI regulations require that new evidence be submitted at least 
five business days before the hearing. 20 C.F.R. Sec. 405.331(a). After 
that point, depending on when the evidence is submitted, the ALJ is 
required to consider the evidence if the claimant meets the specific 
requirements in the DSI regulations.
    The final rule is clearly better than the proposed rule, which 
required submission at least 20 days before the hearing and had 
stricter requirements for later submission, but it still represents a 
major change for practitioners. It also is an area that will require 
close monitoring to ensure that ALJs correctly apply the regulations, 
especially in light of 42 U.S.C. Sec. 405(b), which provides that the 
claimant has the right to a ``hearing'' with a decision based on 
``evidence adduced at the hearing.'' Under pre-DSI regulations that are 
consistent with the statute, the claimant can submit evidence anytime, 
including at the hearing. 20 C.F.R. Sec. Sec. 404.929 and 416.1429.
    Under DSI, evidence can be submitted within the 5-business-day 
period before the hearing, in certain situations. 20 C.F.R. 
Sec. 405.331(b). The ALJ ``will'' (i.e., ``must'') accept and consider 
the new evidence if the claimant shows that: (1) SSA's action misled 
the claimant; or (2) The claimant has a physical, educational or 
linguistic limitation that prevented earlier submission of the 
evidence; or
    (3) Some other ``unusual, unexpected, or unavoidable circumstance 
beyond the claimant's control'' prevented earlier submission.
    These three exceptions form the basis for submission of evidence 
within 5 business days of the hearing and later. They are the same as 
the new ``good cause'' exceptions to extend the time to file an appeal 
in 20 C.F.R. Sec. 405.20(a). The ``good cause'' regulation at section 
405.20(b)(4) provides the example relevant to efforts to obtain 
evidence: ``You were trying very hard to find necessary information to 
support your claim but did not find the information within the stated 
time period.''
    Based on this statement in the ``good cause'' regulation, SSA has 
said that the ALJ must accept new evidence within the 5-day time period 
if it has been requested but not obtained. In making this statement, 
SSA relies on the exception in 20 C.F.R. Sec. 405.331(b)(3), i.e., the 
circumstance beyond the claimant's control, and then refers to the 
example in 20 C.F.R. Sec. 405.20(b)(4).
    However, the evidence submission regulation, 20 C.F.R. 
Sec. 405.331, does not explicitly reference the good cause regulation, 
20 C.F.R. Sec. 405.20, or more specifically, the examples in 
Sec. 405.20(b). What happens if an ALJ refuses to accept evidence 
within the 5 day period, even if the exceptions are met? Is there a 
violation of 42 U.S.C. Sec. 405(b)? SSA says no. But it remains an open 
question and this area will require very close monitoring.
Submission of evidence after the hearing. The final rule provides that 
        new evidence can be submitted after the hearing, but under 
        stricter circumstances. Between the hearing and the ALJ 
        decision (and if the ALJ does not hold the record open at the 
        hearing), the requirements for evidence submission are similar 
        to those for submission within 5 days of the hearing. But this 
        rule, 20 C.F.R. Sec. 405.331(c), has an additional significant 
        requirement. The claimant must (1) meet one of the three 
        exceptions discussed above and (2) show that there is a 
        ``reasonable possibility'' that new evidence, alone or with the 
        other evidence, would ``affect'' the outcome of the claim.
    After the ALJ decision and if the DRB does not review the ALJ 
decision, i.e., the ALJ decision becomes the ``final decision'' of the 
Commissioner, the claimant may submit new evidence to the ALJ, but with 
even more additional requirements. Under 20 C.F.R. Sec. 405.373, the 
claimant must (1) meet one of the three exceptions described above; and 
(2) show that there is a ``reasonable probability'' that new evidence, 
alone or with the other evidence, would ``change'' the outcome of the 
decision; and (3) file the request with the ALJ within 30 days of 
receiving the ALJ decision.
Questions to consider:
      What is the actual experience regarding ALJs' 
consideration of new evidence submitted within five days of the hearing 
and later? As discussed above, the final DSI rules give ALJs a fair 
amount of discretion in determining whether to consider new evidence. 
SSA should track the number of requests to submit evidence within 5 
business days of the hearing or later and the ALJ's decision on the 
request. This information will help determine whether ALJs are 
following the regulations.
      What happens if an ALJ refuses to accept evidence even if 
the regulations are met? Does this violate 42 U.S.C. Sec. 405(b) 
regarding the claimant's right to a decision based on evidence adduced 
at a hearing?
      Will ALJs' denials of requests to submit new evidence 
lead to more district court filings? Under 42 U.S.C. Sec. 405(g), the 
court can remand a case to SSA for consideration of ``new'' and 
``material'' evidence where there is ``good cause'' for not submitting 
it earlier. Will an ALJ's failure to follow the regulations amount to 
such ``good cause''? Will the DRB pick up cases where the ALJ 
improperly refused to accept new evidence?
      SSA should clarify its policies so that the examples in 
the ``good cause'' regulations, 20 C.F.R. Sec. 405.20, also apply to 
the evidence submission regulations, 20 C.F.R Sec. Sec. 405.331 and 
405.373.
      How do ALJs interpret the rule for evidence submission 
after the hearing, which requires a ``reasonable possibility'' the 
evidence would ``affect'' the outcome? And the rule for evidence 
submission after the hearing decision, which requires a ``reasonable 
probability'' the evidence would ``change'' the outcome? What is the 
actual difference between the two standards? ``Possibility'' vs. 
``probability''? ``Affect'' vs. ``change''?
      Are the rules implemented in a way that is consistent 
with the realities of claimants obtaining representation? How are the 
rules applied if a claimant seeks representation shortly before the 
hearing? Or within 5 days of the hearing? Or after the hearing is held 
or the ALJ decision is issued? Based on the experience of our members, 
claimants who seek and obtain representation shortly before the hearing 
(or after the hearing) is not an uncommon occurrence since the ALJ 
hearing is the first in-person contact with an adjudicator (this will 
not change under DSI).
      Are the rules applied in a way that is consistent with 
the realities of obtaining medical evidence both before and after the 
hearing? While we believe the 75-day hearing notice will be a great 
help, we still anticipate delays in obtaining medical records. We 
strongly support early submission of evidence; however, our members 
frequently have great difficulty obtaining necessary records, which is 
outside their control. While the 75-day notice is a great help, nothing 
requires medical providers to turn over records within that time 
period.
B. The ALJ decision
    The ALJ decision must explain in detail why the ALJ agrees or 
disagrees with the Reviewing Official's findings and rationale. 20 
C.F.R. Sec. 405.370(a). In addition, SSA has developed templates, 
currently voluntary, for ALJ decisions.
Questions to consider:
      SSA needs to make sure that the decision-making process 
does not undermine a claimant's right to a de novo hearing and that it 
does not compromise the ALJ's decisional independence. SSA needs to 
monitor whether the ALJ's obligation to justify disagreeing with the RO 
interferes with this independence.
      Does any element of the process make it harder for the 
ALJ to allow a claim than to deny a claim?
      Do ALJs give the RO decision and/or findings any special 
weight?
C. Video hearings
    Over the past few years, SSA has held an increasing number of 
hearings by video teleconferencing. Video hearings provide SSA with 
management flexibility and administrative efficiency and give SSA a way 
to balance workloads and help claimants whose local hearing offices 
have huge backlogs. However, based on our members' experience, SSA has 
not perfected the video hearing environment and, for many, the video 
hearing process is not a satisfactory replacement for in-person 
hearings.
    SSA's regulations and policies guarantee claimants an absolute 
right to decline to appear by video hearing and to request an in-person 
hearing, so long as the request is timely. The claimant is not required 
to explain why an in-person hearing is requested. The final DSI 
regulations reaffirm this right. 20 C.F.R. Sec. 405.315(c).
Questions to consider:
      We continue to hear of instances where ALJs do not follow 
SSA's regulations and fail to provide an in-person hearing when 
requested or require a reason for the request. As SSA increases the use 
of video hearings, the agency needs to make its policy instructions 
clear regarding the claimant's absolute right to have an in-person 
hearing and that no reason is required.
      Under DSI, if the claimant objects to the time or place 
of the hearing, the objections must be made in writing within 30 days 
of receiving the hearing notice. 20 C.F.R. Sec. 405.317(a). SSA needs 
to clarify whether a claimant has the same 30-day period to object to a 
video hearing. Section 405.315(c) does not reference Sec. 405.317(a).
D. ALJ dismissals
    Under DSI, the only ALJ decision that a claimant can appeal to the 
Decision Review Board is where the ALJ dismisses the case. These 
decisions are often legally erroneous but must be addressed before the 
substantive disability issues can be considered. The DSI regulations 
require that a claimant first ask the ALJ to vacate the dismissal 
before asking the DRB to act. However, there is no time limit for the 
ALJ to act on the request to vacate.
Questions to consider:
      Should there be a time limit for the ALJ to act on a 
request to vacate a dismissal? After that time limit, the claimant 
could automatically proceed to the DRB.
      How long does it take ALJs to rule on requests to vacate 
dismissals? SSA should monitor the length of time it takes ALJs to make 
decisions on requests to vacate dismissals.
      Is there any change in the rate of dismissals under DSI 
than under the current regulations? What is the rate at which the DRB 
overrules the ALJs dismissals under DSI?
V. Decision Review Board and the Impact on the Federal Courts
    The final rule eliminates the Appeals Council and the claimant's 
right to initiate administrative review of an unfavorable ALJ decision 
(other than ALJ dismissals). Instead, the Decision Review Board (DRB) 
will select cases, both favorable and unfavorable, for own-motion 
review using a ``predictive screening tool'' that will identify 
``error-prone'' cases.
    In the preamble to the final rule, SSA recognized that many 
commenters were very concerned about the elimination of the claimant's 
right to appeal and the impact on the federal courts. As a result, SSA 
emphasizes several points: implementation will be very gradual; the 
only claims affected will be those that go through the DSI process from 
the beginning; the Appeals Council will continue to operate in states 
where DSI is not implemented (for now, everywhere except Region I) and 
for all nondisability claims (including Region I states).
    The elimination of claimant-initiated administrative review of 
unfavorable ALJ decisions and creation of the DRB presents one of the 
major changes under DSI. The DRB process raises many concerns and 
issues and will require very close monitoring to assess the impact on 
claimants, on the courts, and on SSA.
A. Impact on the Federal Courts
    Over the years, the courts have played a critical role in 
protecting the rights of claimants. We support the current system of 
judicial review and are pleased that the DSI final rule does not impair 
that right, except to the extent it could be affected by the procedural 
change of eliminating claimant-initiated review and significantly 
increasing the number of court filings. SSA is aware of these concerns, 
which also have been raised by the Judicial Conference of the United 
States. While it will be very important to closely monitor the impact 
of the final DSI changes on the courts, it will be much longer than the 
one year of Region I DSI implementation before we have any true sense 
of the impact. And, we may not have a full assessment until after SSA 
has expanded DSI implementation into another region.
Questions to consider:
      To assess the impact of eliminating Appeals Council 
review on the federal courts, SSA should track the following:
        Number of ALJ decisions: favorable and unfavorable
        Disposition of cases by DRB, including the number where 
it disagrees with the ALJ
        Number of court filings
        Number of pro se court filings and number of filings by 
attorneys
        Court dispositions, including numbers and reasons for 
action:

          Remands: voluntary remands under sentence six of 42 
U.S.C. 405(g)
          Remands: by court decision for errors of law or fact 
under sentence four of 42 U.S.C.405 (g)
          Remands: by court decision for new and material 
evidence and good cause for not submitting earlier under sentence six 
of 42 U.S.C.
          Reversals under sentence four of 42 U.S.C. 405(g) 
Affirmances

      Do the new rules on evidence submission to ALJs affect 
court filings? Additional burdens could be faced by the courts in 
dealing with new evidence that is submitted to the court but which was 
not accepted by the ALJ or DRB. Under 42 U.S.C. Sec. 405(g), the court 
may order that SSA (not the court) take additional evidence if there is 
a showing that the evidence is new and material and there is good cause 
for the failure to incorporate the evidence into the record at an 
earlier administrative level. Claimants may be forced to file an appeal 
in court just to have SSA consider evidence that should have been 
considered during the administrative process. As discussed earlier, SSA 
needs to very closely monitor how ALJs apply the new rules on 
submission of evidence within five days of the hearing or later. 
Otherwise, these rules alone could result in a dramatic increase in 
court filings.
      If federal court filings escalate significantly, will SSA 
reinstate a final administrative level of review accessible by 
claimants?
      If the DRB does not complete its review within 90 days of 
the notice, the claimant can proceed to file in federal court. Will SSA 
send another notice at the end of the 90 days to inform the claimant 
that he/she has 60 days to file an appeal in federal court? SSA has 
said that it will send such a notice, but there is no provision in the 
final regulations.
B. Screening ALJ Decisions: The DRB ``Predictive Screening Tool''
    Under DSI, the ALJ decision is screened before effectuation. If the 
DRB decides to review the case, the ALJ decision will only be sent to 
the claimant with the DRB Notice of review. During the first year of 
DSI, the DRB will review all ALJ decisions in Region I, both favorable 
and unfavorable. This means that claimants with favorable ALJ decisions 
will first receive the decision after the DRB screening and with the 
DRB review notice. And they will not be put in benefits payment status 
until after the review is completed.
Questions to consider:
      What is the ``predictive screening tool''? We have been 
told that SSA and its contractor are looking at recent court decisions, 
both requests for voluntary remand and court orders, to determine the 
reasons that the underlying agency final decision was erroneous. A 
preliminary model will be run to see which cases are picked up. SSA 
will compare the cases identified by the screening tool to its own 
hands-on review of cases in Region I. Issues raised in written 
statements submitted by claimants and their representatives also will 
be compared to those identified by the screening tool. The process for 
selection of cases for DRB review raises another series of questions: 
Will ALJs be able to learn which cases are more likely to trigger DRB 
review and adjust their decisions accordingly? Does the selection 
process seem to target certain categories of claimants? By impairment? 
By functional capacity? By age? Is SSA required to disclose the 
criteria used in screening?
      Will screening detect all of the issues that arise in ALJ 
decisions, including those that are subtle, such as ALJ bias or unfair 
hearings? ALJ decisions that are currently reviewed by the Appeals 
Council often raise a number of legal and factual issues. Is any 
computer-based screening tool able to identify all of the issues that 
arise in a case?
      How will SSA determine whether the predictive screening 
tool is accurate? What are the criteria for measuring success? What is 
an ``error-prone'' case? Can the model accurately identify ``error-
prone'' cases? What will SSA do if the screening tool does not identify 
appropriate cases?
      Will screening be different for ALJ allowances than for 
denials? Our members and their clients remain very concerned about 
delays in payment of benefits that may arise from the time needed for 
DRB review of favorable ALJ decisions. In Region I, the DRB will not 
only screen but will review all ALJ decisions, favorable and 
unfavorable. Claimants will not be put in pay status while waiting for 
a DRB decision on an ALJ allowance. However, we have been told that SSA 
is looking at ways to accelerate the screening and review of favorable 
ALJ decisions, especially dire need cases, TERI (terminally ill) cases, 
and on-the-record ALJ decisions. Will SSA establish categories of cases 
where DRB review can be expedited?
      Does the screening disparately impact certain classes of 
individuals? Is there a disparate impact of the screening tool on 
certain groups of claimants, e.g., those who have a mentally illness? 
SSA should monitor the selection of cases by the DRB to assure that it 
is not biased against claimants with specific impairments or who have 
certain racial or ethnic characteristics.
C. Written Statements at the DRB
    Written statements can be submitted in every DRB review case (the 
proposed rule required DRB invitation or permission), but there is a 
2000-word limit, about 3 to 4 pages. In Region I, every statement will 
be part of the DRB review during the first year of DSI implementation, 
since all ALJ decisions will be reviewed. These written statements from 
claimants will be extremely important since SSA will want to compare 
the issues raised in the written statements with those identified by 
the predictive model. There may be critical information about a case 
that will only be provided by the claimant and not identifiable from 
the electronic record.
Questions to consider:
      What criteria will SSA use to determine whether the 
statements are critical in predicting error-prone cases? If determined 
that the statements are critical, will SSA change the process?
      Under DSI, the claimant's representative must submit the 
statement within 10 days after receiving the DRB notice of review, 
unless the DRB asks for a statement within a set time period. Is the 
10-day time limit fair? What happens if a claimant seeks representation 
after receiving the DRB notice of review? How can the representative 
obtain a copy of the hearing file and the hearing recording in a timely 
manner? Will the DRB allow for an extension of the 10 days in 
appropriate cases?
      Given the importance of the written statements, is an 
across-the-board limit of 2000 words fair?
D. Composition of the DRB
    The DRB will be composed of three-member panels. Each panel will 
have two ALJs and one Administrative Appeals Judge (currently, the 
members of the Appeals Council). They will serve on a rotational basis 
and will be appointed by the Commissioner.
Questions to consider:
      How are the panels selected?
      How will SSA ensure that review is fair and neutral? We 
remain concerned that each panel will have a majority of ALJs who will 
in turn review the decisions of other ALJs. SSA should establish 
criteria to guarantee the fairness of the DRB process.
E. DRB Dispositions
    The DRB is authorized to take certain actions under 20 C.F.R. 
Sec. 405.440(b):

      1. It can affirm the ALJ decision if the ALJ's findings of fact 
are supported by substantial evidence and/or there is no significant 
error of law;
      2. For errors of law, the DRB can issue its own decision 
affirming, reversing, or modifying the ALJ decision;
      3. For factual findings not supported by substantial evidence and 
if further development is needed, the DRB will remand to the ALJ.

    Under the regulation, remand is the only remedy for factual errors. 
But what happens if a case has both legal and factual errors? This is 
not an uncommon occurrence. In many Appeals Council cases I have been 
personally involved with, the Appeals Council granted review because 
the ALJ's findings of fact were not supported by substantial evidence; 
there were errors of law; and new and material evidence was provided. 
In these cases, he Appeals Council remanded for consideration of the 
new evidence and for further proceedings. How would the DRB handle the 
same situation?
F. Submitting Evidence to the DRB
    New evidence can be submitted to the DRB, if it reviews a case, 
under the same requirements as submission of evidence to the ALJ after 
the decision is issued (and the DRB does not review a case).
    However, the regulation, 20 C.F.R. Sec. 405.373(d), does not 
provide a time frame for submitting the evidence to the DRB. In 
contrast, after an ALJ decision, new evidence must be submitted within 
30 days after the ALJ decision is received.
Questions to consider:
      When should new evidence be submitted to the DRB? 
Representatives need guidance for the submission of evidence to the 
DRB. The written statement must be filed within ten days after 
receiving the DRB notice of review. How does evidence submission 
coincide with filing the written statement? Is it 30 days after the DRB 
notice?
      Similar to the concerns about the time limit for 
submission of the written statement, what happens if a claimant seeks 
representation after receiving the DRB notice of review? How can the 
representative obtain a copy of the hearing file and the hearing 
recording in a timely manner? Will the DRB allow for an extension of 
the time to submit evidence in appropriate cases, especially where the 
claimant has undergone medical testing and procedures that are new, 
material, and related to the alleged disability?
CONCLUSION
    For people with disabilities, it is critical that the Social 
Security Administration address and significantly improve the process 
for determining disability and the process for appeals. We strongly 
support efforts to reduce unnecessary delays for claimants and to make 
the process more efficient, so long as these changes do not affect the 
fairness of the process to determine a claimant's entitlement to 
benefits.
    As the new Disability Service Improvement process begins, we will 
monitor the process with NOSSCR members in Region I states and continue 
to present our concerns to the Commissioner. We believe that 
communication between claimants' representatives and SSA will play an 
important role in monitoring DSI implementation and assessing the 
impact on claimants.
    Thank you for this opportunity to testify before the Subcommittees 
on this issue of critical importance to claimants. I would be glad to 
answer any questions that you have.

                                 

    Chairman MCCRERY. Thank you, Ms. Bohr. Mr. Skwierczynski.

STATEMENT OF WITOLD SKWIERCZYNSKI, PRESIDENT, NATIONAL COUNCIL 
  OF SOCIAL SECURITY ADMINISTRATION FIELD OPERATIONS LOCALS, 
      AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

    Mr. SKWIERCZYNSKI. Thank you, Chairman, for providing two 
panels to fit my name. Thank you for the opportunity to testify 
before the Committee on the commissioner's disability 
improvement plan.
    I represent 50,000 employees, the bulk of the agency, who 
work on various aspects of Social Security's disability 
program. The people I represent interview claimants, take and 
process every single disability claim and appeal that is filed 
in this agency.
    It's the union's belief that the commissioner's disability 
plan is seriously flawed in many respects and will not achieve 
the goal of consistency, speed, and a better disability 
product.
    We think staff support is essential. The commissioner 
alluded to staffing cuts. Last year, the President's budget was 
reduced, which led to a 2,400 work year reduction. The 
President's budget this year contains another 2,300 work year 
reduction.
    According to the commissioner's testimony, 2,000 more, 
1,900 more would lead to about 6,700 work years over a two-year 
period reduction in Social Security.
    No matter what the commissioner proposes, we cannot sustain 
those kinds of cuts and provide a good disability product.
    The one to eight replacement ratio in the field is 
outrageous. You will only create a situation where interviews 
will be backlogged and appointments will be delayed, and 
there's no way that that will improve the disability process.
    The systems changes that are necessary, the commissioner 
didn't even speak about it, are massive, and unless the proper 
budgetary support is afforded, they're not going to happen.
    The EDCS, our experience with the electronic claims, there 
was no staff support given to the field and the initial 
interviews were increased by 20 or 45 minutes, and with no 
staff support, that obviously led to backlogs.
    We applaud the Quick Claims unit idea. Unfortunately, we 
think that should be done in the field office by Federal claims 
representatives. There's no need for a handoff. The disability 
claims manager pilot showed that that can be done right in-
house without that kind of a handoff.
    We think it's a bad idea to use the best workers in the DDS 
to do that. They're going to be the easiest claims. What you 
have left is the less experienced workers doing the tough work 
that's not involved in the Quick Claims.
    With regards to the reviewing official, we have a problem 
with that person being an attorney. We have no problem with the 
concept.
    We think there's plenty of SSA personnel that are involved 
in the decision-making process on disabilities who can do that 
work, and we think it's an insult to them to say that you have 
to be an attorney to do that.
    We think having attorneys in there creates a more litigious 
process. You have almost every step of the way the claimant 
dealing with an attorney--at the reviewing official, at the 
hearing, at the DRB, and in the courts, all attorney-run 
processes. That is going to create more litigation.
    We think the barriers that are put into the process--where 
the reviewing official has to, in order to overturn a decision, 
has to have a medical expert opinion; at the next level, for 
the judge to overturn a decision, he has to write a written 
rebuttal to the reviewing official; and cutting off the 
record--are all designed to reduce the disability rolls. 
There's no doubt in our minds that that's really the goal here, 
to reduce the disability rolls, and you have barriers in the 
process that create litigation to arrive at that.
    Getting rid of the Appeals Council, there is about a 30 
percent remand reversal rate at the Appeals Council, and 
getting rid of--and obviously, there's a reason for that. The 
cases either are not fully developed or there's errors. That 
will be lost in this process.
    Closing the record prematurely ensures that people who are 
disabled and file for disability benefits and don't provide 
their evidence timely will not get disability benefits, or if 
they re-file at a later point, they'll lose retroactivity, get 
lower benefits, it will affect their Medicare, it has massive 
effects on various aspects of their lives.
    We think that what should happen is we should look at the 
disability redesign approach.
    The disability claims manager experiment we thought was 
very successful.
    The adjudicative officer was a little different than the 
reviewing official, where they were claimant friendly, met with 
the claimants, met with the attorneys, had the ability to 
reverse the decision, but also assisted them in preparing for 
the hearing. We think that's a more claimant friendly approach.
    Frankly, neither the commissioner nor the agency has done 
anything, either in terms of focus groups or in terms of 
surveys to find out what the claimants actually want, what the 
public wants, and during the redesign, they did, and the public 
indicated they wanted a caseworker approach and they wanted to 
be able to deal with the decisionmaker. This approach here does 
not get to that point.
    Finally, I want to say to the Commissioner, that the 
employees of Social Security have not really been consulted 
with regards to this plan, and they're the ones who are best 
aware of how the process works and what the needs in the system 
are, and I would urge the commissioner to reestablish 
communications with the union who represent 50,000 employees so 
that we can have input on how this plan operates.
    [The prepared statement of Mr. Skwierczynski follows:]
 Statement of Witold Skwierczynski, President, National Council of SSA 
 Field Operations Locals, American Federation of Government Employees, 
                      AFL-CIO, Baltimore, Maryland
    Chairman McCrery, Ranking Member Levin, and members of the Social 
Security Subcommittee, I respectfully submit this statement regarding 
Social Security's Disability Service Improvement (DSI). As a 
representative of AFGE Social Security General Committee and President 
of the National Council of SSA Field Operations Locals, I speak on 
behalf of approximately 50,000 Social Security Administration (SSA) 
employees in over 1500 facilities. These employees work in Field 
Offices, Offices of Hearings & Appeals, Program Service Centers, 
Teleservice Centers, Regional Offices of Quality Assurance, and other 
facilities throughout the country where retirement, survivor and 
disability benefit applications and appeal requests are received, 
processed, and reviewed.
    SSA employees are dedicated to providing the highest quality of 
service to the public in a compassionate manner. AFGE represents 
employees who are committed to serving communities in the face of a 
significant increase of work and decrease of staff. However, the severe 
cuts in budget and staff have had a detrimental effect on employee 
morale and, also, the ability for SSA to fulfill public service 
demands.
    Although SSA's workloads have increased by 12.6 percent over the 
last 5 years, and 2.7 percent in FY 05, Congress appropriated $300 
million less for SSA than proposed in the President's FY06 budget 
request. The result was a 2368 reduction in budgeted work years. While 
SSA's proposed budget requests have compared favorably compared to many 
other agencies, AFGE is concerned that the recent budget cuts may 
result in dangerous levels of inadequate service to the public and 
stewardship of the programs under SSA's jurisdiction.
    In February 2006, SSA informed AFGE that the budget cuts would be 
absorbed in staffing resources. Since then, Commissioner Barnhart 
imposed a hiring reduction wherein the Agency will replace only 1 of 8 
employees engaged in direct public service work in field offices who 
leave SSA. These are the employees who interview disability and 
disability appeals applicants.
    AFGE is very concerned that such staffing cuts will drastically 
affect SSA's ability to provide adequate public service to the disabled 
community. AFGE also raises a number of questions regarding the 
decisions to reduce direct service staffing. Why are such cuts 
necessary if SSA has the resources to implement Disability Services 
Improvement (DSI) which is a system that has never been tested and will 
cost billions of dollars to implement? If there are insufficient Claims 
Representatives and Technical Experts to take and process initial 
claims, all the DSI improvements in the world won't improve the system. 
The entire system requires sufficient staffing resources on the front 
end to enable the public to file applications for disability benefits 
that fully address the nature of their condition, their medical sources 
and how their disability impacts their ability to work and to perform 
routine tasks. There is currently insufficient staff to do this job. 
Commissioner Barnhart's staff replacement plan will further reduce the 
staff that processes disability claims. Flooding the appellate system 
with dollars while slicing the staff that takes applications makes no 
sense and is not an effective way of improving the system.
Commissioner Barnhart's Disability Service Improvement Plan
    AFGE continues to be very concerned about the Commissioner's plans 
to move forward with her disability initiative.
    The record should be clarified with regards to Commissioner 
Barnhart's statement that she met with the organizations that represent 
SSA employees. She did. She held one meeting with all 6 SSA AFGE 
presidents for the purpose of introducing her plan. That was 3 years 
ago. Ms. Barnhart was not receptive to our constructive criticisms. The 
leadership of six bargaining councils has more than 150 years of 
specialized experience with SSA and represents 50,000 bargaining unit 
employees. She refused to include experienced bargaining unit employees 
in strategy sessions or workgroups that helped design the new plan. The 
Union rejected this plan and Ms. Barnhart has since refused to meet 
and/or discuss any subject matter with AFGE. The AFGE Local in the 
Boston Region has yet to be informed of any implementation plans of 
DSI. However, she has decided to meet with 2 minor unions that 
represent less than 10 % of SSA employees regarding her plan. They 
support it. AFGE doesn't. Her failure to meet with representatives of 
employees who process disability claims every day and, consequently, 
understand the disability process is dangerous and may lead to adverse 
repercussions for the entire disability claims system.
    Ms. Barnhart does not have the support or the buy-in of SSA 
workers. In fact, SSA employees overwhelmingly oppose this disability 
plan.
    Currently 55 million Americans have a disability, of which 8.3 
million Americans and their families receive Social Security Disability 
Insurance (SSDI) (17.1% of all Social Security benefits are paid to 
disabled beneficiaries and their families.) Some disabilities are long 
term (e.g., broken back) while others are permanent (e.g., blindness, 
quadriplegia).
    Processing time for hearings appeals has dramatically increased. 
Prior administrations attempted to develop different methods to 
streamline the disability determination process. Some pilot projects, 
such as the Disability Claims Manager, were considered to be successful 
(i.e., resulted in applicants receiving benefits twice as fast) and 
were overwhelmingly supported by the public. However, Commissioner 
Barnhart refused to implement those pilots and instead developed a new, 
untested approach to alter the process. It is the Union's belief that 
the Commissioner's approach will do little to get benefits to the 
disabled applicant faster or improve service. The commissioner's plan 
eliminates one appeal step and implements new legal barriers to 
obtaining benefits:

      The rules provide for the establishment of a Quick Claims 
Unit for claims filed by individuals who have obvious disabilities. 
Claims that are sent to this unit are required to have a completed 
disability decision within 20 days. The union favors the establishment 
of such a unit. The union opposes placement of the unit in the State 
Disability Determination Service (DDS). This is an unnecessary handoff. 
Employees who work in SSA field offices are entirely capable of being 
trained to make such disability determinations. The DCM pilot proved 
that fact. SSA public surveys indicate that there is an overwhelming 
desire from the public that disability decisions should be made by the 
person who interviews them. The Quick Decision Units provide the Agency 
with an opportunity to streamline the process by eliminating a handoff 
and, at the same time, satisfy the public desire for a caseworker to be 
empowered to decide both the disability and non-disability portions of 
their claim. Allowing federal employees in field offices to make 
disability decisions would require Congress to change the exclusivity 
portions of the law that currently reserve such decisions to the state. 
It is time for Congress to enact such a change in the law and improve 
public service. Sending these obvious disability approval cases to DDS 
units who will be staffed by the best DDS Disability Examiners will 
also adversely affect the rest of the disability workload. Assigning 
less experience personnel to process the toughest cases where the 
decisions are not clear cut, is a recipe for disaster. The best 
employees should work the most difficult cases--not the easiest.
      In place of the current Reconsideration process, 
attorneys (Federal Reviewing Officials) will review cases and write a 
``legal decision'' that will serve as the SSA's legal position on the 
case. In spite of the Commissioner's hiring freeze for direct service 
positions and her claim of budget shortages, an army of attorneys are 
being hired as this statement is written. The trust fund (SSA) and 
general revenue (SSI) impact of eliminating reconsiderations currently 
processed in the DDS and replacing them with a reviewing official 
attorney is unknown. Failure to pilot this change is risky and 
reckless. Substantial deviation from the current disability approval 
rates could lead to unwarranted expenditures or, conversely, more 
stringent policy decisions regarding the definition of a disability. In 
addition, it appears that the substitution of attorneys for State DDS 
Disability Examiners will result in substantially more administration 
expenses. Congress should be careful to ask SSA for projected costs of 
this change both on administrative expenses and benefit outlays.

    Although the regulations were silent on the issue of cost analysis, 
it would be crucial for Congress to request that SSA track the costs 
associated with the Federal Reviewing Official, including the costs 
associated with clarification and developmental requests to State DDSs 
and medical providers as well as the processing time, accuracy, case 
costs, allowance rates, and appeal rates.
    It is also unclear as to the rules that the Federal Reviewing 
Official would be utilizing in making his/her decision (i.e. listings, 
case law, judgment, etc.). This would have to be identified in any 
comparison if the Federal Reviewing Officials utilize different rules 
than that of the State DDSs.

      The Administrative Law Judge (ALJ) will now be limited in 
what he/she can consider as evidence from the claimant as all medical 
evidence must be presented five days prior to the hearing. The ALJ is 
limited in what he/she can consider good cause for late medical 
evidence notwithstanding its relevance. Prior to the Commissioner's new 
approach, the ALJ was allowed total discretion to accept and evaluate 
evidence. Under the new rules, the ALJ's written decision must explain 
in detail why he/she agrees or disagrees with the substantive findings 
and overall rationale of the Federal Reviewing Official's legal 
decision. The ALJ must rebut SSA's legal decision if benefits are to be 
awarded to a claimant. One can anticipate that hearing reversal rates 
will decrease due to the pressure on the ALJ to uphold the Reviewing 
Official decision. Claimants that currently are approved for legitimate 
disabling conditions will be denied under Commissioner Barnhart's 
system because of the premature closing of the record. Does Congress 
actually want a system where their constituents are denied disability 
benefits on a technicality?
      The disability application or ``record'' will be closed 
effective with the ALJ's decision, prohibiting U.S. District Courts 
from accepting or considering relevant and material evidence that might 
prove that the claimant is disabled. This likely will result in 
thousands of new disability claims each year in the form of 
reapplications. This subtle bureaucratic change realistically could 
result in the loss of significant retroactive benefits for those who 
refile with evidence of disability with an onset date within the scope 
of the previous application. There is no reason to close the record at 
any time other than to reduce the ability of claimants to present 
relevant evidence to support their claim. This will surely lead to 
decisions to deny benefits to claimants who are disabled under the law. 
Some of the adverse affects of this new closing of the record 
regulations are:

        Loss of complete or partial coverage for Social 
Security Disability Insurance
        Loss of coverage for Medicare benefits entirely
        Loss of retroactive Medicaid and Medicare coverage for 
a period of time covered by current rules (from the date the claim was 
initially filed to the date of the subsequent application).

    Such uncertainty regarding a key element of this change in the 
appellate process causes the Union to strongly suggest piloting any of 
these changes. Commissioner Barnhart has rejected pilots. Besides 
piloting the Reviewing Official step replacing the reconsideration, the 
Union feels that the Agency should pilot the decision to require that 
the reviewing official be an attorney. This decision ignores the fact 
that there are many highly qualified non-attorney employees in both SSA 
and the DDS's who are fully capable of deciding disability appeals and 
writing logical decisions. The Commissioner both insults the current 
workforce and creates difficult legal barriers for claimants to 
overcome in appeals. In an attorney dominated process (i.e., Reviewing 
Official and ALJ) claimants will almost be required to hire an attorney 
to manage their appeals at the earliest level. This adds an element of 
litigation that does not currently exist in the reconsideration appeal.
    The Commissioner will replace the Appeals Council Review with a 
Decision Review Board (DRB). The DRB will be appointed by the 
Commissioner to review and correct ALJ decisions including approved 
claims. The DRB will not review decisions by state officials (DDSs) or 
Federal Reviewing Officials (FRO). This will prevent processing payment 
of an approved claim and will render the ALJs decision as not final. 
The process by which cases will be selected for review will be entirely 
at the DRB discretion and will provide the DRB with carte blanche 
authority to pick cases in a non-random manner. Such unregulated 
authority is an invitation for abuse
    The Appeals Council currently either reverses or remands 30% of 
claims that they review.
    Eliminating an appeal where such a large number of cases are either 
reversed or where all the evidence was not properly assessed insures 
that many claimants will be denied benefits that would be approved 
under the current system. Is this the desire of Congress? Does Congress 
really want to scale back the SSA disability program so that claimants 
approved under the current system are now denied benefits?

      A claimant's last appeal, U.S. District Court, requires 
legal representation. This will severely disadvantage claimants who 
lack the financial resources to either hire an attorney or travel to 
District Court. Additionally, the U.S. District Court system which is 
already overwhelmed is not prepared to absorb this influx of additional 
cases.

    Commissioner Barnhart's new approach fails to address the problems 
and inadequacies of the State Disability Determination Services (DDS), 
which is responsible for the initial disability decision in all claims. 
AFGE strongly believes that if the initial claims level were addressed, 
the need for such drastic changes to the appeal levels would be 
unnecessary. But most of all, it would insure disabled claimants were 
paid much sooner.
    There is no consistency in State DDS disability determinations. The 
taxpayer's chances of being approved for disability benefits continue 
to depend more on where they live and their income.
    For example, State Agency Operations records indicate that those 
who can obtain medical attention early and often have a better chance 
of being approved for benefits than those who have a limited income or 
resources. (See Chart Below) Nationwide, those applying for Social 
Security disability have a much greater chance of being approved than 
those who may only apply for the Supplement Security Income (SSI) 
program. State Agency records clearly expose the inconsistencies of the 
State DDS decisions.
    More than 66 percent of Social Security disability claims for 
benefits are approved in the Washington DC DDS, while only less than 28 
percent of those who file for benefits are approved in the South 
Carolina DDS. Of those who applied for SSI benefits, the State of New 
Hampshire leads with more than a 59 percent allowance rate. However, 
residents from the States of Michigan, Ohio, Iowa and Georgia are 
approved less than 35 % of the time by their respective DDS. The 
concurrent disability process shows inexplicable variable allowance 
rates depending on the state of residence. Allowance rates are low in 
every state. The states of New Hampshire, Arizona and the District of 
Columbia approve more than 43 percent of the concurrent claims. Less 
than 18 percent of those filing concurrent disability claims are 
approved in Iowa, Missouri, and South Carolina.
    As an illustration, following is a compilation of the allowance 
rates in a sample of states:

----------------------------------------------------------------------------------------------------------------
                                                                        T2              T16         Concurrent
                                                                 -----------------------------------------------
                                                                      Initial         Initial         Initial
                                                                 -----------------------------------------------
                                                                   Allow   Deny    Allow   Deny    Allow   Deny
----------------------------------------------------------------------------------------------------------------
NATIONAL AVERAGE                                                    44.2    55.8    36.4    63.6    25.3    74.7
BOSTON Region                                                       53.7    46.3    43.6    56.4      33      68
 Boston, MA                                                         56.9    43.1    48.7    51.3    36.6    63.4
 New Hampshire                                                      63.8    36.2    59.2    40.8    48.2    51.8
 Connecticut                                                        47.3    52.7    34.3    66.7    23.5    76.5
New York Region                                                     51.4    48.6    42.8    57.2      33      67
 Buffalo, NY                                                          47      53    33.8    66.2      23      77
 Newark, NJ                                                         60.8    39.6    42.1    57.9    34.9    65.1
 Puerto Rico                                                        34.2    65.8      --      --      --      --
Philadelphia Region                                                 51.7    48.3    40.3    59.7    28.9    71.1
 Maryland                                                           49.9    50.1    35.4    64.6    24.9    75.1
 PA                                                                 53.3    46.7    41.8    58.2    28.1    71.9
 WA, DC                                                             66.1    33.9    54.8    45.2    45.5    54.5
Atlanta Region                                                      34.9    65.1    30.1    69.9    21.2    78.8
 Georgia                                                            30.3    69.7    27.1    72.9    19.1    80.9
 Kentucky                                                           39.4    60.6    33.3    66.7    21.1    78.9
 Birmingham                                                         38.4    61.6    27.5    72.5    20.7    79.3
 Florida                                                            38.5    61.5    35.5    64.5    26.4    73.6
 Miami                                                              43.7    56.3    44.8    55.2    35.6    64.4
 S. Carolina                                                        28.2    71.8      26      74    17.7    82.3
Chicago Region                                                      41.9    58.1    30.8    69.2    21.4    78.6
 Illinois                                                           43.8    56.2    30.4    69.6    23.9    76.1
 Michigan                                                           39.3    60.7    29.9    70.1    19.7    80.3
 Detroit                                                              32      68    26.4    73.6    16.5    83.5
 Ohio                                                               39.4    60.6    27.1    72.9    19.1    80.9
 Wisconsin                                                          46.9    53.1      34      66    21.4    78.6
Dallas Region                                                       44.2    55.8    39.2    60.8    28.2    71.8
 Texas                                                              42.7    57.3    41.6    58.4    28.6    71.4
 New Mexico                                                           47      53    44.8    55.2    31.2    68.8
 Oklahoma                                                           43.1    56.7    36.8    63.2    24.4    75.6
 Shreveport                                                         53.8    46.2    37.3    62.7    35.3    64.7
Kansas City Region                                                  43.6    56.4    30.5    69.5    17.9    82.1
 Missouri                                                           42.9    57.1    29.8    70.2    17.4    82.6
 Iowa                                                               45.5    54.5    32.3    67.7    16.4    83.6
Denver Region                                                       38.5    61.5    39.1    60.9    21.5    78.5
 Colorado                                                             35      65    38.6    61.4    20.5    79.5
 N. Dakota                                                          51.2    48.8    39.6    60.4    28.1    71.9
 S. Dakota                                                          45.4    54.6    34.9    65.1    18.9    81.1
San Francisco Region                                                50.9    49.1    44.4    55.6    32.4    67.4
 Arizona                                                            59.3    40.7    51.8    48.2    43.3    56.7
 California                                                         50.8    49.2    43.9    56.1    31.8    68.2
 Bay Area                                                           60.6    39.4    52.5    47.5    36.6    63.4
 L. A. East                                                         49.4    50.6    49.8    50.2    37.4    92.5
 L. A. West                                                         54.4    45.6    49.6    50.4    34.5    65.5
 Central Valley                                                     48.1    51.9    39.3    60.7    28.2    71.8
 Sacramento                                                           54      46      38      62    29.7    70.3
Seattle Region                                                      43.1    56.9    41.3    58.7    24.3    75.7
 Oregon                                                             35.4    64.6    34.7    65.3    18.8    81.2
Seattle                                                             45.4    54.6    45.4    54.6    27.1    72.9
----------------------------------------------------------------------------------------------------------------

    In a system where everyone is taxed equally, this is difficult to 
explain or justify. Claimants are entitled to quality consistent 
decisions not withstanding their state of residence or whether they are 
filing for Social Security or SSI disability benefits.
    According to GAO,\1\ a majority of DDSs do not conduct long-term, 
comprehensive workforce planning, which should include key strategies 
for recruiting, retaining, training and otherwise developing a 
workforce capable of meeting long term goals. The State DDS' lack 
uniform minimum qualifications for Disability Examiners (DE's) have 
high turnover rates for employees and do not provide ongoing training 
for DE's. This seems to be mostly attributed to low State employee pay 
and benefit scales and budget constraints.
---------------------------------------------------------------------------
    \1\ GAO-04-121
---------------------------------------------------------------------------
    AFGE is convinced that SSA is not able or willing to correct these 
problems. AFGE has expressed these very concerns to the Subcommittee 
for several years and has seen little improvement with the State DDS 
situation. The State DDSs are required to use different rules that 
those at the hearing levels. This too has not changed with the 
Commissioner's new plan. This is a key problem that must be reconciled 
in order to reform the disability system. AFGE strongly believes that 
the only way to resolve the problems that plague the State DDSs is to 
federalize them. This will bring consistency to the initial claims 
decisions in the same way it resolved the Supplemental Security Income 
problems in 1974.
    AFGE has recently become aware of the preliminary Systems Impact 
Assessment of SSA program modifications needed to accommodate the new 
disability determination process. The modifications considered 
necessary will be massive, leaving few programs untouched. Some of the 
systems changes will involve modifications to State DDS systems, which 
will have to be coordinated. SSA firewalls will require safeguarding 
and all software written for such modifications will require approval 
from the Architectural Review Board. However, approval is not certain 
and programs should require extensive testing before use.
    AFGE finds the extent of these required modifications to be 
alarming. Is it reasonable, to begin implementation in the Boston 
Region before such systems changes can be made? SSA's budgets for FY06 
and FY07 do not provide the money that will be needed to accomplish the 
systems changes necessary. Where do the resources come from to make 
these changes? If SSA devotes all or most of its systems budget and 
manpower to the Commissioner's disability initiate, won't that 
adversely impact on the Agency's other systems requirements?
    With staffing cuts and heavy workloads that continue to rise, is it 
reasonable to use resources for an untested, unpiloted theory, rather 
than to provide staffing on the front lines to improve public service? 
AFGE believes the answer is clearly NO.
    Commissioner Barnhart's approach fails to implement new 
communication or adjudicative techniques that either improve service to 
the disabled claimant or result in a more accurate or expeditious 
decision. More importantly, these changes will not protect the rights 
and interests of people with disabilities.
In Conclusion
    AFGE strongly believes the full costs of implementing this 
initiative should be determined and submitted to Congress before 
implementation. Once costs can be determined, approved and 
appropriated, the DSI should be piloted. The effectiveness of this 
initiative should be thoroughly tracked and reviewed by SSA and 
Congress before any further implementation should take place. Piloting 
should include not only the DSI plan but also other proposed solutions 
to the disability benefits problem such as the DCM and AO initiatives. 
After appropriate pilots the Agency and Congress will be more equipped 
to select the best solution to the problem.
    Additionally, AFGE strongly urges Congress to direct SSA to take 
corrective action with regards to the State DDS system and enact 
legislation which permits federal employees to make disability 
decisions without requiring the approval of the States.
    Secondly, there will always be budget priorities. However, both 
workers and employers contribute to the Social Security system and are 
entitled to receive high quality service. It is entirely appropriate 
that spending for the administration of SSA programs be set at a level 
that fits the needs of Social Security's contributors and 
beneficiaries, rather than an arbitrary level that fits within the 
current political process.
    In 2000, then Chairman Shaw and Rep. Benjamin Cardin reintroduced 
the Social Security Preparedness Act of 2000 (formerly H.R.5447), a 
bipartisan bill to prepare Social Security for the retiring baby 
boomers. AFGE strongly encourages this Subcommittee to reconsider 
introducing legislation that will provide SSA with the appropriate 
funding level to process all claims and all post-entitlement workloads 
timely.
    Taking SSA's administrative expenses ``off-budget'' has vast 
support, not only from AFGE and SSA workers, but from senior and 
disability advocacy organizations. This would include AARP, the 
National Committee to Preserve Social Security and Medicare, the 
Alliance for Retired Americans, the Consortium for Citizens with 
Disabilities, and the Social Security Disability Coalition, just to 
name a few.
     AFGE believes that by taking these costs OFF-BUDGET with the rest 
of the Social Security program, Social Security funds will be protected 
for the future and allow for new legislation, such as the Medicare 
Prescription Drug, Improvement, and Modernization Act of 2003 and the 
Intelligence Reform and Terrorism Prevention Act of 2004 to be 
implemented without comprising public service integrity. We believe 
this can be accomplished with strict congressional oversight to ensure 
the administrative resources are being spent efficiently.
    AFGE is committed to serve as the employees' advocate and as a 
watchdog for clients, for taxpayers, and for their elected 
representatives.

                                 

    Chairman MCCRERY. Mr. Hill.

 STATEMENT OF JAMES A. HILL, PRESIDENT, CHAPTER 224, NATIONAL 
                    TREASURY EMPLOYEES UNION

    Mr. HILL. Good afternoon, Chairman McCrery, Ranking Member 
Levin, and the Members of the Social Security Subcommittee.
    My name is James Hill. I have worked as an attorney advisor 
in the Office of Disability Adjudication and Review (ODAR), 
formerly known as the Office of Hearing and Appeals for over 23 
years.
    I'm also the president of Chapter 224 of the National 
Treasury Employees Union that represents attorney advisors and 
other staff members in approximately 110 hearing offices and 
regional offices across the United States.
    I thank the Subcommittee for inviting me to testify 
regarding the DSI initiative.
    We now stand on a precipice of fundamental change. After an 
exhaustive review with input from many sources, Commissioner 
Barnhart formulated significant process changes that are set 
forth in the regulations that were issued on March 31, 2006. 
The planning stage is over. Now, implementation begins.
    Commissioner Barnhart has proposed a lengthy and thoughtful 
implementation plan designed to identify and correct the 
inevitable unforeseen problems and to ensure DSI functions as 
expected.
    The National Treasury Employees Union (NTEU) has 
consistently supported DSI, and we continue to do so.
    Elements of the plan, such as the quick decision units, the 
elimination of the reconsideration determination, the creation 
of the FedRO position, the creation of medical vocational 
expert units, the elimination of the claimants' administrative 
appeal of ALJ decisions, the eventual elimination of the 
Appeals Council, the creation of the DRB, and the creation of 
an entirely new quality assurance process as presented in the 
regulations will significantly improve the disability 
adjudication process.
    However, there are pitfalls that must be avoided if DSI is 
to succeed.
    The quality assurance process must not stifle the ability 
of adjudicators and medical and vocational experts to exercise 
their independent judgment without undue influence.
    The integrity of the FedRO decision must be maintained. It 
is essential that the FedRO decision not become merely another 
form of the discredited reconsideration determination.
    We are also concerned that the locations of the FedROs and 
potentially poor working conditions will dissuade the best 
qualified candidates from applying for or accepting that 
position.
    Finally, we are convinced that if the current backlog in 
hearing offices is not eliminated, it will strangle DSI. Simply 
put, if DSI must contend with backlogs as large as those that 
exist today, it will fail.
    Currently, there are approximately 727,000 cases pending at 
ODAR hearing offices, and average processing time is nearly 480 
days. Ideally, hearing offices should have no more than 350,000 
cases.
    Resources are tight, so any initiative designed to attack 
the backlog problem must do so without demanding a significant 
expenditure of resources.
    Fortunately, history provides the vehicle for the 
resolution of the backlog problem: the Senior Attorney Program 
1995 that produced over 220,000 fully favorable on the record 
decisions and was a key factor in reducing the cases pending in 
the late nineties from 550,000 to 311,000. This was 
accomplished with a modest expenditure of resources.
    Unfortunately that program was terminated as part of the 
Hearings Process Improvement initiative.
    We recommend that SSA reissue the regulations authorizing 
ODARs attorney advisors to issue fully favorable on the record 
decisions.
    Properly administered, such a program could produce over 
350,000 fully favorable on the record decisions over the next 4 
years, reducing the number of cases pending to a workable level 
and requiring only a relative mild expenditure of resources.
    I reiterate the support of NTEU for the DSI initiative.
    Mr. Chairman, again, I appreciate the opportunity to 
testify before this Committee and would be happy to answer any 
questions Members of the Committee may have.
    Thank you.
    [The prepared statement of Mr. Hill follows:]
  Statement of James Hill, President, Chapter 224, National Treasury 
                    Employees Union, Cleveland, Ohio
    Good morning Chairman McCrery, Ranking Member Levin and members of 
the Subcommittee on Social Security. My name is James Hill. I have 
worked as an Attorney-Adviser in the Office of Disability Adjudication 
and Review (formerly the Office of Hearings and Appeals) for over 23 
years. I am also the President of Chapter 224 of the National Treasury 
Employees Union (NTEU) that represents Attorney-Advisers and other 
staff members in approximately 110 Office of Disability Adjudication 
and Review (ODAR) Hearing and Regional Offices across the United 
States. I thank the Subcommittee for inviting me to testify regarding 
Commissioner Barnhart's proposal now known as the Disability Service 
Improvement Initiative (DSI) to reform the disability determination 
process. My testimony today represents the views of NTEU.
    Since the early 1990's SSA hearing offices have been under severe 
stress caused by an adjudication process woefully inadequate to process 
the massive numbers of appeals of State Agency determinations. Cases 
pending at OHA hearing offices rose from approximately 180,000 in 1991 
to approximately 550,000 cases nationwide by mid-1995. At that time SSA 
began the Senior Attorney Program which during its pendency from 1995 
to early 2000 produced over 220,000 fully favorable on-the-record 
decisions. The number of cases pending at hearing offices was reduced 
to approximately 311,000 in September 1999. However, since 1999, a 
number of factors including the termination of the Senior Attorney 
Program, increased receipts, and the implementation of the disastrous 
Hearings Process Improvement Plan (HPI) have resulted in a record 
number of cases pending. Currently, there are approximately 727,000 
cases pending at ODAR hearing offices with an average processing time 
of nearly 480 days. In some hearing offices processing time is 
approaching two years. All agree that this is not an acceptable level 
of service.
    The current backlog was accumulated over the course of several 
years. Elimination of the backlog will take several years; there are no 
practical ``quick fixes''. Commissioner Barnhart recognized this fact 
and after a comprehensive and lengthy review of the current 
adjudication process, she proposed a number of fundamental changes. The 
changes in the disability process were codified in the final 
regulations published on March 31, 2006. The process by which these 
regulations were promulgated was lengthy and involved substantial 
interaction with entities internal and external to SSA that are 
interested in the disability process.
    The final regulations significantly alter the disability 
adjudication process. They create a ``quick decision process'' to 
adjudicate those claimants who are obviously disabled. They eliminate 
the reconsideration determination and create an entirely new level of 
decision maker; the Federal Reviewing Official. The final regulations 
replace the Appeals Council with a Decision Review Board and indicate 
that an entirely new quality assurance system will be created that will 
function at each level of the process. The final regulations introduce 
a limited number of changes in the Administrative Law Judge hearing 
process but do not alter the essential nature of that process.
    To facilitate the new disability adjudication process, Commissioner 
Barnhart has instituted organizational changes designed to facilitate 
the implementation of DSI. These changes include the creation of Quick 
Decision Units at the state agencies, the creation of the Office of 
Disability Adjudication and Review, and the creation of Medical and 
Vocational Expert Units. The components of the Office of Disability 
Adjudication and Review include the Office of the Chief Administrative 
Law Judge that oversees the operations of the Agency's hearing offices, 
the Office of the Chief Federal Reviewing Official that oversees the 
operations involving the Federal Reviewing Officials (FedRO), the 
Office of Appellate Operations (the Appeals Council) and the Office of 
the Decision Review Board.
    Implementation of DSI will commence in the Boston Region on August 
1, 2006. The Commissioner has wisely selected the Boston Region as the 
first to implement DSI for a number of reasons including its small size 
(currently the Boston Region has about 3% of the hearing office 
caseload) and state agencies that are efficiently processing their 
workloads. Notably, the Boston Region hearing offices are not troubled 
by the huge backlogs that afflict so many hearing offices across the 
United States. The Commissioner also has decided that DSI will not be 
expanded to other regions for at least a year. This permits the fine 
tuning that will certainly be necessary in order to achieve maximum 
efficiency. Only after DSI has proven its viability will it be expanded 
and even then, to other small regions initially.
Quick Decisions
    In order to provide timely benefits to those who are ``obviously 
disabled'', the new regulations contain provisions for a ``Quick 
Decision Process''. This will significantly improve the disability 
adjudication process for those claimants with specified medical 
conditions that normally result in a finding of disability. The 
Commissioner projects that approximately 10% of initial claims can be 
handled through this process. While originally scheduled to be attached 
to various regional offices, the final regulation places these units in 
the various state agencies. This is an example of the flexibility shown 
by the Commissioner during the course of the comment period.
The Role of the Federal Reviewing Official (FedRO)
    Perhaps the most innovative initiative contained in the regulations 
is the elimination of the reconsideration determination and the 
creation of the Federal Reviewing Official (FedRO) position, a federal 
attorney with complete adjudicatory authority that is placed between 
the State Agency and the Administrative Law Judge. It is absolutely 
essential that the FedRO process be more than a replacement for the 
current reconsideration determination which has very little credibility 
with the public or with ALJs.
    If DSI is to fully succeed, the FedRO must introduce an element of 
credibility in disability adjudications prior to the ALJ hearing that 
is presently lacking. Currently, the State Agencies provide almost no 
rationale for their unfavorable determinations which seriously 
undermines their credibility. It is essential that the decisions made 
by the FedRO be recognized as independent decisions by an individual 
who has the discretion to award or deny benefits as justified by the 
record. The importance of attaining this credibility cannot be 
overstated. The final regulations removed some, but not all, of the 
ambiguity in the proposed regulations that led many to question whether 
the FedRO is an independent decision maker. If the FedRO turns out to 
be ``just a federal reconsideration determination'' DSI will fail.
    To enhance the credibility of the FedRO decision, it must be a well 
reasoned, comprehensive and literate explanation of why a claimant is, 
or is not, entitled to disability benefits. To be effective the FedRO 
process must establish its credibility with claimants, the State 
Agencies, Administrative Law Judges and most importantly with the 
American public. This requires the legal expertise of an attorney to 
apply the rules, regulations and law to the evidence and to make and 
issue a legally defensible written decision. It also demands extensive 
knowledge and experience in evaluating the functional effects of 
medical impairments. The FedRO must have extensive legal and disability 
program knowledge and experience. Fortunately, SSA already employs 
personnel with the education, training, and experience to decide and 
draft disability decisions necessary to assure the success of the FedRO 
process--ODAR Attorney Advisers.
    The expertise of each individual FedRO is vital to the success of 
DSI. It is essential that the Agency secure the best available 
applicants. The first 70 FedROs will be located in the Washington 
metropolitan area, close to or at ODAR headquarters. Given the number 
of unknown factors associated with the ``start-up'' of this new 
process, it is prudent that it be located centrally. However, there is 
a significant downside to such a centralized location in that many of 
the best qualified potential applicants will not compete for the 
positions simply because of the location and the general 
unattractiveness of the proposed working conditions. It is essential 
for the success of DSI that the key position in DSI, the FedRO, is 
accessible to those most qualified to successfully perform the 
requirement of the position. That entails locations convenient to those 
highly qualified individuals as well as working conditions conducive to 
enticing the best to apply and accept the appointment. Hopefully, SSA 
will recognize that acquiring the best possible applicants requires 
that the position must be made attractive, and in the future, it will 
adjust its hiring strategies to facilitate acquiring the best possible 
personnel.
    There is a larger issue involved in the eventual placement of FedRO 
personnel. When citizens think about the Social Security 
Administration, they do not perceive it as a far off governmental 
bureaucracy located in Baltimore. Most do not even know that SSA 
headquarters is in Baltimore. When most citizens think of SSA, they do 
so in terms of their local SSA office where they can deal face to face 
with SSA employees who are their neighbors. This is an invaluable asset 
not only to SSA but to the public we serve. Is it likely that SSA would 
have delivered such spectacular service to the people of hurricane 
damaged Louisiana, Mississippi, Alabama, and Texas if it had been a 
faceless bureaucracy located somewhere inside the ``Beltway''? SSA is 
what it is in part because it is neighbors serving their neighbors. The 
rationale that applies to the wisdom of maintaining local field and 
hearing offices should also apply to the FedRO. Citizens are much more 
comfortable dealing with their government on a local basis with people 
who are their neighbors, not strangers half a country away.
    An important objective of DSI is to facilitate consistency at all 
decisional levels. The inconsistency of decision-making between the 
state agencies themselves, state agencies and ALJs, and even among ALJs 
themselves has been a constant source of criticism. However, it must be 
understood and accepted, that the complexity of disability 
determinations and the difference in the effects of medical conditions 
on each individual leads to some perceived inconsistency in the 
decisional results. Nonetheless, the final regulations do facilitate 
decisional consistency without interfering with the decisional 
independence of adjudicators at all three levels through several 
modalities including the FedRO process itself and a comprehensive 
quality assurance program.
    The requirement that the FedRO produce a well reasoned legally 
defensible decision using the same rulings, regulations, court 
decisions, and statutes as are used by the ALJ should greatly enhance 
decisional consistency. DSI initiates feedback loops among the various 
levels of adjudication that will provide each level with insight into 
the thought processes of the other decision makers. If the FedRO 
decision is different from that of the State Agency, the FedRO's 
written decision will explain to the State Agency why a different 
decision was reached. This level of communication, both formal and 
informal, between the FedRO and State Agency will result in improved 
decision making by both entities and promote decisional consistency 
without adversely affecting the claimants.
    The increased level of decisional consistency promoted by the 
regulations will result in the reality and the perception that the 
proper decision is being made at the earliest possible time. The FedRO 
decision will present the ALJ and the claimant with a comprehensive 
explanation of why the Agency denied the claim. While it imposes no 
limitation on the ALJ, it does help focus the issues in controversy 
leading to a more efficient hearing process. By providing the claimant 
with a detailed explanation of why his/her application was denied, the 
FedRO assists the claimant and his/her representative in marshalling 
evidence needed to establish disability.
The ALJ Hearing
    The final regulations wisely retain the Administrative Law Judge 
hearing process essentially unchanged. Hearing offices will continue to 
prepare cases for hearing, Administrative Law Judges will continue to 
conduct due process hearings, and the decisional independence of the 
ALJ continues to be protected by the APA. However, concern had been 
expressed about the relationship between the FedRO and the ALJ. The 
final regulations make it clear that the FedRO decision is not entitled 
to any deference on the part of the ALJ. The Commissioner's Plan 
recognizes that the reality of the de novo hearing must be maintained 
and the freedom of the ALJ to decide cases based upon his/her 
evaluation of the evidence and the appropriate law and regulations must 
be preserved.
Elimination of the Appeals Council
    Another bold initiative of DSI is the elimination of the Appeals 
Council and the claimant's right to make an administrative appeal of 
the ALJ decision. While on its surface the elimination of the Appeals 
Council appears to be detrimental to claimants, that is not the case. 
The effect of the elimination of the Appeals Council must not be viewed 
in isolation, but in the context of the entire adjudicatory process. 
Improvements in the decision making process at the State Agency level, 
the introduction of the RO, and the quality assurance program proposed 
by the Commissioner render the administrative review of ALJ decisions 
unnecessary. We believe that considering the Commissioner's New 
Approach in its totality, an additional administrative appeal of the 
ALJ decision is unnecessary.
    As currently constituted the Appeals Council serves two distinct 
purposes. It serves as an appellate body and as a quality assurance 
entity, but performs neither with distinction. This is not intended to 
disparage the hard-working employees at the Appeals Council, but rather 
its basic concept and design. The final regulations replace the Appeals 
Council with an end-of-line review by a centralized quality control 
unit known as the Decision Review Board. The Agency, in its effort to 
improve quality assurance at the ALJ level of adjudication, should take 
care not to repeat its mistakes of the early 1980s when it attempted to 
interfere with ALJ decisional independence. The final regulations 
recognize that in order to avoid the appearance of interference with 
ALJ decisional independence, it is essential that ALJs be intimately 
involved in any quality assurance program.
    There is concern that the lack of a right of administrative appeal 
of the decisions of Administrative Law Judges will result in a 
substantial increase in the caseload of the District Courts. We agree 
that any action that significantly increases the caseload of the 
district courts is unacceptable. However, we believe that the 
assumption that eliminating the Appeals Council will significantly 
increase District Court caseload is unwarranted. While such an 
assumption is sustainable if one considers the elimination of the 
Appeals Council in isolation, it is far less sustainable when one 
considers the whole breadth of the Commissioner's plan. In that light, 
we expect that after a period of adjustment, the increased quality of 
the adjudication system will actually decrease the number of cases 
filed at the District Court. It will certainly significantly decrease 
the number of voluntary remands. In any event, the measured 
implementation process that limits DSI to the Boston Region for at 
least one year will permit an opportunity to observe the impact of the 
elimination of the Appeals Council on the number of court filings.
    While appealing unfavorable ALJ decisions directly to the District 
Court is appropriate, claimants should not have to file an action in 
the District Court to contest a dismissal of a Request for Hearing. The 
final regulations permit claimants to appeal dismissals to the 
Disability Review Board.
AeDIB
    The Commissioner has made it clear that inauguration of her new 
approach is predicated upon the successful implementation of AeDIB. SSA 
has had sufficient experience with implementing substantial process 
changes without ensuring the necessary system improvements are in place 
to know the dangers of premature implementation. Fortunately, AeDIB is 
progressing as well as can be expected. Components of AeDIB such as 
digital recording of hearings, video teleconferencing for conducting 
hearings, and a new case management system (CPMS) have been 
successfully accomplished. Decision writing templates that 
significantly improve the quality of written ALJ decisions have been 
enthusiastically received and continue to be made even more user 
friendly. The Agency has determined that dual monitors are necessary to 
maximize the utility of the electronic folder and in fact has commenced 
the purchase and distribution of a second monitor to those employees 
who duties require the use of two monitors. Of course the most 
important and most complex component of AeDIB is the electronic folder 
itself.
    The savings, both in time and money, that will be realized by 
converting from paper folders to electronic folders are substantial and 
will result in improved service to the public. The electronic folder 
will significantly increase the Agency's flexibility in managing its 
workload and permit cases to be processed more expeditiously. 
Implementing electronic folders is a massive undertaking and the 
consequences of failure are catastrophic. However, the realistic 
attitude and the competency of Agency personnel charged with the 
responsibility of implementing the electronic folder has resulted in a 
process that is proceeding as well as can be expected. They have 
demonstrated a capacity to listen to the comments from end users and 
introduce improvements on a nearly continual basis. There is every 
reason to expect the electronic folder to be a technical success. 
However, the Agency should recognize that the fundamental differences 
in the interface between employees and the electronic folder and the 
current interface between employees and paper folders may render some 
tasks more time consuming than is presently the case.
The Backlog at Hearing Offices
    The disability backlog problem at ODAR is neither recent nor 
entirely intractable, but it is persistent.



    As of the end of April 2006 there were 727,629 cases pending at 
ODAR hearing offices. The optimal level of cases for efficient ODAR HO 
operations is 350,000 cases. While DSI will significantly improve the 
adjudication process, it will have little impact on the current 
backlog. In fact, if the backlog problem is not addressed it will 
strangle the Commissioner's DSI initiative. Unless the backlog at ODAR 
hearing offices is eliminated, DSI will be no more effective in 
providing timely service they we are now. Fortunately, history provides 
the vehicle for the resolution of the backlog problem--the Senior 
Attorney Program begun in 1995. The solution is to use current staff to 
perform the adjudication needed to deal with this problem.
    It is not a coincidence that during the time the Senior Attorney 
Program was in operation (1995-2000) the number of cases pending at OHA 
hearing offices declined, nor is it a coincidence that the number of 
cases pending increased after the Senior Attorney Program was 
terminated as part of the Hearings Process Improvement Plan (HPI). Over 
its five year history, the Senior Attorney Program produced 220,000 
decisions which when combined with record ALJ productivity reduced the 
number of cases pending at hearing offices from 550,000 to 311,000 
cases. This was accomplished with a relatively modest expenditure of 
resources. HPI eliminated the Senior Attorney Program because it was 
believed that the Senior Attorney Program was no longer necessary. The 
termination of the Senior Attorney Program, the implementation of the 
disastrous HPI initiative and increased receipts have resulted in a 
record number of cases pending. ODAR has a serious backlog problem, and 
there is no reason to expect a significant improvement in the 
foreseeable future.
    As discouraging as the increase of cases pending may be, it does 
not fully reflect the harmful effect of the backlog on the public. 
Average processing time at the hearing office level was approximately 
270 days at the beginning of FY 2000; now it is nearly 480 days. In 
some locales, claimants have to wait nearly two years for a hearing. 
This is an unconscionably long wait for a disability decision, and it 
is causing untold harm to some of the most vulnerable members of 
society. None will dispute that the public deserves far better service 
than SSA is presently providing.
    The backlog has risen despite system and process improvements and 
record ALJ productivity levels. Current initiatives have not materially 
affected the backlog because they fail to deal with the underlying 
causes of the backlog. The root causes of the hearing office backlog 
are the number of receipts, too few adjudicators for the size of the 
caseload, and an inefficient adjudicatory process. Little can be done 
about the number of receipts. Fiscal considerations preclude acquiring 
the massive number of ALJs that would be required to effectively reduce 
the backlog. ODAR must look elsewhere for the additional adjudicators 
temporarily needed to deal with the backlog problem.
    Consistent with my testimony at previous hearings, we recommend 
implementing an improved Senior Attorney Adjudicator Program. If 
implemented this program would produce approximately 370,000 high 
quality favorable decisions over the next four fiscal years, 
effectively eliminating the backlog by the end of FY 2010, with a 
minimal increase in resources. Additionally, none of those cases would 
need to be worked up (pulled) as Senior Attorney Adjudicators would 
review and decide unpulled cases. This will significantly reduce the 
backlog of cases to be pulled.
    A Senior Attorney Adjudicator Program would invest the authority to 
issue fully favorable on-the-record (OTR) decisions in all hearing 
level attorneys with at least 3 years experience. All qualified ODAR 
attorneys with at least three years' experience would assume decision 
making as well as ALJ decision drafting duties. The addition of 
decision making duties necessarily reduces decision writing capacity. 
However, because most ALJ decision writing will continue to be done by 
attorneys, replacing lost decision writing capacity can be accomplished 
by redirecting current assets. The original Senior Attorney Program 
demonstrated the validity of this concept. To further ensure quality, 
all Senior Attorney decisions would be drafted in the new decisional 
templates, formatted for Senior Attorney signature, and a Lead Senior 
Attorney position would be created. This individual would review 
hearing office (HO) decision drafts, including those drafted by Senior 
Attorneys, and provide feedback on quality to management, the writers 
and the Senior Attorneys.
    The large number of Senior Attorneys who would perform both the 
function of decision maker and decision writer ensures that each 
hearing office would have maximum flexibility in managing its workload. 
Requiring that Senior Attorneys still draft ALJ decisions ensures that 
ALJs continue to have access to the most skilled and experienced 
decision writers. No DSI cases would be subject to adjudication by a 
Senior Attorney.
    In addition to making a positive, immediate, and effective impact 
on the backlog, a Senior Attorney Adjudicator Program would act as a 
training program for the Federal Reviewing Official (FedRO) position. 
Over the next five years, SSA will hire or promote over 2000 attorneys 
for the FedRO position that the Commissioner has repeatedly declared to 
be the linchpin of DSI. Hiring new attorneys in ODAR hearing offices 
will permit them to learn the SSA disability adjudication process under 
the mentorship of Senior Attorneys and Administrative Law Judges. 
Eventually, those successful as Attorney Advisers would become Senior 
Attorneys. Those successful as Senior Attorneys would be prime 
candidates for the FedRO position. The selection of FedROs would be 
based on demonstrated performance and not the vagaries of a merit 
selection system.
    The conversion of a large number of ODAR Attorney Advisers to part 
time decision making Senior Attorneys will result in an immediate and 
substantial improvement in ODAR service to the public at minimal 
additional cost. Based upon the Agency's experience with the original 
Senior Attorney Program, and with the full cooperation of hearing 
office management (lacking during the original Senior Attorney 
Program), this initiative could produce as many as 100,000 quality 
decisions a year without diminishing ALJ productivity or changing the 
overall payment rate. Based upon previous experience, the average 
processing time for these cases would be approximately 100 days. 
Additionally, the minimal staff time and complete lack of ALJ time 
spent on these cases frees the staff and ALJs to spend more time on 
processing those cases requiring a hearing. The staff will benefit 
greatly from the significant reduction in the pulling workload caused 
by the Senior Attorney Adjudicator Program. The reduction of the 
backlog will significantly enhance the ability of hearing offices to 
more efficiently transition from paper to electronic files and will 
enable hearing offices to effectively fulfill their role in the DSI 
process.
    The savings in administrative costs to the Agency and human costs 
to the claimants by eliminating unnecessary hearings would be 
substantial. Adjudicating cases that should have been paid without the 
need for ALJ involvement will not only provide much more timely service 
to those disabled claimants, but it will free ALJs to hear only those 
cases requiring a hearing thereby shortening the time those claimants 
must wait for a disability decision. The savings and improved service 
that would result from the implementation of a Senior Attorney 
Adjudicator Program based upon the original Senior Attorney Program 
would be substantial. This program would greatly facilitate the 
transition from the current system to DSI.
    Mr. Chairman, again, I appreciate the opportunity to testify before 
this committee and would be happy to answer any questions members of 
the committee may have. Thank you.

                                 

    Chairman MCCRERY. Thank you, Mr. Hill. Judge Bernoski.

   STATEMENT OF THE HONORABLE RONALD G. BERNOSKI, PRESIDENT, 
            ASSOCIATION OF ADMINISTRATIVE LAW JUDGES

    Mr. BERNOSKI. Thank you. Thank you, Mr. Chairman. Thank you 
for inviting us to testify here today.
    I appear as the president of the Association of ALJs, and 
we represent about 1,100 ALJs in the SSA, and there are about 
1,400 ALJs in the entire Federal government.
    We support the commissioner's plan for reform of the Social 
Security disability process, and we worked with her during the 
development of the plan, and we've committed to work with her 
during its startup in Region I and its rollout across the 
country.
    However, in our opinion, the changes in the plan cannot 
occur without help from outside sources, and the major support 
must come from Congress, because the plan must be properly 
funded. The failure to fund the changes will lead to failure of 
the plan and to catastrophic results, including unprecedented 
backlogs, all to the harm of the American people.
    Now, with regard to particular aspects of the plan, the 
reviewing official, or the FedRO, will require new funding, and 
this change, as indicated previously today, is really, and we 
agree, the centerpiece of the reform plan.
    The primary function of the FedRO is to ensure that the 
cases are completely prepared for hearing and to award cases 
that meet the standard for disability as early possible in the 
process.
    Now, we all know that it takes time to prepare a case for 
trial and it is vital that SSA does not expect these FedROs to 
do too much.
    Now, we have heard that the FedROs will be expected to 
produce two cases per day. However, we believe that this is 
more than a person can accomplish while producing a quality 
work product.
    The expectation of two cases per day was one of the reasons 
that caused the Adjudication Officer (AO) program to fail, and 
we should learn from that failure not to commit the same 
mistake again.
    Requiring too much from the FedRO will result in poorly 
developed case files and the wrong cases being paid. If ALJs 
receive poorly developed files, we'll have the same amount of 
work as we do now, but we'll have fewer support staff to assist 
us, which is going to lead to larger backlogs.
    We are of the opinion that at least two FedROs plus support 
staff will be required for each ALJ.
    Now, the plan requires that the FedRO position be staffed 
by an attorney, and we are of the opinion that the skill and 
training of an attorney is vital to perform the 
responsibilities of this position and to producing the expected 
quality of work product.
    Now, also, the separation between the ALJ and the FedRO 
must be maintained. It must be remembered that the ALJ does not 
hear the case on appeal from the FedRO, but instead conducts a 
de novo hearing.
    The ALJs are required to make decisions based on the 
evidence that was produced at the hearing and for the record, 
and judges should not be expected to comment on the differing 
aspects of the FedRO determination, because this only creates 
an opportunity to claim error on appeal.
    We further believe that the ALJ hearing must become more 
structured under the reform plan.
    Our cases will now go directly to the Federal courts, go 
the Federal courts on appeal, and the courts are going to 
require a higher quality work product. This will require more 
sophisticated medical and vocational expert testimony be 
produced at our hearings, and that better written hearing 
decisions be prepared by attorney writers.
    It is of little value for us to conduct an excellent 
hearing if the work product does not capture it in a well-
written and analyzed decision.
    Now, in closing, Mr. Chairman, the commissioner should be 
given credit for assuming the huge task of converting our paper 
file system to the electronic eDib system, but again, this 
program is going to have to be fully funded.
    Experience has shown at least initially that the conversion 
from the electronic file to the eDib--or from the paper to the 
eDib system has slowed down the processing time, and our judges 
have reported to us that the electronic system itself is slow, 
and this is reducing the amount of work that the user can 
produce; and both of these factors are going to reduce the 
number of cases that can be heard and the number of decisions 
that can be written, and funds must be provided to correct this 
problem within the system.
    Now, in closing, SSA is the only adjudicative body that not 
have established rules of procedure, and we believe that 
comprehensive rules must be adopted to provide the structure 
that's needed to implement this new process.
    Thank you very much.
    [The prepared statement of Mr. Bernoski follows:]
   Statement of Judge Ronald G. Bernoski, President, Association of 
           Administrative Law Judges, Inc., Sussex, Wisconsin
    Mr. Chairman and Members of the Subcommittee:
I. INTRODUCTION
    Thank you for the opportunity to testify before you today. My name 
is Ronald G. Bernoski. I am an Administrative Law Judge (``ALJ'') who 
has been hearing Social Security disability cases at the Office of 
Disability Adjudication and Review (ODAR) of the Social Security 
Administration (``SSA'') in Milwaukee, Wisconsin, for over 25 years.
    I am the President of the Association of Administrative Law Judges 
(``AALJ''). Our organization represents the administrative law judges 
employed in the Social Security Administration and the Department of 
Health and Human Services (``DHHS''). One of the stated purposes of the 
AALJ is to promote and preserve full due process hearings in compliance 
with the Administrative Procedure Act for those individuals who seek 
adjudication of program entitlement disputes within the SSA. The AALJ 
represents about 1100 of the approximate 1400 administrative law judges 
in the Federal government.
I. STATEMENT
    The Association of Administrative Law Judges supports the 
Commissioner's reform plan for the Social Security disability system. 
We have endorsed the plan and we have worked with Deputy Commissioner 
Martin Gerry to improve it during the developmental phase of the plan. 
As a result, some of our proposals have been included in the final 
regulations. We have an agreement with the Commissioner to work closely 
with her during the implementation of the reform plan which will begin 
in Region I. We have both made a commitment to have frequent meetings 
during this initial phase to look for problems areas and to ensure 
success of the ``start-up''. We will continue to work, in a like 
manner, with Deputy Commissioner Lisa de Soto (ODAR) to achieve success 
as the plan starts in Region I and expands across the nation.
    However, we believe that the changes included in the reform of the 
Social Security disability system can not occur in a vacuum, and that 
assistance will be required from outside sources. The major outside 
support must come from Congress as the reform plan must be fully 
funded. The failure to completely fund the changes will lead to 
catastrophic results including unprecedented backlogs. As a result, the 
American people will suffer by having to wait even longer for their 
critically important hearings.
Federal Reviewing Official
    The Federal Reviewing Official (FRO) will require new funding. We 
agree with the Commissioner that the FRO is the ``center piece'' of the 
reform and if it fails the entire reform plan will fail. We are of the 
opinion that at least two FRO's, plus support staff, will be required 
for each administrative law judge (judge). The primary function of the 
FRO is to ensure that cases will be completely developed and ready for 
hearing. The FRO will have the further responsibility to identify the 
claims that meet the standards for SSA disability and award those 
claims as early as possible in the process. This function is an 
extremely time consuming task, because it requires the FRO to work 
closely with both physicians and attorneys in the preparing the hearing 
files. Physicians and attorneys are both extremely busy professionals 
and frequently multiple contacts are needed to obtain requested 
information. As we all know, it takes time to prepare a case for trial. 
It will be a serious error to place an unreasonable production 
requirement on the FRO's. The production number which has been 
whispered in the halls of ODAR of two fully developed cases per day 
will ultimately result in poor quality work and remands back to the FRO 
from the judge. In our view, a production requirement of this level 
could not be met under normal sustained working condition and would not 
yield the quality work product expected and needed from the FRO's. We 
must remember that the high production requirement of two cases per 
day, was one of the major factors leading to the failure of the piloted 
Adjudication Officer program in the 1990's. The Adjudication Officer 
had many of the same functions and responsibilities of the FRO and we 
should acknowledge the reasons for the failure of that program and 
learn from our past mistakes. If the FRO fails to perform as expected, 
the judges will receive poorly developed case files. This failure will 
leave us in a worse condition than we now experience. The reform plan 
anticipates that judges will have fewer support staff. If a failure in 
the reform results in the same workload for the judges, and we have 
fewer support staff, we will never be able to hear and decide our cases 
in a timely and high quality manner. The result will be an increase in 
the case backlog which will be to the detriment of the American people. 
High production requirements for the FRO also carry with it the 
potential of resulting in too many claims being awarded or the wrong 
claims being paid. We are certain that this is not the result intended 
by the Commissioner in developing this reform plan.
Attorneys as FRO's
    The reform plan requires that the FRO position will be staffed by 
persons who are trained as attorneys. We are of the opinion that this 
is a vital component of the plan. The skill and training of an attorney 
is needed to adequately perform the responsibilities of this position. 
An attorney is best qualified to provide high quality legal analysis 
and legal writing required to completely perform the responsibilities 
of this position, as well as similar positions in the hearing office.
Interaction Between the Judges and FRO
    As stated above, the primary responsibility of the FRO is to 
develop the evidence in the case and prepare the case for hearing. The 
judges must receive a complete work product from the FRO for the new 
process to be a success. When preparing the written hearing decision 
the judge should not be required to comment on elements in the decision 
of the FRO that differ from the decision of the judge. The case is not 
before the judge on appeal from the FRO. Instead, the judge conducts a 
de novo hearing on the claim and makes a finding based on the evidence 
produced for the record during a face-to-face hearing. In fact, this is 
the only time in the entire SSA disability process (including Federal 
court) where the claimant is given an opportunity to appear and ``state 
his/her case'' to a government official. It is thereby vital that the 
decision be based on the evidence in the hearing record with the judge 
weighing the evidence and making credibility findings. This decision 
should not be encumbered by requiring comments on the FRO decision, 
which are not relevant to the hearing evidence. Any required commenting 
only provides an opportunity to claim error on appeal.
The Administrative Law Judge Hearing
    We are of the opinion that the administrative law judge hearing 
must become more structured and formal in the new process. This will 
require that more sophisticated medical and vocational expert witness 
testimony be produced at the hearing and that a well written decision 
be prepared by the decision writer. The most frequent complaint that we 
hear from the judges, and the United States District courts, relates to 
the poor decisional quality. Regrettably, this result obtains in many 
cases because of the poor quality of the writing from our non-legal 
writing staff who, for the most part, have no formal education beyond 
high school. It is of little value for the judge to conduct an 
excellent hearing with sophisticated evidence if the same is not 
captured and correctly analyzed in the written hearing decision. In 
administrative law, the written decision remains a vital part of the 
case record, and the most common criticism we receive from the Federal 
courts relates to the lack of an adequate rationale in our decisions. 
Since under the new process, most of our cases will go directly to the 
Federal courts on appeal we will be required to perform at a level 
expected by the Federal courts. If we do not meet this expectation, the 
agency will receive severe criticism from the courts and will suffer 
lasting embarrassment. A significant part of this problem can be 
addressed by requiring that all decision writers be trained as 
attorneys, but the hearing process must also be improved. Writing 
templates which have been developed by the agency could never 
substitute for the training and education received by attorneys. Legal 
training equips them with the necessary tools to correctly analyze and 
write legally defensible decisions.
The Electronic File, e-DIB
    The Commissioner should be given credit for her leadership in 
converting the SSA paper file system to an electronic process. This has 
been a large undertaking and it moves SSA into a modern system of 
record keeping. e-DIB, or the electronic file, must also be fully 
funded both for its implementation and subsequent needed improvements. 
Funds must be available to provide sufficient electronic equipment for 
the judges, staff, hearing rooms, claimant use and remote hearing 
sites. Hearing rooms must also be increased in size to allow space for 
the installation of the new electronic equipment. The hearing rooms 
must be designed for safety with measures taken to ``build in'' or 
conceal the numerous wires that are now lying on the floors in the 
currently retrofitted hearing rooms. The current retrofitted undersized 
hearing rooms, with wires lying about, create a dangerous environment 
for both claimants and SSA employees.
    Experience with e-DIB has shown that use of the electronic file 
slows the work process at all levels, including both the DDS and 
administrative law judge levels. We have also received information from 
our judges indicating that the current e-DIB system reacts very slowly 
to user commands. This poor response time slows down the user of the 
equipment and reduces the amount of work that can be produced. The 
result of both factors will be an increase in the case backlog because 
fewer cases will be heard and fewer decisions will be written. We have 
discussed this problem with agency officials, and they have assured us 
that they are aware of this problem and are working to have it 
corrected. We are of the opinion that funding must be provided to 
correct this soft ware problem and to increase the speed of the e-DIB 
system.
Rules of Procedures
    We are the only adjudicative body in this country that does not 
have established rules of procedure. About five years ago the agency 
and the AALJ formed a Joint Rules Committee to developed proposed rules 
of procedure. The Committee worked for several years developing an 
excellent proposed code consisting of rules of procedure that were in a 
large part based on the existing rules of the Department of Labor. The 
proposed rules were given to the Commissioner and she incorporated some 
of the rules into the new process, but many have not been implemented.
    We are of the opinion that the remaining rules should be 
implemented by the agency. These are not substantive rules and do not 
require ``notice and comment'' under the Administrative Procedure Act. 
Since most SSA claimants are represented, these rules are needed to 
provide structure to our hearing system. The rules can provide for a 
relaxing of the procedural rules for pro se claimants.
     The proposed rules will are provide the formality and structure 
required by the Federal courts. We have pledged to work with the 
Commissioner on developing these rules, and we are of the opinion that 
it will be a serious error not to promulgate these rules.

                                 

    Chairman MCCRERY. Mr. Flack.

  STATEMENT OF GARY FLACK, CHAIRMAN, SOCIAL SECURITY SECTION, 
                    FEDERAL BAR ASSOCIATION

    Mr. FLACK. Mr. Chairman, the Social Security section of the 
Federal Bar Association (FBA) welcomes this opportunity to 
share our thoughts about the new final regulations to improve 
the disability claims process.
    I am the Chair of the Social Security section of the FBA.
    We commend Commissioner Barnhart for her efforts to improve 
the disability determination process. This Subcommittee is also 
to be congratulated for its oversight role in having conducted 
hearings on the problem and now on the solution.
    Today I focus my testimony on several aspects of the final 
rule.
    First, will the reviewing official delay proceedings or 
become an institutional hurdle claimants must overcome?
    The office of the FedRO is a more accessible but federally 
controlled decisionmaker. Unless there are at least as many 
FedROs as ALJs, the caseload of each FedRO will soon exceed the 
heavy caseload that the ALJs have today.
    Too large a caseload will not only delay decisionmaking but 
also interfere with accurate decisionmaking, so we agree with 
the others that there have got to be plenty of FedROs.
    Also, we're concerned that the FedRO decisions may become 
an institutional barrier in disability determinations.
    Some ALJs may utilize the FedRO decision to deny benefits. 
Other ALJs may regard it as a hurdle the claimant must 
overcome.
    If an ALJ reverses the FedRO's decision, then the DRB may 
question the ALJ's decision based on the earlier FedRO 
decision.
    The commissioner must provide procedural guarantees to 
assure the independence of the ALJ's decisionmaking. It is the 
fair hearing that's the centerpiece of the disability 
adjudication process, not the FedRO.
    Our second concern is how the Federal judiciary is used as 
a measure of the success of the DSI. This has been addressed by 
several of the speakers, and the commissioner as well.
    We think that it's great that the commissioner is 
developing all these different statistics as to whether there's 
a voluntary remand, whether there are substantive mistakes, and 
looking at these numbers is critical to accurately see how the 
program is working.
    One thing that I don't think many speakers have mentioned 
is that you have to keep track of Sentence 6 remands when 
there's new and material evidence that somehow didn't get into 
the system before. If there's a lot of those Sentence 6 
remands, then the system isn't working as well as it should.
    Our third concern is will Region I predict how well DSI 
will work elsewhere?
    The appendices attached to our written testimony suggest 
that Region I, as you noted, is already approving an above 
average number of claims with very few court challenges. The 
system is working pretty well there.
    We conclude that the pilot project may work well in Region 
I, but poorly elsewhere.
    As we noted in our materials, it's likely to take about 3 
years before you get accurate numbers from the district court, 
because it takes a long time for all this to play out, so we're 
not sure how quickly this system can be rolled out.
    Our final concern is whether the DRB will undermine the 
independence of the ALJs.
    We fear that the DRB and its computer-based predictive 
model will intrude on the traditional independence of ALJs.
    The ALJs worry that the benefits of a fair hearing will be 
overturned by a review board that did not see the claimant or 
attend the hearing.
    Private practitioners worry that the computer program, not 
the individual ALJ, will become the de facto decisionmaker.
    The commissioner's computer-based predictive model probably 
will not be as blunt as the discredited Bellmon review, but we 
fear it will unduly shape ALJ decisions.
    Thank you for the opportunity to appear before you today. 
I'd be happy to answer any questions you have.
    [The prepared statement of Mr. Flack follows:]
Statement of Gary Flack, Chairman, Social Security Section, Federal Bar 
 Association, Atlanta, Georgia Chairman McCrery, Representative Levin 
                    and Members of the Subcommittee:
    The Social Security Section of the Federal Bar Association (FBA) 
welcomes this opportunity to share our thoughts about the new final 
regulations changing the disability claims process, the ``Disability 
Service Improvement'' (DSI) initiative. This testimony is submitted on 
behalf of the Social Security Section of the FBA. I am the chair of the 
Social Security Section of the Federal Bar Association, and this 
testimony does not necessarily represent the views of the national 
organization.
    As you know, the FBA is the foremost national association of 
private and government lawyers engaged in practice before the federal 
courts and federal agencies. Sixteen thousand members of the legal 
profession belong to the FBA. There are also within the FBA over a 
dozen sections organized by substantive areas of practice, including 
the Social Security Section. The FBA's Social Security Section is 
unlike other organizations of lawyers associated with a particular 
constituency of Social Security disability lawyers. Our members include 
attorneys involved in all aspects of Social Security disability 
adjudication, including attorney representatives of claimants, 
administrative law judges, Appeals Council judges, staff attorneys in 
the SSA Office of Hearings and Appeals and Office of General Counsel, 
U.S. Attorneys and U.S. Magistrate Judges, District Court Judges and 
Circuit Court Judges.
    Social Security Administration Commissioner Jo Anne B. Barnhart 
issued a final rule establishing a new disability determination process 
on March 31, 2006. 71 Fed. Reg. 16424 (Mar. 31, 2006). This rule is the 
culmination of much analysis, thought, and hard work. The Commissioner 
is to be congratulated for recognizing that the administrative process 
she inherited failed to efficiently and accurately identify many 
disabled claimants. She conferred with representatives of many groups, 
including our Section, that are interested and involved in the agency's 
disability determination process. The final rule reflects the input 
from almost 900 individuals and groups; their comments were made in 
response to the Commissioner's proposed rule.
    This Subcommittee is also to be congratulated for its oversight 
role in conducting hearings on the problem and now the solution. Today, 
we focus our testimony on four aspects of the final rule:

      Will the reviewing official delay proceedings or become 
an institutional hurdle claimants must overcome?
      How should the success of DSI be measured?
      Will Region I predict how well DSI will function 
elsewhere?
      Will the Decision Review Board undermine the independence 
of ALJs?
WILL THE REVIEWING OFFICIAL DELAY PROCEEDING OR BECOME AN INSTITUTIONAL 
        HURDLE CLAIMANTS MUST OVERCOME?
    The Reviewing Official (RO) replaces the Reconsideration level of 
review. It appears to be a more informal, but federally-controlled 
decision maker. The FBA is concerned that the RO will be quickly 
overburdened and delay the process of developing accurate decisions. 
The RO is likely to need updated information, outside consultative 
examinations, and (if the RO contemplates paying benefits) the opinion 
of the new medical and vocational expert system. Unless there are as 
many ROs as there are Administrative Law Judges (ALJs), the caseload of 
each RO will soon equal or exceed the average ALJ caseload. Too large a 
caseload will not only delay decisionmaking, but also interfere with 
accurate decisionmaking. The RO may become a bottleneck, particularly 
since the RO must write his own detailed decision. Accordingly, we 
believe there should be more ROs than ALJs to move cases expeditiously.
    There also may be undue delays associated with consultative 
examinations and permitting claimants to share these consults with 
their treating physicians. This process may work well with represented 
claimants. However, it is unclear how pro se claimants who are 
illiterate or computer-illiterate will handle electronic files or view 
the new consults. DSI does not specifically address these claimants in 
its new rules.
    In addition, there may be a tendency for the RO decision to become 
an institutional standard in disability determinations. Some ALJs may 
utilize it to deny benefits. Other ALJs may regard it as a hurdle to 
overcome. If an ALJ reverses the RO's decision, the Decision Review 
Board (DRB) may question that decision based on the RO decision. The 
DSI must provide procedural guarantees to assure the independence of 
ALJs decisionmaking. It is the fair hearing that is the centerpiece of 
the disability adjudication process, not the RO.
    Finally, we understand that initially all the ROs will be located 
in Falls Church, Virginia. This might make sense with the participation 
of one small region as a pilot project. However, as the DSI expands and 
the RO workforce grows to a size of at least 1100 ROs, we believe RO 
dispersal throughout the country should be considered. They could still 
review claims nationwide. There is likely to be a better pool of 
qualified applicants available if the Commissioner were to place them 
at regional locations. There are also less expensive places to live 
than Falls Church. In short, whatever the advantages of initially 
housing ROs in one location, we believe that decentralization of the RO 
workforce around the country should be pursued after the completion of 
the pilot project phase.
HOW SHOULD THE SUCCESS OF DSI BE MEASURED?
    There are two primary measures of the success of DSI, involving the 
payment of claims by the Reviewing Official and the dynamics of 
judicial review.
Payment of Claims by the Reviewing Official
    The purpose of the RO is to make the correct decision sooner. 
Accordingly, more claimants cases should be approved at the initial and 
RO levels than are currently approved through the reconsideration 
level. Fewer cases should appear for adjudication at the ALJ level. DSI 
can be regarded as a success if relatively more claims are paid 
initially at the RO level.
Dynamics of Judicial Review
    After the DRB approves an ALJ decision, there are several other 
measures of the success of DSI.

      Do voluntary remands of federal complaints decrease after 
the abolition of the Appeals Council?
      Are there fewer technical errors? (For example, lost 
files, blank CDs etc.)
      Are there fewer obvious substantive mistakes than before? 
(For example, failures to follow the treating physician rule, improper 
uses of vocational experts, etc.)
      Is there a reduced percentage of substantive court 
decisions in favor of plaintiffs?
      Are there fewer ``sentence 6'' remands because ``new and 
material evidence'' is appropriately added to the record via the 
discretion of the ALJ?

    Even with a faster administrative processing time, it is likely to 
take at least a year for cases to work their way to a final 
administrative denial. It will probably take another year for the first 
cases to proceed through federal District Court review. Thus, it is 
likely to take an additional two years to get one full year's worth of 
substantive decisions from the district courts of Region I. If the DSI 
process starts in August 2006, it will be approximately August 2009 
before we have a year's worth of substantive judicial decisions. We 
wonder whether the Commissioner will delay extending the new 
regulations to other regions for three years, i.e. until there is one 
year's worth of substantive decisions from Region I.
WILL REGION I PREDICT HOW WELL DSI WILL WORK ELSEWHERE
    Region I of the Social Security Administration is comprised of the 
States of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island 
and Connecticut. We are concerned that Region I may not be typical of 
how Social Security disability claims are processed in the rest of the 
country. We believe, based on anecdotal and empirical evidence, that: 
more Region I claims are favorably decided at the initial and 
reconsideration levels; the ALJs are efficient and more likely to make 
accurate decisions; relatively few cases are appealed to federal court. 
Thus, we conclude that the pilot project may work well in Region I, but 
poorly elsewhere.
    Region I is one of the smaller regions in the country in the number 
of ALJs (approximately 50) and in the number of new cases ALJs receive. 
In a recent quarter, Region I ALJs disposed of almost 1300 more cases 
than it received. Only Region III, a much larger Region, disposed of a 
greater number of cases than it received. Region III handles many more 
cases, absolutely, and presumably with more ALJs. Most of the other 
Regions disposed of fewer cases than each received, i.e., the ALJ 
caseload of most Regions increased.
    Region I handles approximately 3% of the total number of new 
applications filed throughout the country. While we applaud the concept 
of DSI, very few claimants will obtain any benefit from the new rules 
so long as they are applied only in Region I, despite the increasing 
numbers of claimants in the system with claims awaiting evaluation.
    We have attached the state-by-state allowance rate for initial and 
reconsidered claims (See Appendix 1). New Hampshire has initial 
allowance rates in excess of 60%. Massachusetts and Rhode Island 
initially allows about 46% of initial claims and 54% of reconsidered 
claims; Vermont allows about 45% of initial claims. Maine and 
Connecticut are somewhat lower at 38% and 19% respectively for initial 
and reconsidered claims. However, the favorable initial and 
reconsidered decision rates for Connecticut and Maine (the lowest of 
the Region I States) appear to be higher than national average.
    Region I is a small, efficient region that approves a higher than 
average percentage of claims both initially and at the reconsideration 
level. ALJs in Maine ruled in favor of claimants in 77% of their 
decisions in the year ending September 26, 2003. Rhode Island had the 
lowest ALJ allowance rate in Region I. Its ALJs ruled in favor of 60% 
of the claimants. Region I has one of the highest ALJ allowance rates 
in the nation. (See Appendix 2)
    Perhaps for these reasons, relatively few cases in Region I 
historically have gone to federal court: only 322 in the entire Region 
I. (See Appendix 3, statistics from the Administrative Office of the 
U.S. Courts regarding Social Security law from the Region I States in 
the most recent 12-month period, ending March 2005). The District Court 
outcomes in Region I may not be statistically significant because of 
the small caseload. It is not self-evident that this is the most 
typical region to try out the DSI reforms.
    We have no information about whether Region I adjudicates an 
``average'' range of cases including sickle cell, mental impairments, 
mental retardation, illiteracy? SSA will need to track this.
WILL THE DECISION REVIEW BOARD UNDERMINE THE INDEPENDENCE OF ALJ'S
    The Commissioner intends the DSI to provide quality assurance 
throughout the Social Security disability adjudication process. The DSI 
is to be neutral in that the same number of applicants will be entitled 
to benefits at the end of the new DSI reforms as under the current 
system. The means to assure that the number of new claims granted 
remains the same must be the quality controls and the Disability Review 
Board (DRB).
    The precise mechanism for quality assurance of the DRB is the 
``computer-based predictive model.'' We understand the Commissioner 
will soon sign a contract to hire outside help to devise this model. 
After initially evaluating 100% of all ALJ decisions, the computer-
based predictive model will tell the DRB which cases to more closely 
evaluate. Even at the beginning, we understand that not all cases will 
be evaluated equally closely.
    We fear that the DRB will intrude on the traditional independence 
of ALJs and undermine the benefits of a fair hearing. ALJs worry that 
the benefits of a fair hearing will be overturned by a review board 
that did not see the claimant or attend the hearing. Private 
practitioners worry that the computer program, not the individual ALJ, 
will become the de facto decision maker. The computer-based predictive 
model probably will not be as blunt as the discredited Bellmon 
review\1\, but will shape ALJ decisions.
---------------------------------------------------------------------------
    \1\ ``[T]he agency [SSA] instituted the `Bellmon review,' a 
surveillance program of judges thought to be granting too many 
disability claims. The effect of the Bellmon review on judicial 
independence was chilling.'' Christine M. Moore, SSA Disability 
Adjudication in Crisis! 33 Judges' J. (No. 3) 2, 9 (1994). It should be 
emphasized that this Social Security Administration process of ``own-
motion review'' of ALJ decisions resulted from stated Congressional 
concern [expressed in the 1980 Social Security Disability Amendments, 
Pub. L. No. 96-265, known as the ``Bellmon Amendment'' after Senator 
Henry Bellmon (D-Okla.). See Association of Admin. Law Judges v. 
Heckler, 594 F. Supp. 1132 (D.D.C. 1984) for an explanation of the 
legislation] at the high rate of ALJ reversal of state-level denials of 
claims and the variance of rates among ALJs. http://
review.law.mercer.edu/old/46201ft.htm
---------------------------------------------------------------------------
    The computer-based predictive model must be a screening tool. It 
must be merit-based, not budget-based. It cannot be utilized to deny 
claims so that DSI is budget neutral. DSI may result in some increase 
in costs. (If claimants are paid earlier, some of the denied would die 
or not appeal their denial even though actually disabled. This 
especially applies to those with mental impairments.)
    The computer-based predictive model must also be transparent. ALJs 
and attorneys of claimants alike are entitled to know which cases will 
be more closely reviewed. Presumably the case of an elderly person with 
lung cancer, whom an ALJ finds disabled, need not be reviewed as 
thoroughly as a younger individual with a bad back. However, the 
independent decision of the ALJ as to each must stand. Quality 
assurance is an admirable goal, but not at the cost of ALJ 
independence.
    Some of our members are concerned that the predictions of a 
computer model will replace the judicious weighing of evidence. Others 
worry that this computer review will be utilized to discipline ALJs 
whose decisions are too different from the norm. The computer-based 
predictive model must not be utilized to assure that the same number of 
people will be entitled to benefits at the end of the new DSI reforms 
as under the current system. This would be a gross misuse of a quality 
assurance program.
    Finally, at the Subcommittee's hearing on the SSA's proposed 
regulations last September, the Honorable Judge Howard D. McKibben, 
chairman of the Judicial Conference Committee on Federal-State 
Jurisdiction, testified about the potential increase in the number of 
complaints filed in federal court due to the abolishment of the Appeals 
Council. It is not assured that the DRB will eliminate unfortunate ALJ 
errors. The Commissioner has not really addressed Judge McKibben's 
comments.
CONCLUSION
    Thank you once again for the opportunity to appear before you 
today. The Social Security Section of the Federal Bar Association looks 
forward to continuing to work with you and the Social Security 
Administration in improving the disability hearing process. I would be 
happy to answer any questions you may have.

                                 

    Chairman MCCRERY. Thank you all for your testimony.
    You've all brought to light some concerns that you have 
about the proposal by the Commissioner.
    Mr. Robertson, I think the process of analyzing and 
examining how this rollout is working, first in the Boston 
Region and then later in other regions, takes on even more 
importance than it otherwise might because of the dramatic 
changes in the process that are proposed, and in the concerns 
that have been raised by folks who are intimately involved in 
the current process.
    With that in mind, what is your assessment, from the GAO's 
standpoint, of the Commissioner's dynamic management model that 
she mentioned when I asked her about the protocol for reviewing 
and analyzing the progress in Region I, in the Boston Region?
    She said, we're going to use dynamic management, which 
basically I understood her to say is kind of analyzing as we 
go, and tweaking as we go.
    What is your assessment of the efficacy of that model?
    Mr. ROBERTSON. A couple quick comments on that.
    Number one, we don't really have a lot of the details of 
just how the SSA is going to go about doing its evaluation.
    You know, they have a notion of, okay, we need to do this, 
this, and this, but they're pretty vague on the measures they 
use and the timeline, that type of thing.
    So, that's one point.
    The other point would be just to say, ``Well, here's what I 
think should be happening in terms of an evaluation,'' and I 
think--and perhaps I'm oversimplifying things, but sometimes 
that's a good thing--I think they've got to do at least three 
things.
    They've got to look at the individual components of the new 
system and determine whether or not they're working the way 
they were supposed to work.
    In other words, are the Quick Disability Determination 
(QDD) actually producing decisions quickly at the front end? If 
you're looking at the back end, again, you'd be looking at, 
well, what's happening and how effectively is the DRB doing its 
thing?
    So, that would be one kind of a micro look at the 
individual components of the new system. That's got to be done, 
and that's got to be done continuously so they can tweak the 
system as the rollout occurs.
    The more macro level evaluation, and this is so very, very 
important, is to remember there was a purpose, there were broad 
objectives for this system right from the get-go, and they were 
to improve the timeliness of the decisionmaking process and 
improve the consistency and make sure the decisions were fair.
    Somehow, at some point in time, SSA needs to flesh out just 
exactly how they're going to do that, and I say that now 
because if they don't do that, a year or two from now you hold 
hearings and you ask me or you ask the commissioner, ``Well, 
how are things going with the new rollout?''
    You know, we wouldn't, if we didn't have a good evaluation 
system in place, we wouldn't be able to say, or we'd be saying, 
``Well, some things look good but we really didn't have the 
right measures, or we didn't measure the right things,'' that 
type of thing.
    So, the second part of it is making sure that we're 
accomplishing the overall objectives or evaluating the overall 
objectives of the DSI.
    Last but certainly not least is, we need to have an idea of 
how much all this costs.
    So, basically, it boils down really to two things: is the 
DSI working as intended, both on the macro and micro level; and 
how much is it costing us?
    Chairman MCCRERY. It seems to me that the first two things 
should be fairly easy to measure, particularly in comparison to 
where we are now and the system that exists now.
    The third component of your micro list, though, are the 
decisions fair, I don't know who is going to decide that. I 
don't know that you can----
    Mr. ROBERTSON. I don't know how that's going to transpire.
    Chairman MCCRERY. --measure that, but the first two I think 
are imminently measurable and can be done.
    The question of cost, almost everybody here has raised the 
issue of are there sufficient resources available to allow this 
reform to work. Have you made any assessment of that, given the 
resources that are available?
    Mr. ROBERTSON. At this point in our review,we haven't 
looked at the costs. You know, we have the figures that SSA had 
in the final rule, but that's the extent of it.
    Chairman MCCRERY. Okay. Before I turn it over to Mr. Levin, 
I thought each of you were very clear in your testimony. I 
don't have a lot of questions. A lot of these questions that 
the staff prepared were answered, I thought, pretty well.
    I want us to keep in mind, though, that the reason we're 
all here and the reason the Commissioner has been doing this is 
because the current system really hasn't worked very well, and 
the current system is not very fair, just in terms of the 
process to claimants, because they have to wait so dadgum long 
to get a decision, any decision.
    That's what we're all trying to get at, and the 
Commissioner has done her best at coming up with a new process 
that she hopes will give claimants a better shake.
    We don't know if it's going to work, and that's why we want 
to hear from you all, so that we can get as much input going in 
to anticipate problems.
    Then we also want to get in place a rigorous assessment 
protocol so we can tell as we're going along whether things are 
working.
    Then last, we want to try to make sure--this is probably 
the most difficult part--that sufficient resources are made 
available to allow the process that she's come up with to work 
as she's designed it, and that, unfortunately, to some extent, 
we have to leave up to the appropriators.
    Mr. Levin and I both have been very adamant in our requests 
to the appropriators for more funding, and unfortunately, they 
didn't give us what we asked for, but we'll continue to beat on 
them and see if we can help get some more resources.
    I appreciate very much the input that you all have provided 
not only today but prior to today as the Commissioner is 
developing a process and making changes to it.
    So, thank you very much.
    Mr. Levin.
    Mr. LEVIN. Maybe I'll pick up on that statement, because 
the staff, with its usual efficiency, has outlined all kinds of 
questions, and maybe what we should do is to present them to 
you in writing so that each of you can give us your inputs, how 
the system works at every step.
    I guess I just want to say that in the end, the test is not 
only the quality, but how we address the backlog.
    In Mr. Hill's testimony, and the commissioner went as far 
as I think she could under the constraints, 727,000 cases 
pending? Isn't one of the tests of any system going to be its 
reduction? I would think so.
    The average processing time of 480 days--I'm not quite sure 
what that all means, from beginning to end. That's a lot of 
cases that have a long time to be processed now.
    I think that's outrageous.
    The Chairman has very much joined in, and I think has 
really led the way to try to bring attention to this.
    So, we'll ask you a lot of detailed questions, and if 
you'll answer them, but I do think we need to signal that the 
test of the new system will be whether it addresses this and if 
not, why not; and I do think that part of the answer is going 
to be resources.
    I don't see how any system, no matter how well designed, 
works without resources.
    Maybe we use this analogy too often, because I come from 
Michigan, but, it doesn't really matter how well a car runs if 
there's no gasoline, whatever the resource, whatever the source 
of the gasoline--I should use ``of the fuel,'' I shouldn't say 
gasoline, fuel.
    So, I think we should put ourselves on notice that if there 
isn't a substantial reduction of this, and so I'll just ask any 
of you pointblank, are any of you confident that this new 
system will mean in a couple of years a dramatic reduction in 
the number of pending cases?
    I guess since it's starting in one region, the answer is 
there can't be right in a short period of time, right?
    How about 3 years from now? What's the plan? How quickly is 
this supposed to be spread to other places? Do we know that?
    Mr. SKWIERCZYNSKI. Well, I don't think the commissioner has 
laid out exactly the rollout strategy.
    We in the American Federal government Employees (AFGE) 
union think that she put the cart before the horse. There are 
different options that one could use to improve the disability 
process. She's decided on an option, issued regulations, and 
now it's done, and they haven't even tested it.
    That's a dangerous step to take, to without any testing or 
piloting, to issue regulations and say, ``Here's the process.''
    Now, during the redesign experiment, people, the consumers 
of this disability program, disabled people said they want a 
caseworker approach. Why isn't this being piloted? Why didn't 
the commissioner look at a caseworker approach, where the 
person you deal with makes the decision? Makes it more user 
friendly, not adds but removes some of the litigation.
    When you have a litigious process, it's going to take time, 
it's going to take a lot more time writing a lengthy decision 
that another appellate--at another appellate level has to be 
rebutted, and then both of those decisions go to another 
appellate level and you create a conflict. That's going to take 
a lot of time, right through that process.
    So, I don't see this at all cutting down backlogs.
    One thing that was done, you certainly, if you strip the 
last appellate level, you're going to shorten the end point. 
You know, you're going to get to court quicker, because you've 
sliced an appeal.
    As I testified, that particular appeal, the Appeals Council 
had a 30 percent remand and reversal rate, so there's a lot of 
people who their cases will probably be decided in error 
because they couldn't avail themselves of that appeal.
    I don't know that that's where we want to go, to shorten 
the process and ensure that a certain segment of the claims are 
going to be decided erroneously. I don't see where that gets to 
where we want to go.
    Mr. HILL. The implementation schedule is lengthy. I think 
today the commissioner mentioned something about 5 years.
    Mr. LEVIN. Right.
    Mr. HILL. I think that the schedule, as I----
    Mr. LEVIN. With adequate resources, she said.
    Mr. HILL. As I understand it, there will be--Region I 
starts, it will be a year. If everything goes well, then it 
will be rolled out in Region 8, then Region 10, then Region 7. 
Those are our four smallest regions. I don't know the timeframe 
for the rest.
    I think when you have rolled out those four regions, you 
will probably have less than 20 percent of the hearing office 
workload in DSI hearing offices. The other 80 percent will 
still be under the old system.
    So, I suspect there's quite a lengthy period of time before 
we are going to--we in Region 5--I'm from Ohio--I don't think 
we'll see it for 4 years. We are the second biggest region. 
We're probably going to be near the last.
    Ms. FORD. I'd like to comment. From the perspective of 
claimants, the Commissioner has gone after some very critical 
issues here in terms of developing better evidence earlier in 
the process, and moving some of the cases more quickly through 
the system.
    I think the new FedRO level is designed to help get at the 
evidence issue. The FedRO will have subpoena power. Now, 
claimants and their representatives don't have any control over 
whether they can get that evidence and how quickly they can get 
it.
    So, I think she is going after some of the key pieces, and 
in good faith, is looking at trying to improve the system up 
front.
    I think it's absolutely critical that--and I hope my 
testimony made this clear--it's absolutely critical that all 
the players be involved from this point on in terms of 
observing what is happening, provide feedback to the SSA and to 
the Subcommittee, and maintain that continual loop of 
information so that where there are problems they can be 
addressed quickly.
    I wouldn't want to see a problem go down the road very far 
and have a lot of people affected by it if there were a way 
that we could catch it early.
    So, I see it as a dynamic process that we all participate 
in, and that we have a responsibility to participate in.
    Thank you.
    Mr. LEVIN. Yes, sir? Is it all right if we keep going?
    Chairman MCCRERY. Sure.
    Mr. LEVIN. Yes, sir.
    Mr. BERNOSKI. Yes. I was just going to add that the--I 
think the backlogs will be here, these large number of cases, 
for some time in the future, but also, these backlogs to a 
large extent are created by other factors that are outside the 
control of the SSA, such as the economic condition.
    We know when the economic conditions have a downturn, it 
seems that we have more filings, so we have more cases that we 
have to handle--the demographics of the population.
    So, there are these other factors that affect the number of 
cases that come into the system, and it's not that the people 
aren't working hard like the commissioner indicated.
    The ALJ and the assistant and the people, and not only the 
judges, but the other people in the Office of Hearings and 
Appeals, last year, we disposed of about 600,000 cases.
    That's a lot of cases when you consider you're taking these 
one at a time. That's kind of the albatross in this system. We 
have 725,000 cases. We hear them one at a time. We don't 
package them. That's a big job.
    There's other factors that impinge upon it that no one 
really has any control over.
    Mr. LEVIN. Well, when you say no control, I think it would 
mean if there are more cases, you need more resources to handle 
the cases, so it isn't quite that we have no control over it. 
It means we're not controlling.
    Mr. BERNOSKI. Precisely. We don't have any control over the 
cases that are coming into the system.
    Mr. LEVIN. So, whatever the differences might be about this 
experiment, it would seem essential that there be adequate 
resources for both an introduction of a new system and for the 
utility, the implementation of the old system. and as you say, 
Ms. Ford, adequate participation by everybody in implementing a 
new system.
    So, I think we better leave here today, I think all of you 
believe that there has to be adequate resources to make a 
system work.
    This is not an acceptable backlog, is it? Should we ask you 
to study this?
    Mr. ROBERTSON. We'd be happy to.
    Mr. LEVIN. Okay. Well, we'll chat about this afterward.
    Thank you very, very much, and thank you for this time. I 
think it's been a very useful hearing, and we leave, I think, 
with the sobering sense that we've got a responsibility to make 
sure that this agency has the resources that it needs.
    Thank you, Mr. Chairman.
    Chairman MCCRERY. Thank you, Mr. Levin.
    Thank all of you very much once again for appearing today 
and sharing with us your testimony.
    I'm sure we will be calling on some of you in the future as 
we go through this process of getting the new system in place, 
and we'll urge you to share with us at that time your 
impression of how it's going. Thank you very much.
    This hearing is adjourned.
    [Whereupon, at 1:00 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow]
  Statement of Linda Fullerton, Social Security Disability Coalition, 
                          Rochester, New York
    Members of the Committee:
    My name is Linda Fullerton, I am permanently disabled and receive 
Social Security Disability Insurance/SSDI and Medicare. I am also 
President/Co-Founder of the Social Security Disability Coalition, which 
is made up of thousands of Social Security Disability claimants and 
recipients from all over the nation. Our group and experiences, are a 
very accurate reflection and microcosm of what is happening to millions 
of Social Security Disability applicants all over this nation. I must 
take this opportunity to tell you how very proud I am of all our 
members, many like myself, whose own lives have been devastated by a 
system that was set up to help them. In spite of that, they are using 
what very little time and energy they can muster due to their own 
disabilities, to try and help other disabled Americans survive the 
nightmare of applying for Social Security Disability benefits. There is 
no better example of the American spirit than these extraordinary 
people! If you visit the Social Security Disability Coalition website, 
or the Social Security Disability Reform petition website:
Social Security Disability Coalition-offering FREE knowledge and 
        support with a focus on SSD reform:
http://group.msn.com/SocialSecurityDisabilityColition
Sign the Social Security Disability Reform Petition-read the horror 
        stories from all over the nation:
http://www.petitiononline.com/SSDC/petition.html
    You will read over three years worth of documented horror stories 
and see thousands of signatures of disabled Americans whose lives have 
been harmed by the Social Security Disability program. You cannot leave 
without seeing the excruciating pain and suffering that these people 
have been put through just because they happened to become disabled, 
and went to their government to file a claim for disability insurance 
that they worked so very hard to pay for. I continually throughout the 
Commissioner's Disability New Approach Program sent her hundreds of 
their stories/comments from our website and petition and yet nowhere in 
her DSI plan do I see any real help/relief for them.
    My organization fills a void that is greatly lacking in the SSA 
claims process. While we never represent claimants in their individual 
cases, and in most cases due the nature of our group, we don't even 
know their real names for privacy concerns, we are still able to 
provide claimants with much needed support and resources to guide them 
through the nebulous maze that is put in front of them when applying 
for SSDI/SSI benefits. In spite of the fact that the current system is 
not conducive to case worker, client interaction other than the initial 
claims intake, we continue to encourage claimants to communicate as 
much as possible with the SSA in order to speed up the claims process, 
making it easier on both the SSA caseworkers and the claimants 
themselves. As a result we are seeing claimants getting their cases 
approved on their own without the need for paid attorneys, and when 
additional assistance is needed we connect them with FREE resources to 
represent them should their cases advance to the hearing phase. We also 
provide them with information on how to access available assistance to 
help them cope with every aspect of their lives that may be affected by 
the enormous wait time that it currently takes to process an SSDI/SSI 
claim, including where to get Medicaid and other State/Federal 
programs, also free/low cost healthcare, medicine, food, housing, 
financial assistance and too many other things to mention here. We 
educate them in the policies and regulations which govern the SSDI/SSI 
process and connect them to the answers for the many questions they 
have about how to access their disability benefits in a timely manner, 
relying heavily on the SSA website to provide this help. If we as 
disabled Americans, who are not able to work because we are so sick 
ourselves, can come together, using absolutely no money and with very 
little time or effort can accomplish these things, how is it that the 
SSA which is funded by our taxpayer dollars fails so miserably at this 
task?
    The Social Security Disability New Approach Program at its 
inception, was a welcome change from what we have seen in decades past. 
Everyone that I have dealt with on the Commissioner's staff was very 
courteous and responsive to our concerns at the time and I am very 
grateful for that. We kept in constant communication with them as much 
as we were allowed to participate. I have also been privileged to 
interact with other employees of the SSA who have been of great help to 
my organization as well, in particular members of AFGE/National Council 
Of SSA Field Operations Locals American Federation Of Government 
Employees. In spite of my own personal nightmare SSDI claims experience 
which I will be describing, and the horror stories I hear on a daily 
basis, I am well aware that there are very hard working, committed, 
caring people who work for this program. One of our goals is to 
increase the lines of communication between the SSA and the disabled 
community.
    That being said, DSI does not go far enough, fast enough for those 
who desperately need to access disability benefits and whose very lives 
depend on them. It greatly disappoints me that the Commissioner has not 
addressed most of the problems that my organization, and hundreds of 
others had alerted her office about as part of the SS Disability New 
Approach Program, in fact our cries for help have been virtually 
ignored when making her recent regulation changes. I find it to be a 
shame and disservice to the American taxpayers. It seems that the 
regulations that have now been put in place will not do very much if 
anything to relieve this horrendous situation, and for the most part 
will be very detrimental to the disability claims process, rather than 
improve it. As mentioned, I have been in direct communications with 
AFGE/National Council Of SSA Field Operations Locals American 
Federation Of Government Employees, AFL-CIO who represents thousands of 
Social Security Workers for the past few years now and we have been 
trying together to clean up the problems that would make the disability 
claims process better for both sides--the disability claimants and the 
SSA workers themselves. It is amazing, and very refreshing to learn 
about how much we agree, on the changes needed to make the SSDI/SSI 
process easier. They have been extremely helpful to my group which has 
allowed me to better help those struggling to get these crucial 
benefits. If we can do these things together I see no reason why the 
SSA Commissioner (if she was doing her job properly) would not want us 
actively involved every step of the way in these changes that she is 
making. While I know the SSA is doing their very best with the 
resources they have, they cannot do it alone, as many things needed to 
truly reform this system, must be legislated by Congress. So I call on 
you today to start taking this crisis seriously as many lives literally 
depend on your actions.
    As a person who has gone through the Social Security Disability 
claims process myself, I know first hand about the pain, financial, 
physical and emotional devastation that the current problematic SSDI 
process can cause, and I will never be able to recover from it, since I 
can no longer work. I find it disturbing that at this latest hearing 
and at past hearings, that glaringly absent from your panel was 
representation from other disability organizations such as mine. You 
continually choose the same panelists from the disability community 
when there is any representation at all. I ask again as I have in the 
past, that in future Congressional hearings on these matters, that I be 
allowed to actively participate instead of being forced to always 
submit testimony in writing, after the main hearing takes place. I am 
more than willing to testify in person before Congress and I should be 
permitted to do so. I want a major role in the Social Security 
Disability reformation process, since any changes that occur have a 
direct major impact on my life and our members lives and well being. 
Who better to give feedback at these hearings than those who are 
directly affected by its flaws! A more concerted effort needs to be 
utilized when scheduling future hearings, factoring in enough time to 
allow panelists that better represent a wider cross section of the 
American population, to testify in person. It seems to me that if this 
is not done, that you are not getting a total reflection of the 
population affected, and are making decisions on inaccurate information 
which can be very detrimental to those whom you have been elected to 
serve.
    From GAO testimony to your committee on 6/15/06: ``Finally, SSA's 
communication efforts with stakeholders align with change management 
principles in several respects. For example, SSA has employed a 
proactive, collaborative approach to engaging the stakeholder community 
both during DSI's design and in its planning for implementation in 
order to explain why change is necessary, workable, and beneficial. 
Even before the notice of proposed rule making on DSI was published, 
SSA began to meet with stakeholder groups to develop the proposal that 
would eventually shape the new structure. Then, once the proposed rule 
was issued, SSA officials told us they formed a team to read and 
analyze the hundreds of comment letters that stakeholders submitted. In 
addition, they conducted a number of meetings with external 
stakeholders to help the agency identify common areas of concern and 
develop an approach to resolving the issues stakeholders raised before 
rollout began. According to SSA officials responsible for these 
meetings, the Commissioner attended more than 100 meetings to hear 
stakeholder concerns directly. Further, SSA recently scheduled a 
meeting for early July with claimant representatives to discuss that 
group's particular concerns about how the new process will affect their 
work and their disability clients. SSA officials told us that senior-
level staff will lead the meeting and that about 100 claimant 
representatives from the Boston region will attend.''
    ``While SSA's steps and plans look promising, we want to stress the 
importance of diligence and follow-through in two key areas. The first 
is quality assurance, which entails both effective monitoring and 
evaluation. A solid monitoring plan is key to helping SSA quickly 
identify and correct problems that surface in the Boston rollout, 
because any failure to correct problems could put the entire process at 
risk. An evaluation plan is critical for ensuring that processes are 
working as intended and that SSA is achieving its overarching goals of 
making accurate, consistent decisions as early in the process as 
possible. The second key area is communication. It is important for 
SSA's top leadership to support open lines of communication throughout 
implementation if the agency is to facilitate a successful transition. 
Failure to, for example, provide useful feedback to staff--many of whom 
will be new to the agency or at least to the new tools--could 
significantly jeopardize opportunities for improvement. Just as 
important, SSA's top management needs to ensure that the concerns and 
questions of stakeholders affected by the new process are heard, and 
that concerned parties are kept apprised of how SSA intends to 
respond.''
    It does not seem to me that SSA is off to a very good start in that 
area. I continually asked to be part of such meetings if and when they 
were ever held, but was never informed of any them, thus was not 
allowed to participate. Since my organization primarily consists of 
SSDI/SSI claimants, I have to question what sorts of ``stakeholders'' 
the Commissioner met with. Seems like her main concern is to meet with 
``stakeholders'' who stand to make the most money from a claimant's 
problems with the SSDI/SSI program rather than the claimant's 
themselves who are most affected by those problems. This is further 
evidenced by the list of ``stakeholders'' referenced in the 
aforementioned GAO testimony. Again proof of the Federal Government 
catering to special interest groups. While many of these ``claimant 
representatives'' may have good intentions, unless they personally 
experience what it is actually like to live through the process of 
applying for these benefits, and have their lives permanently altered 
as a result of it, they can never accurately convey to anyone what the 
problems with dealing with a severely broken system is like for us. If 
this system is ever to be reformed properly, it is crucial that before 
any changes to this program are implemented, that the majority of 
input/involvement in any phase of change be with a team of actual SSDI/
SSI claimants and the SSA workers themselves who must implement any 
proposed changes.
    The Commissioner in the past has stated ``In drafting this final 
rule, we understood that, although there was broad agreement on the 
need for change, numerous commenters perceived our proposed rule as 
favoring administrative efficiency over fairness.''
    It is very detrimental to the American people, if the Commissioner 
is using their hard earned money to harm them for the sake of 
efficiency rather than make it a priority to take every step necessary 
to see that their cases are processed fairly as well as quickly. We 
fear rubberstamping of denials for the sake of efficiency, which is in 
fact ignoring the will of the people.
    It is my understanding that Congressman Levin suggested during the 
hearing that the General Accounting Office (GAO) should conduct a study 
and cost analysis of DSI. After my own personal experience with filing 
a claim for SSDI benefits dealing with enormous processing time and the 
totally unnecessary problems I encountered, I also agree that their 
should be major oversight by an independent body of all phases of the 
disability claims process. I agree with the Congressman that the GAO 
would do well to be involved in investigating further how the 
Commissioner's proposals would not only affect the SSA, but more 
importantly how her proposals would affect the claimant's themselves, 
which after all our input, she continues to ignore.
    We ask that the GAO review processing times of all phases of the 
disability claims process with particular focus on the DDS offices and 
the ALJ's where the largest bottlenecks and inconsistencies in the 
program are found. In addition we want the GAO to consider recommending 
to Congress that they move to legislate that the Federal Government 
take over the role that the DDS offices now perform. We have seen a 
wide range of denial/approval rates and processing times for the same 
classifications of disabilities based entirely on the state in which a 
claimant lives, or which DDS worker (their training is very 
inconsistent by state) happens to handle their claim. This should not 
be allowed and in fact most people including elected officials are not 
aware that DDS workers are state, rather than Federal employees. It is 
widely known that the following Federal Standards are not being met by 
the DDS offices as the program is currently structured:
    404.1642 Processing time standards http://www.ssa.gov/OP_Home/
cfr20/404/404-1642.htm
    (a) General. Title II processing time refers to the average number 
of days, including Saturdays, Sundays, and holidays, it takes a State 
agency to process an initial disability claim from the day the case 
folder is received in the State agency until the day it is released to 
us by the State agency. Title XVI processing time refers to the average 
number of days, including Saturdays, Sundays, and holidays, from the 
day of receipt of the initial disability claim in the State agency 
until systems input of a presumptive disability decision or the day the 
case folder is released to us by the State agency, whichever is 
earlier.
    (b) Target levels. The processing time target levels are:
    (1) 37 days for title II initial claims.
    (2) 43 days for title XVI initial claims.
    (c) Threshold levels. The processing time threshold levels are:
    (1) 49.5 days for title II initial claims.
    (2) 57.9 days for title XVI initial claims. [46 FR 29204, May 29, 
1981, as amended at 56 FR 11020, Mar. 14, 1991]
    404.1643 Performance accuracy standard http://www.ssa.gov/OP_Home/
cfr20/404/404-1643.htm
    (a) General. Performance accuracy refers to the percentage of cases 
that do not have to be returned to State agencies for further 
development or correction of decisions based on evidence in the files 
and as such represents the reliability of State agency adjudication. 
The definition of performance accuracy includes the measurement of 
factors that have a potential for affecting a decision, as well as the 
correctness of the decision. For example, if a particular item of 
medical evidence should have been in the file but was not included, 
even though its inclusion does not change the result in the case, that 
is a performance error. Performance accuracy, therefore, is a higher 
standard than decisional accuracy. As a result, the percentage of 
correct decisions is significantly higher than what is reflected in the 
error rate established by SSA's quality assurance system.
    (b) Target level. The State agency initial performance accuracy 
target level for combined title II and title XVI cases is 97 percent 
with a corresponding decision accuracy rate of 99 percent.
    (c) Intermediate Goals. These goals will be established annually by 
SSA's regional commissioner after negotiation with the State and should 
be used as stepping stones to progress towards our targeted level of 
performance.
    (d) Threshold levels. The State agency initial performance accuracy 
threshold level for combined title II and title XVI cases is 90.6 
percent.
    The following GAO reports over the past several years prove that 
there are major problems with this program:
    GAO-04-656--More Effort Needed To Assess Consistency of Disability 
Decisions--July 2004
    GAO-03-117--Social Security Administration: Major Management 
Challenges and Program Risks--January 2003
    GAO-03-119--High Risk Series: An Update--January 2003
    GAO-02-826T--Social Security Disability: Significant Problems 
Persist and Difficult Decisions Lie Ahead
    GAO-02-322--Disappointing Results From SSA's Efforts to Improve the 
Disability Claims Process Warrant Immediate Attention
    GAO/HEHS-97-28--APPEALED DISABILITY CLAIMS: Despite SSA's Efforts 
It Will Not Reach Backlog Reduction Goal
    GAO/HRD-94-11--Increasing Number of Disability Claims and 
Deteriorating Service
    GAO/HEHS-94-34--Disability Rolls Keep Growing While Explanations 
Remain Elusive
    Productivity/Poor Customer Service
    The Commissioner has stated: ``SSA is a good and worthy investment. 
Our achievements over the last year are proof that resources provided 
to SSA are used efficiently and effectively to administer America's 
social security programs.''
    It is very true that SSA is a good and worthy investment when it 
works properly to provide vital disability benefits to claimants in a 
timely manner, but from the Federal regulations that are violated on a 
daily basis and the GAO reports to date, this is not the case at all. 
This statement shows that the Commissioner is totally out of touch with 
what is happening on her watch. I would be more that willing to 
speculate that any other corporation in this country who ran their 
business this poorly, would be out of business in it's first year! By 
client standards SSA customer service is extremely poor and in major 
need of improvement across the board. Here is just a small sampling of 
the constant complaints we receive about the Social Security Disability 
system and its employees:
Severe understaffing of SSD workers at all levels of the program
Extraordinary wait times between the different phases of the disability 
        claims process
Employees being rude/insensitive to claimants
Employees outright refusing to provide information to claimants or do 
        not have the knowledge to do so
Employees not returning calls
Employees greatly lacking in knowledge of and in some cases purposely 
        violating Social Security and Federal Regulations (including 
        Freedom of Information Act and SSD Pre-Hearing review process).
Claimants getting conflicting/erroneous information depending on whom 
        they happen to talk to at Social Security--causing confusion 
        for claimants and in some cases major problems including 
        improper payments
Complaints of lack of attention or totally ignoring-medical records 
        provided and claimants concerns by Field Officers, IME doctors 
        and ALJ's
Fraud on the part of DDS/OHA offices, ALJ's IME's-purposely 
        manipulating/ignoring information provided to deny claims
Complaints of having lost files and files being purposely thrown in the 
        trash
Complaints of having other claimants information improperly filed/mixed 
        in where it doesn't belong causing breach of security
Complaints of backlogs at payment processing center for initial 
        payments once claim is approved
Federal Quality Review process adding more wait time to claims 
        processing, increasing backlogs, no ability to follow up in 
        this phase
Poor/little coordination if information between the different 
        departments and phases of disability process
Note: These complaints refer to all phases of the SSD process including 
        local office, Disability Determinations, Office of Hearing and 
        Appeals, Payment Processing Center and the Social Security main 
        office in MD (800 number)
    All these concerns were submitted in writing by myself, to the 
Commissioner's staff as part of the New Approach program, and in 
previous testimonies to this committee, yet very few of them have even 
been addressed as part of the DSI. While there is no acceptable excuse 
for why these incidents are occurring, it is of no surprise to me that 
they are, based on the current conditions under which the SSA 
functions. I must take this time to remind you that we are not just 
nine digit SS numbers or case files, and I am sure as a result of very 
stressful working conditions, that it is very easy at times for SSA 
workers to forget that fact. We are living, breathing, and due to our 
illnesses--very fragile human beings, whose survival in most cases, 
totally depends on these benefits. Often we are treated like criminals 
on trial, or malingerers looking for a handout. Social Security 
Disability (SSDI) is a Federal disability INSURANCE plan--not welfare--
where money is taken out of your paycheck every week, yet you could 
face homelessness, bankruptcy and even death trying to get your 
benefits when you need them most. Unfortunately, you may find yourself 
in a situation where you suddenly need to access this fund, then find 
it's the most mismanaged, problematic Federal program there is. The 
stories of abusive and rude behavior towards SSD/SSI claimants continue 
to increase. There does not seem to be much oversight in this area, 
which is totally unacceptable. The GAO and the SSA needs to monitor 
this problem more closely. A greater effort must be made to treat all 
claimants with the utmost respect and dignity and when necessary SSA 
must remove offending employees immediately. I ask that Congress/GAO 
create an independent oversight team to make sure these problems are 
corrected as soon as possible.
    The SSA and GAO need to involve people such as myself who are 
directly affected by any changes to the SSDI/SSI program in any 
studies, surveys or committees to determine what changes would be in 
the best interest of the disability community. Nobody knows better 
about the flaws in the system and possible solutions to the problems, 
then those who are forced to go through it and deal with the 
consequences when it does not function properly. From my own personal 
experience, and those of so many others that I have come in contact 
with, the best approach is one that has the least amount of paperwork, 
the quickest processing times, the most communication with SS workers, 
and no need to have attorneys or the courts involved in the processing 
of claims. This program should be as simple as a claim for any other 
kind of insurance such as unemployment, auto etc. because insurance is 
actually what these benefits are! There is no need for it to be this 
burdensome, bureaucratic nightmare that it has turned into. To achieve 
this goal we suggest that you also establish an independent commission, 
again including disability program clients, to provide an ongoing 
monitoring/assessment of customer service, cost, time savings, and 
functions of the Social Security Disability program.
    At this point I feel that one of the best ways to illustrate the 
problems with the SSDI claims process is to relate my own experience 
with the program. For the last 30 years of my life I contributed to the 
Social Security System as millions of Americans do every day. I never 
expected to use those funds till I was old enough to retire, yet I was 
personally devastated by the SSA, losing everything I worked for 
because I became ill. In December of 2001, I applied for Social 
Security Disability benefits which I assumed would be there to help me 
in my time of need. I'd heard nothing but discouraging stories, but 
figured every case was different, and anyone with the list of illnesses 
that I had, and the documentation to prove it, would surely get the 
help they needed, yet I was sorely mistaken. After filling out several 
pages of paperwork, which I was told was greatly reduced from which it 
had originally been, and submitting a huge stack of medical records 
supporting my claim, I was told it would take 4-6 months to go through 
the disability claims process. I was shocked and asked what I was 
supposed to live on, and I was told to apply for Social Services 
(Medicaid, food stamps and cash assistance) while my claim was being 
reviewed. I did just that, and was denied any sort of help based on the 
cash value of a life insurance policy that is not even enough to bury 
me when I die. Due to all my illnesses if I cashed in that policy, I 
would never be able to get that form of insurance again! Going through 
that process and paperwork was very difficult and humiliating as well, 
and then to be denied any help, just added even more to my stress and 
misery.
    I was hoping beyond hope that I would soon get word that my 
disability claim was approved, but instead on 4/25/02, I got the 
incredible letter that my Social Security Disability claim had been 
denied! I found out that it's common knowledge on the streets and in 
legal circles that very few get approved the first time they apply. 
Something is extremely wrong when you have to deal with the pain and 
suffering physically and mentally that comes along with the illnesses 
you have, and then have to struggle so hard to get the benefits that 
you have worked for all your life.
    I still couldn't understand how it was possible that anyone could 
read about all the medical problems I have, and it not be totally 
transparent that I should qualify for benefits, and that I never 
should've been denied in the first place! I immediately filed for an 
appeal, had to go through an even more complicated process and was told 
it would be at least August of 2003 before I got my hearing if I didn't 
die first! On 9/13/02, when I called the Office of Hearings and Appeals 
in Buffalo NY to check on my claim the receptionist told me, that my 
file was still in the un-worked status, which meant that nobody was 
assigned to my claim yet, or even looked at the file at all since 
March, when I originally filed my appeal. I expressed my disgust that 
after six months in their possession that it had not even been touched 
yet! I called them again on 1/23/03 and they told me that STILL nobody 
had been assigned to my case and it would be a MINIMUM of five months 
more or longer since they were just starting to work on cases that were 
filed in November of 2001! The receptionist expressed her sympathy for 
my cause and literally begged me to let others know (especially the 
government and media) about how much of a problem they are having. 
Imagine my surprise when I was calling them for help and they were 
begging me--a disabled person, to get them help! That just proves even 
further how poorly run the SSD program is. I was told that there were 
only 50 employees handling hundreds of thousands of cases and they, 
along with all of us claimants critically need help now!
    Congressional offices in many cases contact Social Security on 
behalf their constituents going through the SSD process, so they must 
be aware of the many problems that exist with the program. I wrote to 
ALL my elected officials and as a registered voter myself, was very 
disappointed, disillusioned, and disgusted that my elected officials 
whom I have supported in the polls every year, when I asked for help in 
my own particular case, that the very few who responded at all, said 
that I needed to be become homeless or have my utilities shut off 
before they could help me, and there was nothing else they could do to 
expedite my claim. It was totally appalling and unacceptable to me, 
that never once, did they say that they would do anything to try and 
correct the flaws in the system that cause the horrors we SSDI/SSI 
applicants face. The bi-partisan apathy in regards to this issue is not 
only unacceptable, but criminally negligent behavior, and Congress 
needs to be held responsible for it, create the legislation and get the 
funding needed to address this crisis. We elected them, trusting that 
they would protect, serve, and be there for us in our time of need. 
Time is of the utmost importance in this matter, as millions of SS 
Disability applicants, even as I write this are suffering and losing 
everything, including their lives, while trying to get their benefits.
    In March 2003 I called the hearings and appeals office again and 
they said it would be at least August 2003 before someone would look at 
my case. I then did some research and found out that I could request 
copies of the reports of the SSD IME doctor I was sent to, and the 
notes of the original DDS claim examiner that denied me, and when I 
received them, my worst allegations were then confirmed. Even though I 
have no real neurological problems they sent me to a neurologist to 
examine me, so of course he would find nothing wrong with me and say 
that I did not qualify as disabled. I should have instead, been sent to 
a Rheumatologist since most of my problems are caused by several 
autoimmune disorders. I also discovered that the DDS examiner purposely 
manipulated my medical information in order to deny my claim. Even 
though I filed my disability claim based on all the physical problems I 
have, the DDS examiner purposely wrote depression as a PRIMARY 
diagnosis for disability, instead of as secondary one, so of course I 
would be denied based on that as well. This was after I had already 
submitted tons of documents to prove my PHYSICAL disability--reports/
documents that he chose to ignore. I then contacted the Social Security 
Office of Public Inquiries and the Inspector General's office in MD and 
filed a formal willful misconduct complaint to him against the Buffalo 
DDS office. In April 2003, I requested an immediate pre-hearing review 
of my case on the grounds of misconduct and additional physical 
evidence. In order to get that process going I had to fax the OHA 
copies of their own regulations since the person I spoke with there had 
no clue what I was talking about. Once they got all my paperwork to 
request the review, a senior staff attorney, and then a hearing and 
appeals judge granted my request and my case was then sent back to the 
DDS office that originally denied my claim. Finally it was seen by a 
different DDS person who actually knew how to do their job. In two 
weeks my case was approved at the DDS level and then was selected 
randomly by computer (7 out of every 10 cases get chosen) for Federal 
review. It then took another three weeks to be processed there.
    By this time, I had wiped out my life savings and lived off my 
pension from a previous employer which is totally gone now, due to the 
enormous wait for my claim to be processed properly. One month before 
becoming totally bankrupt, homeless, losing my health insurance, and 
everything else I had worked for the last 30 years of my life, I 
finally won my case by myself, with no lawyer representing me, exactly 
1\1/2\ years to the day from when I originally filed my claim. Under 
SSD regulations 5 months of my retro pay was withheld for no good 
reason, money I surely could have used to help pay off debts incurred 
while waiting for approval of my benefits. All the SSD retro pay I did 
received is gone now too and the benefits I do get are nowhere near 
enough to live on for the rest of my life. Plus there is always the 
stress of having to deal with the SS Continuing Disability Review 
Process every few years, where the threat of having your benefits 
suddenly cut off constantly hangs over your head, even though all my 
illnesses are incurable and are getting progressively worse. This is a 
total waste of time and money on the part of the SSA to review people 
with incurable, no hope for improvement conditions, such as mine.
    Even after I was finally approved for benefits, since current 
Medicare program regulations discriminate against disabled Americans by 
making them wait for 24 months after their disability date of 
entitlement, I didn't become eligible for Medicare until June 2004, 
having to spend over half of my SSD check each month on health 
insurance premiums and prescriptions, not including the additional co-
pays fees on top of it. Despite what you may hear, Social Security 
Disability benefits rarely cover the basis necessities of life. The 
American dream has become the American nightmare for me, since day to 
day I don't know how I'm going to survive without some miracle like 
winning the lottery. I'm now doomed to spend what's left of my days 
here on earth, living in poverty, in addition to all my medical 
concerns since I'm no longer able to work, and nobody in their right 
mind would willing choose this horrible existence.
    I continually deal with enormous stress and face the continued 
looming threat of bankruptcy and homelessness, due to the cost of my 
healthcare and basic living expenses, still not qualifying for any 
public assistance programs. I personally hold accountable the SSA, the 
DDS Office in Buffalo NY, Congress and State legislators for their 
apathy in regards to the problems that this program has, for the 
mental, physical, emotional and financial destruction that this 
experience has cost me. I have vowed to do whatever it takes for the 
rest of my life, to make sure that no other American citizen has to 
endure the hell that I continue to live with everyday as a result of 
having to file for SSDI/SSI benefits. I did not ask for this fate and 
would trade places with a healthy person in a minute. Nobody ever 
thinks it can happen to them. I am proof that it can, and remember that 
disease and tragedy do not discriminate on the basis of age, race or 
sex.
    America needs to wake up and take action--anyone including you, 
could be one step away from walking in my shoes at any moment! While 
the majority of Americans were shocked at the reaction of the Federal 
government in the aftermath of hurricane Katrina, I wasn't surprised at 
all. Americans saw when hurricane Katrina struck, how the poor and 
disabled were left to die in the streets when they needed help the 
most. I shudder to think of how many more lives will be further ruined 
or lost, when the mentally and physically disabled victims of Katrina, 
other natural disasters, 9/11 victims who survived that day, but are 
now disabled and facing a similar fate, and the other disabled 
Americans in general, encounter their next experience with the Federal 
government as they apply for their SSDI/SSI benefits. Also nothing is 
heard about the Veterans who are injured in the line of duty and have 
to go through this same scenario to get their benefits too. There are 
cases of Veterans rated 100% disabled by the VA who get denied their 
Social Security Disability benefits and end up living in poverty on the 
streets. Horrible treatment for those who protect and serve our 
country.  Keep in mind a country is only as strong as the citizens that 
live there, yet as you can now see, the Social Security Disability 
process preys on the weak, and decimates the disabled population even 
further. The process that an applicant endures when filing for SS 
disability benefits, causes irreparable harm and has many serious side 
effects including financial and physical devastation, unbearable stress 
and anxiety, depression, and in some cases the depression is so severe 
that suicide seems to be the only option to get rid of the pain, of 
dealing with a system riddled with abuses against the disabled, already 
fragile citizens of this country. It is a known medical fact that 
stress of any kind can be detrimental to a person's health, and to 
subject a population whose health is already in jeopardy to the sorts 
of stress that this process can cause, further erodes a claimant's 
health and is Federally sanctioned torture. Based on my own personal 
experience, and from the horror stories I hear on a daily basis I can't 
help but feel that the Social Security Disability program is purposely 
structured to be very complicated, confusing, and with as many 
obstacles as possible, in order to discourage and suck the life out of 
claimants, hoping that they give up or die in the application process, 
so that benefits do not have to be paid to them. A sad commentary to 
say the least.
    We the ``Claimants, Customers, Stakeholders'' are the people that 
the people that the SSA and Congress is supposed to be serving and 
listed below are some of our concerns and proposals for reform:
    We want disability benefits determinations to be based solely on 
the physical or mental disability of the applicant. Neither age, 
education or any other factors should ever be considered when 
evaluating whether or not a person is disabled. If a person cannot work 
due to their medical conditions--they CAN'T work no matter what their 
age, or how many degrees they have, yet this is a standard practice 
when deciding Social Security Disability determinations. These non-
disabling factors should be eliminated immediately as a factor in 
determining benefits eligibility.
    The SSA ``Bluebook'' listing of diseases that qualify a person for 
disability should be updated more frequently to include newly 
discovered crippling diseases such as the many autoimmune disorders 
that are ravaging our citizens. Also SSD's current 3 year earnings 
window calculation method fails to recognize slowly progressive 
conditions which force people to gradually work/earn less for periods 
longer than 3 years, thus those with such conditions never receive 
their `healthy' earnings peak rate.
    In her testimony before the Senate Finance Committee on 3/14/06 the 
Commissioner referred to an Electronic Disability Guide (eDG) which she 
states is accessible to the public. To date that has not been made 
available to the public, all areas are flagged as restricted, and we 
request that it be made accessible to the public as soon as possible.
    We want to see institution of a lost records fine, wherein if 
Social Security loses a claimants records/files an immediate $1000 fine 
must be paid to the claimant.
Funding
    The Commissioner has stated in the past: ``Since funding is the 
fuel that drives our ability to meet the needs of the people who rely 
on our services, I must tell you that there are very real consequences 
when we have reduced resources. Under the current performance-based 
budgets, there is a certain amount of work that can be done for a 
certain amount of funding, and when our portfolio of traditional work 
and the new workloads I have described expands without funding, our 
effectiveness is jeopardized.''
    We agree with the Commissioner that proper funding is crucial to 
the success of SSA programs and there are severe, very real 
consequences to claimants when SSA has reduced resources, yet it is my 
understanding that she has imposed a hiring reduction. SSA has already 
experienced staffing cuts in 2006, and based on the President's 
proposed budget, is expected to experience even more staffing cuts in 
2007. The SSA will now have only a 1 of 8 employee replacement ratio 
for those leaving SSA and who work directly on the front lines in the 
field offices. This is a claimant's primary interview contact in the 
disability claims and appeals process, and this staffing cut is a great 
cause of concern for us. Even now there is not enough staff to handle 
the current workloads, and the influx of new disability claims is only 
going to increase over time as the population ages, and we face very 
turbulent times ahead. The idea that the Commissioner would use these 
resources she has been given, to create new levels of claims 
processing, that in reality will make the system tougher on claimants 
to access benefits, instead of properly staff the program and make it 
more claimant friendly is a travesty and waste of tax payer dollars. We 
ask that Congress legislate to ensure that the Social Security trust 
fund should never be touched for anything else but to pay benefits to 
the people who are entitled to it, and that the SSA does not have to 
compete for appropriation funds. We also call on Congress and the GAO 
to step in, and prevent the Commissioner's very detrimental staffing 
cut from taking place.
Communication Between SSA And Its Customers Is Crucial/DCM/QDD
    Increased contact with claimants throughout WHOLE disability claims 
process is crucial to the success of the program. Currently there is 
virtually no communication with claimants after initial intake, written 
denial, approval, review notices or if by chance the claimant is able 
to get through to the 1-800 number to ask a question. A welcome step in 
that direction is the Disability Claims Manager (DCM) pilot where the 
claimant is able interact on a regular basis in SSA field offices with 
the person who would be making the decision on their case. If trained 
properly we believe that DCM staff could perform this role, and it is 
my understanding that in the pilot these managers processed claims 
faster and more accurately than the state DDS offices do now. We are 
very pleased to see the Commissioner's creation of the Quick Disability 
Determination Unit (QDD) process for the obviously disabled which is 
long overdue, especially for those who suffer from terminal illness, 
who currently in many cases, die before they get approved for benefits. 
We must state that though, that it would better serve its clients if it 
were part of the SSA field office as well. Also a claimant should be 
allowed to review all records in their case file at any time, during 
all phases of the SSDI/SSI process. Currently they are only allowed to 
review their file after a denial in the initial phase is issued. Before 
a denial is issued at any stage, the applicant should be contacted as 
to ALL the sources being used to make the judgment. It must be 
accompanied by a detailed report as to why a denial might be imminent, 
who made the determination and a phone number or address where they 
could be contacted. In case info is missing or they were given 
inaccurate information the applicant can provide the corrected or 
missing information before a determination is made. This would 
eliminate many cases from having to advance to any hearing phase.
Consolidation/Coordination--The Disability Common Sense Approach
    The most ideal customer service scenario would be to have ALL 
phases of the disability claims process be handled directly out of the 
SSA field offices. Since SSDI/SSI are Federal benefits why has a State 
DDS level been added to this process at all? We must question why this 
common sense solution is not being instituted as part of the DSI. We 
ask that SSA, Congress and the GAO to look into reforming this program 
in such a way that ALL who handle benefit claims are Federal employees 
and consolidate ALL phases of the SSDI/SSI process into the individual 
SSA field offices throughout the nation. More Federal funding is 
necessary to continue to create a universal network between all outlets 
that handle SSDI/SSI cases so that claimant's info is easily available 
to caseworkers handling claims no matter what level/stage they are at 
in the system. Since eDib is not fully functional at this time, and 
even when it is, keeping as much of the disability process as possible 
in the SSA field offices would dramatically cut down on transfer of 
files and the number of missing file incidences, result in better 
tracking of claims status, and allow for greater ease in submitting 
ongoing updated medical evidence in order to prove a claim. In 
addition, all SSA forms and reports should be made available online for 
claimants, medical professionals, SSD caseworkers and attorneys, and be 
uniform throughout the system. One universal form should be used by 
claimants, doctors, attorneys and SSD caseworkers, which will save 
time, create ease in tracking status, updating info and reduce 
duplication of paperwork. Forms should be revised to be more 
comprehensive for evaluating a claimant's disability and better 
coordinated with the SS Doctor's Bluebook Listing of Impairments.
5-Month Withholding/Waiting Period For Benefits
    Remove 5-month waiting period for SSDI/SSI benefits. Supposedly 
this law was instituted because it was felt by Congress that the 
majority of Americans have short and long term disability insurance 
through their employers. In fact according to the Labor Department's 
National Compensation Survey released in March 2006, only 40% of U.S. 
employers offer short-term disability, and only 30% offer long-term 
disability. We now live in a climate where employer sponsored benefits 
are in fact decreasing, while as the population ages the need for them 
is increasing. There is absolutely no good reason for withholding these 
funds and it is basically robbery of 5 months of their hard earned 
benefits! Also prime rate bank interest should be paid on all retro 
payments from first date of filing, due to claimants, as they are 
losing this as well while waiting for their benefits to be approved. 
The amount of money withheld during this time could mean the very 
difference between a more secure future or financial ruin for a 
population who can no longer work and that will never be able to recoup 
that loss of back benefits that they are subjected to. It could 
determine whether or not a person will have to file for State 
assistance in addition to their Federal benefits and then have to rely 
on two support programs rather than just one for the rest of their 
lives. Now more than ever it is time for Congress to remove this 
additional hindrance to disabled Americans.
Medicare Sligibility/24-Month Waiting Period/Accelerated Benefits 
        Trail/Mental Health Treatment Study/AI Demonstratrations,
    The Commissioner's proposed Accelerated Benefits trial ignored our 
request to get Congress to legislate removal of 24-month waiting period 
for ALL Social Security Disability recipients to get full Medicare 
coverage. That needs to change and we ask this Committee to institute 
the necessary legislation to remove it as soon as possible. Her 
suggestion to only allow claimant's whose have medical conditions that 
are expected to improve within 2-3 years is blatant discrimination 
against the disabled citizens who need Medicare the most. This proves a 
total lack of understanding on her part, of how crucial these benefits 
are to someone who is disabled and can no longer work. Imposing this 
waiting period, also forces many to have to file for Medicaid/Social 
Service programs who otherwise may not have needed these services if 
Medicare was provided immediately upon approval of disability benefits. 
My organization agrees totally with the Medicare Rights Center, that 
coverage under all parts of Medicare must start immediately for them, 
upon disability date of eligibility. As part of the Mental Health 
Treatment Study and HIV/AI Demonstrations, the Commissioner states that 
SSA will provide comprehensive health care to DI beneficiaries who have 
schizophrenia or affective disorders, HIV/AI disorders. Again this 
should be extended to ALL SSDI claimants regardless of possible work 
outcome!
Claims Processing Times/Dire Needs/Compensation For Losses Incurred 
        While Waiting For Benefits
    We are calling for All SSD case decisions to be determined within 
three months maximum of original filing date. When it is impossible to 
do so a maximum of six months will be allowed for appeals, hearings 
etc--NO EXCEPTIONS. Failure to do so on the part of the SSA will 
constitute a fine of $500 per week for every week over the six month 
period--payable to claimants in addition to their awarded benefit 
payments and due immediately along with their retro pay upon approval 
of their claim. A dire needs case in the eyes of the SSA means that you 
have to prove in writing, that you are going to have your home 
foreclosed on, be evicted from your apartment or have your utilities 
shut off. Nobody should ever have to deal with that sort of thing when 
they are sick! Many claimants are also unable to afford health 
insurance, medicine, food, other necessities of life, and have to wipe 
out their financial resources because of their inability to work, but 
even that is not considered a dire need! Worsening health doesn't seem 
to be much of a factor in speeding up SSD claims either, as there are 
several reported cases of people who have died while waiting to get 
their benefits. This is outrageous when something this serious, and a 
matter of life and death, could be handled in such a poor manner. No 
other company or other government organization operates with such 
horrible turn around times. As a result we are calling for Congress to 
legislate that the SSA will be held financially responsible to 
reimburse claimants for any loss of property, automobiles, IRA's, 
pension funds, who incur a compromised credit rating or lose their 
health insurance as a result of any delay in processing of their 
claims, which may occur during or after (if there is failure to fully 
process claim within six months) the initial six month allotted 
processing period.
Treating Physicians
    All doctors should be required by law, before they receive their 
medical license, and it be made a part of their continuing education 
program to keep their license, to attend seminars provided free of 
charge by the SSA, in proper procedures for writing medical reports and 
filling out forms for Social Security Disability and SSD claimants. 
Often claimants cannot get their doctors to fill out SSA forms due to 
time constraints and staffing problems or they have no access to any 
kind of medical care at all. SSA field offices should also, when a 
person applies for disability benefits, provide at no charge to the 
claimant, a listing of free/low cost healthcare resources that they may 
need to utilize in order prove their disabilities. While the SSA in 
such cases may order a claimant to go for an IME in these situations, 
they cannot adequately determine a claimants disability in one visit 
like a treating physician who see a claimant on a regular basis can.
Proper Weight of Treating Physician Reports/Evidence And IME/
        Consultative
    Too much weight at the initial time of filing, and throughout the 
claims process is put on the independent medical examiner's and SS 
caseworker's opinion of a claim. The independent medical examiner, SS 
caseworker only sees you for a few minutes and has no idea how a 
patient's medical problems affect their lives after only a brief visit 
with them. The caseworker at the DDS office never sees a claimant. The 
decisions should be based with priority given to the claimant's own 
treating physicians opinions and medical records. When evidence is 
lacking in that area, and SSD requires a medical exam, it should only 
be performed by board certified independent doctors who are specialists 
in the disabling condition that a claimant has (example--
Rheumatologists for autoimmune disorders, Psychologists and 
Psychiatrists for mental disorders). Currently this is often not the 
case. Also independent medical exams requested by SSA should only be 
required to be performed by doctors who are located within a 15 mile 
radius of a claimants residence. If that is not possible--Social 
Security should provide for transportation or travel expenses incurred 
for this travel by the claimant.
Easy/Free Acess For Patients To Copies Of Their Own Medical Records
    All Americans should be entitled to easy access and FREE copies of 
their own medical records, including doctor's notes (unless it could be 
proven that it is detrimental to their health) at all times. This is 
crucial information for all citizens to have to ensure that they are 
receiving proper healthcare and a major factor when a person applies 
for Social Security Disability. Often inaccuracies in these records are 
never caught, allowing incorrect information to be passed on from 
doctor to doctor over the years, and could even lead to serious 
misjudgments in patient care based on bad information.
Removal Of Reconsideration Phase
    NY State where I live, is one of the worst in the nation to file a 
claim for SSDI/SSI benefits, compared to the rest of the nation, 
especially since 9/11. NY is one of ten test states where the 
reconsideration phase of the SS Disability claims process was 
eliminated, causing extraordinary wait times, up to several years in 
some cases, for claims to be processed At the Buffalo NY DDS office 
where my own claim for benefits was processed, 48.6% of T2 initial 
cases, 57.2% of initial cases and 67% of concurrent initial cases were 
denied. Yet over half of those claims were then approved at the 
Hearings and Appeals level in the time period between 6/25/05--9/00/05. 
With initial claims denial rates this high and no opportunity for 
reconsideration, it only stands to reason that claimants will request a 
hearing thus forcing them into the court system. Currently in states 
where the reconsideration phase has been removed there is even a need 
to ship in ALJ's from other states to help manage the court backlog 
problem. Yet the SSA Commissioner, has ignored this problem occurring 
already in these 10 test states and has now passed regulations to 
remove the reconsideration phase for the whole country, which will 
continue to force thousands more into the already backlogged Federal 
Court system. Why waste more Federal dollars on expanding removal of 
this phase when it has already been proven that it causes even more of 
a problem to both the claimants and the courts.
Use of Attorneys/ALJ's In Claims Processing
    The SSDI/SSI claims process should be set up so there is no need 
whatsoever for claimant paid legal representation when filing for 
benefits
    Currently the program is set up to line the pockets of the legal 
system, since a claimant is often encouraged from the minute they apply 
for benefits to get a lawyer. Why should you need to pay a lawyer to 
get benefits that you have earned? Every effort should be made to set 
up the claims process so there is very little need for cases to advance 
to the hearing and appeal stage since that is where one of the major 
backlog and wait time exists. It seems that this would create an 
incentive when work loads at DDS offices are especially high, to 
rubberstamp denials, moving them to the hearing phase, and pushing 
their workload into the already overloaded Federal court system, rather 
than take a little extra time to properly review the claim. The need of 
lawyers/reps to navigate the system and file claims, and the SSD cap on 
a lawyer's retro commission is also a disincentive to expeditious claim 
processing, since purposely delaying the claims process will cause the 
cap to max out--more money to the lawyer/rep for dragging their feet 
adding another cost burden to claimants. In other words the system is 
structured so that it is in a lawyer's best interest for your case to 
drag on since they get paid 25% of a claimant's retro pay up to $5300--
the longer it takes the more they get. From the horror stories I hear 
from other claimants, many attorneys are definitely taking advantage of 
that situation. I can't even begin to tell you how many times I am told 
of people whose health is deteriorating, who are losing their homes and 
filing for bankruptcy because their attorneys do nothing to try and 
speed up their claims. Many qualify for dire needs status or are 
eligible for pre-hearing/review on the record status in order to 
prevent these problems but are never told that by their attorneys, who 
sit back and do nothing but collect from a claimant's retro check. 
Claimants are told that there is a major backlog and since they are 
unaware of SS regulations they do not question this fraudulent 
behavior. We view this as a criminal act, yet there is almost oversight 
on this problem. Instead, from what I have seen in the Commissioner's 
DSI plan, she is catering to the law community in much the same way 
that the pharmaceutical companies were catered to when the Medicare 
Part D plan was instituted. Just as it has with the Medicare program, 
this adds a greater cost and processing time to the administration of 
the SSDI program and again adds a financial burden for the disabled. 
Instead the SSA should provide claimants with a listing in every state, 
of FREE Social Security Disability advocates/reps when a claim is 
originally filed in case their services may be needed.
    We are not in favor of any changes that would result in more 
hearings, lesser back payments or a greater reliance on attorneys for 
claimants to receive benefits. The Commissioner has proposed that a 
record would be closed after an ALJ issues a decision and new/material 
evidence would only be allowed to be submitted under certain limited 
circumstances. This is totally unacceptable, given that a great number 
of ALJ decisions are currently appealed due to rampant bias against 
claimants, fraudulent behavior and poor performance by the ALJ's 
currently serving. We have even heard stories of claimants who are 
being told by ALJ's that they must give up years of back pay or the 
judge will not approve their disability claims, which is criminal 
behavior! We are in favor of audio and/or videotaping of Social 
Security Disability ALJ hearings and during IME exams allowed at all 
times to avoid improper conduct by judges and doctors. A copy of court 
transcript should automatically be provided to claimant or their 
representative within one month of hearing date FREE of charge. We want 
to see the institution of a very strict code of conduct for 
Administrative Law Judges in determining cases and in the courtroom, 
with fines to be imposed for inappropriate conduct and payable to 
claimants. We also ask that the GAO review the role of the ALJ in the 
processing of disability claims and their decision making which has 
often proven to be very harmful to claimants. We suggest that the GAO 
and this Subcommittee look at the following report:
    General Bias and Administrative Law Judges: Is there a Remedy for 
Social Security Disability Claimants?
    http://organizations.lawschool.cornell.edu/clr/90_3/
Vendel_90_Cornell_Law_
Review.pdf
Ticket To Work Program--Catch 22--Fear and Mistrust of the SSA
    According to SSA disability guidelines: Social Security pays only 
for total disability. No benefits are payable for partial disability or 
for short-term disability. You have a valid claim if you have been 
disabled or are expected to be disabled for 12 consecutive months, or 
your condition will result in your death. Your condition must interfere 
with basic work-related activities for your claim to be considered. If 
your condition is severe but not at the same or equal level of severity 
as a medical condition on the list, then they must determine if it 
interferes with your ability to do the work you did previously. If it 
does not, your claim will be denied. If you cannot do the work you did 
in the past, SSD looks to see if you are able to adjust to other work. 
They consider your medical conditions and your age, education, past 
work experience and any transferable skills you may have. If you cannot 
adjust to other work, your claim will be approved. If you can adjust to 
other work, your claim will be denied.
    SSA forces the disabled to go through years of abuse trying to 
prove that they can no longer work ANY job in the national economy due 
to the severity of their illnesses in order to be approved for 
benefits. The resulting devastation on their lives, often totally 
eliminates the possibility of them ever getting well enough to ever 
return to the workforce, even on a part time basis, in order to utilize 
the SS Ticket to Work program. Then, sometimes weeks after they are 
finally approved for SSD/SSI benefits, after their health and finances 
have been totally destroyed beyond repair, they receive a ``Ticket To 
Work'' packet in the mail. A cruel joke to say the least and it is no 
wonder that the disabled fear continuing disability reviews, 
utilization of the Ticket to Work Program, and distrust the Federal 
Government! The Ticket to Work Program is often viewed as a carrot and 
stick it to the disabled approach.
How Backlogs In The SSDI/SSI Program Place An Increased Burden On The 
        States
    Due to the enormous wait times that applicants may endure while 
waiting for their SSDI/SSI claims to be processed, many are forced into 
poverty and have to apply for other state funded programs such as 
Medicaid, food stamps and cash assistance, who wouldn't have needed 
them, if their disability claims were approved in a timely manner. 
Another very stressful demeaning process to say the least. This causes 
an enormous burden across this nation, on those state Social Service 
programs. This problem would be greatly reduced if the Federal SSD/SSI 
program was fixed, and the states would definitely reap the benefits in 
the long run. Also if a healthy person files for Social Service 
programs and then gets a job, they do not have to reimburse the state 
once they find a job, for the funds they were given while looking for 
work. Disability claimants who file for state Social Services 
assistance while waiting to get SSI benefits in many states, have to 
pay back the state out of their meager disability benefits once 
approved, in most cases keeping them below the poverty level and 
forcing them to continue to use state funded services for the rest of 
their lives in addition to the Federal SSI program. They are almost 
never able recover or better themselves, since they can no longer work, 
and now have to rely on two support programs instead of just one. In 
all states there should be immediate approval for social services (food 
stamps, cash assistance, medical assistance, etc.) benefits for SSD 
claimants that don't have to be paid back to the states out of their 
SSD benefits once approved. We are calling on the SSA, the GAO and the 
states to make it a priority to start tracking this connection and act 
swiftly to correct this problem. Since states are being crushed under 
the increased Medicaid burden I am sure that this would do a great deal 
to alleviate that problem as well.
Continuing Disability Reviews
    We have heard that there is a proposal to give SSD recipients a 
limited amount of time to collect their benefits. We are very concerned 
with the changes that could take place. Since every patient is 
different and their disabilities are as well, this type of ``cookie 
cutter'' approach is out of the question. We especially feel that 
people with psychological injuries or illness would be a target for 
this type of action. Some medical plans pay 80% for treatment of 
biological mental heath conditions, but currently Medicare only pays 
50% for an appointment with a psychiatrist. This often prohibits 
patients from getting proper treatment and comply with rules for 
continual care on disability. The current disability review process in 
itself is very detrimental to a patient's health. Many people suffer 
from chronic conditions that have NO cures and over time these diseases 
grow progressively worse with no hope of recovery or returning to the 
workforce. The threat of possible benefits cut off, and stress of a 
review by Social Security again is very detrimental to a recipients 
health. This factor needs to be taken into consideration when reforming 
the CDR process. In those cases total elimination of CDR's should be 
considered or a longer period of time between reviews such as 10-15 
years rather then every 3-7 years, as is currently the case. This would 
save the SSA a great deal of time, money and paperwork which could then 
be used to get new claimants through the system faster.
    Unless everyone of the concerns/issues outlined above is addressed 
and resolved in a timely manner, the SSA, Congress and the State 
governments will continue to fail at what they were put in place to 
do--serve the people. Most of us were once hard working, tax paying 
citizens with hopes and ``American dreams'' but due to an unfortunate 
accident or illness, have become disabled to a point where we can no 
longer work. Does that mean we are not valuable to our country, or give 
the government/society the right to ignore or even abuse us? I think 
not! We are your mothers, fathers, sisters, brothers, children, friends 
and acquaintances, and most people think that this could ever happen to 
them. Remember that at any point in time you too could be facing our 
dilemma and contrary to what may be popular opinion, nobody willingly 
chooses this type of existence. I only hope that I can live long enough 
to see you do what is right for all of us. Since we can no longer work 
due to our disabilities, we are often considered ``disposable'' people 
by general and government standards. In addition our cries and screams 
are often ignored, many preferring that we just shut up or die. I am 
here to tell you those days are over now. We are watching, we are 
waiting, we may be disabled but we vote! Thank you for your time.
Please check out my website at:
http://www.frontiernet.net/8lindaf1/bump.html/

                                 

                        Statement of Earl Tucker
    My Name is Earl Tucker. I am President of AFGE Council 224 which 
represents the Quality Assurance workers in the Social Security 
Administration.
    The Social Security Administration's (SSA) is facing major 
challenges today because of staffing and resource shortages everywhere 
and not just in processing our disability cases. The ``Improved 
Disability Determination Process'' does not cure the lack of necessary 
resources to do the job. Even with this new process, it is still going 
to require an additional $1.2 billion over a ten years period to 
process disability cases. I think this money could be well spent 
funding the current process and hiring more staffing. More staffing 
alone would improve the processing of disability cases without spending 
over a billion dollar on a plan that may or may not improve the 
process.
    Now that the rules have been finalized on the new disability plan, 
I still have the same questions that I asked on the proposed rules for 
the disability plan and some questions even prior to the publishing of 
the proposed rules. On the proposed rules and prior, these were some of 
the questions that I asked:
    Below you will find some specific comments to the 79 pages of the 
proposal. I will be using printed page numbers for reference.
    3rd paragraph under ``Program Trends'' discusses the increase in 
DIB claims and the greater complexity of claims (due to more mental 
claims and vocational related issues) that have caused larger 
workloads. It is still unclear how the new system will resolve the 
complexity of these cases. These cases still require a sufficient 
number of staff with adequate training that have access to reference 
materials. That's the solution, which can be done under the current 
system.
    5th paragraph of Page 5 states that eDib alone is not enough to 
improve the system. According to the SSA Commissioner, they have to 
change the process ``to significantly improve disability 
adjudicators.'' Again, how is this manifested? A good adjudicator is 
one that is trained, resourced, experienced and not subject to 
arbitrary speed-up quotas.
    Another thing to keep in mind is that an eDib claim takes longer to 
review by a DQB examiner than a paper one when you have to screen all 
the pages on a desktop computer monitor page by page subject to the 
speed of the program and navigate around the file.
    See midway down on page 6 where they discuss ``both in-line and 
end-of-line'' QA ``at every step of the process.'' They still have to 
detail how this will be done. How exactly do you complete an ``in-
line'' review of a disability case? Do you halt case development to 
critique how one handles a medical source while another is on the way 
that could resolve some issue?
    Go to Paragraph 5 on page 9 that goes into the changes. Again, they 
boast of a processing time reduced by 25% without providing the basis 
for this. How can this be done if you replace the Reconsideration 
second level review with a Reviewing Official step and the Appeals 
Council with the Decision Review Board while still retaining the 
initial step and the ALJ? You still have the same number of steps, so 
where is the reduction in time by these changes.
    The need for a Quick Disability Determination unit (completing easy 
cases in 20 days) seems dubious. We already have provisions to do 
Presumptive and Teri cases to expedite a decision. People who are 
``obviously disabled'' already receive fast decisions from the DDS, so 
how will another bureaucratic restructuring solve any problems? Likely 
reasons for these cases not being allowed ASAP would be mailing issues, 
securing adequate documentation, inadequate staffing and increasing 
work loads at the DDS. How will the Quick Unit resolve these issues? 
NADE wrote that SSA stated that the DDS could not make these allowances 
``since they wouldn't have access to medical specialties able to make 
these diagnoses.'' Why not give them the access? Weren't all components 
in the process going to have access to the ``same medical and/or 
vocational experts?''
    Under ``State Agency Determinations'' on Page 11, they restate the 
need to document and explain the basis for every decision. This is one 
of the most important things at all levels. This will not happen with 
only a program reshuffle.
    Also on Page 11 is a section on ``Expertise and the Federal Expert 
Unit.'' The concept of a national network of medical and vocational 
experts is worthy. However, other considerations must be kept in mind. 
How can an adequate, independent quality review be completed if every 
component in the system uses the same medical and vocational experts? 
Often DDS errors are caused by inadequate or incorrect input from their 
medical or vocational staff. Just how likely would an error from a 
centralized source be rectified if they are also the quality review 
source? A resolution may involve different national networks for 
different components (DDS, ROQA/DQB, OHA).
    Under ``Reviewing Official'' on page 13, they describe the 
Reconsideration Step as a ``rubber stamp'' with no ``appreciable 
value.'' Our experience as a DQB examiners does not bear this out. 
Reconsiderations many times do reverse initial decisions and they are 
regularly sampled by the DQB. Moreover, a current successful program 
has New York DDS reviewing the Recons of New Jersey and Maryland DDS'. 
Such a system would preclude even the appearance of a ``rubber stamp'' 
in addition to having a truly independent second pair of eyes from a 
different DDS reviewing the claim.
    I also find it silly to mandate that these Reviewing Officials have 
to be attorneys. On the penultimate paragraph on Page 13, they list the 
reasons (or delusions really) why attorneys should do this. Yet, the 
Commissioner forgets that ALJs are attorneys and that studies have 
found that they often make mistakes. Law schools do not train you for 
Social Security disability sequential evaluation process. The ability 
to adjudicate and explicate as directed by policy are the important 
skills. They are inculcated and maintained with experience, adequate 
training, and resource access whether you go to law school or not. 
Moreover, it is unclear if an adequate number of attorneys could be 
attracted at the current salary levels offered.
    Also, please note in the second paragraph of page 14 that the 
Reviewing Official (even though he is a lawyer!) still has to send the 
claim to the Federal Expert Unit (and delay adjudication) before 
denying the claim again. When workloads increase, employees may feel 
pressure to allow the claims to avoid ``timeliness'' delays.
    An important section for us is ``Ensuring Quality'' on page 23. 
They again fawn on ``in-line'' review of cases without detailing how to 
do this. Most importantly, the Commissioner pushes the replacement of 
DQB's with a ``new centrally-managed quality assurance system,'' but 
she fails to detail or explain how this will be done. How more 
``centrally managed'' could an organization be that reviewed over 
326,000 cases in FY 2004? Currently, 10 regional offices answer to a 
central office whose job is to maintain consistency. Even with eDib, 
there will be some variance how different people, units, or offices 
view a case. Moreover, how will more centralization ``encourage local 
flexibility?'' Another issue is how a totally centralized office could 
handle all the local court-case mandates and idiosyncrasies of case 
development nationwide.
    See the second paragraph on page 24 about judging ``service, 
timeliness, productivity, and cost as components of quality along with 
accuracy.'' I addressed this abstract and untenable wish in my Lewin 
Report review.
    Please See page 29 concerning Reopening. This extreme restriction 
of its application is a bad idea. It is not uncommon that DQB examiners 
reopen prior claims under the current rules. In this way we can correct 
prior denials so that do not have to go through the OHA process. A 
common scenario involves people with mental illness who cannot follow 
deadlines due to their condition. The restriction on reopening will be 
a disservice to some of the most vulnerable people in society and 
propel cases to the OHA that can be resolved beforehand.
    Page 31 lists the costs for the proposed rules which are 1.2 
billion dollars between 2006 and 2015, according to the Office of the 
Chief Actuary. Considering how such estimates usually understate costs 
and that there are often unforeseen, unfunded hurdles, will long-
standing budget deficits permit such expenses? As always, a proper 
system needs proper funding. Our current system has been cheated for a 
while, so why should we think that the new system will be funded as it 
should?
    These are some additional Questions that I had long before the 
proposed disability plan:
    1) The GAO recently found that the cost-benefit analysis of SSA had 
underestimated the costs of eDib. What are your current cost 
projections for eDib and how much do you expect it to save SSA and the 
Trust fund? What are these figures based on?
    2) In your testimony before the House Ways and Means Committee, you 
stated that ``a shift to inline quality review would provide greater 
opportunities for identifying problem areas and implementing corrective 
actions and related training.'' Moreover, ``an in-line quality review 
process managed by the DDSs and a centralized quality control unit 
would replace the current SSA quality control system.'' Later, NADE 
reported in their meeting with you on 10/24/03 that SSA agreed with 
having PER reviews ``done centrally'' and ``that DQB will not exist, as 
we know it.''
    What are your exact plans for the DQB staff and why are you doing 
this considering the time and effort spent on the proposition that the 
PER review expanded to Title XVI for greater DQB review? Why do you 
want to replace a disability quality assurance system that saves the 
American taxpayer more than $13 for very $1 invested and has saved over 
$300 million annually for the Trust funds? Prior to the PER review, SSA 
operations and state DDS' reviewed their own work resulting in a 
program in disarray and requiring Congress to mandate an independent 
PER review. Why do we want to risk this again? How will accuracy be 
increased in this system? How likely is it that Congress will alter the 
statutory requirements of PER?
    3) What has been the impact and influence of the November 2000 
report of the Lewin Group and the Pugh, Ettinger, McCarthy Associates 
upon your proposed disability program? Were they consulted or did they 
have any input on the new system? When will Booz, Allen, Hamilton 
finish their review of the California DDS in-line quality review and 
will their report be made available to us?
    4) Can the new disability system function without your requested 
increases in the Service Delivery Budget? Couldn't an increased budget 
be used to adequately fund the current system? The major criticisms you 
mentioned about the current approach involve inadequate documentation 
and waiting times. These problems are caused by staffing issues and 
work load demands, which with proper budgeting could be minimized in 
the process currently.
    5) Why is an Expert Review (ER) panel needed for Quick Decisions if 
we have a presumptive allowance process for SSI cases that can be used 
by the FO and the DDS to currently allow these cases expeditiously? 
People who are ``obviously disabled'' already receive fast decisions 
from the DDS, so how will another bureaucratic grouping solve scenarios 
that do not currently exist? Likely reasons for these cases not being 
allowed ASAP would be mailing issues, documentation securing, and 
inadequate staffing and increasing work loads at the DDS. How will the 
ER resolve these issues? NADE wrote that SSA stated how the DDS could 
not make these allowances ``since they wouldn't have access to medical 
specialties able to make these diagnoses.'' Why not give them the 
access? Weren't all components in the process going to have access to 
the ``same medical and/or vocational experts?'' Moreover, who is going 
to provide independent quality review of the ER panel?
    6) How can an adequate, independent quality review be completed if 
every component in the system uses the same medical and vocational 
experts? Often DDS errors are caused by inadequate or incorrect input 
from their medical or vocational staff. Just how likely would an error 
from a centralized source be rectified if they are also the quality 
review source?
    7) How will no SSA employee be ``adversely affected'' by your 
approach if the quality review is centralized, DQBs are ``eliminated,'' 
and eDib greatly reduces the current work of Program Assistants?
    8) On what basis do you assert that ``processing time will be 
reduced by at least 25%'' if you add an ER and replace the 
reconsideration step with a Reviewing Official (besides the demands 
required by reviewing the pilot projects that may become national)?
    9) Our Regional Director has been telling us that the new approach 
would only effect the QA review in order to mollify us, but this seem 
very unlikely. The new approach would totally change how the PER and QA 
process is completed. How could this be done without DQBs since PER 
review is mandated by Congress?
    10) With the current DQB organizational structure, the performance 
of any DDS can be scientifically validated. How do you plan to validate 
statistically the performance of each DDS without the DQBs? Do you want 
to know the actual performance of each DDS? Do you only want a 
statistically valid DDS' performance at the national level?
    11) There are many Acquiescence Rulings by the United States 
District Courts that differ from one District Court to another. How 
will Acquiescence Rulings of the different District Courts be handle 
centrally?
    In conclusion, the current process has always been under funded and 
cheated since day one. I believe it still would work if properly 
funded. I don't see Congress spending an additional $1.2 billions over 
10 years to implement this new disability plan.
    Earl Tucker

                                 

Statement of C. Richard Dann, Union of American Physicians and Dentists
    We are submitting this statement for the record for the June 15, 
2006 Hearing on Social Security Disability Service Improvement on 
behalf of the Union of Physicians and Dentists (UAPD)/American 
Federation of State, County and Municipal Employees (AFSCME), AFL-CIO. 
UAPD represents 140 Medical Consultants in California's Disability 
Determination Services (DDS) and AFSCME represents 1.4 million public 
service and health care workers.
    UAPD has been monitoring proposed changes to the Social Security 
Disability process since the Redesign was first proposed in April 1994. 
We have offered written comments to the Social Security Administration 
(SSA) and our members have testified before this Subcommittee in the 
past with suggestions to improve the Disability process.
    With final regulations in place, our members stand ready to 
implement the new system. And, while we agree that many of the changes 
will improve the system, we have grave concerns about one requirement 
that is yet to be determined--specifically the qualifications for the 
position of Medical Expert in the Medical and Vocational Expert System 
(MVES). The final regulations indicated that the Social Security 
Commissioner will publish the requirements for these positions at a 
later date. Therefore, our comments will focus on the requirements that 
are under consideration by the Commissioner.
    Last year the Institute of Medicine issued an interim report on the 
qualifications and organization of Medical Consultants in the New 
Disability Process. The Institute report recommended that all Medical 
Consultants and Medical Examiners at the state and federal levels be 
Board certified. We strongly disagree and are concerned that the 
Commissioner will rely upon this flawed analysis to implement these 
recommendations in her final guidelines. Board certification 
requirements will not enhance the speed or accuracy of adjudication, 
would greatly limit the number of potential candidates, creating a 
large backlog in the DDDs, and is simply not practical.
    Commissioner Barnhart has expressed concerns that various medical 
specialties are not readily available to all DDS adjudicators. However, 
there is a very limited need for such specialty consultation; well-
versed generalists who understand the processes, treatments and 
prognosis for a wide range of diseases, as well as the federal 
statutes, are better qualified than specialists to make the vast 
majority of disability assessments at the state DDSs.
    The standard medical model in the United States and most countries 
is that generalist providers initially evaluate patients so only the 
most ill or complicated cases are referred to specialists, effectively 
utilizing their unique skills. The factors to determine functional 
impairment are relatively simple and succinct: the ability to lift, 
carry, stand, walk, sit, reach, grasp, turn, push, pull, pinch, feel, 
bend, squat, climb, crawl, reach, see, hear, speak, and environmental 
tolerances do not require specialty assessment. The basic findings for 
gait, station, range of motion, strength, dexterity, sensation, 
balance, vision and hearing are fairly simple medical concepts, and 
understanding of those factors is not enhanced significantly by 
specialty training.
    A specialist's capabilities are not needed on every case involving 
that specialty. For example, although hypertension involves the 
cardiovascular system, the vast majority of blood pressure prescribing 
is done by generalists, not cardiologists. The vast majority of care 
for back pain is similarly done by generalist MDs, not orthopedists. 
Specialists are rarely better equipped to adjudicate most SSA 
Disability cases than generalists.
    We strongly oppose replacing Medical Consultants with non-physician 
providers in DDS or MVES. While arbitrarily urging Board certification 
of all physicians and PhDs in the Program, the Commissioner has 
paradoxically indicated that they already are recruiting for nurse 
consultants for the Boston rollout of the new process. Use of these 
other less credentialed medical sources offers no advantages; they have 
less medical training and knowledge than the physicians and PhDs 
employed currently as Medical Consultants, with the disadvantage of 
decreased legal defensibility in appeals.
    The DDS and Regional offices rely heavily Medical Consultants and 
it is estimated that currently five percent or less of the system's PhD 
Medical Consultants are Board certified. Requiring Board certification 
would leave a gaping hole in Psychiatric Medical Consultant capability, 
an area currently underserved in some states. Affordability and 
availability are the major obstacles to increasing the numbers of 
medical specialist experts in the SSA Disability program. The Institute 
report further recommended a grandfather period of five years for 
current non-Board certified Medical Consultants. After that period, 
those Medical Consultants without Board certification are presumed 
suddenly not to be qualified to make the same assessments that they 
have been making for five, ten or fifteen years.
    Most current Medical Consultants are mid to late career 
professionals, and Board certification was not as prevalent 25 years 
ago. Board certification requires multiple years of in-hospital 
residency training and passing Board examinations, and is just not 
feasible for a mid or late career DDS Medical Consultants. If SSA makes 
Board certification mandatory, it should apply to new applicants only, 
and incumbent MCs should be grandfathered. Any less accommodating 
policy will result in acute MC shortages and increased costs due to the 
higher salaries board certified doctors would demand.
    And, finally, requiring Board certification is impractical because 
most National Medical Boards require Recertification after five or ten 
years. Most recertification's require ongoing practice in that 
specialty area since last certification, as well as passage of a 
written examination. If SSA imposes this requirement, many medical 
consultants would not qualify for Board recertification because they 
would not have been in practice in their specialty.
    As an alternative, we strongly endorse federal standardization of 
Medical Consultant training and would like to emphasize that this is 
not a new idea. After over ten years of work by a group of DDS Training 
Coordinators, DDS Medical Consultants, Central Office Training staff, 
and Central Office Medical Consultants, a national SSA Disability 
Medical Consultant Training Curriculum was finally completed. A UAPD 
medical consultant was one of the members of that SSA workgroup.
    We also would like to point out that the Board certification will 
not solve the problem of the high reversal rate by the Administrative 
Law Judges (ALJs). The reasons for this discrepancy in the decision 
making process between the ALJs and the DDSs are actually pretty 
simple: the ALJ receives minimal medical training (typically two weeks 
in California, the nation's largest DDS) and there is currently no SSA 
quality review of ALJ decisions as there is for DDS decisions. The ALJ 
makes decisions based on ``substantial evidence,'' rather than the 
``preponderance of evidence'' standard that the DDS applies. Our 
members who review cases for Continuing Disability Review (CDR) might 
find the following scenario: two DDS teams (initial and 
reconsideration) considered all evidence and arrived at a decision of 
``no severe or minimal impairment;'' an ALJ then heard the case and, 
based on poorly substantiated endorsement of disability from a treating 
source, assessed the claimant ``disabled.'' This likely allowance error 
cannot be reversed at the next CDR due to the ``Medical Improvement 
Review Standard.'' Under this standard, the primary assessment on a CDR 
is not current assessment of disability, but rather an assessment of 
whether ``significant medical improvement'' has occurred since the last 
assessment of disability. If the two DDS teams judged that the claimant 
was capable of extensive work but the ALJ ruled that they were 
extremely limited with the same findings, subsequent CDRs will 
virtually never be able to show ``significant medical improvement.'' 
That seems quite contrary to the Commissioners goal of ``fostering a 
return to work at all stages.''
    The need for consistency between DDS and ALJ decisions is a very 
old problem. Many attempts have been made to resolve it. In the 1990s 
Process Unification Training was undertaken to increase the rate of DDS 
allowances and decrease the number of ALJ reversals. DDS allowances 
increased, but ALJ allowance rates have not fallen appreciably. ALJ 
decisions should use the same standards as the DDS, should be subject 
to quality review, should have the same accountability, and a mechanism 
to reverse ALJ decisions unsupported by the evidence on CDRs.
    We appreciate the opportunity to offer our perspective to this 
Subcommittee and we also urge the Subcommittee members to ensure that 
there are adequate resources for the current process and for 
implementation of the new process. There already are large backloads of 
CDRs due to funding shortfalls, and without sufficient funding, neither 
the current process or the new process will provide high quality 
services to applicants and recipients.

                                  
