[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
COMMISSIONER OF SOCIAL SECURITY'S PROPOSED
IMPROVEMENTS TO THE DISABILITY
DETERMINATION PROCESS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
and
SUBCOMMITTEE ON HUMAN RESOURCES
of the
COMMITTEE ON WAYS AND MEANS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 27, 2005
__________
Serial No. 109-41
__________
Printed for the use of the Committee on Ways and Means
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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
SCOTT MCINNIS, Colorado EARL POMEROY, North Dakota
RON LEWIS, Kentucky STEPHANIE TUBBS JONES, Ohio
MARK FOLEY, Florida MIKE THOMPSON, California
KEVIN BRADY, Texas 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
______
SUBCOMMITTEE ON HUMAN RESOURCES
WALLY HERGER, California, Chairman
NANCY L. JOHNSON, Connecticut JIM MCDERMOTT, Washington
BOB BEAUPREZ, Colorado BENJAMIN L. CARDIN, Maryland
MELISSA A. HART, Pennsylvania FORTNEY PETE STARK, California
JIM MCCRERY, Louisiana XAVIER BECERRA, California
DAVE CAMP, Michigan RAHM EMANUEL, Illinois
PHIL ENGLISH, Pennsylvania
DEVIN NUNES, California
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 September 20, 2005 and revised advisory of September
21, 2005 announcing the hearing................................ 2
WITNESSES
Social Security Administration, Hon. Jo Anne B. Barnhart,
Commissioner................................................... 9
______
Administrative Office of the U.S. Courts, Hon. Judge Howard D.
McKibben, Chair, Judicial Conference Committee, Federal-State
Jurisdiction................................................... 37
Consortium for Citizens with Disabilities, Marty Ford............ 42
Federal Bar Association, Hon. Judge Dana E. McDonald............. 52
National Council of Disability Determination Directors, Andrew
Marioni........................................................ 57
National Organization of Social Security Claimants'
Representatives, Thomas D. Sutton.............................. 60
Vanderbilt University School of Law, Frank S. Bloch, Ph.D........ 69
SUBMISSIONS FOR THE RECORD
Arzt, Robin, New York, NY, letter................................ 92
Avard, Carol, Avard Law Offices, Pa, Cape Coral, FL, letter...... 103
Bratt, Shari, National Association of Disability Examiners,
Lincoln, NE, statement......................................... 104
Bryant, David, La Grange, IL, statement.......................... 108
Fullerton, Linda, Social Security Disability Coalition,
Rochester, New York............................................ 110
Holden, Keith, Orlando, FL, letter............................... 116
Lowenstein, Robert, and Janna Lowenstein, Sherman Oaks, CA, joint
letter......................................................... 120
Marshall, James, AFGE Council 215, Falls Church, VA, statement... 124
Martin, Charles, Decatur, GA, letter............................. 126
Miskowiec, Michael, Charleston, WV, letter....................... 128
National Health Care for the Homeless Council and National Law
Center on Homelessness and Poverty, Nashville, TN, joint
statement...................................................... 129
Schnaufer, Eric, Evanston, IL, letter............................ 133
Shaw, James, National Association of Disability Representatives,
Belleville, IL, statement...................................... 135
Turner, Jason, Milwaukee, WI, statement.......................... 137
Unaffiliated Colorado Disability Attorneys, Fort Collins, CO,
joint statement................................................ 139
COMMISSIONER OF SOCIAL SECURITY'S
PROPOSED IMPROVEMENTS TO THE
DISABILITY DETERMINATION PROCESS
----------
TUESDAY, SEPTEMBER 27, 2005
U.S. House of Representatives,
Committee on Ways and Means,
Subcommittee on Social Security,
Subcommittee on Human Resources,
Washington, DC.
The Subcommittees met, pursuant to notice, at 4:10 p.m., in
room 1100, Longworth House Office Building, Hon. Jim McCrery
(Chairman of the Subcommittee on Social Security), and Hon.
Wally Herger (Chairman of the Subcommittee on Human Resources)
presiding.
The advisory and revised advisory announcing the hearing
follow:]
ADVISORY
FROM THE
COMMITTEE
ON WAYS
AND
MEANS
SUBCOMMITTEE ON HUMAN RESOURCES
CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
September 20, 2005
SS-9
McCrery and Herger Announce Joint Hearing on
Commissioner of Social Security's Proposed
Improvements to the Disability
Determination Process
Congressman Jim McCrery (R-LA), Chairman, Subcommittee on Social
Security, and Congressman Wally Herger (R-CA), Chairman, Subcommittee
on Human Resources of the Committee on Ways and Means, today announced
that the Subcommittees will hold a joint hearing on the Commissioner of
Social Security's proposed regulation to improve the disability
determination process. The hearing will take place on Tuesday,
September 27, 2005, in the main Committee hearing room, 1100 Longworth
House Office Building, beginning at 10:00 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 Subcommittees and
for inclusion in the printed record of the hearing.
BACKGROUND:
The Social Security Administration (SSA) administers two Federal
disability programs: Disability Insurance (DI), and Supplemental
Security Income (SSI). The DI program is primarily financed through
Social Security payroll taxes and provides benefits to disabled workers
and their families based on previous employment covered by Social
Security. As of July 2005, more than eight million disabled workers and
their families received $6.2 billion in monthly benefits. By 2013, the
SSA expects the DI rolls to increase by 35 percent due to the aging of
the Baby Boomers. The SSI program is a means-tested income assistance
program funded with general revenues. As of July 2005, about 5.9
million blind and disabled individuals received $2.6 billion in Federal
monthly SSI payments.
Growing workloads for these two programs have placed increasing
demands on the SSA. Applications have increased 30 percent during the
past 5 years, from 2 million in Fiscal Year (FY) 1999 to 2.6 million in
FY 2004. Those who pursued their disability claims through all levels
of agency appeal waited an average of 1,049 days in FY 2004 for a final
decision. While the DI and SSI programs accounted for only 21 percent
of benefit payments in 2004, these programs consumed more than 57
percent of the SSA's administrative resources, due to the complexity of
making disability determinations.
Currently, persons seeking DI or SSI benefits must file an
application with the SSA, which is forwarded to a federally-funded
State Disability Determination Service (DDS) to determine whether the
individual meets the medical and vocational criteria for disability. If
the DDS denies the claim, the applicant has three levels of
administrative appeal, including a hearing by an Administrative Law
Judge, before proceeding to Federal court.
During a September 25, 2003 hearing before the Subcommittee on
Social Security, the Commissioner of Social Security, Jo Anne B.
Barnhart, first outlined her approach to improve the disability
determination process. The Commissioner's goal is to enhance the SSA's
ability to make the correct determination as quickly as possible and to
help individuals with disabilities return to work by establishing
several new demonstration projects. On September 30, 2004, the
Subcommittees on Social Security and Human Resources held a joint
hearing to further examine Commissioner Barnhart's approach.
After 2 years of development, during which time the Commissioner
solicited and received comments from many stakeholders, on July 27,
2005, the SSA published its proposed regulation to improve the
disability determination process. A description of the key components
of the proposed regulation can be found on the SSA's website at: http:/
/www.ssa.gov/disability-new-approach/factsheet.htm
According to the SSA, these process improvements are built upon the
SSA's new electronic disability folder system, will be implemented on a
phased-in basis, would not require legislative action, and would reduce
processing time by at least 25 percent.
In announcing the hearing, Chairman McCrery stated, ``Commissioner
Barnhart is to be commended for her longstanding commitment to
improving the disability determination process. The proposed regulation
links procedural streamlining with methods for strengthening the
quality and consistency of disability decisions. This hearing gives us
the opportunity to closely examine the proposed regulation, including
its fairness, impact on claimants, and issues related to its
implementation.''
Chairman Herger stated, ``The Social Security disability
determination process has long been in need of improvement. I applaud
Commissioner Barnhart for taking a serious look at the current process
and developing a well thought-out proposal. I am interested in hearing
her thoughts as well as the comments of organizations and individuals
involved in the disability determination process.''
FOCUS OF THE HEARING:
The Subcommittees will examine Commissioner Barnhart's proposed
regulations for the disability determination process and new return-to-
work demonstration projects.
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
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From the Committee homepage, http://waysandmeans.house.gov, select
``109th Congress'' from the menu entitled, ``Hearing Archives'' (http:/
/waysandmeans.house.gov/Hearings.asp?congress=16). Select the hearing
for which you would like to submit, and click on the link entitled,
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formatting requirements listed below, by close of business Tuesday,
October 4, 2005. Finally, please note that due to the change in House
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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
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Note: All Committee advisories and news releases are available on
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The Committee seeks to make its facilities accessible to persons
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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
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noted above.
* * * CHANGE IN TIME * * *
ADVISORY
FROM THE
COMMITTEE
ON WAYS
AND
MEANS
SUBCOMMITTEE ON HUMAN RESOURCES
CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
September 21, 2005
No. SS-9 Revised
Change in Time for Joint Hearing on
Commissioner of Social Security's Proposed
Improvements to the Disability
Determination Process
Congressman Jim McCrery (R-LA), Chairman, Subcommittee on Social
Security, and Congressman Wally Herger (R-CA), Chairman, Subcommittee
on Human Resources of the Committee on Ways and Means, today announced
that the joint hearing on the Commissioner of Social Security's
proposed regulation to improve the disability determination process,
previously scheduled for 10:00 a.m. on Tuesday, September 27, 2005 in
room 1100 Longworth House Office Building, will now be held at 4:00
p.m.
All other details for the hearing remain the same. (See
Subcommittee Advisory No. SS-9, dated September 20, 2005).
Chairman MCCRERY. Good afternoon. After some technical
difficulties, we will begin the hearing. Welcome, everyone, to
our joint Subcommittee hearing on the Commissioner of Social
Security's proposed regulatory changes to the Disability
Determination Process. I want to welcome all of the witnesses
today, and I want to give a special welcome to the Commissioner
of Social Security, Jo Anne Barnhart. Before we get to the
focus of this hearing, I do want to take a moment, Commissioner
Barnhart, to ask that you take back to your employees my
personal appreciation for all that they have done and are doing
to help the victims of Hurricane Katrina and now Hurricane
Rita.
Ms. BARNHART. Thank you, Mr. Chairman. I will do so.
Chairman MCCRERY. The stories that I have heard from my
constituents and from evacuees who are in my district with
regard to the Social Security Administration (SSA) are very
positive. Social Security was one government agency that
responded very quickly and efficiently, and gave some comfort
to those who had been displaced from their homes and had no
idea when they might get back or where their checks might be,
and your agency's response in getting replacement checks to
those folks was very, very welcome, so thank you for doing
that.
Ms. BARNHART. Thank you.
Chairman MCCRERY. Turning now to the subject of the hearing
today, this hearing represents an important milestone in a
journey that began about 2 years ago when the Commissioner made
a commitment during a hearing before the Subcommittee on Social
Security to improve the agency's disability determination
process. Social Security Disability Insurance (SSDI) and
Supplemental Security Income (SSI) programs provide important
benefits for the most vulnerable people in our country. Sadly,
for many, circumstances worsen as they wait for a final
decision on their claim. Others do not fully pursue their
appeal options because the process is too complex. Fortunately,
Commissioner Barnhart has done more than merely talk about the
need to improve the disability determination process, she has
taken action.
The accelerated implementation of the electronic disability
folder system, or eDib, is just one example. The proposed
regulation we examine today is another step forward in the
question for meaningful reform. While no regulation can please
everyone, I believe this one has many merits. I also hope the
Commissioner will be open to the thoughtful suggestions for
regulatory improvements that we will hear from our second panel
today. As we proceed, I hope we will all remember that we have
the same goal, an improved disability determination process
that will truly serve those with disabilities and their
families. I look forward to hearing from the Commissioner and
our distinguished panel. As I said, this is a joint
Subcommittee hearing, and I would ask the distinguished
Chairman of the Subcommittee on Human Resources, Mr. Herger,
for his comments.
[The opening statement of Mr. McCrery follows:]
Opening Statement of The Honorable Jim McCrery, Chairman, Subcommittee
on Social Security, and a Representative in Congress from the State of
Louisiana
Good afternoon and welcome everyone to our joint Subcommittee
hearing on the Commissioner of Social Security's proposed regulatory
changes to the disability determination process.
I want to welcome all of our witnesses today and to give a special
welcome to the Commissioner of Social Security, Jo Anne Barnhart.
Before we get to the focus of this hearing, I would like to take a
moment, Commissioner Barnhart, to ask you to take back to your
employees my personal appreciation for all they have done and are doing
to help the victims of Hurricane Katrina and now Hurricane Rita. In
spite of the personal trauma caused by these hurricanes, Social
Security employees have been hard at work to ensure that eligible
evacuees received and will continue to receive their Social Security
payments whether they're living in a temporary shelter in the Gulf
region, or staying with relatives or friends elsewhere in the country.
Your employees have exemplified excellence in public service--going far
beyond the call of duty to serve those in dire need.
Turning to the subject of our hearing, today represents an
important milestone in a journey that began two years ago, when you
made a commitment during a hearing before this Subcommittee to improve
your agency's disability determination process.
The Social Security Disability Insurance and Supplemental Security
Income programs provide important benefits for the most vulnerable
people in our country. Sadly, for many, circumstances worsen as they
wait for a final decision on their claim. Others do not fully pursue
their appeal options, because the process is too complex.
Fortunately, Commissioner Barnhart has done more than merely talk
about the need to improve the disability determination process--she has
taken action. The accelerated implementation of the electronic
disability folder system or ``e-Dib'' is just one example. The proposed
regulation we examine today is another step forward in the quest for
meaningful reform. While no regulation can please everyone, I believe
this one has many merits. I also hope the Commissioner will be open to
the thoughtful suggestions for regulatory improvements that we will
hear today.
As we proceed, let us remember that we all have the same goal--an
improved disability determination process that will truly serve those
with disabilities and their families.
I welcome our distinguished panel, and I look forward to hearing
their views.
Chairman HERGER. Thank you, Chairman McCrery. I would like
to take a moment to join in thanking you, Commissioner
Barnhart, and the other witnesses that we will be hearing
today. In addition I want to thank Mr. McDermott and the other
Members for working on a bipartisan basis on H.R. 3672, the
McCrery-Jefferson Hurricane Relief legislation. I know the
Commissioner has been leading an aggressive effort to make sure
that those in disaster areas are receiving their Social
Security benefits. I thank you, and I thank your staff for your
hard work in meeting this extraordinary challenge. With that, I
will submit my full statement for the record of today's hearing
and yield back the balance of my time.
[The opening statement of Mr. Herger follows:]
Opening Statement of The Honorable Wally Herger, Chairman, Subcommittee
on Human Resources, and a Representative in Congress from the State of
California
It is with great interest that I join my colleagues on the Social
Security Subcommittee in welcoming Commissioner Barnhart and our other
witnesses to the hearing today. We will receive testimony on the
proposed rule to implement the Commissioner's plan for improving the
Social Security Administration's disability determination process.
It was just about a year ago that we met in this same room to
gather input on the Commissioner's plan. At that hearing we learned
that some parts of the plan, such as the Quick Disability Decision
step, were generally well received and that other suggestions, such as
closing the record at the end of the process, were greeted with less
enthusiasm. Since then the Commissioner has continued her review of the
process and the comments she received from her many discussions with
interested groups as she developed the proposed rule.
We all know that Social Security disability programs touch millions
and provide a safety net for many needy disabled individuals. We've all
heard from constituents who waited months or years to learn the outcome
of their application for disability benefits. And we all are interested
in improving the Social Security disability determination process to
better serve these individuals. The Commissioner is to be commended for
her leadership in making great strides towards that goal.
She also deserves credit for accelerating the introduction of
electronic folders into the disability determination process. This
action allows work on a claim to proceed more quickly since time
consuming steps such as mailing a folder back and forth between offices
has been eliminated. It has paid dividends in times of crisis as well.
For example, the advent of electronic folders has allowed cases in
hurricane ravaged states to continue moving through the disability
process in spite of damaged buildings, missing paper records, and
displaced workers.
The Commissioner's Work Opportunity Initiative is another area of
particular interest to me. I am interested in hearing more about this
initiative and getting an update on implementation of the demonstration
projects. I thank the Commissioner for her efforts in this area, too.
I look forward to all the testimony we will receive today from
witnesses with expertise in so many different stages and aspects of the
disability determination process.
Chairman MCCRERY. Thank you, Mr. Herger. Now the
distinguished Ranking Member of the Social Security
Subcommittee, Mr. Levin.
Mr. LEVIN. Thank you very much. I, Mr. McCrery, join you in
the spirit and the substance of your remarks, and also you, Mr.
Herger, and I am sure my colleague and friend, Mr. McDermott.
Clearly, everybody believes in improving this system. We have,
what, 1,300,000 cases pending? I think that was the latest
figure I was given, and a long period of time for cases to be
decided, and you decided to grab this problem by the back of
the neck and take a hard look at it. Now you are achieving at
long last an electronic system--though I am a little behind my
grandchildren in modern technology, and some of them are quite
young--it is good we are catching up in this government.
So far, as I understand it, while there has been widespread
discussion, it has been more internal than external, and now
with the regulations before us, hopefully this will be the
beginning of even more vigorous two-way communication. Just
very briefly, because you want to get on with your testimony
and the other panel. Some of the regulation's aspects clearly
make sense, the 20-day processing provision, having more
expertise in disability law at the very first level of appeal,
and also having a network of highly trained medical and
vocational experts. There are--and I think Mr. McCrery referred
to it--some serious concerns about some aspects of the
regulations, the proposed regulations, and new obstacles, for
example, to appeals, and in some cases reductions in
beneficiary rights, and last, some changes that might lead to a
less completed evidentiary record. We are going to hear the
second panel talk about that, and also perhaps you,
Commissioner, will talk about what you think are some of the
question marks as well as the many strengths. We look forward
very much to your testimony.
Chairman MCCRERY. Thank you, Mr. Levin. Now for the
concluding opening statement, the distinguished Ranking Member
of the Subcommittee on Human Resources, the gentleman from
Washington, Mr. McDermott.
Mrs. TUBBS JONES. Excuse me. We will all be able to submit
opening statements for the record?
Chairman MCCRERY. Yes, ma'am, without objection.
Mrs. TUBBS JONES. Thanks.
Chairman MCCRERY. Dr. McDermott.
Mr. MCDERMOTT. Mr. McCrery and Herger, thank you for
calling this hearing to seek additional comments on the Social
Security Administration (SSA) Commissioner's proposal. I
believe our goals should be to help people by streamlining the
process and speeding up the decisionmaking without compromising
the integrity of the system, and I think the Commissioner's
proposal recommends some very important improvements, like the
fast track for obvious cases of disability and using a national
network of medical and vocational experts to improve the
quality of disability evaluations. These are good ideas and the
Commissioner deserves credit for offering them.
However, as currently written, I think we would be ill
advised to support these proposed regulations because they turn
claimants into defendants. I have been in these proceedings and
I know a little bit about them, and the outcome will harm the
very people I think we are trying to help. I am particularly
concerned about the new rules as they relate to submitting
evidence during the appeals process and requesting that a case
be reconsidered in the event that new evidence becomes
available at a later time. I am concerned about the potential
of these proposed regulations as they apply to children
applying for SSI. Like other beneficiaries, if a child's parent
cannot adhere to all the new rules under the proposal, that
child will simply not receive critical assistance that they
need in their early years, and beyond that, the proposed new
rules ignore the unique characteristics of the population that
is served by SSI and disability programs.
Some of these recipients suffer from the very severe
disabilities that make it difficult for them to complete the
disability claims on their own. Meanwhile, others who suffer
from disabilities that are not easily identified, such as
multiple sclerosis, will have difficulty meeting the new
deadlines for submitting medical evidence, and will face
additional obstacles in getting their cases reopened after the
appeals process is completed. As written, these regulations
make due diligence unduly difficult. People will fall through
the safety net. People will get hurt, and I really don't want
to be a part of seeing a child hurt because we approve new
regulations that put the bureaucracy's efficiency against what
really goes on in the world.
I appreciate the Commissioner's initiative to improve the
disability process, but I think there is more that needs to be
done, and I am looking forward to hearing the comments of the
witnesses here today, because I think we all want the same
thing. It is really a question of how do we get to it. I don't
expect this to be confrontational. I expect it really to be a
discussion about what will actually work, because having sat in
these hearings as an expert witness on occasion, I have lots of
feelings. Thank you.
Chairman MCCRERY. Thank you, Dr. McDermott. Commissioner
Barnhart, please proceed. As you know, your written testimony
will be submitted in its entirety for the record, and if you
can summarize that in about 5 minutes, we would appreciate it.
Likewise, for the Members of both Subcommittees, anyone wishing
to present an opening statement can certainly do so in writing,
and it will indeed be included in the record without objection.
Commissioner Barnhart, welcome.
STATEMENT OF JO ANNE B. BARNHART, COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION
Ms. BARNHART. Thank you, Mr. Chairman. I am pleased to be
here today to discuss my approach to improve the Social
Security disability claims process. Chairman McCrery, Chairman
Herger, Mr. Levin and Mr. McDermott, and Members of the
Subcommittees, I really appreciate your interest and support
for our programs. When I accepted the job of Commissioner I
made it clear that I did not accept this position to manage the
status quo, and nowhere was the need for change more apparent
than in the disability process. Therefore, I made improving
service to our disability claimants a priority. It has been
clear to me from the beginning that we need to make some
significant changes to the process if we are going to provide
the kind of service that the American people expect and
deserve.
As you know, we have taken a number of steps to that end
already, most notably the successful implementation of the
electronic disability process. The notice of proposed
rulemaking (NPRM), which is the subject of this hearing, is I
believe the next step. Before I go any further, I do want to
take a moment to elaborate on the Chairman's comments about
Hurricane Katrina, and address the the SSA's role in the
national response to the devastation that was left in the wake
of Hurricane Katrina.
We are still assessing the impact of Hurricane Rita, but we
anticipate using the same procedures I am going to describe
that we employed for Hurricane Katrina, where it is necessary
to respond to the needs of those affected by Hurricane Rita.
Foremost, I want you all to understand that we are doing all
that we can to make sure that beneficiaries and recipients are
receiving their benefits. To meet the needs of beneficiaries
affected by Hurricane Katrina, I invoked immediate payment
procedures that provide for on-the-spot checks at any SSA
office around the country.
Within a few days of the hurricane we knew there was no way
for many of our beneficiaries to reach our offices, so for
those who relocated to evacuation centers or shelters, as the
Chairman mentioned, such as the Astrodome, or in Baton Rouge,
SSA established an onsite presence, and we have already issued
more than 53,000 immediate payments. Clearly, with the complete
devastation of Hurricane Katrina, many citizens did not have
identification. To make sure that evacuees have the Social
Security information that is necessary for employment, for
other Federal assistance, to sign a lease to rent an apartment
or a new home, SSA staff are assisting individuals through a
simplified protocol to get them the documentation they need,
whether it is the benefit amount or a verification of their
Social Security number.
Our dedicated employees are at the core of our efforts. The
men and women of SSA, many of whom themselves have lost their
own homes, have in fact worked long hours, and in some
instances slept in offices and commuted over long distances to
make sure that those on the Gulf Coast were receiving the help
that they need. I am incredibly proud to lead an agency with
the spirit and the compassion that is the character of our
Nation's SSA employees. Our work today continues in shelters
and in field offices everywhere in the country where there are
evacuees. It continues with file recovery, establishment of
temporary offices and work toward repairing damaged buildings.
It continues through our commitment to making sure that the
pending disability claims of people who were affected by
Hurricane Katrina are completed as timely as possible.
In order to leave as much time for questions as possible
this afternoon, I won't take time to describe the proposed
rules on the new approach in my oral statement, but I do want
to say that I believe we have a unique opportunity to make
changes that will substantially improve the disability process.
This NPRM is the blueprint for what began as a conceptual
framework 2 years ago. As I promised last year, we have
conducted an open outreach process to get ideas from those
involved in every aspect of the disability determination
process. I want to thank everyone who shared their views and
those who plan to submit comments on the NPRM. I am looking
forward to reviewing those comments, and I fully expect that
just as there were changes from concept to NPRM, there would be
changes from the NPRM to the final rules.
I didn't expect that everyone would embrace every element
of the process that is proposed in the NPRM, but I do hope that
when we review the comments, we will continue to see the same
cooperative and constructive spirit that has characterized the
discussions we have had over this past year. Certainly, the
testimony of the other witnesses today, which I read last
evening, suggests that we are off to a very good start. I want
to emphasize my personal commitment to reviewing the comments
in that spirit. Before I close, I would like to again
acknowledge the hard work and dedication of our SSA and State
Disability Determination Services employees. The current
backlogs and associated delays exist despite their best
efforts. Finally, I would like to again acknowledge the support
and guidance of the Members of these Subcommittees. Your
leadership and your interest have played a significant role in
our ability to get people from all perspectives to work
together in this effort. Thank you, Mr. Chairman. I will be
happy to try and answer any questions that you or the other
Members may have at this time.
[The prepared statement of Commissioner Barnhart follows:]
Statement of The Honorable Jo Anne B. Barnhart, Commissioner, Social
Security Administration
Chairman McCrery, Chairman Herger and Members of the Subcommittees:
Thank you for inviting me today to discuss my approach to improve
the Social Security disability claims process. Throughout my tenure as
Commissioner, I have made improving the disability determination
process one of my highest priorities.
As I have discussed in previous appearances before you, we have
taken a number of steps toward that end--especially the successful
implementation of the electronic disability process. And I want to
thank the Members of the Subcommittees for your support of our efforts.
It has been clear to me from the beginning that we need to make some
significant changes to streamline the system if we are to provide the
kind of service the American people expect and deserve.
But before I go any further, I want to take a moment and address
Social Security's role in the national response to the devastation left
by Hurricane Katrina. Foremost, I want you to know that we are doing
all that we can to make sure that beneficiaries are receiving their
benefits.
Approximately one million Social Security and Supplemental Security
beneficiaries live in the affected counties or parishes of Louisiana,
Mississippi and Alabama. And every month, they receive almost a billion
in benefits.
To meet the needs of these beneficiaries, I invoked immediate
payment procedures which permit payments to be made to any Social
Security beneficiary or Supplemental Security Income recipient who has
lost access to their benefit check. This means that beneficiaries from
the Gulf Coast can go to any Social Security office throughout the
United States and request an immediate payment, and a check will be
issued on the spot.
Within a few days of the hurricane, we knew that there was no way
for many of our beneficiaries to reach one of our offices. So, for
those who relocated to evacuation centers or shelters, Social Security
established an on-site presence to issue immediate replacement checks.
We have already issued about 53,000 immediate payments. To put this
in perspective, in a typical month a district office provides an
average of 8 immediate payments, but in a single day we issued almost
200 at the Astrodome alone. We hope to have new addresses for as many
people as possible for the October checks, but will still issue
immediate payments for those who need them.
We're also working with Federal, State and local officials in
affected areas to assist families who--after the hurricane--may now be
eligible for Social Security benefits. In this regard, we have put into
place emergency procedures that will enable us to quickly process
applications for survivors--widows, widowers and their children--or
other Social Security benefits.
Clearly with the complete devastation of Hurricane Katrina, many
citizens do not have identification. To make sure evacuees have the
Social Security information necessary for employment or other Federal
assistance, SSA staff are assisting individuals through a simplified
protocol to get them the documentation they need.
Our dedicated employees are at the core of our efforts. When I had
the opportunity to visit the Gulf Coast, I saw in person the
professionalism and compassion of the men and women of SSA and the
State Disability Determination Services. There has been a tremendous
outpouring of support from these employees. These dedicated men and
women, many of whom have lost their own homes and face other losses
related to Hurricane Katrina, are working long hours, and in some
instances sleeping in offices and commuting over long distances to make
sure that those on the Gulf Coast are receiving the help they need. I
am incredibly proud to lead an agency with the spirit and the
compassion that is the character of our nation's Social Security
employees.
For example, in Mobile, an employee delivered an immediate payment
check to a local shelter and stayed to help serve dinner. Later that
night, she returned to donate items for a baby staying at the shelter.
I am sure there are countless other stories like this that remain to be
told.
Our work continues in shelters and in field offices everywhere in
the country where there are evacuees. It continues with file recovery,
establishment of temporary offices, and work toward repairing damaged
buildings. And it continues through our commitment to making sure that
the pending disability claims of people who were affected by Hurricane
Katrina are completed as timely as possible.
We have retrieved all of the 6,321 paper files from the New Orleans
Disability Determination Services (DDS) office. With a special pass
arranged by the Office of the Inspector General, we gained entry into
the DDS building in New Orleans, packed 400 boxes of files, which
contractors carried down many flights of stairs lit only by
flashlights. We will make sure these cases are processed as soon as
possible.
In previous appearances before you, I've stressed the importance of
our electronic disability process--eDib--which is replacing voluminous
paper files with electronic files. Electronic files had been
established for about 1,900 of the cases pending in the New Orleans DDS
office. I'm pleased to report that we electronically reassigned these
cases to the Shreveport office of the DDS beginning in the first week
of September.
This brings me back to our topic today--how to make major
improvements in the disability process so that we can provide better
service to all Americans who apply for benefits.
Status of eDib
When I first discussed with you my new approach to the disability
process, I said that the foundation for the new approach was successful
implementation of eDib.
The new approach to disability claims processing can work
efficiently only when all components involved in disability claims
adjudication and review move to an electronic business process through
the use of an electronic disability folder.
I am pleased to say that eDib is becoming a reality across the
nation.
As planned, rollout is being staggered to ensure that SSA is able
to provide each DDS with the support necessary for successful
implementation. Once rollout begins in a DDS, the number of DDS
decisionmakers working with electronic folders gradually expands as the
DDS develops expertise with the process. So far, 53 of the 54 DDSs in
49 out of the 50 States have rolled out the electronic disability
folder, which means that some or all of the decisionmakers in these
DDSs are adjudicating cases in an electronic environment.
In January 2004, the Mississippi DDS started implementing eDib.
This past January, the Mississippi DDS became the first in the nation
to start processing virtually all cases in a totally electronic
environment. Since eDIB was fully implemented in the Mississippi DDS,
the DDS has reduced its processing times for Title II disability claims
by 7.1 days and for Title XVI disability claims by 9.8 days. Hawaii,
Illinois, and Nevada have joined Mississippi and are processing all new
disability claims in a totally electronic environment. We are reviewing
the progress being made in several other States and by the end of the
year another 13 DDSs may be totally electronic.
At the Office of Hearings and Appeals (OHA), our Case Processing
and Management System has been implemented in all of the hearing
offices and is being used to control case flow and provide management
information. In addition, 79 hearing offices in 26 States have
conducted over 700 hearings using electronic folders. The initial
response from OHA's Administrative Law Judges, and claimants and their
representatives has been positive.
In addition, we have been replacing all of our hearing offices'
aging tape recorders with digital recording equipment. This equipment
is less bulky than the old analog equipment and offers enhanced
quality, more stable storage capacity, and greater business process
functionality. Furthermore, it provides an electronic recording that
eventually will be stored in the electronic folder. Currently, digital
recording has been installed in 8 regional offices and 106 hearing
offices. We expect all hearing offices to be converted to digital
recording by April 2006.
By the end of next year, I expect each of the DDSs and OHAs to be
processing their workloads with electronic disability folders on a
regular basis. As I noted earlier, eDib allows SSA and DDS adjudicators
to view an individual's claims file anywhere in the country. This
flexibility affords SSA a new opportunity to make changes to improve
the administrative efficiency of the program.
The New Approach
Last year, I testified before you on my vision for the new approach
to disability determination. I described to you a conceptual framework
for the new approach, and I promised that, before we published proposed
rules to turn the conceptual framework into a comprehensive plan, we
would conduct an open consultation process to hear from those involved
at every step of the disability process.
As you know, on July 27, we published a Notice of Proposed
Rulemaking (NPRM) which sets out my plan to improve the disability
determination process. This NPRM was developed after an extensive
outreach program I launched to let interested parties know what I was
considering and to listen to their reaction. I personally conducted
over 100 meetings with almost 60 groups, both internal and external. My
staff participated in many more meetings. We also received hundreds of
emails from individuals currently receiving disability benefits,
individuals currently applying for benefits, and other interested
citizens providing recommendations on how to improve the process.
As a result of these discussions, the NPRM includes significant
changes to the framework I originally put forth. For instance:
We initially believed that Quick Disability Determination
claims should be adjudicated in regional units across the country, and
not in the State agencies. However, many of the groups we met with and
numerous individuals believed that the State agencies could effectively
adjudicate these claims. In the NPRM, we have proposed that the State
agencies be allowed to adjudicate Quick Disability Determination
claims.
Several organizations and numerous individuals also urged
us to allow the State agencies to continue to use State agency medical
consultants when making initial disability determinations under the
proposed plan. The NPRM provides that State agencies may continue to
use State medical and psychological consultants in the disability
determination process, as long as they meet SSA's qualification
standards in those areas where standards have been established.
A number of the groups we spoke with asked that we consider
providing for good cause exceptions to closing the record after the
issuance of the ALJ decision. Although the NPRM proposes to close the
administrative record after the ALJ issues his or her decision, it also
provides for limited good cause exceptions to closing the record.
Another area of concern involved our plans to eliminate the Appeals
Council step of the administrative review process. For example, some
thought that if claimants could not request administrative review with
the Appeals Council, the Federal courts would see a large influx of
Social Security disability cases following the ALJ hearing level.
Accordingly, a number of organizations and groups asked us to retain
the Appeals Council until we could be sure that the proposed new
process was working as intended.
The NPRM makes it clear that we intend to roll out the new process
gradually on a region-by-region basis, and that we also intend to
retain the Appeals Council and continue its operations in those regions
where the new process has not yet been implemented. This gradual
implementation also will provide us with the opportunity to assess the
effects of the elimination of the Appeals Council and to make any
necessary adjustments.
The Objective of the Changes we have Proposed
My objective in proposing changes in SSA's disability determination
process is to fundamentally improve the quality of service that the
agency provides both to claimants and to the public at large.
When I first spoke with President Bush about the current disability
program, he asked me three questions. Those questions were:
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 want to go back to work after going
through such a long process to receive benefits?
I realized that designing an approach to fully address the central
and important issues raised by the President required a focus on two
over-arching operational goals:
1. to make the right decision as early in the process as possible;
and
2. to foster return to work at all stages of the process.
To accomplish this, the NPRM proposes changes aimed at expediting
the disability decisionmaking process; improving the accuracy,
consistency, and fairness of decisions; and making the process more
understandable and more credible. We are also working on a series of
demonstration projects that we believe will help us determine how best
to assist disabled individuals in their efforts to participate in the
Nation's workforce.
Before I describe some of the features of the NPRM, I want to take
a moment to talk about what I believe is a unique opportunity to make
the kind of changes that will substantially improve the disability
process. This is a difficult challenge because people who view the
process from different vantage points, have different perspectives, and
different views on what we should do to improve it.
I think this is one reason that past efforts have not been
successful. But, this time, I believe that we can be successful. I say
this because of the 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 I said a moment ago, this NPRM is the blueprint for what began
as a conceptual framework for our new approach. I do not expect that
everyone will embrace every element of the process proposed in the
NPRM. I am looking forward to reviewing those comments and fully expect
that there will be changes from the NPRM to the final rules. I do hope
that when we review the comments, we will continue to see the same
cooperative and constructive spirit and that we can focus on the
ultimate goal of improving the process from start to finish.
Before I go any further, I would like to acknowledge the hard work
and dedication of our SSA and State Disability Determination Services
(DDS) employees. The current backlogs and associated delays exist
despite their best efforts. I want to emphasize that no Social Security
or State employee will be adversely affected by my new approach. I
believe the new approach will allow them to provide even better service
to the public.
The proposed regulations do preserve some of the significant
features of the current system. Initial disability claims will continue
to be handled by SSA's field offices; State DDS agencies will continue
to adjudicate claims for benefits; and Administrative Law Judges (ALJs)
will continue to conduct de novo hearings and issue decisions. However,
the proposed regulations also make some important changes. Today I
would like to talk about the major changes we have proposed and why we
have proposed them.
Quick Disability Determination Unit
The proposed rules would establish a Quick Disability Determination
(QDD) process through which State agencies would expedite cases for
people who are clearly disabled. Appropriate claims would be identified
and referred directly to special units in the State agencies. We expect
that these QDD units would then process these claims in 20 days or
less, thereby potentially reducing waiting times for those claimants by
several months.
Federal Expert Unit
We realized that under our current disability adjudication process,
medical and vocational experts are not consistently available to
adjudicators at every level or in all parts of the country. Therefore,
we proposed to create a Federal Expert Unit to oversee a national
network of medical, psychological, and vocational experts that will be
available to assist adjudicators at all levels throughout the country.
The purpose of this Federal Expert Unit, would be to augment and
strengthen the medical and vocational expertise that currently exists
in our DDS's. State medical consultants can choose to become part of
the Federal Expert Unit if they meet the qualifications. And, as we
have said before, we want to ensure that each case is seen by the right
medical eyes. For example, an adjudicator evaluating a musculoskeletal
impairment would be able to receive an orthopedist's opinion before
deciding the claim, thus ensuring a more accurate decision. Presently,
20 percent of the disability workload is comprised of musculoskeletal
cases, yet only 2.5 percent of DDS medical consultants are
orthopedists.
Eliminate State Agency Reconsideration and Create Federal Reviewing
Officials
Several of the groups and individuals with whom we met described
the reconsideration review level in the disability process as having
little value. Based on the belief that claimants perceive this level as
little more than a rubber stamp, the proposed regulations would
eliminate the reconsideration level of review. State agency examiners
would be required to more fully document and explain the basis for
their determinations at the initial level. We would create a Federal
reviewing official (RO) who would review initial State agency denials
if a claimant appealed. The RO would provide a written decision on the
claim, give reasons for accepting or rejecting findings, and consult
with an expert affiliated with the national network if he or she
disagrees with the initial determination.
During the course of our outreach, as we discussed this appeals
step, people told us that the RO does not need to be an attorney about
as often as others told us that the RO absolutely should be an
attorney. As we indicated in the NPRM, we believe that attorneys are
ideally suited to perform certain critical RO functions, such as
drafting well-supported, legally-sound decisions. Moreover, we believe
that using attorneys will improve the level of confidence in the
integrity of this level of review. Therefore, we have proposed filling
this position with attorneys. As these Subcommittees are well aware, we
already employ many excellent attorneys who have significant experience
in SSA's disability programs.
Retains the de novo Hearing Before The Administrative Law Judge (ALJ)
ALJs would continue to hold de novo hearings and issue decisions
based on all the evidence presented during the hearing. ALJs would not
be required to give any legal deference or weight to the decisions
previously made by the RO; however, ALJs would be required to provide
in their decisions an explanation as to why they agree or disagree with
the rationale in the RO's decision. This explanation would be used to
provide constructive feedback to reviewing officials to improve future
case reviews.
Submitting Evidence Timely and Closing the Record
Throughout our discussions, there was a general concern that we
need to receive claimants' evidence in a more timely manner. The NPRM
proposes that claimants must submit evidence no later than 20 days
before the hearing. Furthermore, the record would close after the ALJ
issues a decision. We believe that these changes will increase our
ability to process hearing requests in a more timely manner.
Similarly, we heard from a number of people who were concerned that
these new changes would harm those claimants who, through no fault of
their own, were unable to submit their evidence in a timely manner. The
NPRM proposes closing the record but includes good cause exceptions to
the submission requirements I have just described.
These proposed changes would protect a claimant's right to fairly
present his or her case while reducing unnecessary delays in the
hearing process.
Decision Review Board (DRB)
Under the proposed rules, Appeals Council functions gradually shift
to a newly established Decision Review Board (DRB). The DRB would
review both allowances and denials. A claimant's right to request
review of an ALJ decision in a disability claim would be eliminated;
however, a claimant could still seek review when an ALJ dismisses his
or her request for a hearing.
The DRB would consist of both ALJs and Administrative Appeals
Judges serving staggered terms who would review both favorable and
unfavorable decisions that are likely to be error-prone. As I
mentioned, the disability review functions currently performed by the
Appeals Council would gradually shift to the DRB as the new approach is
implemented region by region.
One of the concerns related to elimination of the Appeals Council
was the possibility of an increase in court workloads. The NPRM
proposes to gradually eliminate the Appeals Council only in those
regions where we have implemented the changes in the NPRM. We will
monitor the cases appealed to the Federal District Court, and the
gradual rollout allows us to make adjustments as necessary.
Quality
The NPRM addresses the need for in-line and end-of-line quality
review at all levels of the disability determination process. Pre-
effectuation review at the initial level would continue.
The lynchpin of quality assurance under the new approach is
accountability and feedback at each level. The new quality process
would focus on both denials and allowances, and concentrate on ensuring
that cases are fully documented at each stage. This last point is
crucial because we believe that better documentation would allow cases
to move through the system more quickly and will produce better
decisions.
Demonstration Projects
Currently, we have numerous incentive programs that encourage
disability beneficiaries to work, such as the Ticket to Work and Self-
Sufficiency program and expedited reinstatement. Despite these
incentives, few disability beneficiaries choose to work.
We have designed several demonstration projects to test the impact
of different work incentives on disability beneficiary and claimant
behavior. These projects include the following:
Accelerated Benefits Demonstration Project. This demonstration
project will provide immediate private health benefits and employment
supports for a specified period (2 to 3 years) to newly entitled SSDI
beneficiaries who are highly likely to improve medically with
aggressive medical care. For instance, a new beneficiary with a
fractured hip would benefit from immediate health care to facilitate a
return to the workforce. We expect to award a contract for this project
within a month and to begin enrolling participants next year.
National Benefit Offset Demonstration Project ($1 for $2). This
demonstration will test the effects of allowing Disability Insurance
beneficiaries to work without total loss of benefits by reducing their
monthly benefit one dollar for every two dollars of earnings above a
specified level. While the contractor for the national demonstration
project is designing the project, we are operating a smaller four-state
benefit offset demonstration in Connecticut, Utah, Wisconsin, and
Vermont. This four-state project will help inform the national
demonstration project. These projects are well underway and the States
began enrolling participants in August 2005.
Early Intervention Demonstration Project. This project would
provide immediate medical and cash benefits as well as employment
supports to SSDI applicants with certain impairments presumed disabling
who elect to pursue work rather than proceed through the disability
determination process. We will be conducting this demonstration as a
part of our National Benefit Offset project.
Mental Health Treatment Study. The purpose of the Mental Health
Treatment Study (MHTS) is to study the impact that better access to
medical treatment and employment services would have on outcomes such
as medical recovery, and ultimately employment for SSDI beneficiaries
who have a mental impairment as a primary diagnosis. The project will
provide outpatient treatments (pharmaceutical and psychotherapeutic)
and/or employment support services. The interventions will be
implemented through demonstration projects in multiple sites. SSA
awarded a contract to the Urban Institute to develop and administer a
10-member Technical Advisory Panel (TAP), consisting of experts in the
fields of psychology, psychiatry, research, private insurance, and
employment supports. The final report was issued in April 2005 and
provided recommendations for appropriate interventions for this
population. We expect to award a contract for this project this year
with enrollments starting next year.
Youth Transition Demonstration. In September 2003, to further the
President's New Freedom Initiative goal of increasing employment of
individuals with disabilities, SSA awarded cooperative agreements to
six States (California, Colorado, Iowa, New York, Maryland, and
Mississippi) for the purpose of developing programs to assist youth
with disabilities to successfully transition from school to work. These
projects are beginning their third year of operation, have enrolled 622
participants to date, and have successfully helped many youth to obtain
jobs.
Disability Program Navigator. In September 2002, SSA and the
Department of Labor's (DOL) Employment and Training Administration
collaboratively funded a 2-year pilot of the Disability Program
Navigator (DPN). As of August 2005, 267 DPNs operate in 17 States
(Arizona, California, Colorado, Delaware, Florida, Illinois, Iowa,
Maryland, Massachusetts, Mississippi, New Mexico, New York, Oklahoma,
Oregon, South Carolina, Vermont, and Wisconsin). The Department of
Labor recently announced its intention to add DPNs to 15 more States
and the District of Columbia.
DPNs work in one-stop career centers where beneficiaries with
disabilities can receive employment services. The purpose of the
Navigators is to provide a connection between beneficiaries and jobs
through the local workforce investment boards.
California HIV/Immune Disorder Demonstration Project
The purpose of the California HIV/Immune Disorder Demonstration
Project is to determine whether immediate and ongoing comprehensive
medical benefits along with employment service coordination helps to
improve the health of participants to enable them to increase their
economic self sufficiency through work. SSA plans to work with the
California Department of Rehabilitation (DOR) to provide employment
services coordination so that participants will have ongoing supports
throughout the process to facilitate an employment goal. Also, SSA will
provide DOR with a network of California medical expertise that will
provide assistance in developing employment plans that are consistent
with limitations or needs associated with the individual's impairment.
SSA will provide the funding for services provided by DOR and the
medical network.
This is the first time that such a unique approach will be tested,
i.e. Federal and State entities working collaboratively with the
medical community for purposes of helping individuals with disabilities
return to work. SSA will evaluate the impact these changes have on
beneficiaries' health, work behavior, and dependency on long-term
benefits.
We expect to begin enrolling participants in calendar year 2006.
Next Steps
As I said earlier, we published the proposed regulations on July
27. The 90-day comment period closes on October 25. Again, Mr.
Chairman, I want to emphasize my personal commitment as well as that of
the agency to review comments in the spirit that has characterized this
entire process with the expectation that there will be changes in the
final rule.
I am committed to making sure that implementation proceeds
carefully so that all claims are handled fairly and responsibly. We
expect to begin roll-out next spring in one of our smaller regions.
Just as we did with e-Dib--as we gain experience--we will gradually
roll out the process nationwide, making modifications as needed.
Conclusion
When I accepted the job of Commissioner, I made it clear that I did
not accept this position to manage the status quo. Nowhere was the need
for change more apparent than in the disability process. Therefore,
from the outset I made improving service to our disability claimants a
priority.
I want to thank everyone who has shared their views and those who
plan to submit comments. Finally, I would be remiss if I did not thank
you Chairman McCrery and Chairman Herger and the Members of your
Subcommittees for your support and guidance. Your leadership and
interest have played a significant role in our ability to get people
from all perspectives to work together. I look forward to continuing to
work with you and your staffs as we improve service to individuals with
disabilities.
Chairman MCCRERY. Thank you, Commissioner Barnhart. Lest
anyone think that my compliments to your agency for their
efforts following Hurricane Katrina and now Hurricane Rita was
some kind of blanket endorsement of all Executive agencies'
response at the Federal, State, and local level, let me hasten
to add that your agency stood out as perhaps an exception to
the rule as being very responsive. I just wanted to make that
clear. One thing that is related to this issue of getting a
determination as quickly as possible for people who need these
benefits, I understand you have talked with Ways and Means and
Finance Committee staff about a legislative proposal to enhance
your agency's ability to obtain medical evidence.
Right now, even though there doesn't appear to be any
requirement in the law that an original copy of those
documents, of the release form which would allow those
documents to be sent to the SSA, is required, there are some
providers who are insisting upon getting that. You are talking
about introducing a piece of legislation that would allow a
photocopy or some other type of faxed copy to be used by your
agency if you certify that it is a copy of the original. Is
that right, and how is that going?
Ms. BARNHART. That is absolutely correct, and it is very
important for us--and let me, if I could just give you an
example of why it is particularly important. It would be
wonderful under any circumstances to be able to encourage
medical evidence being submitted electronically, particularly
in light of the fact that so many evacuees and people who have
applied for disability may be in the process of having their
claim working through the system and we need to get additional
medical evidence. They may have left their home. They have gone
to a new location. The case was being worked in one of our
Louisiana offices or one of our Texas offices, but they could
be anywhere across the United States, continuing to receive
medical evidence. It, obviously, logistically and timing wise
can slow things down quite a bit if we have to provide that
original signed piece of paper.
Chairman MCCRERY. Great. I want to commend you for reaching
out to stakeholders in this whole issue of disability
determination. Many of the improvements in your proposal have
been generally well received, including quick decisions by
Disability Determination Specialists (DDS), Federal Medical
Vocational Expert Units, elimination of DDS reconsideration
step, creation of a Federal reviewing official (RO),
strengthened quality reviews, and the Return to Work
demonstration projects. Would you talk more though about the
collaborative efforts that you employed during this process to
try to reach a proposal that gained the widest possible
acceptance?
Ms. BARNHART. Yes, sir. We reached out to individuals and
organizations from all aspects of the disability process. I
personally conducted, I think it was 123 meetings or attended
123 meetings, where there were 58 different groups of people,
both internal and external. In fact, I am pleased to say that
with the exception of Dr. Bloch--not pleased I didn't meet with
Dr. Bloch, but pleased to say there was just the exception of
him--I actually have had several meetings with all the
witnesses in the next panel during the past year to get their
perspectives as well.
We also set up a website where individuals, and most
notably claimants, people who were working their way through
the process or who had already had the experience themselves,
gave comments and suggestions. We received over 800 of those on
our website as well. The head of our Disability Service
Improvement Organization, which I tasked with making sure that
we did adequate outreach as we developed our proposal, directed
by Mary Chatel and the Office of Disability Income Security
Programs directed by Deputy Commissioner Martin Gerry, met with
dozens more groups than I did, and had literally probably
another 100 or so meetings themselves.
Again, we did everything that we could think of to reach
out, to make sure that we were getting the perspective that
would represent every step along the way as a claim moves
through the process from beginning to end. I do want to take
this opportunity to say again that the cooperative spirit that
we found throughout every one of those encounters was really
nothing short of remarkable. Many of the people have so much
knowledge and expertise, which augments the personal experience
of claimants. It was extremely valuable that everybody came
together in a really constructive way to discuss these very
difficult and complicated issues.
Chairman MCCRERY. Do you expect that kind of collaboration
to continue prior to final regulations being published?
Ms. BARNHART. I absolutely do. In fact, as I said, the NPRM
reflects moving from a concept to a blueprint, and we made
changes, there are significant changes that were made from the
new approach as I originally described it to this Committee 2
years ago, and I certainly would anticipate that there would be
changes as we move from an NPRM to a final regulation. Just as
I indicated in my opening statement, the spirit with which I
will entertain comments, which is to look at them openly and
with great interest, and certainly with the ultimate goal being
to get the best system that we can get, I was so impressed when
I read the testimony of all the witnesses who will follow me
today, because they seem to be offering their comments in
exactly that same spirit.
Chairman MCCRERY. Good. Obviously, in developing this
proposal, you are trying to balance the desire of all of us to
get a quicker determination for people who need these benefits,
but at the same time you have to balance that with ensuring
fairness in the process, and ensuring due process rights.
Obviously, some--and Dr. McDermott talked about some issues
that he has with your proposal--and some of the witnesses on
the next panel have some concerns. We are going to continue to
look at those concerns and try to make sure the proposal that
is finally put forward is the best balance between those
competing interests. Let me give you a chance to respond to
some of those concerns that have been raised. For example,
Professor Bloch, in our next panel, suggests in his testimony
that you have given no explanation for why you propose the
steps dealing with time limits in the process. Could you
explain why you have proposed such time limits?
Ms. BARNHART. Yes. First of all, I think it is really
important to look at the entire process, and I do appreciate
that all of the Members who spoke before the hearing, at the
start of the hearing, commented on the entire process itself
and to take everything in a context. The idea was to set
expectations for timely consideration and to ensure that at
each step of the process the individual who was doing the
review was looking at the most complete record possible. Time
requirements for submission of evidence would assure that a
judge is looking at a better developed record when they look at
it, and also that they are better prepared to make a decision
based on the entire record at the time of the hearing. At the
same time, the NPRM left the judge discretion to make
exceptions and to entertain any evidence that is brought
forward at the hearing. We thought that was important, saying
we have a time limit but at the same time not trying to take
away discretion from the judge. One of the other issues, quite
frankly, is the underlying goal of this entire effort has been
to make the right decision as early in the process as possible,
which speaks to both the timeliness factor as well as to the
quality and the accuracy of the decision.
One of the problems that we have right now is rescheduling
and postponement of hearings, which affects not only the
individual who actually chooses to postpone or delay the
hearing, but also the individual who could have had that slot,
that hearing slot and didn't get to because it was scheduled
for someone else who ends up not using it. It is very important
to make sure--and not having evidence and reasons such as that
are a big reason for the rescheduling of hearings. Somewhere
around 31 percent of our hearings actually end up being
postponed. I think the numbers--don't hold me to this--but it
is something like 600,000--I can give you precise numbers for
the record--are scheduled this past year, but 189,000 were
actually postponed or rescheduled. Obviously, that is not
helpful to others who are waiting to get a hearing date and
move ahead.
Chairman MCCRERY. When you referred to a judge being able
to make exceptions, what judge were you speaking of?
Ms. BARNHART. Excuse me, sir. Thank you for reminding me to
clarify. The administrative law judge (ALJ), who continues to
hold the de novo hearing.
Chairman MCCRERY. There are provisions in your proposal to
administratively waive these time limits for, say, presentation
of evidence short of going to Federal Court and getting that
issue resolved?
Ms. BARNHART. Absolutely. In terms of the 20-day time limit
the judge can, for good-cause reasons under his or her
discretion, allow the evidence in. The same thing is true in
terms of closing of the record and the 10-day requirement for
submitting new evidence after the ALJ decision or when it goes
to the Decision Review Board. Yes, we did provide for good
cause exceptions.
Chairman MCCRERY. Mr. Sutton also recommends some changes
in this area, very specific recommendations, so I assume you
will look at those and consider those.
Ms. BARNHART. Absolutely, as I said. I appreciate every
opportunity I get to say this, Mr. Chairman, it is--we did as
long a review and comment process as we could with 90 days. We
are interested in getting all the comments from the interested
individuals, and certainly, I will consider very carefully the
recommendations that are made.
Chairman MCCRERY. One last area I want you to cover before
I turn to my colleagues. You proposed to eliminate the third
and last appeals step, the Appeals Council. Why do you think
that should be eliminated? Why do you think that step should be
eliminated to claimants?
Ms. BARNHART. Well, when you look at what happens right now
with the Appeals Council, Mr. Chairman, what you have is a
situation where people wait and--although I am pleased to say
that we have speeded up the consideration by the Appeals
Council. When I came into the Agency it was 447 days. It is now
248. We have made some progress there in terms of getting cases
through the Appeals Council.
The fact remains that only 2 percent of the cases are
actually changed, the decisions are changed after waiting that
length of time. It used to be over a year, and now it is
approaching a year. About 25 percent of those are remanded. One
of the things that I think is really important as we look at
the process laid out in the new approach, is not to simply take
the outcomes that we see at each level now, each level of
consideration now, and apply those to the new approach. The
idea is because we have included provisions to improve the
quality of the record, beefed up accountability at every step,
and in terms of the field office not being able to send the
case to the DDS until all the fields are filled out on the
electronic form. When the DDS sends it forward to the RO, the
RO can remand it to the DDS if they feel it is an incomplete
record; same thing ALJ to the RO.
The point is we have put at every stage steps that allow
for greater accountability, better documentation and
development of the record, which we think actually means that
we will end up with far fewer people going all the way through
the process. The other thing I would point out is that when you
look at the proposal in terms of the cost of the proposal as
estimated by our actuaries, essentially they came out to close
to a negligible cost, and it really wasn't an increase in
costs. It is simply because benefits would be paid sooner,
because instead of waiting all the way to the end to get a
right decision, based on the changes that we have made, the
individual would get the payment sooner in the process, so
there are no increased costs except those attributed to paying
benefits sooner, which I think lays the groundwork for the fact
that we should have less people ultimately going to the final
stage.
When they do, our final stage we think is a meaningful one
because the Decision Review Board would have the ability to
review cases of represented as well as unrepresented claimants.
They would be able to review denials as well as allowances. The
other thing I want to point out is, recognizing this is without
question I think the area the Chairman has really hit on,
probably the areas of greatest debate and discussion during the
outreach period, quite frankly, when we were talking to
individuals and groups, was this whole elimination of the
Appeals Council. Based on the concerns and the discussion that
we had, what you will notice in the NPRM, we have provided for
a phased-in rollout. In fact it is our intent that we would
start in one of our smallest regions first, that we would
review 100 percent of the cases coming out of the ALJs before
making them final, and it is specifically to allow us to do the
kind of analysis and monitoring that we feel is important to
ensure that we are getting the outcomes that we are expecting
as opposed to unintended consequences.
Chairman MCCRERY. Will this phase in take a long enough
period of time so that after, say, Phase I, if you discover
problems, you will be able to come back and adjust the program,
thereby kind of satisfying one of Judge McKibben's suggestions
for a pilot program? It sounds to me like your phase in is
tantamount to conducting a pilot program before implementing it
nationwide.
Ms. BARNHART. Yes, sir, we are phasing it in very
gradually. In fact, I would anticipate that we would do one
region probably the spring of next year, because my intent
would be to hopefully have final regulations published by
January or so of this year. I am not a believer in regulations
becoming effective the moment that they hit the street, so to
speak, so I would like to allow some time for the effective
date, and then probably start in a region in April or so of
next year if I can, one of our smaller regions. I would
envision that region being the only region that would implement
this for probably a year. Then we would stand back, take a look
at where we are, make adjustments as the Chairman describes,
and then move on to maybe one region next, and possibly at the
end of the second year, a third region. I actually see a multi-
year process in terms of the rollout of the new approach,
absolutely. We are not talking about doing one region, and then
all of a sudden the next year doing everybody. The model, quite
frankly, if you look at what we did with electronic disability
in terms of the rollout there and how we made adjustments as we
moved along, it wouldn't move as quickly as electronic
disability, but it would be that model, just an extended
version of that model.
Chairman MCCRERY. Thank you. Mr. Levin?
Mr. LEVIN. Thank you very much. In my opening statement, I
mentioned a series of concerns, three of them--the appeal
issue, the beneficiary rights issues, and also the evidentiary
record issue. Let me start with one of them, and I am going to
stick within 5 minutes. I think the Chairman might insist on
that anyway. Then others can pick up these other concerns.
Let's take the evidentiary issue, the appeal process. The
proposed limitation would apply to what would be, what, the
third step of the process?
Ms. BARNHART. It would be the third step of the process,
the DDS, the RO, and then the ALJ, yes.
Mr. LEVIN. Now, what percentage of the cases more or less
goes to the ALJ?
Ms. BARNHART. If I could describe it a little differently
than that, I have some numbers I think may make it clear. If
you look at initial claims and you take a hundred cases, Mr.
Levin, the number that go to the second level, which is
reconsideration, is 22. Twenty-two out of the 63 that are
denied at the first level move on to the DDS level. Of those
22, 19 move on to the ALJ level of appeal.
Mr. LEVIN. Of the hundred cases----
Ms. BARNHART. Sixty-three are denied at the first step by
the DDS, 37 allowed. Of those 63, 22 of those appeal for
reconsideration. Of those 22, three are allowed, 19 are denied.
Nineteen appeal--virtually all appeal to the next stage.
Mr. LEVIN. Now, in what percentage more or less of these
cases is there an attorney, do you know?
Ms. BARNHART. In terms of representation?
Mr. LEVIN. It doesn't have to be an attorney.
Ms. BARNHART. Representation in general for--I can give it
to you by Title 2 as well as SSI. In Title 2 it is 74 percent
are represented. The vast majority of those are attorneys, I
would point out. I don't have that breakout for you, but I can
get that for the record. For SSI, 47 percent are represented.
[The information was not received at time of printing.]
Mr. LEVIN. Now, is there any evidence now of a problem with
submittal of evidence? You are changing the rule. You are
proposing to change the rule, and what evidence is there that
it is now a problem?
Ms. BARNHART. Well, it is not a matter of what--I cannot
categorize the evidence for you, Mr. Levin, but I do know that
based on the number of postponements and rescheduling of
hearings that are requested, a number of them the request is
made because of things other than a no-show, for example, by
the claimant. I think the issue here was really to try to
ensure that when the ALJ at the hearing was considering the
case, that they had all the information so they would make a
good decision, quite frankly, as opposed to just being hit with
things at the hearing, that they would have it in advance, that
they would be able to make a good consideration, and know what
questions to ask and be able to pursue the case properly.
I think one of the things that it is important to keep in
mind is this: There were many who recommended that we have an
adversarial process. On its face I rejected that because I
don't think that is appropriate. I dare say most Members, if
not all, of these Committees would say the same thing, because
our job is to make sure the people who are entitled to
benefits, according to the law as passed by Congress, actually
get those benefits, not to make sure that we are presenting the
best case we possibly can for our position. I rejected the
notion of having an adversarial process, and the time limit
that is prescribed in the NPRM really, it is done with the
intent of trying to make sure that we have all the evidence at
the ALJ hearing so that the ALJ can consider the record to the
fullest extent. Obviously----
Mr. LEVIN. Let me just ask you, a 20-day limit, the
requirement is different than having all the evidence before
the ALJ. If it comes in 10 days or 5 days before----
Ms. BARNHART. Let me say, Mr. Levin, if I may, that 20 days
is what we put forth in the NPRM. I am very interested in
hearing the comments of others who have alternatives to
suggest. I would certainly consider those very carefully. The
intent behind the 20 days, which is one of the reasons I
appreciate this hearing being held today, is to express--be
able to explain intent, and it was actually to make sure that
all the evidence to the extent possible is made available to
the judge for thorough consideration.
Mr. LEVIN. Others will bring it up. Just very quickly, you
consulted widely. Did you talk with groups of employees within
SSA about--did you draw on their experience?
Ms. BARNHART. We did. We had meetings with DDS examiners.
We had meetings with claim reps. We had meetings and talked to
our union representatives. There were a number of different
meetings.
Mr. LEVIN. Thank you. Thank you, Mr. Chairman.
Chairman MCCRERY. Mr. Herger?
Chairman HERGER. Commissioner Barnhart, first I would like
to thank you and your staff for all your hard work,
thoughtfulness, and persistence in developing the proposed rule
we are discussing today. In addition, the many organizations
and groups who met with you, discussed the proposed rule with
Committee staff, and submitted written comments are to be
commended for their contributions to the process. Now to my
questions. One, could you please give us additional information
about how implementation of the proposed rule will help ensure
the accuracy and consistency of decisions in the disability
determination process? Do you expect to see a reduction in
fraudulent claims and overpayments due to these changes?
Number two, I am particularly interested in your work
opportunity initiative. Could you please explain how your
initiatives differ from previous return-to-work projects, when
you expect to evaluate your initiatives, and what results have
been achieved so far? Do you think an improved disability
determination process will affect work rates in the SSA's
disability programs?
Ms. BARNHART. Mr. Chairman, I will do my best to respond to
all those in less than 5 minutes. If I run up against it, I
promise you I will submit answers, elaborations for the record.
I want to say first of all, with respect to accuracy, the NPRM
contemplates an entire revision of our quality control process
to create an inline quality assurance component as well as a
centralized as opposed to regional quality control mechanism,
which obviously I know you are very familiar with the
preaffectuation reviews that are conducted. I believe having a
centralized unit where we can actually direct that from one
place in terms of those preaffectuation reviews being conducted
and so forth will do a lot for improving consistency and,
therefore, ensuring that the people who should be getting the
benefits and are entitled are getting them and those who aren't
do not.
The same would be true in terms of overpayments and fraud.
I do believe that we would be in a situation by improving the
decisionmaking all along, we would have a much higher
confidence level, quite frankly, in the accuracy of our
decision because we have a better developed record, we have
accountability at every step. Ultimately that should reduce
overpayments, quite frankly, Mr. Chairman. I would anticipate
taking whatever concepts that we can in terms of the quality
and the accountability and applying those to the Continuing
Disability Review (CDR) process as well so that we can ensure
the same kind of high-quality decisions made in our CDR process
as in the initial determination.
With respect to the work opportunity initiative, I assume
you are talking about the demonstration projects that are
included as part of the new approach, and we are very pleased
with those. We think we touch on some very important concepts
that can be instructive for these Committees as you look ahead
to the direction the disability program might and ought to go
or could go in the future. We believe that, for example, what
we are doing related to the accelerated benefits demonstration,
which would allow individuals to--essentially it would waive
the 24-month requirement and allow people to get health
benefits immediately if there is a great likelihood that their
health condition could improve if they received benefits right
away. I know that that is something that Members of these
Committees had asked me about in the past in either individual
meetings when we have sat down, sometimes at hearings. I
believe we have a Member who has actually introduced
legislation looking at that whole 24-month waiting period, and
so we would hope that we would have some good information that
could guide the Committee and be helpful in your work in the
future.
Chairman HERGER. Thank you.
Chairman MCCRERY. Dr. McDermott?
Mr. MCDERMOTT. Thank you, Mr. Chairman. As I was reading
the testimony of some of the people who will follow you, I had
a similar feeling to some of their comments that the people who
will do well in the system are those people who have a lawyer.
Absent a lawyer, I tend to think these people are going to fall
by the wayside one way or another and be denied over and over
again, partly because they cannot get their act together. Part
of disability is that maybe your act is not together in the
first place. The question then is: Is it your intent to make
this basically a legal procedure or an administrative procedure
by which people will receive their benefits? It goes to the
question ultimately of why is this a better system than what we
have now. What have you done in it that really makes it better
for the disabled to come and present their case?
Ms. BARNHART. Thank you for that question, Mr. McDermott. I
think we have done a number of things that make it better for
the person with disabilities and claimants to present their
case. One is that the new process is more transparent than the
current process. You have spoken to the complexity of the new
approach. Well, the current process is certainly not an
uncomplex process itself. We require that the DDSs provide a
better explanation of their decision. The ROs have to provide a
better explanation of their decision, which will be made
available to the claimant, which obviously assists them as they
make the decision to move on to the next step or not.
Mr. MCDERMOTT. In the present system, it is just a simple
denial?
Ms. BARNHART. That is right, basically, or pretty much
boilerplate, not----
Mr. MCDERMOTT. This time you have to write down----
Ms. BARNHART. You have to explain----
Mr. MCDERMOTT. --what the basis is for your decision.
Ms. BARNHART. Correct. Correct, and I think that will help,
makes it more transparent. One of the complaints that we heard
repeatedly from claimant organizations and claimants themselves
is that the DDS reconsideration level of review, nothing
against our DDSs, but it ends up being a rubber stamp because
they are reviewing themselves, quite frankly. I think that is
not unexpected, and that is why 85 percent of the cases remain
the same decision they were when they went through the initial
consideration.
Having a Federal review, a centralized Federal review that
does not allow for variation from State to State or DDS to DDS,
has been a concern of this Committee and the Finance Committee,
obviously, for many years. I think by having the right set of
medical eyes looking at the evidence--and this, if I may say--I
have told the Committee this before. I don't get a lot of phone
calls at home, but I do get phone calls at home from disability
claimants. I am one of those old-fashioned people who thinks if
you are going to serve the public, then your name should be in
the phone book, and mine is. Usually when I get them, I get
them late at night, and I do want to say that all the
individuals whoever called me have been extremely polite and
thoughtful and apologize profusely for interrupting me at home
saying they know I have a family, too.
When they call me, it is almost in desperation, saying,
``You don't understand. Here is what happened. I have this
extremely unusual condition or disease, and the doctor who
looked at it and made the decision has no background in this
particular''--and you know how there is increasing
specialization in the medical profession. They have made the
case, saying, ``Please, please, all I ask is just have a doctor
who has experience with this kind of case take a look at the
evidence and see what their insight says as opposed to someone
who doesn't have that.'' I actually think we have done a number
of things to try to improve the process for the claimant. With
regard to the issues in terms of--I guess I would call them
more procedural kinds of things that the Committee is choosing
to focus on, and rightfully so because people do not talk about
the things they are happy with. They talk about the things that
they are concerned with. Again, I just want to re-emphasize
that I welcome comments. I will consider them very carefully.
Mr. MCDERMOTT. Can I go to just one other issue that my own
experience tells me I want to think about? When you have gotten
a panel together, panels tend to have a certain mind-set, or
you get on a panel because you have a certain mind-set. I have
watched lots of industrial injury cases. I did lots and lots of
those in my practice, and the whole question of the attitudes
of the people, are we a giver of benefits or are we a denier of
benefits? You have now got this panel, and those are the ones
you are going to face, and it is going to be the panel in the
3rd District or the one in Seattle or whatever. Who chooses
them? How are they reviewed? What is the process by which you
choose these experts that become the panel?
Ms. BARNHART. You mean in terms of the Federal Expert Unit
(FEU)?
Mr. MCDERMOTT. Yes.
Ms. BARNHART. Well, we have actually asked the Institute of
Medicine to make recommendations to us about the standards that
should be required for physicians who would make judgments on
various cases, and I am meeting with them in October. They are
going to provide a report to us in November, and I would hope
to have standards published within 6 months of the effective
date of the regulation. I am not sure that I am answering your
question, sir. Is that what you were interested in?
Mr. MCDERMOTT. Yes, giving me the direction to think about
how you are going to put those panels together, at least what
pieces of paper they have to have on the wall to be qualified
to sit on the panel. That gives me at least a start.
Ms. BARNHART. The idea is that the----
Mr. MCDERMOTT. The Institute of Medicine is the one that
you think will make those decisions.
Ms. BARNHART. Well, they are actually going to make
recommendations to me, and then I will issue standards. We felt
it was important to go obviously to a respected entity asking
for guidance on that as opposed to simply just--and physicians,
as opposed to having non-physicians making those
determinations, because we really are seriously committed to
making sure that we improve the quality of the medical review
that is taking place.
Mr. MCDERMOTT. I guess the question always comes: Is the
job of the panel to save money for the system or is it--
whatever it is.
Ms. BARNHART. Let me say--let me say, cost has not been the
driving factor. Saving money has never been one of the goals. I
can honestly tell you, all discussions, the goal has been--and
as I said, if you look at the estimate that our actuary did, it
actually shows that increases cost around $1.2 billion over 10
years, I believe, an average of $120 million a year, which is
considered negligible in a program with a $550 billion budget
when you look at all of Social Security. The goal was to make
the right decision as early in the process as possible. That
really has been the driving goal here.
Mr. MCDERMOTT. Thank you, Mr. Chairman.
Chairman MCCRERY. Thank you, Dr. McDermott. Mr. Beauprez?
Mr. BEAUPREZ. Thank you, Mr. Chairman. Madam Administrator,
it is good to have you in front of us today. I think you just
answered one of my questions. Simply put, I guess the objective
of all of this is to get the right answer as quickly as
possible, pay the benefits as appropriate, and if for some
reason the claimant feels aggrieved, get a decision on that as
well, as quickly and as accurately as possible.
Ms. BARNHART. That is correct.
Mr. BEAUPREZ. Let me pursue that, then, for just a little
bit, and only to play devil's advocate, because, frankly, I
think I on balance agree with the objective. The whole
consideration of a staged rollout or pilot project working with
a smaller region--and I think you said that you would
anticipate perhaps final rulemaking around the 1st of the year,
a rollout of an initial project sometime later into 2006,
spring perhaps, and then maybe that would be--that first phase
would be a year-long or so process, and then step by step from
there on. Again, on balance, I think I agree and accept the
premise, but that seems like for the number of people that we
have out there, still kind of the multitudes that could utilize
a new and improved process, is there a way to reach that same
objective but perhaps get there even quicker?
Ms. BARNHART. Well, one of the things that we have invited
comments on specifically in the NPRM is the idea of the timing
of implementing the quick decision units. We contemplated going
from one place to another, but we recognize, as you are
pointing out, Mr. Beauprez, that there are some aspects of the
NPRM that might actually lend themselves to moving ahead sooner
across the board. Quick Determination Decisions is one of the
things that comes to mind. We have specifically invited
comments on those kinds of things, and I am hopeful that we
will receive some recommendations and ideas about what others
believe would lend themselves to quicker implementation.
Mr. BEAUPREZ. Well, I am very concerned about that whole
issue of unintended consequences, so I am sensitive to that and
would, I guess, again, on balance, encourage you to go forward
with some caution. At the same time, people that are applying
for these kind of benefits have a rather critical need. Time
and accuracy is obviously critically important if you happen to
be that individual.
Ms. BARNHART. I could not agree with you more. In fact,
other Members of the Committee who were here a few years ago
when I first testified--I guess it is almost 4 years ago when I
was first in this job--are familiar with the 1,153 days that I
talked about it taking in the best worst case. If you go
through every level of appeal and you got optimum numbers based
on what we were producing at the time, it would have taken
1,153 days. Right now, last year we had improved that by about
104 days. It is not--one of the points I do want to make is it
is not like we are sitting and doing nothing even in the
current system. I anticipate that now, based on where we are
with electronic disability, the fact that we have 49 out of 50
States, 54 DDSs, because we have many territories involved
already, and New York is the remaining State to come up under
electronic disability and is scheduled for January of 2006, we
will be seeing that number improve, what is now a thousand
whatever, improve even in the intervening years as the new
approach rolls out because the 100 days that we have spent
looking for files on average, we won't be spending; the 60 days
that we spent on average mailing files back and forth from one
location to another, we won't be spending.
Believe me, we have implemented centralized screening. We
have done a number of things, and we constantly come up with
other ideas. I said from the very beginning, when I first spoke
to people inside the agency, it is not going to be one single
thing--there is no one single thing, even this one approach,
this one new approach, that is going to fix the disability
process and help us provide better service. It is going to be
the combination of some very big things like the new approach,
but also a number of smaller things that we have done and
continue to do. Please understand, we are not waiting for this
to happen and doing nothing in between. I would be delighted to
submit for the record all the activities that we have
undertaken to improve the timeliness and the process.
[The information was not received at time of printing.]
Mr. BEAUPREZ. Well, I applaud the effort and certainly look
forward to your progress. I yield back, Mr. Chairman. I see my
time is about to expire.
Chairman MCCRERY. Thank you, Mr. Beauprez. Mrs. Tubbs
Jones?
Mrs. TUBBS JONES. Mr. Chairman, thank you. Madam
Commissioner, so happy to have you here once again, and I
invite you back to Cleveland anytime. I just want you to think
about--and in my background, I was a municipal court judge
where I used to do traffic cases, and we tried to do 85 or 100
in a morning. Then we would do small claims cases. Then in the
general jurisdiction court that I was in, we would have
unbelievable dockets doing cases. Clearly, the people who were
represented by counsel managed the process a lot better than
the ones who were not. If, in fact, you decide to implement the
changes that you have, not only should you say that it is
within the discretion of the administrative judge to extend the
timelines, it should be part of their training that where
someone is unrepresented, they are required to give them the
benefit of the doubt. You can say to someone, okay, you have
the discretion, but when they are looking at 200 cases on their
docket, the discretion kind of leaves. Okay, flop that one out
and move on to the next one.
I am not being accusatory of administrative judges. I know
they have a lot of work and they do a decent job. I know a
whole bunch of them back in my area. It should be part and
parcel, if you are going to implement these new changes, that
there specifically be something that says to them that in this
instance you should favor giving an unrepresented person an
opportunity for an extension. I was just telling my staffer
that seeing how we have a little time left, I may even host a
hearing in Cleveland to allow my disability people, before the
deadline, to come forward and give me any ideas or suggestions
that they might have. For purposes of today's hearing I want to
focus on a particular area. In 1999, SSA identified
approximately 130,000 SSI recipients who appeared to be insured
for Title II disability insurance benefits based on their own
earnings, but were not receiving Title II benefits. Through
2004, additional cases have been added to this list. Some of
these beneficiaries have entitlements dating back as far as
1973. The SSA has identified these cases and put them in a
special case file called Special Disability Workload (SDW).
What is the net effect of this on the SSI recipient, and do
they remain eligible for SSI? Secondly, is there some sort of
windfall offset? If so, what does that mean in dollars and
cents to the recipient?
Ms. BARNHART. Okay. You have asked several questions. First
of all, yes, you are speaking about what we call the SDW?
Mrs. TUBBS JONES. Yes.
Ms. BARNHART. In every case, they do not necessarily remain
eligible for SSI because it depends on the amount of Title II
benefits that they are receiving. There are some issues--and,
in fact, there are some individuals who are concerned about
that because as they make the move, although they may be
getting more money and moving to Title 2 benefits and getting
Medicare, they no longer get Medicaid. This has been a concern
that has been expressed to me, but it happens to be the way
that the programs operate. As far as your first question, not
necessarily. They do not necessarily maintain their SSI
eligibility. I am sorry. I apologize. What was your second
question?
Mrs. TUBBS JONES. Is there some sort of windfall offset? If
so, what does that mean in dollars and cents to a recipient? In
other words, with a different determination.
Ms. BARNHART. It actually depends. It depends on the
circumstances. We have identified people who we believe could
be eligible, and we are working our way through those. My
understanding is that the so-called windfall ranges
significantly. In some cases, it is thousands of dollars. There
is no question about it.
Mrs. TUBBS JONES. I am not expecting that I am going to get
all of these answers right here. If you could have someone
follow up with me, I would appreciate it.
Ms. BARNHART. I would be happy to. I could submit it all
for the record, all the information that we have.
[The information was not received at time of printing.]
Mrs. TUBBS JONES. Secondly, do these new regulations apply
to those SDW cases? I used to work for Equal Employment
Opportunity Commission, and so we used to ``rocket the
docket.'' That was the expression that we used in some cases,
and they would be set aside and be dealt with differently, and
new regulations would not apply. Are the new regulations going
to apply to these SDW cases?
Ms. BARNHART. I am glad you asked that question. The new
regulations apply only to people who apply for disability after
the regulation comes into effect in a particular region. Not
only do they not apply to those who are currently in the SDW
group that we are looking at, but they do not apply to anyone
who has already applied for disability. It would continue to
apply after the time it rolls out in a region.
Mrs. TUBBS JONES. Okay. Apparently, these SDW cases were
first addressed in 2001. They were suspended in November 2001,
resumed in 2002, and they are divided by SSA region. Your
guidelines state that SDW cases are priority cases and will not
be backlogged or staged. Do you know how many--can you have
somebody let me know how many cases of these type of cases
remain unresolved?
Ms. BARNHART. Yes, I can absolutely do that.
[The information is pending.]
Mrs. TUBBS JONES. Okay. Of the 260,000 cases that have been
identified nationwide, 45,000 are in Region 5, which includes
Ohio. It appears that you have been doing a pretty good job of
having completed 27 percent of them so far.
Ms. BARNHART. We actually had a plan to have them all
completed by 2007, if I could just interject here.
Mrs. TUBBS JONES. Sure, please.
Ms. BARNHART. I know many Members on these Subcommittees
have supported our budget request over the years. We did not
get all the money we requested in the budget, and so for that
reason, we weren't able to work the cases down as quickly as we
would have liked. We actually have cadres of individuals doing
them all over the country, and we have set goals for every year
to try to finish this workload as quickly as we can. I must
say, in all candor, at this point our plan has us completing
work on the cases in 2010.
Mrs. TUBBS JONES. What I would ask again, as I talked about
in the earlier part of my questioning--I am sorry, Mr.
Chairman. I did not read the clock. I promise I will be done
with this. I did not watch the clock. I would hope that, again,
when you start talking about processing specialized cases and
the need to resolve them that your people would keep in mind
the people who are unrepresented, and even though they are
anxious to get a resolution, most of them would prefer that it
take a little longer time than to get a determination that they
are not eligible.
Ms. BARNHART. Let me just say I appreciate your comments
about the unrepresented individuals who come before us, and I
do think that one of the pieces of legislation that this
Committee supported in the Social Security Protection Action
(P.L. 108-203) was to allow attorney fees to be deducted for
SSI claimants in the same way that they are for Title II. That
is a relatively new provision. I would fully expect that as
that provision plays out, we would see representation of people
who are applying for SSI benefits to increase over time. The
other thing I want to say is this: I am very sensitive to the
whole notion that the outcome is generally more favorable if
you are represented as opposed to if you are not represented.
One of the things that we would be looking at at each step of
the quality review that we would do would be unrepresented
cases specifically, which I believe would allow us to see the
effects of the new approach and take whatever remedial action
was necessary to improve the situation.
Mrs. TUBBS JONES. Thank you. Mr. Chairman, thanks for your
indulgence.
Chairman MCCRERY. You are quite welcome. Mr. Pomeroy?
Mr. POMEROY. Thank you, Mr. Chairman. Madam Commissioner, I
admire your managerial competence and focus, trying to get
things running right, and to the extent that efficiency might
at least give rise to a conversation about making certain that
rights are fully protected and opportunities fully preserved.
This kind of dialogue is an important part of the process. I
wish we had you cloned and another part of you over at the
Federal Emergency Management Agency and Homeland Security.
[Laughter.]
As we look at the whole Hurricane Katrina aftermath, are
there things you have learned about redundancies in records and
such that ought to be implemented systemwide to make certain
that we don't have some catastrophic loss of records in a
natural catastrophe or a terrorist catastrophe?
Ms. BARNHART. I am so glad you asked that question, Mr.
Pomeroy, because one of the things we learned is that we saw
the value of electronic disability, immediately. If I could
give you just an example: As you know, the paper disability
cases, as we have discussed, that I visited in for the last
year----
Mr. POMEROY. Right.
Ms. BARNHART. --are sometimes 8, 12 inches tall. In
Mississippi, because in the Louisiana DDS, we actually had over
5,500 disability cases pending at the time that Hurricane
Katrina hit. We were able to access over 1,900 electronic
disability cases immediately, and to assign them right away,
because, as I am sure you can appreciate, we were not allowed
to enter the DDS, which was in the flooded area for several
days to go in and actually get the paper cases out. We did
eventually, I am happy to say, retrieve all the paper cases,
but it was days later, and there certainly was every
possibility we might not have been able to in another
circumstance.
Mr. POMEROY. You have system backup? You have the
electronic files----
Ms. BARNHART. Yes.
Mr. POMEROY. --aren't just on site?
Ms. BARNHART. Yes.
Mr. POMEROY. They are somewhere else?
Ms. BARNHART. Yes. They are, and the other thing that is
important, and I am delighted to have the opportunity to point
out, is that we are proceeding very carefully as we roll
electronic disability out before we convert to absolutely
relying on the electronic case itself. We maintain a paper
folder and an electronic folder for the first several months,
and we have a validation process that we go through, where we
look at the paper folder. We look at the electronic folder to
make sure that everything that should be in the electronic
folder from the paper folder is in there. So far, we have had
six States pass the validation--we have only done it in six
States. As I say, we are moving in a measured way. South
Carolina just yesterday was certified in what we call IDA,
which stands for Independence Day. When the staff told me they
had named it IDA, I thought it was for Ida Mae Fuller, our
first Social Security beneficiary, but it was actually for
Independence Day. We will have six more States before the end
of FY 2006.
Mr. POMEROY. Now, this whole move to the electronic format
is not really pioneering. Essentially, you are replicating now
in these vast SSA claim settlement procedures which have long
been totally electronic in private sector claims adjudication
as part of this; is that right?
Ms. BARNHART. That is right. That is right. I do feel
compelled to say, though, that because of the nature of the
work we do in disability and the amount of medical evidence
that we collect in every case, when electronic disability is
fully implemented, we will have the largest repository of
medical records in the entire world.
Mr. POMEROY. I didn't mean to suggest that it is not a very
important initiative. I just mean this isn't experimentation?
Ms. BARNHART. Oh, no. Oh, no. I should say electronic
medical records. No, we didn't feel it was experimentation on--
I am sure what you are alluding to, and I appreciate it, is the
fact that there were some who thought that perhaps we shouldn't
have moved ahead as quickly as we did. I think what has been
proven is that actually we have done so in a very measured way.
We have made adjustments as we needed to. We weren't plowing
entirely new fields. No, if that is what you are asking----
Mr. POMEROY. Right. Right. I do want to ask you about the
ALJ list and how that is coming, because I view that as
something that is very important for this Committee to ask you.
We understand that that is out of your control. That is in the
Office of Management and Budget, I guess.
Ms. BARNHART. Personnel Management.
Mr. POMEROY. Personnel Management. Can you tell me when was
the last time the list of eligible ALJ personnel, personnel
that might be eligible for consideration for hiring as ALJs.
When was the last time that list was open?
Ms. BARNHART. I may be wrong within a year or 2, but I
believe it was almost 10 years ago, Mr. Pomeroy.
Mr. POMEROY. Anyone within the last 10 years that might
graduate from law school or from their practice develop a
particular expertise that they want to apply in an adjudicatory
role, they haven't been able to even have been considered?
Ms. BARNHART. That is my understanding.
Mr. POMEROY. Yes. Now, how many ALJ positions are open? I
know headway has been made at bringing more on.
Ms. BARNHART. We hired 100 last year. We hired 100 this
year, and again I want to thank this Committee because without
the work of the Members of this Committee, I frankly wouldn't
have been able----
Mr. POMEROY. How many short? I am sorry. It is just my time
is running out.
Ms. BARNHART. We are about--we think that we are about 100
to 150 short still. That is only because we continue to lose.
For every 100 we hire in a year, we lose another 30 or so. We
net about 70 when we hire 100 that we keep over time.
Mr. POMEROY. Are you aware of any rationale whatsoever that
would freeze opening of that list?
Ms. BARNHART. Well, my understanding is that based on the
lawsuit that took place, the Azdel litigation, that the Office
of Personnel Management now has to recast the entire test and
the factors for eligibility. They have not developed a test
yet, and then once they develop the test, they have to test it,
pre-test it----
Mr. POMEROY. Yes. When was that ruling decided--and this is
my final question.
Ms. BARNHART. Over 2 years ago, Mr. Pomeroy.
Mr. POMEROY. They have had some time to do all this. Mr.
Chairman, I would think the Committee may want to inquire in
terms of how the Office of Personnel Management is coming at
the creation of criteria to get a new list established. I think
a legislative prod to this group would be most helpful. Thank
you, and I yield back.
Ms. BARNHART. Thank you. I appreciate that.
Chairman MCCRERY. Thank you, Mr. Pomeroy. Mr. Neal?
Mr. NEAL. Thank you, Mr. Chairman. Like the other members
of the panel, Ms. Barnhart, we want to congratulate you for the
focus you have brought to this task. Certainly, moving the
electronic files should prove to be a tremendous help in the
overall goal of what we are trying to accomplish. Do you think
it might make some sense to slow down the implementation of
this regulation just long enough to assess whether or not
electronic filing can address the problem on its own?
Ms. BARNHART. I actually think that--and I said from the
very beginning--that improving the disability process would
require a successful implementation of electronic disability,
because there are many things in this new approach that I
wouldn't be able to do absent electronic disability. I wouldn't
be able to have, for example, a centralized quality control
unit. I wouldn't be able to have centralized reviewing
officials that could be supervised in one place, getting one
direction from one leader, and so on, which I think are really
critical to improving the accuracy of the decisions all the way
through the process. I don't believe--I believe there are gains
we can make from electronic disability in and of its own right.
I think there are ways we build on electronic disability in
this new approach. I don't believe that there is anything that
would prohibit us from moving ahead in the same prudent and
deliberate manner that we moved ahead with the electronic
disability process, quite frankly.
Mr. NEAL. Would there be some trade-offs for the claimants
as we proceed in this direction?
Ms. BARNHART. Some trade-offs in terms of--I am sorry. I am
not----
Mr. NEAL. Would there be some trade-offs to the claimants
as we move to electronic filing?
Ms. BARNHART. Oh, trade-offs for the claimants?
Mr. NEAL. Yes.
Ms. BARNHART. I think the claimants are already seeing the
benefits. I really see benefits accruing to claimants through
the electronic filing.
Mr. NEAL. No downside?
Ms. BARNHART. I don't see downsides. That doesn't mean that
something can't pop up. We certainly haven't identified any,
because frankly, it allows us to track their case better; as I
say, not to have delays because we can't manage where the case
is or the mailing issue. It allows us to make sure that when
the initial interview is done with the claimant in the field
office, we get as much information as we possibly can, and that
we need to so when it gets to the DDS, they are not spending
all this extra time going back and trying to get information
that should have been gotten at the prior stage. I really don't
see downsides, I would be interested in hearing them, because I
am not aware of them.
Mr. NEAL. New England would be a great place for you to
start next spring, if you wanted to find a test case. It is
very compact, and you can travel across it quite easily.
Ms. BARNHART. I am well aware of that, Mr. Neal.
Mr. NEAL. Okay.
Ms. BARNHART. Yes. I appreciate that, and we have a great
regional commissioner up there, too, Manny Boz. I am sure you
know him. Thank you.
Chairman MCCRERY. Thank you, Mr. Neal. Mr. Becerra.
Mr. BECERRA. Thank you, Mr. Chairman. Commissioner
Barnhart, it is a pleasure to see you again and just right off
the bat, kudos for the steadfast effort to just move us
forward. I think if nothing else, we have to applaud you for
just keeping it going. I remember a few years back, we were
talking. We all had ideas, but you have been good enough to at
least put them in writing. I know that some of us have some
concerns, but I think it is very important to say to you thank
you very much for moving the ball. There is a lot of dust that
gets kicked up, but certainly the ball is further down on the
yardage line than it was before. Thank you very much for that.
Ms. BARNHART. I appreciate that.
Mr. BECERRA. I want to make sure I acknowledge the Chairmen
of the Committees as well and also Representative Shaw, who was
previously the Chairman of the Subcommittee on Social Security,
because they, too, have been diligent in just moving this
forward, and I want to thank the Chairman for this. I think we
are making progress. I will tell you this, because most of the
comments have been made, and I think you have made a good faith
effort in trying to respond. This is a concern I see with some
of the regs as I read them. Rather than move toward a system
which has always been based on truth seeking, informality, a
non-adversarial process and making it better, for the most
part, individuals who aren't that well heeled, and, in many
cases, are in desperate need of some assistance through these
programs, that we might formalize a process too much. If the
greatest success we see from these new regs--and, by the way, I
am about to say something about attorneys, and I am one, so
nothing against attorneys--but if the greatest success we see
is a dramatic increase in the hiring and retention of attorneys
to handle these adjudications, then I don't know if we have
succeeded, because we have just made it much more difficult for
those individuals who are seeking these benefits to actually
exist, because there goes a good chunk of their money.
Now, in many cases, an attorney will be needed because
cases can get complicated. To me, the issue here is too often
we had an adjudication process where there was inadequate
evidence. Evidence got left out. The claimant didn't prepare a
good case. Evidence came out later than the hearing, or during
the process it came out a little late. Maybe it was the
claimant's fault. Whether or not it was the claimant's fault,
it was always my sense that we tried, from the government's
perspective, to run this system saying, claimant we are going
to give you every opportunity to prove that you are entitled to
these benefits. If you can't prove it, you are going to be
denied, but our conscience will be clear that we gave you every
chance to do so because it is going to be a truth seeking
process that is informal. We will not be your adversary in it.
My concern--and I say this with some cautionary note, and,
again, recognizing that I mostly appreciate what you've done,
because you moved the ball forward, as I said--I don't want to
see it turned into an adversarial process, where it is similar
to a court process.
Ms. BARNHART. Let me just say I don't, either. It was not
my intent, as I said. There were those who recommended
repeatedly that we needed to move to an adversarial process. I
felt that was absolutely a supposition, a suggestion, that
should be rejected on its face, because I, too, agree that our
job at SSA is to make sure people who are entitled to benefits
get the benefits that they are entitled to.
Mr. BECERRA. I think 150 percent that you are telling me
what you personally feel. For example, let me give you a
concern I have: Why close the record so quickly, 20 days before
the hearing, on someone who is probably having difficulty co-
existing? I know there are opportunities to still do more
during the adjudication itself, but unless we feel that these
folks have retained an attorney and are actually going to be
prepared to make sure that 20 days before a hearing, they have
done everything they can to get the evidence forward, we may
create a stumbling block there.
Ms. BARNHART. Certainly the intent is not to close the
record prior to the hearing. There is an intent to close the
record after the ALJ decision is rendered. That is an area
where I appreciate comments that would help us clarify as we
move ahead in this process. As I explained, and I am not sure
you were here at the time I explained, we did provide
discretion to the judge to accept evidence at the hearing,
because the intent was really----
Mr. BECERRA. See, Commissioner, the difficulty I have with
that is that now we are sort of--the doors are closing on the
claimants; whereas, before we left them open, and if they are
so open that they have no excuse for having failed, then it is
not our fault. If we set up these more rigid standards and I
think a lot of folks will be legitimately able to claim that
they were not versed in the process, and unless they hired an
attorney, which they didn't have money to do so, they were not
going to be fully prepared. That is the concern I have. I fully
appreciate what I think the intent of that regulation is to
require the evidence in advance, because too often folks walk
in with the evidence the day of the hearing. We don't want
that. Absolutely.
Ms. BARNHART. Right. Right. Right.
Mr. BECERRA. I know my time has expired, so, Mr. Chairman,
let me just say this: I think where I have the most concern is
in not allowing the record to be reopened again and instead
calling for a reapplication by the claimant if things fail. I
think that is--to me, it is almost a fatal mistake, because you
have now made everyone go back to step one, and, see, that to
me is not an informal non-adversarial process. To me, what we
should be doing is saying if you failed, you failed and it was
your fault; and, if it is your fault, don't blame us. We kept
the doors open as long as we could. I think that is the way we
should always handle this, because we are not talking about
someone who is suing someone else because of a land grab. This
is not the People's Court where television selects the most
juicy cases. These are individuals who are saying, ``I am
disabled.''
Ms. BARNHART. Absolutely.
Mr. BECERRA. Or ``I need assistance.'' We shouldn't force
them to sort of play the People's Court. I would just urge you
that--and I say this knowing how much work you have done. I
just say that as you continue--and I think in very good faith--
moving forward some regulations that we just try to keep
working and make sure that we have kept this a non-adversarial,
as informal, and as much a truth seeking adjudication process
as we can versus an adversarial, litigious process.
Ms. BARNHART. If I may just say, your comments are well
taken. I appreciate them, and this NPRM obviously was a move
from a concept to making something operational and practical.
My goal is to make sure we have the best operating and most
practical system that we can have. You have my assurance that I
will consider it very carefully.
Mr. BECERRA. Thank you. You are making progress, and we
commend you for it. Thank you, Commissioner, and thank you, Mr.
Chairman.
Chairman MCCRERY. Thank you, Mr. Becerra. Commissioner
Barnhart, when you gave the statistic earlier that 74 percent
or something like that of applicants were represented, does
that number include applicants who come to my office seeking
assistance, and I send you a letter----
Ms. BARNHART. No.
Chairman MCCRERY. --asking? No?
Ms. BARNHART. No, sir. That includes--I am glad you asked
that question, if I let the impression. No. No. No. Obviously,
the cases that are referred through Members of Congress, some
of those are represented, and many of them are not obviously.
Chairman MCCRERY. Right. Right. Okay.
Ms. BARNHART. No. No. That 74 percent--I believe the
breakout--and I can provide it for the record--is something
like around 63 percent are attorneys and about 11 percent are
non-attorneys, and, as you know, one of the other provisions
this Committee acted on in recent years was the creation of the
certification process for the non-attorney representatives, and
I am pleased to say we did conduct the first test, and I can
give you the numbers on that. The vast majority of people did
pass. We actually had it certified and so forth in terms of the
test itself by an independent organization. We feel very good
about where we are. I would be happy to provide a report for
the record on that.
[The information was not received at time of printing.]
Chairman MCCRERY. Thank you. Well, my office, I know, and
probably those of most of my colleagues handles an awful lot of
applications for disability benefits, and probably the most
common complaint we get, in my office anyway, is that the dad
garn process just takes so long. Why can't we get a decision
sooner? Here I am hanging out here. Yes, if I am finally
qualified, I will get back payments and all of that. In the
meantime, I am starving to death. I applaud you for recognizing
that that is perhaps the biggest thing wrong with the program
is the delays in getting an adjudication, delays in getting a
final decision. Thank you for methodically going through this
process and trying to come up with something that solves that
big problem that I think will make the lives of those people
who are desperate for help at least a little bit better.
Ms. BARNHART. Thank you so much, Mr. Chairman.
Mr. BECERRA. Mr. Chairman, would you yield? You said
something I think was very important, and I hope, Commissioner,
you don't misread what I said. I think that much of the delay--
and again, I hope the claimants don't misunderstand what I am
about to say--a lot of the delay is due to the claimants, like,
in some cases, not understanding the process and so forth. I
think to the degree that a claimant becomes the responsible
party for the delay, these limits are good, because it sets a
timeframe. You can't sit on evidence. You can't. If your doctor
is not sending something in, at some point, it is your
responsibility to make sure the doctor does it. You can't just
say the doctor never sent it in. I think the more we are open
and say we did nothing on our part to delay this. If you take a
look at the record, and the reason it has taken so long is
because your doctor never sent this in for 2 months. That is
not our fault. I think the more that we set limits based on a
clear showing by the claimants if they haven't moved forward, I
think that is eminently fair. You struck on something that,
again, is what we see in our district office as well in terms
of the claims. Thank you, Mr. Chairman.
Chairman MCCRERY. Sure. Thank you.
Ms. BARNHART. I appreciate that.
Chairman MCCRERY. Commissioner Barnhart, thank you very
much. Now we are going to move to the second panel, and, for
that, I am going to turn the hearing over to my very
distinguished colleague, the Chairman of the Subcommittee on
Human Resources, Mr. Herger.
Chairman HERGER. Thank you, Chairman McCrery. On this panel
we will be hearing from the Honorable Howard D. McKibben, Chair
of the Judicial Conference Committee, Federal-State
Jurisdiction, Administrative Office of the U.S. Courts; Mary
Ford, Co-Chair of the Social Security Task Force, Consortium
for Citizens with Disabilities; the Honorable Dana E. McDonald,
Immediate Past Chair of the Social Security Section of the
Federal Bar Association; Andrew Marioni, President, National
Council of Disability Determination Directors; Thomas Sutton,
President of the National Organization of Social Security
Claimants' Representatives; and Dr. Frank S. Bloch, Professor
of Law at the Vanderbilt University School of Law. Mr. McKibben
to testify.
STATEMENT OF THE HONORABLE HOWARD D. MCKIBBEN, CHAIR, JUDICIAL
CONFERENCE COMMITTEE, FEDERAL-STATE JURISDICTION,
ADMINISTRATIVE OFFICE OF THE U.S. COURTS
Judge MCKIBBEN. Thank you, Mr. Chairman and Members of the
Subcommittees. My name is Howard McKibben. I am United States
District Judge for the District of Nevada, and I currently
serve as the Chair of the Judicial Conference Committee on
Federal-State Jurisdiction. I am testifying today on behalf of
the Judicial Conference regarding certain aspects of the
proposed regulations by the SSA to revise the disability claims
process. I deeply appreciate the opportunity to be here today
and would ask that my written statement, which has been
provided, be included in the record.
The Judiciary commends the SSA for its efforts to improve
the quality of agency decisionmaking in connection with claims
for disability benefits. We also appreciate the open dialogue
that Commissioner Barnhart and her staff have fostered with the
Federal Judiciary, as they have developed the proposed changes;
she has attended several of our Committee meetings and has
spoken with us directly on other occasions, and we deeply
appreciate that. Our Committee has closely monitored these
developments. At its March 2005 session, the Judicial
Conference of the United States determined, and I quote, ``to
support efforts to improve the efficiency and effectiveness of
the process by which the SSA considers disability insurance and
SSI claims, but oppose the elimination of a claimant's right to
request review of an ALJ's adverse decision by the Appeals
Counsel or another administrative reviewing unit with
comparable authority prior to seeking relief in Federal
District Court.''
My comments today on behalf of the Judiciary are, thus,
limited to the role of Appeals Council and the ability of
claimants to seek administrative appellate review. The
regulations that have been published call for the gradual
elimination of the Appeals Council, as we understand it, and
importantly the elimination of the right of a claimant to
request administrative review of disability decisions issued by
an ALJ. It appears that a Decision Review Board, which has been
discussed earlier, would be created that would be authorized to
chose certain ALJ decisions for review, including decisions
that are both favorable and unfavorable to the claimant.
Apparently, the Board would use random sampling, or identify
certain types of cases as typically warranting review. However,
we do not know how many ALJ decisions the board would select
for review or what the precise standards would be for such
selection. What we do know is that claimants will no longer be
able to ask this new board to review the ALJ's decision except
in very limited circumstances. This outcome is contrary to the
conference position favoring preservation of the right of a
claimant to request review of an adverse ALJ decision by the
Appeals Council or another administrative reviewing unit with
comparable authority.
The SSA has stated that the Appeals Council adds processing
time; that it generally supports the ALJ decision; and that it
fails to provide meaningful guidance to ALJs when it disagrees.
The Judiciary, however, believes that the proposed acceleration
of District Court review of disability claims denials may
result in more costs and further delays for claimants because
it merely shifts the time for considering such claims from the
administrative process to the courts. It could also greatly
expand the number of appeals to the Federal Courts.
Based on information provided by SSA, the ability of
claimants to request review by the Appeals Council appears to
provide a helpful screening function. SSA reports that during
Fiscal Year 2004, the Appeals Council reviewed 92,540 requests
for review. Information previously received from SSA suggested
that 2 percent, approximately 2 percent of the claims are
allowed outright by the Appeals Council; 25 percent, which is a
significant number are remanded to an ALJ, which often results
in allowance to claimants. I don't have the precise figures,
but I believe it is somewhere in the neighborhood of 60 percent
are then allowed once they have been remanded. That may include
the ones from the District Courts, too. Thus, the right to
request administrative appellate review also appears to result
in an award of benefits to a significant number of claimants
without the need for further review by the Federal Courts. The
Administrative Office of the U.S. Courts reports that during
Fiscal Year 2004, there were 14,944 actions filed in the
District Courts seeking judicial review of Social Security
disability and SSI claims following a final decision of the
Appeals Council.
This amount is a relatively modest percentage of the 92,540
requests for review presented to the Appeals Council. I haven't
done the math, but I think it is around 17 percent. While the
Judiciary recognizes that several factors might explain why the
remainder of the claimants chose not to seek review in the
Federal Courts, the existence of a right to seek administrative
appellate review appears to result in a large majority of
claimants not seeking judicial review following receipt of the
Appeals Council's final decision. Substituting immediate access
to the District Courts prior to the right to request final
administrative appellate review, we believe has the potential
for significant caseload ramifications for the Federal Courts.
The Judiciary understands that SSA intends to gradually roll
out the review process region by region, and I was interested
in the comments of Commissioner Barnhart a few minutes ago in
terms of the speed at which or the timing for the rollout. The
SSA also states that it intends to monitor the impact of the
process on the courts, and if there are problems, the SSA will
promulgate new regulations to address them. We certainly
appreciate that.
Chairman HERGER. Mr. McKibben, if you could sum up, please.
Judge MCKIBBEN. Yes I would just summarize by indicating
that one of the critical factors I think that we all should
look at here is the speed at which there would be a rollout if
the SSA decides to go ahead with this process. We believe that
there should be at least a year or an 18-month rollout on the
first project--pilot project, and call it a pilot project
rather than a rollout where they contemplate going one region
after another region after another region. I think you need to
analyze the data first before there is a determination made
that you actually will go to another region, both from the
claimant's standpoint and from the standpoint of the impact on
the Judiciary. Thank you very much, Mr. Chairman.
[The prepared statement of Mr. McKibben follows:]
Statement of The Honorable Judge Howard D. McKibben, Chair, Judicial
Conference Committee, Federal-State Jurisdiction, Administrative Office
of the U.S. Courts, Reno, Nevada
Mr. Chairmen and Members of the Subcommittees, my name is Howard
McKibben. I am a United States District Judge in the District of Nevada
and Chair of the Judicial Conference Committee on Federal-State
Jurisdiction. I have been asked to testify today on behalf of the
Judicial Conference of the United States regarding the proposed
regulations by the Social Security Administration (SSA) to revise the
disability claims process. I appreciate the opportunity to be here
today, and would ask that my statement be included in the record.
The judiciary commends the SSA for its efforts to improve the
quality of agency decisionmaking in connection with claims for
disability benefits. Streamlining the decisionmaking process and
reducing unnecessary delays in the final disposition of claims is a
worthy goal.
We also express our appreciation to Commissioner Barnhart, as well
as to her deputy, Martin Gerry, for fostering an open dialogue with the
federal judiciary during the development of these regulations. Since
2003, the Committee that I chair has been assessing SSA's ideas for
changing the disability claims process. During that time, they have
kept us informed and solicited our views on how SSA's proposed changes
might impact the dockets of the federal courts. We have met with SSA
officials on several occasions, where we tried to learn more about the
details of their proposed approach, particularly the latter stages of
the review process. At the beginning of this year, our Committee on
Federal-State Jurisdiction proposed that the Judicial Conference
comment on the SSA approach, which it agreed to do.
At its March 2005 session, the Judicial Conference of the United
States, the policymaking body for the federal judiciary, determined to
``support efforts to improve the efficiency and effectiveness of the
process by which the Social Security Administration considers
Disability Insurance and Supplemental Security Income claims, but
oppose the elimination of a claimant's right to request review of an
administrative law judge's adverse decision by the Appeals Council, or
another administrative reviewing unit with comparable authority, prior
to seeking relief in federal district court.'' Report of the
Proceedings of the Judicial Conference of the United States, March
2005, pp. 18-19. I note that the judiciary is not speaking to the
merits of other aspects of the proposed changes to the claims process,
and I must emphasize that my comments today are focused on the Appeals
Council and the ability of claimants to seek administrative appellate
review.
This Conference position was based on statements in the proposed
approach calling for the abolition of the Appeals Council and a
claimant's right to request review of an administrative law judge's
(ALJ) decision by an appellate administrative entity. The proposal
would have instead created a quality assurance review unit, which would
have been authorized to select certain ALJ decisions for review. Claims
involving disagreements between the quality assurance review unit and
the ALJ could have been referred to an Oversight Panel for further
review. Although some aspects of the approach announced in 2003 were
subsequently changed, other concepts remain the same and continue to
cause us concern.
Elimination of the Appeals Council and the Establishment of the
Decision Review Board
The notice of proposed rulemaking announced by SSA on July 26, 2005
regarding the disability determination process would provide for the
elimination of the Appeals Council, and the elimination of the right of
the claimant to request administrative review of disability decisions
issued by an ALJ. According to the ``Supplementary Information''
accompanying the proposed regulations at page 21, SSA expects to
gradually shift certain Appeals Council functions to a newly created
Decision Review Board (Board).\1\ The Board would consist of ALJs and
administrative appeals judges and would be responsible for evaluating
and reviewing certain ALJ decisions before the decisions are
effectuated. Sec. 405.405.
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\1\ The section cites within the proposed regulations are to title
20, Code of Federal Regulations (CFR), which is where regulations
presently governing SSA's disability decisionmaking are located.
Parallel references to proposed regulations affecting Supplemental
Security Income, also located within 20 CFR, are omitted; however, to
the extent that the proposed regulations are the same for SSI
decisionmaking, these comments are equally applicable.
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In the Supplementary Information, SSA states that it envisions that
the creation of this Board will help ``promote the consistency and
efficiency of the adjudicatory process by promptly identifying and
reviewing, and possibly readjudicating, those administrative law judge
decisions that are the most likely to be erroneous.'' Supplementary
Information at 65. The Board would also be authorized to review claims
after the ALJ's decision has been ``effectuated'' in order to study the
disability determination process. Sec. 405.405(d). The Board may choose
to review decisions that are favorable or unfavorable to the claimant.
Furthermore, it would be authorized to use any method for selecting
cases to review, including random sampling and the use of specific
claim characteristics. Sec. 405.410. The proposed regulations would
provide that a claimant ``may not appeal an administrative law judge's
decision to the Board.'' \2\ Sec. 405.405(b).
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\2\ If a claimant's hearing request is dismissed and the ALJ does
not vacate the dismissal, then the claimant may ask the Board to review
the dismissal. Sec. Sec. 405.381, 405.382.
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The Board would apply a ``substantial evidence'' standard in
reviewing the findings of fact made by an ALJ and would review de novo
the application of law. Sec. 405.440. The Board could affirm, modify,
or reverse the ALJ's decision. Sec. Sec. 405.405(b), 405.440. It could
also remand a claim to the ALJ for further action and decision. If the
Board does not complete action on a claim within 90 days of the date
the claimant receives notice of the Board's review, then the ALJ's
decision becomes the agency's final decision. Sec. Sec. 405.415,
405.420.
Claimants would be authorized to file an action in federal district
court within 60 days of the date SSA's decision becomes final and
judicially reviewable. Sec. 405.501.
Comments on Elimination of the Appeals Council
The present right of claimants to request review of ALJs' decisions
by the Appeals Council eventually would be eliminated under the
proposed regulations. Sec. 405.405(b). This outcome is contrary to the
Judicial Conference position favoring preservation of the right of a
claimant to request review of an adverse ALJ decision by the Appeals
Council, or another administrative reviewing unit with comparable
authority, prior to seeking relief in federal district court.
We recognize that SSA has stated that the Appeals Council adds
processing time, that it generally supports the ALJ decision, and that
it fails to provide meaningful guidance to ALJs when it disagrees. The
judiciary, however, believes that the proposed acceleration of district
court review of disability claim denials may result in more costs and
further delays for claimants because it merely shifts the time for
considering such claims from the administrative process to the courts.
It could also greatly expand the number of appeals to the federal
courts.
Based on information provided by SSA, the ability of claimants to
request review by the Appeals Council appears to provide a helpful
screening function today. Between October 2003 and September 2004 (FY
2004), SSA reports that the Appeals Council received 92,540 requests
for review. Information previously received from SSA suggested that 2%
of claims annually are allowed outright by the Appeals Council and 25%
are remanded to an ALJ (which often results in allowances to
claimants). Thus, the right to request administrative appellate review
also appears to result in an award of benefits to a significant number
of claimants, without the need for further review by the federal
courts.
The Administrative Office of the U.S. Courts reports that during FY
2004 there were 14,944 actions filed in the U.S. district courts
seeking judicial review of Disability Insurance and Supplemental
Security Income claims following a final decision of the Appeals
Council. This amount is a relatively modest percentage of the 92,540
requests for review presented to the Appeals Council. While the
judiciary recognizes that several factors might explain why the
remainder of the claimants choose not to seek review in federal court,
the existence of a right to seek administrative appellate review
appears to result in a large majority of claimants not seeking judicial
review following receipt of the Appeals Council's final decision.
The Judicial Conference believes that preserving the right to
request review before an administrative appellate body should continue
to be a precondition to federal judicial review. Notwithstanding SSA's
position that the proposed changes to the disability claims process
will reduce the number of claimants who are dissatisfied with the
agency's decision, substituting immediate access to the district courts
prior to the right to request final administrative appellate review has
significant caseload ramifications for the federal courts.\3\ The
Appeals Council and the proposed Board are specialized tribunals
dedicated to reviewing ALJ decisions. The district courts are no less
dedicated, but they have diverse responsibilities that make them less
suitable for initially reviewing the current 90,000 disability claims
of which approximately 75,000 are acted on by the Appeals Council
without any federal judicial involvement. Therefore, the federal
judiciary would urge that SSA revise the proposed regulations to
preserve the present right of claimants to request review of an ALJ
decision by an administrative reviewing entity.
---------------------------------------------------------------------------
\3\ A possible analogy is the judiciary's experience after the
Department of Justice implemented new decisionmaking procedures for the
Board of Immigration Appeals, which serves as the final review step for
administrative consideration of alien removal and deportation cases.
These ``streamlining'' efforts included allowing certain decisions to
be made without opinions and permitting summary dismissals. As a result
of these efforts, immigration appeals increased nationwide by 232%
between 2001 and 2004 (for 12-month periods ending June 30). The Second
and Ninth Circuit Courts of Appeals saw immigration appeals increase
during this period by 1,396% and 401%, respectively.
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SSA's Proposed Implementation of the Elimination of the Appeals Council
The judiciary understands that the proposed regulations do not
contemplate the immediate elimination of the Appeals Council in every
region. The Supplementary Information at page 50 indicates that SSA
proposes to eliminate the right of claimants to appeal a disability
decision to the Appeals Council only with respect to claims that have
been adjudicated in those states where SSA's proposed changes have been
implemented. The description also states that the new system will be
phased in, starting in smaller SSA regions and in locations with fewer
SSA cases being filed in federal court, which will allow SSA time to
monitor the impact the new process has on the number of federal cases
being filed in that region. Id. at 51. The Supplementary Information
further indicates that should the proposed changes adversely affect the
disability determination process or the federal courts over time, SSA
will amend its regulations as necessary. Id. at 50-51. SSA also
indicates that should the proposed changes cause a significant increase
in federal disability case filings, it will make changes to the process
as necessary. Id. at 51.
Should SSA ultimately decide to replace the right to request review
by the Appeals Council with selective review by the Board, such
selective review should, at the very least, be limited to a pilot
project in a representative region, instead of the planned gradual
implementation of the changes region by region as indicated by SSA.
Such a pilot project should be conducted over a sufficiently long
period of time to permit the collection of reliable statistical data to
determine the impact of the proposed changes on the disability
determination process, claimants, and the courts.\4\
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\4\ The judiciary notes that in 1997 SSA promulgated a regulation
to permit the testing of the elimination of the request for Appeals
Council review, as well as the testing of other features of a redesign
plan for disability claims first announced by SSA in 1994. See 62 Fed.
Reg. 49,602 (Sept. 23, 1997); 20 CFR Sec. 404.966. Although we
understand that SSA began testing other aspects of the proposed
redesign plan soon thereafter in localities in 10 states, the
elimination of the requirement to request Appeals Council review
apparently was not tested at least until 2000 when SSA issued notice
that such testing would begin. See 65 Fed. Reg. 36,210 (June 7, 2000).
It is unclear, however, whether such testing actually occurred, and if
so, what were the results.
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Conclusion
The Judicial Conference appreciates the opportunity to present its
views related to a portion of the proposed regulations. We continue to
support efforts to assist claimants and achieve the correct decision as
early in the process as possible, while preserving the right of
claimants to seek administrative review of an adverse decision of an
ALJ by the Appeals Council or another administrative reviewing unit
with comparable authority, prior to seeking relief in the federal
district court. To avoid the potential for a detrimental impact upon
the judiciary, the Judicial Conference urges SSA to revise the
regulations so as to preserve a right to request review by the Appeals
Council or a similar entity with comparable authority. If SSA,
nevertheless, proceeds to pursue elimination of such right, then the
Conference would urge that a single pilot project be conducted in a
representative region and then thoroughly studied before any roll-out
is scheduled or any nationwide implementation decisions are made.
Mr. Chairmen, thank you again for the opportunity to testify and
present these views of the Judicial Conference. I would be pleased to
answer any questions you or the other Members of the Subcommittees may
have.
Chairman HERGER. Ms. Ford to testify.
STATEMENT OF MARTY FORD, CO-CHAIR, SOCIAL SECURITY TASK FORCE,
CONSORTIUM FOR CITIZENS WITH DISABILITIES
Ms. FORD. Thank you, Chairman Herger, Chairman McCrery,
Members of the Subcommittees, for this opportunity to testify.
The Social Security Task Force of the Consortium for Citizens
with Disabilities applauds Commissioner Barnhart for
establishing improvement of the disability determination
process as a high priority. She has sought input from all
interested parties, including beneficiaries and consumer
advocates, which we very much appreciate. We strongly support
efforts to reduce unnecessary delays for claimants to make the
process more efficient so long as it will ensure fairness and
protect the rights of people with disabilities.
Changes at the front end of the process are critical.
Making correct disability determinations at the earliest
possible point can help eliminate backlogs and delays later in
the appeals process. We support the Commissioner's efforts to
improve the front end of the process and believe that this is
where the real-time savings will be. This includes
technological improvements such as the electronic disability
folder. We also support the SSA's work opportunity
demonstration projects and look forward to the results. Within
this NPRM, there are proposals which we believe will improve
the process for people with disabilities, including development
of a national network of expert medical units, the elimination
of the reconsideration step, and the quick decision process.
However, we have grave concerns about the impact of the
proposed regulations on the appeals process. Our concerns fall
into several areas.
The overall impact of the new time limits imposed on
claimants with limited opportunities to show good cause for
failure to meet them could result in unfair and unjust
decisions, which rest on technicalities and not on the truth of
whether the individual is actually disabled. The new
requirement to specify all issues on appeal at the time of
filing for appeal creates new opportunities for claimants to
make irreparable errors. The new requirement to submit all
evidence available to you, including adverse evidence or
evidence considered unfavorable raises new legal issues for
both the claimant and attorney representatives. The appeals
process offers no recourse for claimants' difficulty in
obtaining evidence from medical and vocational sources, for
claimants to seek correction of mistakes or errors made by SSA
or the ALJ, or for addressing abusive discretion by ALJs. Some
proposed changes may exceed the Commissioner's authority under
the Social Security Act (P.L. 74-271).
Throughout, there appear to be some underlying assumptions
with which we disagree. First, that the claimant or
representative has control over the sources of medical or
vocational evidence. Even for representatives, it can be
difficult to obtain medical evidence from most treating sources
and medical institutions. Second, there is an assumption that a
claimant is represented from the beginning of the process. The
reality is much different. People often do not seek
representation until later, not understanding how important it
can be until it is explained to them for the first time at the
ALJ level. A third assumption is that diagnosis is simple and
straightforward. Many people have medical conditions that are
hard to diagnose, such as Lupus or Multiple Sclerosis. Others
have impairments that make it more likely they will fall into
procedural cracks in the system, especially those with mental
impairments or cognitive impairments.
The answer to denial of benefits when people fail to meet
the time lines is not that the person can always reapply. In
Title II, where insured status for disability benefits is
critical, a person may be barred by the recency of work test
from succeeding on a later application. While it is appropriate
to deny a claim because the evidence establishes that the
claimant does not meet the statutory definition of disability,
it is wrong to deny benefits to an otherwise eligible person
who falls between the procedural cracks or who is unable to
submit relevant evidence because of procedural limitations.
The goal is to have the right decision, not just a legally
defensible decision. Decisions must not be based on a
collection of technicalities. People need to know that their
claims were fairly considered based on all of the evidence,
medical and otherwise. We will submit more detailed analysis
and recommendations to Commissioner Barnhart prior to the close
of the public comment period. We will submit those comments to
these Subcommittees also. As you have heard, there are many
positive developments at the SSA as a result of the
Commissioner's leadership. Even without these proposed
procedural changes, steps the Commissioner has already taken
will decrease processing times and improve decisional quality--
and she has mentioned today that that has already happened. We
appreciate that the Commissioner has sought our input and look
forward to continuing to communicate with her about steps
needed to ensure that new procedures protect claimants and do
not result in creating barriers to fair and complete decisions
based on the merits. 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, Chairman Herger, Representative Levin,
Representative McDermott, and Members of the Subcommittees, thank you
for this opportunity to testify on the proposal to revise the
disability determination process embodied in the notice of proposed
rulemaking (NPRM) for the Administrative Review Process for
Adjudicating Initial Disability Claims; Proposed Rule, 70 Federal
Register 43590 (July 27, 2005).
I am a member of the 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 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 focuses on disability policy issues in the
Title II disability programs and the Title XVI Supplemental Security
Income (SSI) program.
Throughout the development of this proposal, we have applauded
Commissioner Barnhart for establishing improvement of the disability
determination process as a high priority. We have also applauded her
work in making the 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.
As we testified before you last year, it is critical that SSA
improve its process for making disability determinations. People with
severe disabilities often are forced to wait years for a final
decision. This is damaging not only to the individual with a disability
and his or her family, but also to public perception of the integrity
of the program. Last year, we stated:
We strongly support efforts to reduce unnecessary delays for
claimants and to make the process more efficient, so long as the steps
proposed do not affect the fairness of the process to determine a
claimant's entitlement to benefits. Further, changes at the ``front
end'' can have a significant beneficial impact on improving the
backlogs and delays later in the appeals process, by making correct
disability determinations at the earliest possible point. Emphasis on
improving the ``front end'' of the process is appropriate and
warranted, since the vast majority of claims are allowed at the initial
levels. Any changes to the process must be measured against the extent
to which they ensure fairness and protect the rights of people with
disabilities.
We have conducted an initial review of the NPRM based on the above
principles: making the process more efficient and making correct
decisions earlier in the process so long as the changes ensure fairness
and protect the rights of people with disabilities. I will discuss our
initial conclusions and recommendations for changes in this testimony.
We will, of course, submit more detailed analysis and recommendations
to Commissioner Barnhart before the close of the public comment period
and we will submit those comments to the Subcommittees, also. It is
possible that our continued work may result in additional
recommendations not identified at this point.
As noted, we applaud the Commissioner's efforts to improve the
``front-end'' of the disability determination process. This includes
efforts to implement technological improvements, including the
electronic disability process, eDIB, and improving development of the
application and the supporting evidence. While these improvements have
great potential for improving the adjudication process and are critical
to the success of the system, it is important to understand that they
are already underway and are not the subject of this NPRM.
General Comments
The CCD Social Security Task Force believes that there are several
proposals within the NPRM which could be improvements to the program
from the perspective of people with disabilities. These include
development of a national network of expert medical units, the
elimination of the reconsideration step, and the quick decision
process. However, we have grave concerns about the impact on people
with disabilities of proposed regulations in the appeals process from
the reviewing official stage to the administrative law judge level, to
the decision review board level and the elimination of the Appeals
Council.
Our concerns about the appeals process fall into several overall
areas:
The overall impact of the new time limits imposed on
claimants, with no opportunities to show good cause for failure to meet
those time limits, could result in unfair and unjust decisions which
rest on technicalities and not on the truth of whether the individual
is actually disabled. In addition, even ``good cause'' rules are
insufficient because that means that the discretion lies with SSA or an
ALJ to decide whether to accept the evidence, rather than ensuring that
the evidence will be considered in deciding the claim. (A chart
comparing the current statutory and regulatory time limits to the
proposed regulations is attached as Appendix A.)
New requirements to specify issues on appeal at the time
of filing the appeal create new opportunities for claimants to make
irreparable errors in the process.
The new requirement to submit all evidence ``available to
you,'' including adverse evidence or evidence the claimant considers
``unfavorable,'' raises new legal issues for both the claimant and
attorney representatives.
The appeals process offers no recourse for claimants'
inability to access evidence from medical and vocational sources.
The appeals process offers no recourse within SSA for a
claimant to seek correction of mistakes or errors made by SSA or the
ALJ.
The appeals process offers no recourse for addressing
abuse of discretion by an ALJ.
Some proposed changes may exceed the Commissioner's
authority under the Social Security Act.
On the whole, the requirements of the appeals process seem to
assume that the claimant and/or the representative have some level of
control over the sources of medical or vocational evidence. The
proposed timelines for submission of evidence are strict and, in our
opinion, unreasonable. Even for representatives, it often can be
difficult to secure medical evidence from most treating sources and
medical institutions. They may wait weeks or months for the evidence to
be produced by the treating source. It is even harder to secure
evidence more than once from the same source. For claimants to be
permanently harmed by this inability to access evidence completely
undermines the concept of a system that is intended to be non-
adversarial and to assist them in a time of great need. It is important
that any changes maintain the non-adversarial nature of the process and
that the procedures and their outcomes are fair and perceived as fair.
Even with representation, people who have low or no incomes or only
modest incomes--even those with regular medical homes--have trouble
securing the medical evidence they need to prove their cases.
The proposed regulations also seem to assume that a claimant is
represented from the beginning of the process. Reality is much
different. People often do not seek representation until late in the
process, not understanding how important it can be. Based on
experience, many representatives believe that they would not be
consulted until many of the filing deadlines in the proposed
regulations are imminent or gone. Under current law, late filings are
possible with a showing of ``good cause.'' The proposed regulations
would prohibit such filings. Even when contacted before the deadline,
many representatives will not have enough notice about the issues in
the case to be able to file notice about the issues for appeal.
Many people with disabilities who apply for disability benefits
have medical conditions that are hard to diagnose or for which
diagnosis may come late in the process--such as lupus or multiple
sclerosis. Others have impairments that make it more likely they will
fall into any procedural cracks in the system, especially those with
mental impairments and cognitive impairments. As the Congress has
already made clear in legislation, it is not acceptable to say that a
person who loses his/her appeal can always reapply. Especially in Title
II, where insured status for disability benefits is different from
insured status for retirement benefits as a result of the recency of
work test, a person may be barred by the recency of work test from
succeeding on a later application regardless of the condition worsening
or the existence of new impairments.
Any regulatory changes should comply with the Social Security Act
and should not undermine the confidence that the public has in the
Social Security appeals process. For decades, Congress, the United
States Supreme Court, and SSA have recognized that the informality of
SSA's process is a critical aspect of the program. Creating
unreasonable procedural barriers to eligibility is inconsistent with
Congress' intent to keep the process informal and non-adversarial, and
with the intent of the program itself, which is to correctly determine
eligibility for claimants, awarding benefits if a person meets the
statutory requirements.
While it is appropriate to deny a claim because the evidence
establishes that the individual does not meet the statutory definition
of disability, it is wrong to deny benefits to an otherwise eligible
individual with a disability who falls between procedural ``cracks'' or
who is unable to submit relevant evidence because of procedural
limitations.
Electronic File
The electronic file has an important role in eliminating delays and
dramatically improving processing times. The work SSA has underway to
put in place an electronic application process and an electronic
disability file will eliminate a lot of the delay. This will greatly
facilitate movement of files from one part of SSA to another, reduce or
eliminate loss of evidence, and probably most important, reduce or
eliminate the loss or misplacement of entire case files. All of these
problems can add weeks, months or years to processing time. While this
work is being accomplished separate from this NPRM, it is important to
factor it into any analysis about additional steps, if any, that may be
needed to improve the process.
Initial Determination Level
We support SSA's proposal to process ``Quick Disability
Determination'' cases within 20 days for those cases with a high
probability of meeting the statutory definition. We also support having
the claim go through the normal process if the 20 day limit or the
criteria cannot be met. This step should assist those individuals whose
cases could be satisfactorily handled quickly by removing them from the
lengthier administrative procedures.
We support establishment of a Federal Expert Unit (FEU) to provide
medical, psychological and vocational expertise to disability
adjudicators at all administrative levels \1\ and to oversee a
``national network'' (NN) of the medical, psychological, and vocational
experts.\2\ We support the requirement that the NN experts meet
qualifications set by SSA and that NN experts, which can include state
disability determination service (DDS) physicians if they meet SSA
qualifications, will be paid at rates established by SSA. We believe
that these steps could lead to better quality evaluations and the use
of vocational expertise earlier in the process.
---------------------------------------------------------------------------
\1\ See proposed section 405.10.
\2\ See proposed section 405.15.
---------------------------------------------------------------------------
Recommendation: We recommend that qualifications for consultative
examiners (CEs) and rules for referrals to CEs be included in these
regulations or that SSA issue changes in this area as soon as possible.
It is our understanding that SSA has work underway on these issues.
Reviewing Official
We support the elimination of the reconsideration step at the DDS
level. We also support establishment of the Federal Reviewing Official
(RO) \3\ as an attorney with knowledge of Social Security law,
regulations, and policies.
---------------------------------------------------------------------------
\3\ The RO-level proposed changes are at sections 405.201-405.230.
---------------------------------------------------------------------------
However, in requiring the RO to consult with the federal expert
unit/national network, the proposed regulations raise the question of
who is making the decision at the RO level--the RO or the medical/
vocational experts--or whether this creates a bias in favor of
affirming the DDS decision.
We disagree with the requirement that the claimant submit new
evidence at the same time as filing the notice of appeal to the RO
(Sec. 405.215). As discussed above, claimants may not be able to gather
all evidence within the specified timeframe.
Recommendation: We recommend that claimants be allowed to submit
new evidence when it is available and that the regulations make clear
the affirmative obligation of the RO to assist in securing needed
evidence.
Administrative Law Judge
We support the goal (although it is not a substantive right) that
the Administrative Law Judge (ALJ) hearing will be held within 90 days
of requesting the hearing and that the hearing notice will be sent 45
days before the hearing.
However, we have many serious concerns about new requirements at
the ALJ stage of appeal. These include new time limits without good
cause exceptions; submission of all new evidence 20 days before the
hearing; and submission of issues for review at the time the appeal is
filed.
Time limits: There are many new time limits (beyond the normal
appeal deadlines) that make the process overly complicated. Many of the
time limits have no ``good cause'' extension: 10 days to object to time
or place of hearing [Sec. 405.317(a)]; 10 days to object to issues in
hearing notice [Sec. 405.317(b)]; 10 days to submit new evidence after
hearing decision [Sec. 405.373(a)]; 10 days to ask ALJ to vacate
dismissal [Sec. 405.382(a)].
Under the proposed regulations, the record essentially closes 20
days before the hearing with limited exceptions. Proposed Sec. 405.331.
This means that the ALJ has the discretion to ignore any evidence
submitted within 20 days of the hearing, regardless of its relevance or
importance, or that it was beyond the claimant's control to obtain the
evidence. What if the claimant obtains representation within fewer than
20 days of the hearing? The case law in all areas of the country is
clear that it is the ALJ's duty to develop the evidence. The NPRM
ignores this. Further, the statute requires the ALJ to decide based on
all evidence ``adduced at the hearing.''
Submission of evidence: The claimant must submit all evidence
``available to you.'' Proposed Sec. 405.331. This includes adverse
evidence. According to proposed Sec. Sec. 404.1512(c) and 416.912(c),
all information needed to decide the claim must be submitted, including
``evidence that you consider to be unfavorable to your claim.''
According to the NPRM preface: ``This rule will require you to submit
all available evidence that supports the allegations that form the
basis of your claim, as well as all available evidence that might
undermine or appear contrary to your allegations.'' 70 Fed. Reg. 43602.
We are concerned that this could trip unsuspecting claimants,
especially those who are unrepresented. In addition, there is
potentially a serious conflict here with state bar rules for attorneys
limiting the submission of evidence that could be considered adverse to
a client. The determination of what evidence should have been submitted
and what ``available'' means could become a body of law in itself.
Submission of issues for review: Under the proposed regulations,
the claimant would be required to state the issues upon which s/he
seeks review. We are concerned that this may foreclose issues which
emerge or become clearer as evidence is obtained or further examined.
In addition, any penalties for failure to properly or fully raise
issues would fall especially harshly on claimants who are unrepresented
at the time they file an appeal and who may not understand the
implications of this requirement. With this requirement, the process
becomes more sophisticated and more adversarial. The outcome will be
more decisions denying benefits on technical grounds, not on the merits
of the person's claim.
Other procedural problems include:
The 20-day submission of evidence requirement negates the
advantages of the 45-day hearing notice requirement.
Failure to appear (often for very legitimate and
unavoidable reasons) at pre- and post-hearing conferences can lead to
dismissal of the case.
Other procedural rules make the process overly formal:
the ALJ may ``order'' submission of ``prehearing statements;''
documents other than evidence must be ``clear and legible to the
fullest extent practicable'' and ``must use'' 12 point font.
Closing the record to new evidence: After the ALJ decision, there
are extremely limited exceptions and procedural requirements for
submitting new evidence. Proposed Sec. 405.373.
Unless there is a change in the claimant's condition
between the hearing and the decision, the claimant must first ask the
ALJ to keep the record open at the hearing and show ``good cause'' for
missing that deadline. The preface limits this latter exception to
situations where the claimant is aware of additional evidence or is
scheduled for further evaluation and requires the ALJ to be informed at
the hearing. Note that even if requested, the ALJ is not required to
keep the record open and has full discretion to deny the request.
To submit such evidence, the individual must make the
request and submission within 10 days after receiving the decision.
There is no ``good cause'' extension of this time limit.
These hurdles are impractical and daunting and essentially impede
the ability to present evidence that could prove that an individual is
eligible. We find it unfathomable that there would be a reason to keep
such evidence out of the process when it could provide the very
information for which the truth-seeking process is intended.
This stage in the appeals process is so important to claimants that
we find it important to stop and ask two critical questions:
Why is closing the record unfair to people with disabilities? There
are many legitimate reasons why evidence is not submitted earlier and
thus why closing the record or creating unreasonable procedural hurdles
is not beneficial to claimants. Why is it important to allow
individuals to submit new evidence? (1) The process should be informal;
(2) Medical conditions change; (3) The ability to submit new evidence
is not always in the claimant's control; (4) Filing a new application
is not a viable option (see below); and (5) There are more benign ways
to limit the submission of new evidence, such as those in the current
process at the Appeals Council and court levels.
Why is reapplying not a viable option? The preface states that if
the claimant cannot submit new evidence, he or she has the right to
file a new application. 70 Fed. Reg. 43597. This is misleading and
inaccurate and may permanently foreclose eligibility: (1) Benefits
would be lost from the effective date of the first application; (2) In
Title II cases, Medicare would be delayed and the person could lose
disability insured status and not be eligible at all if a new
application is filed; (3) If the issue in the new application is the
same as in the first, the doctrine of ``res judicata'' bars
consideration of the second application; and (4) Congress previously
passed corrective legislation on this very issue because in the past,
SSA notices misled claimants regarding the adverse effect of reapplying
instead of appealing.\4\ At least 15 years after Congress acted on
this, it is troubling to realize that the concept is still imbedded in
SSA's thinking (and used as a justification here for preventing
consideration of all of the evidence even if it is filed a little
late).
---------------------------------------------------------------------------
\4\ 42 U.S.C. Sec. Sec. 405(b)(3) and 1383(c)(1).
---------------------------------------------------------------------------
Recommendations: Restore the timeframes for appeals and rules for
submission of new evidence of the current regulations.
Decision Review Board
We believe that it is not wise to eliminate the Appeals Council
(AC) and its most important function--review of appeals filed by
claimants from unfavorable ALJ decisions--at this time. Right now, the
AC remands close to one-quarter of the cases it sees to the ALJs and it
also reverses a small number of cases outright (about 2 percent). The
electronic process that SSA already is implementing should eliminate
one of the key problems that have plagued the AC for years: lost files.
SSA proposes to eliminate the AC and create a Decision Review Board
(DRB). Individuals would not be able to file an appeal to the DRB on
the merits of their claim. (SSA does protect the ability of individuals
to appeal in cases where an ALJ dismisses a case, as these appeals
cannot be filed in federal court.) The only cases that the DRB will
review on the merits are those which an SSA computer profiling system
identifies as cases in need of review. If the DRB plans to review the
case, the person will be notified of this fact at the time that s/he
receives his/her ALJ decision.
It is unquestioned that eliminating the AC will result in an
increase in the number of cases filed in federal court. At the same
time, it also is likely that many people will not file in federal court
due to the cost or because filing in federal court is a fairly
intimidating act to consider. This means that, in most cases, the un-
reviewed ALJ decision will be the final decision.
Recommendations: SSA should not repeal the regulation that
established the Appeals Council at this time. SSA apparently looked at
this issue as part of its ``prototype'' pilot, but cannot produce any
information on the outcomes of eliminating the AC and going straight to
court. Should SSA want to proceed with another pilot, that would be far
more desirable than eliminating the AC at this point. In addition,
since SSA is only planning to roll this entire process out in a couple
of regions in 2006, there is time to do such a pilot and evaluate the
results prior to deciding whether to issue a second NPRM that might
eliminate the AC at a future point.
If, however, SSA intends to proceed to eliminate the Appeals
Council at this time, we offer two proposals to modify the proposed
Decision Review Board to ensure that it protects the ability of people
with disabilities to have their cases fully and fairly considered by
SSA.
First, we propose that the new Decision Review Board be modified to
provide that it will receive, consider, and decide appeals by claimants
and beneficiaries from unfavorable ALJ decisions. Under our proposal,
if the DRB failed to act within a specified time, it would issue a
``right to sue'' letter which the person could use to seek judicial
review in federal court. (The claimant could elect to wait for the
final DRB decision prior to deciding whether to seek judicial review or
seek review within a fixed time period upon receiving the ``right to
sue'' letter.) Claimants would retain their ability to secure review
within SSA and the proposal would ensure that the internal SSA process
is meaningful and efficient. The DRB would still continue to review the
case and issue a decision after the right to sue letter has been
issued. If the claimant had not filed suit after receipt of the ``right
to sue'' letter, s/he could decide to file suit after the DRB issues
its decision, if needed. Meanwhile, SSA could retain the new functions
it proposes for the DRB, reviewing both allowances and denials based on
a computer screening tool, and also meet the Commissioner's in-line
quality assurance goals.
How would this proposed change help?
Provides claimants the benefit of a chance for additional
review within the agency--preserves this current, very important
protection.
Incorporates a time limit for how long most cases could
be pending at this level, addressing a very common complaint about
delays at the Appeals Council
level.
Provides SSA with the ability to identify cases it would
not like to defend in federal district court and the opportunity to
identify and solve issues that should not require district court
review. (It is not reasonable to expect that its computer screening
tools will do this.)
Our second proposal would require that the Decision Review Board
review cases in which relevant evidence becomes available after the ALJ
decision to determine whether it should be considered in the claimant's
case. Under the proposed regulations, SSA makes it very difficult,
often impossible, for evidence to be considered after 20 days before
the hearing. SSA should establish a process that allows the claimant to
ask the ALJ to reopen the record or allows claimants to show that there
is new and material evidence and good cause why it was not offered
below. Some claimants would opt to return to the ALJ. Even so, there
will need to be a mechanism for some claimants to request that the DRB
require that the new and material evidence be considered. Further,
there needs to be a way to address the problem of the ALJ who will not
honor the request to keep the record open to file additional evidence.
If SSA does not include such a mechanism, many claimants will have to
file in federal court simply to secure consideration of evidence that
is new and material and for which there is good cause that it was not
filed earlier. (The statute says that the courts can make such a remand
``at any time.'') The result will be more delay as federal courts order
cases remanded back for new ALJ hearings.
Reopening
The proposed regulations severely limit a claimant's right to
request reopening.\5\ The current regulations allow a claimant to
request that SSA reopen a decision within one year of the initial
determination ``for any reason'' or to reopen for ``good cause'' within
two (SSI) or four (Title II) years of the initial determination. ``Good
cause'' includes ``new and material evidence.'' Instead, under the
NPRM, reopening could only be requested within six months for two
situations: (a) clerical error in computation of benefits or (2) clear
error on the face of the evidence. There would be no opportunity to
reopen for ``any reason'' or for ``good cause'' including to consider
``new and material evidence.''
---------------------------------------------------------------------------
\5\ The proposed changes in reopening are at sections 405.601 and
405.605.
---------------------------------------------------------------------------
Reopening a prior application can be very important for people with
disabilities who clearly meet the disability standard but were unable
to adequately articulate their claim in the first application, were
unable to obtain evidence, or have an impairment that is difficult to
diagnose, such as multiple sclerosis or certain mental impairments.
Unrepresented claimants with mental impairments frequently reapply
instead of appealing and eventually their representatives, on a
subsequent claim, will obtain new and material evidence that
established disability as of the earlier application. For the same
reasons discussed above, reapplying is not a viable option.
Recommendation: We recommend that the current provisions that allow
for reopening within one year for any reason or within two years (SSI)
or four years (Title II) for good cause, which includes ``new and
material evidence,'' be retained.
Judicial Review
The claimant still has a right to appeal the Commissioner's ``final
decision'' (either the ALJ or DRB decision) to federal court.\6\ This
level of review is generally not affected except as it could be
impacted by the other procedural changes, primarily the elimination of
claimant-initiated Appeals Council reviews.
---------------------------------------------------------------------------
\6\ See proposed section 405.501.
---------------------------------------------------------------------------
We are concerned that more cases will have to be filed in federal
court because ALJs will have more authority to ignore new and material
evidence submitted within 20 days of a hearing or later. Under current
law, a court may remand a case if there is ``new and material''
evidence and there is ``good cause'' for not submitting it earlier.\7\
While it remains to be seen how the courts would respond if the ALJs or
DRB refused to consider such evidence, it is likely that the number of
court appeals will increase requesting that courts exercise their
statutory authority. Further, there will be more court remands to the
agency for consideration of evidence that should have been part of the
administrative record in the first place.
---------------------------------------------------------------------------
\7\ 42 U.S.C. Sec. 405(g).
---------------------------------------------------------------------------
Authority within the Social Security Act
While we support the Commissioner in her efforts to improve the
disability determination process and to shorten the length of time that
it takes to get a final decision in a case, we are concerned that some
of the proposed regulations may go beyond the authority granted to the
Commissioner by the statute. Our concerns are as follows:
While broad, there are limits to the Commissioner's authority:
Section 205(a) of the Social Security Act, 42 U.S.C. Sec. 405(a),
provides: ``The Commissioner shall have full power and authority to
make rules and regulations and to establish procedures, not
inconsistent with the provisions of this title, which are necessary or
appropriate to carry out such provisions, and shall adopt reasonable
and proper rules and regulations to regulate and provide for the nature
and extent of the proofs and evidence and the method of taking and
furnishing the same in order to establish the right to benefits
hereunder.'' (emphasis added)
Requiring that evidence be filed 20 days before the hearing and
that the person identify all issues in the notice of appeal appear to
violate the statute: Section 205(b) requires that if a person disagrees
with the Commissioner's decision, ``the Commissioner shall give such
applicant and such other individual reasonable notice and opportunity
for a hearing with respect to such decision, and, if a hearing is held,
shall, on the basis of evidence adduced at the hearing, affirm, modify,
or reverse the Commissioner's findings of fact and such decision. . .
.'' (emphasis added)
If courts can require SSA to take new and material evidence at any
time, how can SSA limit taking such evidence within its administrative
process? Will individuals with disabilities really have to go to
federal court to get an order telling SSA to consider the evidence?
Section 205(g) provides that a federal district court ``may at any time
order additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding. . . .''
Congress has already made clear that it is concerned when SSA
encourages people to reapply for benefits rather than appeal, one of
the justifications used in the preface to the NPRM. Section
205(b)(3)(A) provides: ``A failure to timely request review of an
initial adverse determination with respect to an application for any
benefit under this title or an adverse determination on reconsideration
of such an initial determination shall not serve as a basis for a
denial of a subsequent application for any benefit under this title if
the applicant demonstrates that the applicant, or any other individual
referred to in paragraph (1), failed to so request such a review acting
in good faith reliance upon incorrect, incomplete, or misleading
information relating to the consequences of reapplying for benefits in
lieu of seeking review of an adverse determination, provided by any
officer or employee of the Social Security Administration or any State
agency acting under section 221.''
Further, section 205(b)(3)(B) provides: ``In any notice of an
adverse determination with respect to which a review may be requested
under paragraph (1), the Commissioner of Social Security shall describe
in clear and specific language the effect on possible entitlement to
benefits under this title of choosing to reapply in lieu of requesting
review of the determination.''
These provisions exist because SSA used to regularly tell people
that they need not appeal their reconsideration decisions, they could
simply reapply at some point. In the Disability Insurance program, this
can result in ineligibility due to loss of insured status. In addition,
in both SSI and DI, this will mean loss of benefits for the period
based on the first application until the second application is filed.
It is not acceptable for SSA to be incorporating this justification
into the NPRM as a basis for explaining that, if a person falls into
the various new procedural cracks being created, it is not a problem,
because they can always reapply. That is incomplete and misleading.
Conclusion
While justice delayed can be justice denied, justice expedited also
can result in justice denied. At the end, the goal is to have the right
decision, not just a legally defensible decision. And, to be fair,
decisions cannot be based on a collection of technicalities such as
failure to file evidence by a specific time or failure to file a
detailed list of issues related to an appeal--people need to know that
their claims were fairly considered based on all of the evidence,
medical and otherwise.
As organizations representing people with disabilities, we strongly
support efforts to reduce unnecessary delays for claimants and to make
the process more efficient. However, these changes should not affect
the fairness of the process to determine a claimant's entitlement to
benefits. As noted above, the CCD Task Force will submit more detailed
analysis and recommendations to Commissioner Barnhart prior to the
close of the public comment period and we will submit those comments to
the Subcommittees, also.
ON BEHALF OF:
American Association of People with Disabilities
American Association on Mental Retardation
American Council of the Blind
American Foundation for the Blind
Bazelon Center for Mental Health Law
Easter Seals, Inc.
Epilepsy Foundation
Inter-National Association of Business, Industry and Rehabilitation
National Alliance for the Mentally Ill
National Association of Councils on Developmental Disabilities
National Disability Rights Network, formerly National Association
of Protection
and Advocacy Systems
National Multiple Sclerosis Society
National Organization of Social Security Claimants' Representatives
Paralyzed Veterans of America
The Arc of the United States
Title II Community AIDS National Network
United Cerebral Palsy
United Spinal Association
----------------------------------------------------------------------------------------------------------------
CURRENT PROCESS TIME LIMITS NPRM: CLAIMANT TIME LIMITS NPRM: SSA TIME LIMITS
----------------------------------------------------------------------------------------------------------------
File initial application File initial application
60 days to appeal 60 days to appeal 20 days to make
``quick decision''
No time limit if
not ``quick decision''
----------------------------------------------------------------------------------------------------------------
Reconsideration Reviewing Official
Claimant has ``opportunity to Must submit new Decision: No time
evidence limit
present additional evidence.'' with appeal--Sec. 405.215.
No time limit. Decision based But see Sec.
405.210(a)(4): You
on ``all of the evidence.'' 20 ``should'' (but not
``must'')
C.F.R. Sec. 404.913(a). include with your appeal
request ``[a]dditional
evidence that you have
available to you''
60 days to appeal 60 days to appeal
----------------------------------------------------------------------------------------------------------------
Administrative Law Judge Administrative Law Judge
Object to time or place of Object to time or Goal: Hold
place: hearing in
hearing ``at the earliest 10 days after Notice (no 90 days
possible opportunity'' 20 good cause). Sec. Hearing Notice:
405.317(a). 45 days
C.F.R. Sec. 404.936. Object to issues in before hearing.
Notice:
Object to issues in hearing 10 days after Notice (no Sec. 405.315(a).
notice ``at the earliest possible good cause). Sec. Hearing decision:
405.317(b). No
opportunity.'' 20 C.F.R. time limit
Sec. 404.939. Submit new evidence:Submit new evidence: Before hearing: Per
Sec. 405.331, must submit
42 U.S.C. 405(b)(1): Right to all new evidence (both
hearing with decision based favorable and unfavorable)
on ``evidence adduced at the 20 days before hearing
hearing.'' UNLESS
``At the hearing'' you may Good cause; or
submit new evidence. Material change in
Sec. 404.929. condition
``If possible'' submit 10 days After hearing
decision:
after filing Request for Per Sec. 405.373(a), must
Hearing. Party ``shall make request permission to
every effort'' to be sure that submit new evidence after
all material evidence is hearing decision: 10 days
received by the ALJ or is after hearing decision (no
available at the time of the good cause). Not considered
hearing. Sec. 404.935. if submitted late. Claimant
Right to appear before ALJ must show:
``to present evidence.'' 20 Unforeseen and
material
C.F.R. Sec. 404.950. change in condition
After hearing decision: can between hearing and
submit Appeals Council (see decision; or
below) At hearing, request
to
Request ALJ to vacate keep record open, ALJ
hearing dismissal: 60 days agreed, and good cause
(or appeal to Appeals for missing date
Council). 20 C.F.R. Request ALJ to vacate
Sec. 404.960. hearing dismissal: 10 days
(no good cause). Sec.
405.382(b).
60 days to appeal
60 days to appeal--dismissals
only
----------------------------------------------------------------------------------------------------------------
Appeals Council Decision Review Board Initiating Appeals Council Request permission to Screening ALJ
decision
own motion review: Within submit new evidence: for DRB review: no
60 days after ALJ decision. 10 days after DRB Notice time limit.
Sec. 404.969. (no good cause). Same DRB decision: 90
days
Note: 42 USC Sec. 423(h) and exceptions as post-ALJ after Notice of DRB
20 CFR Sec. 404.969 require decision. Sec. 405.373(b). review. If not met,
payment of interim benefits Request permission to claimant can proceed
file
if ``final decision'' not issued written statement: 10 days to file in federal
court.
within 110 days after after DRB Notice (no good Sec. 405.450.
favorable ALJ decision. cause); with appeal (if
Submitting new evidence: dismissal). Sec. 405.425.
``Shall'' consider all new and
material evidence submitted 60 days to appeal to federal
which relates to the period on court (from SSA ``final
or before the ALJ decision. decision'')
20 C.F.R. Sec. Sec. 404.970(b) and
404.976(b).
To file brief or written
statement: ``Upon request,
claimant given a `reasonable
opportunity.' '' No page limit.
20 C.F.R. Sec. 404.975.60 days to appeal to federal
court
----------------------------------------------------------------------------------------------------------------
Federal court Federal court
----------------------------------------------------------------------------------------------------------------
Chairman HERGER. Thank you. Mr. McDonald, please testify.
STATEMENT OF DANA E. MCDONALD, IMMEDIATE PAST CHAIR, SOCIAL
SECURITY SECTION, FEDERAL BAR ASSOCIATION, ATLANTA, GEORGIA
Mr. MCDONALD. Thank you, Mr. Chairman and Members of the
Subcommittee. My name is Dana McDonald of Atlanta, Georgia. I
appear here on behalf of the Federal Bar Association's (FBA)
Social Security Section, having served as Chair of that section
last year and previously as the National President of the
Association. We are honored that you have asked for our
participation in your consideration of the Commissioner's
proposed regulations. The FBA has as its members many of the
disability stakeholders affected by these regulations--lawyers
in private and public practice, as well as judges at all levels
of this process.
I have served as an ALJ for the last 11 years, and before
that was in private law practice in Atlanta for 17 years. I am
one of those in the trenches, so to speak, hearing each year
hundreds of disability cases in which the claimant may or may
not have representation. At the outset, let me say that the
section agrees with the Commissioner's assessment that there is
a need to make substantial changes in the disability
determination process. All of us who are concerned with the
case backlogs and delays caused by the current system share the
belief that justice delayed is, indeed, justice denied. We
believe that we can, indeed we must, do better. The
Commissioner's plan leaves us hopeful that deserving Americans
will receive their benefits sooner than they do now as a result
of the changes we are considering at this juncture.
As you know this is not SSA's first attempt to lessen case
processing and streamline the adjudicatory process. Some of
those past efforts have been far from successful. However, it
is our sense that the current proposed reforms have a better
chance of succeeding. The replacement of the current
reconsideration process with that of the Reviewing Official
(RO) could substantially reduce the number of cases passing on
to the ALJs for hearings. If that occurs, the Commissioner's
plan will achieve a significant result, as today the number of
cases pending before ALJs is nothing short of staggering. In
the late '90s, the Atlanta North Office of Hearings and Appeals
(OHA) office participated in the adjudication officer pilot
program and many found it to be a highly desirable improvement
in the disability adjudication process. They were disappointed
when the program was discontinued, apparently due to budget
constraints. The current proposed plan bears many resemblances
to the adjudication officer program, and, for that reason, the
section is hopeful that the Commissioner's plan will succeed.
In my written testimony, I have identified the Sections
concerned with various aspects of the Commissioner's plan,
including the RO, the Disability Review Board (DRB), the
closing of the record at the time of the ALJ decision, and the
likely consequences of a abolishing the Appeals Council and its
impact on the Federal District Courts. The section plans to
submit comments to the Commissioner in these areas as well as
others, including video-teleconferenced hearings, dismissals,
the staged implementation of the DRB and the DRB standards in
reviewing ALJ decisions. I would be happy to discuss these
matters with your Committee as well. I would like to highlight
one of the areas in which we have indicated our concern--review
by the DRB.
The DRB provisions in the proposed regulations raise
several issues. First, there is no claimant right to request
review of an ALJ decision except in one area and that involves
dismissals. Thus, the claimant, the adversely affected party,
has no administrative mechanism for initiating review of
anything other than dismissals. The consequence of that will
fall upon the District Courts unless the Commissioner's other
reforms succeed in lessening the number of cases reaching the
ALJ level in the first place. Second, there is no defined
standard for the selection of cases for review by the DRB.
Third, the DRB is granted authority, while it is reviewing the
case, to itself obtain new evidence. It is permitted to obtain
a medical opinion on a case from the FEU. At the time the DRB
is permitted to itself obtain and consider evidence, the
claimant is prohibited from submitting any new and material
evidence. Further, not only is the DRB permitted to obtain
evidence, and the claimant prohibited from submitting any new
evidence, the DRB is apparently authorized nevertheless to use
the new evidence to reverse the ALJ decision in its entirety.
It is hard to imagine that such a procedure would pass
constitutional challenge by a claimant. We again thank the
Committee for this opportunity, and I would be pleased to
answer questions or submit written follow up as your Committee
may wish.
[The prepared statement of Mr. McDonald follows:]
Statement of The Honorable Judge Dana E. McDonald, Immediate Past
Chair, Social Security Section, Federal Bar Association, Atlanta,
Georgia
Chairmen McCrery and Herger and Members of the Subcommittees:
I am Judge Dana McDonald, Immediate Past Chairman of the Social
Security Section of the Federal Bar Association. I am an administrative
law judge in the Office of Hearings and Appeals of the Social Security
Administration in its Atlanta North office. As an Administrative Law
Judge in the Social Security Administration for the past decade, I have
heard and decided thousands of appeals. I am very pleased to be here
today representing the Social Security Section of the Federal Bar
Association (FBA). My remarks today are exclusively those of the Social
Security Section of the Federal Bar Association, not the FBA as a
whole. Moreover, they are not intended to reflect the official views or
position of the Social Security Administration.
Thank you for convening this hearing this afternoon on a matter of
critical importance to the Federal Government's delivery of vital
Social Security programs to the American people. As of July 2005, the
Social Security Administration's Disability Insurance program provided
$6.2 billion in monthly benefits to more than eight million disabled
workers and their families. And by 2013, the SSA expects the DI rolls
to grow by 35 percent, due to the retirement of members of the Baby
Boom generation. Administration of the Disability Insurance program
poses real challenges for SSA, as disability claims increase and
pending caseload numbers rise. In prior Congressional testimony, our
Section has expressed its deep concern that current delays at the
Social Security Administration in the processing of disability claims
are unacceptable and that the quality of decisions at all levels is
less than ideal. We believe that the satisfaction of SSA's obligation
to provide timely and considered review of all disability claims
requires a variety of reforms from the state DDS level to judicial
review available in federal court.
That is why the Social Security Section of the Federal Bar
Association has maintained a longstanding focus on the effectiveness of
the disability adjudicatory process, including hearings conducted by
the Office of Hearings and Appeals, the appeal process of the Appeals
Council and judicial review in the federal courts. We continue to
believe that an administrative hearing with due process for the
claimant represents the best means to arrive at the correct
determination of disability. Our highest priority in connection with
our review of the proposed regulations before you today, therefore, has
been devoted to the assurance of integrity, independence, fairness, and
effectiveness of the Social Security disability hearing process for
those it serves--Social Security claimants as well as American
taxpayers who have an interest in assuring that only those who are
truly disabled receive benefits.
With this in mind, we provide the following comments on the Social
Security Administration's proposed regulations, published on July 27,
2005, to improve the disability determination process.
Overall, we believe Commissioner Barnhart is to be applauded for
her considerable leadership over the past two years to streamline and
strengthen the quality and consistency of disability decisions. The
Commissioner has faced a daunting task, and has proposed a
comprehensive framework that now deserves careful scrutiny by Congress,
stakeholder interests and the American public.
Generally, we believe that the elimination of the ``rubber stamp''
reconsideration level, as proposed by the regulations, will streamline
the process and reduce the time span of a disability claim. The
transfer of authority from the Appeals Council to the Decision Review
Board should also help to expedite the arrival of a correct, final
decision. At the same time, however, we fear that some proposed changes
may undermine efforts to develop a full and fair record, as well as the
independence and authority of administrative law judges. If our
concerns prove correct, the availability of a fair hearing with due
process will be lost for some claimants, and their disability
applications may not be accurately determined.
Our comments today focus on six areas that are key components of
the proposed regulations:
The role and authority of the Reviewing Official
Creation of the Federal Expert Unit
The role and authority of Administrative Law Judges
The Decision Review Board and the scope of its review
Reopening of the hearing record; and
The value of Work Opportunity Initiative demonstration
projects
The Role and Authority of the Reviewing Official
Under the Social Security Administration's proposed rules, if a
claimant is dissatisfied with the determination made by the state
agency, the claimant may appeal the determination to a federal
Reviewing Official, who will conduct a review of the claim. The
Reviewing Official will review the state administrative record and
issue a decision in the case or return the case to the state agency.
We believe the Reviewing Official can perform a very useful role in
acting on initial determinations and assuring the payment of disability
benefits to obviously disabled claimants sooner than under the current
system. We recommend that it operate in a fashion similar to the former
``senior attorney program.'' Adequate staffing and resources will be
critical to assure accurate and expeditious action by Reviewing
Officials on claims.
We have several reactions to the role and authority of the
Reviewing Official, as proposed by the regulations. First, we believe
that the Reviewing Official should have greater authority than
conferred by the Commission's proposal. Specifically, the Reviewing
Official should have the discretion to award benefits without being
bound by the proposed regulatory requirement to obtain additional input
from a non-examining medical expert. The Reviewing Official's
independent review of the existing record should be sufficient; not all
cases should necessarily require the consideration of additional
medical evidence. The Reviewing Official should be permitted, of
course, to obtain expert opinion from a non-examining physician on an
as-needed basis.
Second, although we applaud the use of in-line quality assurance
effort, we believe that quality assurance should occur after the
Reviewing Official allows or disallows an application for disability
benefits. Quality assurance at that juncture will not delay the
administrative process. If the claim were not allowed, the claimant
could immediately request review through a hearing before the
Administrative Law Judge.
Third, the review conducted by the Reviewing Official should not
take longer than ``reconsideration'' does now. And the Reviewing
Official's denial should be entitled to no more weight than a
reconsideration denial currently receives from an Administrative Law
Judge. The ALJ should neither be permitted to simply adopt the
Reviewing Official's report, nor be expected to have to rebut the RO's
denial. The ALJ is making a de novo examination of the evidence and the
claim itself.
Fourth, we agree with the proposed regulation that the
characteristics of this position are ideally suited for an attorney.
The position description of the Reviewing Official should require a law
degree as a condition of employment.
Creation of a Federal Expert Unit
The proposed regulation contemplates more extensive use of medical
and vocational experts to arrive at just and legally correct decisions,
in accord with the meaning of ``disability'' under the Act. We believe
the proper use of medical and vocational experts will contribute to an
efficient, accurate and fair adjudication process. The creation of a
Federal Expert Unit, to assure that medical, psychological and
vocational experts are consistently available to all adjudicators at
every level or in all parts of the country, is commendable.
However, we believe that the Social Security Administration may too
rigidly and narrowly set the qualification requirements for experts
affiliated with the Federal Expert Unit. We believe that qualified
experts should be those who possess a combination of clinical and
consulting practice experience, or alternatively, extensive clinical
experience. For example, a practicing physician from a public hospital
is fully capable of making the requisite nuanced judgments about the
severity of particular conditions within his area of expertise.
Similarly, a vocational expert who currently talks to employers and
actually places workers is more knowledgeable than a vocational expert
who only testifies at hearings. Some of the members of our Section--
particularly Administrative Law Judges and practicing attorneys--have
expressed the concern that without extensive clinical experience,
medical experts' opinions will not sufficiently focus on the record of
the individual claimant before them and rely more on general medical
judgments.
We further believe that vocational experts are best sited not at a
centralized location, but instead in the locale from which they will
testify. This is especially important because a significant portion of
a Vocational Expert's testimony addresses the presence or absence of
jobs within a particular geographic region. The qualifications of
vocational experts in the Federal Expert Unit should include practical
experience, as well as knowledge of the claimant's corresponding local
job market.
The Role and Authority of Administrative Law Judges
The Administrative Law Judge must be empowered to conduct a full
and fair hearing and make a de novo decision. To accomplish this, the
opinion of the Reviewing Official under the proposed regulations should
be given no more weight by the Administrative Law Judge than the
reconsidered decision is accorded under the current rules.
The proposed regulations seek to improve the timeliness of the
hearing process by revising the rules setting the timeframes for
submitting evidence and the closing of the record. We applaud the
concept of closing the record at the time of the Administrative Law
Judge's decision. However, we are concerned that the 45-day notice of
hearing, which effectively allows a 25-day period for the claimant to
submit evidence to the ALJ (all evidence must be submitted within 20
days of the hearing), does not provide sufficient time for claimants to
gather the relevant evidence. While it is difficult to schedule three
months ahead of time, we believe a 90-day notice of hearing is more
appropriate. Three months notice is fairer to claimants to permit them
adequate time to obtain all appropriate evidence prior to the hearing.
We endorse the regulations' commitment to empower Administrative
Law Judges to conduct hearings as the needs of justice require.
Adjudicatory fairness requires that ALJ's continue to possess the
discretion to keep the record open, to obtain post-hearing consultation
evidence, and to contact physicians as necessary. The ALJ must continue
to have the duty to assure the development of a full and fair record.
We also endorse the regulations' proposed requirement that claimants
shall submit appropriate evidence in support of their claim no later
than 20 days before hearing, and that the record in the case shall
close at the time of the ALJ decision. Our endorsement rests upon the
belief, however, that a 90-day notice of hearing (not a 45-day notice)
is the better approach, and that more liberal reopening procedures than
those proposed are necessary to afford fairness to the claimants. We
expect that in the large majority of cases, a claimant will submit all
the evidence prior to the hearing, the ALJ will consider it, and the
ALJ will promptly issue a correct decision regarding the eligibility of
the claimant to benefits. As discussed below, however, there will be
situations that cry out for more liberal reopening provisions than
those currently proposed.
The Decision Review Board and Its Scope of Review
Our greatest reservations with the regulations rest with the Social
Security Administration's proposal to transfer important and critical
functions currently performed by the Appeals Council to the Decision
Review Board. We agree with SSA that greater focus needs to be placed
upon the prompt identification of significant decisional errors and the
identification of policies and procedures that will improve decision
making throughout the disability determination process.
We believe that appellate review between the ALJ and the federal
district court, exercised by an entity such as the Decision Review
Board, should exist to correct blatantly obvious mistakes. Without such
review, a significant increase in federal court litigation is likely to
come about. With this in mind, the scope of Decision Review Board
review, we believe, should be expanded to include a mechanism whereby
claimants can seek the correction of gross error by an Administrative
Law Judge.
Currently, the Appeals Council remands approximately a quarter of
the cases where claimants request review. Under the proposed
regulations, except in certain limited exceptions, claimants will not
have the right to request Decision Board review. We differ with this
approach and believe that entitlement to request DRB review should be
available to both the claimant and SSA, and that each party should be
permitted to comment on the other's review request.
Finally, and most important, we believe the regulations fail to
provide sufficient safeguards to guard against the DRB's encroachment
upon ALJ independence. We believe that, unless properly checked,
quality assurance programs possess the capacity to diminish the
fairness and independence of the Administrative Law Judge. The
regulations therefore should expressly bar the Decision Review Board
from overruling the Administrative Law Judge on findings of credibility
or findings of fact. Otherwise, the fairness of the disability hearing
process will be in jeopardy. The dividing line between issues of law
and issues of fact can be easily blurred in the context of disability
adjudication, and we urge that the distinction be sharply and clearly
drawn in order to protect claimants from substitution of judgment by
the DRB for that of the Administrative Law Judge.
Reopening of the Record
The proposed rules are much more restrictive than the current rules
on reopening. There is no provision for reopening when new and material
evidence is submitted. Given that the Social Security Administration's
proposal envisions that the record will generally close at the time the
ALJ issues his decision, and given the strict time limitations on the
submission of evidence, the need for reopening is more compelling than
it has been in the past.
The proposed regulations are likely to work smoothly for claimants
who have the assistance of counsel, but poorly for unrepresented
claimants. Claimants without benefit of counsel may not understand
their duty to acquire all relevant information three weeks before a
hearing; they may not appreciate the fact that school or mental health
records are relevant to a disability determination. We know from
experience that in some cases definitive medical tests may not be
administered in time until after the ALJ decision, with results that
could well lead to a different ALJ decision. Similarly, the
participation of new doctors not previously associated in some cases
may lead to a new definitive diagnosis of a prior long-standing
condition. None of these hypothetical situations necessarily demand re-
opening in a legal sense, but fairness dictates, we believe, that an
ALJ possess the discretion to review his prior determination in light
of these new circumstances. The need to do so is particularly
compelling when a claimant's date last insured has expired and benefits
can only be allowed by reopening of a prior application. At a minimum,
the new regulations should run parallel to the current procedures,
found at 20 C.F.R. Sec. 404.988. Under those rules, an ALJ's
determination may be reopened within 12 months of the date of the
notice of the initial determination--for any reason; and within four
years of the date of the notice of the initial determination--if there
is good cause. We believe ``good cause'' should include the submission
of new and material evidence, even after a hearing decision. Otherwise,
the only alternative available to a claimant with material post-
decisional evidence is to file a civil complaint in federal court,
where the statutory right to submit new and material evidence exists.
If there is not an administrative mechanism to permit the submission of
new and material evidence after an ALJ decision, affected claimants
will have no forum except federal court for the purpose of evaluating
new evidence. The absence of such opportunity is likely to contribute
to an increase in federal court litigation, adding unnecessary burdens
to claimants and the already over-taxed federal court system.
The Value of Work Opportunity Initiative Demonstration Projects
Finally, we applaud the Commissioner's practical and forward
thinking embodied in the three demonstration projects within the Work
Opportunity Initiative. These programs offer short-term medical
benefits to qualifying claimants as a gateway back to gainful
employment. We believe that a sizable number of claimants could rapidly
return to work if only they had access to effective medical care. As
medical costs continue to rapidly escalate, these demonstration
projects may provide a valuable alternative for some claimants on their
journey back to gainful activity.
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 working 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 HERGER. Thank you very much. Mr. Marioni?
STATEMENT OF ANDREW MARIONI, PRESIDENT, NATIONAL COUNCIL OF
DISABILITY DETERMINATION DIRECTORS, NEW CASTLE, DELAWARE
Mr. MARIONI. Mr. Chairman, thank you for the opportunity to
address the Subcommittees on Social Security and Human
Resources concerning the proposed regulations to restructure
the disability determination process. The National Council of
Disability Determination Directors (NCDDD) fully supports the
goals of the Commissioner to decrease decision times,
streamline procedures and processes, provide for accurate
decisions as early in the process as possible, and improve
quality and consistency in decisionmaking and accountability
enterprise wide. We believe the overall plan is the agency's
best effort to date at constructing a process that addresses
the stated goals. However, we also believe it can be further
improved.
Overall, the proposed regulations contain numerous positive
changes that will increase efficiency, accuracy, and
consistency. However, we are deeply concerned about the lack of
operational detail. Without such detail, we cannot know whether
the ultimate effects will be positive or negative. In the case
of the quick disability determinations, for example, the
validity and accuracy of the predictive software is crucial to
the success of quick decisions. The software's capabilities
will need to consider more than alleged impairment. It must
consider technical issues, such as date last insured, onset,
currency of medical treatment, and case development issues.
The regulations are silent as to how this software will
identify appropriate cases for quick decisions. The proposed
FEU, which includes State agency medical consultants, can
provide many DDS's with additional access to medical and
vocational expertise. However, the DDS community is concerned
that a rigid approach to establishing qualification standards
for inclusion into the FEU may undermine efforts to retain
valuable State agency consultants. We believe that programmatic
experience and demonstrated performance are the best indicators
for qualified Federal experts. The preamble to the proposed
regulations calls for a new centrally managed quality assurance
system to be applied throughout the disability determination
process. A centralized quality function has long been supported
by the NCDDD as an effective method to institutionalize uniform
policy interpretation and application.
The proposed regulations, however, do not adequately
address the longstanding disconnect between policy and the
reviewing component of the SSA. We believe there must be an
integration of the reviewing component and the policy component
to assure uniformity and consistency at all levels of the
adjudicative process. As an organization, we are not convinced
of the value added to the program by limiting the RO position
to attorneys. This requirement effectively excludes many
qualified individuals who have extensive experience and
expertise in applying the laws and regulations as well as
integrating the medical and vocational aspects of the program.
The position should be open and competitive and selection
made on the basis of experience and proven performance, not on
the type of degree held. The increased administrative costs
associated with hiring attorneys should also lead one to
question the wisdom of this approach, especially in times of
challenging Federal budgets. The proposed regulations are
replete with many new mechanisms to assure accountability and
consistency in decisionmaking. We cannot neglect to point out
the difference in the reviewing standards exercised at the DDS
reviewing official and the Office of Hearing and Appeal levels.
The regulations require all adjudicative components to use a
preponderance of evidence standard. However, only the DDS and
reviewing official will be reviewed using the preponderance
standard.
We believe there must be uniform standards of
decisionmaking and review for all adjudicative levels or risk
the failure to achieve improved consistency in decisionmaking.
Too often the reins of decisionmaking between adjudicative
levels on cases with similar findings is startling. Having a
different review standard at OHA will inevitably perpetuate
disparate decisions between components. Process and procedural
changes of this magnitude must always be considered in light of
projected costs. The regulations report an estimated total
program cost of $1.265 billion, with increasing costs for 10
consecutive years. What is lacking is any real data to support
the costs and a discussion of assumptions that were used to
conclude the estimated costs. For example, what data was used
to predict allowance rates at the DDS, RO, and OHA, which would
have a significant impact on program benefit outlays.
In an environment of limited funding, is this affordable?
Is it justifiable on a cost-benefit basis? Furthermore, there
is no discussion of projected administrative costs, despite the
inclusion of two new expensive bureaucracies, the RO and the
FEU. The NCDDD believes further study and clarification is
needed before the costs can be deemed acceptable. The NCDDD
stands ready to work cooperatively with the Commissioner to
develop an efficient and cost effective operational plan that
will ensure the success of this critical initiative. Mr.
Chairman, thank you again for the opportunity to testify.
[The prepared statement of Mr. Marioni follows:]
Statement of Andrew Marioni, President, National Council of Disability
Determination Directors, New Castle, Delaware
Mr. Chairmen, thank you for the opportunity to address the
Subcommittees on Social Security and Human Resources concerning the
proposed regulations to restructure the disability determination
process.
The National Council of Disability Determination Directors (NCDDD)
is a professional association composed of the directors and managers of
the 53 Disability Determination Service (DDS) agencies located in each
state, the District of Columbia, Puerto Rico, and Guam. Collectively,
members of the NCDDD are responsible for directing the activities of
nearly 15 thousand employees engaged in processing approximately 4
million claims per year for disability benefits under the Social
Security Act. NCDDD's goals focus on establishing, maintaining and
improving fair, accurate, timely, and cost-efficient decisions to
persons applying for disability benefits. The mission of the NCDDD is
to provide the highest possible level of service to persons with
disabilities, to promote the interests of the state operated Disability
Determination Services, and to represent DDS directors, their
management teams and staff.
The NCDDD fully supports the goals of the Commissioner to decrease
decision times, streamline procedures and processes, provide for
accurate decisions as early in the process as possible, and improve
quality, consistency in decisionmaking and accountability enterprise
wide. We believe the overall plan is the Agency's best effort to date
at constructing a process that addresses the stated goals. However, we
also believe it can be further improved.
My purpose today is to provide you with a high level NCDDD
perspective on the proposed process revisions. For the past five weeks,
six NCDDD committees, representing DDSs in all ten regions of the
nation, have been meeting to gather membership input and provide
reports and recommendations to the NCDDD leadership on the major
components of the new disability determination process. These
recommendations will form the basis of the NCDDD's comments to be
submitted to the Commissioner within the next several weeks. We look
forward to sharing our comments and recommendations with the
Subcommittees.
Overall, the proposed regulations contain numerous positive changes
that will increase efficiency, accuracy and consistency. However, we
are deeply concerned about the lack of operational detail. Without such
detail, we cannot know whether the ultimate effects will be positive or
negative. In the case of the Quick Disability Determinations, for
example, the validity and accuracy of the predictive software is
crucial to the success of Quick Decisions. The software's capabilities
will need to consider more than alleged impairment. It must consider
technical issues such as date last insured, onset, currency of medical
treatment and case development issues. The regulations are silent as to
how this software will identify appropriate cases for Quick Decisions.
The proposed Federal Expert Unit (FEU), which includes state agency
medical consultants, can provide many DDSs with additional access to
medical and vocational expertise. However, the DDS community is
concerned that a rigid approach to establishing qualification standards
for inclusion into the FEU may undermine efforts to retain valuable
state agency consultants. We believe that programmatic experience and
demonstrated performance are the best indicators for qualified federal
experts.
The preamble to the proposed regulations calls for a new centrally
managed quality assurance system to be applied throughout the
disability determination process. A centralized quality function has
long been supported by the NCDDD as an effective method to
institutionalize uniform policy interpretation and application. The
proposed regulations, however, do not adequately address the
longstanding disconnect between policy and the reviewing component of
SSA. We believe there must be an integration of the reviewing component
and the policy component to assure uniformity and consistency at all
levels of the adjudicative process.
As an organization, we are not convinced of the value added to the
program by limiting the Reviewing Official (RO) position to attorneys.
This requirement effectively excludes many qualified individuals who
have extensive experience and expertise in applying the laws and
regulations as well as integrating the medical and vocational aspects
of the program. The position should be open and competitive and
selection made on the basis of experience and proven performance, not
on the type of degree held. The increased administrative costs
associated with hiring attorneys should also lead one to question the
wisdom of this approach especially in times of challenging federal
budgets.
The proposed regulations are replete with many new mechanisms to
assure accountability and consistency in decisionmaking. But we cannot
neglect to point out the difference in the reviewing standards
exercised at the DDS, Reviewing Official, and Office of Hearings and
Appeals (OHA) levels. The regulations require all adjudicative
components to use a preponderance of evidence standard. However, only
the DDS and Reviewing Official will be reviewed using the preponderance
standard. We believe there must be uniform standards of decisionmaking
and review for all adjudicative levels or risk the failure to achieve
improved consistency in decisionmaking. Too often the range of
decisionmaking between adjudicative levels on cases with similar
findings is startling. Having a different review standard at OHA will
inevitably perpetuate disparate decisions between components.
Process and procedural changes of this magnitude must always be
considered in light of projected costs. The regulations report an
estimated total program cost of $1.265 billion dollars with increasing
costs for ten consecutive years. What is lacking is any real data to
support the costs and a discussion of assumptions that were used to
conclude the estimated cost. For example, what data was used to predict
allowance rates at the DDS, RO and OHA which would have a significant
impact on program benefit outlays? In an environment of limited
funding, is this affordable? Is it justified on a cost/benefit basis?
Furthermore, there is no discussion of projected administrative costs
despite the inclusion of two new expensive bureaucracies--the RO and
the FEU. The NCDDD believes further study and clarification is needed
before the costs can be deemed acceptable.
The NCDDD stands ready to work cooperatively with the Social
Security Administration to develop an efficient and cost-effective
operational plan that will ensure the success of this critical
initiative.
Mr. Chairmen, thank you again for the opportunity to provide this
testimony today. I will be happy to answer any questions you may have.
Chairman HERGER. Thank you. Mr. Sutton to testify.
STATEMENT OF THOMAS D. SUTTON, PRESIDENT, NATIONAL ORGANIZATION
OF SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES, TREVOSE,
PENNSYLVANIA
Mr. SUTTON. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today regarding the Commissioner's
proposed regulations. I am the President of the National
Organization of Social Security Claimants' Representatives
(NOSSCR), the members of which represent claimants in this
process and are intimately familiar with its problems. We are
supportive of the Commissioner's effort to streamline this
process, especially including the electronic folder, and we
think it will do a lot of good. However, we are very concerned
about some aspects of her proposal, due to some unintended
consequences that will do great harm to the rights of our
disabled clients.
In fact, under these proposed rules, we believe that a
significant number of claimants who are disabled will be denied
benefits simply because they were unable to produce all of
their medical records in time to meet the deadlines. The
records that proved their disability will never be considered
on appeal. I want to highlight three particular problems with
the proposed rules. First, claimants would have the right to
submit evidence only until 20 days before the hearing. After
that, ALJs would consider evidence only if they found good
cause for its late submission. This is an unprecedented change,
which we believe is inconsistent with the Social Security Act,
which provides the decisions are to be made based on ``evidence
adduced at the hearing.'' We also believe that compliance with
this regulation will prove to be extremely difficult in many
cases. In my own small law firm, we employ people full time
just to gather medical records for our clients. Even with
significant resources devoted to this task, however, we are
often unable to submit records prior to the hearing because
medical providers are so slow to respond.
When clients retain our services with little time remaining
before the hearing, the task of obtaining these records becomes
even more arduous. For those claimants who never find counsel
and attempt to represent themselves, obtaining complete medical
records is virtually impossible due to lack of knowledge and
inadequate funds to pay copying services. Under these rules,
claimants will have less than 25 days after receiving notice of
a hearing date to submit all updated medical records. Nothing
in the law requires medical providers to turn over records this
quickly, so claimants will be at the mercy of ALJs to find good
cause if they don't have all the records. Some will do so.
Other ALJs may rigidly enforce the new 20-day deadline, leading
to the following nightmare scenario: The claimant hires an
attorney when she receives a notice 45 days before the
scheduled hearing. The attorney locates recent medical records
which show that what was previously unexplained, severe fatigue
is actually caused by multiple sclerosis. The records are only
received in time to submit them to the ALJ 10 days before the
hearing rather than 20 days before.
The ALJ rules that the claimant should have obtained the
records herself or retained counsel earlier and refuses to
consider the updated medical evidence at the hearing, instead
issuing a decision denying benefits based on an incomplete
medical record. This is not an outcome that anyone should
welcome. It can definitely happen under these proposed rules
because claimants must depend on the discretion of the ALJs to
look at evidence which was obtained less than 20 days before
the hearing. If that discretion is abused in certain cases, the
claimant will not be able to appeal to anyone at the agency,
but will have to file suit in the Federal District Court, where
a judge will be asked to decide not whether the evidence proves
disability, but whether the ALJ was wrong to refuse to consider
the evidence. All of this will happen because of impractical
and unworkable deadlines, which will result in decisions based
on incomplete records that cannot be repaired, and which will
lead to litigation which should not have been necessary in the
first place. We submit that such results are not only unfair to
the claimants, but are also extremely inefficient and, thus, do
not advance the Commissioner's goals.
Second, the new rules would prohibit an ALJ from reopening
a prior decision based on new and material evidence showing
that it was wrong. Under existing regulations, such reopening
has never been required, and has happened only in certain
cases. It has been used by ALJs to right obvious wrongs. In one
recent case, one of our clients, Mrs. O, had back surgery with
initial improvement, which the State agency used to deny her
claim just after her insured status had expired. Fusion was
attempted in a second operation only months later, but the
State agency refused to consider her new application because
her insured status had expired. Finally, because new evidence
showed the fusion failed and a third surgery was required an
ALJ appropriately reopened the earlier denial and awarded Mrs.
O her benefits.
These proposed rules would have barred that ALJ from
reopening the earlier determination and Mrs. O would have been
forever barred from reapplying for the disability insurance
benefits to which she was clearly entitled under the statute.
This kind of harsh result is unthinkable under the rules that
have been in place for decades. It would be inevitable under
the new rules because the ALJ would have no choice in the
matter. The prior decision could never be reopened no matter
what new evidence was obtained. Finally, the proposed rules
take away a claimant's right to appeal an ALJ decision within
the agency. Under current regulations, the Appeals Council
decides nearly 100,000 cases a year on average. Those 100,000
claimants will have no recourse other than filing lawsuits in
the District Courts. Some will never find experienced counsel
to file suit and will lose their right to appeal. Those who
retain counsel could exponentially increase the number of
Social Security cases filed in the courts.
Such a docket explosion would be unacceptable to the
courts, but it is virtually certain to happen under the new
rules. Indeed, since many of the new filers would have been
expected to get relief from the Appeals Council, if it still
existed, it is highly likely that they would obtain favorable
decisions in the courts, leading to mountains of remanded cases
at the ALJ level. In other words, while the Commissioner may
believe she is reducing processing times by exporting a backlog
of cases to the courts, she may ultimately be forced to re-
import that backlog through court orders, thus defeating her
original purpose. As laudable as the Commissioner's goals are,
they will not be well served by these aspects of the proposed
rules. We urge the Commissioner to make significant changes in
the rules that will protect claimants' rights to decisions,
that are not just vast, but are based on all the evidence, and,
thus fair to claimants. Nothing less should be acceptable to
this Congress or to the Commissioner. Thank you very much.
[The prepared statement of Mr. Sutton follows:]
Statement of Thomas D. Sutton, President, National Organization of
Social Security Claimants' Representatives, Trevose, Pennsylvania
Chairman McCrery, Chairman Herger, Representative Levin,
Representative McDermott, and Members of the Social Security and Human
Resources Subcommittees, thank you for inviting NOSSCR to testify at
today's hearing on the Commissioner's proposed regulations to improve
the disability claims process.
My name is Thomas D. Sutton 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 the Philadelphia,
PA area. Adding to my experience in legal services programs, I have
represented claimants in Social Security and SSI disability claims for
the past 19 years. While I represent claimants from the initial
application through the Federal court appellate process, the majority
of my cases are hearings before Social Security Administrative Law
Judges and appeals to the Social Security Administration's Appeals
Council. This also is true for most NOSSCR members. In addition, I
represent claimants in federal district court and in the circuit courts
of appeals.
We agree with the Commissioner that reducing the backlog and
processing time must be a high priority and we urge commitment of
resources and personnel to reduce delays and to make the process work
better for the public. We strongly support changes to the process so
long as they do not affect the fairness of the procedures used to
determine a claimant's entitlement to benefits. The Commissioner's July
27th notice of proposed rulemaking (NPRM), published at 70 Fed. Reg.
43590, does provide some positive changes. However, our overarching
concern is that some aspects of the proposed process elevate speed of
adjudication above accuracy of decisionmaking. From our perspective as
advocates for claimants with disabilities, this is problematic and not
appropriate for a nonadversarial process.
It is appropriate to deny benefits to an individual who is found
not eligible, if that individual has received full and fair due
process. It is not appropriate to deny benefits to an eligible
individual simply because he or she has been caught in a procedural
tangle. Especially vulnerable will be unrepresented claimants. There
are serious concerns that claimants will be denied not because they are
not disabled, but because they have not had an opportunity to present
their case.
NOSSCR will provide detailed comments to the NPRM by the October
25th deadline. My testimony today will highlight our major concerns and
provide some alternative approaches.
I. Improving the Process with New Technology and Early Development of
the Evidence
Before addressing our specific reactions to the NPRM, I would like
to address two issues, which are not part of the NPRM, that could
significantly improve the decisionmaking process and decrease
processing times.
First, Commissioner Barnhart has announced major technological
initiatives to improve the disability claims process, which NOSSCR
generally supports. In several states, SSA has begun to process some
disability claims electronically. This initiative has the prospect of
significantly reducing delays by eliminating lost files, reducing the
time that files spend in transit, and preventing misfiled evidence.
Claimants' representatives are able to obtain a single CD that contains
all of the evidence in the file. We want to thank the Commissioner for
her inclusive process to seek comments about these 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.
Second, there should be better development of the record at the
beginning of the claim so that the correct decision can be made at the
earliest point possible. Claimants should be encouraged to submit
evidence as early as possible. The benefit is obvious: the earlier a
claim is adequately developed, the sooner it can be approved. However,
based on my own experience and that of other NOSSCR members, critical
pieces of evidence are missing when claimants first come to me for
representation and it is necessary for representatives to obtain this
evidence.
Recommendations to improve the development of evidence include: (1)
SSA should explain to the claimant in writing, at the beginning of the
process, what evidence is important and necessary; (2) DDSs need to
obtain necessary and relevant evidence, especially from treating
sources, including non-physician sources (therapists, social workers)
who see the claimant more frequently than the treating doctor and have
a more thorough knowledge of the claimant; (3) Improve provider
response rates to requests for records, including more appropriate
reimbursement rates for medical records and reports; and (4) Provide
better explanations to medical providers, in particular treating
sources, about the disability standard and ask for evidence relevant to
the standard.
II. Reviewing Official
This is the first administrative appeal in the proposed process. In
performing his or her job, the Reviewing Official (RO) is caught
between the DDS and the Federal Expert Unit (FEU). In previous
testimony, we have supported elimination of the reconsideration appeal
level. SSA has tested the elimination of reconsideration in ten
``prototype'' states for several years, including Pennsylvania where I
practice. Our members in those states report that the process works
well without a review level between the initial determination and the
ALJ level.
If there is a Reviewing Official, we support the use of attorneys
to be ROs and who are, as discussed in the NPRM preface, ``highly
qualified'' and ``thoroughly trained'' in SSA policies and procedures.
However, the RO's authority must be clarified. Under the NPRM, the RO
must ``consult'' with the FEU if a claimant submits new and material
evidence. If the RO disagrees with the DDS denial, the FEU must
``evaluate'' the evidence. Is the decisionmaker really the RO or the
FEU? The final rule must establish that the RO, and not the FEU, is the
final arbiter.
Another concern is that under the NPRM, the claimant is only
allowed to submit new evidence with the request for review. After that
point, only the RO can obtain new evidence and the RO could refuse to
consider new evidence.
Recommendation. To ensure fairness and a complete record, we
recommend that the claimant be allowed to submit new evidence as it
becomes available up to the date that the RO issues the decision.
III. Administrative Law Judge
The NPRM includes some provisions that 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
hearing be held within 90 days after the appeal is filed. Also, the
time for providing notice of the hearing date is increased from 20 to
45 days. However, there are a number of procedural changes that are
disadvantageous to claimants. The proposed rule creates strict limits
and procedures for submission of new and material evidence. For many
claimants who meet the statutory definition of disability, the result
could well be a denial based on an incomplete record.
Duty to submit evidence twenty days before the hearing. The NPRM
requires that a claimant submit evidence at least 20 days before a
hearing, with very limited exceptions. It is in the ALJ's discretion to
accept or reject evidence submitted less than 20 days before the
hearing; no standards are set out for this decision. The preface does
not claim that this evidence is somehow less valuable or probative in
determining disability; instead it states that ``late submission'' of
evidence ``significantly impedes our ability to issue hearing decisions
in a timelier manner'' and ``reduces the efficiency of the hearing
process because we often must reschedule. . . .''
Closing the record before the hearing is inconsistent with the
Social Security Act. The Act provides the claimant with the right to a
hearing with a decision based on ``evidence adduced at the hearing.''
42 U.S.C. Sec. 405(b)(1). The current regulations reflect the statute,
providing that ``at the hearing'' the claimant may submit new evidence.
20 C.F.R. Sec. 404.929. A previous proposal to set a due date for
submission of evidence was abandoned by SSA because it appeared to
close the record in contravention of the statute. See 68 Fed. Reg.
41411-12 (Aug. 4, 1998) (final rule on Rules of conduct and standards
of responsibility for representatives, codified at 20 C.F.R.
Sec. 404.1740).
In addition to this statutory requirement, there are many practical
and fairness reasons why the record should not be closed. Are these
administrative efficiency goals more important than developing a full
and complete record of evidence for the claimant? What about case law
in every Circuit holding that ALJs have a duty to develop the evidence?
What about a claimant who seeks representation fewer than 20 days
before the hearing? Based on my own experience and that of other NOSSCR
members, this is not an uncommon occurrence since the ALJ hearing is
the claimant's first in-person contact with an adjudicator (this would
not change under the NPRM). The ALJ is required to explain the right to
representation and postpone the hearing if an unrepresented claimant
wishes to seek a legal representative. Under the NPRM, how would this
situation affect the requirement that a claimant submit evidence within
20 days of the hearing, given the fact that representatives play a key
role in obtaining evidence?
We strongly support the submission of evidence as early as
possible, since it means that a correct decision can be made at the
earliest point possible. However, there are many legitimate reasons why
evidence is not submitted earlier and thus why closing the record will
not help claimants, including: (1) worsening or clarified diagnosis of
the medical condition which forms the basis of the claim; (2) factors
outside the claimant's control, such as beleaguered or uncooperative
medical sources who simply do not respond promptly to requests for
records; and (3) the need to keep the process informal.
In the vast majority of cases, there are justifiable reasons why
evidence is not submitted earlier in the process. However, we do not
support the withholding of evidence by representatives. If an ALJ
believes that a representative has acted contrary to the interests of
the client/claimant, remedies other than closing the record, which
would only penalize the claimant, exist to address the representative's
actions. For instance, as discussed below, the current Rules of Conduct
already require representatives to submit evidence ``as soon as
practicable'' and to act with ``reasonable diligence and promptness''
and establish a procedure for handling complaints.\1\
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\1\ 20 C.F.R. Sec. Sec. 404.1740 and 416.1540. In a 1999 letter
report to Rep. E. Clay Shaw, Jr., when he was chairman of the Social
Security Subcommittee, and to Rep. Mac Collins, the Government
Accountability Office found that SSA does have tools to deter delay,
including reducing representatives' fees or use of the Rules of
Conduct. Social Security: Review of Disability Representatives, GAO/
HEHS-99-50R (Mar. 4, 1999).
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Submission of evidence after the hearing. After the ALJ decision,
opportunities to submit new evidence are even more limited under the
NPRM, with narrow exceptions and procedural hurdles to overcome. A
request to submit must be made within 10 days after receiving the ALJ
decision. Unless the claimant can show that there was an unforeseen and
material change, the claimant must first ask the ALJ at the hearing to
keep the record open. The ALJ is under no obligation to grant the
request. If the ALJ does not grant the request, the claimant cannot
submit the evidence. Even if the ALJ keeps the record open, the
claimant must show good cause for missing the deadline. The ALJ has the
discretion to find that there was no good cause.
Under the current process, ``new and material evidence'' can be
submitted with an appeal to the Appeals Council. 20 C.F.R.
Sec. Sec. 404.970(b) and 404.976(b). But since the claimant's right to
request review of an unfavorable ALJ decision is eliminated in the
NPRM, the opportunity to submit newly obtained evidence after the
hearing evaporates.
Contrary to assertions by some that there is an unlimited ability
to submit new evidence after the ALJ hearing, the current regulations
and statute are very specific in limiting that ability at later levels
of appeal. At the Appeals Council level, new evidence will be
considered, but only if it relates to the period before the ALJ
decision and is ``new and material.'' \2\ At the federal court level,
the record is closed and the court will not consider new evidence. The
court does have the authority to remand the case for SSA to consider
the additional evidence, but only if the new evidence is (1) ``new''
and (2) ``material'' and (3) there is ``good cause'' for the failure to
submit it in the prior administrative proceedings.\3\
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\2\ 20 C.F.R. Sec. Sec. 404.970(b) and 416.1470(b).
\3\ 42 U.S.C. Sec. 405(g).
---------------------------------------------------------------------------
Recommendations. We offer the following recommendations for the
submission of new evidence:
More notice of the hearing. Any prospect of improvement
with the proposed 45-day notice is essentially negated because of the
requirement to submit evidence 20 days before the hearing. While a full
45 days (without a 20-day pre-hearing time limit to submit evidence)
would be acceptable, a 60-day or even 90-day notice requirement would
significantly improve the ability to obtain and timely submit evidence.
No time limit to submit evidence before the hearing. This
is consistent with the claimant's statutory right that a decision be
based on evidence ``adduced at a hearing.'' The current rule, which
allows evidence to be submitted until the hearing, should be retained.
Submission of post-hearing evidence. If the record is
closed after the hearing, there should be a good cause exception that
allows a claimant to submit new and material evidence after the
hearing.
Early and easy access to the exhibit file. This allows
the representative to promptly review what is already in the record and
to determine what other medical evidence needs to be obtained. We
believe that this part of the process will be vastly improved with the
implementation of eDIB, the electronic folder.
Do not penalize claimants for circumstances outside their
control. While this applies to difficulties in obtaining evidence, it
also can apply if representatives act in a way contrary to the
interests of the client/claimant. ALJs can use the regulatory rules of
conduct for representatives. Claimants should not be penalized.
Duty to submit all ``available'' evidence, both favorable and
unfavorable to the disability claim. The NPRM requires the claimant to
submit all evidence ``available to you.'' This includes ``evidence that
you consider to be unfavorable to your claim.'' The preface clarifies
that this includes adverse evidence, i.e., evidence that ``might
undermine'' or ``appear contrary'' to the claimant's allegations.
The claimant is required to disclose material facts in his or her
claim for benefits. However, the proposed regulation could very well
set a trap for unsuspecting claimants. What is meant by ``available''?
Only that evidence which has been obtained or all evidence that exists,
regardless of the cost, time, or effort? What is meant by evidence you
``consider'' to be unfavorable? Is this too subjective? Who makes the
decision that evidence is ``available''? Would a claimant be penalized
if an adjudicator decided that there was noncompliance? Does this
requirement place an undue burden on claimants with mental or cognitive
impairments?
Another concern is that this proposed requirement could open the
process to manipulation by those who have a personal grudge against the
claimant or interests adverse to the claimant, e.g., former spouses,
creditors, insurance companies.
For attorney representatives, we have serious concerns that this
requirement may conflict with state bar ethics rules which limit the
submission of evidence that could be considered adverse to a client.
This proposed requirement seems to misunderstand the general duties and
obligations of attorneys. In every state, attorney representatives are
currently bound by state bar rules that forbid an attorney from
engaging in professional conduct involving dishonesty, fraud, deceit,
or willful misrepresentation. An attorney who violates this rule is
subject to disciplinary proceedings and possible sanction by the state
bar. Existing bar rules in every state also require an attorney to
zealously advocate on behalf of a client. An attorney who violates this
rule is also subject to sanction by the state bar.
Recommendation. We recommend that SSA continue to use the current
regulations regarding the duty of claimants and representatives to
submit evidence. In the experience of our members, these regulations
have worked well, especially when combined with the duty to inform SSA
of all treatment received.
Other issues at the ALJ hearing level
1. Issues to be decided by the ALJ. The NPRM requires that the
claimant ``must'' state the specific reasons why he or she disagrees
with the RO's decision when the hearing request is filed. Proposed
Sec. 405.310(a)(3). In contrast, the proposed rule for requesting RO
review of the initial denial states that the claimant ``should''
provide the reasons. Proposed Sec. 405.210(a)(3). Likewise, the current
regulation also uses ``should'' rather than ``must'' in this context.
20 C.F.R. Sec. 404.933(a)(2).
Issues often emerge or become clearer as the hearing process
evolves, for instance, as additional evidence is obtained and submitted
or when representation is obtained. Claimants should not be tied down
to issues listed at the time of their appeal. In addition, this
requirement would be extremely problematic for unrepresented claimants
who cannot be expected to know the details of SSA policies and
procedures. And what would happen if a claimant who is unrepresented at
the time the hearing request is filed obtains legal representation
later in the process? Would the representative be precluded by the ALJ
from raising additional issues?
Recommendation. Retain the current regulation language that states
a claimant ``should,'' but not ``must,'' provide specific areas of
disagreement at the time the request for hearing is filed.
2. Objecting to issues in hearing notice. The NPRM requires that
the claimant object to issues in the hearing notice within 10 days of
receiving the notice. Proposed Sec. 405.317(b). There is no opportunity
to extend this time limit. The current regulation provides flexibility,
stating that the objections should be raised ``at the earliest possible
opportunity.'' 20 C.F.R. Sec. 404.939. As discussed above, what if the
claimant obtains legal representation more than 10 days after receiving
the hearing notice? Is the representative precluded from raising
issues? This would seem to be inconsistent with due process.
Recommendation. Retain the current regulation language that
encourages claimants to object to issues in the hearing notice ``at the
earliest possible opportunity.''
IV. Decision Review Board
Under the proposal, claimants will no longer have access to a final
administrative appeal step. Their only recourse is to file a complaint
in federal district court.
In contrast, the DRB can select any ALJ decision for review. The
DRB can affirm, reverse, or modify an ALJ decision, whether favorable
or unfavorable, if there is an error of law. But if there is a factual
error, the DRB must remand to the ALJ. If the DRB reverses a claimant-
favorable ALJ decision, that claimant must proceed to federal court to
fight for the benefits awarded by the ALJ. We are concerned that if
claimants have no right to request review, the agency may revert to
reviewing a significantly higher number of favorable ALJ decisions,
despite the initial well-intended goal of reviewing an equal share of
favorable and unfavorable ALJ decisions.
Currently, the Appeals Council provides effective relief to
claimants. Over 25% of claimants who request review either receive
benefits outright or receive another chance for an ALJ hearing if the
case is remanded. The process is much more simple than filing a federal
court case and has no cost. The claimant can submit new and material
evidence, a critical factor if they were unrepresented at the ALJ
hearing level. The Appeals Council also reviews ALJ dismissals and
reopening denials; allegations of unfair ALJ hearings; and both
disability and nondisability issues that arise in the same case.
Claimants and their representatives have a very limited role at the
DRB. If the DRB selects a case, a notice will be included along with
the ALJ decision. To submit new evidence to the DRB, the same strict
post-ALJ decision submission requirements apply. The DRB may ``invite''
a brief. Unless the DRB extends this invitation, the claimant must ask
permission within ten days of receipt of the Review Notice to submit a
brief. And if permission is granted, the brief may not exceed three
pages, regardless of the case's complexity. The proposed regulation
provides, ``If you file a written statement in a claim and the Board
has not asked or allowed you to submit one, the Board will not consider
the written statement and will return it to you without making it a
part of the record.'' Proposed Sec. 405.425(b)(2). Such strict
limitations could be viewed the same as denying the right to present
arguments at all.
Selection of cases for DRB review. The ALJs will now be caught
between the RO and the DRB. Their decisions must explain why they are
not following the denial decision of the RO. And they will be aware
that every single decision they issue for every disability claimant
will be screened by the DRB, or at least by computer-based predictive
screening tools. SSA will develop a profile of decisions that are most
likely to be ``error prone.'' It seems possible that ALJs will quickly
learn which case characteristics are most likely to trigger DRB review.
Will they be the nature of the impairment? The age of the claimant? A
residual functional capacity finding of ``less than-sedentary''? A
credibility finding of fully credible?
The DRB has a 90-day window in which to act on a case selected for
review (if a case is there for more than 90-days, an aggrieved claimant
may proceed directly into court without a DRB decision). The 90-day
time limit runs from the date that the notice of DRB review is received
by the claimant. However, after the ALJ issues a decision, there is no
time limit for the DRB to screen and select the case for review. The
claimant will only receive the ALJ decision after the screening has
occurred. This process could present possible conflicts with a
provision in the Social Security Act, 42 U.S.C. Sec. 423(h), which
requires that interim benefits be paid if the Commissioner's ``final
decision'' is not issued within 110 days after a favorable ALJ
decision.
The impact of the DRB on the federal courts. Aware of the concerns
that the elimination of the Appeals Council will produce an avalanche
of cases descending on the federal district courts, the NPRM has
proposed a gradual implementation, beginning with one small region.
During this implementation, the agency plans to monitor the number of
federal court filings in that region. It is not clear what decision the
agency will make, based on the number. If the federal court filings
escalate significantly, is the agency prepared to reinstate a final
administrative level of review accessible by claimants? Or would the
agency seek legislation to create a Social Security Court to provide
relief to the federal district courts?
What will federal judges say about new evidence which is submitted
to the court but which had not been accepted by the agency
adjudicators? Under the Social Security Act, 42 U.S.C. Sec. 405(g), the
court may order that SSA 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 such evidence into the record'' in the prior
administrative proceeding. As discussed earlier, how will the strict
rules on submission of evidence affect the courts? Will claimants be
forced to file an appeal in district court to have SSA consider
evidence that should have been considered during the administrative
process? Will district court appeals increase dramatically simply for
this reason?
SSA has previously tested the elimination of claimant-initiated
Appeals Council review in the same ``prototype'' states where it tested
the elimination of the reconsideration level. Although requested, we
have been unable to obtain information about the results of the Appeals
Council prototype testing. Further, we have concerns that the NPRM's
gradual implementation of this change with unspecified future changes
to meet undefined problems may be inconsistent with the requirements of
rulemaking under the Administrative Procedures Act, 5 U.S.C. Sec. 553.
Given the potential impact of eliminating claimant-initiated Appeals
Council review on the federal courts and on claimants, we recommend
that it would be more appropriate to conduct a ``test'' under the
Commissioner's demonstration authority rather than through final
regulations.
Claimant appeals of ALJ dismissals. The only claimant-initiated
review at the DRB is where the ALJ has dismissed a request for hearing,
representing a significant percentage of unfavorable ALJ decisions.
Often, these decisions are legally erroneous and currently the Appeals
Council is able to review and remand the cases so that the substantive
disability issues can be considered. We appreciate the fact that a
claimant can appeal an ALJ dismissal to the DRB; however, even this
appeal is subject to numerous procedural hurdles: the claimant must
first ask the ALJ to vacate the dismissal within 10 days after the ALJ
decision is received, with no extension of time (although the ALJ has
no time limit to decide the request to vacate); any written statement
to the DRB must be filed with the request for DRB review and is limited
to 3 pages, regardless of the complexity of the case or additional
supportive evidence. The reason that providing DRB review is critical
is that hearing dismissals generally cannot be appealed to court.
Recommendations:
The claimant's right to request administrative review of
an unfavorable ALJ decision should be retained.
Before eliminating the claimant's right to request review
by the Appeals Council, SSA should test elimination of administrative
review of ALJ decisions under the Commissioner's demonstration
authority.
Reasonable rules for procedures before the DRB should be
established.
The current rules for submission of new evidence to the
Appeals Council should be retained--it must be ``new,'' ``material,''
and relate to the period before the date of the ALJ decision.
There should be no page limit for written statements but
claimants and representatives should be encouraged to keep them brief
and succinct.
There should be no requirement that hearing dismissals
first be presented to the ALJ. If that requirement is retained, there
should be a time limit for the ALJ to decide the request.
The 90-day time limit should run from the date of the ALJ
decision, rather than the date of the DRB's notice.
V. Reopening
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 with mental impairments.
Most reopening determinations currently are discretionary; SSA
proposes to take away even that. Reopening within one year for ``any
reason'' is eliminated. New and material evidence is no longer good
cause for reopening and is specifically precluded in proposed
Sec. 405.605(c)(2). Under the NPRM, reopening is allowed in only two
situations: clerical error in computation of benefits or clear error on
the face of the evidence. Reopening can happen only within six months
of the final action on a claim, but not based on new and material
evidence.
The result will be a loss of benefits and perhaps a total loss of
eligibility, if the ``date last insured'' status has expired. This is
unfair for claimants in a number of situations, such as: claimants who
are not able to get a proper diagnosis for a considerable period of
time (multiple sclerosis, for example); claimants whose cases were
poorly developed at the DDS and were not appealed and who then filed
new applications; claimants with mental impairments that prevent or
inhibit their ability to cooperate with development of claims; cases
where physicians refuse to provide medical records until unpaid bills
are paid; and bankrupt hospitals who are unable to provide records.
According to the NPRM preface, the reason for this change is to
improve the timeliness of the administrative review process. However,
it is not clear how this dramatic change would improve the process,
from a claimant's perspective. In my experience and that of other
NOSSCR members, reopening requests have not delayed decisions. The
proposed change completely eliminates ALJ discretion to reopen an
earlier decision where new and material evidence shows that the
claimant was disabled at an earlier time. The proposal also exacerbates
the adverse impact of the strict rules for submission of evidence.
Why reapplying is not an option. The NPRM preface states that if
the claimant cannot submit new evidence, he or she can file a new
application. As noted in Marty Ford's testimony on behalf of the CCD
Social Security Task Force, this statement is not accurate and may
permanently foreclose eligibility if the claimant's insured status has
expired. Congress has previously addressed the problem of SSA informing
claimants that they could reapply rather than appeal and failing to
inform them of the consequences. In the past, SSA's notices misled
claimants regarding the consequences of reapplying for benefits in lieu
of appealing an adverse decision and Congress responded by addressing
this serious problem. Since legislation enacted in 1990, SSA has been
required to include clear and specific language in its notices
describing the possible adverse effect on eligibility to receive
payments by choosing to reapply in lieu of requesting review.\4\
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\4\ 42 U.S.C. Sec. Sec. 405(b)(3) and 1383(c)(1).
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Recommendation. The current reopening rules work well and do not
affect the timeliness of decisions and they should be retained. It is
vitally important that claimants have a fair and reasonable ability to
have new and material evidence considered.
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 they do not affect the fairness
of the process to determine a claimant's entitlement to benefits.
Unfortunately, several aspects of the proposed regulations will
damage the rights of claimants to have their cases fully considered,
and will result in denials of benefits to claimants who meet the
statutory definition of disability but who cannot comply with the harsh
rules and strict time limits of these rules. We urge the Subcommittees
to work with the Commissioner to amend the proposed regulations so that
the rights of claimants are fully protected, even as decisions are made
in a more efficient and timely manner
Thank you for this opportunity to testify before the Subcommittees
on issues of critical importance to claimants. I would be glad to
answer any questions that you have.
Chairman HERGER. Thank you. Dr. Bloch to testify.
STATEMENT OF FRANK S. BLOCH, PH.D., PROFESSOR OF LAW,
VANDERBILT UNIVERSITY SCHOOL OF LAW, NASHVILLE, TENNESSEE
Mr. BLOCH. Thank you, Mr. Chairman. I also appreciate the
opportunity to express my views on the Social Security
Commissioner's proposed rules on the disability determination
process before the two Subcommittees today. I have studied,
taught about, written on, and actually worked with the Social
Security disability determination process for most of my
professional life. I applaud the Commissioner's initiative in
seeking the reform that she proposes to this critically
important administrative apparatus. The need for disability
determination process reform is clear, and it has been for many
years. As Judge McDonald just noted, efforts have been
introduced to try to change this process over the past years,
and it has proved to be difficult, and we have seen many failed
efforts at reform. I agree that the new rules we are examining
today may finally break that pattern and see the light of day
and that makes it all the more important that they be examined
carefully and critically at this time.
Much of what the Commissioner has proposed would improve
the process. For example, I agree with her plan to eliminate
the reconsideration level of review. This can help focus
resources and energy for disability determination at the two
critical points in the process--the initial administrative
decision and the ALJ hearing. Her plan to implement quick
disability determinations at the initial decision level is also
a positive and practical approach to case management. The
proposal to eliminate the Appeals Council is a little more
complicated. It may result in unnecessary appeals to Federal
court, as has been said. It may also result more distressingly
in the fact that ALJ decisions may never be reviewed at all
where the claimant does not have the means to proceed to court.
I would like to concentrate my remarks on two aspects of the
proposed disability determination process that I think may
undercut the effectiveness of the reforms.
Those are the specific roles ascribed to the new RO
position and the various rules on submitting evidence and
closing the record at the ALJ decision level. In my written
remarks, I talk about these in detail and propose some
recommendations. Let me now just highlight a few of those
points. With respect to the RO position, I believe that the
process would be better served by really eliminating
reconsideration rather than by substituting another mid-level
decisionmaker in its place. In many respects, the RO position,
in my view, is simply another method of reconsideration. What
we need at this stage is someone who could review the initial
decision and the record on which it is based, assume some
active responsibility for preparing the claim for the next step
in the process, which is the full-blown administrative hearing
and decision by an independent ALJ. Both claimant and SSA
interests could be served better by charging the new RO with
the responsibility to assure the development of a timely, full,
and fair record.
Reviewing officials would be in an ideal position to frame
issues on appeal, to seek out specific additional medical and
vocational information needed to evaluate the claim under the
applicable rules and regulations, and to grant claims on the
record perhaps all as part of a process still focused on two
primary decision points--the initial decision and the ALJ
hearing. This could be done along the lines that were suggested
in a report that I prepared, together with Jeffrey Lubbers and
Paul Verkuil for the Social Security Advisory Board a few years
ago, in which we included a recommendation for a position we
called counselor, who would have the express mandate of
overseeing and facilitating the development of the evidentiary
record between the initial decision and the ALJ hearing. That
report is referenced and some of those recommendations are
included in my written testimony. The key point in our
recommendation was that the SSA should concentrate its efforts
on improving the record for decision at the ALJ hearing. That
is the critical point in the process, and I suggest that the
new disability determination process would be served better if
the RO sort of had that kind of role rather than the
decisionmaking role that the RO now has.
With respect to submitting evidence in the ALJ hearing and
closing the record, it has been pointed out that this is a
radical departure under current practice. With all respect to
the Commissioner's response to the question as to what the
reason for it is, I am not convinced that there is a good
reason for this radical departure. Records are closed at some
point in order to allow the decisionmaker, in this case the
ALJ, to make a proper decision. The Commissioner's proposal
does authorize the ALJ to have a pre-hearing statement
requested and that, together with the development of the
record, by someone like the RO, counselor that I described
earlier, could achieve that point. The idea is that the ALJ
should receive the record necessary to make a prompt and
accurate decision. The process should not cut the all important
record development function off at the pass.
More importantly, or most importantly, this is a--these
complex set of rules are a potential devastating trap for
claimants. Even claimant lawyers will have a hard time keeping
track of and managing these time limits. For unrepresented
claimants, it will be all but impossible. Again, the report
that I had mentioned in my written remarks to the Social
Security Advisory Board proposes that the evidentiary record
could be closed at the hearing subject to the ability to reopen
the hearing if there is new and material evidence and good
cause for failing to produce that evidence at the hearing. I
suggest that the Commissioner's proposed rules on submitting
evidence and closing the record should be scrapped altogether
and replaced with a simple statement that the record can be
closed by the ALJ at some time after the hearing, subject to
exceptions for new and material evidence and a good cause for
failure to produce those at the time of the hearing. Thank you.
[The prepared statement of Mr. Bloch follows:]
Statement of Frank S. Bloch, Ph.D., Professor of Law, Vanderbilt
University School of Law, Nashville, Tennessee
Chairman McCrery and Chairman Herger, Representatives Levin and
McDermott, and other Members of the Subcommittees:
I appreciate this opportunity to express my views on the Social
Security Commissioner's proposals concerning the disability
determination process that were published this summer as a Notice of
Proposed Rulemaking (Administrative Review Process for Adjudicating
Initial Disability Claims, 70 Fed. Reg. 43590 July 27, 2005). I have
studied, taught about, written on, and worked with the Social Security
disability determination process for most of my professional life, and
I applaud the Commissioner's initiative in seeking to reform this
critically important administrative apparatus.
The need to reform the disability determination process is clear,
and has been for many years. It is difficult enough to decide whether
any one individual is unable to engage in ``substantial gainful
activity'' in light of not only his or her physical and mental
impairments, but also any effects of age, education, and prior work
experience. Making disability determinations fairly and accurately for
millions of claims (and in hundreds of thousands of appeals) is an all
but overwhelming task. Unfortunately, efforts to introduce fundamental
changes in the disability determination process have proven to be even
more difficult, as seen by the long record of failed reform proposals
over the past twenty-five years. The new rules we are examining today
may finally break that pattern and see the light of day, which makes it
all the more important that they be examined carefully and critically.
The concerns expressed most often by SSA and others about the
current disability decision process are the amount of time taken to
reach final decisions and a lack of confidence in the accuracy and
consistency of the decisions themselves. I believe that one
fundamental, intractable problem lies at the root of these concerns:
throughout the process, decisionmakers--including ALJs following a full
administrative hearing--often make disability determinations on the
basis of incomplete evidentiary records. In my opinion, any effort to
reform the disability determination process must target the prompt
development of a full and complete record. Unless that critical part of
the process is fixed, decisionmakers--no matter what they are called or
under what new set of rules they operate--will not be able to do their
job.
This position was reinforced a few years ago when I participated in
a study for the Social Security Advisory Board that looked into the
possibility of introduc-
ing government representation at Social Security hearings and the
question of
when and how to close the administrative record. (See Introducing
Nonadversar-
ial Government Representatives to Improve the Record for Decision in
Social Se-
curity Disability Hearings (June 11, 2003), available at http://
www.ssab.gov/blochlubbersverkuil.pdf. The study was also reported on in
an article based on the SSAB report. See Frank S. Bloch, Jeffrey S.
Lubbers & Paul R. Verkuil, Developing a Full and Fair Evidentiary
Record in a Nonadversarial Setting: Two Proposals for Improving Social
Security Disability Adjudications, 25 Cardozo L. Rev. 1 (2003).) During
the course of the study, we had the opportunity to interview the full
range of interested parties, including front line SSA and state agency
(DDS) personnel, ALJs, and claimant advocates. In order to frame the
issues, we asked supporters of government representation to explain
what they thought a government representative (or someone in another,
similar role) would add to the process from a functional perspective.
Interestingly, virtually all of them pointed to the need for better
development of the evidentiary record. Similarly, differences in views
about closing the record among the people we interviewed depended to a
large extent on the person's confidence about the record development
process. Those who were the most confident about the record development
process were more likely to suggest a ``bright line'' cut-off; those
more concerned about the quality of the record, even after an ALJ
hearing had been held, were more likely to suggest some sort of safety
valve--such as a ``good cause'' requirement for submitting additional
evidence along the lines of the requirement for submitting additional
evidence at the district court.
If the key problem is an often-incomplete record, the question
becomes how to overcome that problem. Really, there are two distinctly
different aspects of the incomplete record problem. One has to do with
the length of the current process and the nature of the claimant
population. With sometimes literally years passing as a claimant works
his or her way through the various stages of the current process
(initial decision, reconsiderations, ALJ hearing, and Appeals Council
review), medical conditions change. Therefore, even accurate
evidentiary records will look different at different stages of the
process. The other aspect results from deficiencies in the design and
implementation of the process itself. Staff charged with processing
disability claims--particularly at the state DDS, but also at the
Office of Hearings and Appeals--are neither trained properly nor given
the resources necessary to compile the specific detailed medical
information necessary to determine disability under SSA rules and
regulations.
Much of what has been proposed by the Commissioner would improve
the process and result in better records for decision. Thus, I agree
with the Commissioner's plan to eliminate the reconsideration level of
review. Simply shortening the process will reduce the ``moving target''
problem of claimants' changing medical conditions. More fundamentally,
this can help focus resources and energy for disability determination
at the two critical, yet fundamentally different, decision points in
the process: the initial administrative decision, and the ALJ hearing.
The current model dissipates limited resources and energy for
disability determination by spreading the process over four
administrative levels--particularly the essentially repetitive initial
decision and reconsideration levels.
The Commissioner's plan to implement ``Quick Disability
Determinations'' at the initial decision level for selected types of
claims is a positive and practical approach to case management. The
effort to improve the quality and uniformity of medical expert input
through a Federal Expert Unit is another welcome innovation. The
proposal to eliminate Appeals Council review is more complicated, as it
removes the possibility of administrative review of many ALJ decisions
that may result in unnecessarily appeals to federal district court--or,
more distressingly, may well lead to many ALJ decisions not being
reviewed at all where the claimant does not have the means to proceed
to court. But it does have the advantage, as with the elimination of
reconsideration, of focusing the disability determination process on
initial decisions and ALJ hearings and moving the process along. And it
introduces a potentially effective mechanism for quality control by
focusing specifically on that function.
There are, however, two aspects of the proposed disability
determination process that are problematic and may undermine the
effectiveness of the reforms: the role set out for the ``Reviewing
Official'' and the complex set of rules on submitting evidence and
closing the record at the ALJ hearing. The new Reviewing Official
position--placed in the process as a potentially powerful decisionmaker
between the initial decision level and the ALJ hearing--has not been
thought out carefully. As I will explain more fully in a moment, there
are good reasons to allocate additional resources between the initial
decision and the ALJ hearing. Unfortunately, the Commissioner's
approach to the role of the Reviewing Official misses the mark. The
effort here should be to bolster and support the ALJ hearing as the
single administrative appeal; instead, the new Reviewing Official looks
more like some form of modified reconsideration. The rules on
submitting evidence and closing the administrative record at the ALJ
hearing are aimed at supporting ALJs in their critically important
independent decisionmaking role. Closing the record in time for the ALJ
to reach a careful decision is a laudable goal if implemented together
with serious efforts at developing a full and complete evidentiary
record. The result sought can be achieved quite simply; however, once
again these parts of the Commissioner's proposal have not been thought
out carefully. The complex set of proposed rules has no coherent
justification or rationale and is potentially disastrous for claimants.
I will now discuss each of these aspects of the proposed rules in
detail, followed by recommendations for revising them.
Role of the Reviewing Official
In my opinion, the Reviewing Official's role in the Commissioner's
new disability determination process is both too limited and too large.
I believe that the process would be better served by really eliminating
reconsideration, rather than by substituting another mid-level
decisionmaker in its place. The question then becomes: what should be
done in order to assure that a direct appeal from initial decision to
ALJ hearing will improve the overall disability determination process?
What is needed at this stage is someone who could review the
initial decision and the record on which it was based, and assume
active responsibility for preparing the claim for the next step in the
process: a full blown administrative hearing and decision by an
independent ALJ. This would include evaluating the initial decision and
the medical evidence in the record, obtaining additional evidence if
needed, and, in appropriate cases, proposing to the ALJ that the claim
be granted on the record without a hearing. Instead, the proposed rules
would have a lawyer Reviewing Official act as a sort of pre-judge--
making a new decision on the claim. Reviewing Official decisions would
have all the trappings of a formal decision, written by a lawyer in a
presumably lawyer-like style. Moreover, a lawyer Reviewing Official
with full decision making authority could have a potentially more
influential role in the overall process than the abandoned
reconsideration decision. Although ALJs would not be bound formally in
any way by the Reviewing Official decision, they might well be more
inclined to defer to Reviewing Official decisions than a second
administrative decision at reconsideration. But claimants and their
representatives would have no more access to the Reviewing Official
than they have now to the DDS reconsideration team.
Most of the all-important record development work on a Social
Security disability claim--obtaining existing medical and vocational
records, measuring existing information against alleged impairments and
applicable eligibility criteria, ordering additional medical and/or
vocational evaluations--are essentially neutral tasks that entail
objective analysis that can be done best outside an adjudication type
setting. Both claimant and SSA interests could be served better by
charging the new Reviewing Official with the responsibility to assure
the development of a timely, full, and fair record. Other tasks
assigned to the Reviewing Official under the Commissioner's proposal--
or, to some extent, to the ALJ--would remain appropriate for the
Reviewing Official under this different model. Thus, Reviewing
Officials would be in an ideal position to frame the issues on appeal,
seek out specific additional medical or vocational information needed
to evaluate the claim under applicable rules and regulations, and to
grant claims on the record--all as part of a process still focused on
two primary decision points, the initial decision and the ALJ hearing.
A number of proposals have been advanced over the years to address
the record development problem in the disability determination process.
Some have focused on existing administrative practices and procedures
while others have suggested deployment or redeployment of personnel--
all with the idea of improving SSA's performance relative to developing
the record for decision. One of these in particular, the SSA's Senior
Attorney Project, introduced a position at the Office of Hearings and
Appeals that was charged with a role similar to the one outlined above
for the new Reviewing Official. Fifteen years ago, the Administrative
Conference of the United States (ACUS) recommended expanded use of
prehearing conferences to frame the issues involved in the ALJ hearing,
identify matters not in dispute, determine whether subpoenas might be
necessary consider witnesses that might need to be called, and also
decide appropriate cases favorable without hearings. (ACUS
Recommendation 90-4, Social Security Disability Program Appeals
Process: Supplementary Recommendation, 55 Fed. Reg. 34,213 (Aug. 22,
1990), at para.para. 2-3.) The Reviewing Official could orchestrate all
of these functions in advance of the ALJ hearing with the cooperation
of the DDS and with the participation of the ALJ, as appropriate.
The bridge between the initial decision and the ALJ hearing should
be staffed by an administrator-facilitator whose role would be to
support the ALJ hearing as the single independent administrative
appeal. This could be done along the lines we suggested in the SSAB
report referred to earlier, which included the following recommendation
for a position we called a ``Counselor'':
Recommendation 3: SSA should consider creating a new administrative
position, called a ``Counselor,'' with the express mandate of
overseeing and facilitating the development of the evidentiary record
for decision. As part of this process, the Counselor position should
have the following characteristics and responsibilities:
It should be charged with developing a full and complete
record as quickly as possible, in cooperation with claimants (and their
representatives), DDS, OHA, and other SSA personnel.
It should have direct access to key DDS personnel in
order to question and clarify the DDS's rationale for its disability
decisions.
It should have independent authority to obtain
information for the record, including access to any available funds and
enforcement mechanisms.
It should have a formal role, either independently or in
cooperation with ALJs and other OHA staff, to narrow and resolve
particular issues and, when appropriate, to recommend to an ALJ a fully
favorable, on-the-record decision.
It should be designated nonadversarial, even if attorneys
fill some of the positions.
The key to our recommendation was that SSA concentrate its efforts
on improving the record for decision at ALJ hearings. We believed that
the best way to achieve this goal was to introduce a nonadversary
Counselor into the disability adjudication process whose central role
would be to monitor the process of developing the evidentiary record
and to work closely with all of the key actors--the claimant (and the
claimant's representative, if there is one), the ALJ, and SSA (most
likely through DDS)--in order to identify any gaps in the record and to
fill them as quickly and efficiently as possible. These Counselors
would remove much of the development work from the ALJ, including the
second- and third-hat roles of assuring that the claimant's and SSA's
(or DDS's) positions are fully supported, and would serve a much-needed
administrative liaison function between the DDS and OHA. We also
recommended that the Counselors be given the resources and authority
necessary to develop records and move claims quickly, especially in
those cases where benefits could be granted without a full
administrative hearing.
I suggest that the Commissioner's new disability determination
process would be served better with Reviewing Officials/Counselors
taking on this type of role, leaving full adjudication of appeals from
agency initial decisions to independent ALJs.
Rules for Submitting Evidence at the ALJ Hearing and Closing the Record
The concept of ``closing'' a record arises in two very different
contexts: preparing a record for decision and preserving the record of
a decision for further administrative or judicial review. The process
of preparing a record for decision usually continues until the decision
is reached; the record is closed at the time (or just before) the
decision is made. This is what happens at the initial decision and
reconsideration in the current process and would continue at the
initial decision and Reviewing Official stages under the proposed
rules. The DDS is charged with developing the record to the point that
a competent initial disability decision can be made. Then, only once
the evidentiary record is complete, does the DDS makes its decision
based on the record it compiled. Presumably the same would be the case
with the Reviewing Official; as at the DDS, the Reviewing Official
would supplement the record as needed before finally evaluating the
evidence and making a decision. Closing the record doesn't become an
issue, then, until the ALJ hearing.
Under current practice, ALJs and OHA staff continue developing the
record, as needed, in order to set the case for hearing and decision.
In addition, the claimant-appellant is free to submit supplemental
evidence both before the hearing and at the hearing itself. This must
be so, as the administrative hearing is a de novo review of the claim.
Although claimants are expected to identify additional evidence that
will be submitted at the time they request the hearing (see 20 C.F.R.
Sec. Sec. 404.933(a)(3), 416.1533(a)(3)), regulations also provide
expressly that evidence can be submitted at the hearing as well. (See
20 C.F.R. Sec. Sec. 404.950(a), 416.1550(a). (``Any party to a hearing
has the right to appear before the administrative law judge, either
personally or by means of a designated representative, to present
evidence and to state his or her position'').) Indeed, the Social
Security Act guarantees as much: ``. . . the Commissioner shall give
[claimants] . . . reasonable notice and opportunity for a hearing with
respect to [an adverse] decision, and, if a hearing is held, shall, on
the basis of evidence adduced at the hearing, affirm, modify, or
reverse the Commissioner's findings of fact and such decision.'' (42
U.S.C. Sec. 405(b)(1) (emphasis added). See also 20 C.F.R.
Sec. Sec. 404.953(a), 416.1553(a). (ALJ directed specifically to decide
the claim ``based on evidence offered at the hearing or otherwise
included in the record'').)
Moreover, the ALJ has an affirmative duty to assure that the
record, including any live testimony offered by claimants and their
witnesses, contains all of the information necessary to decide the
case. See, e.g., Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir.
1994) (``Even when a claimant is represented by counsel, the
administrative law judge `has a basic obligation in every Social
Security case to ensure that an adequate record is developed during the
disability hearing consistent with the issues raised' '') (quoting
Henrie v. U.S. Dept. of Health & Human Services, 13 F.3d 359, 361 295
(10th Cir. 1993)). Thus, Social Security regulations provide that
``[a]t the hearing, the administrative law judge looks fully into the
issues, questions [the claimant] and the other witnesses, and accepts
as evidence any documents that are material to the issues.'' (20 C.F.R.
Sec. Sec. 404.944, 416.1544.)
Although less clearly stated and perhaps subject to some
conditions, the record may still remain open even after the hearing.
Sometimes the claimant will request additional time to obtain evidence
and the ALJ will simply hold the record open for a set numbers of days
after the conclusion of the hearing in order to give the claimant time
to do so. The ALJ may also continue the hearing to a later date,
pending receipt of additional evidence, or may reopen the hearing if
additional evidence becomes available before the decision is issued.
See 20 C.F.R. Sec. Sec. 404.944, 416.1544 (``The administrative law
judge may stop the hearing temporarily and continue it at a later date
if he or she believes that there is material evidence missing at the
hearing. The administrative law judge may also reopen the hearing at
any time before he or she mails a notice of the decision in order to
receive new and material evidence''). See also HALLEX Sec. I-2-680 (C)
(``If an ALJ decides to admit additional evidence into the record of a
case, or to conduct a supplemental hearing, he or she must reopen the
record'').
It is against this backdrop that one must examine the
Commissioner's complex proposed rules for submitting evidence and
closing the record at the ALJ hearing. Among them are the following:
Evidence must be submitted, with limited exceptions, at
least 20 days before the hearing.
Limited exceptions to the 20-days-before-hearing rule are
left to the discretion of the ALJ.
Ability to submit evidence after the hearing is left to
the discretion of the ALJ.
Evidence obtained after the hearing, even if it relates
to an unforeseen change in medical condition that occurred after the
hearing, must be submitted within 10 days of the decision, with no
``good cause'' exception.
Other new time limits imposed on claimants include a strict 10-day
rule for objecting to the time and place of the hearing and the issues
to be decided on appeal.
Not only is there no explanation for this radical departure from
the current rules and practice that accept into the record any and all
evidence offered at the hearing, the complex set of rules are a
potential devastating trap for claimants. Even claimant lawyers will
have a hard time keeping track of and managing these time limits; for
unrepresented claimants, it will be all but impossible. Moreover, these
strict limits would operate together with a rule that requires hearings
to be set on 45 days advance notice, leaving only 25 days after notice
of the hearing date to submit all evidence.
There is simply no good reason to limit the submission of evidence
at the time of the hearing. Records are closed at some point in order
to allow the decisionmaker--in this case, the ALJ--to make a proper
decision. The Commissioner's proposal authorizes the ALJ to order pre-
hearing statements; that approach, together with the assistance of a
Reviewing Official/Counselor operating along the lines suggested above,
should be sufficient to move the process along and assure that the ALJ
will have a full and complete record when he or she must make a
decision. The point is to provide the ALJ the record needed to make a
prompt and accurate decision, not to cut the all-important record
development function off at the pass. With respect to closing the
record, the goal should be to get record development to the point where
closing the record becomes a non-controversial matter.
Once steps are taken to allow the ALJ to decide cases based on a
full and complete record, like those proposed above in relation to the
new Reviewing Official/Counselor, then there should be no hardship in
closing the record after the hearing (or at a later designated time set
by the ALJ). Claimants' representatives can play their part along with
the Reviewing Official/Counselor to produce everything that is needed
for decision in a timely fashion. However, in some cases key
information--key to both SSA and the claimant in their shared desire to
produce a correct decision--cannot always be obtained in time. In such
situations, a ``good cause'' exception for reopening the record before
the ALJ should be available as a safety valve. In this context, the
treatment of new evidence at the federal district court level can be
instructive. Federal court review of SSA's final decision is based
exclusively on the record developed at the administrative hearing or
before the Appeals Council; new evidence in support of the claim cannot
be introduced at the district court. However, if a claimant comes
across ``new and material evidence'' after the administrative process
is complete and can show ``good cause'' for failing to submit it
earlier, the evidence can be presented to the court as a basis for
remand. (42 U.S.C. Sec. 405(g).)
In this regard, another proposal from the SSAB report referred to
earlier--made in connection with the proposals for a new ``Counselor''
position--may be of some help:
SSA should revise its regulations to close the evidentiary record
after the ALJ hearing, subject to the following qualifications:
ALJs may extend the time to submit evidence and/or
written argument for a reasonable period after the hearing and before
deciding the claim.
Claimants may request that the record before the ALJ be
reopened for the submission of new and material evidence and a new
decision, if the claimant demonstrates good cause for failing to
present the evidence before the record closed and if the request is
made within one year after the ALJ issued the decision on the claim or
before a decision is reached on appeal by the Appeals Council,
whichever is later.
Similar ideas were presented by ACUS in a 1990 supplementary
recommendation, which addressed the need to have the evidentiary record
be as complete as possible and as early in the process as possible.
ACUS proposed that the record before the ALJ should be closed at a set
time after the hearing, and set forth a specific recommended procedure
as follows (ACUS Recommendation 90-4, Social Security Disability
Program Appeals Process: Supplementary Recommendation, 55 Fed. Reg.
34,213 (Aug. 22, 1990, at para.para. 4-5):
4. Closing of the Administrative Record: The administrative hearing
record should be closed at a set time after the evidentiary hearing.
Prior to this, the ALJ should set forth for the claimant what
information the claimant needs to produce to complete the record, issue
any necessary subpoenas, and provide the claimant adequate time to
acquire the information. Requests for extension should be granted for
good cause, including difficulty in obtaining material evidence from
third parties. The ALJ should retain the discretion to accept and
consider pertinent information received after closure of the record and
before the decision is issued.
5. Introduction of New Evidence after the ALJ Decision:
a. Upon petition filed by a claimant within one year of the ALJ
decision or while appeal is pending at the Appeals Council, the ALJ
(preferably the one who originally heard the case if he or she is
promptly available) should reopen the record and reconsider the
decision on a showing of new and material evidence that relates to the
period covered by the previous decision. An ALJ's denial of such a
petition should be appealable to the Appeals Council.
b. Appeals Council review of an ALJ's initial decision should be
limited to the evidence of record compiled before the ALJ. Where the
claimant seeks review of an ALJ's refusal to reopen the record for the
submission of new and material evidence, the Appeals Council should
remand the case of the ALJ (preferably the one who originally heard the
case if he or she is promptly available), if it finds that the ALJ
improperly declined to reopen the record. The Appeals Council should
not review the merits itself or issue a decision considering the new
evidence, unless remand would result in substantial injustice or
unreasonable delay.
I suggest that the Commissioner's proposed rules on submitting new
evidence and closing the record at the ALJ hearing be scrapped
altogether and replaced with a simple statement that the record can be
closed by the ALJ at some time after the hearing, subject to the type
of exceptions set out in the SSAB and ACUS proposals discussed above.
Of course, both of those proposals were written to take into account
Appeals Council review; any application of them to the Commissioner's
new disability determination process would have to be modified if the
Appeals Council is eliminated.
Chairman HERGER. Thank you, and I want to thank each of you
for your testimonies and now we will turn to questions. The
gentleman from Michigan, Mr. Levin, to inquire.
Mr. LEVIN. Thank you very much. Well, this has been an
interesting hearing, and I think an important one, and I am
really very glad we are doing this, because we all applaud the
need to expedite procedures and I think that meant not only a
new electronic system, but also some new regulations. I do
think, though, the testimony brings out some real issues that
not only does everyone outside of the Congress have to be
involved with, but I think we do as well. I am not quite sure
how we contemplate doing that. For example, the replacement of
the Appeals Council--and I am not an expert on this--and I
doubt if very many of us have ever had a chance to practice
these cases if we are lawyers--as I understand it, what would
happen would be the elimination of that step in a meaningful
way and instead there would be a review by a new mechanism;
right? We are eliminating another step; is that correct?
Mr. SUTTON. We are clearly eliminating a step. The only
review, Mr. Levin, as I understand the proposal, is one that is
based on sampling--a certain percentage of cases, favorable and
unfavorable. Claimants would have no right to request a review,
so there would not be review of cases at the request of
claimants who are aggrieved.
Mr. LEVIN. Essentially, we would be changing the system so
that after the ALJ decision, the next real appeal process would
be a Federal court?
Judge MCKIBBEN. That is correct, Mr. Levin. That is one of
our major concerns. The DRB would have the right to appeal both
those claims that have been allowed and disallowed. There would
be an internal review and only if they decided to review the
case would they reveal, through the decision by the ALJ, that
they were reviewing the case. It is hard to tell how many cases
they would review or what the criteria they would use in making
that determination, and our concern, of course, is the
substantial number of cases that would come into Federal court
if there wasn't an internal administrative review process.
Mr. LEVIN. No, but also I mean the expense for a claimant
is dramatically higher, is it not? I am glad you are concerned
about the flood of cases, but we also should at least be
concerned about going to Federal court. We are talking about a
considerable expense, and I am not sure how many of these cases
involve how much money, but hiring legal counsel to go to
Federal court is generally an expensive proposition unless it
is done pro bono. Am I wrong?
Judge MCKIBBEN. There is no question that it is an
expensive process and a number of litigants come in
representing themselves. It is a difficult maze for them to
negotiate. It is very difficult to go into Federal court.
Mr. LEVIN. Then so that would put more weight on the ALJ
decisionmaking process, and I would think would raise more
questions about the 20-day limit; no? How much abuse has there
been? After all, the claimant is anxious for, isn't he or she,
a speedy adjudication. By definition; right? I assume the
decisions are retroactive, but, still, the person is without
the monetary help. Is there, in your experience, and my time is
running out, is there much abuse of the present system? Anybody
know? Some of you have practiced this, so tell us.
Mr. MCDONALD. Well, speaking from the standpoint of the
only hearing office that I can speak to, I think we do have
some abuse, but, for the most part, we do not. We have pending
in our office right now 9,500 cases. We have nine judges.
Realistically, we are looking at a couple of years from the
time of the filing of the hearing request until the time of the
hearing. During that time, the medical evidence does come in,
although it general doesn't come in until just before the
hearing, so from the standpoint of the hearing offices, the
really critical time is around the time of the scheduling of
the hearing, because understandably representatives for the
claimants don't want to get medical records, submit them, and
then have to go back to the same medical sources to submit
those records. It does tend to be that we get the medical
records after a long delay, while people wait for their turn in
the queue to have their hearings. I don't think that we have a
real abuse of the submission of medical evidence for the most
part.
Mr. LEVIN. I will finish. Why the proposed change if there
isn't abuse of any size?
Mr. SUTTON. I think one of the--and I am not involved in
the decision with regard to the 20-day limit, but it is true
that, from an ALJ standpoint, to have records submitted at the
very end, just prior to the hearing or brought to the hearing,
lessens our ability to be educated about the medical record
prior to the hearing and makes the hearing less effective.
There is a need for having medical evidence submitted to the
hearing office at some point prior to the hearing itself.
If I could add to the Judge's perspective, as someone who
has represented thousands of these claimants over 20 years, in
a perfect world we would have all the evidence more than 20
days before the hearing. We would love to have it. We are doing
everything we can to get it. The Judge may have to and his
staff may have to field some of these calls, but I and my staff
have to field the calls from the claimants that you hear from
in your offices. They are saying, why does it take so dadgone
long, Mr. McCrery? They are calling us because we are their
lawyer. Why is it taking so long? Why are we not getting there?
There have been delays and backlogs in getting to hearing
dates.
There are also delays with providers not coming across with
records, and when we order them. We are sending checks out. We
are sending advance payment, and it doesn't expedite the
process. Some providers respond fairly quickly, but others,
particularly the Veterans Administration, take forever as one
example. What we are facing then here in these rules is
something that will say--not to the representative you didn't
do our job, and you didn't get the records quickly, so you are
going to be penalized. It is saying to the claimant, I won't
consider these records unless I find there is good cause. If
you demonstrate to me or your lawyer does that you have done
everything possible, then maybe I will find good cause. A lot
of ALJs will. Some simply won't. There will be these decisions
that will simply go off on records that are not complete and
artificially incomplete--where records actually were obtained
and were submitted, but were submitted not long enough before
the hearing, and then we will have a close record that is
incomplete, where someone is meeting the disability definition,
but the proof won't be in the file because someone will say,
no, it didn't come in in time. That seems to us to be an
outcome in a non-adversarial system that is trying to get at
the truth of whether the person meets the statutory definition
of disability a very bad outcome. Yes, the record does need to
close at some point. Twenty days before the hearing, which is
what these rules do, does not seem to us to be practical or
workable.
Mr. BLOCH. If I may, this is why the idea that I presented
with the use of someone in between the State agency decision
and the ALJ participating actively and taking responsibility on
behalf of the agency to see to it that the record is fully
developed, we should get to the point where closing the record
is not an issue because the evidence is provided and made
available at the time of the decision. Of course, one other
thing to point out is that it is true that in an ideal world,
you get all the evidence prepared and able to present to the
ALJ, but there is the hearing itself and at the hearing itself
where there is testimony and additional evidence is brought, so
I really don't see a reason why prior to that time there should
be an absolute cut off and keeping out of the record
information that could help make the decision better.
Ms. FORD. We, in fact, think that may violate the statute,
the requirement that the Commissioner shall, on the basis of
evidence adduced at the hearing, make a decision. Closing the
record before the hearing and refusing to allow any of that
evidence to come in, we think may, in fact, be a violation of
the statutory requirement.
Chairman HERGER. Time has expired. The Chairman, Mr.
McCrery, to inquire.
Chairman MCCRERY. Thank you, Mr. Chairman. Dr. Bloch,
explain what this counselor that you suggest would do exactly.
Would every case before an ALJ have an counselor assigned to
it, and I suppose the counselor might have a number of cases
assigned to him or her? That is what you are suggesting? That
every case would have a counselor assigned to it?
Mr. BLOCH. Yes. Well, the proposal included in our original
report to the Social Security Advisory Board that called for
this position did have the position at the Office of Hearings
and Appeals (OHA). Yes, at the OHA. The idea was to have that
person serve as a bridge between the DDS, where, unfortunately,
there is a long history of making decisions based on records
that are not full and not complete, and using that opportunity
to have the agency expend its efforts to come up with the
additional evidence that an expert, someone trained in the
information necessary to make the decision would do. This
report, by the way, was written in part to address the question
of having an adversarial process at the hearing, and this was
thought to be a better way to approach the whole problem, since
the root of the problem was seen to be this concern that there
was an inadequate record at the different levels of appeal.
Chairman MCCRERY. Okay. Well, according to the information
I have seen, from the time that the ALJ decision is made, if
that is appealed to the Appeals Council, there is another 251
days on average before the Appeals Council rules. Surely, there
is a better way. The total, when you add up all those days from
start to finish is over a thousand days. This is the average.
Surely, there is a better way. Number one, I want to thank all
of you for your constructive criticism of the Commissioner's
proposal. I think you have made some suggestions that she can
consider to refine her proposal and make it better at striking
that balance between our desire to have a more speedy
determination and making sure that the rights of the claimant
are protected.
I appreciate the specificity with which you have made
comments on the proposal. As this goes forward, I would urge
each of you to be constructive in terms of arriving at a final
proposal that will, in fact, cut down on that thousand days
that it takes this poor person to get a conclusion. As I said
before, that is the biggest complaint I hear. A lot of people
can take no for an answer, but it just tears their guts out to
wait day after day, week after week, month after month, and
year after year to get that no. I urge you to work with the
Commissioner to get a final proposal done that can maybe get
that amount of time reduced. Mr. Sutton, I saw you eager to say
something.
Mr. SUTTON. Well, Mr. Chairman, I appreciate that, and we,
again, have those same phone calls that I think you hear in
your office. As the Commissioner pointed out, that processing
time of the Appeals Council has decreased. Believe it or not,
that is faster than it used to be.
Chairman MCCRERY. I know.
Mr. SUTTON. It could be a lot faster still, and we could
come up with something to allow people to bypass that if it
becomes too much of a bottleneck. The problem that we have with
this proposal is that in its absence, we have for the claimant
nothing. The claimant is basically left with the door to the
courthouse, a $250 filing fee, finding an attorney who does
this kind of work on a contingent basis or a pro bono basis,
and hoping for the best, where the record is it may simply not
be the record that was necessary to make a complete decision.
Chairman MCCRERY. I understand that. Unfortunately, we
can't arrest the doctor for not providing the record.
Mr. SUTTON. That is correct.
Chairman MCCRERY. We are not going to have a perfect
solution to this. Trust me. Let's deal with reality and get the
best proposal that we can possibly get, and you all have a ton
of expertise in this area, so I urge you to work with the
Commissioner, once again, to get us a proposal and not just
stick with what we got, because what we got I believe is not
working well. Just one other comment on allowing evidence after
the hearing to the ALJ, I would work very hard to minimize
that, because there is no way that an ALJ, without the benefit
of a face-to-face hearing can analyze properly the source of
that document, the source of that material, the source of that
evidence, the validity of the evidence. That just is not fair
to the ALJ. He has got to have some person in front of him that
he can cross examine and he can probe and make sure that that
is the best evidence available.
Mr. SUTTON. Mr. McCrery, if I could address it, I believe
that is absolutely correct from the perspective of the ALJ.
Remember, however, I am an attorney. I have a law firm;
resources behind me. I cannot in 100 percent of the cases where
I represent the claimant at the hearing get all the records,
even by the date of the hearing.
Chairman MCCRERY. As I have said, we are not going to find
a perfect solution.
Mr. SUTTON. We do the best we can, and the ALJs are
generally very good about what has to be done to make sure the
record is complete. That is me and that is my law firm. Now,
what do we do about the 53 percent of SSI claimants who are
unrepresented? The almost a quarter of Title II claimants who
are unrepresented, who have to fend for themselves, who now are
confronting regulations that are going say 20 days before the
hearing, or I don't have to consider it?
Chairman MCCRERY. No, I----
Mr. SUTTON. That is the problem.
Chairman MCCRERY. --there may be some problems with the
time lines, and I think you make some good points along those
lines. As I say, there has got to be a better way than what we
are doing, so let's get one. Thank you all very much.
Chairman HERGER. Thank you. The gentleman from California,
Mr. Becerra to inquire.
Mr. BECERRA. Thank you, Mr. Chairman, and thank you to all
the panelists. I appreciate our testimony. Let me ask a quick
question and hopefully get a couple of quick answers if you
would like--but quick answers to this. It sounds like we are
hearing more or less the same thing--the concerns that are
being raised. Everyone applauds the work that the Commissioner
and the SSA are doing to try to move this forward to get us a
better process, a faster process. For the most part, I think we
all agree that there are some concerns out there that were not
completely addressed. A quick question to you: If you raise
these concerns today, you must have raised them before to the
Commissioner, to the SSA, and if you raised them before to the
SSA and the Commissioner, what was the response?
Judge MCKIBBEN. Well, I can say from the Judiciary's
standpoint that we raised these issues about the Appeals
Council and the elimination of the Appeals Council and the
right of review a couple of years ago, and she has been very
responsive to that, and has moved in the direction of trying to
develop some type of a pilot project to see what impact it has
both on the claimant and also on the courts. It seems to me
that, with the DRB, if it is going to do as the Commissioner
suggests it should do, then if you still embody the right of
appeal and review by the Review Board, even though it may be in
some aspects a summary review with the data that they have,
that would still ensure that the claimant has the right of
review. That seems to make some sense to me and probably would
meet within the confines of the judicial policy on this.
Mr. BECERRA. Judge, to some degree, do you think that
embodied in these proposed regs are the concerns that you have
all expressed?
Judge MCKIBBEN. She certainly has gone a long way toward
addressing some of those concerns.
Mr. BECERRA. Okay. Anyone else?
Mr. SUTTON. Just one thing, Mr. Becerra, we appreciate the
Commissioner has consulted with a lot of the stakeholders,
including our organization, and really has gone out of her way
to do that. There is one exception here that I must point out
to the Committee, which is this proposal to bar in all
circumstances a reopening of prior determinations because of
new material evidence. To my knowledge, that was not in the
Commissioner's original testimony to this Committee 2 years
ago. It was never mentioned in any of the meetings that we had
or were privy to. I never heard about it before, and was quite
dumfounded to read that in this proposal.
We see cases--these are not--this is not the majority of
cases--they are just certain cases, and they stick out like
sore thumbs. We had a client recently where she had been denied
benefits--excuse me--he had been denied benefits at a time when
his insurance had expired. We tried to help this gentleman. We
got him an evaluation, and the doctor who saw him said, quite
unsolicited, ``I believe this individual is very slow. He
should really be evaluated.'' An ALJ ordered a psychological
evaluation, and it was discovered, in fact--you put it
together. This man had been mentally retarded his entire life.
Now he had major physical problems in addition, so he couldn't
work anymore. That judge was able to use that new evidence to
reopen a denial and give this man the insurance benefits that
he had worked for and earned in his life.
Mr. BECERRA. I agree with you. That, to me, as I mentioned
to the Commissioner, was the one area that concerned me the
most. Let me ask, Ms. Ford, a couple of questions. How much
latitude should we grant to claimants before finally the door
closes for any lack of diligence or action on the part of the
claimant?
Ms. FORD. Well, I think that what exists under the current
regulations, although I know that folks think this is part of
what eats up the time, I think that the current structure
allows for what is necessary to go back and fix something on
the part of the claimant. If the claimant has not been able to
get the evidence and the ALJ has the ability to bring it into
the case. When the claimant gets to the Appeals Council, the
rules are stricter in terms of what can be allowed in--and then
at Federal court.
Mr. BECERRA. Tell me--is there something--are you saying
keep the current rules in place in terms of the claimant's
obligations to respond? To change them in certain ways? Rather
than have you have to answer here, because I am running out of
time, do me a favor. Send us anything that says what are the
parameters under which claimants should operate, because part
of the delays are due, in many cases to the claimants. In many
cases, as Mr. Sutton just pointed out, it is not because they
are not intending to respond. It is they are not capable of
fully responding.
Ms. FORD. Right.
[The information was not received at time of printing.]
Mr. BECERRA. Mr. Sutton, now let me ask you a question. How
do we get those different stakeholders to respond--the doctors,
the others? How can we get them to where we need them to be and
respond quicker? Actually, do me a favor. I am running out of
time. Send me something in writing, because I won't have--if I
ask you that, I can't ask one final question I want to ask Ms.
Ford.
Mr. SUTTON. Very well.
[The information follows:]
Mr. BECERRA. Give us something that gives us a sense--how
can we compel, or if not compel, persuade some of the other
stakeholders to get us the information we need to adjudicate
these cases. I know my time has expired, so, Mr. Chairman, real
quickly to Ms. Ford. What happens with kids? If you have got a
child who is the claimant and the parents aren't that
sophisticated in moving through the process, what could happen
to a child if we have these rigid standards that we are working
with under these proposed regs?
Ms. FORD. I think that the regulations would apply equally
to children, and so if their families are not able to maneuver
through the system, the children, who may very well be
disabled, according to the rules, could be found not disabled
because they weren't able to get the evidence in on time; and
so would be without the kind of support that would be needed to
help them overcome some of their disabilities. Especially for
children, early intervention is critical. The earlier you can
get support to a child, the better in terms of their lifelong
capacity to deal with the disability.
Judge MCKIBBEN. Mr. Becerra, to follow up on the last
question that you had of me, I think the critical thing is that
there has to be a review of right in the administrative arena
before a claimant ends up having to go to Federal court.
Mr. BECERRA. I agree with you.
Judge MCKIBBEN. I think that is absolutely critical.
Mr. BECERRA. I agree with you. Mr. Chairman, thank you very
much.
Chairman HERGER. I thank the gentleman from California, and
I want to thank each of our witnesses here today. Obviously,
this is an area that is crying for reform. To reduce the amount
of time it takes to come up with a disability decision and to
ensure that we do make the proper and correct decision as soon
as we can certainly is something that I know we are all
dedicated to do. With that, I want to thank each of you for
testimony and for your suggestions. They have been noted in the
record. With that, I adjourn this hearing.
[Whereupon, at 6:35 p.m., the hearing was adjourned.]
[Questions submitted from Mr. Levin to Commissioner
Barnhart, Ms. Ford, and Mr. Sutton, and their responses
follow:]
Questions from Mr. Levin to Commissioner Jo Anne B. Barnhart
Question: The proposed rule institutes many new requirements and
time lines for the appeals process, making it much more formal and
complex. How would disability claimants be expected to negotiate this?
Does this proposal envision that all claimants appealing an initial
denial will be forced to hire professional representation, and do so
prior to filing an appeal, in order to comply fully with these
deadlines?
Answer: I intend to maintain the agency's longstanding commitment
to a non-adversarial appeals process. I want to assure you that our
objective is to expedite disability decisionmaking, improve accuracy,
consistency, and fairness of decisions, and to make the process better
and more understandable to claimants, not to create hurdles for them.
The Social Security Administration (SSA) is, and always will be,
mindful of the special needs of unrepresented claimants. While a lawyer
or other representative often provides helpful service to a claimant,
we do not believe that all claimants should need or feel compelled to
obtain representation. We believe that most disability claimants will
be able to comply with the proposed procedures and timelines, and where
they cannot, we believe our proposed rules should provide the Agency
with the ability to address their needs. Under our proposed rules, the
claimant would still have the opportunity to explain why we should
consider evidence that could not be provided timely. Providing good
service to claimants requires timely processing as well as attention to
the needs of individuals. I intend to carefully consider the comments
we receive on our proposed regulations with this objective in mind.
Question: Creating a deadline for claimants to submit evidence
prior to the hearing may not necessarily result in a more complete
development of the record, given the well-established difficulty in
obtaining medical evidence and the fact that a disabled claimant is
unlikely to know precisely the kinds of evidence needed to establish
his or her claim. What other elements of your proposed rule will lead
to better, earlier and more complete development of the evidentiary
record--especially at the initial and Reviewing Official levels? Are
there particular steps aimed at ensuring that relevant medical and
other evidence are both identified and actually obtained by SSA or the
state agencies?
Answer: I very much appreciate your question--particularly in its
approach to the overall submission of evidence throughout the process.
We are proposing to establish timelines for the submission of evidence
at the hearing level in an effort to ensure that the administrative law
judge (ALJ) has the most complete record to review just before the
hearing. But, that is just one aspect of the proposed rules pertaining
to development and submission of evidence. Our focus is to create a
more complete and well documented record much earlier in the process.
The SSA is proposing a number of changes that will help us achieve
these goals:
-- At the initial claim level, we are using our new electronic
disability process (eDIB) to improve the record that the field office
sends to the disability determination services (DDS). We will continue
to improve this process.
-- The Notice of Proposed Rulemaking proposes that the DDSs better
document each case and provide more complete rationales for their
determinations. The proposed Federal Expert Unit will help DDSs, as
well as all other levels of adjudication, to obtain the medical
documentation they need--particularly in difficult to determine areas
of impairments--improving the medical record and the quality of medical
and vocational expertise we devote to a claimant's case.
-- At the Reviewing Official level, our proposal to fill this
position with Federal employees who are attorneys should ensure
nationwide uniformity in the application of policy. It also should
result in enhanced rationales and clear decisions that our claimants
will better understand. The Reviewing Official decision will provide a
claimant with the information needed to make an informed judgment about
pursuing an appeal to the ALJ level, and a better record for the ALJ
should the claimant request a hearing.
-- Feedback loops would be established at each level of
adjudication, ensuring continuous improvement in better documenting
each case. A new and more balanced quality review system that will
review both allowances and denials should also assist in continuous
improvement and the development of more complete records.
Question: Please enumerate the reasons why a hearing might be
postponed or rescheduled. Has the Social Security Administration or
individual hearing offices conducted any analysis of the reasons for
postponements, and/or adopted strategies or procedures to try to reduce
the frequency of postponements?
Answer: Each Hearing Office records information about the reasons
for hearing postponements and cancellations. In Fiscal Year (FY) 2005,
our analysis indicated the reasons for hearings postponements and
cancelations were:
the claimant or representative did not appear for the
hearing;
the claimant requested representation after the case was
scheduled;
a dismissal issued by the ALJ after the case was
scheduled;
the claimant was unavailable;
an on-the-record decision was issued by the ALJ after the
case was scheduled; and
other reasons, including failure to provide evidence.
We have developed ``best practices'' to help reduce postponements
or cancelations and have shared them with all hearing offices. These
``best practices'' include:
Providing representatives with case listings, on a
monthly basis, as cases move to within 60 to 90 days of being scheduled
to concentrate their efforts on obtaining and submitting medical
documents in time for the scheduled hearing(s);
Telephoning non-represented claimants before the hearing
and reminding them of the hearing date
Identifying representatives who are willing to schedule
cases quickly to fill in postponements or cancellations;
Scheduling hearings at least 3 months in advance.
Question: If a representative engaged in a pattern of withholding
evidence, postponing hearings or otherwise delaying decisionmaking
unnecessarily, does SSA have tools or procedures in place to sanction
such conduct? How many times have these been invoked in the last 3 to 5
years?
Answer: Yes. The SSA does have representative sanction procedures
in place. When we have evidence that a representative fails to meet our
qualification requirements or has violated the rules governing dealings
with us, we may begin proceedings to suspend or disqualify that
individual from acting in a representational capacity before us.
Specifically, representatives have an affirmative duty to assist the
claimant in complying, as soon as practicable, with our request for
information or evidence. For further information, see sections 206(a),
1102(a) and 1631(d)(2) of the Social Security Act and our regulations
at 20 CFR 404.1740, 404.1745, 404.1750, 404.1765, 416.1540, 416.1545,
416.1550, and 416.1565.
We do not keep data specific to individual reasons for sanctions;
however, below is information on the number of times representatives
have been sanctioned in the last 5 years.
Representative Sanction Case Information for FY 2001 through FY 2006
(October 2005)
----------------------------------------------------------------------------------------------------------------
Number of Cases in Number of Cases in
which Representa- which Representa- Number of Cases in
Number of tives Accepted tives Accepted which SSA Issued
Formal Complaints Suspensions or Suspensions or Final Decisions to
SSA Filed Against Disqualifications Disqualifications Suspend or
Representatives Before SSA Filed After SSA Filed Disqualify
Formal Complaints Formal Complaints Representatives
----------------------------------------------------------------------------------------------------------------
FY 2001 25 0 2 7
----------------------------------------------------------------------------------------------------------------
FY 2002 15 1 1 12
----------------------------------------------------------------------------------------------------------------
FY 2003 5 4 5 4
----------------------------------------------------------------------------------------------------------------
FY 2004 5 0 0 4
----------------------------------------------------------------------------------------------------------------
FY 2005 6 1 1 4
----------------------------------------------------------------------------------------------------------------
FY 2006 2 0 0 1
----------------------------------------------------------------------------------------------------------------
TOTAL 58 6 9 32
----------------------------------------------------------------------------------------------------------------
Note: After FY 2001, we started increasing our use of an informal process, which reduced the number of formal
complaints filed against representatives.
Question: SSA previously tested eliminating a claimant's right to
appeal an Administrative Law Judge's decision to the Appeals Council,
as part of its ``prototypes'' demonstration projects. Does SSA have any
data from that demonstration that suggest the Appeals Council--or
similar body--can be eliminated without a significant increase in
federal court filings?
Answer: In 1997, we began to study this issue during our previous
prototype redesign effort, but we curtailed the review before it was
completed once it became clear that SSA was not going forward with this
element of the prototype model. Therefore, there are no data available.
Question: How does the so-called ``windfall offset'' apply in
Special Disability Workload (SDW) cases, and what does this mean in
dollars and cents to the recipient? How many SDW cases are currently
outstanding?
Answer: The SSA applies Title II/Title XVI windfall offset when an
individual is eligible for Supplemental Security Income (SSI) payments
and becomes retroactively entitled to Title II benefits for some or all
of the months of SSI eligibility. Since SDW cases involve SSI
recipients who become concurrently eligible for retroactive Title II
benefits, windfall offset applies. The windfall offset provision
requires SSA to reduce the retroactive SDW payments by the difference
between the amount of SSI payments that were paid and the amount of SSI
payments that would have been paid had the Title II benefits been paid
timely.
As of the end of September 2005, SSA had processed 127,287 cases,
leaving about 172,713 cases to be completed. SSA expects to complete
the processing of all remaining cases by the end of FY 2010.
Questions from Mr. Levin to Ms. Marty Ford
Question: In your judgment, what would be fair parameters under
which claimants could be expected to operate in terms of submitting
evidence, etc. at the various steps of the appeals process?
Answer: The members of the CCD Social Security Task Force strongly
support the submission of evidence as early as possible. However, there
are many legitimate reasons why evidence is not submitted earlier and
thus why closing the record is not beneficial to claimants including:
(1) the need to keep the process informal; (2) changes in the medical
condition which forms the basis of the claim; (3) the fact that the
ability to submit evidence is not always in the claimant's or
representative's control; and (4) claimants often secure representation
at different times, often not understanding why representation is so
important. For these reasons, the record should not be closed prior to
the hearing decision. Even after that decision, it should be possible
for claimants to file new and material evidence with the approval of
the ALJ or the Appeals Council/Decision Review Board. As is discussed
further below, the statute already provides that the federal district
courts can remand a case ``at any time'' for consideration of evidence
that is new and material and for which there is good cause that it was
not previously provided. At a minimum, this standard should apply after
the ALJ decision and before the Appeals Council/Decision Review Board
(which also needs to have the ability to review claimant-initiated
appeals, something not contemplated in the proposed regulations but
which is an important current protection that needs to be maintained).
The current system provides a process to submit new
evidence at the ALJ hearing and, if certain conditions are met, at
later appeals levels. So that claimants are not penalized for events
beyond their control, the opportunity to submit evidence should not be
eliminated in the name of streamlining the system. We believe that the
current rules for submission of evidence should be retained as follows:
Under current law, an ALJ hears a disability claim de
novo. New evidence can be submitted up to and during the hearing and
will be considered by the ALJ in reaching a decision. The statute is
clear that the ALJ's decision is to be based upon evidence ``adduced at
the hearing.'' Evidence that becomes available after the hearing but
before the ALJ decision is issued receive the same treatment.
The claimant should retain the right to submit new and
material evidence after the ALJ decision. Current law sets limits for
submission of new evidence after the ALJ decision is issued and these
rules should be retained. At the Appeals Council level, new evidence
will be considered, but only if it relates to the period before the ALJ
decision and is ``new and material.'' \1\ This should be retained at
the Appeals Council or Decision Review Board level. SSA should
recognize a ``good cause'' exception for this post-ALJ decision
submission of new and material evidence.
---------------------------------------------------------------------------
\1\ 20 C.F.R. Sec. Sec. 404.970(b) and 416.1470(b).
---------------------------------------------------------------------------
At the Federal district court level, the record is closed
and the court will not consider new evidence. However, under the Social
Security Act,\2\ there are two types of remands:
---------------------------------------------------------------------------
\2\ 42 U.S.C. Sec. 405(g).
1. Under ``sentence 4'' of 42 U.S.C. Sec. 405(g), the court has
authority to ``affirm, modify, or reverse'' the Commissioner's
decision, with or without remanding the case; and
2. Under ``sentence 6,'' the court can remand (a) for further
action by the Commissioner where ``good cause'' is shown, but only
before the agency files an Answer to the claimant's Complaint; or (b)
at any time, for additional evidence to be taken by the Commissioner
(not by the court), but only if the new evidence is (i) ``new'' and
(ii) ``material'' and (iii) there is ``good cause'' for the failure to
submit it in the prior administrative proceedings.
A construct could be adapted for ``good cause'' determinations for
submitting new evidence. It is important that the regulations do not
include an exhaustive list of reasons since each case turns on the
facts presented. The ``good cause'' exception for district court
``sentence six'' remands for new and material evidence is well
developed. A review of published court decisions shows a wide variety
of reasons why evidence was not submitted prior to the court level,
including:
Medical evidence was not available at the time of the
hearing.
The claimant was unrepresented at the hearing and the ALJ
did not obtain the evidence.
Medical evidence was requested but the medical provider
delayed or refused to submit evidence earlier.
The claimant underwent new treatment, hospitalization, or
evaluation.
The impairment was finally and definitively diagnosed.
The claimant's medical condition deteriorated.
Evidence was thought to be lost and then was found.
The claimant's limited mental capacity prevented him from
being able to determine which evidence was relevant to his claim.
The existence of the evidence was discovered after the
proceedings.
The claimant was unrepresented at the hearing and lacked
the funds to obtain the evidence.
Since there are many permutations, depending on the circumstances
in each case, there should be some discretion to consider new and
material evidence, taking into account whether the circumstances
involved show that good cause exists. The key is to ensure that the
process is fair, informal, not overly legalistic, and that SSA has the
information it needs to make full and fair decisions in each
individual's case. Anything less than that undermines the important
guarantees of the Social Security program to be there when a worker or
the worker's dependents need it due to disability, death, or
retirement. We understand that is not as high speed, streamlined, and
efficient as a process that moves forward without all of the needed
evidence, but this is the balance needed to ensure that the program is
fair. Meanwhile, we absolutely support the concept that claimants and
their representatives should provide the evidence they have as early as
it is available, because that is in the claimant's interest, as well as
SSA's.
Thank you for this opportunity to provide comment on these issues.
I would be happy to respond to any further questions.
Questions from Mr. Levin to Mr. Thomas Sutton
Question: Why would a claimant or a professional representative
seek to postpone a hearing? What factors are weighed in deciding
whether to seek a postponement?
Answer: The primary reason that an unrepresented claimant would
seek to postpone a hearing would be to obtain representation. Under
SSA's own policies, before a waiver of the right to counsel is
considered valid, the ALJ must both send a letter to the claimant in
advance explaining that right and confirm on the record at the hearing
that the ALJ again told the claimant about the right to counsel and
determined that the claimant was competent to understand. HALLEX I-2-6-
52A.\1\ If the claimant wishes to obtain representation, the ALJ should
postpone the hearing. Id.
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\1\ ``HALLEX'' is the acronym for SSA's ``Hearing, Appeals, and
Litigation Law Manual.'' The HALLEX conveys guiding principles,
procedural guidance and information to the Office of Hearings and
Appeals (OHA) staff. It also defines procedures for carrying out policy
and provides guidance for processing and adjudicating claims at the
Hearing, Appeals Council and Civil Actions levels. HALLEX I-1-0-1. It
is available online at: http://www.ssa.gov/OP_Home/hallex/hallex.html.
---------------------------------------------------------------------------
We encourage our members to seek postponements as infrequently as
possible because of the length of time claimants must wait for a
hearing date and because of the potential disruption to the overall
hearings process. However, there are circumstances when a postponement
is necessary to adequately represent the claimant. One of the main
reasons that a representative may seek a postponement of a scheduled
hearing is when the claimant seeks and obtains representation shortly
before the hearing or after receiving the hearing notice, frequently
fewer than 20 days before the hearing date.\2\ Based on the experience
of our members, this is not an uncommon occurrence since the ALJ
hearing is the claimant's first in-person contact with an adjudicator
(this would not change under the NPRM). It should be noted that the
current regulations state that a good reason for requesting a
postponement is when the representative is appointed within 30 days of
the scheduled hearing date and needs additional time to prepare.\3\
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\2\ Under current regulations, only a 20-day notice is required. 20
C.F.R. Sec. Sec. 404.938(a) and 416.1438(a).
\3\ 20 C.F.R. Sec. Sec. 404.936(f)(2) and 416.1436(f)(2).
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Under this circumstance, whether a representative and claimant
decide to proceed with the scheduled hearing or request a postponement
will normally depend on the quality of the records already in the
hearing record file. After representation is obtained, the
representative will need time to review the file in order to formulate
legal arguments and, most importantly, develop additional evidence. If
further evidence is needed to fully develop the claim, which is
typically the case, then additional time will be required to request
and obtain the records and other information.
The other most frequent reason for requesting a hearing
postponement is that the claimant is ill or hospitalized. SSA's
regulations require the ALJ to reschedule the hearing in this
circumstance.\4\
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\4\ 20 C.F.R. Sec. Sec. 404.936(e)(1) and 416.1436(e)(1).
---------------------------------------------------------------------------
Other reasons for requesting a postponement include:
Serious illness or death of a family member.
Lack of transportation to the hearing site. This is a
problem not only in urban areas where there is mass transportation but
the claimant lacks funds to pay the fare, but also is a problem for
claimants who reside in rural areas and small towns and must travel
some distance to a hearing site.
The claimant is homeless or is being evicted.
The representative has a scheduling conflict.
The claimant cannot be located.
SSA's regulations, 20 C.F.R. Sec. Sec. 404.936 and 416.1436,
provide a nonexhaustive list of reasons, including many listed above,
for requesting that the hearing be rescheduled.
Factors considered by representatives in deciding whether to seek a
postponement include:
The length of time the claimant has waited for a hearing.
The claimant's medical condition.
The claimant's financial situation.
Whether further development is needed.
The impact on the system.
What the client/claimant wishes to do.
Decisions will not necessarily depend on a single factor but will
involve a discussion with the claimant. Ultimately, the decision rests
with the client, after the benefits and risks have been explained.
Question: In your experience, what are some of the reasons for
delay in obtaining evidence? What are some of the obstacles encountered
in developing a complete evidentiary record? Please describe the
procedures your office and other NOSSCR members utilize in obtaining
needed evidence.
Answer: Our office procedures are designed to efficiently order,
procure and submit medical and other evidence which will result in
favorable decisions for our clients at the earliest possible time. We
employ staff who work full-time doing nothing but sending out requests,
following up by phone call and fax, and reviewing responses for
completeness. Nevertheless, like all representatives, we face numerous
obstacles and lengthy delays in a significant number of cases. Based on
our review of cases in which claimants tried to proceed without
representation, the problems with developing a complete evidentiary
record are even worse for the pro se claimants.
Problems with developing complete evidentiary files are many and
varied, and include the following:
Physicians who are understaffed, have copying and/or fax
machines which are reportedly broken, and/or clearly do not see
fulfilling record requests from attorneys as a high priority;
Physicians who do not want to provide any records until a
past-due bill for medical services is paid by the claimant;
Physicians who will provide only their handwritten and
marginally legible treatment notes, but will not take the time to write
a letter or complete a form regarding their patients' impairments and
functional limitations, regardless of whether a fee is offered for
their services;
Hospitals which have either closed or changed ownership,
which often results in records being transferred to other sites with no
notice to former patients;
Hospitals which, for good reason, will not release
records of inpatient hospitalizations until the attending physician
signs the chart, which may take weeks or even months after discharge;
Hospitals which cannot locate Emergency Room treatment
records unless they are given a specific date of treatment, which
claimants often cannot remember;
Hospitals which insist on receiving their own form
releases, even when a general HIPAA-compliant form has already been
executed by the claimant;
Mental health outpatient treatment centers which
erroneously claim that HIPAA prohibits them from releasing
psychotherapy notes;
Claimants who, because of mental impairments, are unable
to recall all of their treatment sources (e.g., a claimant with a
hearing scheduled in early November who, despite repeated questioning,
cannot remember what hospital he was psychiatrically admitted to for a
period of several weeks);
Claimants who have used different names in the past,
making location of their records difficult if not impossible.
In addition to this nonexhaustive list of problems, it should be
noted that virtually all providers expect pre-payment for copies of
records. While some states have statutes which limit the charges that
can be imposed by providers, many do not. Moreover, while private
attorneys have the resources to advance costs for their clients, many
legal services organizations do not, and unrepresented claimants may
withdraw their requests for records in the face of what are, for them,
significant bills which they cannot afford to pay. Finally, although
ALJs have the nominal power to issue subpoenas at 20 C.F.R.
Sec. Sec. 404.1450 and 416.950, they do not have the power to enforce
subpoenas with which providers fail to voluntarily comply, and the
United States Attorneys' offices which have such power do not have the
resources to devote to such activities.
Question: What can be done to improve the responsiveness and
timeliness of those requested to provide medical and other evidence?
How could we compel or persuade them to respond?
Answer: As discussed in the answer to question 2, there are many
reasons for delays in obtaining medical evidence. Ways to improve the
responsiveness and timeliness include:
Provide adequate reimbursement rates to providers.
Contact providers on a repeated basis. Medical providers,
whether hospitals, clinics, physicians, or other sources, are extremely
busy. We find that usually after three or four requests or calls, the
provider will respond, but that requires allocation of personnel time
by representatives and entails delay in submission of evidence.
HIPAA has a 30-day response time requirement. However,
many medical facilities are simply unable to comply. There is no
penalty if they fail to comply.
Formal judicial proceedings have strict discovery rules and
sanctions if they are violated. Similarly strict rules would be
inappropriate in the disability claims process which is informal and
nonadversarial. One tool that is available to a representative is
requesting that an ALJ issue a subpoena for production of records. 20
C.F.R. Sec. Sec. 404.950(d) and 416.1450(d). The request must be made
at least 5 days before the hearing (the proposed rule would increase
the time to 20 days before the hearing). While there is no effective
way to enforce the subpoenas, our members report that providers
frequently will respond to the records request once the subpoena is
received. Even with a subpoena, additional follow-up contact with the
provider will be needed. However, we do not ask for subpoenas in every
case as we recognize the additional burden such a request places on
ALJs and their offices.
Question: Why might a claimant or professional representative
present evidence at the hearing itself, rather than submitting it in
advance?
Answer: At the hearing on September 27, 2005, ALJ Dana McDonald was
asked whether there was much abuse of the system so far as late
submission of evidence. He responded that there was no real abuse of
the system. He noted that often evidence comes in shortly before the
hearing and he recognized that representatives cannot request medical
evidence on a frequent basis. We agree with ALJ McDonald.
The most frequent reason for presenting evidence at the hearing,
rather than in advance, is that it is received shortly before the
hearing. We find, and other members report, that OHAs have difficulty
associating medical records with the claimant's file in a timely
manner. If it is shortly before the hearing (e.g., 10 days), the
representative will take the records to the hearing or hand-deliver
them in advance. Even in the latter case, a duplicate set may be taken
to the hearing.
Even where evidence has been sent well in advance of the hearing,
representatives will take a duplicate copy to the hearing because, in
their experience, the original records are misplaced at the hearings
office and will not be in the file. Some ALJs routinely instruct
representatives to bring another copy to the hearing since it is so
likely that the mailed records will not have been placed in the file.
Also, claimants wait many months for a hearing and, as ALJ McDonald
noted, medical providers cannot be asked repeatedly to update records.
As a result, initial requests may occur when claimants first retain
representation and then again closer to the hearing. However, the
current regulations require only a 20-day notice. As a result, despite
our intensive efforts to obtain updated records for the ALJ, it is not
at all certain that they can be obtained prior to the hearing. If the
records are obtained, it usually will be too close to the hearing date
to send them by mail. We believe that a long notice period will
significantly improve the earlier submission of evidence. In the NOSSCR
comments to the proposed rule, we recommended a 90-day notice.
Another reason for submission of evidence at the hearing is that
representatives frequently are prohibited by certain OHAs from
reviewing the evidence file until the hearing is scheduled. And, until
the file is reviewed, they cannot determine exactly what additional
records development is needed. This problem has been exacerbated by the
increase in the use of video teleconferencing (VTC) for hearings. This
means that the ALJ will be located at a different location than the
claimant. While the representative should have access to the file
before it is transferred to the ALJ's OHA, this usually does not occur.
As a result, representatives are in the unfortunate position of having
to negotiate with distant OHAs for access to the exhibit files. The
distant OHAs respond in various ways, including sending the file but
only 2 weeks before the hearing or sending only a List of Exhibits but
not the actual records.
Question: With respect to the 20-day rule for submission of
evidence, why isn't the ``good cause'' exception sufficient protection
for claimants? Could your objections to other deadlines in the proposed
rule be overcome by adding ``good cause'' exceptions?
Answer: ``Good cause'' decisions are completely within the
discretion of the adjudicator. If the ALJ finds no good cause and
rejects the evidence, a claimant will have no recourse to have the
evidence considered, other than to file an appeal to federal court or
simply abandon the claim. Under the proposed rule, claimants will have
less than 25 days after receiving the hearing notice (45-day hearing
notice requirement less 20 days to submit evidence before the hearing)
to submit all updated medical records. However, nothing requires
medical providers to turn over records this quickly. Claimants will
then be at the mercy of ALJs to find good cause. Some will do so. But
others may rigidly enforce the new 20-day deadline and refuse to
consider any medical evidence submitted within that time limit and even
deny the claim based on an incomplete medical record.
If the ALJ's discretion is abused, the claimant will have no
recourse within the agency, but instead will have to file suit in
federal court where a district court judge will be asked to decide not
whether the evidence proves disability, but whether the ALJ was wrong
to refuse to consider the evidence. As a result, the 20-day time limit
will result in decisions based on incomplete records which cannot be
repaired and will lead to unnecessary litigation.
A good cause exception to the 20-day rule also may be more
burdensome not only for claimants and representatives but also for
ALJs. If all necessary evidence has not been received at least 20 days
before the hearing, it may be necessary to ask the ALJ for a good cause
determination and/or to issue a subpoena. Since it is extremely
unlikely that all evidence will be obtained more than 20 days before
the hearing, requesting a good cause determination and/or that
subpoenas be issued may become a routine matter at hearings. The ALJ
will need to address these issues, leading to more litigation over
these tangential, yet crucial, matters and ultimately leading to longer
hearings.
These results are not only unfair to claimants but are also
administratively inefficient and thus do not advance the Commissioner's
goals.
Extending the use of good cause to other time limits in the
proposed rule is not helpful to claimants for the reasons discussed
above, primarily, that it is a discretionary decision for which the
claimant has no recourse.\1\ We believe that such unlimited discretion
will not improve the system but will make it worse.
---------------------------------------------------------------------------
\1\ Not all actions by SSA give the individual the right to
administrative and judicial review. See 20 C.F.R. Sec. Sec. 404.902 and
416.1402.
Question: What barriers and obstacles do claimants face in pursuing
---------------------------------------------------------------------------
an appeal in Federal court?
Answer: We support the current system of judicial review. We
believe that both individual claimants and the system as a whole
benefit from the federal courts deciding Social Security cases. Over
the years, the federal courts have played a critical role in protecting
the rights of claimants. The system is well-served by regular, and not
specialized, federal judges who hear a wide variety of federal cases
and have a broad background against which to measure the reasonableness
of SSA's practices. Under the current system, the courts are more
geographically accessible to all individuals and give them an equal
opportunity to be heard by judges of high caliber.
However, as noted by Judge McKibben in his testimony at the
September 27th hearing, there is a large dropoff in appeals from the
Appeals Council to federal court under the current process. Based on
our experience, the two main factors are (1) the complexity of the
process, which intimidates claimants (especially those who are
unrepresented), and (2) the cost, which is prohibitive for many
individuals. Overall, it is very difficult for a claimant to win a case
in court without the assistance of legal counsel.
As noted by Judge McKibben, there are other factors contributing to
the decision not to appeal to court. These include the fact that some
attorneys do not take cases to federal court; some representatives are
not attorneys; and many attorneys do not take cases to federal court if
they did not represent the claimant at the hearing. Judge McKibben
noted another important factor: the existence of the right to seek
administrative review of unfavorable ALJ decisions.
Federal court appeals are more costly than appealing to the Appeals
Council. The procedure to request review by the Appeals Council is
relatively simple. SSA has a one-page form that can be completed and
filed in any Social Security office, sent by mail, or faxed. In
contrast, the procedure for filing an appeal to federal district court
is much more complicated and, unless waived, there is a $250 filing
fee, which may be cost-prohibitive for a claimant. While the fee may be
waived, it involves filing a motion to proceed in forma pauperis and
then waiting for a decision granting the motion. Although court
personnel are generally helpful, pro se claimants are nevertheless
intimidated by this process.
Federal court appeals are more complex than appealing to the
Appeals Council. In contrast to the filing of a simple one-page form to
request review by the Appeals Council, filing an appeal and following
through with the case in federal court is much more complex and
governed by procedural rules since it is an adversarial process. A
formal Complaint must be filed, which then must be served on the
appropriate federal officials. A transcript of the administrative
proceedings is prepared by the agency and is then served on the
plaintiff/claimant. That is followed by a briefing schedule set by the
court. The plaintiff/claimant must then wait for a decision by the
court, which can be a long wait depending on the press of other cases
before the court. And if there is no intermediate administrative
appeals process, the delays may be even longer than those that
currently exist. As noted by Judge McKibben in his testimony:
``[T]he acceleration of district court review of disability
claim denials may result in more costs and further delays for claimants
because it merely shifts the time for considering such claims from the
administrative process to the courts.''
It is also important to note that many claimants have impairments
or other limitations that affect their ability to navigate the system,
e.g., they have mental impairments, are illiterate, are not fluent in
English, or are homeless. Filing an appeal to an administrative body
like the Appeals Council is much easier and far less intimidating than
filing an appeal in federal court.
Another obstacle for claimants is that the record is closed once
the case is at the federal court level and new evidence cannot be
considered by the court. Unlike the de novo standard used by ALJs in
making findings of fact, the courts are limited, by statute, to
determining whether findings made in the administrative process are
supported by substantial evidence.\1\ The ``substantial evidence''
standard is considered very deferential in contrast to the de novo
standard. A court may remand the case back for SSA (not the court) to
consider new evidence but only if it is new, material, and there is
good cause for the failure to submit it in the prior administrative
proceedings.\2\ The courts have been strict in applying this provision
and such remands occur very infrequently. The strict rules in the July
27th proposal are certainly exacerbated by the limitations at the
federal court level regarding new evidence.
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\1\ 42 U.S.C. Sec. 405(g).
\2\ This is known as a ``sentence six'' remand because it is
authorized by the sixth sentence in 42 U.S.C. Sec. 405(g).
---------------------------------------------------------------------------
[Submissions for the record follow:]
New York, New York 10024
October 4, 2005
The Honorable Wally Herger
Chairman, Subcommittee on Human Resources
The Honorable Jim McCrery
Chairman, Subcommittee on Social Security
Committee on Ways and Means
United States House of Representatives
Rayburn House Office Building
Washington, D.C. 20515
Dear Mr. Chairmen,
Thank you for the opportunity to submit this letter regarding the
Commissioner of Social Security's proposed regulations regarding the
administrative review process for adjudicating initial disability
claims for the record of the above hearing. My name is Robin J. Arzt. I
am an Administrative Law Judge (``ALJ'') who has been hearing Social
Security disability and Medicare cases for over eleven years at the
Office of Hearings and Appeals (``OHA'') of the Social Security
Administration (``SSA'') in New York, New York, and formerly in the
Bronx, New York.
This letter is presented in my individual capacity. My position as
an Administrative Law Judge with the Social Security Administration is
stated in this letter for identification purposes only. This letter was
written in my private capacity and without the use of Federal
Government resources or federal work time. No official support or
endorsement by the Social Security Administration or the United States
is or should be inferred. The views expressed in this letter are mine
and do not necessarily represent the views of the Social Security
Administration or the United States.
I. INTRODUCTION
The Commissioner has published wide-ranging proposed regulations to
redesign the disability determination process from the initial
determination stage through the final administrative decision step. The
Commissioner's bold proposals and inclusive process are to be
appreciated.
The Commissioner has proposed, among other things, to (1) replace
the reconsidered determination with a review by a federal Reviewing
Official (``RO''), (2) retain a claimant's due process right to a de
novo administrative hearing before an ALJ upon appeal from an RO's
decision, and (3) replace the Appeals Council with a Decision Review
Board (the ``Board'') that will include ALJs and Administrative Appeals
Judges (``AAJs''). ALJs are independent decisionmakers who are
appointed pursuant to the Administrative Procedure Act (``APA'').\1\
AAJs are SSA employees who currently serve on the SSA Appeals Council
and are subordinate employees because of the lack of any statutory
protections of their decisional independence.
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\1\ 5 U.S.C. Sec. 3105.
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It is excellent that the Commissioner is proposing both the
retention of the claimants' due process right to a de novo
administrative hearing before an ALJ upon appeal from an RO's decision
and inclusion of ALJs in the final administrative step after the ALJ
hearing and decision. The Commissioner's recognition that the APA
provisions were enacted for the benefit of the claimants and to enhance
the disability process should be commended. The Commissioner made her
support of the ALJs and their role in the disability process clear
during her September 25, 2003, testimony before the Subcommittee on
Social Security.\2\ The Commissioner also reported that ALJ case
``productivity rates [in FY 2003] were the highest in history'' during
her February 26, 2004, testimony before the Subcommittee on Social
Security.\3\ The SSA ALJs again set an all time productivity record in
Fiscal Year 2005, with a daily ALJ disposition rate of about 2.46 cases
per day.\4\
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\2\ Hearing on the Social Security Administration's Management of
the Office of Hearings and Appeals Before the House Subcommittee on
Social Security of the Committee on Ways and Means, 108th Cong. (1st
Sess., September 25, 2003) (statement of Hon. Jo Anne B. Barnhart, SSA
Commissioner).
\3\ Hearing on the Social Security Administration's Budget Delivery
Service Plan Before the House Subcommittee on Social Security of the
Committee on Ways and Means, 108th Cong. (2nd Sess., February 26, 2004)
(statement of Hon. Jo Anne B. Barnhart, SSA Commissioner).
\4\ Memorandum from A. Jacy Thurmond, Jr., Associate Commissioner
of SSA OHA, Thank You, OHA--INFORMATION (October 3, 2005) [hereinafter
Thurmond Memo] (on file with author).
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Only proposed regulations that bear upon the structure and due
process of the SSA appellate administrative levels, including the
decisional independence of ALJs and AAJs, are commented upon in this
letter:
In section A(1) below, I comment on the features of the
Commissioner's proposed regulations regarding the final administrative
review step: the replacement of the Appeals Council with the Board.
(See p. 2). I offer information in section A(2) regarding my ALJ
appellate panel proposal that was recommended for use within OHA to
replace the Appeals Council by a March 2002 report commissioned by the
Social Security Advisory Board (``SSAB'') \5\ to explain the many
demonstrated benefits that a fully developed appellate panel system
with a claimant's right of appeal will bring to (1) increase
consistency between the final SSA administrative decision and initial
court decision, (2) increase decision timeliness, and (3) decrease the
number of appeals to the District Courts, rather than increase court
appeals as would the Board as it currently is proposed. (See p. 4).
Finally, in section A(3), I suggest modifications to the Commissioner's
proposed regulations that would let Social Security claimants, SSA, the
federal courts, and the American public reap the benefits of an ALJ
appellate panel process, including increased accuracy and timeliness of
decisions, fewer court appeals, and assurance of the decisional
independence of the ALJs and AAJs. (See p. 7).
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\5\ See discussion infra text at n. 26.
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In section B, I comment on the Commissioner's proposed regulations
regarding the RO and treatment of an RO's decision in an ALJ's
decision. I also suggest modifications to the Commissioner's proposed
regulations that would increase the accuracy of decisions between the
RO and ALJ steps and reduce appeals from the RO decisions without
compromising ALJ decisional independence. Among other things, I
respectfully suggest that the Commissioner state in the regulations
that an ALJ is not required to give any legal deference or any weight
to an RO's decision, and that a more effective way to increase the
consistency of decisionmaking between the RO and ALJ decision levels
would be to require that the RO use the same legal standards for
determining disability as those by which the ALJs are bound. (See p.
8).
In section C, I comment and make suggestions on the administrative
placement of the RO and Board within SSA to ensure separate chains of
authority to the Commissioner for the ALJs from agency initial
decisionmakers in accordance with the APA separation of functions
doctrine. (See p. 10).
A. Replacement of the Appeals Council with a Decision Review Board
1. The Proposed Regulations
The Commissioner's proposed regulations gradually would replace the
Appeals Council with the Board,\6\ which would consist of ALJs and
AAJs.\7\
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\6\ Proposed 20 C.F.R. Sec. 405.405.
\7\ Proposed 20 C.F.R. Sec. 405.405(a).
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The proposed regulations eliminate a claimant's right to request
administrative review of an adverse ALJ's disability benefits claim
decision under Title II and XVI of the Social Security Act: ``You may
not appeal an [ALJ's] decision to the Board.'' \8\
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\8\ Proposed 20 C.F.R. Sec. 405.405(b). See also, proposed 20
C.F.R. Sec. 405.1(a).
---------------------------------------------------------------------------
The proposed regulations do not specify how many members that the
Board would have, although the Supplementary Information states that
``[w]e believe that the . . . functions . . . performed by the Appeals
Council can be performed more effectively by a smaller review body.''
\9\ Given that the Appeals Council has only about 27 adjudicators and
has been plagued for decades by case backlogs and poor decision quality
directly attributable at least in part to its small size despite its
support staff of 800, I respectfully submit that an even smaller Board
will not be able to keep up with the caseload and enhance decision
quality.
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\9\ 70 Fed. Reg. 43598 (July 27, 2005).
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The Board would evaluate and review ``certain'' ALJ decisions
selected by the agency before the decisions are effectuated \10\ and
review ALJ decisions selected by the agency after the decisions have
been effectuated in order ``to study [the agency's] disability
determination process.'' \11\ However, if an ALJ declines a claimant's
request to vacate the ALJ's order dismissing the claimant's request for
a hearing, the claimant has a right to request administrative review of
the ALJ's dismissal order by the Board as the final step in the
administrative review process.\12\ The ``Supplementary Information''
preamble to the Commissioner's proposed regulations states that a
claimant ``will continue to have the right to seek further
administrative review of any [ALJ] decision pertaining to [the
claimant's] nondisability case,'' \13\ since the proposed regulations
pertain only to disability cases.\14\
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\10\ Proposed 20 C.F.R. Sec. 405.405(b).
\11\ Proposed 20 C.F.R. Sec. 405.405(d).
\12\ Proposed 20 C.F.R. Sec. Sec. 405.381-405.383, 405.405(c).
\13\ 70 Fed. Reg. 43598 (July 27, 2005).
\14\ Proposed 20 C.F.R. Sec. 405.1(a).
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The Board may elect to review decisions that are favorable or
unfavorable to the claimant. The Board may use ``random sampling, . . .
specific claim characteristics, a combination of these two methods, or
other methods to select claims for review,'' but may not review claims
based on an ALJ's identity.\15\ The Commissioner described another
method to select claims for review in the Supplementary Information:
``We intend to screen every [ALJ] decision, using computer-based
predictive screening tools and individual case record examination
performed by skilled reviewers, to identify cases for Decision Review
Board review.'' \16\ The proposed regulations do not include a
provision that the Board will ``generally select and review an equal
share of each type of case [favorable and unfavorable ALJ decisions],''
as is stated in the Supplementary Information.\17\ The knowledge of
such detailed and wide ranging agency scrutiny of ALJ decisions and,
soon, the knowledge of the case profiles and characteristics identified
by the agency that are more likely to result in Board review, will
chill the independence of the ALJ decision making process.
---------------------------------------------------------------------------
\15\ Proposed 20 C.F.R. Sec. 405.410.
\16\ 70 Fed. Reg. 43598 (July 27, 2005).
\17\ 70 Fed. Reg. 43598 (July 27, 2005).
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The Commissioner presents the Board's role for disability and
nondisability cases as a quality review process, not the final
administrative appellate step. As is stated in the Supplementary
Information, ``We envision that the Decision Review Board will help us
promote the consistency and efficiency of the adjudicatory process by
promptly identifying and reviewing, and possibly readjudicating, those
[ALJ] decisions that are the most likely to be erroneous.'' \18\
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\18\ 70 Fed. Reg. 43602 (July 27, 2005).
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However, I respectfully submit that SSA effectively is providing
itself with an administrative appeal of the ALJs' substantive
disability decisions that the claimant no longer will have. The Board
would be able to affirm, modify, or reverse an ALJ's decision or remand
a case to the ALJ for further action and decision.\19\ The Board would
apply a ``substantial evidence'' standard in reviewing the findings of
fact made by an ALJ and would review de novo the application of
law.\20\ The Board's decision becomes the final decision of the
Commissioner when it reviews a case. But if the Board does not complete
its action on a case within 90 days of the date the claimant receives a
notice that the Board is reviewing the case, or the Board does not
review the case, then the ALJ's decision becomes the Commissioner's
final decision.\21\ A claimant would have the right to file an action
in federal district court within 60 days of the date the Commissioner's
decision becomes final and judicially reviewable.\22\
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\19\ 20 C.F.R. Sec. Sec. 405.405(b), 405.440.
\20\ 20 C.F.R. Sec. 405.440.
\21\ 20 C.F.R. Sec. Sec. 405.372, 405.415, 405.420, 405.450.
\22\ 20 C.F.R. Sec. 405.501.
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Since a Board decision becomes the final decision of the
Commissioner, I respectfully submit that the quality review step
proposed by the Commissioner to be taken by SSA to the proposed Board
is an appeal, not only quality review. Quality review usually involves
a post mortem review of closed cases.
Permitting SSA appellate review of an ALJ's decision by the Board,
which is relatively easier, faster and lower cost than a District Court
appeal, but limiting the claimants to only a District Court review of
an adverse ALJ decision, raises substantial fairness and due process
issues. The omission of the claimants' right to access the final
administrative appellate step to review ALJs' decisions increases the
risk that erroneous denials of benefits will not be corrected because
some claimants, particularly pro se claimants, who would be able to
pursue a relatively simple administrative appeal will not have the
wherewithal to bear the additional procedural and financial burdens of
prosecuting a court appeal.
In addition, without a claimant's right to appeal an adverse ALJ
decision to the Board, the District Courts will be inundated with
appeals from the individual ALJ decisions. There are over 90,000
claimant appeals to the Appeals Council per year,\23\ which would be a
burden for the District Courts. Recent Congressional testimony on
behalf of the Judicial Conference of the United States (1) stated its
opposition to ``the elimination of a claimant's right to request review
of an administrative law judge's adverse decision by the Appeals
Council, or another administrative reviewing unit with comparable
authority, prior to seeking relief in federal district court,'' and (2)
cogently explained the need for a specialized administrative tribunal
to which a Social Security disability benefits claimant can appeal an
ALJ's decision in the context of the recent adverse experience of
skyrocketing numbers of immigration case appeals to the courts since
the ``streamlining'' of the Board of Immigration Appeals decisionmaking
procedures.\24\
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\23\ The Appeals Council disposed of over 94,000 during Fiscal Year
2005, which ended in September 2005. Thurmond Memo, supra note 4.
\24\ The Judicial Conference testimony stated as follows:
At its March 2005 session, the Judicial Conference of the United
States, the policymaking body for the federal judiciary, determined to
``support efforts to improve the efficiency and effectiveness of the
process by which the Social Security Administration considers
Disability Insurance and Supplemental Security Income claims, but
oppose the elimination of a claimant's right to request review of an
administrative law judge's adverse decision by the Appeals Council, or
another administrative reviewing unit with comparable authority, prior
to seeking relief in federal district court.'' Report of the
Proceedings of the Judicial Conference of the United States, March
2005, pp. 18-19. . . .
We recognize that SSA has stated that the Appeals Council adds
processing time, that it generally supports the ALJ decision, and that
it fails to provide meaningful guidance to ALJs when it disagrees. The
judiciary, however, believes that the proposed acceleration of district
court review of disability claim denials may result in more costs and
further delays for claimants because it merely shifts the time for
considering such claims from the administrative process to the courts.
It could also greatly expand the number of appeals to the federal
courts.
Based on information provided by SSA, the ability of claimants to
request review by the Appeals Council appears to provide a helpful
screening function today. Between October 2003 and September 2004 (FY
2004), SSA reports that the Appeals Council received 92,540 requests
for review. Information previously received from SSA suggested that 2%
of claims annually are allowed outright by the Appeals Council and 25%
are remanded to an ALJ (which often results in allowances to
claimants). Thus, the right to request administrative appellate review
also appears to result in an award of benefits to a significant number
of claimants, without the need for further review by the federal
courts.
The Administrative Office of the U.S. Courts reports that during FY
2004 there were 14,944 actions filed in the U.S. district courts
seeking judicial review of Disability Insurance and Supplemental
Security Income claims following a final decision of the Appeals
Council. This amount is a relatively modest percentage of the 92,540
requests for review presented to the Appeals Council. While the
judiciary recognizes that several factors might explain why the
remainder of the claimants choose [sic] not to seek review in federal
court, the existence of a right to seek administrative appellate review
appears to result in a large majority of claimants not seeking judicial
review following receipt of the Appeals Council's final decision.
The Judicial Conference believes that preserving the right to
request review before an administrative appellate body should continue
to be a precondition to federal judicial review. Notwithstanding SSA's
position that the proposed changes to the disability claims process
will reduce the number of claimants who are dissatisfied with the
agency's decision, substituting immediate access to the district courts
prior to the right to request final administrative appellate review has
significant caseload ramifications for the federal courts. [Fnote 3
text.] A possible analogy is the judiciary's experience after the
Department of Justice implemented new decisionmaking procedures for the
Board of Immigration Appeals, which serves as the final review step for
administrative consideration of alien removal and deportation cases.
These ``streamlining'' efforts included allowing certain decisions to
be made without opinions and permitting summary dismissals. As a result
of these efforts, immigration appeals increased nationwide by 232%
between 2001 and 2004 (for 12-month periods ending June 30). The Second
and Ninth Circuit Courts of Appeals saw immigration appeals increase
during this period by 1,396% and 401%, respectively.
The Appeals Council and the proposed Board are specialized
tribunals dedicated to reviewing ALJ decisions. The district courts are
no less dedicated, but they have diverse responsibilities that make
them less suitable for initially reviewing the current 90,000
disability claims of which approximately 75,000 are acted on by the
Appeals Council without any federal judicial involvement. Therefore,
the federal judiciary would urge that SSA revise the proposed
regulations to preserve the present right of claimants to request
review of an ALJ decision by an administrative reviewing entity.
Joint Hearing on the Commissioner of Social Security's Proposed
Improvements to the Disability Determination Process before the House
Subcommittees on Human Resources and Social Security of the Committee
on Ways and Means, 109th Cong. (1st Sess., September 27, 2005)
(statement of Hon. Howard D. McKibben, Chair, Judicial Conference
Committee, Federal-State Jurisdiction, Administrative Office of the
U.S. Courts).
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2. The Need for a Fully Developed ALJ Appellate Panel System for SSA's
Final Administrative Review Step
I am gratified that the Commissioner is proposing to include ALJs
as members of the proposed Board that would replace the Appeals
Council. As is stated in the Supplementary Information, the
Commissioner's preliminary proposals regarding the disability
determination process that she first presented during her September 25,
2003, testimony before the Subcommittee on Social Security included
replacing the Appeals Counsel with a Centralized Quality Control
Review'' (``CQCR'') function within SSA with the final step of
administrative review being by ``Oversight Panels'' of two ALJs and one
AAJ upon referral of cases by CQCR staff.\25\ The appellate panel
concept is not expressly included in the Commissioner's proposed
regulations, but also is not ruled out, since the proposed regulations
do not specify whether one or more Board members will review an ALJ's
decision. I also am gratified that the Commissioner has been
considering the appellate panel concept.
---------------------------------------------------------------------------
\25\ 70 Fed. Reg. 43592 (July 27, 2005).
---------------------------------------------------------------------------
The Commissioner's proposal to introduce ALJs at the final level of
administrative review and have them, with the AAJs, decide appeals from
individual ALJ decisions, and her preliminary proposal to have ALJs and
AAJs make decisions in panels of three, borrowed from my proposal for
local appellate panels of three ALJs as the final step to replace the
Appeals Council in the Social Security disability claims administrative
process. The appellate panel proposal is part of a detailed paper that
I authored for the Association of Administrative Law Judges (``AALJ'')
and, more recently, a law review article, that suggests an ALJ-
administered independent adjudication agency for Social Security Act
benefits cases with the exclusive jurisdiction to make the final
administrative decisions of Social Security Act Title II, XVI and XVIII
benefits claims.\26\
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\26\ The detailed adjudication agency proposal is embodied in Robin
J. Arzt, ``Recommendations for a New Independent Adjudication Agency to
Make the Final Administrative Adjudications of Social Security Act
Benefits Claims,'' 23 J. Nat'l Ass'n Admin. L. Judges 267-386 (Fall
2003) and, originally, in an AALJ policy position paper, which are
available upon request. The paper was adopted as a policy position by
AALJ, which represents the ALJs who work for SSA and the Civil Remedies
Division of the DHHS Departmental Appeals Board. A summary of the
adjudication agency proposal was submitted to the Subcommittee on
Social Security as AALJ's statement for the record of the June 28,
2001, hearing on Social Security Disability Programs' Challenges and
Opportunities. My comments on the Commissioner's preliminary proposals
to improve the disability determination process were submitted to the
Subcommittees as my statement for the record of the September 30, 2004,
joint hearing on the Commissioner of Social Security's Proposal to
Improve the Disability Process.
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A March 2002 report commissioned by the SSAB favorably and
extensively commented upon my proposal for local ALJ appellate panels
to replace the Appeals Council and recommended its use within SSA
OHA.\27\ (It is the SSAB report that apparently brought the ALJ
appellate panel proposal to the Commissioner's attention, given the
Commissioner's reference to one of its authors, Professor Jeffrey
Lubbers, as a source during her September 25, 2003, testimony before
the Subcommittee on Social Security.)
---------------------------------------------------------------------------
\27\ Paul Verkuil and Jeffrey Lubbers, Alternative Approaches to
Judicial Review of Social Security Disability Cases 19-21, 56, 63-68
(March 2002), available at www.ssab.gov/verkuillubbers.pdf. This
article includes an exhaustive survey of the many recommendations over
the last 20 years to abolish the Appeals Council and suggested
replacement mechanisms, including the proposal that I drafted for AALJ.
---------------------------------------------------------------------------
Under my appellate panel proposal, the claimants and SSA would have
a right of appeal of an individual ALJ's decision to a local appellate
panel staffed by ALJs that would consist of three ALJs who would review
the cases regionally or locally. The ALJ appellate panels would be akin
to the United States Bankruptcy Court appellate panels (``BAPs'').\28\
A Social Security ALJ Appellate Panel Service would be established in
each region composed of ALJs appointed in each region for a period of
time to hear and determine appeals taken from ALJ decisions issued
pursuant to 42 U.S.C. Sec. Sec. 405(b), 1383(c), and 1395(b). Appointed
ALJs may be reappointed. An appeal would be assigned to a panel of
three members of a Social Security Appellate Panel Service, except that
a member of such service may not hear an appeal originating in the
hearing office that is the member's permanent duty station or the
hearing office where the member is on a temporary detail assignment. A
sufficient number of such panels would be designated so that appeals
may be heard and disposed of expeditiously. Multi-region panels may be
established to meet the needs of small regions.\29\
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\28\ Id. at 356-361.
\29\ Id.
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The ALJ appellate panels would be required to apply a ``substantial
evidence'' standard in reviewing an individual ALJ's decision. Another
issue to consider is whether the ALJ appellate panel decisions should
be given precedential value by the individual ALJs sitting in either
the hearing office or entire region where the appeal originated.\30\
However, the policymaking authority of the agency cannot be usurped.
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\30\ Thalia L. Downing Carroll, Why Practicality Should Trump
Technicality: A Brief Argument for the Precedential Value of Bankruptcy
Appellate Panel Decisions, 33 Creighton L. Rev. 565, 571-77 (2000).
---------------------------------------------------------------------------
The ALJ appellate panel proposal is modeled in principle on the
Bankruptcy Court Appellate Panel statute,\31\ but was modified to make
the ALJ appellate panels process mandatory for Social Security Act
benefits cases, rather than elective by the parties as it is for the
BAPs process.\32\
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\31\ 28 U.S.C. Sec. 158 (1993).
\32\ The Bankruptcy Court Appellate Panels process was made
permissive, not mandatory, and thus is not used in all Circuits,
because of a Constitutional issue whether the use of the Panels is an
improper delegation of Article III court jurisdiction over private
rights in bankruptcy from the District Courts. Bankruptcy Court
Appellate Panel review is a substitute for District Court review only
upon all parties' consent and appeals go directly to the regional
Circuit Courts of Appeals. Because there is no Constitutional
jurisdiction issue for administrative cases involving entitlement to
public rights that were created by statute, such as administrative
determinations of entitlement to Social Security Act benefits, the
Bankruptcy Court Appellate Panel model may be modified to make it
mandatory for Social Security Act benefits cases. Downing Carroll,
supra note 30, at 565; Hon. Barbara B. Crabb, In Defense of Direct
Appeals: A Further Reply to Professor Chemerinsky, 71 Am. Bankr. L.J.
137 (1997); Tisha Morris, The Establishment of Bankruptcy Panels Under
the Bankruptcy Reform Act of 1994: Historical Background and Sixth
Circuit Analysis, 26 U. Memphis L. Rev. 1501 (1996); Thomas A. Wiseman,
Jr., The Case Against Bankruptcy Appellate Panels, 4 Geo. Mason L. Rev.
1 (1995).
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I adapted the BAPs model for SSA benefits case use because the
Bankruptcy Court system is another nationwide network of tribunals that
hears a high volume of cases in a specialized area that are generated
mostly from individual petitioners. There are ninety-two Bankruptcy
Courts situated in proximity to the District Courts.\33\ There are
about 140 Social Security hearing offices.\34\ Over 1,600,000 cases
were filed in Bankruptcy Court in 2004.\35\ SSA's ALJs disposed of over
604,000 cases in Fiscal Year 2005, which concluded in September
2005.\36\ Social Security claimants and SSA can benefit from the use of
an appellate system that has proven to work on a large scale.
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\33\ 28 U.S.C. Sec. 152 (2003).
\34\ See Social Security Online, available at http://ftp.ssa.gov/
oha/hearing_process.html.
\35\ Judicial Facts and Figures of the United States Courts: 1988-
2004, Table 5.1, available at http://www.uscourts.gov/
judicialfactsfigures/table5.01.pdf.
\36\ Thurmond Memo, supra note 4.
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Based upon the BAPs experience, the ALJ appellate panel model (1)
is an appellate system that can handle a large caseload, (2) results in
higher quality decisions because of expertise,\37\ (3) results in
substantially fewer appeals to the courts \38\ and a substantially
lower reversal rate by the courts \39\ because of the bar's and courts'
confidence in the high quality of the decisions that results from a
higher degree of decision accuracy from three expert decisionmakers
working together,\40\ (4) results in a substantially reduced federal
court caseload, (5) results in a shorter disposition time \41\ because
the large pool of about 1,200 ALJs permits the timely determination of
appeals that cannot take place with a small body such as the SSA
Appeals Council or the proposed Board, and (6) affords the claimants
access to a local appellate process.\42\ The opportunity for appellate
work also increases judges' morale and is viewed by judges as an honor
and an opportunity to ``improve judicial service to the litigants.''
\43\
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\37\ A survey of bankruptcy practitioners revealed that two-thirds
of them believed that the appellate panel decisions were ``better
products'' than District Court decisions. Wiseman, supra note 32, at 7.
\38\ Annual data show that a far smaller percentage of bankruptcy
appeals are taken to the circuit level from BAP decisions than from
District Court decisions.
During the year that ended on June 30, 2003, only about 11.6% of
BAP decisions were appealed to the Circuits compared to 27.9% of the
District Court decisions during the year that ended on June 30, 2003.
There were 1,071 appeals taken from individual Bankruptcy Court
judges' decisions to the BAPs and only 124 BAP decisions appealed to a
Circuit Court. However, there were 2,616 appeals taken from individual
Bankruptcy Court judges' decisions to a District Court Judge and 729
District Court decisions appealed to a Circuit Court.
During the year that ended on June 30, 2004, only about 15.8% of
BAP decisions were appealed to the Circuits compared to 26.1% of the
District Court decisions during the year that ended on June 30, 2004.
There were 1,010 appeals taken from individual Bankruptcy Court judges'
decisions to the BAPs and only 160 BAP decisions appealed to a Circuit
Court. However, there were 2,807 appeals taken from individual
Bankruptcy Court judges' decisions to a District Court Judge and 733
District Court decisions appealed to a Circuit Court.
Table B-23, U.S. Bankruptcy Appellate Activity by Circuit and
District for Matters Filed or Terminated during the Twelve Month
Periods Ended June 30, 2003, and June 30, 2004, provided to the author
by the Statistics Office of the Administrative Office of the United
States Courts (on file with author).
\39\ Annual data show that a markedly smaller percentage of BAP
bankruptcy decisions were reversed on appeal by the Circuit Courts than
the District Court bankruptcy decisions, based on the Circuit Court
appeals that were terminated on the merits during the years that ended
on June 30, 2002, June 30, 2003, and June 30, 2004. In addition, there
was only one remand of a BAP decision during the entire three year
period, compared to 24 remands of the District Court decisions.
Therefore, remands of BAP decisions by the Circuit Court are rare.
During the year that ended on June 30, 2002, the percent of BAP
decision reversals was only 55.5% of the percent of the District Court
decision reversals during the year that ended on June 30, 2002. There
were 359 terminations of appeals from District Court bankruptcy issue
decisions on the merits by the Circuit Courts, of which 12.8% (46) were
reversed and 1.9% (7) were remanded. There were 112 terminations of
appeals from BAP decisions on the merits by the Circuit Courts, of
which only 7.1% (8) were reversed and none were remanded.
During the year that ended on June 30, 2003, the percent of BAP
decision reversals was only 77.4% of the percent of the District Court
decision reversals during the year that ended on June 30, 2003. There
were 393 terminations of appeals from District Court bankruptcy issue
decisions on the merits by the Circuit Courts, of which 13.7% (54) were
reversed and 1.8% (7) were remanded. There were 85 terminations of
appeals from BAP decisions on the merits by the Circuit Courts, of
which only 10.6% (9) were reversed and 1.2% (1) was remanded.
During the year that ended on June 30, 2004, the percent of BAP
decision reversals was only 62.45% of the percent of the District Court
decision reversals during the year that ended on June 30, 2004. There
were 359 terminations of appeals from District Court bankruptcy issue
decisions on the merits by the Circuit Courts, of which 18.1 (65) were
reversed and 2.8% (10) were remanded. There were 62 terminations of
appeals from BAP decisions on the merits by the Circuit Courts, of
which only 11.3% (7) were reversed and none were remanded.
Table B-5, U.S. Courts of Appeals: Appeals Terminated on the
Merits, by Circuit during the Twelve Month Periods Ended June 30, 2002,
June 30, 2003, and June 30, 2004, BAP/District Court statistical
breakdown created for and provided to the author by the Statistics
Office of the Administrative Office of the United States Courts (on
file with author).
\40\ Appellate panel work fosters the development of expertise by
the panel members, which leads to better decisions. Morris, supra note
17, at 1509 (citing, Final Report of the Federal Courts Study
Committee, 74-75 (1990)).
\41\ Annual data regarding the disposition time of the appeals
heard by the BAPs shows that the median disposition time from the
filing of the notice of appeal through final disposition was 8.4 months
during the year that ended on June 30, 2002, 8.5 months during the year
that ended on June 30, 2003, and 8.9 months during the year that ended
on June 30, 2004. Table B-14, U.S. Bankruptcy Appellate Panels Median
Time Intervals in Cases Terminated after Hearing or Submission during
the Twelve Month Periods Ended June 30, 2002, June 30, 2003, and June
30, 2004, provided to the author by the Statistics Office of the
Administrative Office of the United States Courts (on file with
author).
\42\ See discussion in Id. at 356-361.
\43\ Morris, supra note 32, at 1509 (quoting, Federal Courts Study
Commission, Working Papers and Subcommittee Reports, Vol. 1, 364
(1990)).
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Therefore, by increasing the accuracy of the final SSA
administrative decisions and thus reducing the need for appeals to the
District Courts, the ALJ appellate panel system would be superior to
the current SSA Appeals Council or proposed small Board in providing
timely, high quality decisions and service for the claimants.
3. Proposed Modifications to the Proposed Regulations Regarding the
Decision Review Board
As is stated above, the proposed regulations neither permit a
claimant to appeal an individual adverse ALJ's decision to the proposed
Board nor include a reference to using ALJ appellate panels within the
proposed Board. These are major departures from the ALJ appellate panel
proposal that would eliminate many of the benefits of a BAP type
process, including much greater decisional consistency between the
final administrative and initial court levels and fewer appeals to the
federal courts. The claimants must have a right to appeal to the Board
in order for the claimants, SSA, the courts, and the American public to
receive the many demonstrated benefits to the Social Security Act
claims process of an appellate panel process, including faster
appellate decisions, increased consistency between the final SSA
administrative decisions and initial court decisions, and fewer federal
court appeals.
Another departure from the ALJ appellate panel proposal is the use
of AAJs, a subordinate SSA employee with no protections for decisional
independence, as members of the proposed Board. Also, the proposed
regulations do not state how many members the Board will have, or
whether the Board will be centralized in one location, or located
regionally or locally for better access to the claimants. Finally,
although the Commissioner states in the Supplementary Information that
Board membership will rotate among the ALJs and AAJs and their terms of
service will be staggered,\44\ rotation and term staggering are not
provided for in the proposed regulations.
---------------------------------------------------------------------------
\44\ 70 Fed. Reg. 43598 (July 27, 2005).
---------------------------------------------------------------------------
So that Social Security claimants, SSA, the federal courts, and the
American public reap the benefits of a Bankruptcy Court appellate
panel-style process, I respectfully suggest that the Commissioner
consider modifying her Decision Review Board proposal and issue
regulations that provide that
(1) A Social Security Act benefits claimant has a right of appeal
of an adverse individual ALJ's decision to the Board.
(2) The Board is the final step of administrative review that must
be taken by a Social Security disability benefits claimant in order to
seek judicial review of the Commissioner's decision in the claimant's
case.
(3) A sufficient number of Board members will be appointed so that
appeals may be heard and disposed of expeditiously.
(4) The Board members will hear appeals in panels of three members.
(5) A sufficient number of panels of three Board members will be
designated so that appeals may be heard and disposed of expeditiously.
(6) The Board and appellate panels will be constituted regionally
or locally for claimant access.
(7) The Board will be constituted from the full nationwide SSA ALJ
workforce to ensure nationwide ALJ participation.
(8) There will be rotation of service as members of the Board among
the ALJs in the SSA ALJ workforce, and staggering of their terms of
service, to ensure that the members have recent field experience with
hearing and deciding cases.
(9) Only independent decisionmakers may serve as Board members,
meaning ALJs who have the protections of the APA that have been put in
place for the benefit of the claimants. The 27 AAJs from the Appeals
Council may be afforded protections for decisional independence for the
benefit of the claimants by grandfathering the AAJs into ALJ status, as
was done in the 1970s for the administrative judges who heard SSI
cases.\45\
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\45\ ``In 1977, Congress enacted Public Law Number 95-216,
containing a section entitled Appointment of Hearing Examiners, which
deemed the temporary ALJs to be permanent ALJs appointed pursuant to 5
U.S.C. Sec. 3105 of the APA.'' Robin J. Arzt, Adjudications by
Administrative Law Judges Pursuant to the Social Security Act are
Adjudications Pursuant to the Administrative Procedure Act, 22 J. Nat'l
Ass'n Admin. L. Judges 279, 304 & n. 96 (Fall 2002) (citing, Social
Security Amendments of 1977, Pub. L. No. 95-216, 91 Stat. 1509, 1559
(1977)).
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(10) In the event that AAJs are not grandfathered into ALJ status,
no more than one of each Board appellate panel will be an AAJ because
of the AAJs' lack of protections for decisional independence.
(11) A Board member may not hear an appeal originating in the
hearing office that is the member's permanent duty station or the
hearing office where the member is on a temporary detail assignment.
All of the suggested modifications, other than those pertaining to
the AAJs' status, are the elements of the BAPs that have made that
process a demonstrated success.
An ALJ appellate panel system should result in faster and much
higher quality decisions than those produced by the Appeals Council or
would be produced by the proposed small Board, but only if it functions
as an appellate step for both the claimants and SSA. A fully developed
ALJ appellate panel process greatly will enhance the consistency and
quality of outcome between the final administrative step and District
Court step, and thus reduce the number of appeals to the courts, just
as it has between the BAPs and next level of judicial review.
B. The Reviewing Official and Treatment of a Reviewing Official's
Decision in an ALJ's Decision
The Commissioner has proposed the creation of an RO, who would be
an attorney employed by SSA who would review a claimant's case upon the
claimant's appeal from an adverse initial determination by SSA of a
disability benefits application.\46\ The RO would have authority to
reverse, modify, affirm or remand an initial determination.\47\ The RO
review would replace the State agency (DDS) reconsidered determination
step.\48\ If an RO does not fully allow a disability claim, the
claimant has a right to appeal for a de novo hearing before an ALJ
appointed pursuant to the APA.\49\
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\46\ Proposed 20 C.F.R. Sec. Sec. 405.5, 405.201, Fed. Reg. 43595
(July 27, 2005).
\47\ Proposed 20 C.F.R. Sec. 405.220.
\48\ Proposed 20 C.F.R. Sec. 405.220, 70 Fed. Reg. 43595 (July 27,
2005).
\49\ Proposed 20 C.F.R. Sec. Sec. 405.5, 405.305.
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The Supplemental Information states that the proposed regulations
provide that the RO's review is based only on the written record and
the RO will not conduct a hearing or meet with a claimant,\50\ but the
regulations are silent on this issue. I respectfully submit that the
proposed regulation regarding the procedures before an RO \51\ should
expressly state that the RO will not conduct a hearing or meet with a
claimant.
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\50\ 70 Fed. Reg. 43595, 43601 (July 27, 2005).
\51\ Proposed 20 C.F.R. Sec. 405.215.
---------------------------------------------------------------------------
The proposed regulations require that an ALJ's written decision
``will articulate . . . the specific reasons for the decision,
including an explanation as to why the [ALJ] agrees or disagrees with
the rationale articulated in the [RO's] decision.'' \52\ If an ALJ
grants a fully favorable decision by use of an oral bench decision at
the hearing, after the hearing ``we will send you a written decision
that explains why the [ALJ] agrees or disagrees with the rationale
articulated in the [RO's] decision. . . .'' \53\ The Commissioner
states in the Supplementary Information that the purpose of this new
requirement is only to help the agency provide the ROs with information
from ALJs to improve the quality of the ROs' decisions in terms of
articulation, consistency with program rules and developing a complete
record, and that
---------------------------------------------------------------------------
\52\ Proposed 20 C.F.R. Sec. 405.370(a).
\53\ Proposed 20 C.F.R. Sec. 405.370(b).
---------------------------------------------------------------------------
[ALJs] will continue to hold de novo hearings and issue decisions
based on all the evidence presented. They will not be required to give
any legal deference or particular weight to the determinations
previously made by the State agency or by the reviewing official. . . .
We do not intend that this new responsibility will constrain an
[ALJ's] independent decisionmaking authority in any manner. Each [ALJ]
will continue to issue written decisions based on his or her
independent evaluation and consideration of the evidence offered at the
hearing or otherwise included in the record.\54\
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\54\ 70 Fed. Reg. 43596, 43602 (July 27, 2005).
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However, the proposed regulations do not say that an ALJ is not
required to give any legal deference or any weight to an RO's decision.
The proposed regulations also do not say that an ALJ's explanation of
why the ALJ agrees or disagrees with an RO's decision rationale is not
a component of the ALJ's decision that is necessary for a legally
sufficient decision.
Therefore, the proposed requirement that an ALJ provide a
significant exposition about why the ALJ agrees or disagrees with an
RO's decision in every disability case decision may incorrectly be
interpreted as a requirement that the RO's assessment is entitled to
some degree of deference or weight. Moreover, any specific regulatory
requirement that the ALJ address the RO's decision would create the
potential for erroneous arguments on appeal and appellate findings that
an ALJ's decision is deficient for a failure to adequately address,
defer or give weight to the RO's decision.
Therefore, despite the Commissioner's stated good intentions for
the proposed requirement, the mandated explanation of why an ALJ agrees
or disagrees with the RO's decision does impinge upon the de novo,\55\
independent nature of the ALJ's hearing and decision process. Holding a
de novo hearing means to hear a matter anew, as if it is being heard
for the first time and no decision previously was rendered.\56\ De novo
review is ``independent'' review.\57\ Accordingly, the proposed
requirement will foster a perception of agency pressure to give an
improper deference or weight to the RO decisions among claimants and
their representatives that likely will result in an increase in the
number of appeals from ALJ denials of benefits.
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\55\ The ALJ level of review is a de novo review. Mathews v.
Eldridge, 424 U.S. 319, 339
n. 21 (1976).
\56\ Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992).
\57\ Premier Communications Network, Inc. v. Fuentes, 880 F.2d
1096, 1102 (9th Cir. 1989).
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The standard for a sufficient ALJ decision on appeal is whether
there is substantial evidence in the record to support the decision,
not whether the ALJ adequately addressed or deferred to the outcome or
contents of a prior decisionmaker's decision.\58\ The APA and Social
Security Act already require that an ALJ discuss the evidence in
rendering the ALJ's decision on a disability benefits claim without
reference to the outcome or contents of the agency's prior
determinations. The APA requires that all agency administrative
decisions, including ALJ ``decisions . . . shall include a statement of
(A) findings and conclusions, and the reasons or basis therefor, on all
the material issues of fact, law, or discretion presented on the
record; and (B) the appropriate rule, order, sanction, relief, or
denial thereof.'' \59\ Title II of the Social Security Act sets forth
the elements to be included in agency administrative decisions
regarding eligibility for disability benefits:
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\58\ ``The Appeals Council will review a case if (1) There appears
to be an abuse of discretion by the administrative law judge; (2) There
is an error of law; (3) The action, findings or conclusions of the
administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the
general public interest.'' 20 C.F.R. Sec. 404.970(a).
\59\ 5 U.S.C. Sec. 557(c).
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Any such decision by the Commissioner of Social Security which
involves a determination of disability and which is in whole or in part
unfavorable to such individual shall contain a statement of the case,
in understandable language, setting forth a discussion of the evidence,
and stating the Commissioner's determination and the reason or reasons
upon which it is based. Upon request by any such individual or upon
request by a wife, divorced wife, surviving divorced mother, surviving
divorced father, divorced husband, widower, surviving divorced husband,
child, or parent who makes a showing in writing that his or her rights
may be prejudiced by any decision the Commissioner of Social Security
has rendered, the Commissioner shall give such applicant and such other
individual reasonable notice and opportunity for a hearing with respect
to such decision, and, if a hearing is held, shall, on the basis of
evidence adduced at the hearing, affirm, modify, or reverse the
Commissioner's findings of fact and such decision.\60\
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\60\ 42 U.S.C. Sec. 405(b)(1) (emphasis added).
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Decisions regarding supplemental security income eligibility under
Title XVI of the Social Security Act must include the same elements as
decisions regarding Title II disability eligibility.\61\
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\61\ 42 U.S.C. Sec. Sec. 1383(c)(1)(A).
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To preserve the independent, de novo nature of the ALJ hearing and
decision, I respectfully suggest that the Commissioner state in the
regulations that an ALJ is not required to give any legal deference or
any weight to an RO's decision. I also respectfully suggest that the
Commissioner consider omitting the proposed requirement that an ALJ
must address the RO's decision from her proposed regulations. If the
Commissioner decides to promulgate the requirement that an ALJ must
address the RO's decision, I respectfully suggest that the Commissioner
also state in the regulations that an ALJ's explanation of why the ALJ
agrees or disagrees with an RO's decision rationale is not a component
of the ALJ's decision that is necessary for a legally sufficient
decision, and that an ALJ's statements about an RO's decision, or
omission of such statements, may not serve as a basis for an appeal or
review of an ALJ's decision.
That the Commissioner's proposed regulation requires statements
regarding the RO decision in all ALJ decisions, regardless of the
outcome, does not cure the issues that the proposed regulation raises.
The likely increase in the number of appeals from ALJ denials and
appellate error regarding deference, weight, and how ALJs address the
ROs' decisions will defeat any potential for an increase in decision
consistency between the RO and ALJ levels that the proposed regulation
is intended to achieve. The creation of these issues by the proposed
regulation suggests that it is not the most effective way to achieve
greater consistency between the RO and ALJ decisions.
Rather than the proposed requirement that an ALJ address the RO's
decision, which places a burden on the ALJ's decisional independence to
justify the ALJ's treatment of the RO's decision, I respectfully submit
that an effective way to increase the consistency of decisionmaking
between the RO and ALJ decision levels would be to instead require that
the RO use the same legal standards for determining disability as those
by which the ALJs are bound. Rather than apply the current practice of
requiring the initial agency decisionmakers to use a different and
primarily medical set of standards based on a preponderance of the
evidence to the ROs, the ROs' decisions should be reviewed on the
substantial evidence standard, the same as are the ALJs' decisions.\62\
Since the ROs will be attorneys, implementation of legal standards for
their decisionmaking will be met with a success that demonstrably has
not been possible with non-attorney decisionmakers, such as the failed
Process Unification Training for DDS decisionmakers and Adjudication
Officer initiatives in the 1990s.
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\62\ Proposed 20 C.F.R. Sec. 405.1(b).
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C. The Administrative Placement of the Reviewing Official and the
Decision Review Board within SSA
As is stated above, the RO review would replace the state agency
(DDS) reconsidered determination step and the Board would replace the
Appeals Council. The proposed regulations and Supplementary Information
are silent regarding the administrative placement of the RO and Board
within SSA. The only document issued by SSA at the time that it
published the proposed regulations that addresses administrative
placement is a July 2005 flowchart entitled ``The Proposed SSA
Disability Determination Process,'' which places the RO within the
Office of Disability and Income Security Programs (``ODISP'') but
outside the OHA, which is the administrative unit that contains the ALJ
hearing function.\63\ (On February 13, 2004, senior SSA officials
publicly stated that the ROs administratively are expected to be placed
within the OHA but not in the OHA hearing offices, but this statement
preceded the issuance of the proposed regulations and related
documents.) The Board also is placed within ODISP but outside OHA in
the flowchart, but it is not clear that the ROs and Board will have
separate chains of authority to the Commissioner. The Appeals Council
has been within OHA but administratively separate from the OHA hearing
offices.
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\63\ ``The Proposed SSA Disability Determination Process,''
flowchart, available at http://www.socialsecurity.gov/disability-new-
approach/ as http://www.socialsecurity.gov/disability-new-approach/
NewApproachFlowchart.pdf.
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If an RO does not fully allow a disability benefits claim, the
Commissioner's proposal would provide a claimant the right to appeal
for a de novo hearing before an ALJ.\64\ Accordingly, the RO's action
on a benefits claim would be the last step of the Commissioner's
initial decision of the disability claim, an adverse decision from
which the APA and Social Security Act provide for an appeal with
reasonable notice and opportunity for a hearing on the record before an
ALJ.\65\
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\64\ Proposed 20 C.F.R. Sec. 405.305.
\65\ 5 U.S.C. Sec. 554(a); 42 U.S.C. Sec. Sec. 405(b)(1),
1383(c)(1)(A). See also, proposed 20 C.F.R. Sec. 405.302.
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Since the ROs would make the Commissioner's initial decisions of
benefits claims, I respectfully submit that the Commissioner is
required by the APA to administratively place the ROs outside of OHA in
a separate chain of authority from both OHA and the Board. The APA
requires a separation of the adjudication function of a federal
administrative agency from its investigative and prosecutorial
functions to preserve the decisional independence of ALJs when
conducting a hearing or deciding a case. ``[An ALJ] is not responsible
to, or subject to the supervision or direction of, employees or agents
engaged in the performance of investigative or prosecution functions
for the agency.\66\ ``The APA separation of functions doctrine [set
forth in 5 U.S.C. Sec. 554(d)] requires only that the prosecutor and
the adjudicator each be responsible to the agency head by a separate
chain of authority.'' \67\ This provision safeguards against undue
agency influence and ensures that claimants receive independent
adjudications of their claims. Therefore, SSA may not place its ROs in
the same chain of authority to the Commissioner as the ALJs, since the
ROs perform SSA's investigative and prosecutorial functions in
rendering initial determinations of disability benefits claims.
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\66\ 5 U.S.C. Sec. 554(d)(2).
\67\ Columbia Research Corporation v. Schaffer, 256 F.2d 677, 680
(2nd Cir. 1958).
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I respectfully urge the Commissioner to implement (1) the
administrative placement of the ROs outside of OHA, as is stated in the
July 2005 flowchart, and (2) separate chains of authority to the
Commissioner for the ROs, ALJ hearing function, and the Board.
Sincerely,
Robin J. Arzt
Cape Coral, Florida 33904
October 5, 2005
Committee on Ways and Means
U.S. House of Representatives
1102 Longworth House Office Building
Washington, D.C. 20515
Commissioner of Social Security
P.O. Box 17703
Baltimore, MD 21235-7703
There are serious legal problems with the proposed regulations 20
CFR 404, 405, 416, and 422. Please review the following comments with
regard to the most significant issues raised by the proposed
regulations.
1. The regulations sandwich the Administrative Law Judge (ALJ) in
between two federal reviewing bodies that the ALJ will undoubtedly be
influenced by. This will significantly impair the ALJ's duty to conduct
an unbiased de novo review for two reasons.
(a) The regulations changed the review process upon initial denial.
It used to be a State agency review was conducted after initial denial.
Under the new regulations, the review will be done by a Federal Expert
Unit. The inclusion of a requirement in the new regulations that the
ALJ must state the reasons why the ALJ disagrees specifically with the
Federal Expert Unit Opinion (or guise of the State agency
determination) is contrary to de novoreview which the ALJ is obligated
to perform. De novo review requires a fresh unbiased look at all the
evidence. Federal agency opinions should not be allowed to be
interjected into the ALJ administrative review process. The State
agency should continue to conduct reviews of prior State agency
determinations.
(b) During the de novo review by the ALJ, the newly proposed
Decision Review Board (DRB) (see 405.405) consisting of members
appointed by the Commissioner, will be prejudging ALJ decisions if a
claimant has a diagnosis that has been identified by a federal computer
as a potential problem for the Commissioner. This seems evident upon
reading the preface to the new regulations. In the preface it is stated
that there will be a list of categories of cases that will trigger red
flags by the DRB and these cases will be clearly selected before the
ALJ conducts the de novo review and I believe the majority of these
cases will not reach ALJ final decisions because the DRB will take
these cases up on review. A worse possible scenario is that these cases
will be controlled by the Federal Expert Unit and will fall into a
bottleneck where they will get backlogged and only reach the ALJ after
many years of reviews and remands. This type of Federal Review will
also interfere with the finality of ALJs' decisions and prevent a full
and fair review by the ALJ. This has the inherent potential of creating
a bias in the decisionmaking process. In the preface it is already
established that certain claimants are a problem: these claimants
include claimants with mental impairments, claimants who are young, and
claimants who do not meet the medical listings but rather fall under
the category of lacking the residual functional capacity for work. The
latter group comprise a large number of my client population. The new
regulations will not only prejudge large numbers claimants as not
disabled but will significantly impede the ALJ's ability to conduct a
full and fair review. No regulation should be adopted which compromises
the de novo review of an ALJ.
The establishment of the Federal Review Unit (or any review unit)
should have a time limit for keeping jurisdiction of a case. The
existing regulations would allow the Federal Review Unit to keep a case
for an endless period of time. The Federal Review Unit may also remand
back to the State Agency for additional review and case development.
Without a time limit for ending this review, it would be entirely
possible to keep a case out of the hands of an Administrative Law Judge
for an inordinate period of time. A reasonable period of review should
be defined, even if it is six months to one year. After the expiration
of this timeframe, a claimant should be able to assume the case has
been denied and then appeal to the ALJ for a de novo hearing.
The Quick Decision Determination regulations should identify what
disabilities or diagnoses warrant quick Decisions before the
regulations are adopted.
The requirement that Attorneys submit adverse evidence is contrary
to most State bar regulations and should not be adopted.
The fact that the program will start in the smallest region of the
country has its downside because only a small number of cases will be
going to Federal Court after an ALJ decision and it will not be
possible to assess whether the Federal Court system will be flooded
with Federal Court appeals once the Appeals Council is eliminated.
The right to appeal to the Appeals Council should not be
eliminated. It should be remembered that many Social Security
disability claimants are not represented by Attorneys and therefore
they lack the ability and skills needed to appeal to Federal Court. The
Appeals Council serves a useful purpose in ensuring that these
individuals receive a proper review of an unfair ALJ decision.
Changing the Reopening rules (405, 420(a)(3) and 405.605) so that
only cases that show clear error on the face of the record can be
reopened and reviewed is divergent from what most governmental agencies
allow and it essentially sets aside the Social Security Administration
from the mainstream of agencies. It has the effect of discriminating
against the disabled. The majority of federal agencies allow for
reopening of cases for new and material evidence. These agencies
include, among others, (1) the Veterans Administration; (2) OSHA; (3)
EPA; (4) Dept. of Commerce;
(5) Commission on Human Rights and Opportunities; (6) the Federal Coal
Miners Health and Safety program; (7) OWCP, etc. Why would the Federal
Government want to segregate out the disabled as a group and prevent
them from reopening their claims for new and material evidence when
they allow Corporations, Veterans, and other groups to reopen for new
evidence purposes? The disabled, more than any other group, need help
developing their cases and new evidence should not prevent a disabled
claimant from reopening.
Time limits for submitting evidence to the Administrative Law Judge
are simply unreasonable. 45 days notice of a hearing with the
requirement that a person submit the evidence 20 days before the
hearing amounts to a maximum of 25 days to obtain evidence.
Unfortunately most attorneys only get appointed to represent a client
after the client gets a notice of hearing. Frequently, the client
doesn't get an appointment to sit down with an attorney until days
after the notice. Since the attorney must write to treating physicians
and hospitals to get updated medical records and submit those records
at least 20 days before the hearing, this compromises the ability of
the attorney to adequately represent the client. Most hospitals use
copy services for replying to requests for medical evidence. Some
services take at least two months before the request is answered. Large
doctors' offices do the same thing. It is therefore not generally
possible to comply with these new restrictions. A case should be
assigned a temporary date of hearing upon receipt of the claimant's
Request for Hearing. That way a claimant can adequately plan for
obtaining all the necessary medical records. If a claimant hires an
attorney within three months of a temporary hearing date, a new hearing
date should be assigned if the attorney requests that. At a minimum the
attorney should have 90 days plus 20 days to submit all evidence to the
ALJ, i.e., 110 days total.
In conclusion, I would propose that the focus of any change in the
law should be primarily on assisting people to return to work after a
period of disability, devising vocational programs that will work,
giving tax incentives to employers to hire the disabled, and conducting
careful medical cessation reviews. I would contract out the medical
cessation review process.
Thank you for your kind consideration.
Very truly yours,
Carol Avard
Statement of Shari Bratt, National Association of Disability Examiners,
Lincoln, Nebraska
Chairman McCrery, Chairman Herger, and Members of the
Subcommittees, on behalf of the National Association of Disability
Examiners (NADE), I am presenting a written statement for the record on
the Commissioner's proposed improvements to the Social Security
Disability Determination process.
NADE is a professional association whose purpose is to promote the
art and science of disability evaluation. The majority of our members
are employed by state Disability Determination Service (DDS) agencies
and thus are on the ``front-line'' of the disability evaluation
process. However, our membership also includes SSA personnel,
attorneys, physicians, and claimant advocates. It is the diversity of
our membership, combined with our extensive program knowledge and
``hands on'' experience, which enables NADE to offer a perspective on
disability issues which is both unique and pragmatic.
NADE members, whether in the state DDSs, in SSA or in the private
sector, are deeply concerned about the integrity and efficiency of both
the Social Security and the Supplemental Security Income (SSI)
disability programs. Any change in the disability process must promote
viability and stability in the program and maintain the integrity of
the disability trust fund by providing good customer service while
protecting the trust funds against abuse. Quality claimant service and
lowered administrative costs that the American taxpayer can afford
should dictate the structure of any new disability claims process. In
addition, in order to rebuild public confidence in the disability
program, the basic design of any new process should insure that the
decisions made by all components and all decisionmakers accurately
reflect a determination that a claimant is truly disabled as defined by
the Social Security Act.
NADE believes that for people with disabilities, it is crucial that
SSA reduce any unnecessary delays and make the process more efficient.
However, any changes in the process must be practical and affordable
and be implemented in a manner that allows appropriate safeguards to
assure that timely claimant service is improved. NADE is not convinced
that all parts of the Commissioner's proposal will achieve this and is
concerned that some of the proposed changes will, in fact, increase
both administrative and programmatic costs.
For the past decade, SSA has attempted to redesign the disability
claims process in an effort to create a new process that will result in
more timely and accurate decisions. Results of numerous tests
undertaken by SSA to improve the disability process have not produced
the results anticipated. The experience of past pilots has shown that
ideas that may sound good in theory have proven to be inadequate to
meet the demands for service and affordability when implemented on a
wide scale.
There is a pervasive public perception that ``everyone'' is denied
disability benefits at the initial and reconsideration levels, and is
then allowed only when they reach the Administrative Law Judge (ALJ)
level. This perception is totally inaccurate as SSA statistics show
that 80 out of every 100 disability beneficiaries were allowed by the
DDS. Numerous references are made to making the ``right decision as
early in the process as possible.'' NADE certainly supports that goal
but wishes to point out that sometimes the right decision is a denial.
The processing delays that appear to be of greatest concern to the
Commissioner, and to the public, are delays that occur not at the DDS,
but in association with the appeals process.
In her initial comments about a new disability approach, the
Commissioner indicated the foundation for the approach was the
successful implementation of an electronic folder system (eDIB). The
proposed disability process improvements are built upon this new
electronic folder system which is expected to reduce processing time by
25%. For eDIB to be successful, it is critically important that
adequate infrastructure support and proper equipment to make the
process work effectively and efficiently is in place. Until eDIB is
fully implemented nationwide, it is impossible to determine critical
service delivery issues that impact on daily case processing. NADE
supports continued rollout of an electronic disability folder for the
obvious reasons of administrative cost savings in terms of postage and
folder storage, as well as time savings from mailing and retrieving
paper folders. At the same time, it must be recognized that an
electronic disability case process may have a negative impact on case
production capacities at the DDS level.
While eDIB may be rolled out nationally in all state DDSs and
territories except New York, it is not in use by all adjudicators in
all components, and it remains to be seen how the system will handle
the increased volume of work and number of users when it is implemented
completely in all components of disability case processing. Overall, we
believe that the impact of eDIB on the adjudication process will be
positive. However, it is critical, that in this period of finite
resources, those resources (including personnel) not be diverted from
eDIB to develop the structure and procedures necessary for
implementation of a new adjudicative process.
While the hardware and software for eDIB is in place in the vast
majority of DDSs, the system is currently only utilized by a small
minority of disability examiners. Its capacity and success remain to be
seen as more users are involved. Until eDIB is fully operational,
(including the predictive software to identify Quick Disability
Determinations), we do not believe it is appropriate to make widespread
changes in the adjudicative process. The full implementation of eDIB in
itself may result in a significant reduction in processing time at all
levels of adjudication without additional changes to the adjudicative
process.
In addition, tools which have been demonstrated to improve
efficiency, such as dual monitors, are not yet available to all
adjudicators and medical consultants. Because eDIB is still a work in
progress, refinements, upgrades, and improvements are frequently
necessary. The impact on the system as a whole when these refinements
are accomplished is unpredictable, but at the present time frequently
results in slowing or shutting down the system, or parts thereof. Since
DDSs process over 2\1/2\ million cases on an annual basis, any shut-
down of the system equates to significant loss of work processing
capacity. Even a shut-down of only five minutes a day equates to over
1,250 work hours lost on a daily basis due to system instability.
Currently, many DDSs experience far more than 5 minutes per day
experiencing system instability problems.
In addition, some upgrades and improvements to the system require
that the adjudicator relearn basic functionality which again impacts on
the ability of the DDSs to process the huge number of cases they
receive in a year. Upgrades to the system are essential to insure that
the system operates as efficiently as possible, but it must be
recognized that there is a resource impact every time a change is made.
While NADE recognizes the need for, and supports, SSA's commitment
to move to an electronic disability claims process, this tool will not
replace the highly skilled and trained disability adjudicator who
evaluates the claim and determines an individual's eligibility for
disability benefits in accordance with SSA's rules and regulations.
Although we understand that electronic case processing procedures
are being developed, there is currently no process in place to handle
continuing disability reviews (CDRs). The inability to process the CDR
workload electronically could impact both administrative and program
costs, as well as compromise program integrity.
NADE recognizes and supports the need to improve the disability
decisionmaking process. We are concerned, however, that the Disability
Process Improvement Initiative, with its increased reliance on medical
specialists and attorneys, and its elimination of the triage approach
currently being used in 20 DDSs, could increase both administrative
costs and program costs. If the first level of appeal following a
denial by the DDS is handled by a Reviewing Official who is an
attorney, rather than by a trained disability adjudicator, such as a
disability hearing officer, and if medical specialists replace
programmatically trained DDS medical consultants, the disability
program's administrative costs will almost certainly increase. We also
suspect program costs will increase as more claims are allowed on
appeal by individuals who lack the requisite medical and vocational
training and background to view such claims from the perspective of
SSA's definition of disability. Adjudicators evaluating Social Security
and SSI disability claims must appropriately and interchangeably,
during the course of adjudication, apply the ``logic'' of a doctor, a
lawyer and a rehabilitation counselor following SSA's complex
regulations and policies to arrive at a disability decision. Training
in all three of these areas is critical to effectively and efficiently
adjudicate these cases accurately and in a timely manner. Failure to do
so carries enormous consequences for the Social Security Administration
and the huge number of citizens who call upon the Agency for
assistance.
In the proposal for a ``quick disability determination'' (QDD),
appropriate claims would be identified and referred to special units in
the DDS for expedited action. NADE supports the QDD being made by the
DDS. However, we feel that this workload would not necessarily require
that the most experienced disability adjudicators should be assigned to
process these QDD cases. In our considerable practical experience with
such cases, we have found that the complexity of these cases is minimal
and we believe that the expertise of the more experienced disability
adjudicators is best allocated to process the more complex cases. We
believe that each DDS Administrator should be allowed the ability to
assign their more experienced personnel to process claims as they
believe best suits the needs of the DDS and the people they strive to
serve.
If the decision is made to require the most experienced disability
adjudicators to process QDD cases, then NADE believes that it is not
necessary to require MC ``sign-off'' on these fairly straight-forward
allowance cases. In addition, specialized units for processing QDD
cases are not necessary as they would reduce production in other types
of caseloads normally handled by experienced adjudicators.
It is imperative that predictive software for identifying QDD cases
be manageable and accurate. It has been proposed that adjudication of
98% of these QDD cases will result in a favorable determination of
disability. If that goal, as well as the goal of a 20 day processing
time is not met, action will be taken to remove this caseload from the
DDS. NADE does not support these punitive actions.
It is important to note that in Title II claims, those persons
found disabled under the Social Security Disability program must
complete a five month waiting period to receive benefits. A disability
allowance decision, no matter how quickly it is processed, will not
solve the problem of having to wait five full calendar months before
being able to receive any cash benefits.
The Commissioner's proposal has recommended establishing a federal
Reviewing Official (RO) as an interim step between the DDS decision and
the Office of Hearings and Appeals (OHA). An interim step outlining the
facts of the case and requiring resolution of the issues involved could
help improve the quality and consistency of decisions between DDS and
OHA components. NADE supports an interim step because of the structure
it imposes, the potential for improving consistency of decisions,
reducing processing time on appeals, and correcting obvious decisional
errors at the initial level. However, the Disability Process Initiative
is unclear as to the method the RO would use to gather necessary
medical evidence. If additional evidence is needed at that point, it
would likely result in increased costs at the DDS level to provide for
consultative examinations.
There is little, if any, data to support a conclusion that the
interim step between the DDS decision and OHA must be handled by an
attorney. In fact, a 2003 report commissioned by the Social Security
Advisory Board to study this issue recommended that this position NOT
be filled by an attorney. Assessment of eligibility under the Social
Security Disability program requires that the adjudicator at every
level possess a great deal of program, medical and legal knowledge. As
currently proposed, the only qualification indicated for a Reviewing
Official is that he/she be an attorney. Individuals who are hired into
this new position without previous experience in the disability program
will require extensive training and mentoring for a period of at least
one year. It is also unclear in the proposal who would be responsible
for the training and supervision of the RO.
NADE believes that a review at the interim step should be conducted
by a medically and programmatically trained individual such as a
disability hearing officer (DHO). The DHO has received additional
training in conducting evidentiary hearings, decision writing and
making findings of fact, along with detailed case analysis and program
information. The DHO currently makes complex decisions using the
Medical Improvement Review Standard (MIRS). There is currently a
training program in place for Hearing Officers in the state DDSs. This
program could easily be adapted to training experienced disability
professionals to perform RO duties. Since a DHO infrastructure is
already in place, national implementation of the DHO alternative could
occur very quickly. Using an already established structure will prevent
creation of a costly and less claimant friendly federal bureaucracy.
There would be extreme cost considerations if attorneys were to fill
these positions as currently is suggested.
NADE strongly supports the Commissioner's emphasis on quality as
described in the proposal. There is a need for in-line and end-of-line
quality review at all levels of adjudication. Accountability and
feedback at each level is crucial. Nationally uniform decisions with
consistent application of policy at all adjudicative levels require a
consistent and inclusive quality assurance (QA) review process. A well-
defined and implemented QA process provides an effective deterrent to
mismanagement, fraud and abuse in the Social Security Disability
program. We believe an improved quality assurance process will promote
national consistency, and in turn, will build credibility into the
process. NADE also supports quality reviews at all levels of
adjudication, including DDSs, Reviewing Officials, and ALJs.
In regard to the Federal Expert Unit (FEU), NADE believes the FEU
can provide DDSs with additional access to medical and vocational
expertise. Qualification standards for inclusion in the FEU should not
exclude the knowledgeable state agency medical consultant. DDS medical
consultants are trained in program requirements, and the majority of
the cases they review include multiple impairments. Having specialists
review each impairment individually is a time consuming, costly
proposal. Specialty consultants with limited scope and experience
cannot fully assess the combined effects of multiple impairments on an
applicant's functioning. DDS medical consultants are not only medical
specialists--physicians, psychologists or speech/language
pathologists--they are also SSA program specialists.
Although members of the FEU will surely be highly qualified to
treat patients in their respective fields of specialty, they will also
require extensive training in the area of determining disability.
Evaluating eligibility for Social Security disability is a far
different area of expertise than treating patients. There is a very
real difference between clinical and regulatory medicine, and it takes
at least a year to become proficient in Social Security disability
rules and regulations. Again, the responsibility for training,
mentoring, and supervising these experts is not established in the
Commissioner's proposal.
Salaries for both the RO and members of the FEU will be much higher
than those of Disability Examiners and Hearing Officers at the state
DDS. In addition, there will be a lengthy period of time while the
individuals assigned to these new positions will not be capable of
independent assessment of disability eligibility. While we support the
concept of the FEU being used to supplement the expertise of the
Medical Consultant at the DDS, we feel that most cases at the initial
level should continue to be reviewed and evaluated by state agency
medical consultants.
NADE supports the proposal to retain a de novo hearing before the
ALJ, with the requirement that the ALJs provide in their decisions an
explanation as to why they agree or disagree with the rationale of the
RO's decision. NADE also supports the concept of timely submission of
evidence as outlined in the proposal. Submission of evidence no later
than 20 days appears reasonable and may increase the ability to process
hearing requests in a timelier manner.
NADE also supports the establishment of a Decision Review Board
consisting of both ALJs and Administrative Appeals Judges serving
staggering terms to conduct disability review functions. NADE agrees
that a gradual roll-out process would be most effective. The NPRM
proposes to gradually eliminate the Appeals Council only in those
regions where the changes in the NPRM have been implemented and NADE
supports this concept.
In summary, NADE's key recommendations are to implement only
strategies which balance the dual obligations of stewardship and
service. These are:
Do not divert resources from eDIB until the system is
fully operational in all DDS locations.
Eliminate or reduce the five-month waiting period for
Social Security beneficiaries.
Extend presumptive disability provisions to Social
Security disability claimants.
Fully integrate the Single Decision Maker into any new
disability process.
Utilize the current infrastructure of DDS Disability
Hearing Officers as an interim appeals step.
Require adequate training in the medical and vocational
program requirements for all decisionmakers in all components.
Include both in-line and end-of-line reviews at all
levels of the process.
Recognize that technology is only a tool. It does not
replace the highly skilled trained disability examiner.
NADE appreciates this opportunity to present our views on the
Commissioner's Disability Improvement plan and we look forward to
working with the Social Security Administration and the Congress as the
Commissioner continues to refine the disability process.
Statement of David Bryant, La Grange, Illinois
I Looked over the 79 pp of Federal Register (70 #143, 43589-43624,
July 27,2005) proposed rules over an August weekend at our summer place
in Michigan. In spite of some problems, this could work if the ALJs
still use some common sense and discretion. The real problem being
addressed is a reduction in time it takes to get to a final result on a
consistent and fair basis. The proposed process will not accomplish
this no matter how hard the system tries to implement these changes,
some of which are good.
Four general comments and ten specific comments on the proposals
follow:
In general, speeding the process would be good. One example from a
private sector impact. Many employers provide employees with Long and
Short Term Disability insurance (STD & LTD). If an employee on LTD for
2 years or more does not provide the LTD insurance company with
evidence of a successful Social Security Disability claim (i.e. Award),
some LTD benefits may be stopped.
In general, advocates have long tried to persuade SSA to have all
decisionmakers ``on the same page'' (i.e. the State adjudicator and the
ALJ and the Courts follow the same rules/laws). The proposed changes
fail in several respects. Claimant attorneys never fail to hear/read
about SSA being a ``national program'' yet SSA's own statistics show
that people with the same disabilities have a better chance of approval
if they live in one state compared to another. Is the heart in
Wisconsin different than the heart in Washington? The back in New
Hampshire weaker than the back in Texas?
In general, the issues surrounding evidentiary matters will result
in significant court actions involving rights of subpoena, right to
cross examine witnesses, abuse of discretion, bias, failure of notice,
ethical obligations of attorneys and non-attorneys to represent
clients, and questioning of expertise. In addition, the Courts will be
flooded with new cases similar to the early 80s.
In general, the system will become ripe for internal scandal and
gross violations of ancillary laws, both state & federal, such as
privacy. The privatization by contract to outside file organizers in
Milwaukee is but one example. Use of electronic file folders (E-DiB)
will increase the ease of identity theft unless extreme caution and
security is incorporated in the process. Will LTD carriers require
insureds to hand over the CD as a condition of continued payments? Will
outside contractors ``lose'' records like Wells Fargo, LEXIS, Citibank,
etc.? If so, what is the penalty?
In particular, I have some questions about the stated intentions in
background and the actual proposed regulations. I will present them as
found with reference to the page.
1. (p. 4) I have asked for a copy of the Service Delivery Budget
Assessment Team research reports on the time to make a decision in
1,153 days on average. In current practices, some DOs are entering the
fact that a Request for Hearing was filed and sent to the OHA yet
putting the file in a box to wait with all the others until two or
three boxes are ready to ship. The computer record shows the file at
OHA but in fact, not. This increases the ``time'' that OHA has the file
for workup when in fact it does not. Also, Chicago HOMs have taken a
position that the attorney cannot review the ``raw'' file (i.e. paper)
until the file is ``worked up.'' In my own practice, I try to look at
the file ASAP in order to (1) write a short note to the Attorney
Advisor asking for an On the Record decision since a very strong case
(2) make a list of the medical records that are missing, get, and
submit in order to strengthen the claim (3) decide to invest $350.00 in
a psych consult since the client is a nut case that refuses treatment.
In other words, try to move the case forward. Under current practices
and conditions anticipated in reform, this may be difficult. The
existing systems and proposed reforms have built in delays based on
resource allocation.
2. (pp. 4-5) EDCS is a good idea, as is the teleconference hearing.
The State of Illinois adjudicators I talk to still seem to accept paper
and deal with that as a time saver since many of the ADL Q and Pain Q
that I receive as copies (originals to clients) have a self mailer that
goes to Kentucky for scanning. Once the Pain Questionnaire is answered
for the second time and placed in the electronic file folder, will the
first one be destroyed? erased? Should I advise clients to keep copies
of everything they submit? The DOs all want original birth certificates
with seals, marriage, divorce, WC Settlements in the original. Copies
are made and originals are returned most of the time.
Will there still be two file folders/sections for SSI & DIB claims?
Will TSC gatekeepers still insist on having an SSI claim file made and
dismissed proforma in spite of the fact you have advised them that the
client is married to a working spouse and getting $800 every week in
WC? SSA's voiced ``concern'' for applicants is a bogus cover for
increased statistics on case dispositions and should be stopped.
3. (p. 5) CPMS is being used by OHA. I am trying to find out if the
coding ID for the client (like a UPL scanning code for checkout at the
supermarket) is the same at the State level and the OHA level? Or must
the file be re-scanned and recoded?
4. (p. 6, 10-11) Quick Disability Determination (QDD) for the
clearly disabled is a good idea but is not new. This has been around
for years. What is new is the ``predictive model screening software
tool.'' I have asked for a copy of that ``software'' in order to format
really sick client's applications to meet this criteria. Since the
science and practice of medicine changes so rapidly, the basis for this
tool should be interesting. Who made it? A similar ``tool'' was created
in the 80s for CDRs at the University of Michigan to answer the
question ``which type of claimant is likely to recover from a
particular illness (i.e. heart attack under 40).'' How this will happen
in 20 days as proposed is a question that needs review. 30 is probably
more realistic if a medical expert is required to sign off.
5. (pp. 11-13) The Federal Expert Unit is also a great idea. If I
was younger, I would put together a nationwide network of MEs & VEs
that already network on PI and WC cases anyway, and get them
``qualified'' under standards yet to be developed by the National
Institute of Medicine; and then bid on the job. I will ask the NIM for
information about this set of standards and who is the contact person.
Since SSA ``plans to undertake a study'' about RFC assessments, I will
assume the DOT, SCODDOT and ``O-Net'' will be back in play. One small
problem, how will a VE from California identify jobs in the Chicago
SMA? Another problem, if the standards for medical consults (both in-
house and outside) are too high and the pay is poor, the clients will
get the dregs, part time residents, or none at all. I expect that many
doctors who have ``retired'' and testify at ALJ hearings will find
other work as well. The idea may stumble on the reality of lack of
resources.
6. (pp. 13-14) Federal Reviewing Official by an attorney in Federal
pay is nothing more than the Feds taking over Reconsideration and
dressing it up. These ``highly qualified individuals'' who will be
``thoroughly trained'' reflect the ambitions of the NTEU members and
wannabe ALJs taking over the QR function done at regionals.
Any FRO decision must explain why a denial occurred yet no where in
the proposals is there a timeframe for such decision (See: Deloney
class action consent decree). I failed to note any de novo protection
of the ALJ decision if the ALJ is required to explicitly rebut the FRO
decision.
7. (pp. 14-18) ALJ Decisions I can live with so long as Closing the
Record is not used with a vengeance. Other people can deal with the
medical record timeframe issues. In short, unrealistic.
8. (pp. 18-20) Decision Review Board replaces the Appeals Council.
So what. After the ALJ denial and absent receipt of a Notice from DRB,
I would file ASAP in Federal Court if there is a good reason. There is
no prohibition of filing sooner than the 60 days and move it to the
OGC. This move will inundate the Federal Courts and they will lobby
Congress to change the law to deny jurisdiction except in
Constitutional cases. (Posner Commission Report). Given the current
political climate, it might fly. If you do get a DRB Notice within the
90 days, make sure you send any arguments/evidence by certified mail to
raise the issue of ``Closed Record'' for federal court. Just because
the SSA says ``it is so'' doesn't mean much to a Federal Judge.
9. (pp. 21-22) Implementation. This is an administrative nightmare.
To roll out a significant change in process on a region by region basis
in order to gain experience and time to fine tool the process makes
administrative sense. If the APA truly means ``no person shall be
adversely affected by any rule unless first published in the Federal
Register'' and if this is truly a national program, I predict that
people asking for disability benefits under the old system may fare
better than those under this ``new'' system. I dread the call from a
client moving from the Chicago area to a Region using the ``new''
system. Should I advise a client to move out of a ``new'' Region to an
``old'' Region in order to submit material medicals to the Appeals
Council? Will the visiting ALJ from San Bernardino impose ``his''
system used in California? or the system used in Illinois? SNAFU time.
10. Money. State of Illinois will get reimbursed only for
``qualified'' expert costs once Illinois becomes a State Agency within
the new system. I have suggested in the past that the State of Illinois
get out of the business of making these decisions and turn it over to
the Feds. Why not? Jobs & politics in my opinion. The Feds are
terrified that any State might do this since the costs would double due
to Fed wage scales and benefits compared to State payrolls.
Statement of Linda Fullerton, Social Security Disability Coalition,
Rochester, New York
Second Wave Of Disaster Ahead
While the majority of Americans were shocked at the reaction of the
Federal Government in the aftermath of hurricane Katrina, I was not
surprised at all. I have been personally devastated by the Federal
Government, and have seen the horrifying results of their incompetence
on a grand scale for the past few years. My personal story can be found
here--Please check out my website at:
http://www.frontiernet.net/ lindaf1/bump.html.
Nowhere is this more evident, yet rarely mentioned, than in the way
the Social Security Administration treats the disabled population of
this country. Americans saw in a major way since hurricane Katrina
struck, how the poor and disabled were left to die in the streets when
they needed help the most. The SSA has been systematically destroying
disabled Americans for decades, and Congress as a whole has failed
miserably to do anything about it.
While Commissioner Barnhart's proposed revamp of the Social
Security Disability program was a great gesture during the week of the
ADA anniversary, it does not go far enough, fast enough for those who
desperately need to access disability benefits and whose very lives
depend on them. Even many Social Security Administration employees
themselves do not agree with the Commissioner's current proposals, as
they too see what a detriment they are to the lives of disability
claimants. SSA employees, as well as many disability organizations such
as mine, have been kept out of these hearing proceedings, yet we are
the ones most affected by the outcome. This needs to change
immediately. Our organization is one who has provided constant feedback
throughout this whole process to the commissioner's staff. The majority
of our members are those who are actually receiving, or are going
through the horrendous claims process itself, trying to get Social
Security Disability benefits, so we know first hand where the problems
are.
The SSDI/SSI program is currently set up to discourage and destroy
as many claimants as possible so benefits do not have to be paid out to
them. Over 68% of claims are denied at the initial filing for benefits.
To date the SSA has determined that it can take up to 1,153 days (3\1/
4\ years) or longer for a claim to be processed if it is denied at
every level which often occurs. That waiting time is about to increase
as the SSA Commissioner has made proposals which will force thousands
more into the already backlogged Federal Court system. The disabled are
also made to wait 2 years to get vital Medicare benefits while healthy
citizens can access them immediately upon reaching retirement age. The
poverty that often results from waiting for these Federal claims to be
approved and Medicare benefits, forces thousands into already over-
burdened state Medicaid and Social Service programs who would never
have needed them, had they had their claims approved in a timely
manner. Then once their SSDI/SSI benefits are finally received, many
states require the disabled to pay back any state benefits that they
received, yet healthy Americans are not required to do so. This creates
a cycle of endless poverty, where they now have to now rely on both
state and Federal programs to survive, and from which they can never
recover, since they can no longer work. They are then viewed, as the
world just witnessed first hand, as ``disposable'' citizens. Yet, the
thousands of our horror stories of homelessness, bankruptcy,
destruction and death at the hands of the SSA, do not make the news.
My years of pleas to the President and Congress to get these people
help have been, with a few exceptions, virtually ignored. I shudder to
think of how many more lives will be further devastated or lost, when
the mentally and physically disabled victims of Katrina, encounter
their next experience with the Federal Government as they apply for
their SSDI/SSI benefits. We ask that Congress act now to fix the SSDI/
SSI system properly, without further harm to this extremely fragile
population. We as claimants who have actually gone through the SSDI
system, want to be part of a group who actually continues to
participate in the Social Security Disability New Approach program, and
all hearings relating to all aspects of Social Security reform. We want
to have major input and influence on the decisionmaking process before
any final decisions/changes/laws are instituted by the SSA Commissioner
or Members of Congress. This is absolutely necessary, since nobody
knows better about the flaws in the system and possible solutions to
those problems, then those who are forced to go through it and deal
with the consequences when it does not function properly. We are your
mothers, fathers, sisters, brothers, friends, and many of us are
veterans who have served this country. Wake up America--at any point in
time, this could be you or someone you love!
Social Security Disability New Approach Program Proposals Meager At
Best--Major Reform Still Needed
First of all, I must say that the women I spoke with on the
Commsioner's staff--Sonia De La Vara and Mary Chatel were very
responsive and helpful to my organization as we tried to submit
feedback to the Commissioner during the New Approach process. They are
to be highly commended for their hard work and in my estimation are
shining examples of how all SS employees should be. We are also very
pleased to see the establishment of a QDD process (quick disability
determination) 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. That being said,
I was shocked to see that the Commissioner herself, has vastly ignored
the feedback that was submitted from our group as she moves forward
with her proposed changes to the SSDI program.
High priority should be given to increase SSA staffing levels, and
provide better employee training, in all phases of the disability
process, especially in the initial contact phases with field offices
and DSS offices across the board. Instead we are hearing that staff
levels are being reduced as backlogs in the system are increasing! More
effort should be made to thoroughly review a disability claim at the
start, giving more proper weight to claimants treating physicians,
which is part of Social Security law, but is often not followed when
making decisions throughout the claims process. There should be more
effort on the part of SS to assist applicants throughout the entire
disability claim process, including ongoing contact with claims
examiners, assistance with developing the medical file to ensure all
pertinent medical evidence is in file, and that the claimant is
contacted if anything is lacking, before making a decision on their
claim.
The establishment of a Federal Reviewing Official (RO) level of
review, that would issue decisions based on review of record, is also a
welcome change, as we feel that currently not enough time is spent
looking at the medical records supplied by applicants and this results
in premature denials and more ALJ hearings.
To date the Social Security Administration has determined that it
can take up to 1,153 days (3\1/4\ years) for a claim to be processed if
it is denied at every level which often occurs. The Commissioner has
stated that she hopes to reduce that wait time by 25% or down to 2\1/4\
years. While any reduction in wait time is good, this is still
appalling, and shows that she is totally out of touch with the
realities that disability applicants face. I am sure that if she, or
anyone else in the Federal Government had to endure living under the
conditions that a 2\1/4\ year wait time for benefits brings, in
addition to the hardships caused by one's disabling conditions, they
could not fix the system fast enough.
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.
While the commissioner states that the quality review process will
be improved, it often adds at least an additional 4 week waiting period
to claims processing, and often targets approvals rather than denials
and in the future should focus more on why cases are denied rather than
approved. To better streamline her current Review of Decisions
proposals and to further speed up the claims process--the DRB (Decision
Review Board) and Federal Quality Review processes should be combined.
We also feel that the CDR process (Continuing Disability Review)
process needs to be looked at as well. Claimants with obvious incurable
chronic conditions should not have to endure the stress of these
reviews, (a further detriment to their health) as the nature of these
diseases cause a patient to gradually deteriorate over time--not
improve. Many who under SS guidelines, still qualify for benefits are
being forced into hearing situations and overpayment issues due to
mistakes or outright fraud on the part of the SSA, again to purposely
keep people from these vital benefits. It is also a major waste of time
and SS resources that could be used elsewhere in the system. It is said
that these reviews are done to prevent fraud. Trust me, nobody in their
right mind would want to live under the conditions that the majority of
SSD claimants and recipients are forced to endure. The majority would
much rather have their health back and the jobs they once had before
their lives were changed by illness or accidents.
Any corporation in this country who ran their business this poorly,
would be out of business in it's first year! As evidenced by the
Commissioner's current press release, most of our concerns were largely
ignored or the solutions were severely lacking. 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 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 centers for initial
payments once claim is approved.
Federal Quality Review process adding even more wait time to claims
processing, increasing backlogs, no ability to follow up on claim in
this phase.
Poor/little coordination of information between the different
departments and phases of the disability process.
These complaints refer to all phases of the SSD process including
local office, Disability Determinations, Office of Hearings and
Appeals, Payment Processing Centers and the Social Security main office
in MD (800 number).
NOTE: These Federal regulations are being violated on a daily basis
all over the country:
CODE OF FEDERAL REGULATIONS PART 404--
FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950-)
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 list of reforms and concerns was compiled and
submitted to the Commissioner's staff early on, based on the actual
experiences of our members and those who have signed the Social
Security Disability Reform petition:
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. This is blatant discrimination, and
yet this is a standard practice when deciding Social Security
Disability determinations and should be considered a violation of our
Constitution. This practice should be addressed and eliminated
immediately.
All SSD case decisions must be determined within three months 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 SSD will constitute a fine of $500 per
week for every week over the six month period--payable to claimant in
addition to their awarded benefit payments and due immediately along
with their retro pay upon approval of their claim. SSD will also be
held financially responsible for people who lose 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
claim, which may occur during or after (if there is failure to fully
process claim within six months) the initial six month allotted
processing period.
Waiting period for initial payment of benefits should be reduced to
two weeks after first date of filing instead of the current five month
waiting period. The withholding of five months of benefits greatly adds
to the financial burden of a claimant, and compromises their financial
status to a point, that most can never recover from due to their
inability to work. There is no good reason given for this huge
withholding of benefits, and even the states do better than this, when
processing claims for unemployment insurance--withholding amounts are
often only a few weeks at most. 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.
A majority of SSD claimants are forced to file for welfare, food
stamps and Medicaid, another horrendous process, after they have lost
everything due to the inadequacies in the Social Security Disability
offices and huge claims processing backlog. 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--why are disabled people being discriminated
against? Claimants who file for Social Service programs while waiting
to get SSD benefits, in many states have to pay back the state out of
their meager SSD/SSI benefits once approved, which in most cases keeps
them below the poverty level and forces them to continue to use state
funded services. They are almost never able to better themselves and
now have to rely on two funded programs instead of just one. This
practice should be eliminated. In all states there should be immediate
approval for social services (food stamps, cash assistance, medical
assistance, etc.) benefits for SSD claimants that does not have to be
paid back out of their SSD benefits once approved.
Immediate eligibility for Medicare/Medicaid upon disability
approval with NO waiting period instead of the current 2 years. The
current two year waiting period causes even further harm to an
applicant's already compromised health and even greater financial
burden on a population who can least afford it, since they cannot work.
This 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.
If we provide sufficient medical documents when we originally file
for benefits why should we ever be denied at the initial stage, have to
hire lawyers, wait years for hearings, go before administrative law
judges and be treated like criminals on trial?
Too much weight at the initial time of filing, is put on the
independent medical examiner's and SS caseworker's opinion of a claim.
The independent medical examiner 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 much more weight on
the claimant's own treating physicians opinions and medical records. In
cases where SSD required medical exams are necessary, they 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).
SSD required medical exams should only be performed by board
certified independent doctors who are specialists in the disease that
claimant has (example--Rheumatologists for autoimmune disorders,
Psychologists and Psychiatrists for mental disorders). Independent
medical exams requested by Social Security must 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 must
provide for transportation or travel expenses incurred for this travel
by the claimant.
All Americans should be entitled to easy access (unless it could be
proven that it is detrimental to their health) and be given FREE copies
of their medical records including doctor's notes 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.
ALL doctors should be required by law, before they receive their
medical license, and 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.
More Federal funding is necessary to create a universal network
between Social Security, SSD/SSI and all outlets that handle these
cases so that claimant's info is easily available to caseworkers
handling claims no matter what level/stage they are at in the system.
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.
Institute a lost records fine--if Social Security loses a claimants
records or files an immediate $1,000 fine must be paid to claimant.
Review of records by claimant should be available at any time
during all stages of the SSD determination process. 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 the hearing and appeals phase.
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. 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.
The claims process should be set up so there is no need whatsoever
for claimant paid legal representation when filing for benefits and
very little need for cases to advance to the hearing and appeal stage
since that is where the major backlog and wait time exists. The need of
lawyers/reps to navigate the system and file claims, and the high 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. Instead,
SS 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.
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.
Strict code of conduct for Administrative Law Judges in determining
cases and in the courtroom. Fines to be imposed for inappropriate
conduct towards claimants.
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.
Until the majority of these reforms are implemented and these
issues are addressed, disabled Americans will continue to suffer at the
hands of a Federal Government program that was originally put in place
to help, not harm them. Currently many SSD applicants are losing all
their financial resources and even their lives while waiting to get
their benefits--these injustices and systematic destruction of disabled
Americans has to be stopped immediately. We are watching, we are
waiting, we are disabled and we vote!
Social Security Disability Reform Petition--read the horror stories
from all over the nation:
http://www.petitiononline.com/SSDC/petition.html
Social Security Disability Coalition--offering FREE knowledge and
support with a focus on SSD reform:
http://groups.msn.com/SocialSecurityDisabilityCoalition
Please check out my website at:
http://www.frontiernet.net/ lindaf1/bump.html
``I am disabled and my vote counts too!''
Statement of Keith Holden, M.D., Orlando, Florida
I am a licensed physician, board certified in Internal Medicine,
and was a medical consultant for Florida's Department of Disability
Determination Services (DDS) for seven years. I also worked for
Georgia's department of Disability Adjudication Services for fifteen
months.
I'm disturbed by the fact that Social Security's proposed rule for
the ``Administrative Review Process for Adjudicating Initial Disability
Claims'' does not outline an enhanced training program for its
decisionmakers. Ask any successful major corporation, and they'll tell
you that having an effective training program for its workers is as
important as having money to perform its daily functions. I argue that
Social Security's failings at prior attempts to redesign the
adjudicative process are, in part, based on the lack of an effective
training program; and that this ongoing oversight will play a role in
the possible failure of this current attempt.
The Commissioner's new plan proposes that State agencies will
better document and explain the basis for determinations so as to
result in more accurate initial determinations. The Commissioner told
the ``National Association of Disability Examiners'' that state DDS
examiners would be responsible for development and review of the
medical and vocational input, writing the RFC, and preparing the denial
following a legal decisional logic thought process. The examiner will
be required to fully document and explain the basis for their
determination.
This reflects what the Commissioner has said about administrative
law judges expressing concern about the quality of adjudicated records
they receive. Clearly, many claimants' cases are not fully developed
and documented by disability examiners. This is due to multiple
reasons. I have discussed this situation with examiners in Florida and
Georgia after I found that a significant number of cases that had not
been properly developed were routinely routed to medical consultants.
The main reasons stated for not doing so were that caseloads were
excessive and unmanageable, job expectations were unrealistic, and
training was woefully inadequate.
Case management by disability examiners, from the medical
perspective, is sometimes inadequate, partly due to their lack of
understanding of the clinical and functional aspects of claims.
Inconsistency in training, and the lack of sufficient ongoing medical
training once examiners reach their assigned units, produces a core
group of examiners who do not understand the clinical aspects of cases.
This results in examiners who can't develop medical issues with any
significant degree of consistency or efficiency. This is part of the
reason why some examiners admittedly don't attempt to read or develop
the medical evidence in some complex cases. They route those cases to a
medical consultant to unravel the issues, and subsequently complete the
proper form, or return the case with recommendations for further
development. This problem is only magnified in the significant number
of DDS offices that have a high turnover of examiners, as those offices
are relying on a large group of novices with little training and
experience. It is well-known that examiners can't perform their jobs
efficiently until they have had one to two years of training.
Examiners are expected to act as medical detectives and determiners
of functional ability relating to physical and mental impairments. They
are expected to have this capability despite a training curriculum
which is essentially a crash course of very limited medical terminology
and pathophysiology. The training they receive is very basic with an
emphasis on anatomy and medical terms. This training emphasizes terms
rather than clinical concepts, and is given in a relatively short
timeframe without sufficient ongoing medical education. This limits
their ability to think critically in applying that knowledge to complex
medical issues found in many cases.
Some States have been designated ``prototype'' States, in which
examiners are allowed to adjudicate claims without input from medical
consultants. In one review, it was found that approximately 70% of
examiners sought input from medical consultants anyway. That is a
strong indication that those examiners, who supposedly had been trained
to adjudicate claims without medical consultant input, did not feel
qualified to do so. In fact, I have spoken to examiners in Florida, who
were not happy with the fact that they had been instructed by
supervisors to do ``Single Decision Maker (SDM)'' claims in an effort
to reduce case loads and decrease cost. Common statements made by them
included, ``I am not a doctor'' and ``I don't have the training to do
this.''
The concept behind SDM is that examiners in these prototype States
would decide which cases were easiest to adjudicate, and make SDM
decisions on those without input from medical consultants. As with most
good intentions undermined by poor planning, this experiment morphed
into a short-cut for examiners to expedite clearance of cases without
proper oversight by medical experts. When many DDSs in these prototype
States formed units to do ``Quick Decision'' cases even before the
Commissioner touted this concept, that left examiners on regular units
with the more difficult cases to adjudicate. With SDM being praised by
the SSA leaders as a way to save millions of dollars by not having to
pay medical consultants for their input, these States felt obliged to
press examiners to perform SDM claims even though many no longer had
access to the easiest cases. The result is that many difficult claims
that should have had expert medical input before being adjudicated were
decided by examiners without proper insight or training.
In relation to the purely medical aspects of disability claims,
this practice is comparable to letting a medical assistant in a
doctor's office complete the Residual Functional Capacity (RFC) form or
Psychiatric Review Technique Form (PRTF). The irony is that while
medical assistants and examiners have similar non-clinical medical
training, medical assistants, unlike most disability examiners, have
clinical medical experience. Theoretically, this clinical experience
would let medical assistants do a better job of completing those
residual function forms. This fact is clearly a disservice to
disability applicants, as well as improperly trained disability
examiners.
The majority of examiners I spoke with in Georgia and Florida made
it clear to me that they do not feel they have been properly trained to
complete an RFC or PRTF, much less write a detailed rationale for their
decision. They admitted they do not have a clear grasp on how the
physiologic issues relating to medical impairments impact functional
abilities. This type of application of knowledge requires critical
thinking. Critical thinking involves solving problems, formulating
inferences, calculating likelihoods, and making decisions when the
thinker is using skills that are effective for a particular context and
type of thinking task. In the role of the examiner, it requires judging
ambiguity and judging whether statements made by authorities are
acceptable in the context of complex medical issues. It also requires
examiners to have the ability to respond to material by distinguishing
between facts and personal opinions, judgments and inferences, and the
objective and subjective.
Compound this issue with the fact that some States don't require
examiners to have more than a high school education, and you are
looking at a set-up for failure. This issue of State job requirements
for disability examiners, which plays a role in the inconsistency of
decisionmaking between different States, is only one example of the
many problems associated with the current federal-state relationship in
the Social Security disability program. See the GAO's January 2004
publication, ``Strategic Workforce Planning Needed to Address Human
Capital Challenges Facing the Disability Determination Services'' for
more information on this topic.
The current DDS training program, of which was a part, in no way
adequately prepares disability examiners for their job duties. Issues
of inadequate training have been voiced by numerous organizations
providing oversight for the SSA. The Social Security Advisory Board's
(SSAB) August 1998 report ``How SSA's Disability Programs Can Be
Improved,'' stated ``The most important step SSA can take to improve
consistency and fairness in the disability determination process is to
develop and implement an ongoing joint training program for all of the
15,000 disability adjudicators, including employees of State disability
determination agencies (DDSs), Administrative Law Judges (ALJs) and
others in the Office of Hearing and Appeals (OHA), and the quality
assessment staff who judge the accuracy of decisions made by others in
the decisionmaking process.'' It went on to say ``We urge the
Commissioner to make a strong ongoing training program a centerpiece of
the agency's effort to improve the accuracy, consistency, and fairness
of the disability determination process, and to see that the necessary
resources are provided to carry it out.''
The General Accountability Office's (GAO) March 1999 report ``SSA
Disability Redesign Actions Needed to Enhance Future Progress,''stated
``Training has not been delivered consistently or simultaneously to all
groups of decisionmakers.'' The SSAB's September 1999 report ``How the
Social Security Administration Can Improve Its Service to the Public,''
stated ``SSA may also be underestimating staff training needs.''
The GAO's January 2004 publication, ``Strategic Workforce Planning
Needed to Address Human Capital Challenges Facing the Disability
Determination Services,'' noted that the Social Security Advisory Board
has cited training as one of the issues associated with inconsistencies
in disability decisions. It went on to say that gaps in key knowledge
and skill areas were part of the key challenges DDSs face in retaining
disability examiners and enhancing their expertise. Reflecting my
concerns, that report went on to say that DDS directors reported that
many examiners need additional training in key analytical areas that
are critical to disability decisionmaking, including assessing
credibility of medical information, evaluating applicants' symptoms,
and analyzing applicants' ability to function. Finally, that report
noted that under SSA's new approach for improving the disability
determination process, these same knowledge and skill areas will be
even more critical as DDS examiners take responsibility for evaluating
only the more complex claims and as they are required to fully document
and explain the basis for their decision.
There is a recurring theme among professional organizations that
provide oversight to the SSA showing a persistent and uncorrected
problem of inadequate training in the Social Security disability
program. Every proficient business model contains an effective training
program to address the training needs of its workforce. Could
inadequate training be at the heart of why SSA's previous attempts at
redesign failed to obtain most of its objectives? I don't think it's a
stretch to say that inadequate training significantly contributed to
those failures. Based on SSA's failures at prior attempts of redesign
in which none of those initiatives successfully integrated a consistent
and enhanced training program, it would be wise to consider the
recommendations made by both the GAO and the SSAB; and attempt to
formulate a better training program.
The SSA should establish an enhanced training program for examiners
that emphasizes the clinical application of medical knowledge relating
to medical impairments and their physiologic impact on a claimant's
function. This training should be ongoing for old and new examiners,
and should be provided for all levels of the decisionmaking process who
must reason through a disability decision, including administrative law
judges (ALJ).
If adjudicators at all levels aren't effectively taught the mental
and physical issues relating to an impairment's impact on function, how
can they be expected to accurately reason through a decision? I was
amazed at the lack of emphasis the SSA and DDSs placed on this type of
training, which has directly contributed to the inconsistency in
disability decisions across the program. Some DDS leaders voiced
concern that such ongoing examiner training given in more frequent
increments would be disruptive as it would take examiners away from
case development. That type of reasoning clearly reflects an emphasis
on case development of quantity over quality.
Other DDS leaders told me they didn't want to offer more
standardized training for fear of being accused by the SSA of
typecasting impairments as it relates to an individual's function. They
were afraid of stereotyping impairments with a set level of function,
and let that fear override common sense when it came to the concept of
standardized training. Training related to medical impairments and
function can be standardized, yet presented in a way to allow the
understanding of how it is possible for two claimants with the same
impairment to be impacted differently from a functional standpoint.
Training can be standardized, yet still incorporate development of
critical thinking skills to encourage individualized adjudication of
disability claims.
Not only have examiners been given inadequate training, but ALJs
have been given even less medical training. I do not understand how
ALJs are supposed to reason through a decision relating to medical
issues based on a legal education. I acknowledge that a claim is
supposed to be fully developed from a medical perspective by the time
it reaches them, but by that time, months, if not years, have passed;
and there may be a whole new slew of allegations or alleged worsening
of prior allegations.
My experience with some ALJs was that they basically just started
from scratch developing medical allegations by ordering multiple
specialized exams. Some also ordered multiple diagnostic tests when
they weren't even sure how to interpret the results. These practices
are not cost effective. Some relied on medical experts for advice, but
others did not. Calling in medical experts can be time consuming and
adds to case processing times. This is partly due to finding a
convenient time for a medical expert to be present, and providing time
for a claimant's attorney to cross-examine the medical expert.
In some cases, ALJs just relied on what the treating physician
opined as a level of residual function, regardless of whether the
objective evidence supported the opinion. That is an example of
selective interpretation of Process Unification rulings. But ALJs are
just trying to do the best job they can, given the limitations and
flaws inherent in the program.
What follows is a description of my proposed enhanced training
program.
Develop clinically applicable training modules focused on the
listings and most common types of impairments examiners see. Functional
application of medical knowledge will allow examiners to better
understand clinical concepts in claims, resulting in more efficient
case development. Modules emphasizing ``most common'' cases let
examiners become better skilled in the types of cases that make up the
bulk of their work. Initiating training with ``most common'' scenarios
provides a starting block for examiners from which they can start to
establish critical thinking skills and hone these skills through
repetition, i.e., by frequently seeing and reasoning through these
types of cases. Modules focused on the listings let examiners become
more proficient with use of the listings, which will facilitate ``quick
decisions'' for applicants who are clearly disabled.
Examiners will learn to individualize case assessments when they
begin to see that despite a possible common variable, the impairment,
the impact of that impairment and its associated residual level of
function can be vastly dissimilar for different individuals.
These modules should be implemented early in the training process
to supplement the existing components of basic anatomy and physiology.
Once a solid knowledge base is established, training modules can be
advanced to more difficult and less frequently seen disease states and
conditions.
Training modules should address what tests are necessary to
adjudicate cases and explain why. Modules should also explain at what
point in a claimant's condition a test may become necessary and why.
When examiners begin to understand the pathophysiology of a condition,
it will be easier for them to remember what test result to look for in
the medical records, or possibly to order with a Consultative Exam
(CE). Rather than just providing a checklist of labs or tests for each
disease or condition as is currently done in some DDSs, the reasoning
for each test should be given to help the examiner associate the test
with the condition, thus providing easier recall.
Training modules should address disease prognosis and possible
expected outcomes of certain conditions, injuries, and surgeries, which
is especially important in durational decisions.
Process Unification rulings should be integrated into these modules
to demonstrate how to reason though a decision. Each ruling should be
applied to case modules to enable writing a well-reasoned rationale.
Clinically based training should be extended to experienced
examiners as continuing education. Hold monthly training updates in
small groups so productivity won't be disrupted. These training modules
should focus on issues recognized as recurring problems found in
Quality Assurance reviews.
Encourage better utilization of medical consultants through
increased interaction with examiners. Establish a series of short
lectures by different medical consultants on topics in which they are
interested or specially trained. This lecture series should be given to
more experienced examiners to supplement prior training by covering
aspects of case development and adjudication that are more relevant to
their level of experience and understanding.
I found that due to a high turnover of staff in DDSs, some
examiners were prematurely promoted to supervisor positions. By
default, this resulted in a small number of supervisors who lacked
adequate medical knowledge to be able to sufficiently guide examiners
in their unit on medical development of certain claims. Thus, this
enhanced training program should encompass all levels of the
decisionmaking process, including unit supervisors.
For this concept to work, it will be necessary to establish
Operations support of regular and mandatory clinical training once
newly trained examiners reach their units. Establishing an effective
and consistent training program will improve the quality of decisions,
establish consistency in decisionmaking, and save the program millions
of dollars.
This training program should be introduced with the emphasis that
this new style of learning, while taking a little extra effort up
front, will result in examiners establishing control over a better
product (a more accurate decision) through improved learning. While
this concept will initially take time away from case development for
some examiners, retaining well-trained and proficient examiners will be
the reward for this investment.
This enhanced training program should be linked to a pride-based
initiative through which the SSA can improve the morale of examiners
and all other personnel. Improved morale will help decrease examiner
turnover, which according to a recent GAO report, is twice that of
other SSA employees.
Including the OHA in this initiative will help improve some of the
issues contributing to the adversarial relationship between the SSA and
the ALJs as they will see the SSA providing key support for their
needs. This initiative will allow ALJs to make better informed
decisions regarding the medical aspects of disability claims.
Ultimately, this concept will help revive the long-lost Process
Unification initiative, which, in my opinion, is integral to
maintaining the disability program's integrity in the eyes of the
public.
SSA cannot afford to ignore the repeated warnings and suggestions
made by individual stakeholders and professional organizations about
making a strong ongoing training program the centerpiece to improve the
disability determination process. SSA should start focusing on the core
issue of why its attempts at redesign keep failing; and that core issue
is training.
Sherman Oaks, California 91403
October 4, 2005
Honorable Members of the Social Security and Human Resources
Subcommittees:
This letter is written by both Robert E. Lowenstein, Jr., and Janna
Lowenstein, both attorneys of the law offices of Robert E. Lowenstein,
Jr., APC. Our firm has been representing Social Security claimants in
the Southern California area for the past 30 years. Mr. Lowenstein is a
past president of the National Organization of Social Security
Representatives. While our firm represents claimants from the initial
application through the Federal court appellate process, the majority
of our cases are hearings before Social Security Administrative Law
Judges and appeals to the Social Security Administration's Appeals
Council.
Although we commend the Commissioner for attempting to create a
more efficient process to adjudicate claims both on the administrative
and claimants' end, we would like to point out several of our concerns
with the Commissioner's proposed changes. These concerns have to do
with the addition of the Reviewing Official, the limitation of
submitting medical evidence, the ability to reopen a previously
determined or dismissed claim, and most importantly, the elimination of
the appeals council. These concerns will be addressed as follows.
Reviewing Official
The proposed changes include eliminating the Reconsideration stage
that is currently in place, and replacing this with a Reviewing
Official (RO), who will either approve benefits or make a
recommendation to deny benefits. The Commissioner proposes this change
in an apparent attempt to streamline the system in order to make a
decision in a shorter amount of time. However, this proposed change
would most certainly increase the amount of time to receive a final
decision for many of our clients and would do so for many claimants on
a national level. Many of our clients live in geographic areas that are
serviced by ``prototype'' District Offices that have already eliminated
the Request for Reconsideration stage, allowing the claimant to appeal
an Initial Denial directly to an Administrative Law Judge (ALJ). Adding
the RO step back into the process would add another two to six months
to get a decision that can still be appealed to an ALJ. The proposed
changes also give the RO a presumption of correctness, as the ALJ must
provide a rationale for not following the RO's recommended
disallowance. We are told that these RO's will be attorneys
``thoroughly trained in the policies and procedures of our disability
determination process.'' These RO's will not hold hearings nor will
they meet the claimants. Although they may be ``thoroughly trained''
they do not hold the same knowledge of an experienced ALJ who conducts
hearings on a regular basis and is able to actually meet and observe
the claimant in person. A decision that is to be considered
presumptively correct cannot be made by a person who has not conducted
a hearing with the ability for the claimant to testify or cross-examine
any necessary witness under the rules, or has at the very least seen
and observed the claimant. Additionally, ALJ's may be unduly prejudiced
by the presumptive correctness of the RO's opinion, resulting in a
compromise of the independence of the ALJ as set forth in the
Administrative Procedures Act.
Submission of Evidence
Under the proposed rules, claimants would have the right to submit
evidence only until 20 days prior to the hearing, with the opportunity
to submit additional evidence only if the ALJ finds ``good cause'' for
its late submission with limited allowances of what would constitute
good cause. This change is not consistent with the Social Security Act,
which states that the ALJ is to make a decision based on the evidence
adduced at the hearing. The disallowance of evidence is also
inconsistent with the Act, which the Supreme Court has determined to be
nonadversarial in nature.
This provision will also be extremely difficult to comply with in
many cases, regardless of whether or not the claimant has
representation. Claimants and representatives are limited by the
medical care providers in the ability to obtain and submit evidence.
For instance, many of our clients are low income, as would be all
claimants seeking Supplemental Security Income, and can only be treated
by county facilities. These facilities contract their own copy service
and we are then left at the mercy of the facility to provide the
documents. Even then, many times the documents do not include all of
the requested material and we have to make another attempt to obtain
these records. It is not uncommon that many doctors ignore our initial
requests for records and we have to send second and third requests to
obtain the claimant's medical records, much less obtain a detailed
report from the doctor that would describe the claimant's functional
ability, as is encouraged to obtain in the Regulations. Also, many of
the claimants are unable to pay for these records or reports,
especially on such short notice.
Also, many of the claimants have continuing diseases or impairments
or a combination of impairments, and also impairments that cause other
impairments as time goes by. As such, the claimant would be seeking
continuous treatment for these problems and treatment does not
necessarily stop 20 days prior to the hearing. In fact, the claimant
would be penalized should he or she stop treating as the claimant would
likely be denied benefits on the basis of failure to treat. There have
been many occasions in our practice that a claimant has brought a
record he or she received from the days just prior to the hearing due
to recent treatment, which has explained a continuing condition the
claimant has had, which have resulted in favorable determinations based
on that information. On other occasions a claimant's memory is jogged
at the hearing and suddenly they remember a treating source they had
failed to make known to us previously. Take for example a person that
has had ongoing severe abdominal pain, weakness, and fatigue that has
been continually noted but not explained by one doctor and later
explained by a consulting oncologist as cancer. The symptoms and
limitations have not changed, yet this is now defined as cancer, a
medically determinable impairment. As is noted earlier, only the ALJ
has the authority to allow ``late'' evidence to come into the record,
but there is no requirement that the ALJ accept any late evidence. If
the proposed changes were to become the rule, should this oncologist's
report not be admitted to the record due to the ALJ's disallowance of
the ``late'' evidence, the claimant would likely be denied as there is
not a ``medically determinable impairment.''
Our firm has often taken on representation for claimants who do not
seek our assistance until after they have received a request for
hearing. This is often due to the fact that the claimant did not
understand the nature of the appeal process and the need for an
attorney. We have also had claimants inform us that he or she had been
told by an employee at his or her District Office or an agent answering
the 800 number that they do not need an attorney or representation.
Under the proposed changes, claimants will have less than 25 days
after receiving a notice of hearing to submit all medical records. This
is assuming the Notice of Hearing actually gets to these claimants in
the assumed number of postal days. Also, many claimants, especially
those who are seeking Supplemental Security Income benefits, do not
have a permanent address and are either moving in and out of friends
and family members' homes or are homeless and do not often receive
their mail in a timely fashion. Also, many claimants have a mental
impairment or limited education that inhibits he or she from realizing
the importance of the notice. Regardless, however, even with the full
25 days from the notice of hearing, as is noted above, it is extremely
difficult to obtain medical records within such short amount of time
from the medical care providers. There is no rule for the medical care
providers to provide the records or reports within any given amount of
time and the claimants and representatives are again at the mercy of
the medical care providers.
We have also had claimants come to our office after they have been
denied either in the initial stages or by an Administrative Law Judge
who will say, ``Why didn't they consider Dr. X's records?'' Yet, these
records are not in the claim file. The claimant will inevitably inform
us that he or she believed that Social Security had Dr. X's records or
that he or she believed Social Security would be obtaining all of the
necessary records and reports, however, this is not often the case.
Consider that they are not given copies of the medical records and
other evidence obtained at the initial level and at the hearing level
they are advised to arrive thirty minutes before the hearing to review
their file. A denial notice reflects a doctor's name and date but not
what was actually received. It may nearly be a letter saying the
patient cannot be identified. The claimant would have no way of knowing
this and he or she would think a report was received.
Reopening
The proposed changes also prohibit the ALJ from reopening a prior
decision or claim based on new and material evidence showing that it is
wrong. Taking the example used above, if an ALJ made an unfavorable
decision based on the fact that the unexplained severe abdominal pain,
weakness, and fatigue provided no actual medically determinable
impairment, and if the Appeals Council received new and material
evidence from the claimant's oncologist that was received after the
hearing but prior to the decision, the Appeals Council would be able to
either reverse the ALJ's decision or remand the case back to the ALJ
for further development with instructions to include this new and
material evidence. Such would not be the case here.
In addition, there are many instances where a case has been
dismissed or not appealed but should later be reopened for good cause.
We have seen many instances where a person has sought our assistance to
appeal but have missed the deadline. Many of these claimants have a
mental impairment and were not able to understand the nature of the
appeals process, which was evidenced by multiple initial applications.
Many other claimants missed their opportunity to appeal due to some
nature of their impairment, be it mental in that they did not want to
keep fighting for their benefits due because of depression, or because
they were physically incapacitated or in the hospital during the appeal
period. We have also seen claimants be denied their right to appeal
when the claimant did not receive the notice of disapproval in the
mail. Unfortunately, some are misdirected by Social Security personnel
to file a new claim instead of appealing. Whatever the case may be, the
rules to reopen a prior decision or claim should not be so limited as
to allow only 6 months with such limiting situations to reopen.
Another reason to reopen a claim is when a claim is dismissed due
to the claimant's failure to appear at the hearing. When a claimant
does not show for the hearing, the ALJ issues an order to show cause
for failure to appear, which is mailed to the address that the notice
of hearing was sent to. However, as is noted above, we have seen many
instances where our office has informed Social Security through the
Office of Hearings and Appeals that the claimant has moved and have
provided the new address, but the notices are sent to the old address.
We have also seen instances where Social Security has made an error on
the address. Fortunately for those claimants who are represented, the
representative is usually able to make sure the claimant is aware of
the hearing date and time, however, for those unrepresented claimants,
they would have no idea of the hearing date and would not be able to
answer an order to show cause because it was also sent to a wrong
address. Some ALJ's simply dismiss the claim for being a few minutes
late or missing the hearing without even sending an order to show cause
forgetting that the claimant may well have been unable to appear
because of illness or transportation problems at the last moment, which
were unavoidable.
The failure to reopen a claim based on new and material evidence
can also be the end of the road for a claimant who has passed his or
her date last insured. In Title II claims, a claimant is only insured
for a certain period of time and can only collect benefits under this
title if he or she is found to be disabled prior to this date. Using
the above example, with the claimant who was denied benefits because of
no medically determinable impairment and no ability to submit the late
evidence that identified the symptoms as cancer, and assuming the
claimant had a date last insured of December 31, 2003, if the decision
was issued in January of 2004, the claimant would not be able to reopen
this claim in order to submit this additional evidence and collect
benefits. Under the proposed changes, the claimant would have to file a
new application for a period that was not previously considered.
However, in this instance, a new application would not help this
claimant as the previous decision would be held under res judicata and
a new timeframe would not be within his or her date last insured. This
person would be barred from collecting the benefits he or she is due.
Appeals Council
The most concerning aspect of the Commissioner's proposed changes
is the idea of eliminating the Appeals Council, leaving claimants who
are not satisfied with the ALJ's decision the only option to appeal to
the District Court. The Commissioner intends to replace the Appeals
Council with the Disability Review Board (DRB). The DRB would have its
own standards of selecting cases for review and would not allow the
opportunity for a claimant to appeal to it. The DRB can affirm,
reverse, or modify an ALJ decision, whether favorable or unfavorable,
if there is an error of law. But if there is a factual error, the DRB
must remand to the ALJ. If the DRB reverses a claimant-favorable ALJ
decision, that claimant must proceed to federal court to fight for the
benefits awarded by the ALJ. If the DRB selects a case, a notice will
be included along with the ALJ decision. To submit new evidence to the
DRB, the same strict post-ALJ decision submission requirements apply.
The DRB may ``invite'' a brief, but unless the DRB extends this
invitation, the claimant must ask permission within ten days of receipt
of the Review Notice to submit a brief. Again, there are often problems
with receiving notices in a timely fashion, especially if the claimant
is unrepresented. If the DRB grants permission to submit a brief, it
may not exceed three pages, regardless of the case's complexity. In our
office, we have had files that are more than six inches thick of only
medical records. The proposed regulation provides, ``If you file a
written statement in a claim and the Board has not asked or allowed you
to submit one, the Board will not consider the written statement and
will return it to you without making it a part of the record.''
Proposed Sec. 405.425(b)(2). These restrictions are not within the
spirit of the Social Security Act, which is inquisitorial, rather than
adversarial in nature.
The Appeals Council has also served as a good screen for
determining what cases should be taken to the District Court for
review. If the claimant receives an unfavorable decision that appears
to have either legal or factual error, or if the claimant has new and
material evidence that would change the outcome of the decision had it
been available prior to the decision being issued, we will file an
appeal to the Appeals Council. When the AC issues an order that has
explanation in it, there are times that this explanation will enable us
to see the case in a different light and determine not to further the
appeal to District Court. However, without such a screen, the claimant
would be forced to appeal directly to the District Court. The proposed
changes merely shifts to the federal courts the responsibility for
correcting tens of thousands of incorrect ALJ decisions each year. From
the perspective of claimants the true average time for adjudication
does not decrease with the proposed changes. The elimination of the AC
merely shifts the responsibility for the correction of ALJ errors.
The timeframe for the adjudication will be much longer. The current
process at the Appeals Council involves submitting a request for review
and submitting a brief summarizing the errors in the decision.
Oftentimes, a hearing tape and/or exhibits are requested prior to
submitting this final brief. Much of the delay that the Commissioner
has accounted for in her ``worst-case'' timeframe accounts for finding
and/or transcribing the hearing tape and the records. However, the
Commissioner has already devised a plan that would greatly eliminate
this delay. The use of the electronic folder and digital copy of the
hearing would allow the Appeals Council to retrieve and even send this
information in minutes, rather than months or even years. By taking
this appeal to District Court, a case that may have only taken an
attorney a few hours to review the decision and summarize the errors,
will now take 20-40 hours reviewing the case and facts, the law, and
preparing the argument for Court. Added to this time will be the
defendant's time for answering the claimant's motion and the time for
the claimant's response to the defendant. As it is practiced in our
local District Court, the Commissioner's attorneys are granted an
extension without any explanation as it is known how many cases are
currently in the system. Add to this all the cases that would have been
screened out by the Appeals Council either in their own reversal or
remand or by an explanation as to why the ALJ's decision was in fact
correct, and the timeframe for adjudicating the claim in District Court
will be exponetionally increased.
The elimination of the Appeals Council also establishes the need
for a claimant to pay a $250 filing fee that may be waived based on
their financial status. However, an unrepresented claimant may not be
aware of this rule and may not ask for the waiver. In other instances,
claimants, either represented or not may be disinclined to appeal a
decision, even if there are grave errors in the decision because of
this filing fee.
There is also the concern that unrepresented claimants would be
unable to find representation to take their claim to District Court.
There is not a large population of Social Security attorneys. Even less
are the Social Security attorneys who handle cases beyond the
administrative level and into the District Court or above. With the
exponential increase in cases needing to be taken to Federal Court, the
relatively few attorneys that handle Social Security appeal cases would
be unable to accept all of these cases as they require much more time.
This would lead to the unrepresented claimants or claimants who were
represented by non-attorney representatives or attorneys who do not
handle appellate matters without representation in Federal Court.
Although a claimant may proceed without legal representation, he or she
does not likely have the training and knowledge to point out the legal
errors in the decision and provide legal rationale to support his or
her claim.
Federal litigation is costly both to the Agency and to claimants.
With the elimination of the AC, the Agency will have increased costs
due to its need for more attorneys to defend its decisions under 42
U.S.C. 405(g). The Agency will also pay more attorney fees to claimants
and claimants' attorneys under the Equal Access to Justice Act. See 28
U.S.C. 2412(d). Additionally, as time will be extended for
adjudication, claimants themselves will share more of their deserved
past-due benefits with their attorneys when they pay those attorneys
pursuant to a court order. See 42 U.S.C. 406(b).
Conclusion
Although it is honorable that the Commissioner of Social Security
is attempting to streamline the system to make it more efficient for
both the Agency and the claimants, the proposed changes contain many
obstacles that would in fact provide the opposite result the
Commissioner intended. We urge the Subcommittees to work with the
Commissioner to amend the proposed regulations so that the rights of
claimants are fully protected and to keep in mind these issues that are
not in the spirit of the Social Security Act. Thank you for your time
and consideration.
Very Truly Yours,
Robert E. Lowenstein, Jr.
Janna Lowenstein
Statement of James E. Marshall, AFGE Council 215, Falls Church,
Virginia
Chairman Shaw, Chairman Herger and Members of the Social Security
and Human Resources Subcommittees:
I respectfully submit this statement regarding Commissioner Jo Anne
B. Barnhart's changes for improving the disability process. My name is
James E. Marshall. I have been employed by the Social Security
Administration for 47 years and have been an employee of the Office of
Hearings and Appeals for 33\1/2\ years at OHA Headquarters in Falls
Church, Virginia. I am also the President of AFGE Council 215, National
Council of Social Security Administration OHA Locals, which represents
approximately 5,000 employees in 135 hearing offices across the United
States, as well as employees at OHA Headquarters in Falls Church,
Virginia, and employees at SSA Headquarters in Baltimore, Maryland.
This statement is being presented based on my review of the
Agency's publication in the Federal Register on July 27, 2005. As you
are aware, in September, 2003, Commissioner Barnhart announced her plan
to reform the disability process and her intent to implement her
proposals through the regulatory process. On July 27, 2005, the Social
Security Administration published in the Federal Register Commissioner
Barnhart's changes for improving the disability process. It is vital to
note that the prerequisite for these changes is contingent on the total
conversion from a paper claims processing system to an electronic
disability claims adjudication process.
At the outset, while I fully support the Commissioner's idea to
improve the disability process and was committed to work with her
regarding these complex disability improvement issues, she elected, for
reasons known only to her, not to include me in any discussions. As the
exclusive representative for approximately 5,000 employees in the
Office of Hearings and Appeals, you would have thought I would have
been involved in discussions regarding the new disability process prior
to publication in the Federal Register.
Now, turning to the Commissioner's Proposed Rulemaking for
Adjudicating Disability Claims, I fully support the establishment of a
Quick Disability Determination Process, but believe that a new position
of Technical Expert for Disability should be created in the Social
Security field offices to screen and effectuate the adjudication of
these claims. Such new position would clearly provide for minimal
processing time, increase the level of service the Agency provides and
will effectively accomplish the Agency's goals of outstanding customer
service.
The Commissioner's proposed improvement plan establishes the
creation of Federal Expert Units to assist adjudicators throughout the
country to ensure that the right decision is made at the lowest level
of adjudication. I believe the composition of these Federal Expert
Units should be Federal employees rather than contractors. In this
regard, I note that if the Agency elects to staff these units with
medical, psychological and vocational expert contractors, under recent
IRS rulings, there may be significant legal ramifications because the
proposal tends to support an employer/employee relationship.
Additionally, while the proposal does not indicate or suggest the
location of these units and/or the number and types of experts that
will comprise each unit, each adjudicator should have easy access to
these experts within the different national time zones and a
significant number of experts should be made available during all
working hours. It would appear that the cost for salaries, office space
and possibly support staff would give rise to a substantial increase in
the Agency's overall budget.
I have no comment regarding the Agency's intent to terminate the
reconsideration step in the disability adjudication process.
The Commissioner's proposal establishes a Reviewing Official to
review the State Agency's initial determination. While the Commissioner
believes that only attorneys are ideally suited to perform the
Reviewing Official functions, such as garnering requested evidence to
compile a complete case record and drafting a well-supported legally
sound decision, I totally disagree. I further disagree that by using
attorneys as Reviewing Officials, there will be improvement in the
level of confidence that applicants, members of the public,
Administrative Law Judges and other interested parties have regarding
the integrity of our first level of administrative review, especially
noting such conclusion is contrary to providing outstanding public
service. In this regard, I note that the Agency's plan to hire an
unspecified number of attorneys to serve as Federal Reviewing Officials
will be extremely costly and create a very legalistic review of claims.
While the Agency plans to thoroughly train these newly hired attorneys
in the policies and procedures of its disability determination process,
it is reasonable to believe that the cost of training and loss of
productivity for the first 12 months of operation will create an
enormous backlog of cases that will deny claimants an expeditious
review for several years in the future. Also, it is reasonable to
believe that with such a process, claimants will most likely obtain
legal representation for this review rather than being unrepresented if
the Reviewing Official is either an attorney or non-attorney. If this
does occur, claimants will have less retroactive benefits because a
portion will be paid to attorneys unnecessarily. Based on the projected
workloads and the Agency's staffing requirements for attorneys to serve
as Reviewing Officials, I submit it will require the hiring and
training of approximately 5,000 attorneys to conduct this review, as
well as obtaining office space and equipment for each of these newly
hired employees. As an alternative to using only attorneys, I note the
Agency has thousands of highly skilled non-attorney employees with
disability expertise who could conduct this review of the claims and
provide legally sound decisions. Examples of such positions are
Paralegal and Disability Analysts within OHA, Disability Examiners and
DQB Analysts, noting that many employees in these positions will be
displaced by the changes in the Agency's proposal.
Further, although not addressed in the Agency's proposal, I submit
that the Reviewing Official will need staff support, including possibly
a Junior Paralegal position, to assist in obtaining additional
evidence, drafting decisions for review and performing other similar
duties to ensure that the Reviewing Official has the ability to meet
the workload demands of the position and provide world class service to
the public he/she serves.
In staffing the Reviewing Official position with all attorneys as
contemplated by the Agency, I note that approximately 1,000 attorney
decision writers in OHA may apply for this job and if selected, it will
create a massive void of decision writers within the OHA hearing
offices to assist the Administrative Law Judges. The Agency would then
be required to hire and train new decision writers who presumably would
be paralegals because all the attorneys would have been hired as
Reviewing Officials. The decision writing position of Paralegal is
essentially a two year developmental position for an employee to be
fully productive and such action would obviously create a massive
backlog of cases at the hearing level, as well as establishing a
significant delay in processing cases far and beyond what the Agency
has experienced in the past.
Here, it is vital to note that because of a recent IRS ruling
regarding the Contract Hearing Reporter, the processing of claims in
OHA hearing offices may be significantly affected because of additional
duties that support staff will be required to perform which were
previously performed by the Contract Hearing Reporter. As such, in the
absence of a significant increase in support staff hiring in OHA
hearing offices, it appears there will be a significant reduction in
the number of dispositions for Administrative Law Judges and an
increase in backlog before the change in the disability process as
contemplated by the proposed Regulations is implemented. The Agency has
made no attempt to budget this additional workload by Federal employees
with an increase of FTEs.
I fully support continuation of preserving the claimant's right to
a de novo hearing which is conducted by the Administrative Law Judge.
However, I strongly oppose the Agency's time limits for closing the
record on the basis that while the timeline may possibly result in a
slight improvement in processing time for the Agency to meet
unrealistic goals, the overall effect will clearly deny many claimants
a full and fair opportunity to establish his/her disability within the
Agency's claim adjudicative process. I believe that the closing of the
record should be with the issuance of the Administrative Law Judge's
decision and that the Agency can meet its legislative commitment to
claimants and still fulfill a significant improvement in the processing
time of claims with reduced cost.
I totally oppose the elimination of the claimant's right to request
a review of a hearing decision by the Appeals Council and note that
such review is at no cost to the claimant and provides for fair and
equitable adjudicative relief. While I note that the Appeals Council
has been subject to considerable criticism over the past several years,
a review of this process since 2003 clearly establishes real
improvement in the processing of claims with consistent corrective
relief to approximately 30% of the claimants who request review of the
Administrative Law Judge's decisions. Such improvement has been based
on various changes at the hearing level, but most significantly,
because each employee who works at the Appeals Council has an ``I can
do'' attitude. I note that at the present time, the Appeals Council has
a manageable claim workload with less staff and that the new digital
recording of hearings and the implementation of the electronic claim
files will streamline the appeals process so that the timeline
suggested for the Decision Review Board could be met by retaining the
Appeals Council review process. With such improvements proposed at
lower levels of adjudication, the Appeals Council should be allowed to
continue in accordance with the regulatory process and I note there
should be a significant decrease in the filing of civil actions because
both the claimant and the legal profession will accept a decision by
the Appeals Council as the final adjudication of a claim. To eliminate
the Appeals Council and essentially replace it with a Decision Review
Board would create a self-serving, non-effective function and I submit
that as a result thereof, there will be a substantial increase in civil
action filings for many years to come. This will result in substantial
staffing increases of highly paid professionals to address the massive
number of court remands. As anyone can see, rather than having a
claimant friendly process, the proposal of elimination of the Appeals
Council and establishment of a Decision Review Board clearly reflects a
very legalistic, adversarial process which can be viewed as
substantially decreasing service to the American public.
In closing, I thank you for the opportunity to submit this
statement for appropriate consideration and action regarding the
Commissioner's proposed regulatory changes to the disability process
within the Agency.
Decatur, Georgia 30030
October 4, 2005
The Honorable Jim McCrery
Chairman, Subcommittee on Social Security
The Honorable Wally Herger
Chairman, Subcommittee on Human Resources
Dear Mr. Chairman McCrery and Mr. Chairman Herger:
I am writing to thank you for holding a hearing on the
Commissioner's proposed changes to the disability process, and to give
my comments from the perspective of a lawyer who has helped disabled
people seeking benefits for 28 years. I am concerned that the poor and
sick will be harmed, not helped, by the proposed changes.
The Commissioner deserves praise for considering the delays
experienced by disability claimants deplorable. She calculates that it
takes an average of 1,153 days to pursue a disability claim through all
stages of administrative appeals. I had great hope that she would
propose changes effecting a real improvement. I am disappointed that
her proposal attempts to gain improvements in the speed of the process
primarily by eliminating rights which disabled claimants now enjoy. The
plan would increase the speed of the process by limiting the time
claimants have to submit evidence, denying claimants the ability to
submit evidence which becomes available late, denying claimants the
right to ask that decisions be reopened when new evidence shows the
decision was wrong, and denying claimants the right to ask for a brief
review of a hearing decision without having to incur the costs and
other burdens of a court appeal. I urge you to carefully follow the
Commissioner's proposals to assure that the least powerful and poorest
segment of our society--the disabled--are protected from a system
producing fast but unfair decisions.
I have been helping disabled people get Social Security disability
long enough to remember that the delays in the system were not always
untenable as they are today. The delays began to increase when staff
reductions were made in the early 1980's. The delays were made worse
when the number of disability claims began to rise due to the aging of
the baby-boom generation, and the Social Security Administration did
not increase staffing level proportionately. While no one wants
wasteful government spending, even with adequate staffing the Social
Security Administration adjudicated claims in a very cost-effective
manner.
The Commissioner's proposals acknowledge that the submission of
medical evidence is one reason for delays in the process, but this
system was able to issue decisions promptly without severe restrictions
on the submission of evidence before understaffing became a fact of
life at the Administration. For years one of the major problems of my
practice was that hearing decisions would be issued before my clients
had been out of work for twelve months, so they had not met the
duration requirement in the Act yet. What changed after that? The only
significant change has been the increased workload expected of
individual employees of the Social Security Administration.
The Commissioner's proposal to eliminate a claimant's right to
submit evidence up to and at the hearing appears to be inconsistent
with the Social Security Act, which requires the Commissioner to make a
decision based upon evidence adduced at a hearing. The Commissioner's
proposal to eliminate disabled claimant's ability to ask for a decision
to be reconsidered when new evidence is obtained showing a decision was
wrong is unfair, and would not contribute significantly to the speed of
the process. It also appears at odds with Congressional intent, because
Congress intended that introducing new evidence be more difficult in
court than before the Administration, but still permitted consideration
of new evidence for good cause. The Commissioner proposes eliminating
disabled claimant's ability to have new evidence considered for any
reason. Since Congress required good cause to create a stricter
standard for a court to consider new evidence, the standard for
considering new evidence by the Administration must be more liberal
than the standard at the court level.
The Commissioner will miss an important opportunity to speed up the
process if the unproductive part of the process is not eliminated.
Cases are delayed two to four months, sometimes longer, at the
Reconsideration level, but few decisions are changed at this level.
There is no reason to keep it, and even less reason to rename it and
make it more complex. The proposal will require a much more detailed
rationale, but will not bring any additional value to the table. The
claimant will not interact with the Reviewing Official, nor will the
representative. The resources devoted to this level will be wasted, and
the claimant's decision will simply be delayed.
The Commissioner is wrong when she says the Appeals Council does
not ``intercept large numbers of claims that do not withstand Federal
district court review.'' While it may be true that the courts are
remanding more than 50% of the cases appealed there, that would be
7,574 court remands in 2004. During the same time, the Appeals Council
remanded 23,266 cases, or roughly three times the number remanded by
the courts. The Commissioner's other justification for elimination of
the Appeals Council is the length of time it takes to make a decision,
but I am currently receiving decisions from the Appeals Council in
about three months, as I did in the 1970's and 1980's. This
demonstrates that the delays at the Appeals Council are caused by
staffing levels assigned to it, not be any feature of its design.
One thing the Commissioner's proposal does not mention which will
become evidence if it goes into effect is the drastically-increased
cost caused by shifting thousands of cases from the Appeals Council
into the courts. The Appeals Council has a couple dozen judges, and
several hundred analysts, for the entire country, each working on
hundreds of cases a year. If even a small percentage of these cases
proceed into court, the Administration will need to hire more lawyers
to represent the Administration in court, and the courts will need more
judges and support staff. Many of these cases will result in the
government paying attorney's fees under the Equal Access to Justice
Act. The elimination of the Appeals Council has been tested by the
Commissioner, but she has not produced any evidence from her pilot. It
is reasonable to assume the data which has not been produced does not
support the proposed changes.
The Commissioner's proposals make it appear that disabled claimants
are responsible for all the delays. Nothing in the proposal puts any
time limits on the Administration; all the limitations are on disabled
people. But the Administration doesn't need protection from the
disabled, it's the other way around. Your office gets numerous calls
about the delays in the process. Ask them if they caused the delays
themselves. Or ask around your own family and friends; everyone is
touched by disability, including every voter in every district.
I urge the Congress to carefully watch the Commissioner's changes
to assure that the intent of the Social Security Act is not lost. Let's
not throw the baby out with the bath water. The disabled are--because
of their disabilities--the poorest segment of our society, and the
least able to shoulder the burden of making a government agency operate
efficiently. Please ask the Commissioner to strive to improve the
efficiency of the Administration rather than reducing the access
disabled claimants have to the system.
Sincerely,
Charles L. Martin
Statement of Michael Miskowiec, Charlestown, West Virginia
Dear Sir or Madam:
Thank you for the opportunity to comment on the proposed rules
entitled ``Administrative Review Process for Adjudicating Initial
Disability Claims.'' I have reviewed many of the comments which have
been submitted through the Social Security website and watched part of
the House Ways and Means Social Security Subcommittee on September 27,
2005. I will not begin these comments with praise for the effort to
streamline the disability determination process because the egregious
violations of the procedural and substantive rights of claimants for
Social Security and Supplemental Security Income disability benefits
resulting from these proposed regulations outweigh any efficiency these
regulations may bring to the disability determination process.
I have been representing claimants before the Social Security
Administration for 23 years. Although my practice is predominantly in
one Office of Hearings and Appeals (Charleston, West Virginia), I have
frequent contact with the Huntington, West Virginia, Morgantown, West
Virginia and Charlottesville, Virginia Offices of Hearings and Appeals.
Finally, I am very active in the West Virginia State Bar Committee on
Social Security. Therefore, I believe my observations of the current
disability determination process are well-founded in experience.
1. I challenge the assumptions underlying the notice of proposed
rulemaking. In the proposed rules, a new ``quick disability
determination'' process is proposed on the supposition that these
regulatory changes are necessary in order to provide quick decisions
for individuals ``who are obviously disabled'' (70 Fed. Reg. at 43594).
The Commissioner's regulations currently allow a finding of
``presumptive disability'' in SSI claims when the claimant is obviously
disabled. If the Commissioner has reached the conclusion that claims of
the obviously disabled are not being processed quickly enough, the
Commissioner should first investigate whether the presumptive
disability regulations are being adequately applied by the state
disability determination services. If not, further training and
oversight by the Commissioner is warranted.
2. The proposed regulations also work on the assumption that ``the
late submission of evidence to the Administrative Law Judge
significantly impedes their ability to issue hearing decisions in a
timelier manner.'' 70 Fed. Reg. 43596.
While I admit that it takes an unreasonable period of time to
receive a decision from an Administrative Law Judge, I do not believe
this is in any significant way the result of submission of evidence
late in the process. I believe the two major reasons for delay at the
hearing level are the increased backlogs that were generated due to the
improvident HPI experiment which divested local accountability from the
hearing offices and the failure of the Administration to hire
additional support staff for the new class of Administrative Law Judges
recently hired.
Administrative Law Judges have frequently told me that there is
inadequate staff to work up files for hearings and to draft decisions
after hearings are scheduled. The Commissioner's proposed regulations
will not resolve these problems. Therefore, the Commissioner's proposal
to allow Administrative Law Judges to reject evidence tendered less
than 20 days before the hearing will not expedite the determination
process but will prevent the Commissioner from making a disability
determination based on a complete record.
3. Proposed rule 20 C.F.R. Sec. 405.331 which allows Administrative
Law Judges to refuse to consider evidence tendered less than twenty
(20) days before the hearing should not be adopted for several reasons.
A. This proposal suggests that the testimony of the claimant and
other witnesses is not evidence. While the Commissioner has not
proposed doing away with the personal hearing before the Administrative
Law Judge, suggesting that ``evidence'' cannot be submitted twenty days
before the hearing leaves open the question whether the staff who
drafted this proposal consider claimant testimony to be ``evidence.''
In my experience, many issues first come to light at the Administrative
Law Judge hearing, such as illiteracy, untreated mental illness, and
severe pain which precludes an individual from performing work on an
eight-hour-a-day, five-day-a-week basis. Therefore, the testimony of
the claimant at a hearing is entitled to the same evidentiary
consideration as documentary medical evidence.
B. The Commissioner's proposed rule Sec. 405.331 violates the
Social Security Act. 42 U.S.C. Sec. 405(b)(1) provides that the
Commissioner must afford a claimant notice and an opportunity for a
hearing and, if a hearing is held, the decision must be based on
``evidence adduced at the hearing.'' This proposed regulation would
unlawfully restrict the record to evidence adduced no less than twenty
days before the hearing.
C. Proposed rule Sec. 405.331 ignores the fact that the
Commissioner has a duty to assist the claimant in establishing his
claim. If existing, relevant evidence is not in the record at the time
the claimant requests a hearing, it is because the disability
determination service did not or could not obtain the evidence. To
suggest that a claimant, perhaps unrepresented, is somehow in a better
position than the agency to secure this evidence on as little as twenty
five days' notice is unrealistic.
4. Proposed rule 20 C.F.R. Sec. 405.331 fails to give adequate
guidance to the Administrative Law Judge to determine whether the
claimant has demonstrated good cause for submitting evidence less than
twenty days before the hearing. Section 405.331 references Sec. 405.20
for the definition of good cause. Section 405.20 contains no examples
or discussion of circumstances that would be good cause for failure to
submit evidence.
5. The procedure for the Disability Review Board to review
Administrative Law Judge's decisions is unfair and violates the
claimant's right to due process. The Decision Review Board would be
allowed to review favorable Administrative Law Judge decisions based on
an unpublished algorithm that supposedly identifies ``error prone''
cases. Furthermore, the Disability Review Board can conduct an
``investigation,'' possibly including new medical development to rebut
the findings of the Administrative Law Judge.
On the other hand, the claimant will have no right to submit
evidence. The claimant loses his opportunity for an administrative
appeal of an unfavorable Administrative Law Judge decision. Not only
does this procedure deprive claimants of due process, but it will
impinge on the independence of Administrative Law Judges.
6. Finally, the proposed rules intend to do away with the
claimant's right to seek reopening of a final determination for new and
material evidence. The rules suggest that a claimant can file a new
application if they have new and material evidence. This suggestion
shows either ignorance of the disability determination process or a
callous misstatement of the law. If a claimant files a new application,
principles of administrative finality and res judicata would prohibit
the new decisionmaker from awarding benefits prior to the earlier
unappealed decision. Furthermore, if the claimant's insured status has
expired while the prior claim was pending, the new and material
evidence could not be related to a Social Security disability claim.
Preserving an adjudicator's discretion to reopen a final
determination based on new and material evidence is essential to the
nonadversarial nature of Social Security adjudication process.
In conclusion, it is questionable that the Commissioner's proposed
regulations will significantly improve timely claims processing. But
there is no question that the proposed regulations will make it far
less likely that the Commissioner will issue accurate decisions on
legitimate disability claims. Therefore, the proposed regulations
should not be adopted.
Respectfully submitted,
Michael Miskowiec
Joint Statement of The National Health Care for the Homeless Council
and The National Law Center on Homelessness & Poverty
Advocates for people experiencing homelessness--including the
National Health Care for the Homeless Council (www.nhchc.org) and the
National Law Center on Homelessness & Poverty (www.nlchp.org)--offer
the following statement on the proposed rule of the Social Security
Administration on the Administrative Review Process for Adjudicating
Initial Disability Claims (20 CFR Parts 404, 405, 416 and 422):
Disability precipitates and prolongs homelessness.\1\ Homeless
people suffer extraordinary and well-documented health risks associated
with poverty, overcrowding, and poor access to health care. People
without homes are mercilessly exposed to the elements, to violence, and
to communicable diseases and parasitic infestations. Circulatory,
dermatological, and musculoskeletal problems are common results of
excessive walking, standing, and sleeping sitting up. Homelessness and
malnutrition go hand-in-hand, increasing vulnerability to acute and
chronic illnesses. Stresses associated with homelessness also reduce
resistance to disease and account for the emergence of some mental
illnesses. Homeless people experience illnesses at three to six times
the rates experienced by housed people.\2\
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\1\ A ``homeless individual'' is defined in section 330(h)(5)(A) of
the Public Health Service Act as ``an individual who lacks housing
(without regard to whether the individual is a member of a family),
including an individual whose primary residence during the night is a
supervised public or private facility that provides temporary living
accommodations and an individual who is a resident in transitional
housing.'' ``. . . A recognition of the instability of an individual's
living arrangement is critical to the definition of homelessness.''
(Principles of Practice for Health Care for the Homeless grantees,
Bureau of Primary Health Care Program Assistance Letter 99-12, March 1,
1999).
\2\ Wright JD. Poor People, Poor Health: The health status of the
homeless. In: Brickner PW, Scharer LK, Conanan BA, Savarese M, Scanlan
BC. Under the Safety Net: The Health and Social Welfare of the Homeless
in the United States. New York: WW Norton & Co., 1990: 15-31.
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There is increasing awareness of the role of medical impairment and
disability in precipitating and prolonging homelessness. The fact that
people with disabilities constitute the ``chronically homeless''
population in America is extremely troubling. Any national strategy to
end and prevent homelessness must include adequate financial supports
to enable persons with disabilities which limit their capacity to earn
sufficient income through employment to secure housing and meet other
basic needs, including health care.
Disability assistance can mitigate health risks associated with
homelessness. The most important sources of assistance for Americans
with disabilities are two Federal programs administered by the Social
Security Administration (SSA)--Supplemental Security Income (SSI) and
Social Security Disability Insurance (SSDI). SSI and SSDI constitute a
safety net for persons with disabilities, providing both cash
assistance and eligibility for health insurance under Medicaid and/or
Medicare.
Persons who qualify for SSI/SSDI are more likely than others to
obtain available low-cost housing and receive priority for certain
types of housing. By increasing access to housing and health care,
disability benefits can help to mitigate health risks associated with
homelessness, facilitate recovery, improve quality of life for many
homeless people, and help them to resolve their homelessness.
The timely receipt of SSI or SSDI benefits dramatically improves
access to food and stable housing. Both the Medicaid coverage that
accompanies the receipt of SSI and the Medicare benefits that follow
receipt of SSDI improve access to comprehensive health care, including
mental health services and addiction treatment. Homeless individuals
with disabilities who receive comprehensive health services, intensive
case management, and the means to meet their subsistence needs are much
more likely to achieve stabilization, end their homelessness, and
eventually participate in gainful employment. Expedited SSI/SSDI
benefits are therefore extremely important to protect and increase
their economic security.
Declining social supports and SSI/SSDI eligibility barriers
increase risk for prolonged homelessness. Welfare reform efforts and
other benefit retractions of the past two decades have left an
increasing number of individuals and families at risk of homelessness.
Time limits and punitive consequences for noncompliance with welfare
guidelines, as well as the narrowing of eligibility criteria to exclude
substance use disorders as a basis for disability, have resulted in the
elimination of social supports for extremely vulnerable individuals and
families.
Lacking access to Federal income support and public health
insurance, single adults--by far the majority of clients at most Health
Care for the Homeless projects--are forced to rely on various State-
only programs, which have been cut back or eliminated in most states
over the past 20 years. Federal and State disability programs and
vocational rehabilitation services are similarly limited. Restricted
access to SSI/SSDI benefits is exacerbated by average waiting periods
of one-to-three years between application and eligibility
determination, and significantly higher denial rates for homeless
claimants.
People experiencing homelessness often fail to obtain SSDI or SSI
despite the high likelihood that they would meet eligibility
requirements, due to a variety of system barriers. Obstacles include
lack of access to health services, insufficient documentation of
functional impairments, remote application offices, lack of
transportation, and complex application processes. Often barriers are
intensified by the functional impairments of mental illness and the
lack of personal stability necessary to see a complex application
process through to completion. A national study of homeless assistance
providers and their clients conducted in 1996 found that only 11% of
homeless service users received SSI and 8% qualified for SSDI.\3\ Local
studies conducted since then suggest that homeless disability claimants
are denied benefits at significantly higher rates than other claimants.
---------------------------------------------------------------------------
\3\ Burt, Martha, et al. Homelessness: Programs and the People They
Serve: Summary Report--Findings of the National Survey of Homeless
Assistance Providers and Clients, HUD Technical Report. Washington, DC:
The Urban Institute, 1999: http://www.huduser.org/Publications/pdf/
home_tech/tchap-05.pdf.
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A review of disability claims submitted to the DDS in Boston from
July 2002 to September 2004 revealed that SSI/SSDI denials were 2.3
times more common than approvals for homeless individuals, while
denials for housed claimants were 1.5 times more common than
approvals.\4\ An earlier study by the Homeless Subcommittee of the
Massachusetts DDS Advisory Committee had found that 33%-37% of
unsuccessful disability claims submitted by homeless persons (over a
nine month period in 1998-99) were denied for lack of sufficient
medical evidence or failure to keep appointments for a consultative
examination.\5\
---------------------------------------------------------------------------
\4\ O'Connell JJ, Quick PD, Zevin BD, Post PA (Ed.). Documenting
Disability: Simple Strategies for Medical Providers. Nashville: Health
Care for the Homeless Clinicians' Network, National Health Care for the
Homeless Council, Inc., 2004, p. 7: http://www.nhchc.org/
DocumentingDisability.pdf.
\5\ Post, Patricia A. Casualties of Complexity: Why Eligible
Homeless People Are Not Enrolled In Medicaid. Nashville, TN: The
National Health Care for the Homeless Council, 2001, p. 61: http://
www.nhchc.org/Publications/CasualtiesofComplexity.pdf.
---------------------------------------------------------------------------
The Federal Health Care for the Homeless (HCH) program,
administered by the Health Resources and Services Administration,
awards grants to 177 health centers that provide primary care and
related services to persons experiencing homelessness. HCH providers
estimated that as many as 31%-84% of their uninsured homeless clients
served in FY 2000 had mental or physical impairments that should have
qualified them for SSI and Medicaid. Advocates attested that SSI or
SSDI benefits might have been obtained for these clients with
aggressive application assistance, patient advocacy, and case
management.\6\
---------------------------------------------------------------------------
\6\ Ibid, pp. 72-73.
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Comments on the Proposed Rule
We strongly support efforts to reduce unnecessary delays for
claimants and make disability determinations more efficient, so long as
the new procedural requirements do not unfairly prevent those meeting
the statutory definition of disability from obtaining benefits. Our
overarching concern about the proposed rule is that in attempting to
simplify the disability determination process for adjudicators, it may
make the process more complex and harder to negotiate for claimants--
especially for those who are homeless.
1. Quick Disability Determination Process
While the proposed process may expedite benefits for some
claimants, it is unlikely to alleviate existing barriers for many of
those who are homeless.
Obtaining medical evidence of impairments for homeless
claimants within the 20-day limit may be impossible. Medical records of
claimants who have seen multiple providers in several jurisdictions may
not be readily available. This requirement would be especially
difficult for persons who do not meet or equal a medical Listing, for
those with mental illness or other impairments with symptoms that are
difficult to document, and for those with learning problems secondary
to language barriers, educational limitations, or undiagnosed learning
disabilities limiting capacity to work. Criteria currently used to
approve Presumptive Disability exclude many chronically homeless people
whose severe medical impairments are acknowledged, if not yet
completely documented. We are concerned that the same might be true of
Quick Disability.
Expedited disability determination is needed for all
homeless claimants. For the reasons just cited, most homeless claimants
would continue to rely on the regular disability determination process.
Would quicker approval of more cases with well-documented claims enable
faster and more accurate decisions on homeless claims considered during
the regular disability determination process? This is one of our most
serious concerns.
We recommend that homelessness be considered as a factor
in disability determinations, at every level of consideration. All
claims filed by homeless persons should be flagged, at all levels of
consideration, to trigger expedited disability determination due to
urgency of need. This would be consistent with the President's goal of
ending chronic homelessness. The fact that all disability claims filed
by hurricane Katrina survivors are flagged for expedited consideration
demonstrates that the proposed process is feasible. Social Security, in
special circumstances, has long flagged cases; the agency has the
administrative capacity to promptly implement such a process.
2. Review of Initial Determinations by a Reviewing Official
Under the proposed process, claimants would have no
opportunity for communication with the Reviewing Official (RO). When
adjudicators have the opportunity to communicate directly with
claimants, it gives them a more complete basis for determining
disability. The explicit objective of this policy is ``to ensure to the
maximum extent possible the accuracy and consistency--and thus the
fairness--of determinations made at the front end of the process.''
However, a paper-only review, with no opportunity for communication
between the RO and the claimant will not achieve this objective.
3. Administrative Law Judge Hearing
We are concerned that the proposed process may impose a
disproportionate burden for homeless claimants and prevent
administrative law judges from making accurate decisions.
Time limit for submitting evidence before an ALJ hearing:
The proposed rule would require that evidence be submitted 20 days
before an ALJ hearing. This short timeframe would limit the ability of
advocates to take on cases for homeless claimants, which often require
significantly more time to gather evidence. The mobility of claimants
lacking residential stability, the complex medical and psychosocial
problems characteristic of homeless people, and their limited access to
health services present extraordinary challenges in gathering
sufficient medical evidence of functional impairments.
Requirement that ALJ address RO decision in a de novo
hearing: This seems to undercut the ability of an ALJ to have a de novo
hearing. Is it realistic to expect that this will lead to impartial new
decisions? The main purpose of a de novo hearing is to take a fresh
look at all evidence. Our concern is that looking at prior evidence
already judged to be insufficient might bias this process.
Reopening a prior application: Under the current rule,
SSA can reopen an SSI application for any reason within any year or
within 4 years for Title II, often resulting in retroactive benefits
which claimants can use to pay off debts, make a down-payment on an
apartment, or qualify for Title II benefits. Under the new regulations,
reopening could only be requested within six months for two situations:
(1) clerical error in computation of benefits or (2) clear error on the
face of the evidence.
Reopening a prior application can be very important for people who
clearly meet the disability standard but were unable to adequately
articulate their claim in the first application, were unable to obtain
evidence, or have an impairment that is difficult to diagnose. For many
persons with chronic conditions, including undiagnosed mental
impairments, serial applications are filed instead of appeals. Limiting
the opportunity to re-open a prior application will negatively affect
homeless claimants, many of whom have such conditions. We support
retaining the current rules on reopening a prior application.
4. Decision Review Board
Concerns about selection of claims for review: SSA
doesn't have a good track record in selecting ALJ decisions for review.
For example, the Bellmon reviews in the 1980's selected ALJs with too
high a percentage of favorable decisions. How will SSA ensure that an
``equal share'' of favorable and unfavorable decisions will be
selected? SSA said they would review decisions where errors are likely.
Would cases involving co-occurring substance use disorders or disabling
conditions for which an objective test is not available to demonstrate
disability be over-selected for review?
Due process concerns: Decisions might be made solely on
the basis of a computerized profile, rather than on an individual
claimant's characteristics. Predictive screening tools would be used to
select cases with a high likelihood of error. Who will select the
screening criteria? Proposed procedures are complicated and would
increase the bureaucratic complexity of the disability determination
process.
Our broad intent is to make Federal disability programs (SSI and
SSDI) more accessible to homeless claimants who are likely to qualify
for benefits, and to assure that all severely impaired individuals with
complex medical and social needs have access to Federal disability
benefits as quickly as possible, whether or not they are experiencing
homelessness.
As health care providers and advocates for displaced people, we are
eager to work with SSA and with State Disability Determination Services
to design and implement disability determination processes that meet
the complex medical and social needs of severely impaired people who
are homeless, and in so doing, to provide them with the financial and
health security that is essential to their resolution of homelessness.
We will be submitting full comments on the proposed rule, developed
in collaboration with other national homeless advocacy organizations,
by October 25, 2005.
Evanston, Illinois 60201
October 4, 2005
Subcommittee on Human Resources
Subcommittee on Social Security
Committee on Ways and Means
United States House of Representatives
Dear Subcommittees:
I. Introduction
This is a written submission to the Subcommittee on Human Resources
and Subcommittee on Social Security of the Committee on Ways and Means
regarding the Commissioner of Social Security's July 27, 2005, proposed
regulatory changes to the process for adjudicating disability claims
under Titles II and XVI of the Social Security Act. See 70 Fed. Reg.
43,590-624 (July 27, 2005) (Administrative Review Process for
Adjudicating Initial Disability Claims) (July 2005 NPRM). I am an
attorney in private practice who represents claimants for such
disability benefits.
II. The Commissioner Should Not Eliminate the Appeals Council For
Claimants Dissatisfied With Unfavorable ALJ Decisions
Presently, a claimant who disagrees with an ALJ's decision has a
right to seek Appeals Council review of that decision. 20 C.F.R.
Sec. 404.955 (2005). This is the last stage of administrative review
before federal court. 20 C.F.R. Sec. 422.210 (2005). The July 2005 NPRM
proposes to eliminate the Appeals Council for claimants dissatisfied
with ALJ decisions. This would be imprudent and inefficient.
A. Eliminating the Appeals Council Will Flood The District Courts With
Meritorious Cases
Under the present system, about 100,000 claimants per year request
Appeals Council review of ALJ decisions. The Appeals Council grants the
requests in about 20-25% of those cases. Each year, about 15,000
claimants whose requests for Appeals Council review have been denied
seek judicial review in the district courts under 42 U.S.C.
Sec. 405(g). Administrative Office of the U.S. Courts, Federal Judicial
Caseload Statistics (Mar. 31, 2004). Given that Appeals Council now
finds harmful error in 20,000-25,000 cases per year and corrects those
errors primarily through remand to ALJs for new hearings, eliminating
the Appeals Council will likely flood the district courts each year
with tens of thousands more meritorious civil actions. This is
imprudent and unwise. Out of a respect for the federal courts, the
Commissioner should not require claimants to use the federal courts to
correct tens of thousands of erroneous ALJ decisions currently
corrected by the Appeals Council.
The Commissioner states that the Appeals Council presently does not
``intercept[] large numbers of claims that do not withstand Federal
district court review.'' 70 Fed. Reg. 43,598 (July 27, 2005). Because
the Appeals Council intercepts 20,000-25,000 incorrect ALJ decisions
per year according to the Appeals Council, the Commissioner is mistaken
when alleging that the Appeals Council does not intercept large numbers
of claims that would not withstand judicial review.
The Commissioner should take great pride in her increasing ability
to intercept incorrect ALJ decisions before they lead to unnecessary
civil actions. Certainly, the Appeals Council does not today intercept
all claims that would lead to civil actions. There are now 15,000 civil
actions per year, about half of which result in judicial relief for the
claimant-plaintiff. Social Security Advisory Board, Disability Decision
Making: Data and Materials (Jan. 2001), at 86. Just because the Appeals
Council does not intercept about 7,000 meritorious cases per year does
not mean that it should cease intercepting 20,000-25,000 meritorious
cases per year.
B. The Commissioner Has Tested the Elimination of the Appeals Council,
But Did Not Discuss the Results
The Commissioner has already tested the effect of eliminating the
Appeals Council. But in the July 2005 NPRM, the Commissioner does not
discuss the statistical data from that testing. The Commissioner should
make public all data from her testing of the elimination of the Appeals
Council.
C. The Appeals Council is More Efficient Than the District Courts
Without the Appeals Council, the district courts will provide the
appellate function previously performed by the Appeals Council. This
will be grossly inefficient. Yearly, the Appeals Council handles with
increasing efficiency about 100,000 requests for review. Generally,
Appeals Council analysts prepare short memoranda for Appeals Council
members or Administrative Appeals Officers dispose of requests for
review with a minimum of effort and paperwork. Additionally, a claimant
or his or her representative can present fully to the Appeals Council
arguments in support of a request for review with several hours of
work. In contrast, district court litigation requires at least two
times and probably on average five times more resources than Appeals
Council review. In district court, the plaintiff must file a complaint;
the plaintiff must pay a waivable $250 filing fee; the clerk must open
a case; the Commissioner's attorney must answer; the plaintiff and the
Commissioner each must file briefs of about ten to twenty-five pages
stating their respective positions; and the district court may issue a
written decision of about five to thirty pages. And many cases require
far more resources such as when a Magistrate Judge renders a report and
recommendation to which each party may object. 28 U.S.C. Sec. 636.
If the Appeals Council is eliminated for claimants who disagree
with ALJ decisions, the entire administrative process will be shorter.
But from an objective perspective, the entire time spent will not be
less. The time spent during efficient Appeals Council proceedings will
merely be outsourced--with geometric inefficiency--to the federal
courts.
D. Eliminating the Appeals Council Will Make the Entire Process More
Adversarial
The Commissioner accepts that the administrative adjudicative
process should be non-adversarial. But because the July 2005 NPRM
substitutes non-adversarial proceedings before the Appeals Council with
adversarial proceedings in federal court, the July 2005 NPRM makes the
entire process--administrative and judicial--much more adversarial in
aggregate. This is unwise and unnecessary.
Because the Appeals Council is today the Commissioner's highest
adjudicative body and because the Appeals Council grants 20,000-25,000
requests for review each year, the Commissioner tacitly acknowledges
that that many ALJ decisions require readjudication. With an
adversarial process in federal court, the Commissioner's attorneys
would doubtless ask the district courts to affirm the denial of
benefits in large numbers of these decisions that the Appeals Council
today agrees should not stand. The Commissioner should not defend the
incorrect denial of benefits in cases the Commissioner knows are
incorrectly decided.
III. The Commissioner's Proposal is More Complex and Less Efficient
Than the Existing System
The Commissioner proposes to make the administrative process for
adjudicating disability claims more, not less, complex. While the July
2005 NPRM eliminates the largely formalistic reconsideration level of
review, it adds another layer of attorney adjudicator--the Reviewing
Official. 70 Fed. Reg. 43,595 (July 27, 2005). Under the current
system, attorneys do not adjudicate claims at the initial and
reconsideration level, but attorney ALJs render decisions at the third
stage. The July 2005 NPRM is essentially a double-ALJ system. The
Reviewing Official does everything an ALJ does except for hold a face-
to-face hearing with the claimant. Instead of creating a double-ALJ
system, the Commissioner should focus resources on a single attorney
ALJ rendering an accurate and defensible decision in each case.
Significantly, in the July 2005 NPRM, the Commissioner has not
alleged that the Reviewing Officials will make more accurate decisions
than ALJs. In fact, the Commissioner envisions an ongoing process
whereby ALJs explain to Reviewing Officials why their decisions were
incorrect. Instead of hiring hundreds or perhaps even thousands of
Reviewing Officials to literally duplicate the functions of ALJs
(except for the holding of face-to-face hearings), the Commissioner
should devote the scarce resources of the Social Security
Administration to improving ALJ adjudications after the initial denial
of benefits.
IV. The Commissioner's Proposed Closing of the Record Includes
Unworkable Time Limits
The Commissioner proposes to close the record, imposing strict time
limits on the submission of evidence to an ALJ. 70 Fed. Reg. 43,596-597
(July 27, 2005). In the Commissioner's view, a claimant can ``easily''
submit evidence to an ALJ twenty days before a hearing when the
claimant is given a forty-five-day notice via mail about the upcoming
hearing. 70 Fed. Reg. 43,597 (July 27, 2005). There is no empirical
support for this assertion. Assuming that a claimant receives a notice
three days after it is mailed and assuming that the claimant can
instantaneously submit evidence to an ALJ, a claimant essentially would
have three weeks to obtain updated medical records from all hospitals,
clinics, doctors, etc. A large number of medical sources, including
hospitals, clinics, and doctors, take far more than three weeks to
respond fully to a request for medical records.
V. Summary
The Commissioner's proposed process has significant flaws
warranting major revision and thorough testing. The Commissioner should
rethink her plan and focus on improving the current system instead of
implementing a double-ALJ system without Appeals Council review for
claimants who disagree with ALJ decisions.
Very truly yours,
Eric Schnaufer
Statement of James Shaw, National Association of Disability
Representatives, Belleville, Illinois
The National Association of Disability Representatives (NADR)
welcomes the opportunity to provide our perspective on the proposals
for reform of the Disability Determination Process. We commend both the
House Subcommittees and SSA for reaching out to hear from interested
parties during the public comment period on the Commissioner's
proposals, and we hope that our insights will prove valuable to SSA as
it drafts a final rule.
By way of background, NADR represents more than 200 professional
disability representatives, attorneys and non-attorneys alike. Our
members, who work and practice in all areas of the country, have both
small and large practices, and bring a wide variety of unique
expertise, including training in vocational rehabilitation, mental
health, medical management including nursing, and the Social Security
disability review process. We have worked with DDS staff at the local
level, and with SSA staff on broader issues, including the current
demonstration project providing fee withholding for non-attorney
representatives. It is with this broad experience and knowledge in mind
that we submit our comments regarding the proposed disability claims
process.
Positive Changes in the Commissioner's Proposals
NADR believes there are many proposals within the proposed rule
that contain significant merit, and would like to outline four which we
consider particularly valuable. First, we are encouraged by the
Commissioner's proposed ``Quick Disability Determination'' structure,
which would allow clearly disabled individuals to receive a decision
regarding their benefits within 20 days of applying. NADR believes this
concept will have two beneficial effects. First, a rapid determination
decision on the most critical cases would allow those individuals and
their families to receive help swiftly and efficiently. Second, a quick
disposition of ``clear-cut'' disability cases will allow state and SSA
officials to focus their time and resources on more complex and nuanced
cases, which may have additional medical and other questions that need
answers.
Second, we believe that SSA's continued movement toward the use of
electronic folders will certainly increase efficiency for claimants,
shortening the time needed to process and adjudicate claims. A secure,
``paperless'' system provides for easier access to claims documents, as
recent events in the Gulf Coast have demonstrated the logistical
nightmares that can result when paper-based medical and claims records
are damaged or destroyed. With the Veterans Administration having
adopted a system of electronic medical records, and private practices
beginning to follow suit, we also hope that SSA's system will be
designed to be interoperable with electronic medical records systems in
the private and public sectors, further improving the system's
efficiency and ensuring that no piece of relevant evidence will get
``lost in the cracks.''
Third, the proposed National Network of Experts has the potential
to provide a much more uniform approach to the analysis of disability
cases. The experiences NADR members have had with medical and
vocational experts strongly suggest that this process improvement will
enhance the decisionmaker's understanding of medical conditions by
utilizing experts who are familiar with those disease processes.
Presently there appears to be a dearth of specialists who will consult
or testify at hearings and, consequently, alternative professionals who
may not be as familiar with the signs and symptoms of diseases outside
their specialties are forced to testify.
We also agree with the Commissioner's proposal to allow for a
separate review from a National Network Expert should the case reach
the ALJ level. This approach will preserve consistency, but will also
allow for a second, fresh opinion of the facts of the case.
Fourth, the pre-hearing order proposal will bring additional
clarity and efficiency to the claims adjudication process. Several NADR
members utilize this process currently, and report that such a step can
reduce claims processing times by as much as 6 months. Allowing the
judge to go right to the heart of the case through a pre-hearing order
is entirely in line with the Commissioner's intent to streamline the
claims process, and we strongly support this concept.
Concerns With the Commissioner's Proposals
However, NADR members find several areas of concern with the
Commissioner's proposed rule.
SSA Claimant Deadlines
The Commissioner proposes a number of new deadlines for claimants
as they navigate the review process, including a prohibition against
submitting any new evidence later than 20 days prior to the hearing and
no new evidence more than 10 days after the hearing.
These proposed limitations against evidence present several
problems. First, many claimants wait to get representation until they
reach the ALJ level. This means that a representative may have severe
time constraints in getting medical records from institutions that do
not feel or are not equipped to render a speedy response. At the other
extreme, representatives that obtain medical records too early in the
process will probably be told that the evidence is ``dated'' and will
have to update the medical information. This places an additional
burden on the already strained and expensive healthcare system.
Second, approximately 20% of claimants lack representation when
appearing before an ALJ, and may have significant difficulty navigating
and adhering to the proposed deadlines.
Flexibility is needed for the submission of evidence to allow for
these circumstances. Without such flexibility, documents vital to a
claimant's case could be ruled inadmissible, harming the claimants
ability to get a fair and complete hearing. If the Commissioner has a
concern that representatives are utilizing various forms of delay
tactics to prolong cases (thereby enhancing their compensation), we
would propose that the Commissioner use her existing powers to sanction
representatives who abuse the process.
Some deadlines are needed in order to shorten the Disability
Determination process. However, those targeted at claimants miss the
mark, because most of the delays in the review process occur on Social
Security's end. Claimants have a powerful incentive to move through the
review process quickly because of their need for income and assistance;
however, no such incentives exist for SSA. In fact, NADR
representatives report, via their own experience, that SSA can vary
anywhere from as little as one month to more than 15 months in holding
an oral hearing, with OHA's delays varying broadly by geographic
region. In addition, once the ALJ hearing has taken place, judges have
taken as little as two weeks or as much as one and one-half years to
issue a decision after the hearing.
SSA's proposals set only one ``goal'' (not deadline) for
themselves: ALJ hearings should be scheduled (but not occur) within 90
days of the application. No punitive action is taken if said goal is
not met. The proposal lacks a deadline or ``goal'' for how quickly a
hearing should occur, or how swiftly a decision should be rendered once
the hearing has taken place.
In our opinion, SSA should revoke the deadlines placed on claimants
and, instead, create deadlines for themselves on both hearings and
decisions. Toward that end, NADR would recommend that SSA be required
to set the month of the hearing date within 60 days of receiving a
request for review. Second, the hearing should occur within 180 days of
the hearing request being filed. And third, a decision should be
rendered within 30 days of the hearing.
Submission of Favorable and Unfavorable Evidence
We understand the need for SSA to see both sides of a case in order
to make the most informed decision. However, the proposed rule
requiring a claimant or his/her representative to submit both favorable
and unfavorable evidence to the ALJ may present ethical difficulties
for attorney representatives, who may be compelled to present facts
contrary to their clients' interests. We would also note that current
language already exists prohibiting representatives from withholding
evidence; the Commissioner's proposal would exceed that standard, and
may require representatives to essentially compile two cases for every
claimant--one case proving eligibility, another case disproving
eligibility. Given the logistical and ethical difficulties associated
with this proposal, we would hope that SSA would instead make
additional personnel available to investigate cases and develop any
unfavorable evidence and arguments with respect to disability claims.
Lastly, NADR believes that eliminating a claimant's ability to
appeal from the ALJ decision to the Decision Review Board places an
unrealistic burden on the Board to know when a bad decision has been
made. The sheer volume of ALJ cases alone would likely preclude any
attempt by the Board to conduct the thorough reviews needed to
ascertain whether a particular ALJ decision merits further scrutiny. We
would therefore propose that a claimant be permitted to appeal to the
Decision Review Board.
Again, NADR thanks the Subcommittees for calling a hearing on this
important subject. We would be happy to provide your staff or SSA any
additional technical details you may require in reviewing the
Commissioner's proposals.
Statement of Jason Turner, Heritage Foundation, New York City, New York
SEVEN POINT TESTIMONY
1. The increase in the SSI population among those of working age
should be cause for alarm. The growth in SSI applications of more than
30% is due in part to institutional incentives to increase the numbers
qualified as disabled. For every welfare recipient who moves from TANF
to SSI (or SSDI), states save TANF block grant funds which are
substituted by 100% federal disability funds. Almost all states have
financed SSI advocacy within their welfare system to facilitate this
transfer.
2. The number of working-age adults who are receiving SSI
disability payments as a proportion of the population has increased
threefold since 1970. And yet there is no evidence that our population
as a whole is getting sicker.
3. Recipients of SSI almost never return to work. Nor does the
current system incorporate any obligations that recipients take
constructive vocational steps toward rehabilitation, where feasible. In
this sense, SSI is comparable to the old AFDC program, and it is having
the same debilitating long-term effects on those it is assisting. SSI
is becoming the long term welfare successor to the AFDC program.
4. Many of the lessons learned from national reform of the welfare
system can be applied to disability reform. There is a substantial
overlap in the population of SSI applicants and current welfare
recipients. (One third of non-elderly women and children who began
receiving SSI benefits were at the time of application receiving TANF).
The U.S. Congress, through its proposed TANF reauthorization
legislation, has appropriately asked states to engage larger
proportions of recipients in constructive work-related activities,
sometimes termed ``universal engagement.'' As a result, states are
increasingly looking for additional ways to engage the mildly disabled
in work related activities, and the SSI system should do the same.
5. The following lessons from welfare reform can be applied, with
certain modifications, to disability reform:
Maximizing self-reliance should be the program goal.
The longer a recipient remains inactive within the
system, the more difficult it is to significantly alter life
circumstances.
Not everybody can become fully self-sufficient, but all
should contribute to the best of their abilities consistent with their
capabilities.
Required constructive work and vocational activities are
the only way to yield substantial results. Voluntary program options
are not effective and rarely taken advantage of by recipients.
Tight connections between attendance in program
activities and cash benefits result in participants taking their
obligations seriously.
Regular reviews of self-sufficiency progress assure that
recipients are not languishing.
Appeals by recipients should be handled forthrightly and
expeditiously, and the role of administrative law judges in overturning
decisions made by the welfare agency should be sharply circumscribed.
6. Welfare reform lessons which can apply to disability reform,
including the following:
The notion that disability eligibility is a ``zero-one''
determination is outmoded. Partial work is increasingly feasible for a
majority of disability cases. Improvements in medical technology and
employer obligations to reasonable accommodation should result in
higher, not lower, participation of the disabled in the workforce.
Functional assessments which show what disability applicants and
recipients can do should replace the all-or-nothing determinations of
an inability to work.
Even those currently unable to work in the private
economy should make continuous efforts to improve their circumstances
through vocational rehabilitation, except in unusual circumstances.
Participation in ongoing constructive activity while
receiving benefits, known as ``activation,'' is the best way to assure
that those currently unable to work will be able to re-engage in the
labor force if and when their underlying medical condition improves.
As part of the law creating Ticket to Work, the Congress
withdrew the right of the Social Security Administration to obligate
participation in vocational rehabilitation as a condition of receiving
disability benefits. This agency right should be restored.
Regular and complete de novo periodic medical reviews of
current recipients should be required. At a minimum, a subset of
profiled cases which are most likely to show improvement should be
reviewed.
7. Recommendations to improve the Proposed Regulations for a New
Disability Determination Process:
Commissioner Barnhart has shown remarkable insight into
the often impenetrable area of administrative processing. Taken
together these changes constitute a significant improvement over the
status quo.
However, these regulations do not substantially alter the
excessive role and latitude enjoyed by the Administrative Law Judges
(ALJs).
The current system takes the careful medical and vocational review
made by state disability determination bureaus and upon appeal places
it in the hands of lawyers largely without medical credentials (ALJ's)
for a de novo review.
There is no good reason to provide for a de novo review by non-
specialists. Any appeal should take into consideration all the evidence
presented in making the original decision (the NPRM requires reference
to the previous determination but does not require its use in the ALJ
decision itself).
There is wide variation in the reversal rates of individual ALJ's.
Even more importantly, the high overall ALJ reversal rate means that
many individuals obtaining eligibility for SSI are likely to be only
mildly limited, and could have led a more satisfying, productive life
engaged in vocational rehabilitation leading to part-time or full-time
employment rather than full disability.
The establishment of a Decision Review Board made as part of these
proposed rules will not significantly alter the dynamic described
above. Congressional action may be required.
The back-to-work demonstrations contemplated by SSA are
constructive but they leave the decision to participate in the hands of
disability applicants and recipients.
Experience from welfare shows that despite experiments which
created substantial financial incentives to go to work, most welfare
recipients did not respond until they were required to do so as a
result of the TANF reforms. This sheds light on why there is such a low
utilization rate of the voluntary Ticket to Work program.
SSA should experiment with back-to-work efforts which are
obligatory, not just voluntary. These are far more likely to yield
results.
And new experiments should be initiated which alter the existing
financial incentives for states to push the maximum number of welfare
recipients into permanent disability status.
Joint Statement of Unaffiliated Colorado Disability Attorneys, Fort
Collins, Colorado
IF YOU DON'T HAVE TIME TO DO IT RIGHT, YOU MUST HAVE TIME TO DO IT
OVER.--ANONYMOUS
I. INTRODUCTION
As attorneys representing claimants before the Social Security
Administration, we disagree with numerous facets of the proposed
changes to the regulations. These are discussed below. They can be
summarized, however, by the above saying--``If you do not have time to
do it right, you must have time to do it over.'' The proposed changes
emphasize expediency at the expense of thoroughness. They may result in
the administration more quickly denying claimants, however they also
remove aspects of the system that encourage the accuracy of
decisionmaking. As a result of the proposed changes, wrongly denied
claimants will appeal and reapply. Hence, any potential for increased
efficiency will be lost to repetition.
These comments will proceed through the current disability process,
pointing out its flaws and commenting on the proposed regulations as
they become relevant. In this way, we hope to make it understandable to
readers not familiar with the current process.
II. THE APPLICATION
Currently, claimants apply for disability through their local
offices, the Internet, or an 800 number. We agree with the proposed
changes, which improve Internet access and electronic filing.
III. THE STATE DISABILITY DETERMINATION SERVICES
After the application is processed, the case is sent to the state
Disability Determination Services (DDS), where it is developed.
To develop the file, DDS will order records from the medical
providers listed on the claimant's application. DDS will also send out
interrogatories to the claimant. Most common among these are the work
history report, daily activities questionnaire, and personal pain
questionnaire. The claimant is to answer the questions on these forms
and return them to DDS. These forms have the potential of telling the
Administration everything that they need to know about the case. They
are often, however, filled out less than perfectly by unrepresented and
sometimes less educated claimants. Hence, the information on these
forms is only as good as the writing skills, thoroughness and candor of
the authors. DDS will also occasionally send forms to the family and
friends of the claimant.
DDS will then consult with their own medical and vocational
experts. On occasion, they will send claimants to consultive
examinations. From the attorney perspective, the reports of consultive
examiners are rarely useful. The consultive examiner meets briefly with
the claimant and appears to have limited background information. The
consultive examiner then dictates a boilerplate report that can result
in errors. For example, one attorney had a claimant swear that the
physician had leaned over and personally helped him put on his shoes
and socks however, the physician's report stated that the claimant had
no difficulties putting on his shoes and socks.
We believe the process of the consultive examination could be
improved, and support efforts to do so. The proposed national pool of
experts has the potential of improving the quality of consultive
examinations, however, it can just as easily make no significant
difference. The consultive exam process would be best improved through
examiners spending more time reviewing the records, interviewing the
claimant, and checking reports for accuracy.
IV. RECONSIDERATION
After the first DDS denial, the claimant requests Reconsideration.
The Reconsideration decision is made by the same state DDS that
initially denied the claim. For this reason, it contributes little to
the process. For some years, Colorado has been one of ten prototype
states, skipping the Reconsideration step. As Colorado attorneys, we
feel this experiment has streamlined the disability process and hence
support the permanent removal of Reconsideration from the disability
claims process.
V. THE PROPOSED ``FEDERAL REVIEWING OFFICIAL''
After denial by DDS, the proposed regulations purport to create a
body of Federal Reviewing Officials (FROs) who will further develop the
file and make another decision on the claim. This proposal would
institute an entirely new step or level in the disability claims
process. We think this additional step has the potential of creating a
bottleneck in the system without adding any significant benefits to the
medical-vocational evaluation.
Apparently, some 1,500-3,000 attorneys or other legally trained
officials would be hired nationally as FROs. If this program is
instituted, we predict that as claims increase and cases pile-up, there
will be enormous pressure on the FROs to make decisions quickly. The
individual FROs' performances will likely be judged in part by the
number of cases they are able to push through the system. Hence,
evidentiary development will be discouraged and quick denials will be
encouraged. The end result will be that most FRO decisions are
meaningless rubberstamps of the original DDS denial.
Further, it is simply a fact that most Social Security disability
claims ultimately turn on subjective complaints and issues of
credibility. Hence, any official who does not have true fact-finding
powers will not be able to resolve the ultimate issues in the case. As
a result, almost every case will go to hearing anyway.
Finally, this sort of thing has been done before. In the 1990s,
Colorado participated in an experimental level in the process known as
the Adjudicating Officer (AO). http://www.ssa.gov/OP_Home/cfr20/404/
404-0943.htm. It was part of the
New Government programs instituted during the Clinton administration.
http://www.hhs.gov/news/press/pre1995pres/940907a.txt. Those attorneys
who experienced the program observed that it began strongly with the
Adjudicating Officers actually conducting mini-hearings. However, as
time went on, the role of the AO became nothing more than a person
making a phone call to see if there was any new evidence. Overall, the
disability attorneys felt that the AOs did not fully understand the law
and avoided most determinations of fact. Further, after reviewing the
record and perhaps meeting with the claimant, the AOs prepared summary
decisions. Some attorneys felt so strongly that these summaries were
misleading and inaccurate, they refused to sign them and prepared their
own statements. We feel that the proposed Federal Reviewing Official is
similar to the failed Adjudicating Officer and would not succeed for
similar reasons.
In conclusion, rather than creating an entirely new step or level
in the disability claims process, we feel that administrative and
financial efficiency would be better served by increasing the number of
staff attorneys and Administrative Law Judges at the existing Office of
Hearings and Appeals. Currently, the Denver OHA employs only three
staff attorneys for review of claims. We think this number should be
greatly increased. Some of these additional OHA staff attorneys might
even be assigned to specific judges, giving busy ALJs opportunities to
delegate appropriate tasks.
The best place for the resolution of legal and factual issues is at
a hearing, in front of a judge. Adding yet another step in the
disability claims process will not change this simple fact.
VI. WAITING FOR THE HEARING
When a hearing is requested, the file is transferred to the
regional Office of Hearings and Appeals. Within about six weeks, a
letter is sent to the claimant explaining that the file is received and
the claimant will be notified at least 20 days before a hearing date.
Many claimants interpret this letter to mean that they will go to
hearing very soon. Actually, the Denver Office of Hearings and Appeals
is running about 14 months from request to hearing.
During this long wait, many claimants suffer extreme financial and
emotional hardships. The lucky ones have savings accounts, working
spouses, health insurance . . . etc. Many do not. Some claimants are
able to continue their health insurance into the period of their
disability by paying expensive COBRA premiums. Others cannot afford
this or never had health insurance at all. Many claimants come to
Social Security after losing coverage in the Colorado worker's
compensation system.
As representatives, we are familiar with the charitable resources
available in our communities. We regularly refer clients to community
medical clinics, community mental health clinics, Colorado Indigent
Care Program, Aid to Needy and Disabled, food stamps, county housing
authorities, Low Income Energy Assistance Program, privately run soup
kitchens and shelters . . . etc. A poor system affects the entire
community.
We representatives are often asked by our frustrated clients, ``how
can this happen?'' They say, ``I paid my taxes, I worked hard in my
life. Didn't I do that, so that I could have help now, when I need
it?'' We have no answers for them. We can only say that there is
currently a gap in the social safety net that no one seems to
acknowledge, until they fall into it themselves.
Due to finances, during the wait for hearing many claimants neglect
medical care. This failure to seek medical care can be fatal to their
disability case, as it creates a gap in medical evidence that can be
perceived by an Administrative Law Judge as a lack of credibility.
The lack of medical care also creates a situation where the
claimant no longer has a treating physician with whom they have history
and rapport. Many claimants must go to busy community medical clinics.
The lucky ones are able to see the same doctor on several occasions.
The unlucky ones see various professionals, so that no single
professional is available to attest to the claimant's functional
capabilities. Since, the actual evaluation of disability, relies
heavily on the opinion of a treating physician, not having a treating
physician is detrimental to accurate evaluation of the case.
In general, lack of medical treatment is a difficult problem that
cannot be solved by a few regulation changes. Administrative Law Judges
cannot make accurate disability decisions without quality medical
opinions upon which to base them.
VII. EVIDENCE AND THE HEARING--THE PROPOSED ``GOOD CAUSE'' STANDARD
More than a year after filing the Request for Hearing, the hearing
is finally scheduled. Currently, the representative gets about 30 days
notice prior to this hearing. After more than a year of waiting,
medical records need to be updated. Under the Health Insurance
Portability and Accountability Act (HIPAA), providers have 30 days to
provide these records. If mailing time is tacked on either side, it may
take as much as 40 days to update medical records for a hearing that is
less than 30 days away.
It is difficult to update medical records in advance for several
reasons. First, it costs dollars every time the record is updated
because the providers charge for the copies. Second, the claimant/
representative does not know when the hearing will be scheduled. It may
be scheduled in month 12, however it may also be scheduled in month 15.
It is in the interest of accuracy to have the most updated records. A
great deal of relevant information can be produced in a single medical
visit.
The too often result of the short notice of hearing, is that the
ALJ receives medical evidence less than a week before the hearing,
sometimes immediately before the hearing. ALJs find this understandably
frustrating. We feel that more advanced notice of hearings would do
much to cure this problem.
However, the proposed regulations ineffectively attempt to cure
this problem by simply making a rule. The proposed rule is that barring
``good cause,'' no medical records will be accepted after 20 days prior
to hearing. The proposed changes do provide that the hearing will be
scheduled 45 days in advance, however, 45 days is not sufficient time.
A hearing that is scheduled 45 days prior leaves the representative
only 25 days to update the record. As explained above, under the
requirements of HIPAA it may take at least 40 days to update the
record--and that is only if the providers are compliant. As
representatives, we often have to follow-up with delinquent medical
providers.
Hence, we feel that if the proposed 20-day rule is instituted, the
hearing should be scheduled at least 60 days in advance. In the last
year, one ALJ at the Denver Office of Hearings and Appeals has
scheduled hearings many months in advance. Most of us have found this
experiment extremely positive. Instituting early scheduling would allow
the representative, the claimant, and the medical care providers to be
more prepared for the hearing, thereby relieving pressure on the ALJs
and avoiding continuances.
The proposed regulations do provide that the hearing should be
scheduled within 90 days of the Request for Hearing. If this early
scheduling actually occurred, it would go a long way to solve the above
discussed issues.
Still, regardless of how early the hearing is scheduled, as
disability attorneys, we generally oppose the proposed 20-day rule. We
oppose it because we know from experience that despite all best efforts
and intentions, there will still be medical evidence obtained late. No
matter what precautions are taken, and what rules or guidelines are
instituted, it will still happen. This might be due to busy doctors
procrastinating interrogatory questionnaires, claimants who do not do
what they have been asked to do until the hearing is imminent,
uncooperative medical facilities, evidence not learned about until
later, and even mistakes or oversights on the part of representatives.
The proposed regulations purport to deal with these inevitable late
submissions through a ``good cause'' standard. Under the proposed
regulations, determining ``good cause'' would be left entirely to the
discretion of the Administrative Law Judge. The proposed regulations do
not specifically provide for a review of this determination. If this
rule is instituted, we feel that at the very least, there should be a
review of the ALJ's decision. This might be done in much the same way
the proposed regulations provide for a review of dismissals. ALJs are
only human and susceptible to making wrong decisions and/or decisions
based on factors other than ``good cause.'' A decision whether to allow
relevant evidence has the potential of affecting the claimant and his
family for years to come. There should be recourse to an appellate
body.
As relevant evidence is denied for good reasons or bad ones, the
inevitable result will be representatives continuously taking the issue
of ``good cause'' to the Federal District Courts. Eventually, one or
two District Courts might develop a standard of reviewing this
determination, and a whole new body of law could spring up around it.
All of this potential litigation is in the name of expediency. All of
this potential litigation is to avoid requiring ALJs to read medical
evidence before a hearing.
Appealing and/or denied claimants will also reapply, further
congesting the system. It would be very unfortunate if many of these
new applications and appeals could have been avoided by allowing a few
pages of evidence, just prior to the hearing. As disability attorneys,
we believe that efficiency is best served by doing everything possible
to decide cases accurately the first time. Excluding relevant
evidence--even for the best of reasons--would erode this purpose.
Finally, the ``good cause'' standard will take up valuable hearing
time. Hearings are usually scheduled 45-90 minutes apart. We have seen
them scheduled as little as 30 minutes apart. The time for the claimant
to present his or her case is already limited. We believe the proposed
``good cause'' standard will result in taking up 10-15 minutes in many
disability hearings, to discuss whether to allow relevant evidence.
This scenario is unfair to claimants who have waited more than a year
for their day in court.
VIII. REOPENING
Currently, a claimant who has applied for disability multiple times
can request that prior DDS and ALJ decisions be reopened in a
subsequent claim. Whether to reopen a prior ALJ's decision is within
the discretion of the new ALJ. Although reopenings are often requested,
they are not frequently granted. The proposed regulations purport to
eliminate this provision. We disagree.
Elimination of this provision would most strongly affect the
uneducated, mentally impaired and/or unrepresented claimants. For
example, a mentally impaired individual with an elementary education
might apply for disability several times before he realizes that he
should request a hearing and obtain representation. In the meantime,
his insured status for Social Security Disability Insurance (SSDI)
benefits has run out. The current regulations allow an ALJ to correct
this unfortunate event by reopening one or more prior filings. Removing
the reopening provisions would eliminate this option to the ALJ. As a
result, the above hypothetical individual and others like him would
permanently lose their SSDI benefits.\1\
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\1\ If the claimant has few financial assets and does not live with
relatives who do, he might still be eligible for Supplemental Security
Income (SSI).
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IX. THE APPEALS COUNCIL AND THE PROPOSED DECISION REVIEW BOARD
Currently, Claimants who are denied at the hearing level ask an
administrative agency known as the Appeals Council to review their
cases. The Appeals Council looks at the record, the ALJ decision, and
any post-hearing evidence submitted. If the Appeals Council does not
``review'' the case, the ALJ decision becomes the final agency
decision. If the Appeals Council reviews the case, the body can affirm,
overturn or remand an ALJ decision. If the Appeals Council remands an
ALJ decision, it is usually accompanied by specific instructions to the
ALJ. It is only after the Appeals Council decision that a Claimant can
appeal to Federal District Court.
Currently, it takes an average of 8-12 months for the Appeals
Council to process a case. This amount of time can be increased by a
variety of factors including requests for the copies of the record. Due
to this length of time many representatives advise disabled claimants
to reapply for benefits. Hence, the claimant will now have two cases--
one at the Appeals Council and another moving through the application
process a second time. The principle of res judicata applies to the
agency's final decision on the first case, with the exception of the
previously discussed reopening provisions. If the Appeals Council
remands the case to the ALJ, the two cases will ultimately be
consolidated at the Office of Hearings and Appeals.
The proposed rules purport to eliminate the Appeals Council and
replace it with a Decision Review Board. This body would review the
decisions of ALJs on its own motion rather than the claimant's. Cases
would be chosen for review based on a variety of statistical factors.
As such, the proposed Decision Review Board is not so much an appellate
body as a quality control committee. It conducts a statistical type
review of the ALJ decisions in order to provide data and feedback to
the Administration. We think such a committee is a good idea and might
be incorporated into the existing Appeals Council. However, it is not a
true appellate body that in any way replaces the existing Appeals
Council.
Although the Appeals Council is backlogged it serves the purpose of
giving the claimant and the Administration one last chance to correct
legal and factual errors. This last look can avoid needless filings in
Federal District Court. Problems solved by the Appeals Council can be
as simple as misunderstandings between the claimant and the ALJ. For
example, an ALJ once cited a claimant's hunting trip as being one
reason the claimant was not disabled. The hunting trip, however, had
actually turned into a situation requiring emergency personnel due to
the claimant's impairments. This material misunderstanding was caught
at the Appeals Council level. The claimant was ultimately approved for
disability benefits without enlisting the time and energy of the
Federal District Court. The proposed Decision Review Board could not
serve this purpose, because the review would not be claimant initiated
but internally initiated.
The existing Appeals Council also serves the purpose of checking
the power of the ALJ. Like anything else in life, the opinions and life
experiences of ALJs differ. Some are more conservative, others more
liberal. This can affect the way that a claimant is treated in a
hearing. The Appeals Council provides an opportunity for the agency to
correct these potential problems internally.
Finally, the proposed regulations purport to close the record after
the ALJ decision.\2\ We disagree. As discussed in Sec. VII above, we
are of the opinion, that so long as there is evidence relevant to the
claimant's work capabilities, and the decision is still pending, the
Administration should accept and examine that evidence. Allowing
relevant evidence now rather than later prevents needless repetition.
For example, a claimant may have an unexplained cluster of symptoms,
which results in a hearing denial. However, after the hearing denial, a
neurologist diagnoses her with Multiple Sclerosis using objective
medical criteria. If the record were closed at the ALJ decision, the
claimant would not have the opportunity to present this evidence to the
reviewing bodies. She would have no choice but to start another
application. When this proposed closing of the record is combined with
elimination of the reopening provisions, a very unjust scenario
results--a claimant who was legitimately disabled has to reapply and is
ultimately denied years of benefits. This injustice was done in order
to avoid forcing the reviewing officer to read a few pages of medical
evidence.
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\2\ Proposed Sec. 405.373(a) provides that the ALJ can consider new
evidence provided within 10 days of claimant's receipt of the denial,
if there is ``an unforeseen and material change'' in the claimant's
condition, or the ALJ had held the record open for a prescribed period
of time, and claimant has good cause for missing that deadline. If the
Decision Review Board elects to review the case, Sec. 405.373(b)
provides that the board can consider new evidence if the showings
required in paragraph (a) are made. In other words, evidence after the
decision is allowed only in very limited circumstances.
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In general, we are of the opinion that all these costly, and likely
ineffective, changes to the fundamental structure of the system can be
avoided, by hiring more judges and clerks. Speeding up the Appeals
Council should be as simple as providing the staff necessary to review
the large number of files presented to it. Removing a true appellate
body from the Administration will result only in many of these same
cases being filed in Federal District Court.
X. CONCLUSION
In summary, many of the proposed changes to the regulations simply
miss the boat. They do not actually address the inefficiencies of the
process, and the real problems of the system. Instead they seem an
effort to deny as many claimants as possible as quickly as possible.
The inevitable long-term result of this will be repetitive applications
and appeals of denied claimants. This repetition will not increase
efficiency, but further congest the system.
We think that administrative and financial efficiency of the Social
Security disability system can be best served by the following
principles:
1. Improve technology through use of the Internet, electronic
filing of paperwork, and electronic files.
2. Improve the quality of health information available to the ALJ.
(This issue is impacted by the health care system at large.)
3. Get the claimant in front of the ALJ as quickly as possible, as
the ALJ is the official who has the authority to make necessary
determinations of credibility, fact and law.
4. Maintain an appellate body within the Social Security
Administration, so that legal and factual errors in hearing decisions
can be assessed prior to U.S. District Court filings.
5. More fully staff and fund the existing steps of the disability
claims process to better handle the claims of the aging population.
Finally, there are many individuals with significant health
restrictions who are willing but unable to find work. Some of these
individuals may not meet the strict Social Security definition of
disabled, however they are forced to apply for benefits regardless.
Their applications are made necessary because many employers will not
hire individuals with prior work injuries and/or restrictions.
Employers apparently take this action, because they are concerned that
the individual will again become injured. Some disability applications
might be avoided by better encouraging employers to hire individuals
with prior injuries and restrictions. Tax incentives in this area might
make up for the perceived financial risk to employers and do much to
delay the upcoming burden on the Social Security program.
As disability attorneys, we will be happy to answer any questions
or concerns regarding these comments or the disability process in
general.
Ann J. Atkinson
William E. Benjamin, Esq.
Dan R. Cohen, Esq.
Christina Ebner, Esq.
Henry J. Feldman, Esq.
Theodore B. Peak, Esq.
The Joffe Law Firm
Kathleen Robinson, Esq.
Cynthia Rixey Scott, Esq.
Tracy Stewart, Esq.
Nancy L. Wallace