[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 
page of the Committee website and complete the informational forms. 
From the Committee homepage, http://waysandmeans.house.gov, select 
``109th Congress'' from the menu entitled, ``Hearing Archives'' (http:/
/waysandmeans.house.gov/Hearings.asp?congress=16). Select the hearing 
for which you would like to submit, and click on the link entitled, 
``Click here to provide a submission for the record.'' Once you have 
followed the online instructions, completing all informational forms 
and clicking ``submit'' on the final page, an email will be sent to the 
address which you supply confirming your interest in providing a 
submission for the record. You MUST REPLY to the email and ATTACH your 
submission as a Word or WordPerfect document, in compliance with the 
formatting requirements listed below, by close of business Tuesday, 
October 4, 2005. Finally, please note that due to the change in House 
mail policy, the U.S. Capitol Police will refuse sealed-package 
deliveries to all House Office Buildings. For questions, or if you 
encounter technical problems, please call (202) 225-1721.
      

FORMATTING REQUIREMENTS:

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

                                 

                       * * * 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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \1\ 5 U.S.C. Sec. 3105.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    \5\ See discussion infra text at n. 26.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\ Proposed 20 C.F.R. Sec. 405.405.
    \7\ Proposed 20 C.F.R. Sec. 405.405(a).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \9\ 70 Fed. Reg. 43598 (July 27, 2005).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \18\ 70 Fed. Reg. 43602 (July 27, 2005).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \54\ 70 Fed. Reg. 43596, 43602 (July 27, 2005).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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:
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \60\ 42 U.S.C. Sec. 405(b)(1) (emphasis added).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \61\ 42 U.S.C. Sec. Sec. 1383(c)(1)(A).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \62\ Proposed 20 C.F.R. Sec. 405.1(b).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \66\ 5 U.S.C. Sec. 554(d)(2).
    \67\ Columbia Research Corporation v. Schaffer, 256 F.2d 677, 680 
(2nd Cir. 1958).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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

                                 
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