[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
SOCIAL SECURITY DISABILITY BACKLOGS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SOCIAL SECURITY
of the
COMMITTEE ON WAYS AND MEANS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 14, 2007
__________
Serial No. 110-13
__________
Printed for the use of the Committee on Ways and Means
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COMMITTEE ON WAYS AND MEANS
CHARLES B. RANGEL, New York, Chairman
FORTNEY PETE STARK, California JIM MCCRERY, Louisiana
SANDER M. LEVIN, Michigan WALLY HERGER, California
JIM MCDERMOTT, Washington DAVE CAMP, Michigan
JOHN LEWIS, Georgia JIM RAMSTAD, Minnesota
RICHARD E. NEAL, Massachusetts SAM JOHNSON, Texas
MICHAEL R. MCNULTY, New York PHIL ENGLISH, Pennsylvania
JOHN S. TANNER, Tennessee JERRY WELLER, Illinois
XAVIER BECERRA, California KENNY HULSHOF, Missouri
LLOYD DOGGETT, Texas RON LEWIS, Kentucky
EARL POMEROY, North Dakota KEVIN BRADY, Texas
STEPHANIE TUBBS JONES, Ohio THOMAS M. REYNOLDS, New York
MIKE THOMPSON, California PAUL RYAN, Wisconsin
JOHN B. LARSON, Connecticut ERIC CANTOR, Virginia
RAHM EMANUEL, Illinois JOHN LINDER, Georgia
EARL BLUMENAUER, Oregon DEVIN NUNES, California
RON KIND, Wisconsin PAT TIBERI, Ohio
BILL PASCRELL, JR., New Jersey JON PORTER, Nevada
SHELLEY BERKLEY, Nevada
JOSEPH CROWLEY, New York
CHRIS VAN HOLLEN, Maryland
KENDRICK MEEK, Florida
ALLYSON Y. SCHWARTZ, Pennsylvania
ARTUR DAVIS, Alabama
Janice Mays, Chief Counsel and Staff Director
Brett Loper, Minority Staff Director
______
SUBCOMMITTEE ON SOCIAL SECURITY
MICHAEL R. MCNULTY, New York, Chairman
SANDER M. LEVIN, Michigan SAM JOHNSON, Texas
EARL POMEROY, North Dakota RON LEWIS, Kentucky
ALLYSON Y. SCHWARTZ, Pennsylvania KEVIN BRADY, Texas
ARTUR DAVIS, Alabama PAUL RYAN, Wisconsin
XAVIER BECERRA, California DEVIN NUNES, California
LLOYD DOGGETT, Texas
STEPHANIE TUBBS JONES, Ohio
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
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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 February 7, 2007, announcing the hearing............. 2
WITNESSES
The Honorable Michael J. Astrue, Commissioner, Social Security
Administration................................................. 6
______
Sylvester J. Schieber, Chairman, Social Security Advisory Board.. 27
Nancy Shor, Executive Director, National Organization of Social
Security Claimants' Representatives, Englewood Cliffs, New
Jersey......................................................... 33
Rick Warsinskey, President, National Council of Social Security
Management Associations, Inc., Cleveland, Ohio................. 43
James Fell, President, Federal Managers Association
Chapter 275, Alexandria, Virginia.............................. 48
SUBMISSIONS FOR THE RECORD
Allsup, James F., Belleville, IL, statement...................... 85
Association of Administrative Law Judges, statement.............. 87
National Association of Disability Examiners, Oklahoma City, OK,
statement...................................................... 90
National Council on Disability, statement........................ 92
Social Security Disability Coalition, Rochester, NY, statement... 98
Steinberg, Michael A., Tampa, FL, statement...................... 110
Walkenhorst, Walter, Jenkintown, PA, statement................... 111
SOCIAL SECURITY DISABILITY BACKLOGS
----------
WEDNESDAY, FEBRUARY 14, 2007
U.S. House of Representatives,
Committee on Ways and Means,
Subcommittee on Social Security,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:01 p.m., in
room B-318, Rayburn House Office Building, the Honorable
Michael McNulty (Chairman of the Subcommittee) presiding.
[The advisory announcing the hearing follows:]
ADVISORY FROM THE COMMITTEE ON WAYS AND MEANS
SUBCOMMITTEE ON SOCIAL SECURITY
CONTACT: (202) 225-9263
FOR IMMEDIATE RELEASE
February 07, 2007
SS-1
Subcommittee on Social Security
Chairman McNulty Announces a Hearing on
Social Security Disability Backlogs
Congressman Michael R. McNulty (D-NY), Chairman, Subcommittee on
Social Security of the Committee on Ways and Means, today announced
that the Subcommittee will hold a hearing on the Social Security
Administration (SSA) disability claims backlogs. The hearing will take
place on Wednesday, February 14, 2007, in room B-318 Rayburn House
Office Building, beginning at 2:00 p.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 Subcommittee and
for inclusion in the printed record of the hearing.
FOCUS OF THE HEARING:
The workload of SSA has grown significantly in recent years due to
the aging of the population and new workloads such as those resulting
from the Medicare Modernization Act (P.L. 108-173) and the Intelligence
Reform and Terrorism Prevention Act (P.L. 108-458). However, due to
funding constraints affecting SSA's administrative budget, these
increasing workloads are not being effectively addressed. The agency
has done much to employ scarce resources efficiently, re-engineering
work processes and increasing overall productivity by more than 13
percent from 2001 to 2006. Even with these improvements, however, there
is a growing concern about the effect of staffing declines and other
resource shortages on service delivery to the American public.
Nowhere is the situation more grave than in the processing of
applications for disability benefits. Due to large and increasing
backlogs, severely disabled individuals can wait years to get the
benefits they need for basic economic survival. At the end of fiscal
year 2006, about 1.3 million people were awaiting a decision on their
initial claim or appeal for Social Security or Supplemental Security
Income (SSI) disability benefits.
The President's FY 2008 budget request would provide a modest
funding increase. However, given rising fixed costs and other factors,
this would not be sufficient to maintain current staffing levels, which
had already declined by 8 percent from FY 2006 to FY 2007. Thus, the
disability backlog is projected to increase under the President's FY
2008 budget to almost 1.4 million cases.
This hearing will focus on the disability claims backlog, including
how the delays impact individuals who have applied for disability
benefits; the effect on other critical agency workloads, including
program integrity activities; steps SSA has taken to date to resolve
the backlogs; and options for addressing the problem.
*** FORCED TO PREVENT BAD BREAK *** deg.
In announcing the hearing, Chairman McNulty said, ``The current
delays in receiving disability benefits are completely unacceptable.
Americans who have worked hard and paid into the system should not have
to wait for years to get benefits they have earned and desperately
need. SSA must have sufficient resources to give the American people
the service they deserve.''
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Chairman MCNULTY. Our hearing today focuses on one of the
most critical challenges facing the Social Security
Administration (SSA), the huge backlogs and waiting times for
individuals who have applied for disability benefits.
I chose to hold our first hearing on this issue, because I
see it as a situation we urgently need to address. It is
frankly unacceptable that people who are seriously disabled
must often wait two, three, sometimes as many as 4 years to get
the benefits to which they are entitled and that they were
promised when they paid into the system. It is the number one
problem I hear about from my constituents, and I believe most
Members of Congress could say the same.
Currently, more than a million people are awaiting a
decision on their disability claim. The SSA has made attempts
to address this problem through re-engineering efforts,
including the new Disability Service Improvement (DSI) Process
and the electronic disability folder. The Agency has also made
significant strides in overall productivity, and is staffed
with hard-working employees who do their best to provide good
service to the public, and I commend them for their dedication.
However, SSA's overall workloads have significantly
increased in recent years due to the aging of the population
and new workloads resulting from Medicare and Homeland Security
legislation. Funding for SSA's administrative budget has not
been sufficient to address these increased workloads. For the
last several years, the SSA's appropriation has been less than
the amount requested by the President. Staffing at the Agency
is declining, and the disability claims backlogs have only
gotten worse.
This hearing will focus on the size of the backlogs, how
the delays affect disability claimants, the impact on other
critical Agency workloads, including program integrity
activities such as continuing disability reviews (CDRs), and,
of course, options for addressing the problem.
I am very happy that we have today with us the new
Commissioner of Social Security, the Honorable Michael Astrue,
who took office just 2 days ago. I have already thanked the
commissioner. He took his oath of office on Monday. We have him
at a hearing on Wednesday, but we're grateful, Commissioner,
that you came yourself, and we're deeply appreciative of that.
I thank you for taking on the task of administering this
Agency, whose operations are so critically important to the
American people.
I was particularly pleased to hear you say at your
confirmation hearing that addressing the problem of disability
backlog was one of your main interests in returning to SSA. You
promised Senator Baucus that you would report back to him on
this issue in April, and we would be very interested in hearing
your findings as well.
Finally, I'd like to acknowledge the outstanding work of
your predecessor, Commissioner Jo Anne Barnhart, who left
office last month. The Committee had a strong working
relationship with Commissioner Barnhart, and I hope that we
will have an equally productive relationship with you,
Commissioner Astrue, as we work to address the disability
claims backlog and other challenges facing the Agency.
I would now like to turn the microphone over to one of my
heroes in Congress and in life, the Ranking Member, the
Honorable Sam Johnson.
Mr. JOHNSON. Thank you. I appreciate that. I thank you for
holding this hearing. I want to tell you it's an honor to work
with you as well.
This hearing is not about numbers. It's about real people
in need of help and answers. Over the last 12 years, this
Subcommittee has held many hearings on the challenges facing
Social Security's disability. The good news is that changes,
I'm told, are being made to help reduce processing time and
ensure the right decision is being made as early as possible.
These include the implementation of electronic claims folder
and the disability determination process, changes that are now
being made in the Boston area.
Unfortunately, these changes aren't going to be fully
implemented for five years. That's kind of long. Those that are
waiting years to receive a decision on their claim need help
now. I hope this testimony that you give us today will address
that issue.
Finding adequate resources to fund the Agency is not going
to be easy. The fiscal challenges facing our Nation are
daunting. Without reform--I repeat that--without reform, the
growing cost of Social Security, Medicare, and Medicaid will
consume the budget in coming decades.
Our new Commissioner of Social Security is going to need to
justify every dollar appropriated for Social Security is going
to be spent wisely. Beyond resources, we must also find ways to
make the Social Security programs easier to administer.
Members of this Subcommittee have repeatedly asked Agency
witnesses to send us legislation that you need to improve
Agency operations and reduce unnecessary complexities, yet none
has been received. Repeat that. None. We can help you if you'll
let us.
With the disability program in deficit, this area is in
need of serious review by Social Security and this
Subcommittee. Finding answers to these complex issues is not
going to be easy, but it will be done, and must be.
To that end, I look forward to working with Chairman
McNulty and the Subcommittee colleagues, and along with
Commissioner Astrue. Welcome, Mr. Commissioner, on your third
day of work, I believe. I yield back.
Chairman MCNULTY. I thank the Ranking Member for his
comments and for his leadership. Any other Members who wish to
submit opening statements in writing may do so, and they will
be included as a part of the record.
With that, we'll get right down to business. I want to
introduce the newly confirmed Commissioner of the SSA, the
Honorable Michael Astrue. Again, thank you, Commissioner, for
coming here on your third day. I know that it would have been
entirely possible and understandable for you to send someone
else, and we do appreciate the fact that you came yourself.
You may proceed. I know you know the routine here. Your
entire statement will appear in the record. We ask that you try
to keep your comments to about 5 minutes or so. I'm not going
to enforce any tight time limit on you, because we do want to
hear what you have to say. Then that gives a little bit more
time for the Members to ask questions. So, you may proceed.
STATEMENT OF MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION
Mr. POMEROY. Commissioner, I think your microphone isn't
on.
Mr. ASTRUE. Okay. Thank you. Let me start again.
I'm very pleased to be here today to discuss the impact of
last year's budget allocations on Social Security
beneficiaries. Let me say at the outset that we appreciate your
unflagging support for SSA, and I'm looking forward to working
with the Subcommittee during my term.
As I said at my confirmation hearing, my goal is to be a
good steward of the program for both current and future
beneficiaries. For current beneficiaries, this role means
setting high standards for management, performance, service,
and program integrity, and committing to meeting those
standards. It also means being painstaking in making sure that
the Agency adheres to the law and best-demonstrated practices
of accounting, efficiency, and compassion.
For future beneficiaries, good stewardship means engaging
with others in the Agency and the Executive branch, with
Members of the Subcommittee and other Members of Congress, as
well as outside groups and experts, to provide unbiased data
about all the options for safeguarding the financial stability
of the program. It is part of our obligation to the American
public that we must continue the best possible support for
older Americans, people with disabilities, and their families
in the coming decades.
SSA's mission is to deliver high-quality service to every
claimant, beneficiary, and the American taxpayer. In my written
statement, I detailed the magnitude of that workload. Our
traditional workloads are to make Social Security and
Supplemental Security Income (SSI) payments, process benefit
claims, and conduct hearings on appeals of SSA decisions. We
also issue new and replacement Social Security cards, process
earnings records, issue Social Security statements, and handle
transactions through the 800 number service centers.
At the same time, as the Chairman pointed out, other
workloads are growing not only due to demographics, but also
because many pieces of new legislation requiring SSA to
undertake additional work.
For example, the new Medicare prescription drug program
required that, among other responsibilities, SSA take
applications and make eligibility determinations for
individuals with limited income and resources who might qualify
for ``extra help'' with prescription drug coverage.
In the last 5 years, reductions to the President's budget
requests have totaled $720 million, equivalent to approximately
8,000 workyears. These numbers are not just statistics. They
represent a diminished level of service.
I share your concern about the impact this reduction has
had on applicants who file for disability benefits. If I could
briefly address Mr. Johnson's comments.
I've already said internally and externally that the roll-
out plan for DSI is too slow, and that what we're going to do
is treat it as a demonstration project, look at it intensely,
try to figure out what makes sense to roll out nationally, what
doesn't make sense to roll out nationally, what makes sense to
modify, and try to do that as quickly as possible. I am
mindful, as the Chairman mentioned, that I have a pending
deadline with Chairman Baucus on the Senate Finance Committee
for an update on my thinking on those matters.
One of the things that is difficult is that the
Commissioner of Social Security has very little discretion
relating to most of the Agency's expenditures. Almost
everything that the Agency does is mandated by Congress. So,
unlike a regulatory Agency that can prioritize enforcement, or
a grant-making Agency that can impose a percentage cut across
the board, the Commissioner does not have that flexibility.
For example, in recent years, SSA has concentrated
resources on handling initial claims. Consequently, the number
of hearings pending, as well as processing times at the
hearings level, have continued to increase since Fiscal Year
2001.
The outlook for Fiscal Year 2007 will be even more
challenging. It appears that funding for SSA's administrative
expenses in Fiscal Year 2007 will be $200 million below the
President's budget request. For a time, it appeared that the
shortfall would be greater, and we appreciate the significant
increase from Fiscal Year 2006 levels that was included in
House Joint Resolution 20 as it was approved by the House. We
are also greatly relieved that we will not have to resort to
employee furloughs.
However, reductions from the President's budget for the
coming year will have a direct effect on SSA's ability to
process key workloads. If we had received the President's
budget each year from Fiscal Year 2002 through Fiscal Year
2006, SSA would be in a better position, not only in initial
disability claims and hearing backlogs, but also in program
integrity work. Funding shortfalls have meant substantial
reductions in scheduled program integrity activities, which
include reviewing whether recipients of disability insurance
benefits continue to be eligible, and whether SSI recipients
continue to meet income and resource criteria for program
eligibility.
We have faced some increasingly difficult decisions. Over
time, as we worked to keep pace with initial claims and
hearings, we reduced spending for program integrity work, and
that is a very disturbing trend. This work is tremendously
important for safeguarding the trust funds, as well as the
Treasury's general revenue funds. Social Security CDRs save $10
for every $1 invested, and SSI redeterminations save $7 for
every $1 spent.
Accordingly, the President's budget for Fiscal Year 2008
includes $213 million for increased program integrity work, and
proposes a comparable adjustment to the discretionary spending
caps. My written statement details the numbers of CDRs and
redeterminations we estimate this funding will allow.
In conclusion, Mr. Chairman, let me express my gratitude to
my predecessor, Commissioner Barnhart, for her excellent work
throughout her tenure. I will do everything I can to live up to
her record and be another good steward for the SSA. I know that
our employees have a deep commitment to finding better ways to
be responsive to those who depend on our service and fiscal
stewardship.
Thank you. I'll be happy to answer any questions you may
have.
[The prepared statement of Mr. Astrue follows:]
Prepared Statement of The Honorable Michael J. Astrue, Commissioner,
Social Security Administration
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the impact of past years'
budget allocations on Social Security beneficiaries, and on applicants
for disability benefits in particular. I want to thank you for holding
this hearing and giving us the opportunity to tell you of our
accomplishments and our challenges in this era of constrained resources
and growth in SSA's workloads. This is my first appearance before the
Subcommittee, and I appreciate your unflagging support for the Social
Security Administration (SSA) and the programs entrusted to our Agency.
The Members of this Subcommittee know well the importance of these
programs to virtually every American family.
I am honored to serve as Commissioner of Social Security. SSA has a
proud history of excellent service to the public, and I promise to do
everything in my power to continue that tradition. I also am looking
forward to working with this Subcommittee during my term.
As I said at my confirmation hearing, my goal is to be a good
steward of the program for both current and future beneficiaries. For
current beneficiaries, this role means setting high standards for
management, performance, public service, and program integrity, and
committing to meeting those standards. It also means being scrupulous
and painstaking to make sure the Agency adheres to the law and employs
best-demonstrated practices of accounting, efficiency, and compassion.
For future beneficiaries, good stewardship means engaging with
others in the Agency and the Executive branch, with Members of the
Subcommittee and other Members of Congress and outside groups and
experts to provide unbiased data about all the options for safeguarding
the financial stability of the program. It is part of our obligation to
the American public that we must strive to continue the best possible
support for older Americans and people with disabilities and their
families in the coming decades.
Core Workloads
SSA's priority is to deliver high-quality, citizen-centered service
to every claimant, beneficiary, and the American taxpayer. In FY 2006,
SSA maintained individual payment records for more than 53 million
people who received Social Security benefits or Supplemental Security
Income (SSI) each month. During this time those payments exceeded $586
billion. Social Security employees processed nearly 3.8 million
Retirement and Survivors Insurance benefits claims; 2.5 million
disability claims; over 2.5 million SSI claims, and conducted 559,000
hearings. To conduct these and other workloads, SSA served
approximately 42 million visitors to its nearly 1,300 field offices in
communities across America.
These are SSA's core workloads, but we do much more than pay cash
benefits. Among other things, in FY 2006, SSA issued over 17 million
original and replacement Social Security cards; processed 265 million
earnings items to maintain workers' lifelong earnings records; handled
nearly 60 million transactions through SSA's 800-number; issued over
145 million Social Security Statements; and participated in over 84
million SSN verifications for employers.
In addition, other workloads are also growing because of new
legislation requiring SSA to undertake additional work. The Social
Security Protection Act of 2004, the Intelligence Reform and Terrorism
Prevention Act of 2004, the Deficit Reduction Act of 2005, and the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003,
or MMA, have all added new and non-traditional workloads.
For example, the MMA, enacted in December 2003, established the new
Medicare prescription drug benefit. The new Medicare prescription drug
coverage was designed to allow all people with Medicare an opportunity
to voluntarily enroll in prescription drug coverage. MMA also provided
for an additional level of assistance, ``extra help,'' for people with
Medicare prescription drug coverage who have limited incomes and
resources. SSA, along with State Medicaid programs, was given the
responsibility to take applications and to make eligibility
determinations for this ``extra help.''
In addition, Congress is considering several immigration related
bills that could have a significant impact on SSA workloads. For
example, there are several bills that would require employers to verify
the employment eligibility of all new hires. Depending on the details
of these proposals, the impact on SSA workloads could be significant.
Since 2001, SSA has improved productivity on average by 2.5 percent
per year for a cumulative improvement of 13.1 percent. These increases
have been possible through the efforts of an outstanding workforce
aided by technology, and despite appropriations that each year were
significantly below that proposed in the President's budget. Since the
President's budget requests for SSA have assumed the Agency would
achieve a 2-percent productivity gain each year, even these impressive
gains cannot compensate for the funding reductions the Agency has faced
over this period.
We are moving forward with additional electronic enhancements. We
offer safe and convenient online systems for individuals to file
claims, submit changes of address or direct deposit information,
request replacement Medicare cards, and verify benefits. In FY 2006,
335,000 people applied for benefits online, up 27 percent from the
previous fiscal year. In addition, 75 percent of 265 million wage
reports in FY 2006 were filed electronically online, compared to only
27 percent in FY 2001. We are also continuing to implement the
electronic disability system, known as eDib, to move from a paper to an
electronic case process. We believe this will significantly reduce
processing times and improve the quality of the disability
determination process.
Despite budget constraints, SSA has still been able to handle more
work in a shorter period of time. We have seen a reduction in
processing time for initial disability claims, from 106 days in FY 2001
to 88 days in FY 2006. We have seen a significant reduction in
processing time for appeals of hearing decisions, from 447 days in FY
2001 to 203 days in FY 2006, and in FY 2006 we processed over 365,000
more initial disability claims, conducted approximately 163,000
additional SSA hearings, and nearly 700,000 more retirement and
survivors claims than in FY 2001.
We are also taking steps to improve the overall disability claims
process. As a result of a review conducted under former Commissioner
Barnhart, we developed a disability approach that focuses on making the
right decision as early in the process as possible. The new initiative
will be gradually implemented so that we can carefully monitor the
effects of the changes on the entire disability process.
These achievements are especially noteworthy in light of the fact
that our administrative expenses are less than 2 percent of total
outlays administered by SSA.
Agency Efforts to Balance Workloads and Resources
Despite this record, we are keenly aware of how much more we could
have accomplished had we received the President's budget requests in
past years. In the last five years, reductions to the President's
budget request have totaled $720 million, equivalent to approximately
8,000 work years. These numbers are not just statistics, and I share
your concern about the impact this has on applicants who file for
disability benefits. These numbers represent real effects on the
service that people receive from our Agency, and place increasing
pressure on our ability to maintain our physical and electronic
infrastructure.
And the outlook for FY 2007 is even more challenging. It appears
that funding for SSA's administrative expenses in FY 2007 will be $200
million below the President's budget request. For a time, it appeared
that the shortfall would be much greater and we appreciate the
significant increase from FY 2006 levels that was included in H.J. Res.
20 as it was approved by the House. And we are greatly relieved that we
will not have to resort to employee furloughs.
But I must tell you that we expect the level of service we are able
to provide the American people to diminish during FY 2007. It is no
secret that our backlogs are growing. As of December 2006, we have
nearly 718,000 hearings pending, over 568,000 initial disability claims
pending, as well as millions of post-entitlement actions to be
processed. The number of initial disability claims and hearing requests
received has remained above FY 2001 levels.
Since FY 2002, Congress has reduced SSA's budget from that
requested by the President, and our funding needs have not been met. As
a result, we have had to concentrate our resources on handling initial
claims. Consequently, the number of hearings pending as well as
processing times at the hearings level has continued to increase since
FY 2001.
Even if we had received the President's budget request for FY 2007,
we would still have to deal with staffing shortages. With funding at
the requested level, we would have been able to fill only one out of
three vacancies in our offices. With the expected funding level, we
likely will have limited hiring flexibility during the remainder of the
year to replace the estimated 4,000 SSA and Disability Determination
Service employees who will be retiring or resigning. Since vacancies
rarely are distributed evenly across offices, some places will be
harder hit than others. And the overtime hours that we traditionally
rely on to accomplish a number of important workloads will be cut by at
least half.
FY 2008 and Program Integrity
And so we face some increasingly difficult decisions. Over time, as
we worked to keep pace with initial claims and hearings, we reduced
spending for program integrity work, such as continuing disability
reviews, or CDRs, which determine whether an individual may still be
considered disabled, and SSI redeterminations, which review non-
disability eligibility criteria. SSA's actuaries estimate that CDRs
save $10 in program benefits for every dollar spent in conducting the
review; SSI redeterminations an estimated $7 in savings.
Accordingly, the President's budget for FY 2008 includes $213
million for increased program integrity work and proposes a comparable
adjustment to the discretionary spending caps. This would enable SSA to
increase the number of full medical CDRs from 198,000 in FY 2007 to
398,000 in FY 2008, and the number of SSI non-medical eligibility
redeterminations from 1,026,000 in FY 2007 to 1,526,000 in FY 2008.
SSA's progress towards accomplishing its mission is directly linked
to the level of resources it receives. If we had received the
President's budget each year from FY 2002 through FY 2006, SSA would
have been able to reduce the backlogs for initial disability claims and
hearings. Funding at the President's budget level would also have
allowed the Agency to fund program integrity activities at a more
appropriate level. These activities permit SSA to ensure that
recipients of disability insurance benefits continue to be eligible and
that SSI recipients continue to meet income and resource criteria for
program eligibility.
Conclusion
Finally, Mr. Chairman, I assure you that SSA will do the best it
can to provide the American people with the service they need, and I
know firsthand how important the program can be to a family facing
catastrophic illness or the loss of a family member. It is clear that
we are stretching our ability to balance funding realities with the
quality service the American people have come to expect from our
Agency, but I know that our employees have a deep commitment to finding
better ways to be more responsive to those who depend on our service
and fiscal stewardship.
Thank you and I will be happy to answer any questions you may have.
Chairman MCNULTY. Thank you very much, Commissioner. I
would just remind the Members who have come since we started
that we're operating under the Gibbons Rule, and also, that we
expressed our gratitude to the Commissioner, because he was
just sworn in on Monday. We were expecting just to have a
representative of the Agency today, but he chose to come
himself. For that, we're deeply grateful.
Commissioner, in your confirmation hearing, you told
Senator Baucus that you would report back to him in mid-April.
I mentioned that in my opening remarks regarding how we're
addressing the backlog problem. I just want to get it on the
record that you will also share that information with us as
soon as possible.
Mr. ASTRUE. Absolutely. This is a job where if we're going
to be successful, we have to reach out, work closely with the
Congress, work closely with the constituency groups. I have
every intention of doing that.
Chairman MCNULTY. I understand that several years ago, your
predecessor developed an estimate for how long it would take a
claimant to go through the entire Agency appeals process, and
that estimate was 1,153 days.
Mr. ASTRUE. Yes.
Chairman MCNULTY. Can you tell us where we are on that now?
Mr. ASTRUE. If anything, it's probably getting a little
worse right now. Of course, part of the problem is the resource
problem, but part of the problem is the complexity of the
system itself.
Commissioner Barnhart was also, I believe, famous for a 25-
foot flow chart outlining the entire disability process. As you
and I were talking before the hearing, I don't believe that you
solve problems of complexity with more complexity.
So, one of the things I'm stressing as we do a top-to-
bottom review of the process and decide what we're going to try
to push forward as quickly as possible is--I'm putting a lot of
emphasis on trying to keep the system simple, so that it will
be faster and easier to understand.
Chairman MCNULTY. Commissioner, could you talk a little bit
more about the resources and how that impacts employment at the
Agency? Since I know both Ranking Member Johnson and I, and
really all the Members of the Committee, want to be able to try
to help you with this. How are you dealing with it now? Are you
using overtime more, or----
Mr. ASTRUE. Actually not. What I've inherited here is a
situation where I think Commissioner Barnhart had very little
discretion in what to do. So, there has been a hiring freeze in
place since we understood what the appropriation was for this
year. We are going to be down, I believe, about 2,000 employees
from where we were a year ago. This is an effect--that as I've
met a number of Members of Congress--that you've noticed in
your district offices, it doesn't fall equally among district
offices, because you can't control the timing of attrition and
that type of thing, but particularly in some offices, made it
very difficult to live up to the standards that we want to live
up to.
There are restrictions on overtime, so we can't compensate
for a lot of the lost employees with more overtime. It's very
restrictive on overtime as well.
So, it has been difficult, and it's been difficult for the
morale of the Agency.
Chairman MCNULTY. In a report issued last fall, the Social
Security Advisory Board stated that from 1999 to 2005, the
number of hearings pending nationwide more than doubled from
about 311,000 to more than 700,000, while the number of
administrative law judges (ALJs) on duty remained about the
same at roughly 1,100. Do you agree with these figures? If so,
how do you believe we should address that?
Mr. ASTRUE. Yes, those figures are, in fact, accurate. I
think there are three things at issue here, and I do want to
take advantage of the three-day period to not be very specific
at this point, but the way that I look at this is that there
are really three areas that need to be addressed.
The first and most important one tends to get overlooked,
which is are we deciding the right cases with the right rules
in the right way? I think that there is a real argument that we
need to adjust how we handle this increasingly large workload
that assumptions and standards that were built-in 20 to 30
years ago just aren't working very well today. I think that we
need to revisit exactly which cases are going through which
stages of the process, and whether we can afford to have as
much process as we have, and whether we need to move to a
somewhat more streamlined system. So, I think that's my first
starting point.
For a shorter term perspective, there are two categories of
personnel issues here that we need to be concerned about. We
leverage our ALJs with a significant amount of support staff,
both people that move the paperwork around and make sure that
the files, which are complicated, get in the right place at the
right time for the ALJs to make the right decision, and then we
also have essentially the equivalent of law clerks who do
initial drafting and that type of thing.
A few years ago, we were, I believe, at a 5.2 full-time
employees per ALJ ratio. I may not have this exactly right, but
I believe it's down to about 4.2 now. So, the efficiency of
individual ALJs has been reduced by the staffing cutbacks that
have occurred at the Office of Disability Adjudication Review
(ODAR).
We've likewise had a problem in that we do have a need for
additional ALJs. As I know you're well aware, there hasn't been
a list coming out of the Office of Personnel Management (OPM)
for almost a decade. There's also been--in fairness to OPM,
there's been litigation that held that up for a long time as
well.
The good news, as I understand it, is that the final
regulation coming out of OPM seems to be making pretty good
progress. We have realistic hope that that will move along,
that there will be a list later this year, and that we can
start to address some of those issues by hiring additional
ALJs. I'm not in a position, obviously, because it's not under
my control. I can't give you a set timeframe on that.
Certainly, when we look at what we think we can afford, one
of the priorities is going to be at least some additional ALJs.
My guess is that, given the appropriations, there will not be
enough to address the backlog as much as I would ideally like,
but I think it will be a step in the right direction.
Chairman MCNULTY. Well, again, Commissioner, I want to
thank you for taking on this task.
Mr. ASTRUE. Thank you.
Chairman MCNULTY. It's absolutely enormous. We're going to
try to help give you the resources you need to get the job
done.
Mr. ASTRUE. Thank you.
Chairman MCNULTY. The Ranking Member, Mr. Johnson, may
inquire.
Mr. JOHNSON. Thank you, Mr. Chairman. I'd like to talk
about your ALJs. Since you have a legal background and have
worked in that area, let me ask you a straight question. How
many hours a day do they work?
Mr. ASTRUE. I honestly don't know, Mr. Johnson. What I do
know, and one thing that disturbs me, but I don't think I have
many tools for dealing with it, is that the efficiency of the
individual ALJs in the individual offices varies widely. There
are----
Mr. JOHNSON. You don't have control over it, do you?
Mr. ASTRUE. It's difficult. Congress has made some
decisions that it was wise to move away from the original ALJ
model where the people making the decisions were called hearing
examiners, and they were really viewed as, at that point,
representatives of the Secretary of Health, Education & Welfare
at that point in time, and the move to more of imitating an
Article 3 model, where the judges are ``independent.''
I think that there are many advantages to that. I'm not
criticizing that, but there are costs to that that sometimes
people don't appreciate. One of the things that that means is
my ability and the ability of the Deputy Commissioner for ODAR
to tell the judges what to do and to create incentives or
penalties if they're not very productive is very, very limited.
We're very hamstrung on that.
Mr. JOHNSON. Well, why don't you let us know what you need
in the way of legislation to help you gain control of that
problem, and I'm pretty sure that we would be willing to look
at it.
What performance standards do they have? Do they have any?
Mr. ASTRUE. I'm going to have to pass on that. I think
there's relatively little in terms of performance standards and
standards of conduct.
Mr. JOHNSON. It's----
Mr. ASTRUE. Yes--I was actually disappointed in--when I was
General Counsel of the Department of Health and Human Services,
we had a couple examples of highly inappropriate conduct by
ALJs. The Agency came to the conclusion that it couldn't even
discipline in cases of conduct that I considered absolutely
outrageous and insensitive.
Mr. JOHNSON. Let me ask you another question on a little
different subject. If you need dollars--you've got a decreasing
workforce. I think you're going to lose a lot of people for
retirement in the next few years. Do you actually need the same
number of people if you're going into an electronic
environment?
Mr. ASTRUE. I think the answer is that we do with at least
some of the current assumptions of the system, because the
workloads do increase more than the rate of inflation because
of the demographics and because of the additional
responsibilities.
Right now, we operate, I believe, on the assumption that
all 1,272 field offices need to stay in place. I know there
have been suggestions from time to time that those can be
reduced somewhat by telecommunications and things like that,
but I don't think that we're there yet, and I'm not prepared to
recommend that.
Mr. JOHNSON. Can you analyze it for future reference?
Mr. ASTRUE. We certainly can--one of the things we're going
to try to do is look at where we can take reductions. It has
been my observation in the past, and current understanding,
that there are always large amounts of highly repetitive
workloads that are not often very popular with the staff
anyway. Certainly, if you're trying to look for efficiencies as
quickly as possible, trying to find some ways to do that. Even
things as simple as taking a look at what the repeat questions
are in the field offices and the telephone service centers, and
then lining up your Web site to try to make sure and see
whether the information that people keep asking you about,
whether you're communicating it clearly enough to the American
people. I've already raised that with senior staff.
So we're going to be trying to look at some of these issues
not just in an incremental way, but try to step back a little
bit and look at them strategically. It's hard when you're under
budget crunches to do that, but to the extent that we can,
we're going to try to do that.
Mr. JOHNSON. Thank you. Thank you, Mr. Chairman.
Ms. SCHWARTZ. Thank you, Mr. Chairman. I'm very new at this
Committee, so we're on--I think you have a little more
experience than I do on this, so you're a step ahead, but I
thought I'd be further in the rankings here, but maybe it helps
to be somewhat new at this. I can ask just a couple questions,
if I may.
Mr. ASTRUE. Absolutely.
Ms. SCHWARTZ. First of all, congratulations and good luck.
Mr. ASTRUE. Thank you.
Ms. SCHWARTZ. I think this was referred to already, but are
there standards--what do you expect to be the right--do you
have a performance standard that you are aiming for? Do you
feel like there's a--what is the percentage of cases that
should be pending at any one time? What's the right number of
days in which to move through each of the steps in the process?
You've identified one of the jams, in terms of the ALJs,
but different offices seem to do better or worse, and you
identified that that may just have to do with personnel levels,
but it may have to do with other things as well.
So, again, have you--and I know you're new at this, but
have you actually set out that this is the right complement?
This is where the backlog is? This is how long it should take
in every step of the process so people have something to
measure against?
Mr. ASTRUE. I think the answer to that question, and I hate
to answer in this structure, but yes and no. There are parts of
the process where there are set standards. Sometimes they're
not adhered to, but there are set standards. For instance, the
amount of time that the States have to make disability
determinations at the first level of the process.
Ms. SCHWARTZ. So, they meet those. You're saying because
they're standards, they do meet them?
Mr. ASTRUE. Yes. Generally, my understanding is that they
do meet them. One of the things that you have to discuss is, if
the timeframes at the first level lead to not enough
documentation and analysis for the subsequent levels, are you
really saving time by that initial standard? Then later on in
the process, there's very little in the way of time
restrictions, and that's why the numbers get up into four
digits.
So, I think that I don't want to deal with this
simplistically and say, ``Well, we want to make it faster and
better, so we're going to make the States make their initial
determinations 50 percent faster.'' That may actually be
counter-productive, because it may mean that you have more
disputed claims. They're not as well-documented. The decisions
may not be as good.
I do think that you need to go through every step of the
process and have, whether it's formalized in regulations or
guidelines, or just part of your management expectations, to
have a sense of what you're shooting for in terms of time.
I don't, for the disability, have a--right now, I look at
what I consider an unacceptable length of time by a significant
order of magnitude. I just--I would love to give you a number,
but can't, particularly being just back after a long absence.
I've thought about this a lot over the years. The magnitude
of the difficulties hit you all over again when you're actually
responsible for it again. I think it would be imprudent right
now to guess what might be realistic to do.
Ms. SCHWARTZ. Let me just ask one other question. My staff
gave me interesting--I'm pleased to see that the Philadelphia
office ranks sixth in doing well in moving hearings. The
hearing office actually is ranked sixth in the Nation for its
efficiency, which is actually 354 days. That's part of region
three, which actually, by and large, does pretty well.
Again, are they doing something right in Philadelphia that
they're not doing--I hate to pick on my own State--but not
doing as well in Pittsburgh? It's just----
Mr. ASTRUE. I think when you're talking about hearing
offices, I think that the answer to that question is
undoubtedly yes. There are some that are extremely well-run and
productive, and then there are others that are just not. Those
statistics are well known. We've had issues in the past in
Cleveland and Chicago and Milwaukee.
Ms. SCHWARTZ. Is it leadership? Is it training? What is it
that you think would make a difference in that?
Mr. ASTRUE. Well, I think it's a mix of all those things,
and it's a mix of the quality of the people that you select.
Again, there's a lot of things that go into it.
My frustration on that particular part of the process is
that I think that not only me but the management team several
layers down have relatively limited tools for dealing with
that, because we have embraced the concept of the independence
of the ALJs. A lot of things that would be standard management
techniques in other operations are viewed as impairing the
independence of the ALJs.
So, that's a tradeoff that the Congress has made in the
past. I'm not being critical of that. I'm just observing that
that's part of how that situation comes to be, and that in that
area, your expectations of us may be a little bit lower than
they are in other areas where we really do have some control
and discretion.
Ms. SCHWARTZ. Well, my Chairman has been very indulgent,
but I hope that someone else will get to some of the issues
around technology, and where you could use technology
potentially to improve productivity.
Let me just say on behalf of my office, I know my staff
spends a considerable amount of time talking to constituents,
and then talking to your staff in the regional offices. They've
been responsive. Let me say I think that we've actually had a
by and large good experience. I'm not sure it should be
necessary to go to your Member of Congress's office in order to
move the process forward.
So, while I think on some level it works when we do get
involved, for all those thousands and thousands of people who
never think to call our offices, it shouldn't have to work that
way.
Mr. ASTRUE. One of the things that makes me just very proud
of SSA is its great workforce. You actually go out and talk to
particularly the people that work in the field offices and deal
directly with the beneficiaries and recipients. They're just
wonderful people. They self-select for that. You don't choose
this career unless you really want to try to help people.
So, it's one of the things that's a real plus and an asset,
and it's painful to know that they're struggling right now.
Chairman MCNULTY. Mr. Lewis may inquire.
Mr. LEWIS. Thank you, Mr. Chairman. Welcome, Commissioner.
Mr. ASTRUE. Thank you.
Mr. LEWIS. Given the Agency's focus on increasing the use
of telephone and online services, is the current field office
structure, both in terms of staffing and office location, ready
or positioned to meet the services of the 21st century?
Mr. ASTRUE. Well, I'm just going to be brutally candid with
you. I think that the level of the staff in the field offices
has been something the Congress has felt very strongly about
and feels that the current level is the way it ought to be. In
terms of everything I have to do, I'm not particularly
interested right now in challenging that, because I don't think
it's going to be productive, and I've got better ways to do
things.
What I am interested in is I do think that the field
offices, as great as they are, don't work as well for some
constituencies, particularly in rural areas, because of the
distance to the field offices. So there have been some
innovative attempts at using new technology, video conferencing
and things like that, that I think are going over well from a
service point of view.
My main concern about this right now is that the cost of
the technology is very high, and so the cost of implementing
that on a fair nationwide basis is very high. I am cautiously
optimistic, as it is with many technological innovations, that
the cost of the technology may come down, and it may make it
much more practical to bring some service improvements to rural
areas that right now might not be possible for fiscal reasons.
Mr. LEWIS. As you know, since August, changes to the
disability determination process are being implemented in the
Boston region. Do you have an update? Can you provide us any
information on that implementation?
Mr. ASTRUE. I can't. I'm tentatively scheduled to visit on
March 5th, and I've had some internal discussions about it
already. Although conceptually, I think of it like a
demonstration project. It was not, I believe, really set up as
that, so I'm still uncertain as to exactly what kind of data
I'm going to have available in order to evaluate each part of
the innovation. I think that it's probably likely that I'm
going to have to rely more on softer input for some of this
than what you would have with a traditional demonstration.
I think it's a very important part of the process, and
something that, as I said to the Ranking Member, I think that I
have to decide with some real urgency whether those ideas are
good ideas, in-between ideas, or bad ideas, and make some cut
and run judgments as quickly as possible.
So, I'm trying to avoid a lot of specific promises, but one
of the things I can tell you is we're not going to assume that
this is a package and roll it out one or two regions a year for
the next five to 7 years. We're not going to do that.
Mr. LEWIS. Thank you.
Chairman MCNULTY. Mr. Davis may inquire.
Mr. DAVIS. Thank you, Mr. Chairman. Let me ask you about
another important part of this process, and that's the
attorneys who end up representing a lot of the people with
disability claims.
What I sometimes hear from my district staff and from
people who call our office about these kinds of complaints is a
little bit predictable. A lot of the lawyers who do this work,
particularly in the rural areas, are frankly sometimes people
who are trying to figure out something that walks in the door
that may yield a fee at some point.
Your really good plaintiffs' firms tend to not do this kind
of work. Your gold-plated civil defense firms tend to not do
this kind of work.
Without casting any aspersions on the good lawyers who are
out there, can you talk for a moment about the quality of the
lawyers who tend to work on disability claims?
Mr. ASTRUE. On our side or on the other side?
Mr. DAVIS. Well, on the--I'm sure they are spectacular and
superb on your side.
Mr. ASTRUE. My hands-on information on this is pretty
dated. When I was a Federal law clerk, the judge divided up the
workload between the two. So, I did all the Social Security
disability cases, so I saw things that came in over the
transom. I think that----
Mr. DAVIS. You lost the same lottery I did when I was a law
clerk.
Mr. ASTRUE. Yes, that's right. Yes. My friend got all the
prisoners' cases, and I got all the Social Security cases was
the deal.
I think at that time, my assessment was that it was
somewhat uneven, that there were some people that were very
dedicated and very, very good, and then there were some that
were not very good and some claimants were not very well-
represented. It was sometimes frustrating when you were trying
to decide the right thing to do.
My sense is that the bar has become much more
institutionalized since '83/'84, and it is much higher quality
now, but I'm really not in a position to make a general
qualitative judgment.
Mr. DAVIS. One of the things I would ask--and I think it
would be helpful if you tried to find this out just for your
benefit and for the benefit of the Committee--I'm interested in
knowing what's the average years of experience of lawyers who
do this kind of work. What percentage of malpractice claims do
you tend to get?
I'm curious about all that, because frankly, most people
don't know if they can call the Congressional office. What Ms.
Schwartz says, I don't quite get why they should have to call
the Congressional office, but the reality is that seems to
help. Most people don't know they can call. We estimate in our
office probably only about 25 percent of the people who really
have issues with disability end up calling us, so most of them
are dependent on some lawyer that they sometimes find in the
phone book. It seems like an interesting question.
Second of all, I'd be interested in how we can improve the
quality of lawyering in this area. Are there practical
incentives that local bar associations can offer to get more
experienced lawyers to take on this kind of work pro bono? That
strikes me as something we ought to think about.
I'm told, for example, that Legal Aid doesn't handle a lot
of this work. That's not a service that they provide.
Mr. ASTRUE. I actually think that may not be right,
Congressman. I spent a year actually working for a support
center, a legal services corporation. At least in that time--
again, dated information--but they were actually doing a fair
amount of Social Security work. It may have been tilted a
little bit more to--``impact'' cases as to doing the routine
cases.
My sense, as I said, generally, as with most things in
life, as the bar has become more specialized, they've got a
pretty good network, that I think the quality of that bar has
gone up very substantially. They're very active on the
Internet, I know. As a general matter, my belief right now is
that someone represented by someone who specializes in the area
gets pretty good representation.
[The information follows:]
Because experience is not a requirement for representing
disability claimants, SSA does not track the years of
experience of attorneys who represent them.
During fiscal years (FY) 2004 though 2006, SSA received a
total of 206 complaints about attorneys who represent
disability claimants. The breakdown of these years is as
follows:
FY 2004--68
FY 2005--63
FY 2006--75
SSA does not track the percentage of malpractice claims
filed against claimants' attorneys.
Because each bar association had different rules, SSA is
not in a position to offer specific suggestions of how a bar
association could encourage more experienced lawyers to
represent disability claimants pro bono.
I do share your concern that I think----
Mr. DAVIS. Let me ask you one question, since time is
running low. One of my colleagues was making a helpful
observation that is it true that in a lot of areas, you don't
even have to be a licensed lawyer to really process these
disability claims? Well, not to process, but to represent
people in these disability claims?
Mr. ASTRUE. Yes, that's right. There is a group of lay
advocates that specialize in----
Mr. DAVIS. Who qualifies them or determines that they know
what they're doing?
Mr. ASTRUE. I'm going to have to get back to you on the
record--I'm not up to date as to what the credentialing is for
that group of people. I'm sorry. I just don't know, but we'll
supply that for the record.
[The information follows:]
A claimant may appoint as his or her representative any
attorney in good standing who has the right to practice law
before the court of the State, Territory, District, or island
possession of the United States, or before the Supreme Court or
a lower Federal Court of the United States providing that he or
she is not disqualified or suspended from acting as a
representative in dealings before SSA and not prohibited by any
law from acting as a representative.
A claimant may also appoint a person other than an attorney
if he or she is generally known to have a good character and
reputation, capable of giving valuable help to the claimant in
connection with his or her claim, not disqualified or suspended
from acting as a representative in dealings with SSA, and not
prohibited by law from acting as a representative.
Mr. DAVIS. Thank you, Mr. Chairman.
Chairman MCNULTY. Mr. Becerra may inquire.
Mr. BECERRA. Thank you, Mr. Chairman. Mr. Commissioner,
thank you very much for being here, and congratulations to you.
Mr. ASTRUE. Thank you.
Mr. BECERRA. Good luck. Condolences will come second after
that.
I think every one of us here really wants to work with you.
You do have big shoes to fill. I think most of us believe that
Commissioner Barnhart made every effort to try to work with
this Committee, and probably our counterparts in the Senate as
well. Given your background, I think you have certainly the
credentials to do this work. I think we're going to be able to
work with you very well also.
Mr. ASTRUE. Thank you.
Mr. BECERRA. That doesn't mean we're not going to ask you
the tough questions.
Mr. ASTRUE. No. That's part of the job.
Mr. BECERRA. So, let me start.
Mr. ASTRUE. Okay.
Mr. BECERRA. By the way, I want to mention as well that in
Los Angeles, you have excellent personnel. Whenever my district
office representatives have to deal with the SSA district field
office, we have tremendous relationships. We get great results.
I want to thank them, because I know how much work they do in
Los Angeles.
Mr. ASTRUE. That's great to hear. Thank you.
Mr. BECERRA. Keep them coming.
You have a backlog of 1.3 million Americans waiting to be
processed, whether it's their initial claim or at an appeals
hearing, correct?
Mr. ASTRUE. The precise number at the moment, I don't have
at my fingers, but it's a lot.
Mr. BECERRA. Yes. Probably more than 1.3 million, but about
1,300,000 Americans are waiting to have their claim or their
appeal processed and completed. The average wait time is
something in the order of 88 days for that initial claim to be
heard, 524 days for a hearing decision to be rendered. I'm
shocked to see this, but in the Dallas district office, there
are people, Americans waiting 890 days to have their appeal
decision rendered.
You have a situation where, while productivity of your
workforce within the SSA has gone up over 13 percent over the
last five or so years, the size of the workforce you have to
deal with all these claims has gone down by 8 percent from 2006
to 2007.
On top of that--and let me know when I'm saying something
that's not accurate. On top of that, beginning next year, the
cohort of Americans we call the baby boom generation begins to
retire.
Mr. ASTRUE. Right.
Mr. BECERRA. That big swell in the sea of people becoming
retirees and filing for these different kinds of claims,
disability and otherwise, start to enter into the process,
which means what we have now in backlog will just swell unless
we're able to get rid of that backlog that currently exists.
On top of that, you now have responsibility for processing
all the seniors who are receiving Medicare Part D prescription
drug benefit services as well, so you now have to process all
those seniors who have to get that service provided.
On top of that, because of Homeland Security and the work
that we're doing to better identify Americans to make sure the
people who are here belong in this country, you have to help
make sure that that paperwork is processed correctly, and the
people who say they have authorization to work under Social
Security and so forth, that that's accurate, and you're getting
back to employers.
So, all that work is on top of what you're currently doing.
Then we hear that you made a request in the budget that you
submitted to the President for--let me see if I have this
correct--$10.54 billion to manage all of those things for the
tens of millions of Americans who use SSA one way or the other.
The President's budget for '08 provides you with $824 million
less than what you requested.
Okay. Explain to me how--and I apologize. This is only your
second or third day. Explain to me how you can even reduce the
current backlog, let alone deal with all the new folks coming
in because of the baby boom generation, all the work because of
the Medicare prescription Part D program, all the work because
of the anti-terrorism work that you have to do. How can we
expect that when you come back in a year with the resources
that the President says you should have, you're going to
actually allow a disabled American who qualifies for a benefit
under Social Security to receive that benefit in a timely
manner?
Mr. ASTRUE. I want to be responsive. I think there are
multiple questions there, so let me try to get as many of them
as I can.
Mr. BECERRA. I don't have a lot of time, so----
Mr. ASTRUE. I don't have any quantitative data yet, but
generally, the second time around on the Medicare Part D, there
seems to have been a lot less of a problem.
Mr. BECERRA. Well, Commissioner, let me stop you. Okay. So,
let's say you get better at dealing with this new Medicare Part
D. It's new work.
Mr. ASTRUE. Yes.
Mr. BECERRA. On top of the fact that you don't have enough
money to process the backlog, this is new work.
Mr. ASTRUE. Right.
Mr. BECERRA. So, what I'm asking is if you don't have
enough resources and personnel, if you're shrinking in
personnel to begin with today, and you're getting less money
than you requested from the President in the President's budget
today, and you're getting more work on top of what you can't
already manage today, how can you try to reduce the backlogs,
and by the way, go into the programs which I understand
actually save us money, like the CDR Program or the SSI
Redeterminations Program, which save us $7 to $10 for every
dollar that we spend doing those reviews and programs?
I'm trying to help you.
Mr. ASTRUE. It sounds like you're trying to talk me out of
the job.
Mr. BECERRA. I know you're somewhat limited in what you can
say, but this has to change. You cannot come here to this
Committee and be able to tell us with a straight face that
you're going to be able to accomplish these things, as much as
you might want to, and as much as I know most of the people
that work for SSA want to, without the resources. You can only
extract so much blood from a turnip, and I think you got
everything you could.
Maybe we could save some--maybe there are some ALJs that
aren't doing all their work, but the reality is the basic
workforce of SSA is doing everything it can. It's unfair for
the leadership of this country to not provide you with the
resources you need to do the work for the Americans who worked
so hard for so many years to pay into the system.
So, I don't know if there's an answer there, but----
Mr. ASTRUE. I think two things have to change. I do think
that Congress needs to be more supportive of the Agency.
Mr. BECERRA [continuing]. The President.
Mr. ASTRUE. Again, the Committees of jurisdiction, I think,
haven't been the problem. I think generally, my experience has
been that the Committees of jurisdiction understand the issue,
but I think in the Congress, more broadly, I think that
sometimes they view the Agency as a black box, and don't
understand the burdens and how we can't absorb all the costs
that we've been expected to absorb. Part of my job is to try to
make that clear and try to make that point as clear as
possible. The internal--where I disagree with you slightly,
that we can't do it if we continue with business as usual,
because that just goes out into time, and it is just not going
to work.
So, I think that we have to go back internally, and say
that while there are things that we have taken as important,
that we just have to do business differently. We can't afford a
25-foot flow chart on disability. We are going to have to throw
certain things overboard, think about it differently, and try
to be more efficient and effective.
Mr. BECERRA. So long as you don't throw the folks
overboard.
Mr. ASTRUE. No, that is not my intention. My main goal in
coming back was to try to take this on--there are a lot of
other things I could have done, but this is an area that's near
and dear to my heart.
This is the main reason why I came back, and I am going to
give it my best, but I know enough about it to know that the
funding is uncertain; not everything is under my control. If I
make specific promises to you right now about results, I am not
like--there is a serious risk that I can't deliver, so all I
can say is: I am going to give it the old college try, do as
best as I can, and continue to work with you to try to do
better.
Mr. BECERRA. Thank you, Mr. Chairman.
Chairman MCNULTY. Next, I would like to introduce the
senior Member of Congress who is serving on this Subcommittee,
the former Chair of this Subcommittee, who is currently the
Chair of the Subcommittee on Trade, Mr. Levin of Michigan.
Mr. LEVIN. Thank you. The former Ranking Member is here, I
wish I had the Chair. I love your spirit, Mr. Chairman, and I
am glad to be able to call you that. Welcome, you follow people
who were in your position who are dedicated and committed, and
we always appreciated that. I think what Mr. Becerra is saying
is, and I assume the Chairman has said the same, I got here a
bit late, we know the constraints, you cannot challenge the
budget but it would be helpful to the extent you can to tell us
where you think you might be inadequate? There may be an
inconsistency there but if you cannot be as candid as possible
about the constraints, it is going to be hard for us to be
helpful.
Mr. ASTRUE. Right.
Mr. LEVIN. So walk that line as well as you can because we
have these concerns over these long waits. So, let me give you
or your staff or a memo and the Agency is now working with our
office to correct this and they are being very helpful, and if
necessary there will be an emergency payment, I think, but let
me give you this memo. I took out the name of my constituent
because this may be part of a general problem so here is
basically what it says, the onset date was April 2006, the
approval date for benefits was 2006, October, after the waiting
period. The payment did not come and so in early February we
contacted the office and was told that the retroactive benefits
would be released as soon as possible. So, I have been told
that there may be a major shortfall in personnel or in
procedures that would cause somebody to have an approval date
of 2006 and there be no payment by early February of the next
year. There is something wrong. Then what made it more
difficult was that our office was told, our office in Michigan,
that they would expedite payment on October 8th--February 8th,
this is after initial contact on February 2nd. When it did not
come, we called again and they said that the direct deposit
information had been entered and this person would personally
take care of submitting the payment directly to the bank
account and that it would be there by Saturday. So, that is 4
or 5 days later. Well, on the 13th it had not arrived and this
person was facing foreclosure on their house. I think we have
to remember this well, how many people rely on these payments
for the majority of their income. Now we have been told that
the action was taken on the 14th of February, that is today.
So, I will give this to you and if you could give it to the
appropriate person.
Mr. ASTRUE. Absolutely, and we will look at it.
Mr. LEVIN. Find out if there is some structural problem
here, maybe this is very atypical but our concern is that it
may not be.
Mr. ASTRUE. Okay, we will definitely look at that both as
an individual matter and systemic.
[The information follows:]
A review of this constituent's record did not reveal a
systemic issue.
Mr. LEVIN. I think the individual matter is being taken
care, I do not want to bother you with that. Let me bother you
with what may or may not be a systemic issue.
Mr. ASTRUE. Okay, we will get on it.
Mr. LEVIN. Okay, good luck.
Mr. ASTRUE. Thank you.
Chairman MCNULTY. Ms. Tubbs Jones may inquire.
Ms. TUBBS JONES. Thank you, Mr. Chairman. Welcome,
Commissioner. I want to say for the record I think Jo Anne
Barnhart was one of the finest Commissioners of Social
Security, and I regret she is not here to answer some of the
questions we have. I know you are new to this, and I hope you
do a great job but tell me who is the person who is in charge
of disability, administrative judges, under you, sir? Who is
that person?
Mr. ASTRUE. That would be Lisa DeSoto.
Ms. TUBBS JONES. Ms. DeSoto, is she here?
Mr. ASTRUE. I do not believe that she is.
Ms. TUBBS JONES. Did you think that since this was the
subject matter--do you want to turn around and look again?
Don't you think that since the subject matter of this hearing
was the disability hearings and the backlog that it would have
been a good idea to bring her along so that she might have been
able to answer some of the questions that you cannot answer
since you have only been in the job 2 days?
Mr. ASTRUE. Well, I have actually brought along some staff
including Linda McMahon, Deputy Commissioner of Operations. The
scope of the request was sufficiently broad that there are
probably seven or eight people with substantial responsibility
in those areas.
Ms. TUBBS JONES. No, no, no, let me go back. The scope of
this hearing was to look at the disability backlog, right?
Mr. ASTRUE. Yes, that is part of it. My understanding is
that it was a little bit broader than that. Certainly, we
prepared more broadly than that.
Ms. TUBBS JONES. Well, let's focus on--and nobody has been
asking about anything but disability backlogs, sir, have they?
So, my point is who is the person best prepared to answer some
questions about disability backlogs who you brought with you?
Mr. ASTRUE. Well, why don't you start with me, and I will
do the best I can.
Ms. TUBBS JONES. I have already listened to your answers to
six my colleagues' questions, and I don't want ask the same
questions so you can give me the same answer. I am asking is
there anybody else better prepared than you to answer those
questions?
Mr. ASTRUE. I do not believe there is anyone else prepared
for today.
Ms. TUBBS JONES, but there is somebody else with you that
has been doing this job longer than 2 days, correct?
Mr. ASTRUE. Yes, I have Deputy Commissioner McMahon with
me, yes.
Ms. TUBBS JONES. Who is that? Do you mind if I ask her a
few questions, sir?
Mr. ASTRUE. Be my guest.
Ms. TUBBS JONES. Deputy Commissioner McMahon, the last time
we had this discussion about disability backlog, which was
probably maybe over the last term, this is the 110th Congress,
I think we addressed that issue in the 109th Congress, one of
the issues was a lack of a sufficient number of administrative
judges to hear these cases, fair?
Ms. MCMAHON. Yes.
Ms. TUBBS JONES. In the course of that, the discussion you
got from the Chair, who is now the Ranking Member or Member of
the Committee, and the former majority Chair was the desire on
the part of this Committee, this Subcommittee that the SSA
obtain more administrative judges to address the backlog.
Ms. MCMAHON. Well, unfortunately----
Chairman MCNULTY. Ms. McMahon, you just need to hit that
bottom to turn your microphone on.
Ms. MCMAHON. Thank you.
Chairman MCNULTY. Thank you.
Ms. MCMAHON. I think maybe you were not here for the
opening statement, and I think it actually was addressed in
some earlier questions but there are several issues.
Ms. TUBBS JONES. I absolutely was not here.
Ms. MCMAHON. Okay.
Ms. TUBBS JONES. I had another Committee meeting but go
ahead.
Ms. MCMAHON. I understand, there are several issues. One
issue is that there has not been an updated register from which
to select ALJs for nearly a decade. There was a lawsuit at OPM,
OPM has been dealing with that issue.
Ms. TUBBS JONES. Wait a minute. When Commissioner Barnhart
came to Cleveland, Ohio for a hearing in my congressional
district, we had more than 300 people there who had disability
claims and it was probably five degrees below zero outside and
10 below because the heat was not working in the church where
we were, and at that juncture she made a commitment to bring in
more administrative judges and she did in fact bring in more
administrative judges. So, you are telling me something about a
10 year issue that would not allow you to hire administrative
judges.
Ms. MCMAHON. She actually got a waiver from OPM to do that
but because so much time has passed----
Ms. TUBBS JONES. Since she got that waiver?
Ms. MCMAHON. Both since she got that waiver and the list
that was even used at that point, that there are really very
few new people on that list.
Ms. TUBBS JONES. So, what are you doing about the list then
if that is the issue?
Ms. MCMAHON. Well, it is OPM that has to do it.
Ms. TUBBS JONES. Okay.
Ms. MCMAHON. They are writing a regulation, as the
Commissioner just explained, they are actually working on the
regulation, which we hope will actually be done soon.
Ms. TUBBS JONES. The people out in America across the
country, and this is not directed personally to you or to you,
Commissioner, they do not want to hear some crap about some
regulation is keeping the administrative judges from being
hired when I have people calling my office constantly who have
gone bankrupt, whose families have gone bankrupt trying to take
care of them because of a disability claim. I apologize for my
outrage but I am expressing the outrage of the people in the
City of Cleveland. In 2004, we had the largest backlog in the
sixteenth region, the fifth highest initial denial rate across
the country. We are the fourth largest backlog behind Tampa,
Birmingham, Buffalo, and Indianapolis. So, my outrage is not
personal, it is on behalf of the people across the country who
are saying, ``You all get a life and get something going on in
Social Security.'' So, all I am saying to you and you,
Commissioner, we are ready to go to work. Whatever it is that
is impeding your ability to provide disability support for the
people across America, tell us what it is and let us fix it. Do
not come here and be nice with us, let's fix it on behalf of
the Democrats and the Republicans because the people who need
disability, they are not just whites, they are not blacks and
brown, they are not Republicans, they are not Democrats, they
are Americans who deserve to have income to take care of their
families. For the outrage, I apologize, but I am tired of it.
It is not your fault but it is something we must fix. I am not
looking for an answer. Thank you.
Chairman MCNULTY. Thank you very much. Mr. Pomeroy may
inquire.
Mr. POMEROY. I want to follow up on the ALJ issue that my
colleague was just speaking about. Mr. Chairman, I am going to
suggest that we have a hearing, and I want to have OPM at that
table and I want the Commissioner to come back and I want the
former Commissioner, whom I have the highest regard for, to be
here as well. I want to get to the bottom of this because I
believe that I have been lied to, and I am absolutely furious.
For two years, I have been talking to the Commissioner in this
hearing room about this business of the frozen ALJ list and the
problems that we have had bringing more on line. It was my
absolute understanding that things were starting to move, that
more ALJs were being added and that steps were taken where the
list would be opened up. I am absolutely astounded, I am
shocked to find out that that list has not been opened up yet.
I am going to ask our staff to trace the things that have been
said in this hearing.
Ms. MCMAHON. Well, the list that exists has been opened up,
the problem is it is so old that there is hardly anybody on
there who is still interested or capable.
Mr. POMEROY. I have got two problems with that. First, I
thought the list was going to be refreshed, and I thought that
steps had been taken, SSA working with OPM, to have that opened
up, to have the appropriate tests administered last year. I
believe that we were told that.
Ms. MCMAHON. Well, and that may be what we were told but
what we have learned just this week is that we are hopeful that
OPM's regulation, which is required before the tests can be
renewed and therefore a new list can be made, that that
regulation is close to being done but it is not done.
Mr. POMEROY. I cannot believe that. That is the most
incompetent, insubordinate handling of a matter that has been
worrying this Committee that I have ever seen under the
Executive Branch. For 2 years at minimum, I have been asking
about the ALJ backlog, the inability to get enough people into
place to make determinations on these disability claims.
Clearly, the Agency heard me. If OPM has such scant regard for
the concerns of Congress relative to whether SSA can get its
work done or not, well, I think they need to come here and tell
us that directly. I believe that OPM has completely,
arrogantly, incompetently, foolishly, stupidly, irresponsibly
handled this matter and as a result there will be people dead
flat broke that cannot work, that cannot get their claim
adjudicated, trying to figure out how they are going to pay for
supper. This is an outrage. I am really frosted. I look forward
to that hearing, Mr. Chairman, that I hope you will call so
that we can get to the bottom of it. It is absolutely
outrageous.
Now, I have got another matter I wanted to talk to the
Commissioner about, I will take a deep breath and get on to it.
Mr. ASTRUE. I think I am going to take a deep breath too.
Mr. POMEROY. It relates to a very useful technology that is
available for the taking of claims for disability in a remote
location. It is basically capturing technology that are
otherwise--it is called video claims taking. It is a pilot that
has been administered in the State of North Dakota. It has had
particular application to Indian reservations, it has been run
in facilities, Indian health service facilities. The early
experience I believe is quite good, and I look forward to
talking with you about that and specifically--you have got so
much to get your hands around, but I do believe this is a
promising technology.
Mr. ASTRUE. I have actually discussed that just initially
with the staff and the feedback that I have gotten on the
demonstration is positive. I think I mentioned before you
arrived that I think the only real concern is the cost; and
with everything else that we have to pay for, if we were going
to roll that out in an equal way around the country, what else
would we not be able to do? So, I think, at least it is my
understanding, that the initial assessment is very positive and
that they feel that applicants on reservations sometimes tend
to schedule appointments and then not show under the more
traditional system. They are right there getting a health
evaluation and they go in and they are more likely to follow
through. I think people are very pleased by that outcome and
feel that it serves the purposes of the program.
Mr. POMEROY. Yes, especially as we deal with rural reaches
of the country where basically we have been rationing access to
the disability program in part by distance and ability of some
people to just get through this.
Mr. ASTRUE. Right, and I know that there is also some
experimentation with that at the hearings and appeals level,
although I am a little bit less fluent with that right now.
Mr. POMEROY. When you are seasoned, I would very much like
to get you to North Dakota and show you this site personally.
Mr. ASTRUE. Sure.
Mr. POMEROY. Either that or a representative. I thank you.
I am really beside myself about this. The reality is that the
hardships that some are bearing out there because of utter
bureaucratic nonsense, it is infuriating to say the least. I
yield back.
Chairman MCNULTY. I thank the gentleman for his advocacy
and his passion on the issue, and we will certainly take a
suggestion under advisement for further action. I would ask,
Commissioner, that when you report back in that report you are
going to do on the backlog to me and Senator Baucus and the
others in April, that you would pay particular attention to the
ALJ issue so that we can get some more information on that.
Mr. ASTRUE. I would be delighted to do that.
Chairman MCNULTY. There may be some Members of the
Committee who could not make it for one reason or another
today, would you be willing to respond to their questions in
writing if we supply them to you?
Mr. ASTRUE. Absolutely, and it does not even have to be in
connection with the hearing, any time.
Chairman MCNULTY. I understand. I just again wanted to
thank Commissioner McMahon and you for being here. We do deeply
appreciate the fact that you took your oath of office on Monday
and you came here on Wednesday, and both Sam and I are deeply
appreciative.
Mr. ASTRUE. Thank you very much.
Chairman MCNULTY. Thank you very much. The next panel may
be seated and while they are coming forward, I will introduce
three of them, and I would like to ask my colleague, Stephanie
Tubbs Jones, to introduce the fourth. We have on this panel
Sylvester J. Schieber, who is the Chairman of the Social
Security Advisory Board. We have Nancy Shor, who is executive
director of National Organization of Social Security Claimants'
Representatives; and Jim Fell, who president of the Federal
Managers Association Chapter 275. The fourth panelist, I would
like to ask Stephanie Tubbs Jones to introduce her constituent.
Ms. TUBBS JONES. Thank you very much, Mr. Chairman. I am
just so happy to have Mr. Warsinskey back here once again on
behalf of the National Council of Social Security Management
Association. Know that the rage coming from me and my colleague
is earnest in the process. Now that we are the majority, I have
more Committees than I had before so that causes me to run out,
but I wanted to welcome you and your colleagues here. Please,
Rick, let's get together back in Cleveland.
Mr. WARSINSKEY. Let's get it together in Cleveland?
Ms. TUBBS JONES. Let's get together back in Cleveland.
Mr. WARSINSKEY. I am sorry, okay.
Ms. TUBBS JONES. Okay?
Mr. WARSINSKEY. All right.
Ms. TUBBS JONES. Thank you very much all of you for coming
up. Mr. Chairman, I appreciate your giving me this opportunity.
Chairman MCNULTY. We all appreciate the fact that you came
here today, are willing to give testimony today of all days
because we know it was not the easiest of circumstances to get
here, but thank you for your commitment, for your advocacy. We
will of course submit all of your testimony for the record. We
do ask you to summarize it to an extent and try to keep to
within about 5 minutes, and we will just hear from all you and
then we will go to questions. So, we will start with Mr.
Schieber.
STATEMENT OF SYLVESTER J. SCHIEBER, CHAIRMAN, SOCIAL SECURITY
ADVISORY BOARD
Mr. SCHIEBER. Thank you, Mr. Chairman. Mr. Chairman, Mr.
Johnson, Members of the Subcommittee, I am pleased to have this
opportunity to discuss backlogs with disability programs. I
have been on the Social Security Advisory Board for 9 years.
This has been one of the primary focuses of the Advisory Board
over that whole period. I can speak at the end if you want
about the ALJ issue, or answer questions about it. We have been
looking into it. There are definitely some issues here that
need to be addressed. I think a hearing is probably
appropriate. It may take some legislation to fix things so they
work to make Social Security more effective.
Let me begin by talking about the current situation. Social
Security disability claimants, as you know, often face lengthy
delays in the processing of their claims. The situation may
actually be worse than the numbers indicate. Average times mask
the fact that complex or poorly documented claims can require a
processing time well in excess of the average. Moreover,
hundreds of thousands of claimants each year get benefits only
after additional months in the reconsideration process, and an
additional year or more in the hearings process. The huge
backlogs create pressures that distort the numbers. In 2006,
initial claims pending declined but there was a 38 percent
increase in claims pending over a half year. There was more
than a 115-percent increase in claims sitting at the
reconsideration level for six months or longer.
With inadequate resources, managers face decisions where
both choices are bad. Fairness says concentrate on the oldest
claims but failing to act quickly on easy claims turns them
into difficult ones that consume more resources down the road.
Inadequate resources also push managers to divert funds from
stewardship activities to claims processing. This is the
ultimate example of being penny wise and pound foolish. We have
heard here today about $10.00 savings from preventing improper
benefits being paid, so an additional dollar of administrative
could save the program $10.00. The problem is that the $10.00
does not come back and allow the administration to actually use
some of those saved dollars to do more of these kinds of
services. They go back into the trust funds and you do not get
any credit for those dollars in the budgeting process.
How did we get here? In 2002 and each subsequent year,
enacted administrative funding was well below the amount
requested. The shortfall totaled $1.4 billion compared to the
official budget and over $5 billion compared to the service
delivery budget. The service delivery budget was developed by
former Commissioner JoAnne Barnhart to indicate the annual
budget necessary each year in order for Social Security to
fulfill the range of its mission on a timely basis.
Despite the budget shortfalls, the workload demands
continue to grow. Annual disability insurance applications rose
60 percent since 2000, an increase of 800,000 applicants a
year. Over the next decade, we expect the total caseload
receiving Social Security benefits to go from around 50 million
to about 70 million people. I just did a rough back of the
envelope, truly back of the envelope calculation, that is an
estimated growth of about 4 percent per year. You will need to
check my numbers with a calculator but 2 percent productivity
growth in a stable workforce is not going to satisfy that kind
of a growth rate.
Social Security employees rightly take pride in their can-
do attitude but attitude can only take you so far. At some
point, can-do takes on the proverbial straw that breaks the
camel's back.
What can be done? Former Commissioner Barnhart initiated
important changes that may eventually help ameliorate the
backlog, such as the Electronic Disability Folder and the DSI
Initiative. The ultimate success of these promising changes
depend on adequate resources to provide the technological
development and other support needed to make them work. Year
after year, the Advisory Board has called attention to the need
for more adequate resources. I can reiterate those
pronouncements, but I am mindful of the adage that insanity
lies in repeating the same failed action over and over and
expecting improved results. So, I would like to suggest a few
avenues you might explore to facilitate the process of matching
the program's requirements and its administrative funding.
Since 1994, the Social Security Act required the submission
of a workforce plan budget. Unfortunately, only the single
bottom line number for that budget is made public. Making the
underlying detail available could enhance the ability of
Congress to understand and evaluate the Agency's needs. In the
past, special budget procedures have been adopted for certain
high priority activities, such as investment in modern
technology and accomplishment of disability reviews. There is
of course always concern about overly constraining the
flexibility of the people that have to run the program but
there have been precedents for providing funding mechanisms
directed at high-priority objectives. A third suggestion would
be a thoroughgoing evaluation of Social Security programs with
a view to finding policy improvements that could make the
program easier to administer. The Board's first report in 1997
stressed the importance of careful research and analysis of the
Agency's administrative operations to find ways to improve its
service to the public. The Agency collects enormous amounts of
data about its programs and operations but it still is
deficient in both tools and personnel to capture and use that
data for program evaluation.
Mr. Chairman, I hope these comments are helpful to the
Subcommittee as it examines backlogs to Social Security
disability programs. I will be happy to answer any questions. I
have more extended comments that are submitted to the record.
Thank you.
[The prepared statement of Mr. Schieber follows:]
Prepared Statement of Sylvester J. Schieber, Chairman,
Social Security Advisory Board
Chairman McNulty, Mr. Johnson, Members of the Subcommittee. I am
pleased to have this opportunity to appear on behalf of the Social
Security Advisory Board to discuss the backlogs in the Social Security
disability programs. I would like to give you the Board's perspectives
on what the situation is, how we got there, and--most importantly--what
can be done about it.
What the situation is
As you pointed out in the press release announcing this hearing,
Social Security disability claimants often face lengthy and sometimes
unconscionable delays in the processing of their claims. I think that
situation is well known. I am, if anything, a bit surprised that it
does not get more attention than it has. The only thing I would add to
your assessment of the current situation is that it may be even worse
than some of the numbers indicate.
Average processing times mask the fact that many claims lower the
average because they are simple, obviously severe (or obviously not),
and are well documented. Others may require more complex evaluation
that can require processing time well in excess of the average.
Moreover, a very large number of those who get disability benefits are
required to pursue their claims beyond the initial stage. For example,
a little more than one million of those who applied for benefits in the
year 2000 were ultimately found eligible. About 300 thousand of them
got their benefit awards only after going through the reconsideration
and/or hearing stages. So, while the average processing time for
initial claims is about 3 months, it is not at all unusual to wait
additional months in the reconsideration process, and much more in the
hearings process where average processing times have risen to about a
year and a half and many appeals take much longer.
Moreover, the very existence of long average processing times and
of huge backlogs in high visibility areas such as initial pending
workloads creates pressures that distort the process. Trying to control
those metrics can put too much emphasis on moving easier cases or those
that contribute most to the backlog count at the expense of older cases
and at the expense of cases in categories such as reconsideration which
are not widely reported. In fiscal year 2006, for example, the number
of initial claims pending actually declined slightly from 560 thousand
to 555 thousand. Given the tight budget, this looks like a major
achievement. But the number of initial claims pending longer than 4
months grew by over 7000 and there was a 38 percent increase in claims
pending over half a year. The situation was even more pronounced for
those waiting a decision at the less visible reconsideration level.
Even though the State Disability Determination Services received
substantially fewer reconsideration requests in 2006, the size of the
backlog grew by more than 30,000 claims and there was a more than 115%
increase in the percentage of claims that had been waiting a decision
at the reconsideration stage for more than 6 months.
The number of hearings pending at the end of fiscal year 2006
showed an increase over the prior year from 708 thousand to 716
thousand, but that was far smaller than the 756 thousand projected at
the start of the year. However, this was not because the agency
processed more claims than it had expected to but rather because there
were fewer appeals than expected. That sounds like good news, but at
least part of the reduction in the number of new hearings cases is a
reflection of the growing number of cases remaining undecided at the
earlier, reconsideration stage. And within the hearings stage, as
within the earlier stages, such progress as was made seems to have come
at the expense of those claimants who have been waiting longest for a
decision. While overall pending levels rose by less than 10,000,
hearings cases pending more than 9 months rose by 32,000 including an
increase of 16% in cases pending over a year.
In pointing out these distortions, I do not intend to be critical
of the Social Security Administration's employees or management, but
rather to make sure that you are not confused by some seeming good news
that really masks a very serious and worsening situation caused by
inadequate resources. The fact is that the Social Security programs,
especially the disability programs, are complex, production operations
that demand adequate resources. In the absence of those resources,
program managers are faced with making decisions where both choices are
bad. On the one hand, fairness would seem to dictate concentrating
resources on those claims that have been waiting longest. On the other
hand, failing to act quickly on easy claims will likely turn them into
difficult ones that consume even more resources to update evidence and
to evaluate the additional and worsening conditions that claimants
experience during, and to some extent because of, the delays in
processing their applications.
One of the bad choices that managers have to make when
administrative funding is inadequate is whether or not they should
divert funds from activities which have a long-run payoff in lower
costs in order to meet the immediate pressures of rising claims
backlogs. In that sort of competition, the needs of the disabled
claimant obviously and correctly win out. But funding at a level that
forces that choice is the ultimate in penny-wise and pound foolish
behavior.
Careful actuarial studies show that stewardship activities return
benefit savings that are many times their administrative costs--up to
$10 saved for each $1 spent for some kinds of reviews. Yet, the agency
has been largely abandoning these stewardship activities in order to
move claims along. I realize that there is a budgetary distinction
between administrative and benefit spending, but that distinction is an
artificial procedural construct. Failing to achieve easily attainable
reductions in improper benefit payments is not only wasteful, but it
will worsen the future year total deficits that are, in the last
analysis, what constrains discretionary spending. It also makes a
mockery of the legislative and regulatory rules that define eligibility
for benefits in the first place.
And no one should think that this is a problem that will just go
away with the passage of time. Quite the contrary. Over the coming
decade and a half, the projected rate of growth in the number on the
benefit rolls will be roughly double what it was over the past quarter
century. That is, the size of the Social Security programs will
increase from about 50 million beneficiaries to over 70 million. At the
same time, the agency faces a retirement wave of experienced staff, a
tighter labor force that will make it more difficult and expensive to
hire replacements, and a likely continuation of budgetary constraints.
How did we get here?
The Social Security Advisory Board has attempted over the years of
its existence to point out the need for increased resources. Just last
month, we wrote to the leadership of the Appropriations Committees that
inadequate funding has prevented the Social Security Administration
from providing the level of service to the public and program
stewardship that American taxpayers have a right to expect. Last year,
my predecessor as Chairman submitted testimony to the Finance
Committee, noting that the agency has been provided resources that are
inadequate to enable it to keep up with its workloads. The Advisory
Board issued its first report on the disability programs in August of
1998. In that report, the Board made several references to the need for
more adequate resources. Every year since then, the Board has issued
one or more reports or other statements pointing out the need for more
adequate resources. A quick count by our staff revealed that during my
tenure on the Board since 1998 we have issued some 21 different Board
reports and statements along those lines.
The Congress, in setting up the Social Security Administration as
an independent agency, directed it to develop annual budgets based on
comprehensive workforce plans. In each of the past several years, the
official budget request for the agency's administrative operations has
been lower than the amount in these ``workforce plan'' budgets. As
shown in the table below, the actual amounts enacted in each year of
this 21st Century have been below the SSA workforce budget and also
below the Administration's formal budget request. The shortfall
relative to the official administration budget has totaled $1 billion
over these seven years including nearly half a billion in just the last
2 years. The difference between the enacted budgets and the agency
workforce plan budgets over the period totals over $4 billion.
So what we have are several consecutive years of providing
resources well below the levels recommended by the professional program
managers. During that same period, the demands on the program grew
rapidly. In the Disability Insurance program for example, there were
1.3 million new benefit applications in the year 2000. By 2005, that
number had grown to 2.1 million--an increase of 60 percent over the
period.
----------------------------------------------------------------------------------------------------------------
Social Security Administrative Funding (millions)
-----------------------------------------------------------------------------------------------------------------
President's Final
Fiscal Year SSA Request Budget Request Appropriation
----------------------------------------------------------------------------------------------------------------
2000 $6,907.0 $6,741.0 $6,607.0
----------------------------------------------------------------------------------------------------------------
2001 $7,390.0 $7,134.0 $7,124.0
----------------------------------------------------------------------------------------------------------------
2002 $7,982.0 $7,581.5 $7,569.6
----------------------------------------------------------------------------------------------------------------
2003 $7,974.0 $7,937.0 $7,885.1
----------------------------------------------------------------------------------------------------------------
2004 $8,894.5 $8,530.0 $8,313.2
----------------------------------------------------------------------------------------------------------------
2005 $9,310.0 $8,878.0 $8,732.5
----------------------------------------------------------------------------------------------------------------
2006 $10,106.0 $9,403.0 $9,146.6
----------------------------------------------------------------------------------------------------------------
2007 $10,230.0 $9,496.0 $9,297.6
----------------------------------------------------------------------------------------------------------------
Total $68,793.5 $65,700.5 $64,675.6
----------------------------------------------------------------------------------------------------------------
As you indicated in announcing this hearing, Congress has also
added new workloads for the Social Security Administration during this
period including significant responsibilities outside its core mission,
for example, in support of the new Medicare prescription drug program
and to assist with verifications of immigration status.
The Social Security Administration and its management and employees
have always taken pride in their ``can do'' attitude even in the face
of growing workloads, new workloads, and inadequate resources. But
attitude can take you only so far. At some point ``can do'' takes on
the proverbial straw that breaks the camel's back.
We can talk about Social Security as America's premier social
program. We can talk about our commitment to providing ``world class''
service to the American public. We can talk about our concern to
promptly address the needs of the most vulnerable among us, including
those disabled persons who turn to the program for the benefits it
promises. The reality is this. Thousands of cases of disability
applications languish for years as the committed workers at the agency
work through crushing backlogs, rapidly growing application rates, and
steadily declining numbers of workers to process the workloads. If we
want to achieve the publicly stated goals of this program, we have to
pay for doing so, and at this point we are not.
What can be done?
Former Commissioner JoAnne Barnhart, who recently completed her
term of office, initiated some important changes that, in the long-run,
may significantly help to meet the challenges of the growing caseloads
the agency will see in the future. In particular, she accelerated the
development of an electronic disability case folder that is already
paying dividends in terms of reduced storage and postage costs, quicker
shipment of case folders from one place to the next, and greater
ability for collaboration. She also initiated major changes in the
handling of disability claims including restructuring of the appeals
process and commitment to a much improved quality management system
that can have significant payoff in efficiency, timeliness, and
consistency. This is important and promising, and the Social Security
Advisory Board was and remains very supportive of these initiatives.
But they are not magic bullets.
Many aspects of these changes are very much in the beginning
stages. The new disability system is to be rolled out over the
remainder of this year in the smallest, and in many ways, easiest
region and expanded to the rest of the country over a period of years.
The new quality management system is, at this point, a plan rather than
an accomplishment. And the successes of all these initiatives are very
much dependent upon the provision of adequate resources to complete
them and to provide the technological development and other support
needed to make them work properly. How quickly and how well those
successes are achieved will be affected by whether or not they become
lesser priorities in the face of the competing demands of huge backlogs
of current claims and appeals.
I recently met with a group of state disability determination
directors who are excited that this quality control system will help
them dramatically improve the quality of their determination processes.
They are also gravely concerned that the quality management system will
not be rolled out on a timely basis because there are not resources
available to do so.
In these times of constrained budgets, it is indeed a daunting
challenge to find resources adequate both to deal with the large
current caseloads and to undertake the changes in technology and
process that will be needed to prepare for the even larger caseloads
that are on the way. As I mentioned earlier, the Advisory Board has
repeatedly, over the years since you created it, called attention to
the need for more adequate administrative resources. I could simply
reiterate those earlier pronouncements, but I am mindful of the adage
that insanity lies in repeating the same failed actions over and over
but expecting improved results. So I would like to suggest a few
avenues you might explore to facilitate the process of matching the
program's requirements and its administrative funding. I should tell
you that, because of the limited advance notice of this hearing, I have
not had the opportunity to have my colleagues on the Advisory Board
review these suggestions, but I believe they are generally consistent
with the views the Board has expressed in the past.
As I mentioned earlier, you enacted legislation in 1994 that made
the Social Security Administration an independent agency and directed
the Commissioner to develop and transmit to the Congress a budget based
on a workforce plan. Former Commissioner Barnhart built upon this
provision by developing what she called a ``service-delivery'' budget--
a multi-year funding and workforce plan that showed a path to reducing
the current huge backlogs to appropriate levels over a period of years.
The objective of this Commissioner's budget is very well described in
the President's budget document for fiscal 2008. It says:
------------------------------------------------------------------------
-------------------------------------------------------------------------
The Commissioner developed a multi-year Service Delivery Budget
through 2012 to provide a context for making decisions on needed
improvements in service delivery and fiscal stewardship, and the
requisite staffing to accomplish both.
------------------------------------------------------------------------
The Social Security Act requires this budget to be transmitted to
Congress without change along with the President's own budget. In
developing his budget, the President obviously has to consider all
National needs. It is neither surprising nor inappropriate that his
judgment as to the appropriate administrative budget for the Social
Security Administration may differ from that of the Commissioner. But
the workforce-plan budget required by statute can, as the words of the
President's budget indicate, provide a context for decision-making.
Unfortunately, all that is included in the budget submission is the
single, bottom-line number from the Commissioner's budget and none of
the detail about how that number was derived. A single number does not
provide a ``context for decision-making''; it is simply a number. As
far as I know, that number appears at the end of the Social Security
section in the budget appendix and is used for nothing. The process of
deriving it may be helpful to decision makers within SSA, but it does
not help the Advisory Board or the Congress understand the workforce
needs of the agency. As far as I can tell, it is printed and ignored.
The justification materials presented to and considered by the
Appropriations Committees are entirely based on the official budget
numbers without benefit of the context that could be available if the
background of the workforce-plan or service-delivery budget were
included. I believe this additional transparency in budgeting could
help Congress better understand what is needed to fund the
administrative costs adequately, but knowing and doing are different.
In its past reports concerning the Social Security Administration's
resources, the Advisory Board has on a number of occasions urged that
the agency's administrative funding should not be subject to
discretionary caps in the budget process. Beyond this, I would point
out that Congress has in the past employed special budgetary procedures
aimed at meeting identified needs in the operation of the Social
Security program. For example, over a period of years, there were
special amounts of funding set aside to enable the agency to upgrade
its technology and to carry out continuing disability reviews. There
is, of course, always a concern about overly constraining the
flexibility of the Commissioner to move resources around as
circumstances change, but Congress has occasionally found funding
mechanisms directed at certain high priority objectives to be useful
and effective.
A third suggestion I would make is for a thoroughgoing evaluation
of the Social Security programs with a view to finding policy
improvements that might suggest ways to make the program easier to
administer. In the Board's library we have a copy of the original
Social Security Act. It is somewhere between a sixteenth and an eighth
of an inch thick. The current compilation of the Act is about 3 inches
thick. I realize that much of that relates to Medicare, but the Social
Security and SSI programs also have been amended many times over,
usually with the result of adding complexity. As we move into a future
with larger workloads and continuing budgetary limits, it would be
useful to evaluate existing procedures and rules to see if they can be
made more objective and easier to administer.
In 1997, the very first report the Advisory Board issued called
upon the agency to enhance its policy research and evaluation capacity.
A year later, the Board again called for improved capacity to evaluate
SSA programs: ``It is critically important,'' we said ``for SSA to
conduct, on a continuing basis, careful research and analysis of its
administrative operations. . . . The agency must be able to know what
works and what does not and be looking continually for ways to improve
its service to the public.'' The agency collects enormous amounts of
data about its programs and operations, but it still is deficient in
both tools and personnel to capture and use that data for program
evaluation.
Mr. Chairman. I hope these comments are helpful to the Subcommittee
as it examines the backlogs in the Social Security disability programs.
Those programs have been one of the major concerns of the Social
Security Advisory Board since it first began operations in 1996. The
Board expects to continue its careful review of them. It would be happy
to provide any additional assistance you may want, and I would be happy
to answer any questions you may have.
Chairman MCNULTY. Thank you, Mr. Schieber.
Ms. Shor.
STATEMENT OF NANCY SHOR, EXECUTIVE DIRECTOR, NATIONAL
ORGANIZATION OF SOCIAL SECURITY CLAIMANTS' REPRESENTATIVES,
ENGLEWOOD CLIFFS, NEW JERSEY
Ms. SHOR. Thank you. Thank you for inviting me to testify
today. I am the executive director of the National Organization
of Social Security Claimants' Representatives (NOSSCR), a
membership organization of nearly 3,900 attorneys and other
advocates who represent individuals seeking Social Security
disability and SSI disability benefits.
Social Security and SSI cash benefits and the related
medical coverage they provide are the means of survival for
millions of people with severe disabilities. They rely on SSA
to promptly and fairly adjudicate their claims for disability
benefits. However, delays and backlogs have reached intolerable
levels. If a case goes to the hearing level, it can easily take
more than 3 years to get a decision after filing the
application.
We believe SSA is generally doing a good job with limited
resources and some of its technological advances, such as the
Electronic Disability Folder, should eventually help to
alleviate the problem with backlogs. However, we believe the
primary reason for the increase in disability claims backlogs
is that SSA has not received adequate funding to do the job.
The current situation is dire and without adequate
appropriations for the future, the deleterious impact on
claimants will only grow. We must remember that each claim
filed represents a person with severe disabilities whose life
may be unraveling while waiting for his or her claim to be
properly decided. Families are falling apart, homes are lost,
medical conditions deteriorate, some claimants die while
waiting for a decision and one's stable economic security
crumbles.
Our written statement graphically describes the desperate
circumstances of just a handful of the clients of NOSSCR
members. I would like to present just one case briefly. ``Ms.
C,'' we will call her, is a 49 year old single mother who lives
in Troy, New York. She applied for disability benefits in May
2005 and was denied in February 2006, 9 months later. Ms. C
requested a hearing in April 2006 and is still waiting for a
hearing date. She previously worked for 10 years as a keyboard
operator for the State of New York but has not worked since
December 2003 due to her mental and physical impairments. Since
filing for benefits in May 2005, her life has dramatically
changed. She and her children were evicted from their
apartment. Unable to provide a home for her children, she lost
custody and the children now reside with their father. For 4
months she lived in a homeless shelter in Troy and was finally
able to leave just last week. She was recently hospitalized for
depression because of the multiple stressors in her life. She
is now in treatment for depression. To speed up her case, her
attorney asked to have this case decided ``on the record,''
that is without a hearing but the request was denied. Her
attorney reports that there was at least an 18 month wait for a
hearing in the Albany, New York hearing office, which brings us
to November 2007 for Ms. C. Her attorney has been told that the
wait for a hearing could be even longer because four ALJs have
left and only one has been replaced in that office.
How does SSA's budget situation affect individuals like Ms.
C? First, as noted earlier today, processing times have
increased dramatically. According to SSA, the average
processing time for cases at the hearings level this year will
be 17.5 months and 18 months next year, nearly twice as long as
in 2000. This is just an average. In fact, many people will
wait even longer. While the hearing level processing times are
the most striking, it is important to keep in mind that
increases in processing times at any level, such as the
reconsideration slow down last summer, will add to the overall
processing time. SSA's statistics show that the processing
times in many hearing offices are much longer than the 524
targeted for this year. Data from January 2007 show average
processing times in each of the 142 hearing offices from the
date the request for hearing is filed until the hearing is
held. About 40 percent of the hearing offices are above the 16
month average with many approaching the 2 year mark or longer
just to hold a hearing. The Atlanta, Georgia office is
averaging 28.5 months just to get a hearing. This does not
include the time for the actual decision to be issued after the
hearing or for the individual to start receiving benefits if
approved.
Second, the number of pending cases continues to increase
dramatically. According to SSA statistics, the number of
pending cases at the hearing level has increased almost 250
percent since 1999.
Third, staffing levels have decreased, which leads to a
decrease in service. Our members have noted the loss of ALJs
and their support staff in hearing offices across the country.
The hearing freeze and lower replacement rates have had their
impact, especially since many of those SSA employees retiring
are those with the most experience. Because of cuts in budget
requests over the last few years, fewer ALJs have been hired
than planned. This comes despite the fact that almost the same
number of ALJs are now expected to handle more than twice as
many cases in 1999. Even more of a problem may be the inability
to hire their support staff.
Finally, a decrease in service is provided now by the SSA
district offices and State agencies. While the delays in
backlogs at the hearing level are the most dramatic, the
current budget situation has left all SSA offices and State
Agency offices without adequate resources to meet all the
current responsibilities. Under the President's Fiscal Year
2008 budget request, SSA will need to reduce its staff. This
does not take into account reductions in 2006 and 2007.
My written statement provides more details, and specific
examples of the impact on the people with disabilities. As
evidenced from the case examples, I want to stress that NOSSCR
members are dismayed by the plight of their clients as they
wait for hearing and decisions in their claims for disability
benefits. Our members do and will continue to do all they can
to move cases more expeditiously. While the over-arching
problems with the backlogs will only be resolved when SSA has
adequate funding, we stand ready to help in any way that we
can.
We thank you for the opportunity to testify today. We will
be pleased to answer any questions you may have.
[The prepared statement of Ms. Shor follows:]
Prepared Statement of Nancy Shor, Executive
Director, National Organization of Social Security Claimants'
Representatives, Englewood Cliffs, New Jersey
Chairman McNulty, Representative Johnson, and Members of the Social
Security Subcommittee, thank you for inviting NOSSCR to testify at
today's hearing on the Social Security Administration (SSA) disability
claims backlogs.
I am the Executive Director 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 and
Supplemental Security Income (SSI) disability benefits. NOSSCR members
represent these individuals with disabilities in proceedings at all SSA
administrative levels, but primarily at the hearing level, and also in
federal court. NOSSCR is a national organization with a current
membership of nearly 3,900 members from the private and public sectors
and is committed to the highest quality legal representation for
claimants.
The focus of this hearing is extremely important to people with
disabilities. Title II and SSI cash benefits, along with the related
Medicaid and Medicare benefits, are the means of survival for millions
of individuals with severe disabilities, They rely on SSA to promptly
and fairly adjudicate their applications for disability benefits. They
also rely on the agency to handle many other actions critical to their
well-being including: timely payment of their monthly Title II and SSI
benefits to which they are entitled; accurate withholding of Medicare
Parts B and D premiums; and timely determinations on post-entitlement
issues that may arise (e.g., overpayments, income issues, prompt
recording of earnings).
SSA is generally doing a good job with limited resources and has
improved its technological capacity in ways that will help to
accomplish its work. However, under the current budget situation,
people with severe disabilities have experienced increasingly long
delays and decreased services in accessing these critical benefits.
Processing times have continued to grow, especially at the hearing
level where the delays have reached intolerable levels. In some hearing
offices, our members report that claimants wait more than two years
just to receive a hearing, which does not count the time for a decision
to be issued.
We believe that the main reason for the increase in the disability
claims backlogs is that SSA has not received adequate funds to provide
its mandated services. Former Commissioner Barnhart has stated that if
the proposed budgets requested by the President over the past five
years had been fully funded, there currently would be no backlogs.
While the current situation is dire, without adequate appropriations to
fund SSA, the situation will deteriorate even more.
Other witnesses today will address the statistics that underscore
the current state of SSA's inadequate level of resources. Later in my
testimony, I also will discuss these issues. However, we must recognize
that behind each number and claim is an individual with disabilities
whose life is coming unraveled while waiting for his or her claim to be
properly decided--families are torn apart; homes are lost; medical
conditions deteriorate (and many claimants die while waiting for a
decision); and once stable financial security crumbles. Described below
are only a very small number of cases from NOSSCR members that starkly
exemplify the desperate circumstances in which their clients find
themselves while waiting for their claims to be decided.
Ms. C_Troy, NY
Ms. C is a 49 year old single mother who lives in Troy, NY. She
applied for Social Security disability benefits on May 2, 2005. She
previously worked for ten years as a keyboard operator for the State of
New York. Ms. C has not worked since December 2003. She was denied
benefits in February 2006, nine months after her application was filed.
Ms. C requested a hearing in April 2006.
Since filing for benefits in May 2005, Ms. C and her children were
evicted from their apartment. Unable to provide a home for her
children, she lost custody and the children now live with their father.
For four months, Ms. C lived in a homeless shelter in Troy, and was
finally able to leave just last week. She was recently hospitalized for
depression because of the multiple stressors in her life. Ms. C also
has a borderline IQ and bilateral neural stenosis in her cervical
spine. Also, she is in treatment for a depressive disorderat a local
mental health clinic.
Ms. C calls her attorney every month to check on the status of her
appeal. There is currently an 18-month wait for a hearing at the
Albany, NY hearing office. Her attorney asked to have this case decided
``on the record,'' without the need for an in-person hearing. However,
the request was denied. Assuming the 18-month processing time, Ms. C
can expect to have her hearing in November 2007. Her attorney has been
told by the Albany hearing office that the wait will only get longer:
two administrative law judges (ALJs) have retired in the last two
years; one ALJ is set to retire in May 2007; and one ALJ is now the
Acting Regional Chief ALJ. There has been only one ALJ replacement.
Ms. W_Norwood, PA
Ms. W is a 46 year old woman who lives in Norwood, PA. She filed
for disability benefits in May 2005 and was denied in October 2005. She
requested her hearing in December 2005. The original hearing office was
in Elkins Park, PA, but without explanation, her case was transferred
to the downtown Philadelphia hearing office in the spring of 2006. It
is currently sitting ``unworked'' in the Philadelphia hearing office
and will not be scheduled for a hearing until, at best, the end of
2007, which will be two years after she filed her request for hearing.
According to her attorney who handles cases throughout the Philadelphia
area, the longest current processing times in the Philadelphia region
are at the downtown Philadelphia hearing office, although they used to
have the shortest times. The processing times are shorter at the Elkins
Park hearing office.
Ms. W's main impairment is status post shunt placement in 1986 for
pseudotumor cerebri. She worked steadily until May 2005, but was fired
due to poor attendance because of her medical conditions. Ms. W has the
full support of her doctor for receipt of disability benefits. She also
is being treated for low back pain with radiculopathy due to herniated
discs, bilateral hip bursitis, chronic knee pain, and depression. While
waiting for her hearing, she has now developed hearing loss in both
ears. Recently, she was diagnosed with leukocytosis and is being tested
for cancer.
While waiting for a hearing in her case, Ms. W spent all of her
savings and she had to apply for welfare. She worked all of her life
and hated having to file for welfare, but had no alternatives. Her
house went to foreclosure, but her fiance saved it and now owns the
house. He then developed colon cancer and has required surgeries. His
prognosis is poor and he is the only family Ms. W has. Ms. W. worries
that she will lose him and her house and will have nowhere to live.
Mr. M_Bowling Green, KY
Mr. M is a 43 year old man who resides in Bowling Green, KY. He is
a former general manager for a mobile home sales company. He became
unable to work in December 2004 due to heart problems, diabetes,
neuropathy in his legs, two herniated discs, high blood pressure, and
depression. He filed his claim for disability benefits, without
representation, in early 2005. He sought legal help in September 2005
because he had not received a decision. It was then discovered that the
SSA district office had no record of an appeal that the claimant
insists he filed. As a result, Mr. M had to start his case over in
September 2005 and file a new application. He is now waiting for a
hearing with an ALJ and it will be at least several more months before
the hearing is scheduled.
Mr. M is a single parent and the father of five minor children who
all live with him. He became a single parent last year when his wife
committed suicide.
Last year Mr. M began to take a new type of heart treatment called
ECT (external counterpulsation). This required regular visits to the
doctor's office. However, he had to give up this promising treatment
when he lost his medical coverage. He gets some help from a local
church, but he is overwhelmed by his children, his medical conditions,
and the frustration of dealing with SSA.
Mr. R_Pico Rivera, CA
Mr. R is 41 years old and lives in Pico Rivera, California, with a
solid work history as a bottler for a soft drink company and as a bus
driver. He injured his back at work for the soft drink company.
He filed his Social Security disability benefits claim on July 22,
2005. The claim was denied and he eventually filed a Request for
Hearing on December 19, 2005. He finally had his hearing on February 8,
2007. He attempted rehabilitation, but despite referrals for surgery by
two doctors, the workers' compensation carrier refused to cover this
service. For over one year, he has been unable to receive proper
medical care for his back condition or for his bilateral carpal tunnel,
for which the same two doctors also recommended surgery. His inability
to get treatment for his physical impairments and the lack of
resolution of the workers' compensation and Social Security disability
cases have resulted in total liquidation of his savings and investments
and near homelessness. He now requires mental health treatment,
including medication. He did attempt a return to work, with modified
duties, but was unable to sustain this modified work after three weeks.
Earlier medical records showed gradual improvement, including
reduced levels of pain, in response to treatment. According to his
attorney, this is an individual who desired to return to work as soon
as possible. However, his inability to receive proper medical care has
directly resulted not only in deterioration of Mr. R's condition (as
shown in recent MRIs), but also development of a severe mental health
disorder.
Mr. T_Gadsden, AL
Mr. T lives in Gadsden, AL, and is 50 years old. He worked as a
welder and then operated a bowling alley for 20 years until he had a
stroke in November 2004, when he was only 48 years old. He applied for
disability benefits in December 4, 2004, and was denied in the spring
of 2005. A hearing was requested in June 2005 and was held 18 months
later in December 2006. During that time, Mr. T cashed in all of his
savings bonds. His health deteriorated, as did the health of his 83
year old mother who was the only available person in the family left to
look after him. His mother was hospitalized with lung cancer in 2006
(she eventually passed away), leaving Mr. T without support. His
brother lost his job in Kansas because he had no choice but to move to
Alabama to help Mr. T.
The unfortunate, and avoidable, part of the long wait is that in
January 2007, the ALJ issued a fully favorable decision, based on a
psychological consultative examination that was performed in May 2005,
shortly after the initial application was filed. The psychologist
concluded that Mr. T. was unable to perform simple tasks, make work-
related decisions, or perform at all in a work environment. If SSA had
made the right decision at the time of that examination, Mr. T and his
family, including his elderly and dying mother, might not have endured
such hardship for an additional 18 months.
Mr. B_Garland, TX
Mr. B is a 48 year old former machine operator living in Garland,
Texas. He has been diagnosed with ischemic heart disease and filed his
application for Social Security disability benefits in October 2004.
His request for hearing was filed in April 2005, twenty-two months ago,
and he has yet to have a hearing. While he has been waiting for a
hearing, Mr. B has lost his home as it went to foreclosure.
Mr. O_Dallas, TX
Mr. O is a 44 year old former painter and cab driver living in
Dallas, Texas. He has diabetes, high blood pressure, and kidney and
heart problems. He filed his application for Social Security disability
benefits in January 2005. His request for hearing was filed on November
29, 2005, and it has not been scheduled. While waiting for his hearing,
Mr. O has been evicted from his apartment and is now homeless, moving
from shelter to shelter.
Ms. S_Houston, TX
Ms. S is a 48 year old former teacher living in the Houston, Texas,
area. She has back, neck, carpal tunnel and arthritis problems. She
filed her application for Social Security disability benefits in June
2004. Her request for hearing was filed in January 2005, twenty-five
months ago, and has not been scheduled yet. While waiting for her
hearing, Ms. Smith has developed extreme depression, anxiety and panic
attacks.
Mr. G_South Euclid, Ohio
Mr. G is 41 years old and resides in South Euclid, Ohio. He suffers
from diabetes but was able to maintain employment for 15 years as a
security officer. However, in March 2005, he developed an abdominal
fistula and required a bowel resection. Mr. G's diabetes slowed the
healing of the abdominal wound, which would not close. He obviously
could not work with an open stomach wound and he filed for disability
benefits. His claim was denied because SSA did not believe his
condition would last 12 months.
A request for hearing was filed on December 2, 2005. On June 5,
2006, his attorney submitted a letter from the treating surgeon to the
hearing office. The treating surgeon explained that Mr. G continues to
have an open wound and that multiple surgeries will be needed. A
request by his attorney for an on the record decision accompanied the
surgeon's letter. There has been no response.
In the meantime, Mr. G lost his apartment and moved in with a
friend. This has been difficult because his wound requires a very clean
environment. A second request for an on the record decision and photos
showing Mr. G's large open wound were submitted on September 28, 2006.
Again, there has been no response to this request from the hearing
office. Mr. G is currently in the hospital for more staged surgeries.
Mr. S_Cleveland, Ohio vicinity
Mr. S lives in the Cleveland, OH, vicinity. He has been diagnosed
with paranoid schizophrenia. He sees his psychiatrist at least twice a
month and has a mental health case manager. Both have reported that Mr.
S cannot work. A request for hearing was filed on December 5, 2005. In
September 2006, the hearing office was alerted that Mr. S was at risk
of losing his home. He was placed on the ``dire need'' list to expedite
his hearing, but his attorney was informed that there are at least 100
individuals that qualify as ``dire need.'' On January 9, 2007, Mr. S
lost his home. He is still waiting for a hearing.
Mr. L_Bolivia, NC
Mr. L is a 52 year old former tugboat captain who lives in Bolivia,
NC, a very small town in Brunswick County, NC. He has been diagnosed
with status post three level cervical fusion after a fall off the roof
of his sister's house where he was helping with some repairs. He filed
his application for Social Security disability benefits in June 2005.
His treating neurosurgeon says his fusions need to be redone, but Mr. L
has no health insurance and no money, so further surgery will have to
wait. While awaiting resolution of his claim, Mr. L's home went to
foreclosure, forcing him to move in with his aged and ailing mother.
Prior to the hearing in December 2006, his attorney documented the
foreclosure and specifically requested that the hearing office expedite
his hearing to avoid foreclosure. However, the request to expedite was
denied.
Mr. L.'s hearing was scheduled eleven months after his request for
hearing was filed and was finally held in December 2006. But he is
still waiting for a decision. His attorney regularly handles cases in
this particular hearings office and, based on his experience, reports
that hearings are held more promptly than in other locations. However,
it is fairly routine to wait more than six months after the hearing is
held to receive a decision, and sometimes it can take more than one
year. His attorney believes that the problem is one of manpower, as the
hearing office does not have the support staff to get the decisions out
in a timely fashion.
What do these cases tell us about the current situation at SSA?
I. Processing times are reaching intolerable levels.
In the Hearing Advisory, Chairman McNulty stated: ``The current
delays in receiving disability benefits are completely unacceptable.''
We emphatically agree with Chairman McNulty. The average processing
times for cases at the hearing level have increased dramatically since
2000, when the average time was 274 days.\1\ In the current fiscal
year, SSA estimates that the average processing time for disability
claims at the hearing level will be 524 days and will increase to 541
days in FY 2008,\2\ nearly twice as long as in 2000. And it is
important to keep in mind that this is just an ``average.'' In fact,
many claimants will wait even longer than the ``average'' time. And,
while the ``average'' processing times at the initial and
reconsideration levels are shorter than at the hearing level, there are
still individual cases that will take considerably longer, as described
in several of the case examples above, that also add to the overall
processing time.
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\1\ Social Security Advisory Board, Improving the Social Security
Administration's Hearing Process (Sept. 2006)(``SSAB Report''), p. 8
\2\ Social Security Administration: Fiscal Year 2008 Justification
of Estimates for Appropriations Committees (``SSA FY 08 Budget
Justification''), p. 81.
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The current processing times in some hearing offices are striking,
and much longer than the 524 days targeted by SSA in FY 2007. Data from
January 2007 indicates that the average time from the request for
hearing to the date the hearing is held is 16 months, or about 485
days. The average time from the date of the hearing to the decision is
two months, an additional 60 days. Thus, the average as of January
2007, only four months into the fiscal year, is already 545 days.\3\
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\3\ SSA Office of Disability Adjudication and Review, ``NETSTAT''
List of Processing Times--January 2007.
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Of the 142 hearing offices, 57 are above the 16-month average,
according to SSA's statistics.\4\ This represents about 40% of all
hearing offices. Offices above the average include:
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\4\ SSA Office of Disability Adjudication and Review, ``NETSTAT''
List of Processing Times--January 2007.
Pasadena, CA
San Francisco, CA
Pittsburgh, PA
Eugene, OR
Portland, OR
Dallas (North), TX
Houston, TX
Other hearing offices that are approaching the two-year mark just
to hold a hearing include:
Albuquerque, NM: 20.5 months
Atlanta, GA: 28.5 months
Buffalo, NY: 24 months
Atlanta (North) GA: 26 months
Charlotte, NC: 22 months
Columbus, OH: 23 months
Dayton, OH: 20 months
Detroit, MI: 22 months
Flint, MI: 21.5 months
Grand Rapids, MI: 22 months
Jackson, MS: 22 months
Las Vegas, NV: 21.5 months
Miami, FL: 26 months
Seattle, WA: 19.5 months
Spokane, WA: 20 months
Tampa, FL: 22 months
It is important to keep in mind that the 16-month processing time
is only an ``average'' and only counts the time until the hearing is
held. The actual processing time is even longer. When the ``average''
time from ``hearing held'' to ALJ's decision is added (60 days), many
more hearing offices are approaching the two year and longer mark. As
noted in Mr. L's case above, even those hearing offices with below
average times may, in fact, have considerably longer processing times
when the time from the date of the hearing until the decision is issued
is added.
The impact of the budget and staffing cuts in district offices also
affect the processing times at the hearing levels. Our members have
reported that cases are sitting longer in district offices after
requests for hearings are filed, often adding months--or years--to the
processing time. In a case from Providence, RI, a claimant is currently
waiting for an ALJ hearing where the request for hearing was filed by
the claimant pro se in 2004. The request was timely sent to the hearing
office but without the claims folder. The hearing office returned the
file to the SSA district office, where the case sat for more than two
years. The hearing request and folder were finally sent to the hearing
office only one month ago after an attorney became involved in the case
and started to track what happened. The hearing office has finally
scheduled the case for an expedited hearing in view of the more than
two-year delay.
II. The number of pending cases continues to increase.
Like processing times, the number of cases pending at hearing
offices continues to grow. As noted by the Social Security Advisory
Board (SSAB): ``The size of the pending workload in hearing offices--
the hole that SSA has to dig itself out of--has followed a pattern
similar to that of processing times.'' \5\ The number of pending cases
at the hearing level reached a recent low in FY 1999 at 311,958 cases.
The numbers have increased dramatically since 1999, reaching 711,284 in
FY 2005.\6\ And SSA estimates the numbers to continue a significant
increase: 752,000 in FY 2007 and 768,000 in FY 2008. And these
increases will occur despite an expected increase in the productivity
of ALJs in issuing decisions.\7\
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\5\ SSAB Report, p. 9.
\6\ SSAB Report, p. 10.
\7\ SSA FY 08 Budget Justification, p. 81. SSA keeps statistics on
the number of pending cases in each hearing office, which NOSSCR has
received through Freedom of Information Act (FOIA) requests. The
numbers vary dramatically from office to office and do not necessarily
correlate to large population centers.
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However, even for hearing offices with a lower number of pending
cases, the numbers do not tell the whole story. Because of the
disparities between hearing offices, many of our members have reported
that SSA has been transferring cases from offices with high numbers of
pending cases to offices with lower numbers where the hearings are held
by video conference, if the claimant agrees. While this is
understandable in a national program, it nevertheless means that
claimants who live near hearing offices with lower numbers of pending
cases will end up waiting longer.
III. Staffing levels have decreased which means a decrease in service.
Our members have noted the loss of ALJs and support staff in
hearing offices around the country. Former Commissioner Barnhart had
planned to hire an additional 100 ALJs in FY 2006 but due to cuts in
the President's budget request, she was able to hire only 43. The real
impact of the burden on the current ALJ corps can be seen by comparing
statistics from 1999 and 2005, when nearly the same number of ALJs were
expected to handle more than twice as many cases: In 1999, there were
1090 ALJs to handle 311,958 cases, while in 2005, there were 1096 ALJs
to handle 711,284 cases.\8\
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\8\ SSAB Report, p. 10.
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Whether there are an adequate number of ALJs may not even be the
primary staffing issue in hearing offices. Productivity is not related
solely to the number of ALJs, but also to the number of support staff.
In 2005, the median hearing office had 4 to 4.5 staff members per ALJ.
This represents a significant decrease, about 20 to 25 percent, from
the 5.4 staff per ALJ in 2001 at a time when the number of pending
cases was much lower.\9\
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\9\ SSAB Report, p. 10.
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IV. Impact on service provided in SSA field offices.
Under the current budget situation, people with severe disabilities
have experienced long delays and decreased services provided in SSA
field offices, which do not have adequate resources to meet all of
their current responsibilities. Of greatest concern, even with the
modest increase SSA is seeking for FY 2008, is that SSA will need to
reduce its staff. Despite an expected increase in the number of initial
disability claims expected to be filed in FY 2008, the number of SSA
and Disability Determination Services (``state agencies'') Full-Time
Equivalents (FTEs) is expected to decrease from FY 2007.\10\ This does
not take into account the drop in the number of positions from FY 2006.
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\10\ SSA FY 08 Budget Justification, p. 81 and 90. In FY 2007, it
is projected that 577,000 new disability claims will be filed; in FY
2008, the estimate is 627,000 claims. In FY 2007, the total SSA/DDS
workyears is estimated to be 74,823; in FY 2008, the estimate is 74,596
workyears.
A. Impact on disability claims. Under the current SSA budget
situation, it can be expected that delays will grow not only at the
hearing level but also at the initial and reconsideration levels. A
recent action taken by SSA demonstrates the scope of the problem. In
June 2006, SSA was forced to direct all available resources to the
processing of initial applications, and away from processing
reconsideration level cases, when the initial application backlog
became too high. The decision to redirect resources was caused
primarily by the cut in the President's request for fiscal year 2006.
In some states, this meant that reconsideration cases were not
processed for a period of time, unless the state agency was notified of
dire circumstances. Two current cases handled by NOSSCR members are
graphic examples of the impact that this action could have on
claimants. What would have happened to these individuals if the
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reconsideration slow-down was in place?
Ms. S_Hardyville, KY. Ms. S's case is currently
pending at the reconsideration level. She is 57 years old and
resides in Hardyville, KY. She worked as a certified nursing
aide. She was involved in a terrible automobile accident
leaving work in the fall of 2006. Due to her pulmonary
injuries, she will be bedridden and on a ventilator for the
rest of her life. After months in the hospital, she is at home
and her daughter is taking care of her. After receiving
preliminary approval for disability benefits, her initial
application was inexplicably denied. She has no health
insurance and was forced to leave a rehabilitation hospital due
to lack of insurance coverage. She also has no means to pay for
home health care. She does not qualify for any community-based
or state-funded programs because her husband's monthly
disability check places their family income above the income
eligibility levels. Despite medical evidence supporting the
severity and permanence of Ms. S's injuries and her dire
financial and medical needs, she is still waiting for a
decision on her request for reconsideration.
John_Dickinson, ND. ``John'' (his name has been
changed for privacy reasons) lives in the Dickinson, ND
vicinity. He has a chordoma, which is a rare form of a brain
tumor. In addition, he suffers from failing kidneys. The
radiation therapy that John underwent for his tumor is killing
off all of the glands in his body. John has been told by his
doctors that his condition will kill him. The only question is
when. John applied for Social Security disability benefits in
October 2006 and was inexplicably denied on December 29, 2006.
Because they are experiencing financial hardship paying for
John's medications and medical bills, John and his wife have
applied for heating assistance. With the assistance of his
attorney, John has filed a request for reconsideration and is
waiting for a decision. The sooner John can receive disability
benefits, the better he can live out his last days.
B. Impact on post-entitlement work. These accumulated staffing
reductions have already translated into SSA's inability to perform
post-entitlement work, let alone reducing the backlogs in the
disability appeals process. Not surprisingly, with millions of new
applications filed each year, SSA emphasizes the importance of
processing applications, determining eligibility, and providing
benefits. Once a person begins to receive monthly benefits, there are
many reasons why SSA may need to respond to contacts from the person or
to initiate a contact, known as ``post-entitlement work.'' Generally,
this workload does not receive the priority it should. Frequently, when
SSA is short on staff and local offices are overwhelmed by incoming
applications and inquiries, they are necessarily less attentive to
post-entitlement issues. For people with disabilities, this can
discourage efforts to return to work, undermining an important national
goal of assisting people with disabilities to secure and maintain
employment.
One key example of post-entitlement work that has fallen by the
wayside in the past is the processing of earnings reports filed by
people with disabilities. Typically, the individual calls SSA and
reports work and earnings or brings the information into an SSA field
office, but SSA fails to input the information into its computer system
and does not make the needed adjustments in the person's benefits.
Years later, after a computer match with earnings records, SSA notifies
the person was overpaid, sometimes tens of thousands of dollars, and
sends an overpayment notice to this effect. These are situations where
the individual is clearly not at fault. However, all too often, after
receiving the overpayment notice, the beneficiary will tell SSA that he
or she reported the income as required and SSA will reply that it has
no record of the reports.
When this occurs, it may result in complete loss of cash benefits
(Title II benefits) or a reduction in cash assistance (SSI). It also
can affect the person's health care coverage. To collect the
overpayment, SSA may decide to withhold all or a portion of any current
benefits owed, or SSA may demand repayment from the beneficiary if the
person is not currently eligible for benefits. Not surprisingly, many
individuals with disabilities are wary of attempting to return to work,
out of fear that this may give rise to the overpayment scenario and
result in a loss of economic stability and potentially of health care
coverage upon which they rely. As a result of this long-term
administrative problem, anecdotal evidence indicates that there is a
widespread belief among people with disabilities that it is too risky
to attempt to return to work, because the beneficiary may end up in a
frightening bureaucratic morass of overpayment notices, demands for
repayment, and benefit termination.
C. Impact on performing continuing disability reviews (CDRs). The
processing of CDRs is necessary to protect program integrity and avert
improper payments. Failure to conduct the full complement of CDRs would
have adverse consequences for the federal budget and the deficit.
According to SSA, CDRs result in $10 of program savings for each $1
spent in administrative costs for the reviews.\11\ The number of CDRs
is directly related to whether SSA receives the funds needed to conduct
these reviews. The number of reviews in 2006 was reduced by more than
50%, due to the lower level of appropriations. Even though the great
majority of CDRs result in continuation of benefits, the savings from
those CDRs that result in terminations are substantial because of the
size of the program and the value of the benefits provided.
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\11\ SSA FY 08 Budget Justification, p. 80.
D. New caseloads are added without providing the funds to implement
these provisions. Over the past few years, Congress has passed
legislation that added to SSA's workload, but does not necessarily
provide additional funds to implement these provisions. Recent examples
---------------------------------------------------------------------------
include:
1. Conducting pre-effectuation reviews on increasing numbers
of initial SSI disability allowances. SSA must review these
cases for accuracy prior to issuing the decision.
2. Changing how SSI retroactive benefits are to be paid. SSA
must issue these benefits in installments if the amount is
equal to or more than three months of benefits. The first two
installments can be no more than three months of benefits each,
unless the beneficiary shows a hardship due to certain debts.
Many more cases will need to be addressed because under prior
law, the provision was triggered only if the past due benefits
equaled 12 months or more. With the trigger at three months, it
is likely that many more beneficiaries will ask SSA to make a
special determination to issue a larger first or second
installment.
3. New SSA Medicare workloads. SSA has new workloads related
to the Medicare Part D prescription drug program, including
determining eligibility for low-income subsidies, processing
subsidy changing events for current beneficiaries, conducting
eligibility redeterminations, and performing premium
withholding. And beginning in FY 2007, SSA will make annual
income-related premium adjustment amount determinations for all
current Medicare beneficiaries for the new Medicare Part B
premium for higher income beneficiaries. SSA will also make the
determinations for new Part B applicants.
CONCLUSION
Thank you for the opportunity to testify today. The examples of
claimants from NOSSCR members demonstrate, in human terms, the terrible
impact of the delays caused by the disability claims backlogs. We urge
Congress to provide SSA with adequate resources to perform its
workloads, which are vital to people with disabilities.
Chairman MCNULTY. Thank you, Ms. Shor.
Mr. Warsinskey.
STATEMENT OF RICK WARSINSKEY, PRESIDENT, NATIONAL COUNCIL OF
SOCIAL SECURITY MANAGEMENT ASSOCIATIONS, INC., CLEVELAND, OHIO
Mr. WARSINSKEY. Chairman McNulty, Congressman Johnson, and
Members of the Subcommittee, my name is Rick Warsinskey and I
represent the National Council of Social Security Management
Associations. Our primary memberships are in the Social
Security field offices and teleservice centers throughout the
country but we do have some members in the hearings offices
too. On behalf of our membership, I am pleased to have the
opportunity to submit this testimony.
SSA is facing many challenges. One of the most compelling
is the 717,000 pending hearings, which take 508 days on average
for a decision. In 2000, there were only 311,000 cases pending,
taking on average 274 days to process. These severe delays are
a national problem. They are found in the ODAR hearings offices
throughout the country. For example, in the Albany, New York
hearings office it takes on average about 484 days to process a
hearing. In the Dallas North hearings office, it takes about
579 days. The pending hearings are expected to continue to grow
in Fiscal Year 2008 to about 768,000 cases and the processing
times to increase even more to 541 days while SSA's total
staffing is being cut by approximately 4,000 positions from
Fiscal Year 2006 to 2008. As a result, there will be very
little hiring in SSA. It is interesting to note that total
Executive Branch employment is expected to increase 2.1 percent
for Fiscal Year 2006 to 2008 while SSA's employment expects to
drop by 6.2 percent. Every day SSA field offices and
teleservice centers throughout the country are being contacted
by people regarding the status of their hearings, as I am sure
most congressional offices are. Many of these people are
desperate and they have insufficient funds to live on and the
delays only add to their sense of desperation.
I would like to note that field offices are also being
overwhelmed by about 68 million business-related telephone
calls. The fact that the public cannot get through to SSA on
the telephone is creating an overwhelming amount of walk-in
traffic in many field offices. The field offices have seen a
reduction of 2,000 positions in just the last 17 months and are
probably at their most inadequate staffing level in recent
memory. In the past couple of months, I have received hundreds
of messages from SSA field offices management describing how
the stress in their offices is incredible. Health problems are
growing. It is truly a dire situation.
Our organization realizes that the backlogs in hearings are
critical. We wish field offices could assist in clearing these
backlogs. We recognize the primary purpose of this hearing is
to discuss the backlogs in SSA, especially in disability, and
also to find some solutions. In the long term, we believe that
the Agency's Disability Service Initiative will assist in
stabilizing the hearing process. We also think that continual
improvements in the management of the hearings process in ODAR
are very important, but we truly believe that we will be back
discussing the same backlog problem that is so devastating for
so many Americans this time next year and the year after and so
on unless we can provide the resources necessary to bring the
backlogs down. It is time to come up with a solution.
The Commissioner of SSA is required by law to provide an
annual budget for the Agency. The budget amount submitted by
the Commissioner for Fiscal Year 2008 is about $10.44 billion,
which is about $843 million more than what the President has
requested. The Social Security Trust Fund currently totals
approximately $2 trillion. As you know, the Social Security
Trust Fund is intended to pay benefits to future beneficiaries
and finance the majority of the operations of the SSA. We know
that $843 million is a lot of money but it is less than one-
twentieth of 1 percent of $2 trillion. Don't the workers who
have paid into this trust fund with their taxes deserve to
receive due consideration and receive the very benefits they
have paid for in a timely manner?
We urge Congress to provide SSA with enough resources to
meet our responsibilities to the American public, your
constituents. Resources are important, perhaps the most
important element in addressing not only the backlogs in
hearings but so many other challenges that we are facing and
will continue to face in SSA.
Mr. Chairman, I thank you for the opportunity to appear
before the Subcommittee. I welcome any questions that you and
your colleagues may have.
[The prepared statement of Mr. Warsinskey follows:]
Prepared Statement of Rick Warsinskey, President, National Council of
Social Security Management Associations, Inc., Cleveland, Ohio
Chairman McNulty, Congressman Johnson, and Members of the
Subcommittee, my name is Richard Warsinskey. I represent the National
Council of Social Security Management Associations (NCSSMA). I have
been the manager of the Social Security office in Downtown Cleveland,
Ohio for nearly twelve years and have worked for the Social Security
Administration for thirty-one years. On behalf of our membership, I am
pleased to have the opportunity to submit this testimony to the
Subcommittee.
The NCSSMA is a membership organization of nearly 3,400 Social
Security Administration (SSA) managers and supervisors who provide
leadership in SSA's 1,374 Field Offices and Teleservice Centers
throughout the country. We also have members in the Office of
Disability and Adjudication Review (ODAR). We work closely with many
other associations including the Federal Managers Association which
represents the management in ODAR.
We are the front-line service providers for SSA in communities all
over the nation. We are also the federal employees with whom many of
your staff members work to resolve problems and issues for your
constituents who receive Social Security retirement benefits, survivors
or disability benefits, or Supplemental Security Income. From the time
our organization was founded over thirty-six years ago, the NCSSMA has
been a strong advocate of efficient and prompt locally delivered
services nationwide to meet the variety of needs of beneficiaries,
claimants, and the general public. We consider our top priority to be a
strong and stable Social Security Administration, one that delivers
quality and prompt community based service to the people we serve--your
constituents.
Unfortunately, as we discuss prompt service, we cannot say that
this is currently the case for hundreds of thousands of claimants that
have filed for Social Security and SSI Disability benefits. Right now
there are about 717,000 hearings pending. And at the moment it is
taking 508 days, on average, for a hearings decision. Nearly 300,000
hearings have been pending over a year.
Every day SSA Field Offices and Teleservice Centers throughout the
country are being contacted by people regarding the status of their
hearings, as I am sure most Congressional offices are. Many of these
people are desperate and have insufficient funds to live on and the
delays only add to their sense of desperation.
If we step back to the beginning of this decade, we will find that
there were only about 311,000 hearings pending in 2000, and that the
average time for processing was just 274 days. So the pending cases
have grown 130% in six years, and the average time to process a case
has increased by 234 days.
SSA projects that the average time to process a hearing will
increase by another 33 days, to 541, in FY 2008 if the Agency receives
the level of funding proposed in the President's budget. SSA also
expects the number of pending hearings to increase by another 51,000
cases to 768,000 in FY 2008.
These long waits occur after most claimants have passed the first
two stages of their claim, having received an initial decision and a
reconsideration. By this point, over 200 days have already passed by.
These severe delays are a national problem--they are found in
Hearings Offices throughout the country. For example, in the Albany,
New York Hearings Office, it takes on average 484 days to process a
hearing. For the Dallas North Hearings Office, it takes 579 days.
About three years ago, Congresswoman Stephanie Tubbs Jones and
Senator George Voinovich held separate hearings in Cleveland to discuss
the backlogs in hearings; particularly in the Cleveland Hearings
Office. Back then, the Cleveland Hearings Office had about 11,000
hearings pending and it took on average 550 days for a hearing
decision. Today, three years later, there are 1,300 more cases pending
in this office--or 12,300 cases. And it has taken on average 555 days
to process these cases this year.
The root of this backlog started at the beginning of this decade
when the number of new hearings that were being filed significantly
exceeded the number of dispositions every year. It wasn't until 2006
that the number of receipts and dispositions narrowed to such a degree
that the pending hearings leveled off in the low 700,000 range.
That is, at least, a little good news.
But, as I mentioned above, the pending hearings are expected to
continue to grow in FY 2008 to 768,000, and the processing times to
increase to 541 days. This is not unexpected as SSA's total staffing
including staff in our community based field offices is being cut by
approximately 4,000 positions from Fiscal Year 2006 to Fiscal Year
2008. As a result, there will be very little hiring done during this
period--including in ODAR. It is interesting to note that total
Executive Branch Employment is expected to increase 2.1% from FY 2006
to FY 2008 while SSA's employment is expected to decrease by 6.2%.
For Fiscal Year 2008, the President has proposed an increase for
SSA of approximately $304.0 million over the estimated final level of
funding for Fiscal Year 2007. And yet, staff is being cut. This is due
primarily to the fact that salaries and benefit costs, including those
for the Disability Determination Services, rent, and security costs,
are totaling more than these increased funds. In Fiscal Year 2007, it
appears that the funding for SSA will be just barely enough to avoid an
Agency-wide furlough. Although a furlough at SSA may have been avoided,
as it stands now the Agency will be forced into a near hiring freeze
for the entire year after only being able to replace one out of three
staffing losses last year.
As a result, the FY 2008 President's budget will provide fewer, not
additional, resources for SSA to assist ODAR.
One might ask if SSA Field Offices could assist ODAR with their
workloads. SSA community based Field Offices are probably at their most
inadequate staffing levels in recent memory. Last year Field Offices
could only fill one out of every eight vacant positions and this year
they haven't been able to replace any of the positions they have lost.
The Field Offices have seen a reduction of 2,000 positions in just the
last seventeen months. This cut works out to an equivalent reduction of
ninety-five Field Offices with an average office having twenty-one
employees.
Most of the cuts in Field Offices are in the critical positions of
Claims Representative and Service Representative, those who assist the
vast majority of the forty-two million visitors that come into Field
Offices every year. Just last week, the week ending February 9, 2007
almost 950,000 people visited Social Security Administration Field
Offices. Field Offices are also being overwhelmed by business-related
telephone calls. SSA Field Offices are receiving approximately sixty-
eight million phone calls a year. This is in addition to the forty-four
million phone calls that are received by SSA's 1-800 number on an
annual basis.
The fact that the public can't get through to SSA on the telephone
is creating an overwhelming amount of walk-in traffic in many Field
Offices. Waiting times in many Field Offices are running two to three
hours long. Some visitors are even experiencing wait times over four
hours.
The degradation of SSA's ability to provide good service can be
seen by the results of a Harris Poll that were released on February 6,
2007. This poll ranked SSA last when compared to other Agencies in
response to the question:
``Overall how would you rate the job SSA does--excellent, pretty
good, only fair or poor?'' Only 40% rated SSA as pretty good or
excellent. The next highest (second to last) Agency had a rating of
55%.
The increase in hearings can be tied in large part to the baby boom
generation aging to the point where the highest percent of disability
claims are filed when they reach their 50s. Next year, in 2008, the
first of seventy-eight million baby boomers will be eligible for Social
Security retirement. So there will be a steady rise in retirement
claims with SSA--along with an increasing number of contacts by the
boomers with SSA once they start receiving benefits.
At the end of 2006, there were 40.3 million people receiving
retirement and survivor benefits. This figure is expected to rise by
about 1 million a year over the next ten years and accelerate after
this. SSA took about 3.3 million retirement and survivor claims last
year. So we are looking at a significant increase in work for SSA
offices.
In the past couple of months I have received hundreds of messages
from SSA Field Office management describing how the stress in their
offices is incredible. Health problems are growing. It truly is a dire
situation.
I would like to share with you part of a communication I received
from a member of Field Office management:
``We have lost five employees recently. Two had strokes in
the office in the last month and it may have been due to all
the stress. Another employee is retiring next month. We are
simply being hammered with work. The number of people visiting
our office is well beyond our capacity to handle them. About
30% of our visitors live outside our service area. We don't
receive staff for these extra visitors and the loss of staff
has made it an impossible situation.
Adding to the severe stress is the sense of hopelessness that
we can't replace anyone that leaves. A lot of our work just
sits. We can't get to the appeals being mailed in. Internet
claims being sent to us just sit. People are interviewing all
day and have no desk time. Some days over two hundred people
come in. This is an incredible number of people to see for a
staff our size. We have given up even answering calls that come
into our office because there is no one to answer the
telephones.
We really have a very dedicated and wonderful staff. But so
many are about to have a breakdown. We are just desperate to
get help. And how can we get help if there is a hiring freeze
in SSA?''
Our organization realizes that the situation in ODAR is critical.
But we also realize that the Field Offices are unable to assist with
this situation because the situation in the Field Offices is just as
critical and affects even more people.
There are three areas of concern that must be examined in
addressing the backlogs in ODAR. These areas are: (1) preparing the
cases for the judges to hear; (2) cases that have been prepared but are
still waiting for scheduling and a hearing; and (3) decisions that must
be written after the hearing has been completed. Resources are needed
in all three areas. If you only address two of the three areas, the
backlogs will remain.
For example, I was contacted by a Field Office manager from
Pennsylvania. He told me that he had recently received a call from a
very frustrated staff member in his local Congressman's office. Their
frustration was that the cases were taking an extremely long time to be
written up, which is necessary so that the case could be paid, even
though the judge had decided to approve the case.
One may suggest that the backlogs could be alleviated by shifting
cases around the various ODAR offices. It is true that some offices
have more backlogs than the other offices. This effort may decrease the
variance in the backlogs and the time that it takes to process hearings
cases in some offices, but we do not believe it will significantly
reduce the backlog totals. Offices that assist backlogged offices will
not be able to clear their own cases as quickly.
Another question that many of you may have is if the Agency's
Disability Service Initiative will take care of the backlog problem. We
definitely support this initiative. This initiative is being rolled out
in New England but will take a number of years to go nationwide. It has
been suggested that SSA could accelerate the implementation. We believe
the initiative needs to be fully tested first to ensure that it works
as planned. The initiative is fairly complicated and a quick roll out
would likely create a lot of logistical problems and might create more
backlogs. So we do not see DSI as being able to help address the
backlogs in the immediate future. But we think DSI, coupled with
bringing down the backlogs as suggested through additional resources to
SSA as will be described below, will provide a long-term solution.
The Program Service Centers (PSCs) also play an important role in
the processing of disability claims--especially the hearings. PSCs need
to process approved Title II Social Security disability hearings. These
cases are often very complicated especially when they involve worker's
compensation and various offsets. So necessary resources must also be
provided to the PSCs.
In addition, the Disability Determination Services must have
adequate staff to make decisions on their cases. The DDSs have lost
approximately 650 positions since the beginning of Fiscal Year 2006.
The Disability Determination Services were forced to slow down
processing of reconsiderations for the last four months of Fiscal Year
2006 in order to meet service obligations to Congress. This would not
have been necessary if SSA had received adequate resources for Fiscal
Year 2006.
Finally, the Office of Systems which we understand is the largest
computer system in the United States, with the exception of Defense/
Intelligence based systems, must also have adequate resources. Much of
SSA's computer code needs to be updated and many projects to improve
the Agency's systems could be completed more timely with additional
funds.
Any potential solutions suggested to address the backlogs in SSA
must thoroughly examine all aspects of the process.
Because SSA is an independent agency, the Commissioner is required
by law to prepare an annual budget for SSA, which shall be submitted by
the President to the Congress without revision, together with the
President's request for SSA. This budget reflects what the Commissioner
has evaluated as the level of funding necessary to meet the Agency's
service delivery improvements and fiscal stewardship responsibilities
through 2012. This budget also factors in that SSA has received less
than the President's budget request in recent years, thus leading to
the need for additional resources in the future to meet the full
service delivery plan. The budget amount submitted by the Commissioner
of Social Security for Fiscal Year 2008 is $10.44 billion. This $10.44
billion is $843.0 million more than what the President requested. The
difference between these proposed funding levels is significant. Of
more significance is the difference between the final funding levels
approved by Congress for SSA in comparison to the budget submitted by
the Commissioner. Inadequate levels of resources have contributed to
the growing inability at SSA to provide adequate levels of service.
Let me point out, that the Social Security Trust Fund currently
totals approximately $2.0 trillion. The Social Security Trust Fund is
intended to pay benefits to future beneficiaries and finance the
operations of the Social Security Administration. $843.0 million
dollars is a lot of money--but it is less than 1/20th of one
percent of two trillion. Don't the workers who have paid into this
trust fund with their taxes deserve to receive due consideration and to
receive the very benefits they have paid for in a timely manner?
The Social Security Trust Fund contains the necessary resources to
make up the difference between the level requested by SSA's
Commissioner and the President. Yet, because of the levels of service
that SSA and its various components that process disability claims are
currently able to provide, many of these taxpayers must wait so long
for service that they die before a decision is made on their case. They
never receive the benefits that they have paid for. This also applies
to receiving good service in Social Security Field Offices--it
currently is not at the level it ought to be and people are not
receiving what they have paid for and what they deserve.
The NCSSMA believes that the American public wants and deserves to
receive good and timely service for the tax dollars they have paid to
receive Social Security. But Congress has to provide assistance on this
issue. We urge Congress to provide SSA with enough resources to meet
our responsibilities to the American public--your constituents.
On behalf of the members of the NCSSMA, I thank you again for the
opportunity to submit this testimony to the Subcommittee. Our members
are not only dedicated SSA employees, but they are also personally
committed to the mission of the Agency and to providing the best
service possible to the American public. We respectfully ask that you
consider our comments and would appreciate any assistance you can
provide in ensuring that the American public receives the necessary
service they deserve from the Social Security Administration.
Again, Mr. Chairman, I thank you for this opportunity to appear
before this Subcommittee. I welcome any questions that you and your
colleagues may have.
Chairman MCNULTY. Thank you, Mr. Warsinskey.
Mr. Fell.
STATEMENT OF JAMES FELL, PRESIDENT, FEDERAL MANAGERS
ASSOCIATION CHAPTER 275, ALEXANDRIA, VIRGINIA
Mr. FELL. Chairman McNulty, Ranking Member Johnson, and
Members of the Subcommittee, my name is Jim Fell and I am here
today representing close to 1,000 managers in the SSA's Office
of Disability, Adjudication, and Review, in my role as the
president of the Federal Managers Association (FMA) Chapter 275
and vice Chairman of FMA's Social Security Conference. Please
allow me to take a moment to thank you for the opportunity to
present our views to the Subcommittee. As Federal managers, we
are committed to carrying out the mission of our Agency in the
most efficient and cost-effective manner while providing
necessary services to millions of Americans. Currently, I am
the hearing office director in Cincinnati, Ohio Office of
Disability, Adjudication, and Review and recently accomplished
36 years of Federal service, 33 of which were within SSA and 27
in SSA management, either in the field or in ODAR. Please keep
in mind that I am here on my own time and my volition and
speaking for FMA and not speaking for SSA.
Each month SSA pays out benefits to 48 million
beneficiaries. In ODAR, however, there currently exists a
backlog of over 717,000 requests for hearings. It now takes on
average over 500 work days to process a typical request for
hearing and these delays tarnish SSA's otherwise strong record
of service to the American public. In the last 5 years, the
number of pending hearing requests has grown by almost 250,000
despite record disposition rates in the last 5 years. Unless
something is done to reverse the trend, the backlog could
realistically reach 1 million by 2010.
I am here today to confirm that the ongoing lack of
adequate staffing levels and resources have contributed to
these backlogs. If these inadequacies continue, clearing the
backlogs will be impossible and service delivery will continue
to deteriorate. In September 2004, FMA appeared before this
Subcommittee to testify on the challenges and opportunities
facing implementation of a new electronic disability process in
SSA. At that time, we testified that the backlog will not
decrease until staffing levels are increased and stated a
desperate need for additional staffing. That request was
unheeded. We are back today with a staffing situation unchanged
and the backlog significantly larger.
Adequate clerical staff is necessary to prepare cases for
hearing. As it stands, hearing offices do not even have the
staff to accommodate the judges on duty let alone enough staff
to process the new 46,500 cases ODAR receives each month. If
receipts even remained flat, the backlog will remain at over
700,000 cases, almost one-third of which are over a year old.
In addition to the current staffing shortfalls, over 40
percent of SSA employees are expected to retire by 2014.
Additional employees will be necessary to address both the
burgeoning receipts and the stringent performance requirements
of the DSI Initiative. For an example, an approximate 1,000
additional ALJs and 5,000 additional support staff would allow
ODAR to work down the backlog in 1 year and still provide
timely processing. I understand realistically that is probably
not going to happen. However, the continuing resolution, which
passed the House and will likely pass the Senate, was severely
inadequate to address both the staffing and the backlog problem
in SSA in Fiscal Year 2007.
To fix the problem, Congress should begin by passing the
President's 2008 budget request of $9.6 billion for SSA's
limitation on administrative expenses account. We see this as a
start. It obviously will not let us attack the backlog. In
addition to having an immediate impact on the current backlog,
inadequately funding the SSA will negatively impact every
service of the Agency. By fully funding the President's
request, we at least can continue the tradition of employing a
well-trained dedicated staff of Federal employees.
In this era of shrinking budgets, SSA has attempted to
maximize its use of the scarce resources to provide the best
possible service to the American public. The challenges faced
by the managers and supervisors are not short term, they are a
demographic reality. The same citizens putting the stress on
the Social Security Trust Funds because they are approaching
retirement age are also entering their most disability-prone
years. ODAR is struggling to handle the current workload and
will be hard-pressed to manage the anticipated increase in
hearing requests without additional staff.
We are the men and women who work with the disabled
Americans every single day. We see people of all ages come in
and out of our offices seeking the services they depend on from
the SSA. We are committed to serving the community of Americans
in need, but we need you to provide us the necessary resources
to help these people.
Thank you again for your time, and I would be happy to
answer any questions you may have.
[The prepared statement of Mr. Fell follows:]
Prepared Statement of James Fell, President, Federal Managers
Association Chapter 275, Alexandria, Virginia
Chairman McNulty, Ranking Member Johnson and Members of the House Ways
and Means Subcommittee on Social Security:
My name is Jim Fell, and I am here today representing close to
1,000 managers in the Social Security Administration's Office of
Disability Adjudication and Review (ODAR) in my role as the President
of the Federal Managers Association (FMA) Chapter 275 and Vice Chairman
of FMA's Social Security Conference. Please allow me to take a moment
and thank you for this opportunity to present our views before the
Subcommittee. As federal managers, we are committed to carrying out the
mission of our agency in the most efficient and cost effective manner
while providing those necessary services to millions of Americans.
I have been President of FMA Chapter 275, Office of Disability
Adjudication and Review Managers Association (ODARMA) for the last 8
years. I am the Hearing Office Director in the Cincinnati, Ohio Office
of Disability Adjudication and Review and recently accomplished 36
years of federal service, 33 of which were within SSA. I have been in
SSA management for 27 years, the first 12 years in SSA Operations in
district field offices and the last 15 as a hearing office manager and
now a hearing office director in ODAR. I was also an active member of
the Hearing Process Improvement (HPI) Steering Committee created by
former Commissioner Kenneth S. Apfel to study the effectiveness of HPI.
Please keep in mind that I am here on my own time and of my own
volition representing the views of FMA. I do not speak on behalf of
SSA.
Established in 1913, the Federal Managers Association is the
largest and oldest association of managers and supervisors in the
Federal Government. FMA was originally organized to represent the
interests of civil service managers and supervisors in the Department
of Defense and has since branched out to include some 35 different
federal departments and agencies including many managers and
supervisors within the Social Security Administration (SSA). We are a
non-profit professional membership-based organization dedicated to
advocating excellence in public service and committed to ensuring an
efficient and effective Federal Government. As the ODAR Managers
Association of the FMA, our members and their colleagues are
responsible for ensuring the success of the administration of Social
Security's disability determination process and in providing needed
services to American customers.
As you are undoubtedly aware, the Social Security Administration
plays a vital role in serving over 160 million American workers and
their families. Each month, SSA pays out benefits to 48 million
beneficiaries. Over 7 million low-income Americans depend on the
agency's Supplemental Security Income (SSI) program to stay afloat in a
cost-inflating world, and nearly 7.2 million disabled Americans receive
benefit payments through Social Security Disability Insurance (SSDI).
In her May 11, 2006 message to the House Committee on Ways and Means
Subcommittee on Social Security, former SSA Commissioner Barnhart
testified that SSA's productivity has increased 12.6 percent since
2001. Considering the magnitude of its mission, the Social Security
Administration does a remarkable job administering critical programs.
In the Office of Disability Adjudication and Review, however, there
currently exists a backlog of over 717,000 requests for a hearing. It
now takes an average of 500 work days to process a typical request for
hearing and these delays tarnish SSA's otherwise strong record of
service to the American public. At the beginning of 2002, SSA had
468,262 pending hearing requests. In five years, that number increased
to over 717,000, despite the fact that dispositions are at record
levels. Unless something is done to reverse this trend, the backlog
could realistically reach one million by 2010 with the aging Baby Boom
generation.
As managers and supervisors within ODAR, we are keenly aware of the
backlogs and the impact these backlogs are having on our ability to
deliver the level of service the American public deserves. We are here
today to confirm that the ongoing lack of adequate staffing levels and
resources have contributed to these backlogs. If these inadequacies
continue, clearing the backlogs will be impossible and service delivery
will continue to deteriorate. In September 2004, we appeared before
this subcommittee to testify on the challenges and opportunities facing
implementation of a new electronic disability process at SSA. At that
time, we testified that the backlog will not decrease until staffing
levels are increased and stated a desperate need for additional
staffing, a warning which went unheeded. We are back today, with the
staffing situation unchanged and the backlogs significantly larger.
Former SSA Commissioner Jo Anne Barnhart created a service delivery
plan to reduce backlogs in Social Security processing over a period of
years, while meeting the agency's obligations to maintain high levels
of program integrity. The advent of electronic disability files and the
process changes included in the Commissioner's disability service
reforms promise to improve the timeliness and efficiency for future
claimants; however, these changes do nothing to address the pending
backlog. The hearing offices lack sufficient staff to process the work
on hand and are unable to even begin to work on new incoming cases.
ODAR began fiscal year 2007 with 419,972 pending cases awaiting
preparation for a hearing. In all likelihood, those cases will
realistically wait at least one year before any action is initiated to
prepare the case for review and hearing in front of an Administrative
Law Judge (ALJ). Although clericals in hearing offices prepared 477,816
cases in FY06, claimants submitted almost 558,000 new requests during
the same period. As such, the backlog of files simply awaiting
preparation for review by an ALJ at the close of January 2007 totaled
413,260 cases; an increase of 19,088 cases since the beginning of
Fiscal Year 2006. ODAR's processing time at the end of January was an
embarrassing 499 days. The American public deserves better service.
Within ODAR, production is measured by the number of dispositions
completed per day by an Administrative Law Judge. In FY05 and FY06,
this record-level figure was 2.2 dispositions per day per ALJ. A work
year is approximately 250 work days, yielding a reasonable expectation
that an ALJ can produce an estimated average of 550 dispositions a year
given the current staffing level limitations. At the end of January,
SSA employed 1,088 ALJs, resulting in a best case scenario of 557,150
dispositions for FY07, which is about the same number of new cases
filed in a given year.
Adequate clerical support is necessary to prepare cases for
hearing. As it stands, hearing offices do not even have the staff to
accommodate the judges, let alone enough staff to process the new
46,500 cases the Office of Disability Adjudication and Review receives
each month. If receipts remained flat, the backlog will remain at over
700,000 cases, almost one-third of which are over 365 days old.
With the aging Baby Boom population, it is reasonable to assume
that receipts will continue to out-pace dispositions. As the requests
for hearings continue to rise, more is demanded from ODAR staff on all
levels. The bottom line is that the hearing offices lack sufficient
staff to process the work on hand much less even begin to work on new
cases.
It should be evident that under the best case scenario, the current
staffing levels in ODAR can do nothing more than maintain the status
quo. That means that the backlog stays the same and processing times
continue at an estimated 500 days. We applaud the agency for
introducing a new technology program and new procedures, which, if
implemented successfully, will improve future processes and overall
efficiency. However, the new systems cannot address the problems
plaguing the current backlog and their impact cannot be fully realized
until the backlog is reduced.
The existing staff must make room for the new cases as they attempt
to address the backlog. In recent years, however, the agency has made
the mistake of hiring additional Administrative Law Judges without
providing adequate support staff to prepare the cases for hearing.
Commissioner Barnhart repeatedly stated that she hoped SSA would hire
100 ALJs in FY07, but funding shortages have only allowed for less than
40 new hires. We recognize that the Commissioner was trying to address
the backlog by adding these judges; however, additional ALJs without
the supporting clerical staff to prepare cases in a timely manner will
not solve the problem.
There is currently insufficient support staff to ensure optimal ALJ
productivity and to handle the backlog. The accepted staff to ALJ ratio
has been four and one half production staff per ALJ. However, this only
ensures productivity necessary to handle incoming work, not the
backlog. For offices with heavy backlogs, the four and one half to one
standard is inadequate. Management and administrative employees should
not be included in these figures, as they are not the employees
performing the production work on hearing requests. And, of course, no
staffing shortfalls can be remedied without adequate funding.
The solution to the backlog problem is simply adequate staffing
levels which will allow us to address the pending cases. As of last
month, the backlog was at 717, 411 requests for a hearing. As noted
earlier, a trained, productive ALJ, with adequate support staff, should
be able to produce about 550 dispositions in a given year.
Approximately 1,000 additional ALJs and 5,000 additional support staff
would allow ODAR to work down the backlog in 1 year while providing
timely processing of new cases as they arrive.
In addition to the current staffing shortfalls, 40% of SSA
employees are expected to retire by 2014. While hiring temporary
employees may address the immediate challenge of decreasing the
backlog, many new employees will be needed on a permanent basis. These
employees will also be needed to address both the burgeoning receipts
and the stringent performance requirements of the Disability Service
Improvement initiative.
The backlog of cases at the hearing offices must be addressed
immediately by providing sufficient staffing in all positions. To
enable SSA to meet the goals set forth in the previous Commissioner's
service delivery plan, Congress must approve a sufficient level of
funding for the agency. The Continuing Resolution (CR) which passed the
House and will likely pass the Senate was severely inadequate to
address the both the staffing and backlog problem at SSA in fiscal year
2007 despite the meager increase above the fiscal year 2006
appropriation.
The President requested $9.494 billion in FY07, an amount which
Commissioner Barnhart repeatedly stated was vital to sustain the
agency. Even if SSA had received the full funding, SSA would have faced
a loss of 2,000 positions, a number which will now be far greater due
to the CR. The amount approved in the CR will undoubtedly cause a
profound disruption of service to the American public, including
significant increases of waiting times in field offices and added
delays in the processing of appeals.
To fix this problem, Congress should begin by passing the
President's 2008 budget request of $9.597 billion for SSA's Limitation
on Administrative Expenses account. In addition to having an immediate
impact on the current backlog, inadequately funding the Social Security
Administration will negatively impact every service area of the agency.
SSA budgeted for a one-to-three ratio of staff retiring to the
replacement of staff for FY06 and FY07, and any further reduction would
force the agency to cut thousands of additional workyears.
While the President's budget request for FY08 is a start, it is
certainly not a cure all solution. Throwing money at the problem will
not fully solve it without a well-trained, dedicated staff of federal
employees willing to avert a crisis in the coming years. I believe this
is the workforce we have now, strengthened by the leadership of
Commissioner Barnhart in the last six years. By fully funding the
President's request, we can continue this tradition.
In this era of shrinking budgets, SSA has attempted to maximize its
use of scarce resources to provide the best possible service to the
American public. The challenges faced by the managers and supervisors
are not short term; they are a demographic reality. The same citizens
putting stress on the Social Security trust funds because they are
approaching retirement age are also entering the most disability-prone
years. ODAR is struggling to handle the current workload and will be
hard pressed to manage the anticipated increase in hearing requests
without additional staff.
We are the men and women who work with disabled Americans every
day. We see people of all ages come in and out of our offices seeking
the services they depend on from the Social Security Administration. We
are committed to serving a community of Americans in need, but we need
you to provide us the resources necessary to help them. Thank you for
your time and consideration of our views.
Chairman MCNULTY. Thank you. I am really deeply grateful to
all of you for being here today. When we talked to the
Commissioner, we were talking in general terms about this
problem; you make the problem real. Thank you, Mr. Schieber,
for your advocacy. Ms. Shor, you cited, among other things, Ms.
C from Troy, New York. Well, Troy, New York, is in my district
so that is a constituent of mine. Here is an individual who,
while the government bureaucracy was grinding forward, was
evicted from her apartment, lost custody of her children, ended
up in a homeless shelter, and was recently hospitalized. Now, I
am sure there are other factors in play in Ms. C's life but
certainly the failure of the government bureaucracy did not
help in her situation. Mr. Fell, thank you for being specific
about what we need to do in order to address this problem. I
would also say Mr. Warsinskey mentioned perhaps a figure that
would be helpful in addressing the staffing shortage and kind
of implied that maybe we could take out of the trust fund.
Well, it would be nice if the trust fund was there, if it
wasn't just a fistful of IOU's. One of the things that I have
been talking about for years is getting to the point in time
where we are honest about budgeting in this country and that we
end this 40 year practice of taking the Social Security surplus
every year, stealing it, putting it in the general fund and
using it for other purposes. Now, we have been doing that. On
this issue, believe me, I do not make any political statement
at all, I am an equal opportunity critic. Congress of both
parties and Presidents of both parties have been doing this for
40 years and it started with a Democratic President in your
State, Lyndon Johnson.
[Laughter.]
Chairman MCNULTY, but it is wrong. It is wrong. Last year,
we had a surplus in Social Security of $175 billion and not a
penny of it went to Social Security recipients or was put aside
for Social Security recipients. It was put into the general
fund and it was spent on everything under the sun other than
Social Security. People ask me from time to time when we are
going to get serious about the so-called long term fix. Well,
my cue on that will be when Members of both parties get honest
in budgeting and start preserving Social Security Trust Fund
moneys for Social Security recipients.
So, thank you all for advocacy, and we hope to work
together with you to seriously address this problem. Mr.
Johnson may inquire.
Mr. JOHNSON. Thank you. Lyndon also said, ``Every tombstone
ought to be allowed to vote.''
I like your insanity comment, it is appropriate not only to
this issue but to the one we are addressing on the floor at
this point too.
I would like to ask all of you, if you don't mind, Mr.
Schieber, who has testified not only in this Committee but in
the Education and Labor Committee, which I was on too, he
suggests a thorough evaluation to find policy improvements to
make the program easier to administer. I think there are or
there must be ways to simplify how Social Security is
administered and it is not necessarily dollars and maybe not
people, but can you all address, each in his own way, that
subject? How can we fix the system in other words? Everybody
says we need different rules. In other words, that Congress
needs to do something. What do we need to do? I recall Social
Security, let's see in 1994 I think we made it a separate
Agency and yet they do not have the authority that a separate
Agency in the government should have I don't think. For
example, the President makes their budget request and sends it
to us and there is no justification about why those dollars are
there for the Congress.
Mr. SCHIEBER. If you fix that problem, you might facilitate
their ability to administer the existing program. That is not
going to change the nature of administering the existing
programs. The issue that came up earlier about ALJs, at some
juncture, lawmakers became concerned that if these people were
totally selected by, hired by, and reported purely to Social
Security, they might not have the independence to provide fair
judgment in cases.
Mr. JOHNSON. That is why they did it that way.
Mr. SCHIEBER. So, OPM has been given the charter of setting
up these lists and then, when Social Security needs an ALJ,
they send them a list of three or four or five qualified
candidates off of their list that Social Security can then
interview and hire. OPM got sued because of the exam they were
giving and the way they were scoring exams back in 1997. They
closed the list. They have not renewed that list for all
practical purposes since 1997. When Social Security now needs
an ALJ, they are sent a list of people that were identified as
qualified in 1997. Now, I think if you went to Bill Gates and
you told him that the way we want you to run your company going
forward, as a cutting-edge software development company, is to
hire off of a list of people that you had and you would
consider qualified in 1997, he would declare you an idiot.
Mr. JOHNSON. You just redefined insanity.
Mr. SCHIEBER. Yes. Now, there are a whole variety of these
sorts of things that need to be addressed but the overriding
concerns always come back. We have been talking about it at the
Advisory Board. We have been working on an issue brief and
thought we had a draft issue brief ready to go on this matter.
The fact of the matter is that about in 2005, 82 percent of the
Federal ALJs worked at Social Security. Many of the things that
they do is very different from what goes on in the other
agencies. So the one thought was, well, let's let SSA have the
responsibility for developing the qualifications and
administering exams and making sure that they have got a
renewed list, but, again, this issue of independence raised its
head. So, there are these competing interests, they need to be
worked through.
In terms of disability, the definition for disability was
set in 1957. Think about our economy in 1957 what it was, it
was a manufacturing economy, manufacturing and rural economy.
Think about what it is today. Is the definition of disability
in 1957 appropriate for an economy that is now a service-
oriented, intellectually based economy? We need to re-think a
whole variety of these things. Now, it is going to take some
time and effort, but we ought to get under way and get on with
the program.
Mr. JOHNSON. Did your board make any recommendation?
Mr. SCHIEBER. Have we made specific--well, we have made a
recommendation that we ought to come back and re-visit the
definition of disability. We are going to publish, I hope
within the next month, this issue brief on the ALJs. As I
indicated at the outset, I have been on the Advisory Board now
for 9 years. Over that 9 year term, we have issued 21 separate
reports or major statements on the disability program. Very
frankly I am not sure we have made a lot of progress.
Mr. JOHNSON. So, they are not paying attention to you. I
would ask in lieu of my time being gone, if you all would mind
putting in writing an answer to the question and send it to us,
would that be appropriate? Thank you. Thank you, Mr. Chairman.
Chairman MCNULTY. Mr. Becerra.
Mr. BECERRA. Thank you, Mr. Chairman. To each and every one
of you, thank you for your testimony. I am not sure where to go
with you all because I think you all are stating what is the
obvious and that is that the SSA does not have the resources it
needs, that it knows it does not have the resources that it
needs, that the White House knows that it does not have the
resources that it needs, and the Office of Management and
Budget knows that it does not have the resources it needs, and
that Congress knows that SSA does not have the resources that
it needs. The only folks that are suffering from all that
knowledge are the beneficiaries who are not getting their
benefits. Mr. Warsinskey, I sort of liked your idea and I think
the Chairman sort of echoed it, that perhaps with that--what is
it this year, $170 billion surplus in Social Security funding
that is provided by people who are working and may in the
future have to utilize these disability services and benefits,
perhaps what we should do is take some of that money and use it
to help provide the services that people have paid for.
Let me ask a question to you, do you have a sense, Mr.
Warsinskey, how many of the folks that you see that need to go
through this process for benefits under Social Security,
disability or otherwise, qualified for the majority of the tax
cuts that the President has proposed over the last 5 years,
these Bush tax cuts?
Mr. WARSINSKEY. No, I do not think most of them qualify for
it, no. Most of the people that apply are poor, frankly poor.
Mr. BECERRA. We have actually--in these 5 years or so, we
have actually seen about $2 trillion go out the door to pay for
these tax cuts that have gone principally to folks who are
making a sizeable amount of money. I suspect the millions of
people who are waiting for these benefits that have applied
have worked and paid for Social Security, hardly any of them
are getting any of the $2 trillion that has been sent out in
tax cuts. On top of that, those tax cuts have been paid for
using Social Security Trust Fund dollars, and we still end up
with a deficit. So, I hope you all will just be forceful. Do
not let us off the hook either. Congress has the power of the
purse. Certainly the President, as the Executive, has to come
forward with a budget that is adequate. I do not think he has.
I know that the SSA and the Commissioner are to some degree
shackled in what they can say and how much they can ask for
before Congress, but I hope you all will speak as loud as you
can, especially with the examples of individuals who are
suffering as a result of the entire Federal government's
malfeasance in this regard.
Mr. WARSINSKEY. Let me also point out, much was not said
about it, but we just barely avoided a furlough in Social
Security, just barely, and we are at a point of basically no
hiring this year. It was going the other direction, fortunately
we prevented that.
Mr. BECERRA. I think, Mr. Chairman, we may want to take up
the idea that I think--is it Schieber or Schieber?
Mr. SCHIEBER. Schieber.
Mr. BECERRA. Mr. Schieber came up with about disclosing,
someone came up with the notion of disclosing the SSA's budget,
proposed budget, that it submits to the Office of Management
and Budget. I think that might be a good idea as well because
it helps us identify where SSA says its needs are. Maybe what
we can do is perhaps not do everything that SSA wants but
certainly, based on their expert recommendation, know where we
can target some of our moneys to try to make it work as well as
possible, but first and foremost, I think all of us are
becoming very--it is becoming very clear to us that we are not
going to get there with the moneys that are being allocated to
the SSA as it is, and we all have to sort of buck up a bit and
be prepared to do the right thing.
Mr. SCHIEBER. If you think about it, Social Security is a
production shop to a very substantial degree. People walk in
the door, they need a certain amount of processing. The way
they actually develop these workforce budgets is they look at
their expected caseload, and they have got reasonable estimates
on what the time involved in each of the steps, and they start
to take each of these steps and aggregate them across the
people and they build it up from ground zero. It is in some
regards exactly the way you want to do all budgeting.
Mr. BECERRA. I think we want to heed though the words from
Mr. Johnson as well because we do not want to just put more
money in. If it is an inefficient system, let's clean up the
inefficiencies because, just as Congress wants to get
inefficiency out of any system, I think the beneficiaries want
to know that every year that they work to contribute to the
system, to the degree that they are going to need to have some
of that back in disability benefits, it should be in disability
benefits and not to pay someone who is not doing the job. So, I
hope that you will continue to give us ideas on how to make the
system more efficient and make sure we have the optimal level
of personnel and the most qualified personnel as well. My time
has actually expired so I am going to yield back. Mr. Chairman,
I thank you very much for having the witnesses come.
Chairman MCNULTY. Well, I want to thank all the Members for
their participation today. In addition to responding to Mr.
Johnson's last question, there may be other Members who were
not able to attend today who might want to submit questions in
writing, and I hope you will respond to those in a timely
fashion.
I want to express our enormous gratitude to you, not just
for braving the weather to get here today, but for your
advocacy day in and day out for our constituents. We thank you
for that, and the hearing is adjourned.
[Whereupon, at 3:45 p.m., the hearing was adjourned.]
[Questions submitted by the Members to the witnesses
follow:]
Questions Submitted by
Chairman McNulty and Mr. Johnson to Mr. Schieber
Question: In your testimony, you suggest a thorough evaluation to
find policy improvements to make the program easier to administer. Do
you have suggestions for ways to simplify how Social Security programs
are administered?
Answer: First of all, let me acknowledge that much of the
complexity in the Social Security programs is not accidental but
reflects an attempt by Congress to achieve particular policy objectives
or to minimize the program costs that would result from simpler rules.
However, there may be cases where the complexity no longer serves an
important policy objective or where multiple changes could be made that
would produce savings in one area sufficient to offset the costs of
simplification in another.
For example, a significant part of the workload in Social Security
field offices relates to the living arrangements and earnings rules for
Supplemental Security Income (SSI) recipients. In the Social Security
Advisory Board's 2005 Statement on Supplemental Security Income (a copy
of which is attached),\*\ the Board described changes that could be
considered to simplify both of these areas.
Another area that might be examined is the issuance of Social
Security cards. Most of the cards issued each year are replacement
cards for people who have already been issued a number. This again
constitutes a major workload for Social Security field offices
involving substantial amounts of agency resources running to the
hundreds of millions of dollars. While Social Security numbers are an
important element of the program and have significant uses in income
tax enforcement and in other areas, some have suggested that the cards
themselves are not really necessary. This obviously is a matter with
important policy implications that would need to be carefully
considered, but it is an example of how careful evaluation of existing
policies and procedures could provide Congress with information about
what the costs and benefits are for many of the very complicated
elements of the Social Security programs.
It is important that SSA strengthen its analytic and research
capacity. It needs to better understand, for example, the
characteristics of potential applicants so as to better develop
guidelines that will enable it to determine eligibility on a more
objective basis. And it needs to undertake the types of evaluation of
its own processes that can identify areas where administrative or
legislative changes will let it carry out the program's policy
objectives in more cost-effective and efficient ways.
\*\ Referenced document is available at http://www.ssab.gov/
documents/2005SSIReport.pdf
Question: Are there other ways to address disability backlogs,
besides additional resources?
Answer: The SSA handles multiple, massive workloads affecting the
lives of nearly all Americans. There is no way to avoid the fact that
it requires substantial administrative funding, in excess of the
funding that has been provided in recent years, in order to carry out
its service and stewardship obligations to the American public.
However, there clearly is room for managerial and technological
initiatives that will help to address the backlog and, in particular,
will better position the agency to meet the continuing challenges it
will face from growing workloads in the future. The Social Security
Advisory Board has recently issued two reports directly addressing this
question. In April, the SSAB published an issue brief on the need for
improved processes for recruiting ALJs to assure that the agency has a
sufficient talent pool and that that pool has the kinds of skills
needed for the complex, production oriented SSA workloads. Last
September, the Board issued a report expressing concern over the
current state of the hearing process and making a number of
recommendations for ways to improve it in addition to providing more
adequate resources. In the Executive Summary of this report, the Board
made the following points:
In examining the hearing process, our goal is a process that
embodies the public's interests of fairness, consistency, and
efficiency. Our major concerns with the current process are
lack of consistency, processing times and backlogs,
productivity, hearing office management, and the SSA-ALJ
relationship.
Our concern with consistency is based on
variations in allowance rates. The extent of variance,
supported by data from quality assurance reports,
suggests that ALJs may be applying law and agency
policy differently. SSA should ensure that its policies
are being applied consistently.
Processing times and pending caseloads have
been rising to levels that impose an intolerable burden
on claimants.
The extent of variation in productivity
indicates a need to explore the reasons for it and to
take steps to increase productivity at the lower end of
the spread and to ensure that the upper end is
appropriately balanced with decisional quality.
The current condition of hearing office
management does not provide needed incentives and
supports.
The relationship between SSA and its ALJs
seems to have improved since our last report on the
hearing process but still needs attention.
I am attaching copies of these 2 publications (Recruiting SSA ALJs:
Need for review of OPM role and performance, SSAB Issue Brief #3, April
2007 and Improving the SSA's Hearing Process, Social Security Advisory
Board, September 2006.)\*\ These publications are also available on the
Board website www.ssab.gov. I would also note that the Commissioner of
Social Security has recently announced a number of initiatives aimed at
increasing the productivity of the hearing process, many of which seem
consistent with the themes of the Board's recent reports.
In addition, as I indicated in response to another question, the
level of resources needed to administer the program can be
significantly affected by the legislative and regulatory policies that
make the program more or less complex. In some cases, a determination
of allowance can be made by evaluating an applicant's medical condition
relative to a set of regulatory standards called the Listing of
Impairments. In other cases, a more subjective, complicated, and costly
evaluation of the individual's age, education, and vocational history
is needed before an allowance or denial determination can be made. In
the Social Security Advisory Board's 2003 report on The Social Security
Definition of Disability, it pointed out that, in the early years of
the program, over 90 percent of cases were decided solely on the basis
of the medical listings. That is now down to less than 50 percent of
allowances. A careful reexamination of the listings in the light of
current medical knowledge might make it possible to make many decisions
earlier and on a more objective and less complex basis.
\*\ Referenced documents are available at:
http://www.ssab.gov/documents/ALJ_Issue_Brief_3.pdf
http://www.ssab.gov/documents/HearingProcess.pdf
______
Questions submitted by
Chairman McNulty and Mr. Johnson to Mr. Astrue
Question: In his testimony Mr. Schieber refers to the legislation
enacted in 1994 making the SSA an independent agency. The law requires
the agency's budget request to be transmitted to the Congress without
change, with the President's budget request. Yet the only information
included is the single number without any justification.
Would you be willing to provide us the same justification materials
your agency sent to OMB supporting the agency's budget request? If you
want the Congress to provide you with the funds you need, do you agree
that we need to fully understand the needs of the agency?
[The response from Mr. Astrue is pending.]
Question: If SSA were to receive the full amount of the
Commissioner's request of $10,440 million for SSA's administrative
expenses for FY 2008, what impact would this have on total SSA/DDS
workyears, on initial claim and hearing office processing times, and on
the number of cases pending at the initial claims and hearings levels?
[The response from Mr. Astrue is pending.]
Question: If SSA had received the full amount of the Commissioner's
request for SSA's administrative expenses for the past five fiscal
years (2002-2006), how would that have affected the disability claims
backlog?
[The response from Mr. Astrue is pending.]
Question: For disability claims at the hearing level, what is the
average elapsed time from: 1) the hearing date to the date of
disposition; and 2) the date of disposition to the date payment is
issued?
[The response from Mr. Astrue is pending.]
Question: What is the average processing time for each individual
hearing office nationwide, according to the most recent data?
[The response from Mr. Astrue is pending.]
Question: Could you please provide the following data for each
fiscal year from FY 2002 through 2006:
The average processing times for initial claims not
including technical (non-medical) denials
The average processing times for the reconsideration
level
For initial claims, reconsiderations, and hearings,
the distribution of pendings by age of case (for example, the
number of initial claims pending more than 4 months, more than
6 months, etc.)
[The response from Mr. Astrue is pending.]
Question: When do you anticipate that OPM will have a new registry
available to use for hiring ALJs? If the new registry became available
in FY 2007, would you have the funding to hire from it? Would you have
the funding to hire from the new registry in FY 2008: 1) under the
Commissioner's LAE request; 2) under the President's LAE request; and
3) if the appropriated LAE amount were less than the President's
request?
[The response from Mr. Astrue is pending.]
Question: What percentage of your workforce is not working on
claims processing? Is that the right percentage? Are you confident that
every available employee is being used to process claims?
[The response from Mr. Astrue is pending.]
Question: As you know, since August, changes to the disability
determination process are being implemented in the Boston region. Is
there any update you can provide regarding how implementation is going?
[The response from Mr. Astrue is pending.]
Question: Given the agency's focus on increasing the use of
telephone and online services, is the current field office structure,
both in terms of staffing and office location, positioned to meet the
service needs of the 21st century?
[The response from Mr. Astrue is pending.]
Question: One of your greatest challenges is likely to be how to
spend the limited funds appropriated for the agency. Would you give us
some insight as to what will guide you in your decisionmaking?
[The response from Mr. Astrue is pending.]
Question: At the end of December 2005, the period for comments on
the proposed rule to revise the Ticket to Work program closed. Since
then, the public has been anxiously awaiting the publication of a final
rule. What is the specific status of this rule? When do you expect to
issue the final rule? Once the final rule is issued, when would you
expect to implement it?
[The response from Mr. Astrue is pending.]
Question: In his testimony, Mr. Schieber suggests a thorough
evaluation to find policy improvements to make the program easier to
administer. We have asked your predecessors for legislative proposals
to accomplish this, but have received no response. Would you be willing
to conduct such an evaluation, to determine both legislative and
regulatory changes?
[The response from Mr. Astrue is pending.]
______
Questions submitted by Mr. Ryan to Mr. Astrue
Question: Mr. Astrue, you mentioned in your opening statement that
the SSA has made ``significant'' improvements in the processing time
for appeals of hearing decisions. However, I am particularly concerned
about the processing time for the previous step in the appeals process;
obtaining a hearing. In Wisconsin, my constituents are experiencing an
average waiting period ranging from 564 days in one ODAR office, up to
606 days in another ODAR office--a 14% increase since I was told this
problem was being addressed in a previous inquiry I made to the SSA's
Inspector General in 2005. What is your plan for addressing this
growing problem both in the short term and long term?
[The response from Mr. Astrue is pending.]
Question: Another concern I have is the ratio of decisions ODAR
judges are issuing, which appear to reverse the State DDS'
determination. Approximately one-third to one-half of the ODAR level
cases that my office assists constituents with end in a reversal of the
State DDS' decision. Is this rate of reversal proportional to other
areas of the country, and does the SSA see a lack of uniformity in the
application of standards by the various state DDS bureaus?
[The response from Mr. Astrue is pending.]
Question: Mr. Astrue, my office receives a number of inquiries from
claimants who have been successful in receiving a favorable decision
for disability benefits and have already been subjected to the five-
month waiting period, but have not yet received a payment from the SSA
Payment Center in Baltimore. In addition, both my office and the SSA
district offices have tremendous difficulty in obtaining updates on the
status of payments still pending at the Payment Center. What can be
done to make this system not only more user-friendly for SSA district
offices, but also for Congressional inquiries?
[The response from Mr. Astrue is pending.]
Question: I have received a number of complaints from constituents
who have requested an ODAR hearing, but who have had their cases re-
assigned to ODAR offices in States such as Montana, New Mexico and
Texas. I was informed by the SSA that this step was being taken to help
relieve the workloads from Wisconsin ODAR offices and to help expedite
the processing of those cases. However, my office has found that these
offices are experiencing similar sized case backlogs and are far less
responsive to both my office and to my constituents' concerns when
contacted. Has the SSA found this practice to be successful in other
areas of the country, and is the SSA undertaking other immediate
practices to help alleviate the backlog in ODAR offices?
[The response from Mr. Astrue is pending.]
Question: While the SSA's Chicago Regional Office has begun to add
judges and staff to the various ODAR offices in Wisconsin, it has come
to my attention that due to the increasing average age of the SSA
workforce, retaining these added workers has become a challenge. Can
you please share your thoughts on what you think needs to be done to
recruit and retain qualified individuals for these important SSA
positions?
[The response from Mr. Astrue is pending.]
______
Questions submitted by
Chairman McNulty and Mr. Johnson to Mr. Fell
Question: Are you confident that every available agency employee is
being used to process claims?
Answer: We are confident that all employees in the hearing offices,
including management, are being used to process hearing requests.
At the regional and headquarters levels, the answer is less
definitive. Some of the regional offices, particularly in the more
impacted regions, are providing case handling assistance in the form of
case pulling and decision writing. We believe that there is limited
hands-on claim processing at the headquarters level. Headquarters
received 380 of the 872 Full Time Equivalents (FTEs) hired in fiscal
year 2007 and it is unlikely that all of these positions are being use
to process hearing requests. It is our position that a higher
percentage of the FY07 hires should have gone to the hearing offices.
The bottom line, however, is that every single agency employee is
not enough to bring down the backlog. Without appropriate staffing
levels to meet the growing needs of the agency, we will continue to
fall further and further behind. It must be recognized that backlogs
create work at an exponential level. Because we are unable to
efficiently handle the work, more work is created in the nature of
phone calls, mail, missing files, and a myriad of inefficiencies
resulting from sheer numbers. This is the factor which must be brought
under control.
Question: Given the agency's focus on increasing the use of
telephone and online services, do you think the current field office
structure, both in terms of staffing and office location is positioned
to meet the service needs of the 21st century?
Answer: This is not a significant component of work at the Office
of Disability Adjudication and Review (ODAR). If this question was
expanded to include electronic files, we would be able to respond in
the affirmative. However, the backlog of paper files is delaying our
ability to take advantage of the new technology.
We believe that there must be significant expansion of the
Electronic Medical Express (EME), which allows our representative
community access to the electronic file. This will allow us to move
more efficiently into the new process. We cannot afford to be receiving
paper documents that must be scanned into electronic files, nor can we
afford to print electronic files for the use of those who can't or
won't use the electronic capabilities that are available.
An analysis of the current workload in ODAR will clearly delineate
the imbalance of offices, staffing and work. Case transfers have been
tried in the past with very limited success. While building offices
where the work is provides an expensive alternative, it must be done.
Proposals that have been on the table for years have gone unheeded and
the backlogs have grown to crisis proportions. There are no short term
fixes.
Video centers provide additional possibilities; however, there must
be localized sites where the claimants can go for the process to occur.
In many instances, cases from backlogged offices are transferred to
offices with video capability. However, the claimants must go to the
local impacted offices, tying up their resources, and negating the
positive impact of the hearings because the local office cannot use a
hearing room that is tied up with another office doing video hearings.
SSA Commissioner Michael Astrue has talked about a central office
video center. We believe that there should be multiple regional sites
founded along this same premise. These sites would have the primary
purpose of providing a hearing site in which the claimant could appear
and resources through out the nation could be directed to conduct the
hearings. These sites would not require full staffing but would require
reception, guard, and contractor services.
Question: As you know, since August, changes to the disability
determination process are being implemented in the Boston region. Is
there any update you can provide regarding how implementation is going,
based on feedback from your colleagues?
Answer: There is very little experience with Disability Service
Improvement (DSI) at the hearing level. ODAR offices in Region I have
not received enough DSI cases to be able to provide meaningful
feedback. Region I offices are just now starting to see a regular flow
of cases, so there is only a very small sample that have been prepared
and scheduled for a hearing. The majority of the DSI cases are still
with Federal Reviewing Officials (FedRO) in Falls Church, Va. We have
anecdotal information that the FedROs are approving a much higher
percentage of cases than were approved by the Disability Determination
Service (DDS) at the reconsideration level and that the files are very
well documented. If this information is accurate, it will definitely
have a positive impact on ODAR as fewer cases will be received.
However, the reality is that as long as a case is denied, it will be
appealed. A well-documented denial will not be accepted as long as
there is a no-cost appeal available.
FMA concurs with Commissioner Astrue that the Quick Disability
Decision (QDD) Model has been successful in its limited application and
agree that the QDD model should be expanded to encompass a wider range
of diseases.
Question: In his testimony, Mr. Schieber suggests a thorough
evaluation to find policy improvements to make the program easier to
administer. What suggestions do you have for ways to simplify how
Social Security programs are administered?
Answer: Commissioner Astrue outlined 36 initiatives in his Summary
of Initiatives to Eliminate the SSA Hearings Backlog, submitted to the
Senate Finance Committee on May 23, 2007, all of which, in one way or
another, should make the program easier to administer. Focusing only on
ODAR, it is our contention that the following initiatives and/or
suggestions would make the program easier to administer:
1. Close the record following the hearing. This would
alleviate post-hearing evidence that is often submitted
following a hearing further delaying the decision. Having a
definite closing date would also motivate representatives to
obtain relevant information supporting their claimant's case
and submit it timely. Having all of the evidence at the hearing
allows the administrative law judge to make an informed,
legally defensible decision.
Secondly, requiring that all evidence be submitted at least
10 days prior to the hearing will ensure that the
administrative law judge (ALJ) has sufficient time to
assimilate the evidence into the file and give the ALJ
sufficient time to review the evidence prior to the hearing
The Appeals Council often receives medical evidence that was
available prior to the ALJ's decision but was not submitted. If
it shows a new impairment or change in condition that the ALJ
was not aware of, it sometimes requires remand unless it
establishes disability. Thus, not only does it affect the
Council's review, it significantly delays a final decision in
the case and impacts the hearing offices workloads. The Council
has to delay processing in about half their cases in order to
provide the claimant an extension of time to submit such
evidence. This adds months to the process. If the record was
closed after the hearing, this would not be an issue and
Council would be able to work the cases sooner.
Even after the Council denies a request for review, the
claimant can submit additional evidence which has to be
considered in terms of reopening. There is no limitation to
ongoing submission of evidence this may result in the Council
reworking a case multiple times as new evidence continues to
come in. This unnecessarily adds to our workload, often
invalidating prior efforts, and takes time away from reviewing
another individual's request for review.
2. Improve ALJ productivity and accountability. The
Administrative Procedures Act (APA) has built in immunities
that often impede processing cases timely. All SSA employees
must be held accountable, including administrative law judges.
3. Transition to the electronic environment will make the
program easier in a number of areas. One of the most labor
intensive jobs at the ODAR hearing offices is ``pulling''
(organizing) the file, removing unwanted duplicate evidence and
numbering the judicial exhibits. The files in ODAR are quite
large and this function can take over 4 hours. E-Pulling will
reduce this task to minutes saving many hours of labor
intensive work.
4. Review and update the disability regulations. People are
living longer now and SSA is still using rules that grant 50
year old benefits because they can only perform sedentary work.
There is much concern over the trust fund and how SSA will pay
for future benefits, yet guidelines and regulations for
awarding disability have not been brought current to reflect
longevity of life, improvements in medical care, and a more
modern society even though the retirement age has been
extended. Minimum wage is less than Substantial Gainful
Activity (SGA), so it is conceivable that someone could work 40
hours per week and still draw disability.
5. Finally, our ability to administer our programs is
significantly impacted by out-dated hiring procedures and
untimely budgets. Although not directly related to policy,
these issues have a significant negative impact ODAR. Having
the ability to hire quickly without out-dated procedures such
as the ``Rule of Three'' and having budgets in October would go
a long way in helping ODAR meet its challenges.
Question: Are there other ways to address disability backlogs,
besides additional resources?
Answer: Unfortunately, the answer to this question can already be
seen in the current state of the backlog. We believe that the agency
and its employees have done a heroic job in attempting to keep up with
the work without the resources. Unfortunately this is no longer
possible. Not only are there disability backlogs, but there are
additional workloads which have received little or scaled back
attention (CDRs, redeterminations, etc. . . .) and consequently are not
considered part of the backlog.
Initiatives to deal with the backlogs need to be developed in
concert with management in the field. Because so many of the efforts
are being driven from a high level, implementation is difficult at
best. Many of the Commissioner's 36 initiatives will be necessary in
the coming years. The one that would have the most immediate impact is
improving ALJ productivity. This has long been a problem in the hearing
offices and we would support whatever initiatives would assist with the
establishment of accountability to the programs for employees at all
levels, including ALJs.
As noted above, inter-regional case transfers have, for all intents
and purposes, failed to address the problems and have not resulted in
any relief in the assisted offices. The level of transfers needed is
already being labeled impossible. Something has to be done before the
offices become unable to function. There is a wide disparity with
regard to pending requests for hearings from Region to Region and
office to office. For example, there were 164,756 pending requests for
hearing in the Chicago Region at the close of May 2007, while there
were 46,627 pending requests in the San Francisco Region. Both Regions
have 20 hearing offices. The imbalances are striking with the average
pending per ALJ in Chicago of 1001.64, while the average pending per
ALJ in San Francisco is 387.26. The four ODAR offices in Ohio have
41,086 requests for hearing or 88.1% of the Region's (IX) entire
pending. Region IX was the recipient of the majority of Region V's
transfers over the last several years, but the transfers have clearly
failed to balance the workload. Seven of Region V's 20 offices have
over 10,000 pending, with the pending per ALJ count for these offices
between 967.27-1725 pending per ALJ, almost 5 times the ``ideal''
level. These imbalances are unconscionable.
______
Questions submitted by
Chairman McNulty and Mr. Johnson to Ms. Shor
Question: In your testimony, you provided accounts of individuals
who suffered serious hardships during lengthy waits for decisions on
their disability claims. Are you aware of other individuals who have
experienced such hardships? If so, could you provide us with accounts
of their experiences as well?
Answer: We have received many more stories from our members
regarding claimants who are experiencing extreme hardships while
waiting for decisions on their claims. Because of the number of
stories, they are attached to this letter as Addendum A (p. 9) and are
listed in alphabetical order by state. As demonstrated by these
accounts, the situation of individuals with disabilities filing claims
for benefits grows increasingly dire--families are torn apart; homes
are lost; medical conditions deteriorate because they cannot obtain
necessary medical treatment; many claimants die while waiting; and once
stable economic security disappears.
Question: In his testimony, Mr. Schieber suggests a thorough
evaluation to find policy improvements to make the program easier to
administer. What suggestions do you have for ways to simplify how
Social Security programs are administered?
Answer: We strongly support efforts 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. 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 support
retaining several key components of the administrative process, which
are listed below, because they are central to protecting the rights of
claimants:
The claimant's right to a de novo hearing before an
ALJ.
The claimant's right to submit new evidence.
The claimant's right to request review of an
unfavorable ALJ decision by the Appeals Council.
The claimant's right to seek judicial review in the
Federal district courts and courts of appeals.
We describe below several areas where the disability program can be
made more efficient without impairing the rights of claimants:
Improve full development of the record earlier in the
process
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.
Developing the record so that relevant evidence from all sources
can be considered is fundamental to full and fair adjudication of
claims. The decisionmaker needs to review a wide variety of evidence in
a typical case, including: medical records of treatment; opinions from
medical sources and other treating sources, such as social workers and
therapists; records of prescribed medications; statements from former
employers; and vocational assessments. The decisionmaker needs these
types of information to determine the claimant's residual functional
capacity, ability to return to former work, and ability to engage in
other work which exists in the national economy in significant numbers.
Once an impairment is medically established, SSA's regulations require
that all types of relevant information, both medical and nonmedical, be
considered to determine the extent of the limitations imposed by the
impairment(s).
The key to a successful disability determination process is having
an adequate documentation base and properly evaluating the
documentation that is obtained. Unless claims are better developed at
earlier levels, procedural changes will not improve the disability
determination process. Unfortunately, very often the files that denied
claimants bring to our members show that inadequate development was
done at the initial and reconsideration levels. Until this lack of
evidentiary development is addressed, the correct decision on the claim
cannot be made. Claimants are denied not because the evidence
establishes that the person is not disabled, but because the limited
evidence gathered cannot establish that the person is disabled.
A properly developed file is usually before the ALJ because the
claimant's representative has obtained evidence or because the ALJ has
developed it. Not surprisingly, different evidentiary records at
different levels can easily produce different results on the issue of
disability. To address this, the agency needs to emphasize the full
development of the record at the beginning of the claim.
We support full 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. However, the fact that early submission of evidence does not
occur more frequently is usually due to reasons beyond the claimant's
control.
Our recommendations to improve the development process include the
following:
SSA should explain to the claimant, at the beginning
of the process, what evidence is important and necessary.
DDSs need to obtain necessary and relevant evidence.
Representatives often are able to obtain better medical
information because they use letters and forms that ask
questions relevant to the disability determination process. DDS
forms usually ask for general medical information (diagnoses,
findings, etc.) without tailoring questions to the Social
Security disability standard. The same effort should be made
with nonphysician sources (e.g., therapists, social workers)
who see the claimant more frequently than the treating doctor
and have a more thorough knowledge of the limitations caused by
the claimant's impairments.
Improve treatment source response rates to requests
for records, including more appropriate reimbursement rates for
medical records and reports.
Provide better explanations to medical providers, in
particular treating sources, about the disability standard and
ask for evidence relevant to the standard.
Improve the quality of consultative examinations
(CEs). There is a need to secure higher quality CEs and to
increase the reimbursement rates for these examinations. There
are far too many stories about inappropriate referrals, short
perfunctory examinations, and examinations conducted in
languages other than the applicant's. This is wasted money for
SSA and unhelpful to low-income individuals who do not have
complete medical records documenting their conditions and who
need a high quality CE report to help establish their
eligibility.
Eliminate reconsideration
We support elimination of reconsideration and adding some type of
pre-decision contact with claimants.
Since the late 1990's, SSA has been testing elimination of the
reconsideration level in ten ``prototype states'' [AL, AK, CA, CO, LA,
MI, MO, NH, NY, PA]. An analysis of the prototype testing, conducted
about five years ago, showed positive results for claimants. Benefits
were awarded at a slightly higher rate (40.4% vs. 39.8%) and about 135
days sooner. Further, the overall accuracy rate was slightly higher
under the prototype. For denied claims under the prototype, cases
reached ALJs about 70 days sooner than under the traditional process.
Thus, the preliminary results of the prototype showed that claims are
awarded earlier in the process; that accuracy is comparable to non-
prototype cases; and that denied claims moved to the next level sooner.
We have not seen any recent analysis of the prototype testing, even
though it has continued in the ten states, other than New Hampshire for
applications filed on August 1, 2006, or later under the new Disability
Service Improvement (DSI) process.
Elimination of the reconsideration level was scheduled to be
implemented nationwide in 2002. However, SSA announced in mid 2001 that
the nationwide rollout would be deferred pending further analysis
because of increased administrative and program costs and increased
appeals to the ALJ level.
We support providing claimants with a face-to-face meeting with the
decisionmaker. Until early 2002, the prototype testing included a pre-
decision interview, known as a ``claimant conference.'' We believe that
the most beneficial features of the original objectives of the claimant
conference should be incorporated. Early and ongoing contacts with
claimants during the development process are goals that we strongly
endorse. Many claimants' representatives and others would like to
participate earlier in the process since they are able to assist the
disability examiners in obtaining medical evidence and focusing the
issues. The conferences also allow claimants to further explain their
limitations.
Technological improvements
Commissioner Astrue has made a strong commitment to improve the
technology used in the disability determination process. We fully
support the Commissioner in this effort, as we believe that much of the
delay in the system could be rectified with improved technology. These
initiatives could not only reduce delays, but also provide better
service to the public and not require fundamental changes to the
process.
The electronic folder (eDIB). Commissioner Astrue is
moving forward with the electronic disability folder, ``eDIB.''
In his testimony before the Senate Finance Committee on May 23,
2007, Commissioner Astrue's ``Summary of Initiatives to Reduce
the Hearings Backlog'' includes a number of features related to
eDIB.
Electronic Records Express (ERE). Electronic Records
Express (ERE) is an SSA initiative to increase use of
electronic options for submitting records related to disability
claims. If working with an electronic folder, electronic
options can be used to submit additional evidence by submission
through SSA's secure website or by dedicated fax. A barcode is
provided by the SSA hearing office that is handling the
claimant's disability claim. The information in the barcode
directs the information submitted by the representative to the
claimant's unique disability folder. To participate in ERE,
representatives must first register with SSA. After
registering, they receive a user name and password.
According to his ``Summary of Initiatives,'' Commissioner Astrue is
proposing to expand the use of ERE to include providing direct access
to the electronic folder, electronic mailing of notices and other
correspondence, and filing appeals over the Internet.
Findings Integrated Template (FIT). FIT integrates
the ALJ's findings of fact into the body of the decision. It is
a ``smart'' decision-writing process, i.e., while it does not
dictate the ultimate decision, it requires the ALJ to follow a
series of templates to support the ultimate decision. It is
available online to the public at: www.ssa.gov/appeals/fit. The
website allows representatives to use FIT to draft fully
favorable decisions for ALJs and the Chief ALJ has issued a
Memorandum to all Regional Chief ALJs endorsing use of FIT by
representatives. One NOSSCR member in Iowa reports that he
recently used FIT to draft a decision and received a fully
favorable decision for his client less than 2 weeks later.
Video hearings. This allows ALJs to conduct hearings
without being at the same geographical site as the claimant and
representative and has the potential to reduce processing times
and increase productivity. Claimants and their representatives
have participated in video hearings in many locations and
states. Our members have reported a mixed experience, depending
on whether the video site is closer to home for claimants, the
quality of the equipment used, and the hearing room set-up.
Also, they report that the video hearing process is not optimal
for claimants and representatives with certain types of
impairments. We support the claimant's right, under the current
regulations, to opt out and have an in-person hearing.
Question: Are there other ways to address disability backlogs,
besides additional resources?
Answer: After the February 14, 2007, Subcommittee hearing, NOSSCR
developed a set of short-term recommendations for reducing the backlog.
The recommendations are attached to this letter as Addendum B (p. 25).
In his recent Senate Finance Committee ``Summary of Initiatives to
Reduce the Hearings Backlog,'' the Commissioner included some
provisions that are similar to our recommendations such as:
Reinstating the senior staff attorney program. The
Commissioner is analyzing the feasibility of implementing this
program on a short-term basis.
Allowing review of ``unpulled'' cases and hearings to
be held on these cases.
Allowing representatives to submit draft favorable
decisions. As mentioned above, this has been authorized by the
Internet posting of the FIT templates and the Chief ALJ urging
ALJs to allow representatives to submit draft favorable
decisions.
Continuing with implementation of technological
initiatives.
Question: As you know, since August, changes to the disability
determination process are being implemented in the Boston region. Is
there any update you can provide regarding how implementation is going,
based on feedback from your members?
Answer: To date, the information about DSI implementation from our
members primarily relates to the Federal Reviewing Official (FedRO)
level. We have not had any reports from members who have DSI cases at
the ALJ hearing level. Their comments regarding the FedRO level focus
on four areas: (1) processing times; (2) ability to contact the FedRO
assigned to a case; (3) medical evidence development; and (4) allowance
rate vs. denial rate, compared to reconsideration.
Processing times. Overall, the representatives are
not seeing cases decided more quickly than at reconsideration,
including denials. A sample of the comments includes the
following:
An attorney in Massachusetts received two
denials at the end of May. These cases had been pending
at the FedRO level since October 2006.
An attorney in New Hampshire notes that the
FedRO level is delaying decisions. Previously, New
Hampshire was a prototype state (see p. 3) where SSA
had been testing the elimination of reconsideration for
a number of years and initial denials were appealed
directly to the ALJ level.
Another attorney in Massachusetts reported
that the FedRO cases ``seem to take forever,'' with 6
or more months the norm. He used to count on 3 to 4
months for reconsideration.
Ability to contact the FedRO. The experience has been
mixed on the ability of representatives to contact FedROs. The
main reasons representatives want to contact FedROs are: to
discuss what additional evidence is needed; to discuss the
issues in the case; to expedite decisions in ``dire need''
cases; and to request a copy of the CD, which contains the
evidence of record.
An attorney in Rhode Island who is representing a number of clients
at the FedRO level describes his experiences with the FedROs as
``generally positive.'' He has spoken to some of the FedROs handling
his cases. He describes them as ``on the ball'' and knowledgeable about
the claims. A few of the FedROs called him first and he found that very
helpful as he was able to discuss the issues in the case and what
specific evidence was needed from treating sources. However, most of
the FedROs do not initiate calls and since their direct phone numbers
are not on the initial acknowledgment letter, the representative cannot
make the first call to the FedRO.
An attorney in New Hampshire has had less positive experiences:
``My limited experience with FedRO shows that they take an
unconscionably long time to decide claims and do not respond to
requests to expedite decisions due to `dire need' as outlined in HALLEX
I-2-1-40.'' On March 5, 2007, the attorney requested review by a FedRO
for her client at the SSA district office. In a cover letter, she
requested an expedited decision based on ``dire need' and enclosed
notices of overdue and unpaid electric service bills and a letter from
the bank with a notice of breach of the mortgage agreement. On April 9,
2007, she faxed to the district office updated medical information from
the treating physician and a memorandum in support of a favorable
decision. Between April 9 and May 31, 2007, she also faxed updated
medical records to the FedRO electronic file and, on May 31, 2007,
another letter from the bank stating that a foreclosure sale would
start on June 14, 2007. To date, the FedRO has not responded when asked
what other information is needed for a decision and he has not
responded to the ``dire need'' requests. The attorney notes that this
lack of response is in stark contrast to the responsiveness of the
Manchester, NH hearing office.
Most representatives have found that the FedROs reply to requests
for CDs relatively promptly at the beginning of the case so that the
representative can review the record to determine what additional
evidence is needed. However, one attorney noted that if the FedRO
obtains new evidence, there is no duty to share that new evidence with
the representative and it will not be on the CD obtained at the
beginning of the case. Also, one representative reported that his
office was recently told that the FedRO office was backed up and would
let the representative know when the CD would be sent out, with no
specific date provided.
Medical evidence development. It appears that few
claimants obtain representation at the FedRO level. Where
representation is sought after the FedRO denial is received,
representatives do not find the cases fully developed in terms
of obtaining evidence from treating sources or evaluation of
subjective symptoms such as pain. These types of errors lead to
increased appeals to the ALJ level. A repeated concern is that
there is too much emphasis on objective medical evidence and
inadequate evaluation of credibility regarding pain.
One representative in Massachusetts reported: ``I
just saw a FedRO denial. The claimant was pro se but had good
medical records and a strong case. It seemed as if the reviewer
was looking to deny benefits. Where evidence could have been
interpreted in a positive way, it wasn't.''
After reviewing FedRO denials, an attorney in
Massachusetts found that overall, the FedROs do less real
development of the record, like soliciting treating source
opinions, than had been done by the DDS. He also found that the
evaluation of the claimant's past work, though done by a
vocational expert, is based on incomplete evidence, since
claimants are not asked specific questions about their jobs.
Another concern is that the current configuration of the Office of
Medical and Vocational Expertise (OMVE) is causing significant delays
and affecting the FedRO decisionmaking process. As currently
implemented, the OMVE does not provide the type of quality expert
medical evaluations envisioned in the DSI regulations. Rather, requests
for consultative examinations are handled by the state DDSs, the same
as before DSI. And the Federal DDS reviews the cases in the situations
required by the regulations. Our members report that referrals to the
OMVE, which in reality is the Federal DDS, are resulting in longer
processing times.
Allowance/denial rates compared to reconsideration.
Generally, our members have found that there has been no
significant increase in the allowance rate at the FedRO level,
compared to reconsideration. In late April 2007, the FedRO
denial rate was 72%, only slightly lower than the
reconsideration denial rate of 76%. The experience of our
members is similar--they do not see any significant difference
in the denial rate at the FedRO level, compared to
reconsideration. At a session on DSI at the April 2007 NOSSCR
conference, we asked attendees whether they had received any
FedRO allowances and/or denials. The ratio of representatives
whose clients had received denials versus favorable decisions
was similar to the overall percentages.
Other DSI issues. While our members have the most experience with
cases at the FedRO level, there are a few other issues they raise
concerning DSI:
There have been some delays noted in sending appeals
to the FedRO when the appeal is filed in the district office.
This problem is likely attributable to the general workload
issues in district offices, which was raised in the NOSSCR
testimony for the February 14, 2007 Subcommittee hearing.
Based on statistics received by NOSSCR in response to
a Freedom of Information Act, the first dispositions by ALJs
were all dismissals. Through the end of January 2007, of the 13
requests for hearing filed after FedRO denials, there were 8
dispositions, all dismissals. [Under the DSI regulations, the
claimant has the right to appeal an ALJ dismissal to the
Decision Review Board (DRB), after first presenting the request
to review the dismissal to the ALJ.] The information we
received does not explain the grounds for these dismissals, but
the numbers do raise concerns about inappropriate dismissals
for claimants who are proceeding without representation.
The number of represented claimants at the FedRO
level is quite low, about 24% according to the statistics
received in response to the NOSSCR FOIA request. The initial
denial notice does not encourage claimants to obtain
representation at the FedRO level or provide information to
help them find representation resources.
ADDENDUM A:
ADDITIONAL STORIES OF CLAIMANTS EXPERIENCING HARDSHIPS
ARIZONA
An attorney in Prescott, AZ has had several clients who have lost
their homes. One case involves a formerly stable family with six
children. Due to the financial problems, the wife, who is not the
claimant, developed a severe drug and alcohol addiction problem
requiring in-patient treatment. The father, who is the claimant, has
had difficulties following through with appointments because ``he just
wants to give up.'' The father was a construction worker who had a
solid work history. The attorney became involved after the hearing
request was filed 7 months ago. He has sent in two requests for an on-
the-record decision but has received no response on either request.
The attorney notes that this family has a history with delays in
the disability claims process. The claimant's father was also disabled
and some years ago applied for Title II disability benefits. After
waiting a significant amount of time, the claimant's father went to the
local SSA district office to check on his claim. He was told that no
decision had been made and that it would still be some time before he
received a decision. He returned to his truck, extremely frustrated and
upset since he was running out of money. After feeling ill, he drove to
a VA hospital where they found he had experienced a heart attack and he
was admitted. The claimant's father died 3 days later.
ARKANSAS
The client was diagnosed with a recurrence of breast cancer. She is
Stage IV and probably meets the Listing for breast cancer, but she and
her attorney have been unable to have SSA expedite her case. The client
was a schoolteacher for thirty years.
COLORADO
The client appealed a 2000 continuing disability review (CDR)
decision to terminate benefits. The case was appealed to Federal court
and was remanded by the judge in 2005 for a new hearing. The attorney
wrote to the ALJ to expedite the case, but the ALJ now wants more up to
date records. The client has degenerative disc disease which has
deteriorated, based on current MRI evidence and statements from his
doctors. The client has received VA service-connected disability
benefits because his original injury was sustained in 1986 while he was
in the Navy when he tried to ``catch'' a piece of falling equipment
which came loose from a crane.
While waiting for his case to be resolved, the client has
experienced significant financial and family difficulties. He has
consulted with a bankruptcy attorney. He has lost his family--his wife
divorced him and his kids are living on their own or with their mother.
He lost his house to foreclosure last year. He now lives with his
elderly mother.
IDAHO
An attorney has a client in Moscow, ID. The client worked as a cook
and professional musician. He has a history of colon cancer and needs a
colostomy bag. He now has bladder cancer (diagnosed while waiting for
the hearing), in addition to gout in his legs and arthritis in his
wrists. The client tried to work when he moved to Idaho but could not
maintain employment due to his impairments and filed for disability
benefits in August 2004. His claim was denied and he requested a
hearing in June 2005. The hearing was not held until late March 2007,
and a favorable decision was received 2 days after the hearing.
To survive while waiting for his hearing, he was forced to pawn
almost all of his belongings, including his musical equipment. The lack
of income, in addition to his health conditions, created a crisis as he
had no money and no health insurance. He ended up with few clothes,
living in a subsidized apartment.
He was able to petition the county for indigent funds to pay for
his medical care and for supplies to service his colostomy (e.g., bags,
seals, etc.). These funds are a no interest loan, not a gift. They are
not provided automatically and a new application must be filed for each
medical visit. He was also forced to get loans from his father and
friends. This caused him embarrassment and stress worrying about how he
would repay these debts for living expenses and medical care,
especially given the cancer recurrence. He is not able to seek
consistent and comprehensive medical care for his problems due to the
lack of health insurance and long delay in deciding his case.
An attorney in Boise, ID who has represented clients in Social
Security disability claims for more than 20 years related the
following:
Over the past several years I have experienced delays
consistently more than 18 months from the time an ALJ hearing
is requested until it is held. Many times there are 6 more
months before the decision is issued. I have many clients who
have sold their homes, spent their life savings and filed
bankruptcy as a result of these delays. Most of my clients have
no medical insurance, so they are not being treated during this
time. To make matters worse, I had hearings this week in which
the ALJ informed me I had only 45 minutes to present my case,
which was mandated as a way to have more hearings per day to
reduce the backlog. You can imagine how frustrated a disabled
person would be after waiting 2 years for a ``fair'' hearing
only to be cut off by the judge.
Another attorney represents clients in the north to north-central
Idaho area. The hearing office in Spokane, WA covers this part of Idaho
but does not have video hearing capacity for this area. This means that
clients must wait for an ALJ to travel to Lewiston, ID to hold hearings
and hearings are not held in Lewiston every month. ``We tell our
clients at the start that they will have to wait at least 18 months to
have a hearing.'' For clients without health insurance, there are few
options and Idaho has no cash grant program. He provided the following
case examples:
Mr. A lives in Coeur d'Alene, ID. He obtained legal
representation about November 2005 and most of the time since
then he has been living in his truck without water and
electricity. The summers are hot and the winters are cold. He
has a borderline IQ, a traumatic brain injury, and a
personality disorder. He filed for benefits in May 2005, was
denied, and filed for a hearing in January 2006. In May of 2007
he received an on-the-record favorable decision after
Congressional inquiries and multiple efforts by his attorney to
get the hearing office's attention. During most of this period,
he had no income and no medical care.
Ms. C, Genesee, ID applied for SSI benefits as a child in
September 2004. While this application was pending she turned
18 years old. Her medical history begins with extreme abuse
from her parents and moving from place to place with her
family. She finally settled in Genesee and lives with a cousin.
She has multiple severe mental health impairments. She
requested a hearing in July 2005. The hearing was held in March
2007 and she is waiting for a decision. Her Medicaid coverage
from TANF ended in September 2004 when she reached age 18. Her
financial assistance from Idaho ended at the same time. She
lived on the street with no medical or psychiatric care.
Mrs. D, Pierce, ID worked in the lumber mills of north
central Idaho. The mill closed in 2000 and she was unable to
find any work. Her husband is also disabled. She had minor
children at home. While working, she injured her knees. She
experiences chronic severe pain as well as an inability to walk
even two blocks. She was not eligible for Medicaid. She
initially filed for benefits in March 2001 and was denied. She
reapplied in January 2003. Her hearing was held on October 19,
2006. She had no medical coverage and no income other than her
husband's benefits. At her hearing, the doctor said she was
disabled as of the original March 2001 application.
An attorney in Sandpoint, ID represents clients with hearings
in Billings, MT, Kalispell, MT, and Spokane, WA. He notes that
the Spokane hearing office is a good office but is very far
behind in hearings. This has gotten progressively worse in the
past 5 years. One of the greatest frustrations is that there
have been several periods when ALJs cannot hold hearings
because the case handlers are too far behind and have not
pulled cases for hearings. Development by the Idaho DDS is
inadequate and ALJs are required to send claimants out for
additional development, which adds to the delay.
Over the past 4 years, this attorney has had four clients commit
suicide. One client with chronic pain took his life after an Appeals
Council remand and while waiting months for a new hearing date. The
attorney went with law enforcement to make positive identification of
one of his clients. Northern Idaho has some of the poorest of the poor.
The rough winter conditions increase the problem of not only
maintaining housing, but heat. The attorney provided a few examples of
his clients' circumstances:
Ms. L is 51 years old and is from Priest River, ID. She has a
long history of mental health issues. She received SSI
beginning in 1991, but it ended when she married in 1995 and no
longer met the financial requirements. Her husband was killed
in a logging accident. She has no income or other source of
help. She filed a new SSI claim and her attorney requested that
the case be treated as a priority claim in June 2006. A second
request for an expedited claim was made in July 2006. The
hearing finally was held in April 2007 but the ALJ could not
make a decision and sent her for a consultative examination in
May 2007. The client may be homeless soon.
Ms. B is a 60 year old widow from the Sandpoint, ID area. She
lost her husband 1 year before filing for disabled widows
benefits and disability benefits. She has arthritis and chronic
back and hip problems. She lost her house and had to live with
friends and relatives. Repeated requests for an on-the-record
decision were denied. Finally, after losing her home and most
of her possessions, she was approved after a hearing at
Spokane, WA hearing office.
IOWA
A firm in Des Moines, IA has three attorneys who devote the
majority of their time to representation of Social Security disability
claimants. Their clients must expect to wait between 14 and 24 months
for a decision on their claims, after requesting an ALJ hearing. One of
the hearing offices where they represent clients is short two ALJs and
six support staff, causing the backlog to grow significantly, despite
the implementation of new technology. The impact on their clients is
devastating:
[L]ying just below each and every Social Security number
included in this mounting backlog is a living and breathing
individual, as well as--in the majority of cases--a household .
. . Virtually every day, our firm receives a phone call from
one or more of our clients who are slowly growing more and more
desperate as they grapple with foreclosure notices on their
homes, with eviction notices, with utility shut-off notices . .
. and . . . the loss of any access to medical care, often
coupled with the inability to buy medications and other
treatment.
Several stories from the firm's clients describe how they and their
families have been affected while waiting for their claims to be
decided:
Ms. H from Boone, IA was initially unable to work due to a
fractured pelvis and was subsequently diagnosed with
degenerative disc disease and osteoarthritis. She is not a good
candidate for surgery. She has not been able to work since
November 2003. She filed her application for disability
benefits in September 2004. She was denied and filed a request
for hearing in May 2005, which was held in August 2006. She has
not yet received a decision.
She lives with a friend and gets food stamps. While waiting
for a decision on her claim, she has exhausted the money
withdrawn from her pension plan at work, in addition to the
penalties paid for early withdrawal. She has borrowed money
from her family and has taken out a lien on her car, which she
had already paid off. She has no medical insurance and has not
been able to get adequate medical care. She did apply for a
patient assistance program to get cheaper medication, but does
not like the idea of people knowing about her dire financial
condition. Due to the stress of wondering how she is going to
afford to live and take care of her medical needs while waiting
to get a decision on her claims, she has been diagnosed with
anxiety and depression.
Mr. A from Altoona, IA had a workplace injury in February
2005 and has been unable to work due to chronic shoulder and
back pain with numbness. He had surgery in February 2007, but
the doctors believe it will not resolve the pain. He also has
been diagnosed with depression due to the pain and due to
stress about not being able to help meet the needs of his
family. He filed for disability benefits in February 2005 and
was denied. He filed a request for hearing in November 2005. He
received a notice in November 2006 that his case was ready to
schedule but no hearing date has been set.
He lives with his wife and four children. His wife has
started to work to support the family but earns only $390 every
2 weeks. Due to his pain, he is unable to help care for the
younger children. They have had to borrow $6000 in loans from
friends to help pay for rent, household items and vehicle
repairs. His wife had an injury and was unable to work for a
month.
Another client from Altoona, IA stopped working in October
2003. She had back surgery in March 2004 with numbness in her
left foot. She also has diabetes, which has caused hernias that
have required surgical repair. She has developed multiple
complications from the surgeries. Her diabetes is not well
controlled and her doctor is now concerned that she may have
early signs of kidney failure. She has Medicaid but must spend
down $1300 every 2 months before Medicaid will cover the
remaining medical costs. Her doctor would like her to go to the
University of Iowa Hospital for tests, but she does not have
transportation or gas money to go. She has many medical bills
and has three judgments against her for unpaid medical bills.
Her truck is not working but there is no money to fix it. Her
mother helps pay for some medications but this is a loan. One
of her medications costs over $150.00 per pill.
The client applied for disability benefits in March 2005 and
was denied. After the reconsideration denial, she filed a
request for hearing in November 2005. Her hearing was finally
scheduled in April 2007.
An attorney from Davenport, IA has a client who filed a request
for hearing in June 2005. In April 2006, the hearing office sent an
acknowledgment letter that the request had been received, but no
hearing has been scheduled. She has degenerative disc disease and
fibromyalgia, causing extreme pain. She has a long work history. The
attorney received a letter from his client on May 16, 2007, describing
her current situation:
. . . I know its [sic] only been around 2 years, but it feels
like 10. My hands and my spine are getting really bad. [My
doctor] took x-rays and confirmed what I didn't want to hear .
. . My pain is getting out of control--My joints are growing,
and my fibromyalgia is slamming me with hammers, boots, rocks,
and knives. And due to our circumstances we've had to relocate.
KANSAS
An attorney in Mission, KS has a client who is a veteran with
diabetes and related neuropathy along with swelling in his ankles and
toes and blurred vision. He also suffers from bipolar disorder with a
history of anxiety, panic disorder and at least one suicide attempt. A
hearing was requested for this client 2 years ago, on May 17, 2005.
In June 2006, the attorney learned that his client was living in a
VA transitional program but was 2 months behind in his rent payments.
As a result, he immediately sent a request for an expedited hearing to
the Kansas City hearing office. The request was denied because,
according to the hearing office, the client's situation did not meet
its requirements for an expedited hearing.
In March 2007, the attorney learned that the client's transition
program had been suspended. The attorney again requested that the
client's hearing be expedited and was advised again that the request
would be denied and that the case would be processed as a normal
hearing. Days later, the VA program manager notified the client that as
of April 1, 2007, he would be homeless due to his inability to pay
rent. On March 29, 2007, the attorney yet again wrote to the Kansas
City hearing office requesting an expedited hearing based upon the fact
that the client was now homeless. As of late May 2007, no reply had
been received nor has the case been set for a hearing.
The attorney notes: ``I wish I could say that the above-described
example was an exception to our experience in obtaining hearings for
our clients. However, it is routinely taking 18 to 24 months or more
from the date of a hearing request before these disability hearings are
being scheduled. Too many of our clients suffer loss of residence and
deteriorating health conditions while they are awaiting a hearing on
their disability applications.''
An attorney is representing a woman from Coffeyville, KS. The
hearing request was filed in October 2005 and they just received
notice, dated May 2, 2007, that the file is now ready for review. No
hearing is scheduled. Since the appeal was filed, the client and her
husband have had to file for bankruptcy. She just told her attorney
that the Bankruptcy trustee is renting out their house, forcing them to
move to a smaller, less expensive rental. They barely make ends meet,
as she has over $1,300 in prescriptions each month. Fortunately, they
have some medical insurance, but her co-pay is around $300, which is
still a significant amount for a single income family.
The same attorney has another client who has been waiting for a
hearing since February 2006. He has been without medical insurance
since being injured at work in 2001. His medical bills have mounted due
to medications and necessary surgery, and he has to limit doctor calls
to a bare minimum. He and his wife live on her $8.00 per hour job, and
with the cost of medications (he is diabetic, in addition to many other
medical conditions), they barely get by. So far, they have not lost
their house, but he calls regularly to see if there is a hearing date
because of their financial circumstances.
Ms. A, Wichita, KS filed a claim for disability benefits in March
2004 and filed a hearing request in January 2005. The original hearing
office was Wichita, KS, but her case was transferred to the Omaha, NE
office in order to expedite the hearing via video teleconferencing. The
hearing was held in March 2006 and a supplemental hearing in June 2006.
The representative's office made monthly status requests to the Omaha
hearing office and was repeatedly told it was on the ALJ's desk. Then,
in November 2006, an Omaha hearing office employee contacted the
representative requesting a copy of the claimant's file because they
could not find theirs. The representative forwarded a copy of the
claimant's file the same day. The client finally received a decision, a
denial of benefits, on April 18, 2007. The claimant waited 11 months
after the hearing for a decision and is now appealing the ALJ's
decision. Ms. A has extreme abdominal pain due to irritable bowel
syndrome, anxiety, insomnia, depression and history of psychiatric
problems for which she frequently obtains medical treatment. She would
miss 2 to 5 days a week when working. Her hospital calls the
representative monthly requesting a status on the client's claim as
they are trying to collect on her unpaid bill.
Mr. and Mrs. P are a married couple living in Wichita, KS. Mr. P
filed for disability benefits on September 27, 2006. He has a
degenerative disorder of the spine, asthma and mental impairments. He
has been denied at the initial and reconsideration levels and filed a
request for hearing earlier this year. Mrs. P filed her claim on August
8, 2005, and her hearing acknowledgement was received on May 30, 2006.
A request for an on-the-record decision was submitted on June 9, 2006.
The request was denied and Mrs. P is waiting for a hearing to be
scheduled. Mrs. P last worked as a home health care giver in August
2005. She is diabetic, has neuropathy and nerve damage in her feet and
legs making it difficult to balance or walk, and is now attending a
mental health facility for depression. With neither Mr. nor Mrs. P
working, the couple's utilities were shut off. They have no vehicle.
And, they lost their home and were forced to move in with Mr. P's
mother. A dire need request was made to the hearing office on April 13,
2007. Her representative has asked about the status, but as of this
date no response has been received. Mrs. P calls her representative
daily to check on the status.
The representative notes that individuals lose their State medical
coverage prior to their hearings. They are allowed only 2 years of
assistance through the State program and in some cases it takes longer
than the 2 years to get scheduled for a hearing. They are left with no
medical assistance for checkups and prescriptions. This also makes it
extremely difficult to prove and document their disabling conditions.
MAINE
An attorney has a client from Augusta, ME who has significant
mental health impairments. The client receives general assistance to
pay his rent, but has no income to buy gas for his car so that he can
attend appointments. MaineCare will not pay for some of his
medications, forcing his doctor to change his prescriptions to other
medications which are not as effective.
He is thinking of relocating to Massachusetts to live with family
as he is really struggling. This concerns him because, in the past, he
had substance abuse problems (likely related to self-medication due to
bipolar disorder) and he is afraid he will connect to old friends and
associates which may not be good for him. In late 2006, the attorney
received notice that 44 of his cases were being transferred from the
Portland hearing office to the Boston hearing office. Fourteen of these
cases had hearing requests filed in mid 2005. So far, only one case has
been scheduled for a June 2007 hearing date. Before the transfer, he
filed requests for on-the-record decisions in two of the cases but has
received no response.
A Yarmouth, ME attorney has a client with serious, well-documented
psychiatric impairments. He filed his application in mid 2004 and his
request for hearing in early 2005. While the hearing was pending, he
became homeless with his wife and two young children. He was evicted
and lived with friends and in a shelter. His family could not stay in
the shelter continuously due to the children. At times, he and his
family lived in his car. A fully documented request for an on-the-
record decision was made, with an alternative request for an expedited
hearing. The on-the-record request was rejected by a hearing office
staff attorney. Months later, a hearing was scheduled--22 months after
the request for hearing was filed. The ALJ issued a bench decision
after a short hearing.
Another client of this attorney is a young woman with a history of
psychiatric treatment from early childhood. She filed her application
in fall 2004 and her hearing request in spring 2005. The client had
very unstable living conditions, and while waiting for a hearing, she
underwent two psychiatric hospitalizations. The staff at the second
hospital contacted the attorney, emphasizing the importance of the
client obtaining benefits so she can have a stable living environment
and medical coverage. Documentation was obtained and a request made in
mid 2006 for an on-the-record decision. No response was received and a
hearing was eventually scheduled 8 months later--and 23 months after
the hearing request. While waiting, the client lost her Medicaid
coverage; continued to live in unstable circumstances, moving between
with friends and relatives; and did not receive adequate treatment. At
the hearing the ALJ stated that he agreed with the argument made in the
on-the-record request, but it had not been shown to him.
Another client of the same attorney has multiple traumatic physical
injuries due to falls from scaffolding and a roof. He lived in a
backwoods cabin without running water. He required orthotic devices and
further surgery but could not obtain them due to lack of resources and
limited Medicaid coverage. He filed his application in late 2004 and
his hearing request in fall 2005. While the hearing was pending, he was
in severe pain, living in primitive circumstances, and unable to obtain
the medical care he needed. A hearing was finally scheduled in spring
2007--19 months after his hearing request. The ALJ issued a bench
decision, allowing him to get the medical care he needed. The client
remarked that this gave him ``a whole new life.''
MASSACHUSETTS
A client lives in Pittsfield, MA. The original hearing request was
filed January 2006 but was only logged in at the Springfield, MA
hearing office in April 2007, some 15 months later. It appears that it
was lost and eventually found at the Springfield, MA district office.
The client's main impairment is depression. She also has been a
domestic violence victim in the past. These impairments, along with the
fact that she does not speak English as a first language have all made
her the ideal candidate to fall through the cracks. The attorney first
met her in February 2007. When the attorney called the Springfield
hearing office shortly thereafter to locate the file, he was told that
it was not yet logged in even though the hearing request was over a
year old at that point. This is when the search for the file began. He
began to reconstruct the file but then the original was found.
The greatest hardship for this client was living in a shelter with
two young daughters, having been in an unsafe situation. The husband is
now in jail because of other activity, so she escaped the abuse, but
also lost his financial support. She was placed in subsidized housing
in Pittsfield, MA. While it provides shelter, she is very isolated in a
new community with no family and no supports and virtually no services
for Spanish speakers, which has meant a lapse in obtaining mental
health services.
Another attorney is representing a client from Worcester, MA who is
currently homeless. The client has past work as a cashier, customer
service agent, and doing temporary agency jobs. Her hearing was
requested September 2006, and she is still waiting for a hearing date.
She has 3 children--the oldest is in United States Air Force, but the
other two children live with relatives. She has been living outside in
the woods for the past three years. Recently, she began staying in
rooming houses and is trying to get housing with a women's shelter. Her
impairments include bipolar disorder, anxiety and depression, pulmonary
disease, hepatitis C with sclerosis of the liver, arthritis, knee
injuries from a past rape, and an enlarged heart. The client's health
is deteriorating and she still does not have income to afford secure
and safe housing.
MONTANA
An attorney from Kalispell, MT, has a client who lost her home. The
client's doctors have said that she is disabled due to back problems,
depression and pain syndrome. Her attorney submitted a report from a
vocational rehabilitation counselor who said that given the client's
limitations she was not competitively employable. The client filed her
application in May 2005 and her request for hearing in June 2006. Her
attorney recently submitted a ``dire need'' affidavit to the hearing
office, in which the client explains her circumstances:
I was living in a mold-infested camp trailer for over 1 year
without running water or a bathroom or cooking facilities. Now I live
in an 8, x 20, building and I still do not have running water or a
bathroom. . . . Even if I were somehow able to obtain a modest
apartment, I wouldn't be able to afford electricity, water, garbage or
sewer or the basic amenities to maintain an apartment and appease a
landlord. . . . I have been unable to pay my treating physicians for
nearly 4 years. . . . I hurt all of the time and I can no longer afford
my medications. I have accumulated and continue to accumulate medical
bills. I don't have any way to continue to receive treatment. . . . I
suffer from depression and it is only getting worse as well. I consider
suicide an option to fix my problems; I no longer can afford my anti-
depressants. . . . The stresses of having no money and becoming
homeless are destroying my emotional, mental, and physical health. I
have reached a breaking point and I am not sure how long I am willing
to live this way. I will not be able to survive without shelter, money
and medical treatment.
An attorney for a non-profit legal organization reports that her
organization, with several offices in Montana, has a combined caseload
of over 600 Social Security and SSI disability clients at any given
time. The organization has an average of 10 clients who die every year
from conditions related to their disability while they are waiting for
hearing. They routinely have clients who are living on the streets or
in their cars while waiting for hearing. Because the state does not
have general assistance or state medical assistance, many have no
source of income and no health insurance coverage. The attorney finds
that it takes on average over 2 years for a case to be processed. The
organization also reports delays at the initial and reconsideration
levels. The following stories are a few examples from the
organization's caseload:
A 49 year old Native American woman who lives outside of Helena, MT
has uncontrolled diabetes with neuropathy in her feet and legs, bipolar
disorder, recurrent pancreatitis, and other conditions. She has a solid
work history of nearly 30 years and is raising her nephew who graduates
from high school this month. In the 2 years since she filed for
benefits, she has lost her car (Helena, MT has very limited public
transportation and she lives outside of town effectively losing any
means of transportation). She has been unable to afford her
medications, including insulin, for several months at a time, thus
making her medical conditions worse. She came within days of losing the
property her trailer sits on because she was unable to pay the back
taxes which were only $500. Her hearing was recently held and her
attorney asked that the decision be expedited. She is currently waiting
for her first SSDI check and past due benefits.
A 49 year old Native American man who has chronic pancreatitis,
chronic obstructive pulmonary disease, asthma, and other disabling
conditions was living in his car during the Montana winter where
temperatures are routinely below zero. He previously had suffered from
frostbite of both his hands during the winter of 2004 when he was also
living in his car. He was unable to stay at the local homeless shelter
because of conflicts with other individuals. He waited for 2 years from
the time he applied for benefits until he received them.
A 47 year old woman has degenerative disc disease with herniated
discs, severe depression and other disabling conditions. During the
almost two years she has been waiting for benefits, she has lost her
car, her house, her health insurance and her husband left her. She can
not afford her medications and has been without them for months at a
time. The consultative examination performed after her hearing revealed
that she is actively considering suicide but was waiting until her son
graduates from high school next month to follow through on her plan.
The attorney hopes that a favorable ALJ decision will be issued in the
near future.
A 49 year old man with severe sleep apnea, cellulitis, coronary
disease and rheumatoid arthritis has been waiting for benefits for
almost two years. He has a high school education and has worked at hard
physical labor jobs his entire life. His wife works but they can not
afford the drug injections he needs for his rheumatoid arthritis and he
is getting them through a program with the drug company. They have a 6
year old child who helps his father as much as he can. This ``big,
strong, tough'' Montana man broke down in tears during his hearing
because it shames him so much that he cannot help support his family
and he needs the government's help at this time in his life. The
attorney and client are waiting for a favorable decision in his case.
A 58 year old man diagnosed with paranoid schizophrenia, severely
abscessed teeth, and other serious medical conditions waited over two
years to receive his benefits. His dental problems led to infections in
his blood stream which negatively impacted his mental illness making it
much more difficult to control. When he did get his SSI past due
benefits, he immediately had his teeth pulled and had dentures fitted.
He needed to use his back award to pay for this treatment because no
dentist will accept Medicaid for dental work in his community.
A 49 year old survivor of domestic violence waited for over two
years for her benefits. She suffers from post-traumatic stress disorder
and also had a motor vehicle accident which resulted in head trauma and
other injuries. She was living in a series of shelters until she was
able to get into subsidized housing.
A 7 year old Native American girl who was exposed to meth and
alcohol in utero was adopted by a single mother who was unaware of her
medical conditions. She has severe psychological, neurological and
physical problems. She waited 2 years to receive SSI childhood
disability benefits.
A 7 year old boy, diagnosed with bipolar disorder, has severe
psychological problems, which result in difficulties at school and at
home. It was 3 years before he received SSI childhood disability
benefits.
A 60 year old registered nurse who has an excellent work history
could no longer work because of physical and mental health issues. She
and her husband went through great marital difficulties due to her
depression and were unable to complete construction on their home
because of financial problems and her inability to work. It took over 2
years before she received benefits.
A 35 year old mother of three had severe neuromuscular injuries
that left her confined to a wheel chair. It was 2 years before she
received benefits. During that time, her husband left her. As a result,
she and her children were forced to move in with her mother until her
benefits were received and she could get a home health aide to help
her.
A 31 year old radiology technician with a college degree suffers
from a severe seizure disorder, resulting in major cognitive
difficulties, which no longer allow her to work. She was forced to move
in with her parents so they could help provide for her. It took over 2
years for her to receive her benefits.
A 51 year old woman applied for disability benefits in November
2004. She lives in the northern part of Montana. She agreed to travel
to have a hearing in Billings. The hearing was finally scheduled in
January 2007. There are few ALJs covering all of Montana and they
rarely travel to the northern part of the state.
NEW MEXICO
Mr. R is a 36 year old father of four who has been diagnosed with
Chronic Lymphocytic Leukemia, hypoxemia, depression, hematuria, and
sleep apnea. He suffers from chronic pain, has been undergoing
chemotherapy, and is on oxygen 24 hours a day. A former pipeline
inspector, he has been unable to work since September 2005. He
initially filed for disability in November 2005, and his request for
reconsideration was denied on July 6, 2006. That July denial apparently
did not take into account an on-the-record request filed by his
attorney on June 27, 2006. He filed his request for hearing on July 17,
2006, and on July 21, 2006, his attorney filed a renewed request for an
on-the-record decision. To date, Mr. R has heard nothing about a
hearing date and has heard nothing on his request for an on-the-record
decision. He has now had to file for bankruptcy, since his wife's
income as a bank teller is insufficient to support the family.
A client who lives in Grants, NM applied for disability benefits in
December 2005 due to kidney cancer. He was 61 years old at onset. His
claim was denied and he filed a request for hearing in October 2006.
His attorney advised the Albuquerque hearing office in February 2007
that the client's cancer had spread to his lungs and pancreas. There
was no response. His attorney also sent a proposed Findings of Fact to
the supervisor of the decision-writers. The client died in May 2007 and
the hearing office was advised of his death. The client's widow is now
waiting for a response but there has been none.
Ms. K suffers from Wegener's granulomatoesis, a disease that causes
drastic inflammation which has settled in her pulmonary system and has
affected her heart, kidneys, skin, and immune system. She is on oxygen
24 hours a day. K is a 48 year old wife and mother. She has not been
able to work in catering and food service since July 2003. Her disease
went into remission but not enough to allow a return to work, which she
had hoped for. As a result, she did not apply for disability benefits
until July 2006. She did not know that waiting would affect her ability
to receive Title II disability benefits. Because her disability insured
status had expired, she could only apply for SSI, which was denied in
September 2006. She filed her request for reconsideration in November
2006, and is still waiting for a decision, 6 months later.
A client who is Native American lives outside of Gallup, NM on a
Navajo reservation. He filed his applications for disability benefits
in early 2004 and his request for hearing in December 2004. He suffers
from multiple impairments, including uncontrolled Type II diabetes,
degenerative disc disease with chronic back pain, sciatica, and chronic
renal insufficiency. He takes numerous medications. After many
telephone calls and a letter to the Albuquerque hearing office, he was
offered a hearing at the end of May 2007 at 8 a.m. in Albuquerque,
because the Gallup hearing site was closed. He has difficulty riding in
a car--Gallup is more than two hours from Albuquerque each way. It also
is a financial hardship because it will require a hotel stay the night
before the hearing. His objection to the hearing location was denied
and he will try to attend, despite the hardships.
A client who is Native American lives in Gallup, NM. He has a back
impairment, post-fusion, and he is on numerous medications. He has
depression and hypertension, which his doctor said may be secondary to
pain. He is unable to participate in physical therapy because the
therapist said he could not tolerate positional changes and he was
unable to lie flat on his back or stomach without complaining of
extreme pain in his lower back and right leg. His treating doctor wrote
that the client is ``totally disabled for at least the next 2 years.''
The request for hearing was filed in December 2005 and his attorney
requested an on-the-record decision in July 2006, but there has been no
response. The attorney updated the record with more reports in
September 2006, to which there has been no response. The client was
evicted from his apartment in August 2006. The attorney interviewed him
and took photos of the shack where the client lives. It has a dirt
floor and his 3 year old son sleeps on a blanket laid over the dirt.
The attorney reminded the hearing office in March 2007 of the on-the-
record request and sent photos of the living conditions. A fully
favorable on-the-record decision was received on March 26, 2007. The
client requested an immediate emergency payment at the Gallup, NM SSA
district office. They have not processed the request because they
require proof of any TANF payments and wages. In addition, they want
all of his bank statements, which he no longer has. The bank charges $2
per page for copies and he cannot afford to pay that amount.
A 52 year old man who lives in Portales, NM requested his hearing
in October 2005 and it was finally held on May 1, 2007. Before becoming
disabled, he owned his own business. He had to file bankruptcy recently
and is expecting to receive the foreclosure paperwork shortly. He has
experienced significant family problems as a result of the financial
strain. He worries about being homeless and his mental impairments have
been exacerbated by the delay on his disability claim.
A client who has a 100% VA disability applied for Title II
disability benefits. It took 2 years to get a hearing. His case was
heard by an ALJ in October 2006 and as of May 11, 2007, he still has
not received a decision.
NEW YORK
A client in the Buffalo, NY area was 53 years old when she filed
her claim. She had worked at a credit union for over thirty years,
eventually becoming a senior loan officer. She suffered a traumatic
brain injury when young, which began to severely impact on her ability
to concentrate and she began making mistakes at work. She finally had
to stop working in early 2005. She also had serious heart problems and
major depression along with her cognitive problems. The wait at the
Buffalo, NY hearing office is 2 years. As the waiting process went on,
she lost her house to foreclosure, used up her entire 401(k), and lost
the health insurance that she had been obtaining through COBRA. It was
not until all these things occurred that she was eligible to file for
``dire need'' at the hearing office. But by then, this middle-class,
middle-aged woman was reduced to seeking help from social services who
told her that she would have to move again since her $450 rent
(including all utilities) was too extravagant. Her attorney sent all of
this information to the hearing office with a request for an on-the-
record decision. She was approved on-the-record, but by then she had
lost everything she had worked for her entire life.
Ms. F lives in Bohemia, Long Island, NY. She has cancer of the
brain and of the base of her skull and other impairments. She applied
for disability benefits in July 2005. A hearing was requested in March
2006. Her attorney has filed several requests for an on-the-record
decision. All have gone unanswered and there is no date in sight for a
hearing. She worked as a housekeeper for 25 years. But now she sees
numerous doctors and the cost of obtaining medical evidence has been
significant.
A client requested a hearing in May 2005. The hearing, in the
Queens, NY hearing office, was held in January 2007. The attorney and
client were advised that a favorable decision would be issued. However,
no decision has been received to date, even though the attorney has
written and visited the hearing office twice about the case. There is a
minor child who will be eligible for dependents benefits. The client
has no income now to support the child.
NORTH CAROLINA
Mr. F is a 47 year-old father of two young girls who has Listing-
level congestive heart failure, as attested to on multiple occasions by
his treating cardiologist. He lives in Wilmington, NC. He applied for
disability benefits in February 2004 and had his hearing in March 2006.
While his wife works some, without his income the family could not pay
the mortgage on their home. As a result, they were forced to sell their
house in lieu of foreclosure and now live in a very small apartment.
Every time Mr. F's attorney meets with his client and Mr. F's wife, he
can see the toll the wait has taken on their marriage. This is not
uncommon and can be much more disastrous than more readily identifiable
hardships. Mr. F lost his COBRA health insurance coverage while waiting
for his hearing. Now he has no insurance and, of course, cannot obtain
insurance. His attorney submitted supporting documentation of Mr. F's
disability to the hearing office and requested an expedited, on-the-
record decision, in order to allow Mr. F to continue his COBRA
coverage. The request was not approved.
As documented by echocardiograms, Mr. F's condition is worsening.
Despite his treating cardiologist's efforts, the ALJ denied Mr. F's
claim and he has filed an appeal with the Appeals Council. His lack of
income and health insurance coverage continues.
Mr. A is 50 years old and applied for disability benefits in 2003.
He has a documented IQ of 63 and suffers from back issues and HIV. He
now lives in an abandoned house, with the owner's permission, but has
no electricity. He is hoping his case will be resolved soon because he
doubts his ability to continue the hardships of another cold winter.
NORTH DAKOTA
Ms. G is a 51 year old former cashier who lives in Dickinson, ND.
She has a number of medical conditions which prevent her from working
including: cervical and lumbar degenerative disc disease; spinal
stenosis; coronary artery disease; atherosclerotic heart disease; and
cardiac dysrhythmias. While waiting for her hearing, Ms. G underwent
extreme financial difficulties, and was teetering on the edge of
bankruptcy. She had reached the limit on her credit cards and borrowed
money from everyone who would lend it to her in an effort to pay her
rent, buy some food, and most importantly, pay for her medications. Her
attorney received many desperate calls from Ms. G about her need for
disability benefits and asking why it was taking so long. Her attorney
tried to help by referring her to for food stamps and heating
assistance.
Ms. G was so desperate to get a hearing date that she called all of
her Members of Congress to ask for their assistance and wrote a letter
to SSA about her situation:
The reason I am writing is I really need help bad. I've been
unable to work for 1 year and 2 months now. I've zeroed out my
checking account, maxed out 3 credit cards paying bills and
purchasing medicine. In July [2006] they finally gave me food
stamps help of $152.00 a month thank God for that things are
finally looking up for me, and then I had a heart attact (sic)
in July 2006 they had to put 3 stints (sic) in my heart. What
hurts is the medicine [is] $300.00 every 2 weeks I don't have
it, Medicade (sic) won't help me unless my disability goes
through. The doctor said I have to take the medicine or I won't
make it so I'm asking to please help me by speeding up my
appeal hearing. I know from taking (sic) to the Senator,
Governor and Congressmen that you are really piled with work
but I have no place else to turn to help. I pray to God that I
will receive help soon.
Ms. G is in payment status now because she received a fully
favorable on-the-record ALJ decision, 9 days before her hearing.
However, she had to wait nearly 2 months before receiving her first
check.
OREGON
An attorney in Portland, OR reports that, in the last 18 months, he
has had 15 clients die while waiting for a hearing, which averages
about 2 years in the Portland, OR hearing office. Two of his clients
were suicides, including one hanging. Two other clients were terminally
ill and their requests for on-the-record decisions were not acted upon
before their deaths. In one of those cases, the decision was mailed 2
days after the client's death. Others in the group were uninsured, had
no effective medical care, and had medical symptoms that went
untreated.
One of this attorney's clients, Mr. A, had worked in construction
and in a chicken production factory. He died in June 2005 at age 41 of
hypertensive cardiovascular disease. He also had been diagnosed with
undifferentiated schizophrenia, recurrent major depression,
degenerative disc disease, and mild mental retardation. He was
frequently homeless and moved around between family and friends. He
requested a hearing in November 2004. A hearing was finally held in
2007, more than 2 years later and long after his death. If there is a
favorable decision, his mother will be eligible for the past due
benefits.
An attorney in Bend, OR has a client who applied for disability
benefits in March 2004. She requested a hearing in November 2004. The
hearing was held 8 months later, but it took 14 months for a favorable
decision to be issued. The client had to wait 5 more months before she
began to receive benefits. It took nearly 3 years from the date of
application until she received her benefits.
TEXAS
Ms. B filed for disability benefits in June 2001 with cervical and
lumbar disc disease with chronic pain. She had prior problems with her
back and neck but the situation became worse in June 2001 after she was
kicked by a horse. At the time of her accident she was in her late
thirties. Ms. B has two young children.
Ms. B's first hearing was held on April 21, 2003; a supplemental
hearing was held on October 2, 2003. A decision denying Mrs. B benefits
was issued on November 26, 2003.During the entire period at issue Ms. B
had difficulty obtaining health care due to the inability to afford
treatment that her doctors recommended. In August 2004, Ms. B's
husband, a pilot, divorced her and left her with the children. For a
brief period she was able to get Medicaid, but then lost that coverage.
In February 2005 the Appeals Council remanded the case for a new
hearing. At that point Ms. B had to wait until September 29, 2006 to
have her remand hearing. After that hearing a favorable decision was
finally issued in October 25, 2006, nearly 5\1/2\ years after her
application was filed.
Ms. X is a 41 year-old former broker with a Master's Degree from
Dallas, TX. She has chronic fatigue syndrome (CFS) and filed her
application for disability benefits in November 2002. Her hearing was
not held until May 2005. She received an unfavorable ALJ decision and
appealed to the Appeals Council. The Appeals Council remanded her case
for another hearing on March 17, 2006. One year later, she is still
waiting to have the second hearing, nearly four and one-half years
after her application was filed.
Before her CFS diagnosis, Ms. X was a high wage-earner in the
$60,000 range. She is single and, after filing for disability benefits
in 2002, she no longer had any income or health insurance.
Consequently, she lost her home and has gone through her savings to pay
for medical care. She began living with a series of friends and now is
living with her elderly parents. Her symptoms have not improved and are
steadily worsening. She cannot afford private medical insurance and is
now relegated to indigent care. She has no home, no car, no saving, no
income, and no health insurance.
WASHINGTON
While his appeal was pending, a veteran from the Spokane, WA area
with multiple physical and mental problems became homeless and was
living at a local mission. Before becoming disabled, he successfully
worked selling recreational vehicles and cars. His claim was ultimately
approved following after a hearing. His attorney relates: ``I still
remember leaving the hearing with him, driving him to the mission where
he picked up a paper bag with all of his possessions, and then driving
him to the local VA hospital where he began in-patient treatment for
his medical conditions.''
A woman from Spokane, WA filed her claim for disability benefits in
October 2004 and requested a hearing in August 2005. While waiting for
a hearing date, she died in the past year from the impairments that
formed the basis of her claim. A hearing was held in 2007, with the
case continuing on behalf of her surviving children.
WEST VIRGINIA
An attorney in Wheeling, WV represents an individual who has a
solid work history as a longtime municipal government employee (a
supervisor of a water treatment plant). This gentleman is having
serious financial problems. His attorney has forwarded to the ALJ in
the Morgantown, WV, hearing office eviction notices and detailed
letters explaining the case for an on-the-record decision. No response
has been received. Nor has a hearing been scheduled. The attorney
relates that a great majority of his clients call him often and
complain of their financial problems, which are worsened by the
processing delays. The attorney also notes a significant problem with
the Wheeling, WV SSA district office. Apparently, they do not have a
full-time person to handle appeals, and cases can sit there for 4 to 6
months or longer after the appeal documents have been received.
ADDENDUM B:
NOSSCR RECOMMENDATIONS TO ADDRESS THE BACKLOG
Title II and SSI cash benefits, along with the related Medicaid and
Medicare benefits, are the means of survival for millions of
individuals with severe disabilities. They rely on SSA to promptly and
fairly adjudicate their applications for disability benefits, and to
handle many other actions critical to their well-being.
SSA is generally doing a good job with limited resources and has
improved its technological capacity in ways that will help to
accomplish its work. However, under the current budget situation,
people with severe disabilities have experienced increasingly long
delays and decreased services in accessing these critical benefits.
Processing times have continued to grow, especially at the hearing
level where the delays have reached intolerable levels. In some hearing
offices, our members report that claimants wait more than two years
just to receive a hearing, which does not count the time for a decision
to be issued.
We believe that the main reason for the increase in the disability
claims backlogs is that SSA has not received adequate funds to provide
its mandated services. This paper provides some additional short-term
suggestions for addressing the backlogs.
PROVIDE SSA WITH ADEQUATE RESOURCES TO MEET CURRENT AND FUTURE NEEDS
To reduce delays, better develop cases, and implement technological
advances, SSA requires adequate staffing and resources. NOSSCR supports
commitment of sufficient resources and personnel to resolve the waiting
times and make the process work better for the benefit of the public.
To meet this need, NOSSCR has been a strong supporter of efforts to
ensure that SSA receives adequate funds in its administrative budget
for fiscal year 2008.
IMPROVE DEVELOPMENT OF EVIDENCE EARLIER IN THE PROCESS
SSA can improve 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, critical pieces of
evidence are missing when claimants first seek representation, usually
at the hearing level, and it is necessary for representatives to obtain
this evidence, even though it was available earlier in the process.
Recommendations to improve the development of evidence include: (1)
Explaining to the claimant in writing, at the beginning of the process,
what evidence is important, relevant, and necessary; (2) Ensuring that
DDSs 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) Improving provider
response rates to requests for records, including more appropriate
reimbursement rates for medical records and reports; and (4) Providing
better explanations to medical providers, in particular treating
sources, about the disability standard and asking for evidence relevant
to the standard.
REINSTATE THE SENIOR STAFF ATTORNEY PROGRAM
In the 1990's, as an initiative to reduce the backlog of cases at
hearings offices, senior staff attorneys were given the authority to
issue fully favorable decisions in cases that could be decided without
a hearing (i.e. ``on-the-record''). This program was well received by
claimants' representatives because it presented an opportunity to
present a case and obtain a favorable result efficiently and promptly.
And, of most importance, thousands of claimants benefited. While the
Senior Attorney Program existed, it helped to reduce the backlog by
issuing approximately 200,000 decisions. The initiative was phased out
in 2000, just about the same time that the backlog began to increase.
We support reinstating senior attorney authority to issue decisions
in cases that do not require a hearing and expanding ways that they can
assist ALJs. For instance, they also can provide a point person for
representatives to contact for narrowing issues, pointing out
complicated issues, or holding prehearing conferences.
ALLOW REVIEW OF ``UNPULLED'' CASES AND ALLOW HEARINGS TO BE HELD ON
``UNPULLED'' CASES
We believe that one of the causes of the dramatic increase in the
backlog is the lack of ODAR staff to organize or ``pull'' cases. With
the hiring freezes and inability to replace staff over the past few
years, many ODAR hearing offices lack sufficient administrative staff
to perform this critical function. As a result, in many hearing
offices, ``unpulled'' cases cannot be reviewed for on-the-record
decisions. Further, many ALJs do not hold hearings on ``unpulled''
cases. Clearly authorizing ALJs to review ``unpulled'' cases for on-
the-record decisions, to determine the need for additional development,
or whether a hearing can be held sooner, will allow some cases to be
cleared from the backlog.
ALLOW REPRESENTATIVES TO SUBMIT DRAFT FAVORABLE DECISIONS
Judges in courts often ask counsel to draft favorable decisions and
orders. SSA should consider allowing representatives, on a nationwide
basis, to submit draft favorable decisions to ALJs. Some ALJs have
asked representatives to draft favorable decisions, which were then
reviewed, edited, and finalized by the ALJ. This can expedite the
decision-writing process where delays exist.
Some hearing offices previously shared a prior decision-drafting
software program, the Favorable Electronic Decisional Shell (FEDS),
with experienced representatives in the local community. The newer
decision writing program, Findings Integrated Template (FIT), could be
similarly adapted. We believe that expanded use of decision-writing
software for submission of draft decisions could reduce the time for
the issuance of on-the-record decisions or between the hearing and
issuance of the decision, especially since use would be limited to
favorable decisions.
INCREASE THE TIME FOR PROVIDING NOTICE OF HEARINGS
The current regulations provide only a 20-day advance notice for
ALJ hearings. This time period is not adequate for requesting,
receiving, and submitting the most recent and up-to-date medical
evidence prior to the hearing. Some hearing offices, but not on a
nationwide basis, do provide much longer advance notice, some as long
as 90 days. Under the Disability Service Improvement (DSI) regulations,
the time was increased to 75 days, with the goal of providing adequate
time to obtain new evidence (although, there is no requirement that
evidence be provided in that time period). We strongly support the DSI
change and would support a similar nationwide change. This increased
time period would mean that many more cases would be fully developed
prior to the hearing and could, in fact, lead to more on-the-record
decisions.
CONTINUE WITH IMPLEMENTATION OF TECHNOLOGICAL INITIATIVES
We generally support the technological improvements so long as they
do not infringe on the rights of claimants and beneficiaries. These
initiatives include the electronic disability folder (eDIB), video
hearings, and digital recording of hearings. If properly implemented,
these initiatives will not only reduce delays, but also provide better
service to the public. The electronic folder reduces delays by
eliminating lost files, reducing the time that files spend in transit,
and reducing misfiled evidence.
With eDIB, representatives should be able to obtain a single CD
that contains all evidence in the file. Early access to the record will
allow representatives to determine what additional evidence is needed
and to promptly try to obtain it. Given the need for access at all
levels and as early as possible, we hope that SSA will explore allowing
claimants' representatives to have online access to the files through
secure sites, such as those used by the federal courts. This would free
up SSA staff, while also allowing representatives to access the file
when necessary.
SSA also should consider expansion of the ``electronic records
express'' system (ERE), which allows representatives to upload medical
evidence electronically that directly goes into the electronic folder.
______
Questions submitted by
Chairman McNulty and Mr. Johnson to Mr. Warsinskey
Question: Are you confident that every available agency employee is
being used to process claims?
Answer: As of today our answer would be no. Field Offices are
losing employees at an alarming rate. This Fiscal Year alone Field
Offices have lost 1,400 employees. Since the beginning of FY 2006,
Field Offices have lost 2,500 employees. These losses have occurred at
a much greater rate than those of other SSA components. In part, this
is due to the fact that other components have been permitted to replace
a higher percentage of their losses. Additionally, Field Offices also
serve as the training ground for most of the other components of SSA.
Field Office positions provide an understanding of programs, procedures
and policies that is crucial to performing many other SSA jobs that are
not direct service positions.
We recognize the need for, and value of, Field Offices providing
staff for other parts of SSA. The problem is that we have not been able
to replace our losses which has a significant negative impact on the
service we are able to provide the public in frontline positions.
We would support an in-depth study of all SSA components to
evaluate component share of losses/replacements and current staffing
levels in order to evaluate if the public would be better served and
the agency more effective by shifting future available FTEs back to
Field Office direct service positions.
Question: Given the agency's focus on increasing the use of
telephone and on-line services, do you think the current field office
structure, both in terms of staffing and office location is positioned
to meet the service needs of the 21st century?
Answer: Field Offices have always adapted their service quickly to
new technologies. Currently we take about 30.0% of our claims by
telephone. The number of Internet claims continues to rise but
currently is less than 10.0% in most offices.
1. Field Offices have also adapted their structure and procedures
so that more of their staff can handle any inquiry. Field Offices have
a very flat organization. A high percentage of staff in Field Offices
are Claims Representatives who are also trained to do the work of
Service Representatives. Additionally, Claims Representatives are now
trained to be generalists in order to handle all SSA programs.
Management is also capable of assisting with the operational work.
Currently, millions of Americans do not have access to the Internet
or do not feel comfortable conducting business via the Internet. Many
Americans do not even have access to a telephone. The only way to
contact SSA for many people is to walk into an SSA office. Still many
others prefer to walk into an SSA office to take care of their
business. (About 850,000 visitors a week come into SSA Field Offices.)
We provide service to all Americans, rich and poor, educated and
uneducated.
While we believe that Internet and telephone service will help
reduce the demand on Field Offices over time, the public's preferred
method of contacting SSA (particularly when applying for benefits) is
through a community based Field Office, and, in many cases, the public
wants to do business face-to-face. Field Offices receive approximately
44 million visitors a year and approximately 68 million telephone calls
a year. People deal with Field Offices because they can handle many
more types of services than the 800 number can. In addition, 800 number
agents frequently have to refer callers to their local Field Offices.
The request for Field Office services is growing not declining.
People contact us to file claims at transitional and often
vulnerable points in their lives: when they retire, become disabled, or
lose a spouse or parent to death. These are typically one time contacts
where a citizen wants to deal with a person face-to-face at a local,
community based office.
Social Security programs are complex, and most post-entitlement
issues (for example, returning to work, requesting a waiver, or having
a personal conference) are definitely not intuitive. They require
extensive knowledge of the programs and skilled explanations tailored
to the understanding of the person being addressed. Such situations are
further complicated by the fact that over 50.0% of SSI disability
beneficiaries and over 40.0% of Title II disability beneficiaries have
been diagnosed with either a mental illness or a cognitive deficiency
as their primary impairment. Many other beneficiaries have these
conditions as a secondary diagnosis. This type of beneficiary cannot be
served adequately by self-help programs.
Internet claims are usually not clean, neat, or even complete when
they come into Field Offices. There is a considerable amount of back
end work to ensure that the processing and payment of the case are
correct. Again, the nature of the programs SSA administers, especially
the disability program, is complex--not simple.
The process for applying for a Social Security Number (SSN) card
has, in effect, become a face-to-face process due to the Intelligence
Reform and Terrorism Protection Act (IRTPA). IRTPA requires that
citizens seeking a replacement Social Security card submit a picture
identification card issued by a Federal or state government if they
have such a document, or can get such a document within ten days. In
most cases, the document that a person must submit for evidence of
identity is their driver's license. Our experience is that very few
people want to send their driver's license to us through the mail. The
SSN workload accounts for about one-third of all walk-in visitors to
our Field Offices. It is possible that future requirements on SSN
enumeration (biometric cards) may require an even more widespread Field
Office presence.
While we think that expanded Internet and telephone service are,
and will continue to be, vital service delivery options, we also know
that face-to-face service will be necessary and in high demand well
into the future. We believe we must fund and staff our community based
offices to meet this demand and to provide the level of service the
American public has paid for and deserves.
2. We have about 1,300 Field Offices nationwide. We support placing
offices in areas that best serve the public. There are offices that are
relatively close to each other, and in many cases consolidating these
offices may make good business sense. But, in some cases it may make
more sense to move the offices closer to where the population is
moving.
In many areas of the country where explosive population growth has
taken place, offices have crowded reception areas and inadequate staff
to provide effective service. We support building larger facilities or
creating new offices where rapidly growing areas do not have a nearby
office.
Some of our offices are so depleted of staff that maintaining them
and providing adequate service to the public is no longer possible.
One of the challenges we are facing is correct location of Field
Offices. It is presently very timing consuming and bureaucratic to move
an office or to consolidate offices in locations that are more logical
and cost effective. Congressional interest in office locations and
consolidation of offices is usually very high.
Recent proposed consolidation of Field Offices has generally made
sense. We agree you have to balance the convenience to the public with
the overall cost of running Field Offices. Rent costs are growing and
taking higher percentages of our administrative dollars. Each Field
Office requires an armed guard. These costs are also rising very
quickly.
We believe local Field Offices are very efficient. And we agree the
public doesn't want to drive an unreasonable distance to a Field
Office. Moving or consolidating an office can take many years. We
support streamlining this process so it takes place more quickly.
3. There are 39 Teleservice Centers (TSCs) in the country. We
support keeping this number of TSCs rather than moving to larger more
consolidated ones. Having TSCs throughout the country allows for
Teleservice representatives to be readily available for promotion into
more FOs and to provide back-up service assistance in the FOs when the
TSC call volumes are low.
Question: As you know, since August, changes to the disability
determination process are being implemented in the Boston region. Is
there any update you can provide regarding how implementation is going
based, on feedback from your colleagues?
Answer: The news regarding the Disability Service Initiative (DSI)
being piloted in the Boston Region continues to be mixed. One positive
outcome of DSI is the Quick Disability Decision process whereby cases
are flagged for probable approvals, and worked on by dedicated teams of
examiners in the Disability Determination Services. These cases are
processed in an average of less than eight days. Another positive of
DSI is that the cases being reviewed by the newly created Federal
Reviewing Official (FedRO) are very well documented. So any appeals of
FedRO cases reviewed by ODAR should be much less time consuming to
process and require fewer resources. The FedRO is also approving cases
at nearly double the rate of the Reconsiderations at the DDS level. The
higher allowance rate, results in fewer cases being passed to ODAR from
the FedRO.
On the negative side, cases are already backing up in the FedRO at
an alarming rate. The number of decisions made by the FedRO has been
small. It appears more resources will be needed for the FedRO to avoid
severe delays. The question is: can we afford the additional resources
that are needed?
The Social Security Disability Insurance and SSI Disability
programs pay out about $130.0 billion a year. In today's dollars that
is $1.3 trillion over a decade. Given that the program dollars for
these two programs are enormous, it is essential that adequate
administrative dollars be spent to ensure that those that receive
benefits are being paid properly.
For years there has been a significant discrepancy in the approval
rate at the DDS level compared to the approval rate at the hearings
level. There have also been major differences in approval rates between
individual state DDSs and between individual administrative law judges.
The FedRO was created to help bridge this gap. If the FedRO leads to
more accurate decisions and payment of disability dollars, then it
makes sense to spend administrative dollars to support it. Additional
spending, however, should not come at the cost of shortchanging funding
for the Field Offices or ODAR.
Whatever decision is made about the future of the FedRO, the
variances in allowance and denial rates between the varying state DDSs
and Administrative Law Judges needs to be addressed.
We did want to make note that we are in favor of the national
expansion of the Quick Disability Decision (QDD) pilot. This has
clearly been a success.
Question: In his testimony, Mr. Schieber suggests a thorough
evaluation to find policy improvements to make the program easier to
administer. What suggestions do you have for ways to simplify how
Social Security programs are administered?
Answer: We have spent a considerable amount of time developing and
debating suggested legislative changes. We have come up with
approximately 20 suggested changes. These changes are included as an
addendum to this response.
Question: Are there other ways to address disability backlogs,
besides additional resources?
Answer: On May 23, 2007 the Commissioner of Social Security
submitted to the Senate Finance Committee 18 pages of initiatives to
eliminate the SSA
hearings backlogs. See: http://finance.senate.gov/hearings/testimony/
2007test/052307testma1.pdf
We agree that these initiatives all have potential to help
eliminate the backlogs. There are a few key issues that need to be
considered regarding the Commissioner's suggested initiatives:
1. Many will require additional funding to be effectively
implemented. This funding will be necessary to provide for
increased staff, overtime, additional equipment (such as video
hearing equipment), and improved computer systems that support
the hearings process. If SSA receives an increased level of
appropriated funding for FY 2008 it is likely that a part of
those additional resources will be necessary to support the
Commissioner's proposed initiatives.
2. These initiatives were developed at an Executive Staff
level in the Central Office of SSA. To effectively and
successfully implement any major change, input from staff
involved is critical. ODAR hearings offices are represented by
three unions. In addition, there are two chapters of the
Federal Managers Association that represent management and
chief judges. It will require a real effort to bring these
groups together. Feedback from the various stakeholders will be
needed; SSA traditionally has been most effective in
implementing change when it consults and involves the relevant
stakeholders.
3. The proposed initiative to increase the production of
underproductive judges could be supplemented with more legal
authority added to the Administrative Procedures Act (APA). We
recommend Congress consider reviewing and revising or amending
the APA.
4. One of the proposals calls for interregional transfer of
cases to even out the backlogs. But the proposal then states
this transfer will be limited. We believe there are some
hearings that are so backlogged now that immediate transfer of
cases to offices that are less backlogged is needed.
5. Field Offices have numerous formal and informal
communication networks to share best practices and procedures.
We suggest that ODAR establish such networks to improve their
efficiencies.
ADDENDUM
NCSSMA LEGISLATIVE PROPOSALS, JUNE 2007
DISABILITY LEGISLATIVE PROPOSALS:
Change the close out period for Title II to 60 days to
conform to the existing Title XVI close out period.
Comments: The 6 month protective filing period for Title II claims
is antiquated, based on times with less access to communications and
transportation. The needs based SSI Program only affords a 60 day
protective period on close out notices. Administration of the program
would be easier if the periods were consistent.
Eliminate direct payment of attorney/representative fees.
Alternate proposal: Increase the attorney ``user fee'' to reflect the
cost of administering the direct attorney fee provision,
eliminating the $77.00 assessment cap.
Comments: NCSSMA members report the administration of the attorney
fee provisions are labor intensive and problematic when coupled with
SSI Windfall Offset Provisions. Elimination of this provision would
save significant administrative time and effort. As an alternate
proposal, capping attorney fee assessments at $77.00 does not reflect
the cost of administering this provision. The original assessment was
an uncapped 6.3%. We support removing the assessment cap and studying
if the actual cost to the agency of collecting this assessment should
be higher.
Eliminate medical Continuing Disability Reviews (CDRs) for all DIB
beneficiaries with a permanent impairment, and for all DIB
beneficiaries over a certain age.
Allow DDS to declare SSI Disabled Children Awards as meeting Adult
Disability Standards when appropriate, eliminating the Age 18
medical redetermination in those cases.
Comments: NCSSMA supports study of disability reviews to determine
the age where medical CDRs are no longer cost effective. When this age
is established, we feel that scarce CDR funds would be better directed
toward possible recovery cases. Similar savings would be found by
removing the Age 18 medical redetermination for SSI Disabled with
permanent disabilities that would be approved at any age. Currently,
all SSI Disabled Child cases receive a medical review at Age 18 no
matter how severe the disability. Establishing permanent adult
disability eligibility could eliminate this unproductive review.
Require attorneys, non-attorney representatives, and for-profit third
party disability companies to use the Internet to complete
disability forms.
Federal Courts now require case actions to be filed electronically.
The representatives listed above should be required to complete and
submit required disability forms electronically in order to take full
advantage of Social Security's EDCS system. Failure to do so would
result in the action being dismissed. This would save SSA
administrative effort, create an additional control of Disability cases
at the earliest point, and it would require a higher level of
involvement by the representatives who are charging our claimants for
their services.
Reduce the waiting period for Medicare to 18 months.
Comments: Changing the Medicare waiting period to 18 months
coincides with the end of COBRA coverage. This is a more natural
crossover point, and would reduce a 6-month gap in coverage for
vulnerable individuals.
GENERAL LEGISLATIVE PROPOSALS:
Reverse Medicare D legislation requiring SSA to make
available the option of having Part D premiums withheld from Title II
benefits.
Comment: This is one of the greatest public relations problems
local SSA offices face every day. Communication problems between CMS,
prescription drug providers, pharmacies and beneficiaries place SSA
offices in an uncomfortable situation of trying to deal with premium
problems with no power to change the amounts paid on our own benefits.
Since SSA has little ability to affect the premium amount, we feel the
prescription drug providers should collect the premiums themselves.
Require States to verify public records electronically.
Eliminate collateral verification of domestic birth
certificates.
Comment: Electronic Verification of Vital Records is called for in
the Intelligence Reform and Terrorism Protection Act (IRTPA), but is
currently stalled in negotiations between SSA and the States. Pursuit
of this provision would expedite SS-5 and claim verifications, and
promote ID protections.
NCSSMA strongly supported the elimination of the collateral
verification process for domestic birth certificates. The current
process is time consuming, expensive, and seldom identifies identity
problems.
Change the representative payee accounting requirements
for parents with custody of minor children and spouses with custody of
adult claimants to a custody check.
Comments: In the case of parents with custody and spouses with
custody of adult beneficiaries, the reporting requirement should be
limited to a custody check. The financial accounting requirements in
these cases seldom result in a change of payee, and are very difficult
to develop. When issues are raised in these cases, reporting is
generally directly reported by the principals involved. The follow up
on this workload is labor intensive, and produces little in value or
protection for beneficiaries.
Raise the administrative tolerance of overpayments to
$750.00.
Comments: There is universal support among our NCSSMA Executive
Committee for some change in this tolerance. Proposals ranged from
setting the figure to equal the SSI Federal benefit rate (currently
$623.00) to $1000.00. Some concern was raised that increasing the
tolerance would hurt enforcement of some regulations. It is also
possible that legislation is not required in this area, that, in fact,
the Commissioner of Social Security has the authority to set the
Administrative Waiver limit.
Title XVI LEGISLATIVE PROPOSALS:
Simplify Earned Income Provisions:
Make Title II Disability monthly earnings provisions
the same as Title XVI provisions to be counted when paid not
earned.
Comments: The differences in the Title II and Title XVI monthly
earned income provisions are not understood by claimants and reporting
employers alike. Changing provisions to counting earnings when paid is
consistent with the way earnings are reported to other government
agencies. Under current provisions, adjudicators have discretion to
average earnings and consider subsidies and Income-Related Work
Expenses (IRWE) in making Substantial Gainful Activity (SGA)
determinations. These provisions would still be in place and would
ensure that workers are not disadvantaged by this change. This change
would only affect income counted for disability provisions. There would
be no change in Retirement Test provisions.
Expand what is acceptable proof of wages for SSI.
Comments: Such sources include State Department of Labor records.
These requests are currently used in matching processes, but could save
substantial Field Office time if used as primary verification. A
similar provision allowing SSA to use W-2 reports as Annual Earnings
Test information saved considerable administrative time in Social
Security Retirement, Survivor and Disability cases several years ago.
Also, we should accept telephone reports of wages by claimant/worker/
deemor. This process has been piloted in the past with some success. We
should also be able to accept allegation of termination of employment
without verification. Backup computer matches already in place would
serve as a check against erroneous reports.
Increase the Earned Income Disregard for Title XVI
Payments to reflect inflation.
Comments: The $65.00 earned income disregard has not been increased
since the inception of the program. At that time $65.00 was the
equivalent of half of the original Federal benefit rate, or FBR,
($130.00) and approximately 40 times the prevailing minimum wage at the
time ($1.25 per hour). An increase to even $200.00 would reduce the
number of work reports needed from sheltered workshops and other
supported employment programs, while increasing work incentives in the
program. Social Security is not required to verify wages below the
earned income disregard amount, so significant administrative costs
would be saved.
Eliminate the dedicated Account Provision and
Installments of the Law.
Comments: Both provisions are labor intensive, and do not provide
the savings or improved behavior intended by the sponsors of the
provisions. Exceptions to both provisions make the rules almost
meaningless.
Simplify Burial Fund Exclusion, adopt Medicare Part D
Extra Help rules.
Comments: In Medicare Part D Extra Help determinations,
adjudicators are allowed to accept the allegation of applicants that up
to $1500.00 of their resources will be used for their burial. Current
rules in this area are a hodgepodge of developmental practices, often
changing from State to State. Simplifying this provision will allow
both administrative savings and also consistency in application among
applicants. Some NCSSMA members also propose a larger exclusion due to
increases in burial costs.
Simplify Living Arrangements.
Comment: The NCSSMA Title XVI Committee proposal would eliminate
In-kind support and Maintenance (ISM) and replace it with a 15.0%
reduction for shared living arrangements. While the details may require
additional vetting, there would undoubtedly be an administrative
savings in this proposal, and the new reduction would help make this
proposal revenue neutral.
Count All Non-excluded Active Duty Military Pay as Earned
Income.
Comment: A workload that affects some areas more than others. While
there would be a nominal increase in program costs, this provision
would be supportive of military families. The proposal would save
administrative costs as all military pay would be covered under the
same provision.
Eliminate SSI Retrospective Monthly Accounting (RMA)
Rules for prisoners released from jail.
Comment: Currently, RMA rules allow payment of full SSI benefits
for those reinstated from prisoner suspension for up to 3 months.
Reinstated Title II payments--if paid the month after SSI reinstatement
would not be counted until 2 months later. Adoption of this provision
would eliminate an unintended windfall and double payment.
Title XVI Windfall Offset Reform_allow payment of
retroactive benefits of either Title II or SSI payments first in order
to prevent delay of past due benefits.
Comment: Currently, retroactive Title II payments are held until
retroactive Title XVI payments are made in SSI Windfall Offset Cases
(most often in appeal cases). This policy was developed because that
payment of SSI in the ``past due'' period was needed in order to
determine Medicare eligibility. Experience of SSA Field Offices is that
release of the retroactive Title II is often delayed well beyond the
Title XVI adjudication date due to workload backlogs and windfall
offset issues. In order to ensure that retroactive Medicaid eligibility
is considered, a ``Medicaid Only'' computation could be performed in
cases where the Title II payment was released first. The retroactive
Title II payment would be disregarded in this computation, and Medicaid
eligibility would be decided based on income actually received in the
affected months. This should be a less complex look back than our
current offset provisions. The proposal would also expedite Title II
payments and reduce PSC backlogs. Because offset would still occur, the
proposal should save administrative funds and be revenue neutral to
program funds.
[Submissions for the Record follow:]
Statement of James F. Allsup, Belleville, Illinois
Chairman McNulty, Representative Johnson, and Members of the Social
Security Subcommittee, thank you for considering my written testimony
regarding the Social Security Administration's (SSA) disability claim
backlogs.
My name is James Allsup, and I am the founder, president and CEO of
Allsup, Inc., a firm that helps people navigate through the Social
Security Disability Insurance (SSDI) claims process. I am pleased to
offer this testimony on behalf of the 84,000 Americans with
disabilities who have obtained Social Security Disability benefits with
our assistance. I also offer this testimony on behalf of our 420
employees who work diligently, day in and day out, to help our
customers obtain the disability benefits they are entitled to receive.
I have witnessed the historical evolution of SSA's disability
problems for nearly 30 years. From 1977 to 1982, I worked for SSA as a
claims and field representative in Storm Lake, Iowa and Manhattan,
Kansas. As an SSA employee, I experienced the helpless feeling of
attempting to console an obviously qualified individual who did not
know how she would survive financially while waiting for a claim that
may or may not be awarded.
Defining the Problem
Since that time, SSA has experienced a significant and growing
crisis, which is the result of multiple factors. First, our disabled
population is growing. The number of disabled workers who draw SSDI has
more than doubled since 1990, growing by over 3\1/2\ million additional
persons since that time. As the baby boomer generation continues to age
into their 60s and 50s, the annual number of individuals with
disability claims is expected to rise significantly.
Second, the number of SSA field staff available to assist claimants
and help develop complete factual records for SSDI determinations is
plummeting. According to the Social Security Advisory Board, the field
staff workforce in 2005 was 30 percent smaller than 20 years ago. This
reduction is due in large part to the resources available to the SSA,
but in addition, the SSA is losing a significant number of experienced
employees due to planned retirement. This trend is expected to
continue.
Third, the determinations are growing much more complicated. As the
scope of medical tests and services becomes more sophisticated and
complex, the challenges in preparing and interpreting a comprehensive
medical record for each claimant also continues to grow.
As a result, current claimants are experiencing unacceptable delays
in obtaining determinations. These problems have been well-documented
in a number of government studies and reports, and the Social Security
Administration is implementing a new claims review process that is
intended to address some of these inadequacies.
Third Party Representatives--A Well-Established Solution
Fortunately, a proven system exists that can help address the
unnecessary delays and erroneous rejection of claims that creates
needless stress and hardship for this extremely vulnerable population.
Third party organizations, such as my company, Allsup Inc., are well-
tested and available to assist increasing numbers of individuals with
applying for SSDI claims. In this way, third party representatives can
ease the process for applicants and remove significant administrative
burdens for the SSA.
After leaving SSA, I founded Allsup Inc. in 1984, making it the
first private nationwide service of its kind. Similar to the way in
which professional tax preparation services help people complete and
file their income taxes, Allsup Inc. prepares and submits disability
claims and appeals to SSA for our clients. Our services assist the
disability applicant throughout the entire application and appeals
process as much as possible. In fact, for every ten individuals who
receive benefits with our assistance, eight are never required to
travel to make personal appearances or otherwise required to deal
directly with SSA. For this vulnerable population of individuals with
significant disabilities, this process removes a significant physical
and emotional burden. Even for those claims that must be appealed to an
Administrative Law Judge (ALJ), two-thirds of the awards received by
our clients from ALJ's are rendered ``on the record''--without the need
of a personal (and stressful) appearance at an oral hearing.
Our call centers respond to client inquiries regarding the status
of their claims and the SSDI claims process, eliminating a significant
number of inquiries that otherwise would be directed to SSA staff. For
the disability applicants that we represent, SSA's role primarily is
limited to that of a decision maker. Allsup submits a complete claim to
the field office, assists the Disability Determination Service (DDS) as
needed with medical developments, and submits a brief to the ALJ to
facilitate ``on the record'' hearing decisions, eliminating the need
for oral hearings in two-thirds of our cases.
The SSA recognizes the value of our services and encourages claim
techniques that Allsup Inc. pioneered, including ``on the record''
hearing decisions. SSA also recognizes the value of Allsup's entire
business model and increasingly relies on us and similar companies for
a complete, accurate and well-documented claims file that is ready for
a decision. In the absence of assistance from third party
representatives, SSA personnel are typically charged with compiling
these claims files.
Building on the Success of Third Party Representatives
SSA recently contacted Allsup Inc. and several other third party
representatives to help determine if a market exists for the electronic
submission of ``bulk'' claims data from third party organizations.
Currently, SSA's systems only allow for the electronic submission of
one claim at a time. Updating SSA's systems to permit bulk data
transfers, coupled with the necessary administrative changes, would
expand the market for companies such as Allsup Inc. and provide the
needed assistance that SSA cannot afford.
This assistance is free to SSA, as our fees are paid by insurers,
employers and disability applicants. Just as taxpayers choose to pay
for assistance with their tax returns, disability applicants, insurers
and employers currently choose to pay for our assistance with
disability claims.
Private participation through third party representatives on a
larger scale would be of immeasurable benefit to both SSA and to
disability applicants. Such a system would build on SSA's longstanding
policies that permit companies to represent individuals with
disabilities in pursuing SSDI claims. SSA could reallocate and assign
more staff to the critical task of deciding cases, preventing the
intolerable backlogs that exist today. In addition, assistance from the
private sector would ease the pressure on SSA to replace retiring
employees. Most importantly, disability applicants, the neediest of all
SSA stakeholders, could focus on their health while the representative
of their choice handles their claim.
This model would replicate the Internal Revenue Service's (IRS)
history with professional tax preparation services, which experienced a
substantial growth in the mid-1950s when the IRS began closing the
field offices that provided free tax preparation assistance. Although
SSA is not closing individual field offices yet, field offices have
lost 2,000 positions in just the last 17 months. This loss is the
equivalent of closing 95 field offices that employed an average of 21
employees each. Under the current trends, the stresses on the SSDI
process will continue to grow.
Straightforward Steps for Both Short- and Long-Term
The decision to hire a private company for assistance with a
disability claim should be a choice--not a requirement. Many people
hire attorneys and non-attorneys for assistance now, but usually only
to appeal a denied claim.
SSA could increase the benefit of using third party representatives
by ensuring that disability applicants are informed before they
initially apply for benefits that they have a choice: file the claim
directly with SSA at no cost, or enlist the assistance of a private
company that has met eligibility criteria for participation with SSA.
Similar to tax preparation services, these companies would have systems
capable of interfacing with and exchanging large volumes of claims data
with SSA.
Disability applicants and SSA employees need help immediately.
Streamlining SSA's process and moving to an all electronic file are the
right things to do. Although much attention is focused on the looming
crisis with Social Security retirement benefits, the disability crisis
is here already. Despite the budgetary and demographic realities, the
solution to this crisis does not have to be difficult. Relying on the
private sector is an efficient solution that is real and available for
use. Such an arrangement will not immediately eliminate the backlogs of
today, but it is absolutely an important component of an overall
solution.
Chairman McNulty, Congressman Johnson, thank you again for the
opportunity to provide testimony on this important issue. I am
confident that businesses such as Allsup Inc. are able to assist SSA
and people with disabilities in processing disability claims. I look
forward to working with you to address this growing crisis.
Statement of Association Of Administrative Law Judges
I. INTRODUCTION
Thank you for the opportunity to provide this statement regarding
the backlog of disability cases at the Social Security Administration,
Office of Disability Adjudication and Review. My name is Ronald G.
Bernoski. I am an administrative law judge who has been hearing Social
Security Disability cases in Milwaukee, Wisconsin, for over 25 years.
I also serve as President of the Association of Administrative Law
Judges (AALJ), a position I have held for over a decade. Our
organization represents the administrative law judges employed at the
Social Security Administration and the Department of Health and Human
Services. One of the stated purposes of the AALJ is to promote and
preserve full due process hearings in compliance with the
Administrative Procedure Act for those individuals who seek
adjudication of program entitlement disputes within the SSA. The AALJ
represents about 1100 of the approximately 1400 administrative law
judges in the entire Federal government.
II. STATEMENT
The Association of Administrative Law Judges is most grateful for
the interest expressed by the Subcommittee in its recent hearings. We
too find it most painful that the American people who are in the
disability hearing process have been disadvantaged by long delays in
their cases because of the inadequacy of the Congressional funding
levels in prior years. On a positive note, however, I am most pleased
to inform you that individual administrative law judge productivity has
increased every year over the last decade and is presently at historic
highs. However, that level of productivity cannot further increase as
we are producing, on average, over 2 cases per day. In this regard, it
is of interest to note that in an attempt at reform in the 1990's,
referred to as Disability Process Reengineering, a time study was
performed of the entire disability process. The result of that study,
insofar as administrative law judge performance, revealed that an
administrative law judge could efficiently and effectively produce
between 25 to 55 cases each month. If an administrative law judge
performed at this level, he/she would spend approximately four hours
total time on each case. This would include time spent by the
administrative law judge reviewing the file and making notes prior to
the hearing, time conducting the hearing and time reviewing and editing
the draft decision. In view of the importance of these cases to the
American people and the cost to the trust fund (over $200,000 per
case), we respectfully submit that an average investment of four hours
per case per judge represents a reasonable cost-benefit limitation on
administrative law judge productivity.
As the Subcommittee is aware, the SSA disability process requires,
for maximum performance, a ratio of staff to administrative law judge
of 4\1/2\ staff for each administrative law judge. Ideally, the
complement would include 2\1/2\ attorneys and 2 staff available for
each administrative law judge. Presently, the staff to administrative
law judge ratio is in the 3.5 range which means the agency needs to
hire close to 1000 staff just to maintain the status quo. However, the
AALJ submits that the American people, whose cases constitute our
disability back log deserve much better than the status quo. The answer
is simply greater funding to hire more administrative law judges and
more staff. The hearing process itself has been refined and while we
note below certain additional refinements that could be made, the
present due process hearing system which we employ suffers largely from
the lack of resources. Indeed, as noted in the testimony of the
Honorable Sylvester J. Schieber, Chairman, Social Security Advisory
Board, during the recent hearing, ``The difference between the enacted
budgets and the agency workforce plan budgets over the period (the last
seven years) totals over $5 billion.''
While the Congress has expressed concern in prior years, over
developing backlogs, budgets were never made available to fully process
the increasing number of disability claims. However, we believe that
Congress can not wait any longer to address this problem and
respectfully submit the following approach.
III. FUNDING
The backlog of pending disability cases must be processed as
quickly as possible. We currently have approximately 1140
administrative law judges at SSA. 300 cases is a reasonable case docket
for each judge. This docketing will take about 300,000 cases leaving an
effective backlog of about 417,000 cases. To efficiently process this
backlog, we believe that funding should be made available to hire at
least 150 additional administrative law judges and the necessary staff
to support them. In addition, funding should be provided to bring the
current staff level up to the 4\1/2\ ratio, as noted above.
In addition to these hires, funding should be made available to
employ retired administrative law judges (Senior Judges) and temporary
staff to assist them. A provision currently exists in OPM regulations
for the hiring of senior judges. The senior judges will provide SSA
with a Corps of trained judges with vast experience in hearing and
deciding Social Security cases. We believe that if Congress would fund
this program, as they have on a more limited basis in the past, by
providing the full salary of an administrative law judge and also
permit them to retain their pension income, we would be able to employ
at least 100 senior administrative law judges. As these would be
temporary appointments, their assignments would end with the
disposition of the backlog. Funding would also be necessary for staff
for these judges. Attractive candidates for these positions would be
recently retired hearing office employees who already possess the
skills and experience necessary to perform efficiently. They too could
be hired on a temporary basis.
We are committed to walk hand in hand with Commissioner Astrue to
ensure that the American people are well served by the timely and
efficient processing of their disability cases. We will work tirelessly
with him to achieve this end. We wholeheartedly agree with his hearing
statement that ``For current beneficiaries, this role means setting
high standards for management, performance, public service, and program
integrity, and committing to meeting those standards.'' As noted
earlier, administrative law judges have performed at historic levels
and we are committed to continue to work as efficiently and effectively
as we can. We look forward to discussing with the new Commissioner our
vision for the future. Over the last decade there have been far too
many management decisions whose impact has reduced the efficiency of
the administrative law judge and has had a negative impact on the
backlog. For example, we are still hampered by management decisions
which have placed our hearing clerks in decision writing positions. Our
experience reveals that attorneys perform this critically important
function far more efficiently and effectively than high school
graduates. Another example, involves management decisions that prevent
administrative law judges from working in the hearing offices after
regular work hours. In our view, administrative law judges should
always be given access to their offices to work on our critically
important cases.
IV. ADDITIONAL CHANGES TO IMPROVE THE EFFICIENCY OF THE ADMINISTRATIVE
JUDICIARY AT SSA
As the Subcommittee is patently aware, SSA is in need of additional
administrative law judges. Pursuant to the Administrative Procedure
Act, the Office of Personnel Management has the responsibility for
administrating the administrative law judge program in the Federal
government. One aspect of this responsibility is to create and
administer an appointment process which includes a complete evaluation
of the qualifications of attorney candidates who submit an application.
OPM reviews the qualifications and administers a written examination.
Ultimately, the candidate is given a numerical score and placed on a
register from which SSA and other agencies may hire. For various
reasons, the register has been closed for over seven years. Thus,
interested attorneys have been denied the opportunity to have their
qualifications reviewed for potential appointment as an administrative
law judge. This system in broken and needs a Congressional fix.
As you may be aware, a bill was introduced in the 106th
Congress to remove the management of the administrative law judge
function from OPM and place it in a separate Office under the
management of a Chief United States Administrative Law Judge. This
change is modeled after the Judicial Conference of the United States
which administers the Federal courts. This change is badly needed as
the OPM has demonstrated that it will not manage the administrative law
judge function in an efficient manner, as required by the
Administrative Procedure Act. In fact, OPM's unwillingness to manage
this program and its demonstrated contempt for administrative law
judges is evidenced by the elimination of its own Office of
Administrative Law Judges. Also, in prior Congressional testimony,
representatives from OPM have shown contempt for the Administrative
Judiciary. We urge this Subcommittee to conduct a hearing on this
subject as recommended by Representative Pomeroy (D-ND). We also urge
members of this Subcommittee to support our efforts to enact
legislation to establish an administrative law judge conference.
For your further information, we believe there are also things the
agency can do to address backlog issues. We believe SSA should change
its policy on ``no show'' dismissal cases. Presently, the Appeals
Council remands most of these dismissals because of the agency policy.
This results in additional work for staff to reschedule hearings on
multiple occasions. We believe that when a claimant neither appears for
the hearing nor communicates an inability to appear, that case should
be dismissed, absent a showing of ``good cause''. The claimant's rights
are preserved since they can file a new application for benefits
thereafter and seek reopening of the dismissed case.
In addition, SSA should require the Appeals Council to reverse
cases, when appropriate, rather than remanding case to administrative
law judges for hearing. This change would provide quicker decisions for
the claimant and would reduce our backlog of cases waiting to be heard.
SSA should also adopt comprehensive procedural rules designed to
promote efficiency in the hearing process. At our urging, the agency
has adopted some procedural rules with the implementation of Disability
Service Improvement, a plan implemented by the previous Commissioner.
However, we believe that additional procedural rules are necessary,
except for pro se claimants, to maximize our efficiency. Those rules
were previously recommended to Commissioner Barnhart by a Joint Rules
Committee, but were not implemented. The Rules should place more
responsibility for the conduct of the hearing on claimant
representatives. The representative should be responsible for preparing
a pre-hearing brief which declares the specific impairments upon which
the claim for disability benefits is based, describes the theory of the
case, the law and the evidence upon which the claim is based. These
requirements are within the accepted duties of an attorney as an
``officer of the court'' and are part of the services provided to the
claimant for which attorney fees are paid.
Finally, we believe that SSA should reorganize its Regional hearing
offices and devote the personnel in these offices to direct case
processing. We believe that the role of the Office of the Chief Judge
should be enhanced and that Regional functions be centralized and
placed under the direct responsibility of the Chief Judge. With the
advent of technology and electronic communications, central management
authority is, in our view, a far more efficient and effective method of
managing the hearing function.
We pledge Commissioner Astrue our full support in addressing the
disability backlog issues and we look forward to meeting with him to
further discuss our ideas, concerns and recommendations. We also look
forward to working with the Subcommittee in any way we can be of
service.
Statement of National Association of Disability Examiners,
Oklahoma City, Oklahoma
Chairman Michael R. McNulty and members of the Committee, as you
consider new approaches for addressing the backlogs for the Social
Security Disability Program, the National Association of Disability
Examiners (NADE) wishes to present our views on the on-going challenges
facing the disability program.
NADE is a professional association whose purpose is to promote the
art and science of disability evaluation. The majority of our members
work in the state Disability Determination Service (DDS) agencies
adjudicating claims for Social Security and/or Supplemental Security
Income (SSI) disability benefits. In addition, our membership also
includes SSA Central Office 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 that is both
unique and which reflects a programmatic realism.
NADE members--throughout the state DDSs, Regional Office(s), SSA
Headquarters, OHA offices and the private sector--are deeply concerned
about the integrity and efficiency of both the Social Security and the
SSI disability programs. Simply stated, we believe that those who are
entitled to disability benefits under the law should receive them;
those who are not, should not. We also believe decisions should be
reached in a timely, efficient and equitable manner.
Significant challenges facing SSA in the disability program include
dealing with inadequate resources, managing the backlogs, the
Continuing Disability Review (CDR) program, on-going management of the
implementation of the electronic disability process (eDib), and the
continuing hardships imposed on disability beneficiaries by the Five
Month Waiting Period and the 24 month Medicare Waiting Period. The
disability program has become increasingly more complex as new advances
in medicine and treatment have allowed individuals with disabilities to
live longer and more productive lives. The complexity of the program,
the changing nature of the program and the sheer volume of claims,
coupled with diminishing resources, has brought a significant amount of
stress to an already over-burdened system.
Resources
There is no doubt that backlogs in the disability program have
increased. This is a direct result of the hard choices that needed to
be made by SSA over the past few years to deal with the realities of
inadequate budgeting and staffing. NADE feels that if SSA continues to
be burdened with inadequate resources, the resulting backlogs and
staffing problems will only multiply. For the past five years, the SSA
budget has not been what the previous Commissioner of Social Security
or the President requested from Congress. The prior Commissioner
reported to Congress several times that if the President's proposed
budgets for SSA this past five years had been granted, SSA would have
been able to eliminate its disability backlogs.
The complexity of the Social Security Disability Program, coupled
with the need to produce a huge volume of work, justifies even more the
need for adequate resources in order to provide the service that the
American public has come to expect and deserves from SSA. It takes at
least two years for a disability examiner to be fully trained and
function independently to make timely and high quality disability
decisions. It is critical the DDSs be provided with the resources
needed to hire and train staff that can perform these duties. Low
salaries, hiring restrictions and the stress of the job contribute to
high turn-over in some DDSs. Given the hiring restrictions and
inadequate resources placed on the SSA and DDSs, it is amazing that the
disability backlogs are not even higher than they are currently and
that the number of claims processed has continued to increase despite
inadequate funding and resources.
SSA over the past decade has attempted to redesign the disability
claims process in an effort to create new processes that will result in
more timely and consistent disability decisions. Results of numerous
tests undertaken by SSA to improve the disability process have not
produced the results expected. In fact they have only slowed the
processing of claims while employees adjusted to the constant changes.
The impact of these changes has also contributed to the inability to
manage the high workloads experienced during this time and decreased
efficiency of operations as DDSs have struggled to incorporate these
changes into their daily case processing.
Backlogs
Addressing disability backlogs is a high priority for NADE.
However, we think it is important to remember that while there are a
large number of cases pending at some DDSs, the most significant delays
in the process still occur at the Office of Hearings and Appeals (OHA)
where an average claim takes over 400 days, compared to the 89 day
average at the DDS. NADE agrees that many people suffer needlessly as a
result of these types of backlogs and that individual conditions can
worsen or lead to death during this waiting time. It is critical that
adequate resources be provided to all levels of SSA involved with
disability case processing.
As a result of the reduced SSA budget for 2006, SSA mandated that
initial level disability claims be given top priority. This
necessitated other claims, such as reconsiderations and continuing
disability reviews (CDRs), not receiving the attention they deserved
and backlogs resulting of these types of claims at the DDSs.
NADE strongly believes that the Single Decision Maker (SDM) process
can help to alleviate some of the backlogs at the initial level of case
processing. This part of the prototype effort has proven to be
successful in producing high quality decisions and a time saver when
processing claims. NADE believes that SSA should expand the SDM
initiative to all regions to not only reduce initial backlogs, but to
lower processing times at the initial level.
Continuing Disability Reviews (CDRs)
Limited resources have forced SSA to reduce the number of CDRs
performed. Of utmost concern to NADE is the past history of these types
of actions and the resultant impact as the agency falls behind in these
critical reviews. When we experienced a backlog of CDRs previously it
took a great deal of effort by all components of SSA to reach a point
where CDR reviews were being conducted as scheduled. It took a
significant number of years of dedicated funding solely for the purpose
of conducting CDRs before SSA was current with CDR reviews. With
decreasing the number of CDR reviews done in the past few years, there
is now a real danger that we will once again find ourselves in the
position of having backlogs of overdue CDRs.
While there are increased administrative costs (including the
purchase of medical evidence, claimant transportation costs and
increased utilization of contract medical consultants) with the
performance of CDRs, there is a potential for significant savings in
program costs with the elimination of benefits paid to beneficiaries
who are found to be no longer eligible for disability benefits due to
no longer meeting the SSA Disability program requirements. The estimate
is that for every $1 in administrative cost spent on conducting CDRs,
$10 of program funds is saved. While NADE agrees that it was necessary
to decrease the number of CDRs done over the last couple of years given
the current budget situation, this decision has repeatedly been
described by many, including the former SSA commissioner and members of
this committee, as ``penny-wise and pound-foolish''. We agree. It is
essential to program integrity that CDR reviews be conducted in a
timely manner to ensure that only those who continue to be eligible are
receiving disability benefits. NADE's experience has been that the only
way to ensure the necessary funds for CDRs don't get transferred to
process other SSA workloads is for Congress to provide ``dedicated
funding'' for CDRs. Dedicated funding has shown to be the best means of
staying current with the CDR workload. NADE encourages this committee
to recommend appropriating dedicated funding for CDRs to ensure that
this workload gets the attention it deserves.
Electronic Disability Process (eDib)
eDib is still a work in progress and requires ongoing refinements,
upgrades and improvements frequently needed to make the system work as
efficiently and effectively as possible. The impact on the electronic
system as a whole when these changes are made is unpredictable, and
currently results in systems slowness or inability to work at all.
Since Disability Determination Services (DDSs) process over 2.5
million cases on an annual basis, any shut down or slow down of the
case processing system equates to a significant loss of production
capacity.
Continued attention to eDib is needed to insure that the proper
financial support is given to make it successful. eDib at its full
implementation may result in a significant reduction in processing time
at all levels of adjudication without the need for significant changes
to the adjudicative process.
5 Month Cash Benefit Waiting Period and 24 Month Medicare Waiting
Period
It is important to note that in Title II disability claims, persons
found disabled under the Social Security Disability program must
complete a full five month waiting period before they can receive cash
benefits. So, a disability allowance decision, even when it is
processed quickly, will not resolve the issue of having to wait five
full calendar months before the claimant will be able to receive any
cash benefits. NADE believes that requiring some individuals (Title II
claimants) to serve a waiting period before becoming eligible to
receive disability cash benefits while not requiring others (Title XVI
claimants) to serve the same waiting period is a gross inequity to
American citizens with disabilities.
We are also deeply concerned about the hardship the 24 month
Medicare waiting period creates for these disabled individuals, and
their families, at one of the most vulnerable periods of their lives.
Most Social Security disability beneficiaries have serious health
problems, low incomes and limited access to health insurance. Many
cannot afford private health insurance due to the high cost secondary
to their pre-existing health conditions.
It has been proven time and time again that earlier medical
intervention could help disabled individuals return to the workforce.
Therefore, NADE supports the elimination of, at the very least a
reduction, of the Five Month Cash Benefits and 24 Month Medicare
Waiting Periods.
Summary
Inadequate resources along with increased workloads
has not only caused backlogs, but has allowed existing backlogs
to increase
Disability backlogs are affected by inexperienced
staff, hiring restrictions, and implementation of constant
program changes
Dedicated funding is necessary in order to avoid the
costly possibility of having a backlog of overdue CDRs.
Resources should not be diverted from eDib to
implement disability service improvement changes until the eDib
system is fully operational. It is critical that necessary
refinements be made to the system in order for it to produce
the anticipated and desired efficiencies.
The five month cash benefit and 24 month Medicare
waiting periods for Social Security disability beneficiaries
should be eliminated or reduced.
Statement of National Council on Disability
Introduction
The National Council on Disability (NCD) is an independent federal
agency, composed of 15 members appointed by the President and confirmed
by the U.S. Senate. NCD's overall purpose is to promote policies and
practices that guarantee equal opportunity for all individuals with
disabilities, regardless of the nature or severity of the disability;
and to empower individuals with disabilities to achieve economic self-
sufficiency, independent living, and integration into all aspects of
society. In furtherance of NCD's statutory mandate to advise the
Administration and Congress on issues that affect people with
disabilities, I would like to share the following information and
recommendations from NCD's report, The Social Security Administration's
Efforts to Promote Employment for People with Disabilities: New
Solutions for Old Problems (http://www.ncd.gov/newsroom/publications/
2005/ssa-promoteemployment.htm), regarding the Social Security
Administration's (SSA) disability backlogs.
The Disability Determination Process
NCD's Social Security report noted that the disability
determination process is upsetting, adversarial, and extremely
inconsistent. Both the timeliness and the uniformity of the SSA's
disability determination process leave much to be desired. Decisions
often take an extremely long time to process, and individuals who
appeal after initially being denied benefits often have to wait nearly
another full year before a final hearing decision is reached.
Furthermore, there are often significant discrepancies between the
initial decisions and those made at the hearings level.
NCD also noted that the other determination, that of disability
status, is made by contracted state agencies. The disability
determination process is complex and lengthy. There is inconsistency
from state agency to state agency, and determinations that an
individual is not disabled are often appealed, leading to lengthy waits
before final resolution. For example, a table from the SSA Annual
Statistical Report for 2003 offers data on the outcomes of applications
filed between 1992 and 2003. According to that data, 22,062
applications from 2000 were still pending in mid-2003.
Further, for a number of years, SSA has been reducing staffing
levels in its local offices. At the same time, the number of
individuals applying for and receiving benefits has steadily increased.
The result is an overworked SSA workforce that must deal with an
overwhelming and growing workload. Insufficient staffing has often led
to long lines and poor service. The processing of appeals and back-to-
work issues is not performed in a timely manner. Misinformation is
frequent, and mistrust is common.
Beneficiaries often report that SSA needs to improve customer
service. Frequently reported problems include offices and meeting
spaces that are too noisy for individuals with hearing loss, lack of
information in accessible formats for individuals with vision loss, and
misunderstandings about how work incentives might relate to specific
impairments. Long waits for service in field offices are common, as is
the frequent loss of essential paperwork sent to SSA. In some field
offices, it is not uncommon for the main telephone numbers to be busy
for extremely long periods of time. Trying to access specific staff
members is often quite difficult, and it is frequently reported that
staff do not return messages left by beneficiaries or their advocates
in a timely manner.
For additional information and recommendations, please see the
Executive Summary from NCD's Social Security report, included below.
Again, the full report
is available at: http://www.ncd.gov/newsroom/publications/2005/ssa-
promoteemploy
ment.htm.
Executive Summary
Americans with disabilities remain underemployed, despite the fact
that many are willing and able to work. Although the Social Security
Administration (SSA) has instituted a number of incentives to reduce
the numerous obstacles to employment faced by its Supplemental Security
Income (SSI) and Social Security Disability Insurance (DI)
beneficiaries, such efforts have had little impact because few
beneficiaries are aware of these incentives and how they affect
benefits and access to health care.
Introduction to the Problem
Social Security beneficiaries with disabilities must spend months
or even years convincing SSA that they are unable to work as a
condition of eligibility. Yet, upon their receipt of benefits, SSA
begins to communicate to beneficiaries that work is an expectation for
them. Congress and SSA have developed a variety of work incentives and
special programs designed to encourage beneficiaries to attempt to
obtain and sustain employment. Yet SSA's efforts to eliminate work
disincentives have often added to the complexity of the entire program,
confusing beneficiaries and making them leery of any actions that might
unknowingly jeopardize their benefits.
Current SSA benefit amounts are quite small and merely allow
beneficiaries to live at a basic subsistence level. SSI resource limits
make it very difficult to accumulate the financial resources necessary
to move toward economic self-sufficiency. Tying eligibility for
Medicaid or Medicare to eligibility for SSA benefits forces individuals
with high-cost medical needs who could otherwise work to choose between
pursuing a career and retaining the medical insurance that sustains
their very lives.
The fear of losing benefits and medical insurance through an
unsuccessful employment attempt starts well before adulthood with SSI
beneficiaries. Many SSI recipients first apply for benefits as children
while enrolled in public schools. These individuals often remain on the
rolls well into adulthood, with very few transitioning from high school
into substantial employment after graduation. Failure to focus on
Social Security and other public benefits during transition is not only
a missed opportunity, but harm may be caused when students and family
members are not educated or prepared for the effect of earnings on cash
benefits and medical insurance.
There is also the problem with poor educational attainment of DI
beneficiaries who enter the disability system later in life. Efforts to
help this population return to work are stymied by their lack of
education and marketable job skills--particularly in today's highly
competitive information economy. It is now more important than ever
that people of all ages have access to higher education and the
financial means with which to pay for training and education.
Response of Congress and the Social Security Administration to the
Problem
Well aware of the enormity and seeming intractability of this
problem, Congress and SSA have initiated multiple efforts to promote
employment and return to work among SSA beneficiaries. In recent years,
a number of work incentives for SSI and DI beneficiaries have been
implemented, allowing individuals to keep more of their earnings while
retaining their benefits. Work incentives are aimed at reducing the
risks and costs associated with the loss of benefit support and medical
services as a result of returning to work. Some of the most commonly
used incentives are Section 1619(a) and (b) provisions; impairment-
related work expenses (IRWE); trial work period (TWP); Plan for
Achieving Self-Support (PASS); extended period of eligibility (EPE);
and continued payment under a vocational rehabilitation program.
However, despite efforts by SSA and the Federal Government that
have led to more favorable conditions for returning to work, most SSI
and DI beneficiaries continue to stay on the disability rolls. The work
incentives offered by SSA remain largely underutilized; in March 2000,
of the total number of eligible working beneficiaries, only 0.3 percent
were using PASS, 2.8 percent were using IRWEs, 7.5 percent were
receiving Section 1619(a) cash benefits, and 20.4 percent were
receiving Section 1619(b) extended Medicare coverage (SSA, 2000). The
major reasons cited for the extreme underutilization of these work
incentives by beneficiaries were (1) few beneficiaries knew that the
work incentives existed, and (2) those who were aware of the incentives
thought they were complex, difficult to understand, and of limited use
when entering low-paying employment (GAO, 1999).
The Office of Program Development and Research (OPDR) and the
Office of Employment Support Programs (OESP) under the Deputy
Commissioner for Disability and Income Security Programs are primarily
responsible for the implementation of multiple components of the Ticket
to Work and Work Incentives Improvement Act of 1999 (TWWIIA). The
TWWIIA provides a number of new program opportunities and work
incentives for both SSI and DI beneficiaries, including the Ticket to
Work (TTW) and Self-Sufficiency Program; development of a work-
incentives support plan through the creation of national network of
Benefits Planning, Assistance, and Outreach (BPAO) programs; and new
work incentives, including expedited reinstatement (EXR) of benefits
and postponement of continuing disability reviews.
The National Council on Disability's Study of the Problem
It is not known whether the new TWWIIA programs will have any more
success than past attempts by SSA to impact the employment rate and
earnings of beneficiaries. What is clear is that there has not been, in
recent times, a comprehensive, research-based examination of the
practices that are most likely to support the employment of SSI and DI
beneficiaries. This study has been undertaken in response to the need
for such a comprehensive analysis. The study was designed to address
four research questions:
1. What are the evidence-based practices that promote the
return to work of working-age beneficiaries of DI and SSI
programs?
2. What policy changes are needed, given recent trends in
program participation and employment?
3. Are there proven and documented practices that work better
for some populations of people with disabilities and not
others?
4. Which factors ensure that documented and evidence-based
practices could be adapted/ adopted by SSA and other entities
that seek to ensure the employment of people with disabilities?
Which factors prevent adaptation/adoption?
A four-step approach was taken to implement the study. First, a
comprehensive literature synthesis was completed through a review of
published and unpublished literature. Second, detailed structured
interviews were conducted with key stakeholders, including SSA
beneficiaries, federal SSA officials, representatives of other federal
agencies, consumer and advocacy organizations, service organizations,
community service providers, and business representatives. Third, a
preliminary list of findings, evidence-based practices, and
recommendations based on the literature review and structured
interviews was used to develop seven topic papers. These papers were
used to facilitate discussion and obtain reaction from participants who
were invited to a consensus-building conference at the end of January
2005. Individuals with disabilities (including current and former SSI
and DI beneficiaries), advocacy organizations, service providers, and
policymakers who attended the conference had the opportunity to further
develop the recommendations that appear throughout the report.
Major Findings of the Study
Purpose and Mission of SSA's Disability Benefit Programs
Our nation's current disability benefit programs are based on a
policy principle that assumes that the presence of a significant
disability and lack of substantial earnings equates to a complete
inability to work. The current SSA eligibility determination process
thwarts return-to-work efforts, because applicants are required to
demonstrate a complete inability to engage in substantial gainful
activity (SGA) in order to qualify for benefits. The definition fails
to recognize that, for many consumers, disability is a dynamic
condition. The length of the application process in our current
programs actually contributes to the ineffectiveness of our return-to-
work efforts and our inability to intervene early in the disability
process.
For DI individuals, lack of a gradual reduction in benefits as
earnings increase and lack of attachment to the DI and Medicare
programs after an individual has maintained employment for an extended
period of time make return to work unfeasible. For SSI beneficiaries,
the program's stringent asset limitations thwart efforts toward asset
development and economic self-sufficiency. Inconsistencies in program
provisions lead to confusion and inequities for beneficiaries of both
programs.
Beneficiary Perspective and Self-Direction
To receive benefits, applicants must characterize their situation
as an inability to work long-term. They must demonstrate that they are
unable to work in any significant way. Once they are determined to be
eligible for disability benefits, beneficiaries face a host of complex
program rules and policies related to continuing eligibility for cash
benefits and access to health care. Many beneficiaries are confused or
uninformed about the impact of return to work on their life situation
and have shied away from opportunities to become self-sufficient
through work.
Beneficiaries report that their experience with SSA is often
unfavorable. Insufficient staffing has led to long lines and poor
services. Misinformation is frequent, and mistrust common. Local SSA
field office staff members are overburdened with accurate and timely
processing of post-entitlement earnings reporting, which often leads to
overpayments to beneficiaries. Beneficiaries do not trust SSA to make
appropriate and timely decisions. There is prevalent fear that work
attempts would result in either a determination that the disability had
ended or the need to repay benefits.
SSA has implemented many legislative changes, program
modifications, training initiatives, and automation efforts in the past
15 years to improve its customer service. Although efforts to
streamline processing and improve customer service should be lauded,
they have not significantly improved beneficiaries' ability to direct
and control their own careers.
Inocme Issues and Incentives
A multitude of rules regarding employment income, continued
eligibility for disability benefits, waiting periods, earnings
reporting, management of benefit payments, and management of assets
(among many others) come into play once an individual is determined to
be eligible for DI or SSI. SSA rules regarding employment and income
are such that many beneficiaries will actually be worse off financially
if they work full time. Disincentives to employment in the current
benefits programs include a sudden loss of cash benefits as a result of
earnings above the SGA level for DI beneficiaries. Despite a number of
programs that are designed to encourage asset building among SSI
beneficiaries, it remains very difficult for beneficiaries to save and
accumulate resources under SSI, which contributes to long-term
impoverishment and dependence on public benefits.
Over the past decade, SSA has devoted considerable resources to
promoting employment and return to work among SSI and DI beneficiaries.
The agency has aggressively implemented a number of new initiatives
authorized under the TWWIIA, such as the Ticket to Work and Self-
Sufficiency Program, the BPAO program, area work incentive
coordinators, and Protection and Advocacy for Beneficiaries of Social
Security. It has modified program rules to provide increased work
incentives to beneficiaries, such as the EXR and protection from
continuing disability review provisions of TWWIIA, indexing the SGA
threshold, and increasing the level of earnings allowed during the
Trial Work Period (TWP). The agency has also launched or is planning to
initiate a number of demonstrations that will test the efficacy of new
modifications to work incentives within the DI program and services
targeted toward youth with disabilities. Yet, while SSA has taken steps
to improve its return-to-work services through the provision of work
incentives, these efforts are hampered by the underlying program rules
that were designed for individuals assumed to be permanently retired
from the workforce and individuals who were viewed as unable or
unlikely to work in the future.
Coordination and Collaboration Among Systems
Expansion of the disability programs and the poor employment rates
of adults with disabilities have become major concerns for SSA and
disability policymakers across the country. Too often, the alarming
growth of the Social Security disability rolls has been represented and
perceived as SSA's problem to solve in isolation, when in fact it is a
larger societal problem with myriad complex causes. Receipt of Social
Security disability benefits is merely the last stop on a long journey
that many people with disabilities make from the point of disability
onset to the point at which disability is so severe that work is not
possible. All along this journey, individuals encounter the policies
and practices of the other systems involved in disability and
employment issues. When these systems fail to stem the progression of
disability or work at cross-purposes with one another to prevent
successful employment retention or return to work, it is the Social
Security disability system that bears the eventual brunt of this
failure. Any meaningful effort to slow down or reverse this relentless
march toward federal disability benefits will require significant and
sustained collaboration and coordination among SSA and the other
federal agencies with a stake in developing disability and employment
policy.
The complex obstacles to employment faced by SSA beneficiaries
require a comprehensive set of solutions. New approaches must be
identified that emphasize beneficiary control of career planning and
the ability to access self-selected services and supports. Public and
private health care providers must develop new collaborations and new
approaches to combining coverage from multiple sources to improve
program efficiencies. SSA must continue to work with the Rehabilitation
Services Administration (RSA) and the Department of Labor (DOL) to
improve implementation of the TTW program and identify new approaches
that will overcome the traditional inability of SSA beneficiaries to
benefit from services provided by the nation's employment and training
programs. Secondary and postsecondary educational institutions must
emphasize benefits counseling and financial management training as the
foundation for beneficiary self-direction and economic self-
sufficiency. Federal agencies and the business community must realize
that collaborative approaches to incorporating beneficiaries into the
workforce are needed as a way to reduce dependence on federal benefits
while simultaneously enhancing the productivity and competitiveness of
large and small business.
Recommendations
A total of 38 specific recommendations have been developed in the
areas of Beneficiary Perspective and Self-Direction, Income Issues and
Incentives, and Coordination and Collaboration Among Multiple Public
and Private Systems. The recommendations are presented and justified in
Chapters III, IV, and V of the report, and a complete list is provided
in Chapter VI. The key recommendations resulting from the study are
summarized below.
Beneficiary Perspective and Self-Direction
Customer Services--SSA should take immediate steps to improve the
services provided to beneficiaries by improving the accessibility of
SSA field offices and Web sites; redesigning field office personnel
roles, staffing patterns and work assignments; continuing efforts to
automate work reporting procedures; and enhancing outreach efforts to
beneficiaries.
Ticket to Work Program--Congress and SSA should address current
shortcomings in the TTW program by (1) expanding Ticket eligibility to
include beneficiaries whose conditions are expected to improve and who
have not had at least one continuing disability review (CDR), childhood
SSI beneficiaries who have attained age 18 but who have not had a
redetermination under the adult disability standard, and beneficiaries
who have not attained age 18; (2) modifying the TTW regulations to
ensure that Ticket assignment practices do not violate the voluntary
nature of the program and beneficiary rights to grant informed consent;
and (3) implementing a strong national marketing program to inform
beneficiaries about TTW and other SSA programs.
Facilitate Beneficiary Choice--Congress should authorize and direct
SSA, the Rehabilitation Services Administration (RSA), the Centers for
Medicare and Medicaid Services (CMS), the Department of Housing and
Urban Development (HUD), and the Department of Labor Employment and
Training Administration (DOLETA) to develop and implement an integrated
benefits planning and assistance program that coordinates resources and
oversight across several agencies that enables beneficiaries to access
benefit planning services within multiple federal systems. Congress
should also authorize and direct these agencies to consider changes to
the existing BPAO initiative to improve the accuracy and quality of
services provided to individual beneficiaries.
Reduce SSA Overpayments to Beneficiaries--Congress and SSA should
implement a series of procedural reforms to reduce overpayment to
beneficiaries by increasing the use of electronic quarterly earnings
data and automated improvements to expedite the processing of work
activity and earnings; piloting the creation of centralized work CDR
processing in cadres similar to PASS and Special Disability Workload
Cadres; and enhancing efforts to educate beneficiaries on reporting
requirements, the impact of wages on benefits, and available work
incentives.
Eliminate the Marriage Penalty--Congress and SSA should undertake a
complete review of the SSI program and make program modifications that
eliminate the financial disincentive to marriage inherent in the
present program, including amending the current Title XVI disability
legislation to modify the manner in which 1619(b) eligibility is
applied to eligible couples.
Income Issues and Incentives
Ease the SGA Cash Cliff for DI Beneificiaries--Congress should
modify the current Title II disability legislation to eliminate SGA as
a post-entitlement consideration for continued eligibility for Title II
disability benefits and provide for a gradual reduction in DI cash
benefits based on increases in earned income.
Reduce Restrictions on Assets for SSI Beneficiaries--Congress
should direct SSA to (1) develop and test program additions and
regulatory modifications that will enable SSI beneficiaries to
accumulate assets beyond existing limits through protected accounts and
other savings programs, and (2) change current program rules and work
with other federal agencies to modify and expand the value of
individual development account (IDA) programs to SSA beneficiaries.
Decrease the Complexity of the DI/SSI Program Rules Governing
Income and Resources--Congress should direct SSA to (1) simplify
regulatory earnings definitions and wage verification processes so that
they are consistent across the SSI and DI programs, and (2) direct SSA
to modify regulations related to the treatment of earnings in the DI
program by applying the same rules currently applied in the SSI
program.
Coordination and Collaboration Among Multiple Public and Private
Systems
Health Care Systems--Centers for Medicare and Medicaid Services
(CMS) and SSA should work together closely to (1) modify existing
program regulations in order to uncouple Medicare and Medicaid coverage
from DI/SSI cash payments; (2) identify and eliminate the many
employment disincentives currently built into the Medicaid waiver,
Medicaid buy-in, and Health Insurance Premium Payment (HIPP) programs;
(3) expand benefits counseling services to include the full range of
financial education and advisement services; and (4) work
collaboratively with public and private insurance providers and
business representatives to design public-private insurance
partnerships that will expand access to health care for individuals
with disabilities.
Vocational Rehabilitation (VR) System--SSA should modify TTW
program regulations to allow the SSA's traditional VR cost
reimbursement program to carry on as a parallel program to the
Employment Network (EN) outcome or outcome-milestone payment
mechanisms, and ensure that an EN is able to accept Ticket assignment
from a beneficiary, refer that individual to the VR agency for needed
services, and not be required to reimburse the VR agency for those
services.
Federal Employment and Training System--Congress, SSA, and the
Department of Labor should undertake an analysis of the impact of
allowing DOL One-Stop Career Centers to receive cost reimbursement
payments for successfully serving beneficiaries under the TTW program,
evaluate the impact of the Workforce Investment Act (WIA) performance
standards on beneficiary participation in WIA programs, and design and
test a set of waivers that will assist beneficiaries in accessing and
benefiting from WIA core and intensive services, as well as individual
training accounts.
Educational System--Congress should direct SSA to work with the
Department of Education (ED) to (1) ensure that benefits planning and
financial management services are available to the transition-aged
population; (2) expand the current student earned income exclusion
(SEIE) and the Plan for Achieving Self-Support (PASS) to encourage
involvement of SSA beneficiaries in postsecondary education and
training; and (3) implement a policy change that would disregard all
earned income and asset accumulation limits for beneficiaries who are
transitioning from secondary education to postsecondary education or
employment for at least one year after education or training is
completed.
Employers, Business Community, and Private Insurance Industry--
Congress should direct SSA and the Department of the Treasury to (1)
evaluate the possible effects of a disabled person tax credit as a
means of increasing the use of disability management programs in
business to prevent progression of injured and disabled workers onto
the public disability rolls, and (2) collaborate with Department of
Labor's Employment and Training Administration (DOLETA), the Small
Business Administration (SBA), and the Rehabilitation Services
Administration (RSA) to develop and implement an employer outreach
program targeted toward small and mid-size businesses.
NCD is available to provide you with advice and assistance
pertaining to issues of importance to people with disabilities and
welcomes any inquiries. Please contact NCD's Congressional Liaison,
Mark Seifarth, or reach NCD by telephone.
Statement of Social Security Disability Coalition, Rochester, New York
I am dedicating the following testimony in memory of Dane Edwards,
who applied for Social Security Disability benefits in October 2006,
because of terminal lung and brain cancer. When he would call to check
on the status of his claim he was told that he must wait like everyone
else, and that he should stop calling to inquire about the status. He
obviously did not have the luxury of time. Dane will no longer be
calling and he never received his benefits. He died on February 13,
2007--his SSDI disability claim still waiting for approval at the NYS
(DDS) ODTA.
My name is Linda Fullerton, I am permanently disabled and currently
receive Social Security Disability Insurance/SSDI and Medicare. I am
one who was personally affected by the problem of disability backlogs,
which this hearing is supposed to be addressing today. I must say right
from the start, that I firmly believe (while nobody from the SSA or
Congress will ever admit this), the Social Security Disability program
is structured to be very complicated, confusing, and with as many
obstacles as possible, in order to discourage and suck the life out of
claimants, hoping that they ``give up or die'' trying to get their
benefits! This is how the government systematically robs you of your
money in order to use it for other purposes. This program which was
originally set up to help the disabled is currently failing miserably
at this task, and in fact, in many cases it is causing devastating,
irreversible harm to both their health and financial wellbeing.
I am also President/Co-Founder of the Social Security Disability
Coalition, which is made up of thousands of Social Security Disability
claimants and recipients from all over the nation. Our group and
experiences, are a very accurate reflection and microcosm of what is
happening to millions of Social Security Disability applicants all over
this nation. As a person who has gone through the Social Security
Disability claims process myself, I know first hand about the pain,
financial, physical and emotional devastation that the current
problematic SSDI process can cause, and I will never be able to recover
from it, since I can no longer work.
I find it disturbing that at this latest hearing and at past
hearings, that glaringly absent from your panel is representation from
other disability organizations such as mine. You continually choose the
same panelists from the legal, disability advocate community when there
is any representation at all. I ask again as I have in the past, that
in future Congressional hearings on these matters, that I be allowed to
actively participate instead of being forced to always submit testimony
in writing, after the main hearing takes place. I often question
whether anybody even bothers to read the written testimony that is
submitted when I see the results of hearings that were held in the
past. I am more than willing to testify via video/phone teleconference
before Congress, since I could never afford to travel, and I should be
permitted to do so. I want a major role in the Social Security
Disability reformation process, since any changes that occur have a
direct major impact on my own wellbeing and that of our members. Who
better to give feedback at these hearings than those who are actually
disabled themselves, and directly affected by the program's
inadequacies! A more concerted effort needs to be utilized when
scheduling future hearings, factoring in enough time to allow panelists
that better represent a wider cross section of disabled Americans, to
testify in person. It seems to me if this is not done, that you are not
getting a total reflection of the population affected, and are making
decisions on inaccurate information, which can be very detrimental to
those whom you have been elected to serve. I propose that Congress
immediately set up a task force made up of claimants who have actually
gone through the SSDI system, that has major input and influence on the
decision making 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.
If you visit the Social Security Disability Coalition website, or
the Social Security Disability Reform petition website:
Social Security Disability Coalition--offering FREE knowledge
and support with a focus on SSD reform:
http://groups.msn.com/SocialSecurityDisabilityCoalition
Sign the Social Security Disability Reform Petition--read the
horror stories from all over the nation:
http://www.petitiononline.com/SSDC/petition.html
You will read over four years worth of documented horror stories
and see thousands of signatures of disabled Americans whose lives have
been harmed by the Social Security Disability program. You cannot leave
without seeing the excruciating pain and suffering that these people
have been put through, just because they happened to become disabled,
and went to their government to file a claim for disability insurance
that they worked so very hard to pay for.
My organization fills a void that is greatly lacking in the SSA
claims process. I must take this opportunity to tell you how very proud
I am of all our members, many like myself, whose own lives have been
devastated by a system that was set up to help them. In spite of that,
they are using what very little time and energy they can muster due to
their own disabilities, to try and help other disabled Americans
survive the nightmare of applying for Social Security Disability
benefits. There is no better example of the American spirit than these
extraordinary people! While we never represent claimants in their
individual cases, we are still able to provide claimants with much
needed support and resources to guide them through the nebulous maze
that is put in front of them when applying for SSDI/SSI benefits. In
spite of the fact that the current system is not conducive to case
worker, client interaction other than the initial claims intake, we
continue to encourage claimants to communicate as much as possible with
the SSA in order to speed up the claims process, making it easier on
both the SSA caseworkers and the claimants themselves. As a result we
are seeing claimants getting their cases approved on their own without
the need for paid attorneys, and when additional assistance is needed
we connect them with FREE resources to represent them should their
cases advance to the hearing phase. We also provide them with
information on how to access available assistance to help them cope
with every aspect of their lives, that may be affected by the enormous
wait time that it currently takes to process an SSDI/SSI claim. This
includes how get Medicaid and other State/Federal programs, free/low
cost healthcare, medicine, food, housing, financial assistance and too
many other things to mention here. We educate them in the policies and
regulations which govern the SSDI/SSI process and connect them to the
answers for the many questions they have about how to access their
disability benefits in a timely manner, relying heavily on the SSA
website to provide this help. If we as disabled Americans, who are not
able to work because we are so sick ourselves, can come together, using
absolutely no money and with very little time or effort can accomplish
these things, how is it that the SSA which is funded by our taxpayer
dollars fails so miserably at this task?
Now I will relate my own personal horror story, to give you a first
hand look at the havoc, these backlogs can wreak on a disabled person's
life. On January 14th 1997, due to medical negligence and complications
from a simple bump on the head back on November 3rd 1996, I had major
brain surgery (Occipital Craniotomy) due to 2 forms of strep/1 form of
staph infection, which ate their way through my skull and formed
abscess in my cerebellum. As a result of this Osteomyelitis of skull, I
had to have the base of my skull surgically removed where the brain
stem meets my spinal chord. A few months after the surgery I developed
a huge inoperable blood clot in my brain in the left internal jugular
vein. I managed to go back to work for a few years but as a result of
the infections in my brain, and my body's inability to see that they
were gone, I developed several incurable autoimmune disorders
(Scleroderma, Raynaud's Disease, Rheumatoid Arthritis, Fibromyalgia,
Hashimoto's Thyroiditis, Esophageal Reflux Disease, Calcinosis,
Telangiectasia) which got progressively worse over time. By December
6th 2001, I could no longer work and filed a claim for Social Security
Disability benefits. I brought in a stack of medical records almost 2''
thick when I filed my claim at the local office to prove my disabling
conditions, in hopes that it would speed up the process. I was sorely
mistaken, as it took 4 months (March 2002) to process my initial claims
denial. I couldn't understand how it was possible that anyone could
read about all the medical problems I have, and it not be totally
transparent that I should qualify for benefits, and that I never
should've been denied in the first place!
I live in NY State, one of the ten test states where the
Reconsideration phase has been removed. Needless to say I was still
disabled and I immediately filed for an appeal, had to go through an
even more complicated process and was told it would be at least August
of 2003 before I got my hearing if I didn't die first! On 9/13/02, when
I called the Office of Hearings and Appeals in Buffalo NY to check on
my claim the receptionist told me, that my file was still in the un-
worked status, meaning that nobody was assigned to my claim yet, or
even looked at the file at all since March, when I originally filed my
appeal. I expressed my disgust that after six months in their
possession that it had not even been touched yet! I called them again
on 1/23/03 and they told me that STILL nobody had been assigned to my
case and it would be a MINIMUM of five months more or longer since they
were just starting to work on cases that were filed in November of
2001! The receptionist expressed her sympathy for my cause, and
literally begged me to let others know (especially the government and
media) about how much of a problem they are having. Imagine my surprise
when I was calling them for help and they were begging me--a disabled
person, to get them help! That just proves even further how poorly run
the SSD program is. I was told that there were only 50 employees
handling hundreds of thousands of cases.
I also contacted the Social Security Office of Public Inquiries and
the Inspector General's office in MD on the problems I was dealing
with, and contacted all my elected officials. In March 2003 I called
the hearings and appeals office and again they said it would be at
least August 2003 before someone would look at my case. I then did some
research and found out that I could request copies of my file (Freedom
of Information/Privacy Act) including the reports of the SSD IME doctor
I was sent to, and the notes of the original DDS claim examiner that
denied me, and when I received them, my worst allegations were then
confirmed. Even though I have no real neurological problems they sent
me to a neurologist to examine me, so of course he would find nothing
wrong with me, and say that I did not qualify as disabled. I should
have instead, been sent to a Rheumatologist since most of my problems
are caused by autoimmune disorders. I also discovered that the DDS
examiner purposely manipulated my medical information in order to deny
my claim. Even though I filed my disability claim based on all the
physical problems I have, as a PRIMARY diagnosis for disability, the
DDS examiner purposely wrote depression as a primary diagnosis instead
of as secondary one, so of course I would be denied based on that as
well. This was after I had already submitted tons of documents to prove
my PHYSICAL disability--reports/documents that he chose to ignore. I
also filed a formal willful misconduct complaint to the Office of the
Inspector General in Washington DC against the DDS office. In April
2003, I requested an immediate pre-hearing review of my case on the
grounds of misconduct and additional physical evidence. In order to get
that process going I had to fax the OHA copies of their own
regulations, since the person I spoke with there had no clue what I was
talking about. Once they got all my paperwork to request the review, a
senior staff attorney, and then a hearing and appeals judge granted my
request and my case was then sent back to the DDS office that
originally denied my claim. Finally it was seen by a different DDS
person who actually knew how to do their job. In two weeks my case was
approved at the DDS level and then was selected randomly by computer (7
out of every 10 cases get chosen) for Federal review. It then took
another three weeks to be processed there. By this time, I had wiped
out my life savings and lived off my pension from a previous employer
which is totally gone now, due to the enormous wait. One month before
becoming totally bankrupt, homeless, losing my health insurance, and
everything else I had worked for the last 30 years of my life, all the
retro pay just showed up in my bank account and I finally won my case
by myself, with no lawyer representing me, exactly 1\1/2\ years to the
day from when I originally filed my claim. I actually received my
official approval letter on May 26th 2003.
All the SSD retro pay I received was spent almost immediately--used
to pay off debts incurred while waiting for approval of my benefits,
which are nowhere near enough to live on for the rest of my life. Plus
there is always the stress of having to deal with the SS Continuing
Disability Review Process every few years, where the threat of having
your benefits suddenly cut off constantly hangs over your head. This is
a total waste of taxpayer money since there are no cures for anything I
have, and in fact my health has gotten progressively worse. In addition
to what I originally filed for disability on, I now also have:
Gastritis, Hiatal Hernia, Diverticulosis, Colitis, Irritable Bowel,
severe Anemia, Food Allergies (Celiac Disease Symptoms) and enough
other conditions to fill two 8x10 pages (single spaced 10pt font). I
can understand the SSA wanting to verify that I am still alive and my
contact info, but anymore than that at this point is a total waste of
SSA resources which could be used to process new claims.
Since current Medicare eligibility requirements discriminate
against disabled Americans by making them wait for 24 months after
their disability date of entitlement, I didn't become eligible for
Medicare until June 2004, having to spend over half of my SSD check
each month on health insurance premiums and prescriptions, not
including the additional co-pays fees on top of it. I still continually
deal with enormous stress and face the continued looming threat of
bankruptcy and homelessness, due to the cost of my Medicare, HMO
healthcare, co-pays and basic living expenses, not qualifying for any
public assistance programs.
The American dream has now become the American nightmare for me,
since day to day I don't know how I'm going to survive without some
miracle like winning the lottery. I'm now doomed to spend what's left
of my days here on earth, living in poverty, in addition to all my
medical concerns since I'm no longer able to work. Despite what you may
hear, Social Security Disability benefits rarely cover the basic
necessities of life. Stress is the worst thing for anyone who is
already ill to have to deal with. Since my health has deteriorated so
rapidly since this experience, I now see doctors several times a month,
and my medical records fill a huge filing cabinet. If one does not
suffer from severe depression before filing for SS Disability benefits,
chances are highly likely that as a result of the current process, they
will be able to add that to their list of qualifying disabilities. I
also know for a fact that many people contemplate suicide because of
the destruction and humiliation they are subjected to. I did not ask
for this fate and would trade places with a healthy person in a minute.
In spite of everything, I am not asking for pity or sympathy for what
has happened in my life. I just don't want anyone else to have to live
like this, which is why I share my story with you today, since you in
Congress have the ability to prevent horror stories like mine from
happening. Nobody ever thinks it can happen to them. I am proof that it
can and anyone reading this, including you, could be one step away from
walking in my shoes at any moment! More of my personal horror story can
be found here:
A Bump On The Head
http://www.frontiernet.net/ lindaf1/bump.html
Keep in mind a country is only as strong as the citizens that live
there, yet as you can now see, the Social Security Disability process
preys on the weak, and decimates the disabled population even further.
While the majority of Americans were shocked at the reaction of the
Federal government in the aftermath of hurricane Katrina, I wasn't
surprised at all. Nowhere is this more evident, yet rarely mentioned,
than in the way the Social Security Administration has been
systematically destroying disabled Americans for decades. Americans saw
when hurricane Katrina struck, how the poor and disabled were left to
die in the streets when they needed help the most. I shudder to think
of how many more lives will be further ruined or lost, when the
mentally and physically disabled victims of Katrina, other natural
disasters, 9/11 victims who survived that day, but are now disabled and
facing a similar fate, and the other disabled Americans in general,
encounter their next experience with the Federal government as they
apply for their SSDI/SSI benefits. Also nothing is heard about the
Veterans who are injured in the line of duty and have to go through
this same scenario to get their benefits too. There are cases of
Veterans rated 100% disabled by the VA who get denied their Social
Security Disability benefits and end up living in poverty on the
streets. Horrible treatment for those who protect and serve our
country.
Social Security Disability/SSDI is a disability INSURANCE plan, yet
the disabled are often treated like criminals when they have to apply
for it. The general feeling is that we are all frauds trying to scam
the system and the SSA must ``weed out'' the frauds by making it as
hard as possible for a claimant to get benefits. In fact the percentage
of claims that in the end, are not legitimate are very miniscule.
Nobody in their right mind would want to go through this process and
live in poverty on top of their illnesses if they could in fact work.
In our country you are required to have auto insurance in order to
drive a car, you pay for health insurance, life insurance etc. If you
filed a claim against any of these policies, after making your
payments, and the company tried to deny you coverage when you had a
legitimate claim, you would be doing whatever it took, even suing, to
make them honor your policy, Yet the government is denying Americans
their legitimate Social Security Disability Insurance claims everyday,
and it is no wonder why claimants are outraged!
According to the report: A Disability System for the 21st Century--
Social Security Advisory Board--September 2006:
``The process itself tends to make an individual who might have
been able to work at an earlier point in time less and less
capable of doing so.''
Now to the hearing backlogs. As you can see from what happened in
my case, and in the thousands of others still pending, the state DDS
office made a bad decision on the initial claim, and the claimant must
now file an appeal to get the proper decision. The first problem that
must be addressed, and major cause for the huge backlog of disability
hearing claims, is the overwhelming denial rate at the initial DDS
level of the claims process. If claims were processed properly at this
stage of the process there would be no need for the claimant to appeal
to the ALJ hearing phase in the first place.
The SSDI/SSI process is bogged down with tons of paperwork for both
claimants and their treating physicians, and very little information is
supplied by Social Security, as to the proper documentation needed to
process a claim properly and swiftly. When you file a claim for
benefits, you are not told that your illness must meet standards under
the Disability Evaluation Under Social Security ``Blue Book'' listing
of medical impairments, or about the Residual Functional Capacity
standards that are used to determine how your disability prevents you
from doing any sort of work in the national economy, or daily
activities, when deciding whether or not you are disabled. In other
words since the process is so nebulous from beginning to end, the deck
is purposely stacked against a claimant from the very start. Many times
when medical records are supplied by the claimant, they are lost or
ignored. The proper weight is not given to their treating physicians
when evaluating claims and precious time and money is wasted on
fraudulent IME exams. Claimants are forced to see doctors who are not
even specialists in the diseases for which they are sent to be
evaluated. These doctors see you once for a few minutes, and yet their
opinion is given greater authority than a claimant's own treating
physician who sees them in a much greater capacity? Something is way
out of line with that reasoning, yet it happens every day.
States Of Denial
Since Social Security is widely known as a Federal program, where
you live should not affect your ability to obtain benefits. Sadly this
is not the case. What most don't realize is that after you file your
initial disability claim at your local Social Security Office or
online, that information goes to a state DDS/Disability Determination
Services facility in the state where you live to be processed. There,
the most crucial part of your disability claim, the medical portion, is
reviewed by a caseworker/adjudicator and medical doctor on their staff
who never sees you, and in most cases never even communicates with you
at all. Then they decide whether or not they feel you are disabled
based on the information that you and your doctors have provided.
Since both Congressman McNulty and myself are from NY State I will
use our state as an example here.
The following is from NYS ODTA/Office of Temporary and Disability
Assistance Website (2006)
http://www.otda.state.ny.us/otda%20internet%20search/ddd/
resources/ddd_resources_nysserv.htm
``This year the New York Division of Disability Determinations
is expecting to process 275,000 Federal disability claims under
Social Security and Supplemental Security Income criteria. It
generally takes approximately three months for the disability
team to gather all of the medical and vocational information,
evaluate the impact on daily activities, make a determination
and process it through the Federal system. Claimants usually
receive notification of the decision within 15 days after a
determination is made.''
For example the following is a compilation of the DDS allowance
percentage rates in NYS and how they compare to the national average of
allowances vs denials:
T2 Initial T16 Initial Concurrent
(SSDI) (SSI) Initial (SSDI/
SSI)
Allow Deny Allow Deny Allow Deny
NATIONAL AVERAGE 44.2 55.8 36.4 63.6 25.3 74.7
New York Region 51.4 48.6 42.8 57.2 33 67
Buffalo, NY 47 53 33.8 66.2 23 77
Source: Statement by Witold Skwierczynski--President Representing the National Council of SSA Field Operation
Locals--AFGE, AFL-CIO--Congressional Testimony Before the House Ways and Means Subcommittee on Social Security
on Social Security Disability Service ``Improvement'' on June 15, 2006--National and NYS Data--Office of
Hearings & Appeals--ALJ Favorable/Unfavorable Decision Rates--SSA Program Totals--Number of cases that were
originally denied at the state level and were appealed to the Federal level, and where DDS decisions were
either overturned, upheld or dismissed.
At an overall average 60% denial rate out of 275,000 applicants,
165,000 people were denied their SSDI/SSI benefits in NYS at the
initial level in 2006. What happened to the 165,000 people who were
denied their SSDI/SSI benefits last year, not including those who have
filed appeals from previous years and are still waiting to get their
cases heard?
Social Security Disability Program Problems--Contributing Burden Factor
on Medicaid/Social Service Programs For States
A majority of SSDI 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 SSDI benefits, in many states have to pay back the state out of
their meager SSDI 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 SSDI claimants that don't have to be paid
back out of their SSDI benefits once approved.
From SSA website ssa.gov dated 6/3/04:
``In the New York region, there are 14 offices of hearings and
appeal, with a total staff of 560, including administrative law
judges, staff attorneys, decision writers, paralegal and
clerical staff.''
Total
Yearly Totals Depositions Favorable Unfavorable Dismissals
9/28/02-9/30/05 110,950 65,637 25,307 20,006
Source: Social Security Administration
According to the figures above, that is 65,637 mistakes, and lives
that were most likely devastated by the faulty decisions made by the
NYS DDS office in the past four years. That does not take into account
the percentage of people again, who are still waiting for hearings,
those that have given up and rely totally on NYS support, when they may
in fact still be entitled to benefits but were too weak to appeal, and
worse yet those who may have died while waiting.
Excerpt from the report: Disability Decision Making: Data And
Materials--Social Security Advisory Board--January 2001:
``In the last two decades, the percentage of claims adjudicated
at the ALJ level that are allowed has been considerably higher
than the percentage allowed by the DDS's at the initial
level.''
Here are some of the factors that the Social Security Advisory
Board (SSAB) listed in 2001, that affect the discrepancies of
disability decisions between the State and Federal levels of the
disability determinations process.
During the initial claims process at the State level, most claims
are decided based on a paper review of case evidence. There is very
little, to no communication whatsoever between the claimant and the
adjudicator who makes the first decision on a claim. There is no face
to face contact with an adjudicator until a claimant has an ALJ
hearing.
Differences in training given to ALJ's and state examiners
Lack of clear and unified policy guidance from SSA
The involvement of attorneys and other claimant representatives at
the ALJ hearing
Excerpts from GAO Report GAO-04-656--SSA Disability Decisions: More
Effort Needed To Assess Consistency of Disability Decision--
Washington--July 2004 which can be found at:
http://www.gao.gov/new.items/d04656.pdf
``Each year, about 2.5 million people file claims with SSA for
disability benefits . . . About one-third of disability claims
denied at the state level were appealed to the hearings level;
of these, SSA's ALJ's have allowed over one-half, with annual
allowance rates fluctuating between 58 percent and 72 percent
since 1985. While it is appropriate that some appealed claims,
such as those in which a claimant's impairment has worsened and
prohibits work, be allowed benefits, representatives from SSA,
the Congress, and interest groups have long been concerned that
the high rate of claims allowed at the hearing level may
indicate that the decision makers at the two levels are
interpreting and applying SSA's criteria differently. If this
is the case, adjudicators at the two levels may be making
inconsistent decisions that result in similar cases receiving
dissimilar decisions.''
``Inconsistency in decisions may create several problems. . . .
SSA rulings are binding only on SSA adjudicators and do not
have to be followed by the courts. . . . Adjudicators currently
follow a detailed set of policy and procedural guidelines,
whereas ALJ's rely directly on statutes, regulations, and
rulings for guidance in making disability decisions. . . . If
deserving claimants must appeal to the hearings level for
benefits, this situation increases the burden on claimants, who
must wait on average, almost a year for a hearing decision and
frequently incur extra costs to pay for legal representation. .
. . SSA has good cause to focus on the consistency of decisions
between adjudication levels. Incorrect denials at the initial
level that are appealed increase both the time claimants must
wait for decision and the cost of deciding cases. Incorrect
denials that are not appealed may leave needy individuals
without a financial or medical safety net. . . . An appeal adds
significantly to costs associated with making a decision.
According to SSA's Performance and Accountability Report for
fiscal year 2001, the average cost per claim for an initial DDS
disability decision was about $583, while the average cost per
claim of an ALJ decision was estimated at $2,157. . . . An
appeal also significantly increases the time required to reach
a decision. According to SSA's Performance and Accountability
Report for fiscal year 2003, the average number of days that
claimants waited for an initial decision was 97 days, while the
number of days they waited for an appealed decision was 344
days. . . . In addition, claimant lawsuits against three state
DDS's have alleged that DDS adjudicators were not following
SSA's rulings or other decision making guidance. . . . However,
according to DDS stakeholder groups, SSA has not ensured that
states have sufficient resources to meet ruling requirements,
which they believe may lead to inconsistency in decisions among
states. Furthermore, SSA's quality assurance process does not
help ensure compliance because reviewers of DDS decisions are
not required to identify and return to the DDS's cases that are
not fully documented in accordance with the rulings. SSA
procedures require only that the reviewers return cases that
have a deficiency that could result in an incorrect decision. .
. . Early on, SSA also provided extensive cross-training of DDS
and ALJ adjudicators, although the scope of its efforts has
since diminished. . . . While SSA initially made progress
carrying out efforts to improve policies and training to better
ensure the consistency of decisions, the agency has not
continued to actively pursue these efforts. . . . Although SSA
has tried to address these problems, its inability to resolve
them has contributed to our decision to include federal
disability programs on our list of high risk government
programs.''
Excerpts from Office Of The Inspector General--Social Security
Administration--The Effects Of Staffing On Hearing Office Performance--
March 2005--A-12-04-14098
http://www.ssa.gov/oig/ADOBEPDF/audittxt/A-12-04-14098.htm
HEARING OFFICE DISPOSITIONS, TIMELINESS, AND STAFFING
``Over the last 5 years hearing office receipts have outpaced
total dispositions every year resulting in a large increase in
pending claims (up nearly 104 percent) and a worsening of
average processing time (up nearly 24 percent).''.
``OHA might improve its productivity if it based its staffing
allocations on hearing office staffing ratios, defined as the
number of support staff per ALJ . . . If SSA would define
performance standards for hearing office employees, SSA could
determine an ideal staffing ratio for OHA's hearing offices.''
TRENDS IN STAFFING, PRODUCTIVITY AND TIMELINESS
``The number of hearing office employees on duty has increased
over 10 percent since FY 1999 (see Figure 2). The number of
ALJs on duty at the end of FY 2004 was up more than 2 percent
from FY 1999 levels.''
``However, even with increased staffing levels, average
processing time worsened. Average processing time increased by
over 24 percent since FY 1999, increasing from 316 days during
FY 1999 to 391 days during FY 2004. Average processing time has
been impacted by many factors. Some of the factors influencing
timeliness that are not under OHA's control are the number of
new hearing receipts (close to 21 percent higher than FY 1999
levels, see Figure 1) and restrictions on ALJ hiring.''
``Hearing offices with lower staffing ratios had, on average,
worse hearing office disposition rates.''
``Staffing ratios may be a good indicator for hearing office
timeliness.''
``Fluctuating staffing levels make it difficult for OHA to
balance staffing ratios in hearing offices. OHA must wait for a
hearing office with a higher-than-average support staff ratio
to lose an employee before another employee can be hired in a
hearing office that needs more support staff. OHA would be
better able to manage hearing office staffing if it had an
ideal staffing ratio for its hearing offices.''
``To determine an ideal staffing ratio for OHA hearing offices,
SSA would need to conduct national performance standards on the
work performed by hearing office support staff.''
CONCLUSION AND RECOMMENDATIONS
Hearing office staffing levels rose more than 10 percent since FY
1999 and OHA achieved a record national disposition rate in FY 2004.
However, increased staffing levels have not been as effective in
decreasing national average processing time. Staffing ratios may be a
good indicator for hearing office disposition rates and timeliness,
especially in hearing offices with low staffing rations. In most
hearing offices with below average staffing ratios, disposition rates
were below national averages and average processing times were above
national averages. National performance standards for the work
performed by hearing office support staff could help OHA management
determine an ideal staffing ratio. Furthermore, it does not appear OHA
awarded file assembly contracts based on any of the hearings key
workload indicators, nor could we find any evidence OHA determined the
effect that the additional human resources (file assembly contractors)
have had on staffing ratios, disposition rates or average processing
time for hearing offices that had received file assembly contracts.
To improve overall staffing at the hearing offices and assist OHA
in meeting its performance goals, we recommend SSA:
Consider developing an ideal national staffing ratio to
assist OHA in allocating staff to hearing offices; and
Consider prioritizing file assembly assistance for those
hearing offices that have staffing ratios below the national
staffing ratio.
Early Case Screening and Analysis by Administrative Law Judge--In
Early Case Screening, ALJs examine unassembled cases from the Master
Docket and may issue immediate on-the-record favorable decisions.
Screening helps eliminate standard delays and additional expense
associated with holding a hearing. Screening also helps identify cases
that need further development which helps move the cases along at an
earlier stage. In FY 2003, ALJs screened about 66,000 cases and issued
favorable decisions to approximately 21,600 claimants, and screened
70,781 cases resulting in over 25,000 on-the-record decisions in FY
2004.
Short Form Software for Fully Favorable Decisions--OHA's hearing
offices use standardized software to allow ALJs to create fully
favorable decisions. In FY 2003, ALJs wrote over 23,600 decisions and
18,750 decisions in FY 2004 using the Short Form Software for Fully
Favorable Decisions, which reduced handoffs and further delays.
Bench Decisions--In Bench Decisions, an ALJ issues a decision as
soon as the hearing is over. ALJs issued over 1,100 favorable decisions
from the bench in FY 2003, and issued 3,350 decisions in FY 2004.
Expanding Video Hearings--Video Hearings enhances OHA's ability to
expeditiously schedule hearings in remote sites. In FY 2003, OHA
prepared and published final regulatory changes, which permit OHA to
schedule video hearings without obtaining advance consent from the
claimant. At the end of FY 2003, OHA had video hearing equipment in 35
sites. The total number of fully operational video hearing sites was
162 at the end of FY 2004.
Dragon Naturally Speaking, Speech Recognition Software--Dragon
Naturally Speaking, Speech Recognition Software assists ALJs and
support staff with drafting decisions. In FY 2003, OHA distributed the
software to more than 1,000 decision writers and ALJs.
Digitally Recording Hearings--Digitally Recording Hearings is a new
method of recording hearings that replaces OHA's aging audiocassette
recorders with notebook computers. The notebooks have state-of-the-art
software to record hearing proceedings in a digital file that can be
stored on a hard drive, a local server and in the electronic folder.
The entire digital recording rollout is expected to be completed early
in 2006.
Case Processing and Management System--OHA implemented the Case
Processing and Management System (CPMS) in all 10 Regions in FY 2004.
CPMS is OHA's new case tracking system and a critical component of the
Agency's Electronic Disability Project (eDib). CPMS provides users in
OHA hearing offices with a system to control, process and produce
management information on disability hearings. CPMS includes the
following functions: initiative appeals, case receipt, case
development, ALJ review, scheduling features, information about
hearings, case closing and management information.
Centralized Screening Unit--At the beginning of the third quarter
of FY 2004, OHA established an early case screening program at OHA
Headquarters, which was authorized by the Commissioner during the
second quarter of FY 2004. Employees in the Centralized Screening Unit
screened cases from across the country for on-the-record decisions,
with priority consideration given to hearing offices with receipts and
pending levels above the national average and support staff levels
below the national average. The objective of the Unit is to expedite
the decision-making process and reduce the pending levels in the
hearing offices. Through the end of the third quarter of FY 2004, the
Centralized Screening Unit received over 2,500 cases and screened
approximately 1,484 cases. Of the cases screened, 463 (29 percent)
received fully favorable decisions.
The following are recommendations by the Social Security Disability
Coalition for Congressional legislation and SSA regulations. We believe
that these improvements to the initial phase of the disability claims
process, will help to alleviate the hearing backlog problem, since
there will be less need for appeals to the hearing stage, if claims are
handled properly from the onset.
All money that is taken out of American's paychecks for Social
Security should not be allowed to be used for anything else other than
to administer the program and pay out benefits to the American people.
Increase staffing levels and training throughout the SSA instead of
cutting back staff which is currently being proposed at a time when the
population's need for these services due to disability/age is
increasing.
Currently we call for a thorough investigation of the state DDS/
Offices of Temporary Disability Assistance, as to the large number of
questionable denials of claims, which are then overturned at the
Federal level, their enormous backlogs and processing times. Lack of
staff and proper training can lead to a ``rubber stamping'' of claim
denials. We recommend the increase of staffing levels, proper training
of all staff at the state level and the creation of an independent
oversight panel for these offices to maintain quality service.
Create independent oversight panel (possibly the GAO) to
investigate the problems including major backlogs at all levels of the
SSDI/SSI claims process.
Consolidation/Coordination--The Disability Common Sense Approach
For the future, the most ideal customer service scenario would be
to have ALL phases of the disability claims process be handled directly
out of the SSA field offices. Since SSDI/SSI are Federal benefits why
has a State DDS level been added to this process at all? We must
question why this common sense solution is not being instituted as part
of the DSI. We ask that SSA, Congress and the GAO look into reforming
this program in such a way that ALL who handle benefit claims are
Federal employees and consolidate ALL phases of the SSDI/SSI process
into the individual SSA field offices throughout the nation. More
Federal funding is necessary to continue to create a universal network
between all outlets that handle SSDI/SSI cases so that claimant's info
is easily available to caseworkers handling claims no matter what
level/stage they are at in the system. Since eDib is not fully
functional at this time, and even when it is, keeping as much of the
disability process as possible in the SSA field offices would
dramatically cut down on transfer of files and the number of missing
file incidences, result in better tracking of claims status, and allow
for greater ease in submitting ongoing updated medical evidence in
order to prove a claim. In addition, all SSA forms and reports should
be made available online for claimants, medical professionals, SSD
caseworkers and attorneys, and be uniform throughout the system. One
universal form should be used by claimants, doctors, attorneys and SSD
caseworkers, which will save time, create ease in tracking status,
updating info and reduce duplication of paperwork. Forms should be
revised to be more comprehensive for evaluating a claimant's disability
and better coordinated with the SS Doctor's Bluebook Listing of
Impairments.
Strict enforcement of, and fines to be instituted for, violation of
Federal Regulation CFR20 404.1642 Processing Time Standards to be
monitored by the GAO.
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]
For every day over the threshold for Title II & Title XVI claims
under Federal Regulation CFR20 404.1642 Processing Time Standards,
daily compounded prime bank interest is to be paid by the SSA to
claimant as compensation.
Strict monitoring and enforcement of Federal Regulation CFR20
404.1643 Performance Accuracy Standard by the (GAO) Government
Accounting Office and not the SSA
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.
If the state offices cannot abide by the Federal standards as
stated above, we recommend that these duties be removed from the states
and turned back over to the Federal government for good.
Also a new regulation needs to be legislated for case processing
standards for Title II & Title XVI claims for hearings by ALJ and
Federal Appeals courts.
For ALJ hearings, the hearing must be completed, decision made and
processed within 3 months of initial denial at DDS level. For every day
over the 3 month deadline for processing, compounded prime bank
interest is to be paid to claimant as compensation.
For Federal Appeals court hearings, the hearing must be completed,
decision made and processed within 3 months of initial denial at the
ALJ level. For every day over the 3 month deadline for processing,
compounded prime bank interest is to be paid to claimant as
compensation. Again these regulations would be strictly enforced and
monitored by the GAO.
Expand use of Federal Reviewing Official position to all 50 states
as soon as possible.
Expand Emergency Advance Payments (EAP), Presumptive Disability
(PD), and Presumptive Blindness (PB) Provisions to include those
applying for Title II (SSDI) benefits. We also ask Congress legislate
for these benefits to take effect for ALL disability claims immediately
upon a claimants request for an appeal, after the initial denial at the
DDS level, until a satisfactory decision is reached, or all levels of
appeal are exhausted on that disability claim. In addition these
benefits would not have to be paid back by the claimant no matter what
the outcome of their claim is.
Disability benefits determinations should be based solely on the
physical or mental disability of the applicant. Neither age, education,
work experience should ever be used when evaluating whether or not a
person is disabled, as long as they meet the non-medical requirements
for receiving benefits. If a person cannot work due to their medical
conditions--they CAN'T work no matter what their age, or how many jobs
or educational degrees they had.
Too much weight at the initial time of filing, is put on the
independent medical examiner's and DDS/OTDA 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/OTDA
office never sees a claimant. There needs to be more oversight that
disability decisions be based with controlling weight given to the
claimant's own treating physicians opinions and medical records in
accordance with (DI 24515.004) SSR 96-2p: Policy Interpretation Ruling
Titles II And XVI: Giving Controlling Weight To Treating Source Medical
Opinions. Even though this policy ruling is in place, this is very
often not happening.
All doctors who are licensed to practice medicine should be trained
and required to fill out Social Security Disability forms for their
patients who need them. FREE copies of medical records to be provided
to all people with disabilities (unless it could be proven that it is
detrimental to their health) upon request. This is crucial information
to ensure that claimants are receiving proper healthcare and a major
factor when a person applies for Social Security Disability.
In cases where SS 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). These exams 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--any transportation or
travel expenses incurred for this travel by the claimant, must be
reimbursed or provided by the agency requiring the exam. Audio and/or
videotaping of all IME exams to avoid improper conduct by doctors. Copy
of IME doctors findings must be sent to claimant free of charge within
one week of exam unless deemed detrimental to a patient's health at
which point it would be sent to their treating physician instead.
More communication between caseworkers and claimants throughout all
phases of the disability process. Review of records by claimant should
be available at any time during all stages of the disability
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 at any level is
made. This would eliminate many cases from having to advance to the
hearing or appeals phase.
Remove regulation that requires SSDI recipients pay back the State
for any assistance they receive while waiting for their Federal
Benefits to be processed. They should require any payback from the
Federal Government itself NOT the disability claimants retro benefits.
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 need of lawyers/reps to file claims and navigate the system
adds another cost burden to the claimant. The automatic percentage for
payment of representative's fee, and current high cap on that fee out
of a claimant's retro pay is proving to be 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'' thus not properly representing the claimant. In
cases where claimant uses a paid representative, and is found in fact
to be disabled, any/all expenses incurred for the representation of
that claimant should be paid by the SSA. Also the SSA should provide
claimants with a listing in every state, of FREE Social Security
Disability advocates/reps when a claim is originally filed as well.
Institute a lost records fine--if Social Security loses a claimants
records or files, an immediate fine (TBD) must be paid to claimant,
since lost records will cause a major delay in claims processing, which
can be major detriment to claimant's health and financial wellbeing.
When a veteran has a disability that is 100% service connected,
receives VA benefits approval for that rating, and it is deemed by the
VA that they can no longer work, that veteran should automatically be
approved for their Social Security Disability, as long as they also
meet the Non-Medical requirements for SSDI/SSI benefits. In addition
all VA doctors should be trained and required to fill out Social
Security Disability forms for their patients, whose VA disability
rating is less than 100%, but may still be unable to work due to their
disabilities and require SSDI/SSI benefits. This will eliminate many
applicants from the hearing/appeals phase of the program.
More Federal funding is necessary to create a universal network
between Social Security, and all outlets that handle SSD/SSI cases so
that claimant's info is easily available to caseworkers handling claims
no matter what level/stage they are at in the system. 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 Bluebook
Listing of Impairments.
Currently the SSA forces the disabled to go through years of abuse
trying to prove that they can no longer work ANY job in the national
economy due to the severity of their illnesses in order to be approved
for benefits. The resulting devastation on their lives, often totally
eliminates the possibility of them ever getting well enough to ever
return to the workforce, even on a part time basis. Then, sometimes
weeks after they are finally approved for SSD/SSI benefits, they
receive a ``Ticket To Work'' packet in the mail. A cruel joke to say
the least and it is no wonder that the disabled fear continuing
disability reviews, utilization of the Ticket to Work Program, and
distrust the Federal Government! Yet ironically once they are approved
they are allowed to earn up to $900 and still receive benefits.
Confusing to say the least. The Ticket to Work Program is often viewed
as a carrot and stick it to the disabled approach. We recommend in
addition to the current Ticket to Work Program, the creation of an
Interim (transitional) SSDI disability program for those who are
chronically ill, but still may be able to work a few hours a week/
month. Say a claimant would be eligible for $1000 disability benefit if
approved for full SSDI benefits. They would apply for interim
disability to start and for every month they could not work they would
get a full check. For those months that they could work they would be
paid the difference or nothing based on the percentage of the $1000
benefit they would earn by working that month. They would be eligible
for full Medicare benefits from the onset. When their illnesses
progressed to a point that working is no longer an option, full SSDI
benefits would automatically kick in.
We also urge Congress to pass the following legislation:
Waiting period for initial payment of benefits should be
removed instead of the current five month waiting period from
disability date of eligibility. 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. Until
this is instituted, prime rate bank interest should be paid on
all retro payments due to claimants, as they are losing this as
well while waiting for their benefits to be approved. It should
be kept in mind that many Americans do not even have health
insurance let alone private disability plans. Then factor in,
that once you are unable to work for an extended length of
time, and are either terminated by your employer, or make the
agonizing decision to never return to work again for the rest
of your life, those employer sponsored benefits often expire
and you are left with nothing--no employer sponsored health or
disability insurance! Studies have shown that most in this
country have about two weeks worth of financial resources to
live off of, and that is assuming that they are healthy, yet
currently it is expected that a population who can no longer
work, go without five months of pay and wait several months to
several years to have their disability claims processed.
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.
Both of these current regulations are a major contributing factor
to the lasting poverty that claimants have to deal with as part of the
aftermath of filing for Social Security Disability benefits. Changes in
these regulations would greatly enhance the quality of life for
disabled Americans.
I am well aware as I write this, that there are some who have
abused the system and that is a shame, because it casts a bad light on
those who really need this help. Yet, there are ways to ``weed them
out'', without causing harm to legitimate claimants. It is time that
the government fixes the problems, so that the people who really need
this help can access it as soon as possible, instead of being treated
as frauds, and criminals on trial, when they need to file a claim for
benefits. Social Security, SSDI, SSI and Medicare are great programs
when they function properly, and have helped millions of Americans who
may never have survived without them.
Most of us were once hard working, tax paying citizens with hopes
and ``American dreams'' but due to an unfortunate accident or illness,
have become disabled to a point where we can no longer work. Since we
can no longer work due to our disabilities, we are often considered
``disposable'' people by general and government standards. In addition
our cries and screams are often ignored, many preferring that we just
shut up or die. Does that mean we are not valuable to our country, or
give the government/society the right to ignore or even abuse us? We
are your mothers, fathers, sisters, brothers, children, friends and
acquaintances and remember that disease and tragedy do not discriminate
on the basis of age, race or sex. Wake up America! If you think this
couldn't happen to you--you could be DEAD wrong!
I ask that you please act urgently on these items, as millions of
American's lives depend on you. Thanks very much for your time and
consideration.
Statement of Michael A. Steinberg, Tampa, Florida
I am an attorney who has been practicing in the area of Social
Security Disability law for over 24 years. I have written articles for
periodicals and have lectured at National Social Security Disability
Law Conferences. I have handled thousands of cases at all levels of the
administrative and appeals process. Although my office is located in
Tampa, Florida, I have handled cases for claimants throughout the
country.
Last year, I submitted testimony to this subcommittee about the
backlog of cases pending a hearing before an Administrative Law Judge,
and the need to pass legislation to give claimants some relief from
these delays. I advised that several times per year one of my clients
would die waiting for his or her hearing. Just this past Monday,
February 5, 2007, another client died before she could get her hearing
scheduled. She was without medical coverage, and perhaps she would
still be alive had she had her hearing scheduled earlier and already
received a decision. I have permission from her family to disclose her
name. It is Mary Welch, and I'd be happy to provide details of her case
upon request.
Every year or so this subcommittee holds a hearing about the
backlog of disability cases before Social Security. A representative
from Social Security will testify about how many more cases they are
handling compared to the previous year. The Commissioners have touted
new plans to improve the hearing process. Yet every year the backlog
grows and your subcommittee introduces no legislation to effectuate
changes.
I know each of the members of Congress receives hundreds of calls
from Social Security claimants every year complaining about the waiting
time to get a hearing. Everyone knows that the cause of the delays is
that Congress will not appropriate enough money to the Social Security
Administration, so that they can do their job timely and efficiently.
It is time that the members of this subcommittee take action.
There is a measure that can be passed that would force a resolution
to this problem. As I have suggested before, if 42 U.S.C. Sec. 423 were
amended to provide for interim benefits to claimants who have not
received a hearing and decision within a certain period of time from
the date they filed a request for hearing (provided they were without
fault in causing the delay), Social Security would have to provide
quicker hearings and decisions, or pay many claimants who otherwise
would not qualify for these benefits. Since it is unacceptable to pay
in large numbers those who do not qualify, additional money would then
have to be appropriated to be able to get hearing decisions out before
the deadline.
Claimants for Social Security Disability Insurance Benefits
contributed to the disability part of the Social Security Trust Fund,
out of every paycheck, when they were working. They were promised that
if they became disabled they would receive disability benefits. It is
not fair to make these people, most of whom are eventually approved,
wait three years or longer to receive a hearing and decision.
Since this is a new Congress, perhaps some of you are not aware of
how long this problem has existed and how many times we who are
involved in this program have heard the same excuses and the same
promises. Please don't make the same mistake of relying on assurances
by representatives of the Social Security Administration that measures
such as electronic files and a different evaluation process will fix
the problem. Without penalties for failure to meet timeliness
standards, the backlog will continue to grow.
Statement of Walter Walkenhorst, Jenkintown, Pennsylvania
As an attorney who practices full time in the Social Security
disability field, I write in support of greater funding for the Social
Security Administration's hearing offices. On a daily basis my staff
and I hear stories of clients who are suffering needlessly because of
delays in having their cases decided. Justice delayed is justice
denied. Given the current hearing delays, justice is being denied on a
daily basis.
The problem with Social Security's service delivery is primarily
one of numbers. The hearing offices have become increasingly
understaffed. Although the number of cases is growing each year, there
are fewer judges and support staff to handle this increasing volume.
Technology alone cannot solve this problem. Only more human resources
can.
The disabled are our most vulnerable citizens. If the government
won't help them, no one will. How a nation treats its disabled says
much about it. Our country must not continue to ignore the disabled.
When my clients are losing their homes or cars or going without
essential medical treatment because their valid disability claims are
languishing, what do I tell them? I tell them that only Congress can
solve the problem, and that Congress either doesn't know about their
plight or doesn't care about it.
I am writing to help in the education process. If you heard the
stories my staff and I hear, I am certain you would approve the
necessary funding. The format for this submission does not allow for
scanned attachments. If it did, I would attach the full letter I am
about to quote. The letter moved me and I hope and pray it will move
you as well.
The letter is from a current client of mine. She is 56 years old.
She lives in Willow Grove, PA, a suburb of Philadelphia. She suffers
from schizophrenia, yet managed to work for many years. Her work
history report shows that she worked in five different jobs from
January, 2005 until March, 2006, when she last worked. None of those
jobs lasted more than a few months. Her first psychiatric admission was
in 1979. The most recent was in April, 2006. Despite mental health
treatment and medication, she still hears voices. Her initial
application, like most, was denied by the state agency. The reviewer
found she was capable of making ``simple decisions'' and would not
require ``special supervision.'' She is now waiting for a hearing at a
hearing office with a backlog of over 5,000 cases. Her wait could
easily be another year, as the hearing request was filed in October,
2006. This is what she wrote in long hand on four pages of lined paper:
______
12/13/07
To whom it may concern:
I currently have a disability case pending and I was hoping
that maybe someone could help move up the hearing date ASAP. I
tried every day to find a job but no one is calling me back. .
. . I have tried the free training on computers at Career
Links, night school and the agencies, but it is just too
stressful for me. I just can't pick it up. I am bi-polar and
have depression. I am taking medication and they have been
giving me so many bad side effects I just don't know if I can
even accept any jobs anyway. . . . Each day is getting harder
and harder. My unemployment ran out last year. My husband makes
very little. He wanted to get a second job but I said ``NO.''
He is a very hard worker. He worries so much about me. Now he
has some medical problems as a result of all this. He has been
my biggest supporter next to God. Thank goodness we have God in
our lives. We tried to get a cheaper apartment but it would
cost us $2,400 to move. . . . Our heat is included in the rent
where we live which is nice because I am always freezing with
these meds and I have turned it up to 80 degrees most of the
time. My husband doesn't like the heat but he never complains.
I have developed osteoporosis, high blood pressure, hyper and
hypo thyroidism. I have a long list of side effects (serious)
from my meds. I sleep in the afternoon sometimes and usually
from 7-10:00 pm. I had to turn down a job because it involved
driving a van for a nursing facility. I didn't want the
responsibility of those patients if I fell asleep at the wheel.
. . . Maybe if I wasn't mentally ill I could probably take any
position, but the ones I applied for are too stressful, too
much responsibility, too much concentration or too many hours.
I called Medicaid and couldn't get through so I left a message.
I haven't heard anything yet. We have depleted our savings and
two other small savings accounts. My husband now has to take
out his IRA's and CD's which isn't much. And what do we do when
that runs out? It's only a temporary solution. Sometimes on
weekends we go to New Jersey to visit my mother-in-law, just to
get away from it all. She is on a fixed income and she still
manages to give us $100 each month toward our car payment. She
pays for every meal every time we go. What would we do without
her. We feel so guilty but what can we ever do to pay her back.
She is 86 and the sweetest lady. Now when I talk to her on the
phone she sounds depressed because she worries so much about
us. She eats like a bird and doesn't sleep. . . . I am getting
upset writing this so I will stop now. We would appreciate any
help you can to speed up the hearing. Thank you. (signature)
______
This is just one story. We have heard many others that are just as
compelling. We literally hear them daily. You have the ability to help
this woman and tens of thousands like her. Please approve the
Commissioner's requested funding for Social Security's hearing offices.
Please search your hearts and do the right thing for these, the
forgotten of our society.