[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]



 
                   THE PERFORMANCE OF SOCIAL SECURITY

                 ADMINISTRATION APPEALS HEARING OFFICES

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

                                HEARING

                               before the

                    SUBCOMMITTEE ON SOCIAL SECURITY

                                 of the

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

                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 16, 2008

                               __________

                           Serial No. 110-97

                               __________

         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
MIKE THOMPSON, California            THOMAS M. REYNOLDS, New York
JOHN B. LARSON, Connecticut          PAUL RYAN, Wisconsin
RAHM EMANUEL, Illinois               ERIC CANTOR, Virginia
EARL BLUMENAUER, Oregon              JOHN LINDER, Georgia
RON KIND, Wisconsin                  DEVIN NUNES, California
BILL PASCRELL, JR., New Jersey       PAT TIBERI, Ohio
SHELLEY BERKLEY, Nevada              JON PORTER, 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

                   Jon Traub, 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

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


                            C O N T E N T S

                               __________

                                                                   Page

Advisory of September 9, 2008, announcing the hearing............     2

                               WITNESSES

The Honorable Frank Cristaudo, Chief Administrative Law Judge, 
  Social Security Administration.................................     7
The Honorable Patrick O'Carroll, Inspector General, Social 
  Security Administration........................................    14
Ethel Zelenske, Co-Chair, Consortium for Citizens with 
  Disabilities Social Security Task Force........................    21
Kathy Meinhardt, Principal Executive Officer for Federal Managers 
  Association Chapter 275, Social Security Office of Disability 
  Adjudication and Review, Federal Managers Association, 
  Minneapolis, Minnesota.........................................    30
Sylvester J. Schieber, Chairman, Social Security Advisory Board..    38
The Honorable Ron Bernoski, President, Association of 
  Administrative Law Judges, Milwaukee, Wisconsin................    45
James Hill, President, Chapter 224, National Treasury Employees 
  Union, Cleveland, Ohio.........................................    80

                       SUBMISSIONS FOR THE RECORD

Disability Law Center, Statement.................................   106
Frank M. Klinger, Statement......................................   107
James E. Andrews, Statement......................................   111
Judge Steven A. Glaze, Statement.................................   111
Rhone Research, Statement........................................   113
Robert Vanlangendonck, Statement.................................   117
Social Security Disability Coalition, Statement..................   118
Social Security Disability Coalition, Statement..................   130
SSI Task Force of the National Health Care for Homeless Council, 
  Statement......................................................   142


                           THE PERFORMANCE OF


                     SOCIAL SECURITY ADMINISTRATION


                        APPEALS HEARING OFFICES

                              ----------                              


                      TUESDAY, SEPTEMBER 16, 2008

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

    The Subcommittee met, pursuant to notice, at 10:00 a.m., in 
room B-318, Rayburn House Office Building, Hon. Michael R. 
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
September 09, 2008
SS-8

                    Clearing the Disability Backlog:

                    Subcommittee on Social Security

              Chairman McNulty Announces a Hearing on the

             Performance of Social Security Administration

                        Appeals Hearing Offices

    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 performance of the 
Social Security Administration's (SSA's) appeals hearing offices. The 
hearing will take place on Tuesday, September 16, 2008, in room B-318 
Rayburn House Office Building, beginning at 10:00 a.m.
      
    In view of the limited time available to hear witnesses, oral 
testimony at this hearing will be from invited witnesses only. However, 
any individual or organization not scheduled for an oral appearance may 
submit a written statement for consideration by the Subcommittee and 
for inclusion in the printed record of the hearing.
      

BACKGROUND:

      
    Over the past several years, SSA's disability claims backlogs have 
grown to unprecedented levels, with more than 1.3 million Americans 
currently awaiting a decision regarding their claim. Backlogs are 
particularly severe for the more than 765,000 Americans who have had 
their cases denied at an earlier stage of the process and have 
requested a hearing before an Administrative Law Judge (ALJ). These 
individuals now wait an average of 532 days for a decision on their 
appeal. Recognizing the central role that prolonged underfunding and 
staffing shortfalls have played in the development of these backlogs, 
in combination with rising workloads, last year Congress provided SSA 
with $150 million more in administrative funding than the President had 
requested--the first such increase in ten years.
      
    The Subcommittee has examined the backlog crisis from a number of 
perspectives, including the need for more administrative funding and 
adequate staffing, the agency's ability to hire more ALJs to hear 
disability appeals, proposals to improve the disability determination 
process, and initiatives that SSA has undertaken to reduce the backlog. 
This hearing will focus on the performance of SSA's hearing offices and 
SSA's overall management of these offices.
      
    SSA's hearing process is an important one for claimants, as new 
medical and other available evidence is added to their claim and they 
have the opportunity to meet face-to-face with the judge who is 
deciding their claim. Approximately two-thirds of those who appeal to 
the ALJ level are awarded benefits. However, the process is very labor 
intensive for SSA, typically requiring clerical staff to prepare the 
case file, obtain evidence and schedule the hearing with all necessary 
experts and other participants; ALJs to review the case, conduct the 
hearing, and make a decision; and attorneys or paralegals to draft the 
decision and accompanying legal rationale for it, based on the judge's 
instructions.
      
    According to a recent report from SSA's Inspector General (IG), the 
productivity of SSA's hearing process has improved in recent years. In 
2005, SSA produced 421 dispositions per ALJ. By 2007, productivity had 
increased by 13 percent, to 474 dispositions per ALJ. However, hearing 
office performance varies significantly between offices. The IG found 
that productivity was often hindered by a lack of hearing office 
support staff, a conclusion the IG had also reached in a March 2005 
report. Interviews with ALJs and hearing office staff also identified 
other factors that could affect productivity, including the use of a 
number of techniques to promote speedier processing (such as spending 
less time reviewing the case and conducting the hearing). Finally, the 
IG found that a small number of ALJs--approximately 1 percent--
processed fewer than 200 cases per year even though they were employed 
as full-time adjudicators. At the same time, the IG reported that some 
judges--about 2 percent--issued more than 1,000 decisions in a year. 
This could raise concerns about the quality of these decisions.
      
    As concern about the backlog has grown, SSA has undertaken a number 
of initiatives to improve the productivity of its hearing offices, 
including hiring more ALJs and support staff; reinstituting the Senior 
Attorney adjudication program to allow judges to focus on more 
difficult cases; developing automation improvements; and asking judges 
to issue 500-700 decisions per year. However, concerns have been 
expressed that the agency's plans for hiring support staff are not 
sufficient to address the large hearings backlog, that planned 
automation improvements will not meet expectations, and that an 
overemphasis on speed could degrade quality or compromise program 
integrity.
      
    In announcing the hearing, Chairman McNulty said, ``Earlier 
hearings have demonstrated that prolonged underfunding has resulted in 
the loss of staff needed to process disability cases at the Social 
Security Administration. This has led to an unprecedented backlog of 
unprocessed claims and untold suffering. The agency must have the 
resources it needs to eliminate this unconscionable backlog. At the 
same time, we must ensure that SSA uses these resources as effectively 
as possible. This hearing will examine SSA's management of its hearing 
offices, and explore measures that can be taken to improve productivity 
without compromising the right of claimants to a fair and impartial 
decision on their case.''
      

FOCUS OF THE HEARING:

      
    The hearing will focus on the performance of SSA's hearing offices, 
factors that affect productivity, initiatives SSA is taking to increase 
efficiency and productivity, and other approaches to improving 
productivity without compromising the quality and impartiality of 
decision-making or the due process rights of claimants.
      

DETAILS FOR SUBMISSION OF WRITTEN COMMENTS:

      
    Please Note: Any person(s) and/or organization(s) wishing to submit 
for the hearing record must follow the appropriate link on the hearing 
page of the Committee website and complete the informational forms. 
From the Committee homepage, http://waysandmeans.house.gov, select 
``110th Congress'' from the menu entitled, ``Committee Hearings'' 
(http://waysandmeans.house.gov/Hearings.asp?congress=18). Select the 
hearing for which you would like to submit, and click on the link 
entitled, ``Click here to provide a submission for the record.'' Follow 
the online instructions, completing all informational forms and 
clicking ``submit'' on the final page. ATTACH your submission as a Word 
or WordPerfect document, in compliance with the formatting requirements 
listed below, by close of business Tuesday, September 30, 2008. 
Finally, please note that due to the change in House mail policy, the 
U.S. Capitol Police will refuse sealed-package deliveries to all House 
Office Buildings. For questions, or if you encounter technical 
problems, please call (202) 225-1721.
      

FORMATTING REQUIREMENTS:

      
    The Committee relies on electronic submissions for printing the 
official hearing record. As always, submissions will be included in the 
record according to the discretion of the Committee. The Committee will 
not alter the content of your submission, but we reserve the right to 
format it according to our guidelines. Any submission provided to the 
Committee by a witness, any supplementary materials submitted for the 
printed record, and any written comments in response to a request for 
written comments must conform to the guidelines listed below. Any 
submission or supplementary item not in compliance with these 
guidelines will not be printed, but will be maintained in the Committee 
files for review and use by the Committee.
      
    1. All submissions and supplementary materials must be provided in 
Word or WordPerfect format and MUST NOT exceed a total of 10 pages, 
including attachments. Witnesses and submitters are advised that the 
Committee relies on electronic submissions for printing the official 
hearing record.
      
    2. Copies of whole documents submitted as exhibit material will not 
be accepted for printing. Instead, exhibit material should be 
referenced and quoted or paraphrased. All exhibit material not meeting 
these specifications will be maintained in the Committee files for 
review and use by the Committee.
      
    3. All submissions must include a list of all clients, persons, 
and/or organizations on whose behalf the witness appears. A 
supplemental sheet must accompany each submission listing the name, 
company, address, telephone and fax numbers of each witness.

      
    Note: All Committee advisories and news releases are available on 
the World Wide Web at http://waysandmeans.house.gov.
      
    The Committee seeks to make its facilities accessible to persons 
with disabilities. If you are in need of special accommodations, please 
call 202-225-1721 or 202-226-3411 TTD/TTY in advance of the event (four 
business days notice is requested). Questions with regard to special 
accommodation needs in general (including availability of Committee 
materials in alternative formats) may be directed to the Committee as 
noted above.

                                 

    Chairman MCNULTY. The Subcommittee will come to order.
    Before addressing the topic of today's hearing, I want to 
acknowledge a very sad loss for all of us. This will be the 
first Subcommittee hearing since the untimely passing of one of 
our valued Members, Congresswoman Stephanie Tubbs Jones.
    Stephanie was a very active and concerned Member of this 
Subcommittee. The disability claims backlog in particular was 
an issue that she cared deeply about, and she worked tirelessly 
to address the problems affecting her constituents in Ohio.
    I know she would have very much have wanted to be here with 
us today, and we will miss her greatly.
    May we just have a moment of silence in memory of our dear 
friend, Stephanie.
    [Moment of silence.]
    Chairman MCNULTY. Now, I will turn to today's hearing which 
focuses on the performance of SSA's hearing offices. SSA's 
unprecedented backlog of disability claims has caused great 
suffering.
    The waits are the longest for more than 765,000 Americans 
who have requested a hearing on their case. These individuals 
now wait an average of 532 days, almost 18 months, and some 
wait much longer.
    I think we all agree this is completely unacceptable. 
Addressing the backlog has been a top priority of this 
Subcommittee throughout this Congress.
    Our hearings have shown that the primary cause of the 
backlog is prolonged under funding, which has resulted in too 
few staff to process the claims even as workloads have 
increased.
    Last year Congress began to reverse this trend by providing 
SSA with $150 million above the level of funding that the 
President had requested.
    We must continue to provide SSA with the funding needed to 
completely eliminate this backlog.
    We must also ensure that these resources are managed 
effectively. SSA's Inspector General, who will testify today, 
recently issued a report on ALJ Hearing Office productivity. I 
was pleased to learn that from fiscal year 2005 to 2007, 
hearing office productivity increased by 13 percent. Judges 
last year issued an average of 474 decisions each.
    The report did find that some judges issued very few 
decisions. However, it turns out that most of these ALJs were 
in fact not assigned to adjudicate cases full time. For 
example, they had management responsibility or had retired 
during the year.
    The IG did find that a few ALJs, about 1 percent, were 
assigned full time to adjudication duties but still had 
productivity rates that were far below average.
    At the same time, about 2 percent of the ALJs issued 
dispositions at a rate so far above the national average that 
it could raise concerns about the quality of such 
decisionmaking. Both extremes are troubling.
    I understand that SSA has begun to address the performance 
of the extremely low producing ALJs as well as those whose 
productivity is below average, and I am pleased to hear that 
these efforts have already begun to produce results.
    We must be clear, however, that a small number of ALJs are 
not the cause of the backlog. The problem is far too large and 
complex to be laid at the door of a few individuals.
    We must avoid the temptation to allow concern about a 
handful of poor performers to distract us from the issue of our 
primary concern, ensuring that SSA has the resources it needs 
and that these resources are managed effectively.
    In addition, it is essential that we understand that SSA's 
hearing process is a team effort. SSA's ALJs must rely on staff 
to prepare the case before the hearing and to draft a detailed 
decision afterward based on the Judge's instructions.
    The IG's report states that lack of staff is a key factor 
in reduced productivity, a problem that has been identified 
repeatedly by numerous sources.
    I was particularly concerned to learn from the IG's report 
that a number of ALJs said they regularly have fewer hearings 
scheduled than had requested due to insufficient staff to 
prepare the cases.
    With a backlog of more than 765,000, we absolutely cannot 
afford to have judges sitting idle because there are not enough 
staff.
    Finally, as we take a closer look at SSA's management of 
its hearing offices and ALJs, it is critical that we remember 
the overriding importance of ensuring that ALJs can make 
decisions free from political interference.
    In passing the Administrative Procedure Act, Congress 
sought to strike a balance between protecting the right to a 
fair hearing with an impartial decisionmaker and providing 
reasonable means of disciplining judges who exhibited 
unacceptable conduct.
    Changing that balance risks interfering with the disability 
claimant's right to a fair hearing and thereby hurting the very 
claimants we are trying to help.
    I know that SSA has undertaken a wide ranging series of 
initiatives to improve hearing office performance. I am pleased 
that we are seeing some initial signs of success.
    Today we will learn more about the challenges SSA is 
facing. We will hear from many perspectives, including SSA, the 
Inspector General, the Social Security Advisory Board, those 
who work on the frontlines in hearing offices, and disability 
claimants.
    I look forward to hearing their views on what can be done 
to improve the productivity of hearing offices without 
compromising claimants' essential due process rights.
    At this time, I am honored to introduce the Ranking Member 
of the Subcommittee on Social Security, one of my heroes in 
life, and he always will be, who endured torture for years on 
behalf of our country and all of its residents, and I could not 
be more proud to sit next to the great Sam Johnson.
    Mr. JOHNSON. Thank you, Mr. Chairman. I, too, want to 
recognize we are missing Stephanie Tubbs Jones on our 
Subcommittee. She was a strong advocate for her constituents 
and was tireless in her efforts to make sure the disability 
program in Social Security was getting its job done. She would 
have brought her own expertise as a judge to our hearing today 
and she is going to be missed by our Committee, and I thank you 
for the moment of silence.
    I also want to thank you, Mr. Chairman, for your 
distinguished service to your constituents and this nation. 
When it comes to making sure the public receives the service 
they deserve from Social Security, you have been a strong 
Chairman as well as a passionate advocate for seniors and those 
with disabilities, and you have been a good friend.
    It has been a pleasure and honor working with you over the 
years. When you pound that gavel for the last time, I wish you 
all the best in what will follow you. God bless you.
    I also want to recognize another important occasion on 
behalf of all our colleagues and our guests here today, it is 
your birthday, and I want to wish you a happy birthday.
    [Laughter.]
    Mr. JOHNSON. You have to blow out the candle and make a 
wish.
    Chairman MCNULTY. I make a wish that in the future there 
are more citizens of the United States of the caliber of Sam 
Johnson.
    Mr. JOHNSON. God bless you. We have some more of those if 
there are any staff that wants them later.
    [Laughter.]
    Mr. JOHNSON. Thank you and have a happy birthday.
    I want to thank you for holding this important hearing. We 
both share a real concern over the unprecedented backlog of 
disability cases that is literally affecting hundreds of 
thousands of people.
    The fact is today Americans are waiting longer than ever, 
over 17 months on the average, to hear whether a judge has 
decided whether they are eligible for benefits or not. Worse 
according to a recent report by the Inspector General, some 
judges are processing cases at a level well below the Agency's 
expectations, which the Chairman mentioned.
    Today, I hope we will learn more from the Inspector General 
about the factors that impact the performance and processing 
times of judges and the hearing offices where they work.
    No one should have to wait months or even years longer for 
their hearing decision because of the office or the judge that 
their case is assigned to. That is just wrong.
    Those who are not performing up to expectations need to be 
held accountable.
    There is some good news to report. Last year, Chairman 
McNulty and I were able to work with the Congress to provide 
Social Security close to $150 million in additional funding 
over the President's budget request. As a result, the number of 
judges and support staff, we hope, are increasing.
    Finally, Commissioner Astrue and the hard working employees 
of the Agency have implemented close to 40 initiatives to boost 
adjudication capacity, improve performance and increase 
efficiency through automation and process changes.
    Shortly, our witnesses will tell us about the impacts of 
these changes and whether they are improving the hearing 
process for both claimants and Social Security.
    All of us have a responsibility to make things right for 
workers who paid for and deserve far better service.
    I look forward to hearing from all of our panelists about 
what more can be done. Thank you, Mr. Chairman.
    Chairman MCNULTY. I thank the Ranking Member. Other Members 
of the Subcommittee will be coming in, hopefully, during the 
course of the hearing. We did have a procedural glitch today. 
There is a meeting of the Budget Committee with regard to war 
funding. At least three of our Members are at that. You have me 
and Sam.
    I would like at this time to introduce our panel, all of 
whom I thank for making the effort to be here today and also 
for their advocacies.
    Honorable Frank Cristaudo, Chief Administrative Law Judge 
of the Social Security Administration. Honorable Patrick 
O'Carroll, Inspector General of the Social Security 
Administration.
    Kathy Meinhardt, Principal Executive Officer for Federal 
Managers Association, Chapter 275. She is from Minneapolis, 
Minnesota.
    Sylvester Schieber, Chairman of the Social Security 
Advisory Board.
    Ethel Zelenske, Co-Chair, Consortium for Citizens with 
Disabilities Social Security Task Force.
    Honorable Ron Bernoski, President of the Association of 
Administrative Law Judges, Milwaukee, Wisconsin.
    James Hill, President of Chapter 224 of the National 
Treasury Employees Union, Cleveland, Ohio.
    We will start with Mr. Cristaudo.

     STATEMENT OF THE HONORABLE FRANK A. CRISTAUDO, CHIEF 
    ADMINISTRATIVE LAW JUDGE, SOCIAL SECURITY ADMINISTRATION

    Judge CRISTAUDO. Thank you, Mr. Chairman. Mr. Chairman and 
Members of the Subcommittee, thank you for the opportunity to 
speak with you today about our efforts to improve service to 
the American people.
    Before beginning, I would like to take a moment to join 
both the Chairman and Ranking Member in a warm tribute to 
Congresswoman Stephanie Tubbs Jones. A former judge herself, 
the Congresswoman was a strong supporter of our core mission. 
She will truly be missed.
    Additionally, in the aftermath of Hurricane Ike, I would 
like to let you know that Social Security is doing all that we 
can to help those affected. As we have done in such emergencies 
in the past, we will continue to provide service to the public 
to ensure their Social Security needs are addressed.
    We are working with Treasury and the Postal Service to have 
checks due on Wednesday, September 17, staged at the postal 
facilities and ready for delivery.
    The mission of the hearing operation is to provide timely 
and legally sufficient hearings and decisions. We know that we 
are failing in our obligation to provide timely decisions to 
many claimants.
    As a former active claimant attorney myself, I know how 
devastating it is for these claimants.
    This is not due to a lack of diligence on the part of the 
judges and staff at Social Security who work incredibly hard 
every day to serve the American public. We simply have been 
underfunded and understaffed for too many years.
    To understand the magnitude of the problem we face, we 
project an ideal pending per judge of about 360 cases. Our 
current pending is about 645 cases per judge.
    I wish to assure Congress that driving down the disability 
backlog is the Agency's top priority. We are implementing our 
plan to eliminate the backlog and prevent its recurrence. It is 
an excellent plan and we are already seeing significant, 
positive results.
    Unlike prior attempts, this plan is based on initiatives 
that have been proven to work and includes improvements in 
automation, business process, and management.
    I cannot overstate the importance of sound management of 
the hearing operation which is a critical element of the plan.
    However, for the plan to succeed, we need adequate funding 
to hire the people to handle the workload, to provide the 
facilities and equipment to allow them to do their jobs, and to 
fully implement the automation initiatives which will help us 
conserve our precious staff resources.
    We have implemented a number of initiatives to use our 
resources as efficiently as possible without compromising our 
commitment to due process for claimants.
    We have outlined specific expectations for the judges and 
staff. We have adopted revised processing time benchmarks, 
implemented a decision drafting template system, streamlined 
the process to issue fully favorable decisions, held judicial 
conferences for all of the judges for the first time in 
history, and improved our management training, among a number 
of other initiatives to improve service.
    As a result, we have seen significant increases in 
productivity in this fiscal year, despite processing the more 
aged cases which take more time because of the complexity, 
transitioning to the electronic file with the associated 
learning curve, and having attorney adjudicators handle the 
easiest cases.
    We recognize that we continue to have individuals and 
offices who fail to meet our expectations. We will continue to 
explore ways to improve the service they provide.
    We are concerned not only about those serving fewer 
claimants than expected, but also those issuing dispositions at 
rates well above expectations. We have begun analysis of those 
situations as well to determine the appropriate course.
    We are firmly committed to providing the best possible 
service to the American people.
    Fiscal year 2009 will be a pivotal year in turning the 
corner on the backlog, and a delay in adequate funding would 
seriously affect the progress we must continue to make.
    Sustained funding is equally critical in future budget 
years to ensure that we stay on track with our goal of 
eliminating the backlog by 2013.
    Thank you. I would be pleased to answer any questions you 
may have.
    [The prepared statement of Honorable Frank Cristaudo 
follows:]
 Statement of The Honorable Frank Cristaudo, Chief Administrative Law 
                 Judge, Social Security Administration
    Thank you for the opportunity to speak with you today about our 
ongoing efforts to improve hearing office productivity. The Office of 
Disability Adjudication and Review (ODAR) administers hearings and 
appeals for the Social Security Administration (SSA). SSA's hearing and 
appeals operation is one of the largest administrative adjudicative 
systems in the world, and we are committed to providing prompt due 
process under the Social Security Act.
    The Chief Administrative Law Judge has day-to-day oversight of the 
agency's hearing operation. Our nearly 1,200 Administrative Law Judges 
(judges), supported by more than 5,000 hearing office staff, hold 
hearings in our 141 hearing offices and over 150 remote hearing 
locations and issue more than 550,000 decisions a year. As the 
Commissioner has stated on numerous occasions, we want and need to 
improve service to the American people. We are working vigorously to do 
so. Improving hearing office productivity is an integral part of 
improving our service. We will also need to expand our presence in the 
areas with the largest backlogs. We have already begun the process to 
add new hearing offices in Florida, Ohio, Michigan, Kansas and Georgia, 
as well as satellite offices in Alaska and Idaho. If we receive timely 
and adequate support from Congress, this unprecedented expansion will 
help offer relief to these states.
    Unlike prior efforts to improve the hearing operation, our approach 
is based on initiatives that have been proven to work, along with 
improvements in automation, business process, and management. If there 
is significant uncertainty about a new idea, we conduct a pilot until 
we are confident that it will work. Improving hearing office 
productivity requires four key elements. The first element is to ensure 
that we have a sufficient number of well-trained judges and staff. 
Without sufficient human resources, we can make little progress. The 
second element is to facilitate the many administrative tasks 
associated with a hearing through available and proven technology. File 
preparation, record-keeping, expert testimony, and even the hearing 
rooms themselves have changed little in many years. Prudent investments 
in technology can automate repetitive tasks, ease the time and expense 
of extensive travel, and safeguard personally identifiable information, 
which frees our staff and our judges to focus on processing claims. The 
third element is to improve leadership of our judge corps and hearing 
office support staff and management of the hearing office operation. 
The fourth element is to improve business processes in our hearing 
offices, such as a standardized electronic business process, in-line 
quality reviews, and procedures that allow us to identify and 
adjudicate cases that can be allowed early in the hearing process. 
These initiatives will improve service, and deliver the timely, legally 
sufficient decisions that the American people deserve.
    We are implementing a comprehensive plan to eliminate the backlog 
of hearings. By eliminating the backlog, we will improve hearing office 
productivity and the timeliness of our hearings and decisions. Long 
delays in processing cases not only cause hardship to the claimants 
waiting for a hearing, but also generate extra work for our staff who 
must request updated evidence and respond to multiple inquiries on case 
status.
    We are taking assertive action in multiple areas where we know we 
can make an immediate difference. Our efforts this year have already 
yielded substantial progress--progress on which we will build as our 
initiatives are institutionalized and our new hires, both judges and 
support staff, become fully productive. However, unless we receive 
adequate and timely funding from Congress, we will not be able to 
continue on our successful path forward. Adequate funding is critical 
if we are to continue to implement the backlog plan.
Staffing
    Our judges and staff are the heart of our operation. They have 
stepped forward this year to produce more dispositions than last year 
even as receipts are growing faster than expected and as we prepare, 
hear, and decide our most aged cases. We are grateful for the support 
provided by Congress this year. The additional funding has allowed us 
to hire 190 judges and over 500 support staff over the course of this 
fiscal year (FY). We will begin to realize the full impact of these new 
hires by mid-2009, when we expect the new judges and staff to reach 
their full production capacity.
    Our present target, which we continually review based on the most 
current productivity and workload data, is to have a judge corps of 
1,250 by the end of next year. However, in light of an unanticipated 
increase in filings, we are now considering whether to adjust that 
target upwards and will keep Congress apprised if we need to hire 
additional judges and support staff. We will be monitoring our 
workloads and receipts carefully in the coming months so that, budget 
permitting, we will be poised to hire as many additional judges as 
circumstances warrant. We lose approximately 60 judges a year to 
attrition, so to reach our goal of 1,250 judges, we will need to hire 
about 100-125 new judges in FY 2009, as well as sufficient staff to 
support them. Achieving these staffing levels is contingent upon our 
receiving adequate FY 2009 funding on a timely basis. A protracted 
continuing resolution that freezes our funding at this year's level 
will hinder our ability to hire early in the fiscal year, delay the 
training of these new hires, and stall the momentum we have achieved in 
FY 2008.
    While we must maintain adequate staff support in order to maximize 
the efficiency of our judges, we recognize that hiring additional staff 
is just one part of the solution. Our numerous automation initiatives 
will significantly enhance the role of hearing office support staff and 
enable more productive workflows. For example, centralized printing and 
mailing of notices saves a significant amount of time in our hearing 
offices and frees staff to perform other critical functions.
    Looking ahead, the best way to ensure that we maintain a competent 
and productive workforce is to hire excellent candidates with 21st 
century skills. Hiring such candidates remains a top priority. Although 
we were fortunate to select a number of excellent judge candidates in 
FY 2008, we need more access to candidates well-suited to our type of 
work--those capable of thriving under the workload demands of our high-
volume, electronic hearing operation. Due to the large number of judges 
we need to process our workloads and our ongoing need to fill judge 
vacancies resulting from attrition, we need access to a broad pool of 
applicants.
Modern Technology Will Improve the Hearing Process
    The second area of focus in improving hearing office productivity 
is automation, which will increase the effectiveness of the hearing 
operation. We must be able to manage our workloads more efficiently. 
One way of doing so is to rely on technology to handle more quickly the 
simpler tasks of preparing a case for hearing and free staff time to 
engage in the more dynamic tasks. Another is to provide up-to-date 
access to representatives to the claimant's files, to ensure that 
submitted evidence has been received and included. Another is to 
transfer workloads electronically and to make hearings more readily 
available to claimants across the country through video technology. As 
excited as we are at the possibilities technology provides, we are 
attentive to testing and refining any technology ``fixes'' through 
pilots before implementing a change for the entire hearing operation. 
The following initiatives highlight our ongoing efforts in the area of 
automation.
    Centralized Printing and Mailing: This initiative provides high-
speed, high-volume printing for all our offices. Instead of having each 
hearing office print and mail out notices locally, millions of pages 
will be sent electronically from the individual hearing offices to a 
print server for printing and mailing. Hearing office employees will no 
longer perform this arduous activity. As of August 30, 2008, all 
hearing offices, including the National Hearings Center (NHC), can use 
central print for nine notices. This well-received initiative provides 
demonstrable work-year savings.
    ePulling (Electronic File Assembly): We are developing customized 
software to classify, filter, and identify critical data elements from 
each page of evidence in electronic folders. This software will enable 
our support staff to ``pull'' cases more quickly to get the electronic 
folder ready for a hearing, and will make the review of electronic 
folders considerably easier and faster. We rolled out a pilot in the 
Tupelo, MS hearing offices at the end of June 2008. The rollout was 
then expanded in the St. Louis, MO, Mobile, AL, Minneapolis, MN, and 
Richmond, VA hearing offices and in the Falls Church, VA NHC. If the 
software lives up to expectations, we plan to roll it out nationally 
next year. While the learning curve on any new approach takes some 
time, the reaction from judges and staff who have been part of this 
pilot is extremely enthusiastic.
    Expanded Internet Services for Claimants and Representatives: In 
response to the public's request for more Internet services, we have 
implemented processes to allow claimants who are appealing decisions on 
disability claims the ability to submit appeals online. So far this 
year, over 120,000 people have opted to utilize these services. This 
online process is easy for the claimant to complete and helps us in 
managing the workload. Our efforts in this area are in keeping with our 
overarching goal to transition into a more fully electronic environment 
while allowing claimants to continue using the paper process if they so 
choose.
    Currently 85 percent of ODAR's pending disability workload is 
electronic. When a claimant's representative wants to view a claimant's 
folder, hearing office personnel must take the time to burn a CD of the 
file, package it, and then mail it to the representative. As the case 
moves through the hearing process, representatives frequently make 
requests for updated file information. At the time of hearing, we burn 
to a CD copies of the record for the representative and for any expert 
witness. By the time a case is closed, it is not uncommon for offices 
to have burned as many as six copies of each file. With new 
functionality in the Agency's Electronic Records Express website, 
representatives will be able to view the electronic folder through a 
secure website, thus eliminating the need to provide multiple copies of 
CDs. The Agency is currently piloting this with nine representatives 
and is working on authentication issues to protect the claimant's 
personally identifiable information.
    Desktop Video Units (DVU): While traditional video conferencing 
equipment often consists of a large television monitor and camera 
situated in a hearing room, we are piloting more compact Desktop Video 
Units (DVUs). This equipment, which looks like a 20 inch television, 
can sit on the judge's desk. We conducted an initial pilot of the DVUs 
in four judges' offices and in the National Hearing Center. The pilot 
feedback was extremely positive. We are now expanding the use of this 
equipment to more than 20 additional locations. The pilot program will 
continue to evaluate the utility of DVUs to conduct hearings in both 
hearing rooms and in individual judges' offices. Use of video 
conferencing for conducting hearings saves travel time and money, and 
the use of DVUs in judges' offices provides additional hearing room 
capacity.
    Representative Video Conference Equipment: Another new technology 
initiative allows representatives to purchase their own video 
conferencing equipment based on exact specifications set by SSA. These 
representatives will then be able to conduct hearings from their own 
office space, thereby providing additional hearing room capacity as 
well as saving time and travel costs for all participants. For 
claimants in rural areas, and those with certain types of disabilities, 
this service option should prove extremely attractive. Each 
representative must sign an agreement with SSA that outlines the 
requirements for participation in the program. The agreement requires 
representatives to provide video equipment that is compatible with 
existing equipment used by SSA and to provide due process protections 
to the claimants, including privacy, the ability to exchange evidence 
with the hearing office, and an opportunity to review the evidence in 
the file prior to the hearing. We have notified 30 representatives who 
have expressed interest in participating in hearings using 
representative-owned video equipment. As of last week, three 
representatives have responded to our notice with signed agreements. We 
anticipate that we will be able to begin holding hearings under this 
program by the end of this year.
Managing Performance
    The third element of improving productivity is sound leadership and 
supervision of our employees and management of our work processes. For 
example, after successfully eliminating our 1,000 or more day-old cases 
in FY 2007, we focused on reducing our 900 or more day-old cases by the 
end of FY 2008. We pursued this initiative not only because doing so is 
a moral imperative, but also because a backlog of aged cases interferes 
with the normal hearing office workflow that we need to re-establish. 
Remarkably, our productivity is up despite our concentrated efforts to 
reduce the most aged cases, higher receipts than expected, and the 
demands of providing formal training for our new judges, who are 
trained by some of the highest-producing judges in the corps. 
Specifically, we have processed even more decisions this year than last 
and we were able to slow substantially the increase in our pending 
workload. The chart displays our progress in reducing the 900 day-old 
cases this year.

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                 [WAITING FOR RESPONSE FROM COMMITTEE]

    To increase operational flexibility, we have temporarily realigned 
hearing office service areas to balance our workloads. We focused on 
targeting resources so that the most backlogged areas receive the most 
help, and we increased the use of video hearings. These adjustments 
improve service by moving work from hearing offices with higher 
workloads to offices that have more capacity to assist.
    One of the creative ways we have been able to shift workload is 
through the NHC in Falls Church, VA. Using video conferencing 
equipment, the NHC judges are now conducting hearings for the 
Cleveland, OH, Atlanta, GA, and Detroit, MI hearing offices. As the 
workloads in these offices improve, we will begin utilizing the NHC to 
provide assistance to three other offices with very high backlogs, the 
Indianapolis, IN, Atlanta North, GA, and Flint, MI offices. We have 
received positive feedback from claimants utilizing the NHC, and the 
public's acceptance of this new way of doing business has exceeded our 
initial projections. Since the first hearing in December 2007, the NHC 
has received over 4,200 cases, held over 1,600 hearings, and processed 
almost 1,800 dispositions. By the end of 2008 we will have a total of 
11 judges in the NHC. We are proceeding with plans to open a second 
center in Albuquerque, NM, in the next few months that tentatively will 
begin by addressing backlogs in Portland, OR and Kansas City, MO. A 
third NHC in Chicago, IL is scheduled to open next spring; it would be 
premature to predict where the offices with the greatest needs will be. 
As the new NHCs come on line, we will utilize them to provide 
assistance to the hearing offices with the highest backlogs.
    At the beginning of FY 2008, we clarified our expectations 
regarding the service judges provide to the public. I laid out these 
expectations to all the judges in an October 2007 memo and re-
emphasized them at the four judicial conferences we held this year 
throughout the country. Most notably among the expectations, we have 
asked the judges to issue 500 to 700 legally-sufficient decisions each 
year, act on a timely basis, and hold scheduled hearings unless there 
is a good reason to postpone or cancel.
    We adopted the 500 to 700 case expectation after a thorough review 
of historical production data and discussions with a number of 
individuals including judges. We believe that this expectation is 
reasonable for our current process, and we are pleased to report that 
the proportion of judges meeting this expectation has increased. So far 
this year, more of our judges are on pace to issue over 500 
dispositions. Presently, half of our judges are meeting the 500-700 
case expectation nationally. In addition, we expect most, if not all, 
of our judges hired this fiscal year to reach this goal once their 
learning curve is over. If all judges were to meet our minimum 
expectation of 500 cases, we would serve approximately 60,000 more 
claimants annually. While we are concerned about judges serving fewer 
claimants than expected, we are just as concerned about judges issuing 
dispositions at rates well above expectations at the expense of 
quality. We have begun the analysis of those situations as well to 
determine the appropriate course to take.
    In addition to the improved productivity of our judges, our 
attorneys and paralegals who draft decisions for the judges and other 
support staff have also improved their productivity. As we have done 
with the judges, we set clear expectations for support staff. Our 
Senior Attorneys have issued fully favorable decisions for more than 
22,000 claimants just since November 2007, while continuing to draft 
many decisions for our judges.
    In general, our judges and staff are highly motivated professionals 
working extremely hard to meet the needs of the American people. By 
setting clear expectations and managing our workloads, we are building 
on their talents and creating a standard of exceptional service based 
on a culture of performance and professionalism.
Process Improvements
    As we eliminate backlogged cases and utilize new technology, we are 
attentive to adapting our work processes to take into account the 
changes in the mix of work and the tools used to process the work. We 
are working to develop a standardized electronic business process for 
our hearing offices. This initiative has the potential to transform our 
hearing operation by improving all aspects of quality including 
accuracy, timeliness, productivity, cost-efficiency, and service to the 
public. The standardized electronic process adopts the ``best 
practices'' already in use in our hearing offices. The process is built 
upon analysis of management information data and input from hearing 
office judges and staff.
    Initial testing of a draft standardized electronic business process 
began in the Downey, CA Hearing Office in July 2008. The Grand Rapids, 
MI Hearing Office begins testing this month. Based on our experiences 
at these offices, we will refine the standardized electronic business 
process and then include additional hearing offices in the pilot in FY 
2009. Our goal is to roll out the electronic business process 
nationwide next year, provided our thorough testing yields positive 
results.
    In conjunction with the standardized electronic business process, 
we are also developing a quality assurance program for the hearing 
process. Regional personnel will have responsibility for overseeing the 
in-line quality process, which will include reviews of attorney 
adjudicator decisions, decision drafts, case pulling, and scheduling. 
This program will be implemented in FY 2009 after the necessary system 
enhancements are put in place.
    Maintaining hearing office productivity and preventing the 
recurrence of the backlog require continual improvement in the quality 
of decisions at all levels of the disability process. In this regard, 
we are making significant progress toward reducing the number of cases 
that need to be reviewed by a judge. We are relying upon a variety of 
tools to identify cases that do not need a judge's review or that could 
be allowed earlier in the process. The following list provides brief 
descriptions of some of our most promising improvements to the 
disability claim process.
    Attorney Adjudicator: We reinstituted the Attorney Adjudicator 
program to allow our most experienced attorneys in the hearing offices 
to spend a portion of their time making quick, on-the-record, 
disability decisions in cases where enough evidence exists to issue a 
favorable decision without waiting for a hearing. Our quality reviews 
show that the accuracy of these decisions is very high.
    Informal Remands:  In collaboration with State Disability 
Determination Services (DDS), we are using the informal remand process 
to send cases that have been profiled as likely to be reversed but are 
pending at the hearing level back to the DDS level for review and 
possible issuance of a favorable determination. From June 2007 to the 
end of August 2008, more than 23,000 of these reviews have already 
resulted in fully favorable reversals, meaning claimants who were once 
waiting to have their hearings scheduled are now receiving benefits.
    Medical Expert Screening: In addition, the Medical Expert Screening 
Process plays an important role in identifying and expediting cases 
that may result in an allowance, by providing medical expert input that 
may enable us to make an ``on the record'' decision. Under this 
process, cases are screened and forwarded to a medical expert to 
complete a set of interrogatories. Cases that can be allowed on the 
record are routed to an adjudicator for review and decision. 
Conversely, cases that cannot be allowed are routed to a judge for 
normal processing with the medical expert's input in the record.
    Disability Claims Improvements: Several efforts are underway to 
improve the processing of disability claims and reduce the number of 
claims reaching the hearings level. The Quick Disability Determination 
(QDD) process is one of two fast-track processes that focus on initial 
disability claims. QDD uses a computer-based, predictive model to 
identify and accelerate initial disability claims for individuals who 
are likely to be found disabled. Our second fast-track process is the 
Compassionate Allowances (CAL) initiative. This initiative, which will 
begin soon, will identify rare diseases and other medical conditions 
that are invariably disabling and can be established by minimal, 
objective medical evidence. Finally, we expect to complete our regular 
updates to our listing of impairments by 2010.
Conclusion
    We are firmly committed to proper leadership and management 
oversight of the hearing operation so that we may provide the best 
possible service to the American public. As we have worked to implement 
the different initiatives which make up the backlog reduction plan, we 
have surmounted many challenges, and there is no question we will 
confront many more. One of the potential challenges that would be 
difficult to overcome is the lack of adequate resources as we strive to 
do all that is needed. FY 2009 will be a pivotal year, and a delay in 
adequate funding would seriously affect the progress we must continue 
to make. Sustained funding is equally critical in future budget years 
to ensure we stay on track with our goal of reducing the backlog by 
2013. We have an excellent plan for eliminating the backlog. We are 
committed to improving service to the American people. With your 
support, we can improve the service we provide. Thank you.

                                 

    Chairman MCNULTY. Thank you very much. Before we go to Mr. 
O'Carroll, I will just ask unanimous consent that any other 
opening statements that other Members of the Subcommittee may 
wish to submit be included for the record. Hearing no 
objection, so ordered.
    We will continue with Mr. O'Carroll.

    STATEMENT OF THE HONORABLE PATRICK O'CARROLL, INSPECTOR 
            GENERAL, SOCIAL SECURITY ADMINISTRATION

    Mr. O'CARROLL. Good morning, Mr. Chairman and Mr. Johnson.
    Before I begin, I would like to express the condolences of 
my entire organization at the loss of Congresswoman Tubbs 
Jones. She was an ally of my office, and of all those who 
sought to improve Social Security for the American public.
    The best way to serve her memory is by doing exactly what 
we are doing today.
    In December, you asked us to dig deeper into the disability 
appeal backlog by looking at ALJ case disposition statistics, 
case processing times, the reasons for variances, and SSA's 
management of ALJ performance.
    To accomplish this, we interviewed the Chief ALJ, 9 
Regional Chief ALJs, 143 ALJs across the country, and 146 
hearing office staff in 49 of SSA's 141 hearing offices.
    I would like to briefly summarize our findings. Looking 
first at case dispositions and case processing time, we found 
that the average ALJ was processing more cases, but it took 
longer on average for each case to be processed.
    Our work examined all ALJs who issued at least one decision 
in 2007, so it included some judges who were new to the job, 
retired during the year, worked part-time, or had valid reasons 
for not processing more cases.
    That said, the productivity range is wide. About 90 percent 
of the ALJs issued between 101 and 800 dispositions in 2007. By 
the same token, the average processing time for about 90 
percent of the ALJs ranged from 301 days to 700 days. There is 
definitely a wide range of productivity among ALJs, just as 
there is among hearing offices.
    Our work, and particularly the interviews we conducted, 
revealed a multitude of factors behind these disparities, 
including work ethic and motivation.
    One Regional Chief ALJ stated: ``Some ALJs are not 
motivated to process more cases or are stuck in a time when 
fewer dispositions were expected.'' Staffing of hearing offices 
was another primary factor. As one high-producing ALJ stated: 
``It is easy to work hard when you have a great staff.''
    Sure enough, we found that more than half of the higher 
producing ALJs we interviewed were in hearing offices with 
staffing levels above the national average.
    The number of cases an ALJ schedules is a factor closely 
tied to staffing. Understaffed offices cannot schedule as many 
hearings as ALJs request.
    As a regional Chief ALJ stated: ``Support staff ratios have 
a significant impact on productivity and processing times.''
    We also identified the rate of on-the-record dispositions, 
or OTRs, as an important element. An OTR is a favorable 
decision that an ALJ issues on the evidence without holding a 
hearing. Higher-producing ALJs make much more frequent use of 
OTRs.
    Use of expert testimony was another important indicator. 
Lower producing ALJs were also more likely to obtain expert 
testimony, issue postponements, hold longer hearings, spend 
more time preparing a case, and spend more time editing 
decisions.
    High producing ALJs were more likely to use what is 
referred to as the ``rocket docket,'' in which multiple 
unrepresented claimants are scheduled for hearings on the same 
day and at the same time.
    As our review did not assess the accuracy of ALJ 
dispositions, we are not in a position to state what impact the 
practices of high- and low-producing ALJs might have in that 
regard.
    Finally, you asked that we look at the Agency's management 
of ALJ performance. We found that the use of management 
information varied, and offices where hearing office Chief ALJs 
were more involved in the scheduling of hearings tended to be 
more productive.
    We also found that disciplinary actions against ALJs for 
performance issues are still rare, but are being addressed more 
frequently than in the past. Still, this remains an issue. As 
one Regional Chief ALJ stated: ``It is a complicated process to 
take action against ALJs.''
    Of the Commissioner's management initiatives in this area, 
none is more important than the productivity expectation of 500 
to 700 dispositions per ALJ per year.
    One Hearing Office Chief ALJ told us that performance 
standards are ``extremely valuable to compel the ALJs to meet 
the expectations required of them.''
    As of April, however, only about half of the ALJs 
nationwide were on track to meet this goal.
    Tied closely to this initiative is the hiring of ALJs and 
staff, and the proper distribution of staff to hearing offices. 
New automation, and a proposed quality assurance program, are 
also important Agency initiatives.
    There is no one solution but rather a need for everyone 
involved to work together to resolve these important issues.
    I could not agree more with what we were told by one 
Hearing Office Chief ALJ who stated ``I believe we need 
cooperation from all parties to serve the public, to deliver 
quality service.''
    I thank you again for your commitment, and I would be happy 
to answer any questions.
    [The prepared statement of Honorable Patrick O'Carroll 
follows:]
Statement of The Honorable Patrick O'Carroll, Inspector General, Social 
                        Security Administration
    Good morning, Mr. Chairman, Mr. Johnson, and Members of the 
Subcommittee. Before I begin, I want to express the condolences of my 
entire organization at the loss of Ms. Tubbs Jones. As you know, the 
Congresswoman had been a long-time member of this Subcommittee, and a 
long-time supporter and friend of the Office of the Inspector General. 
I met with her earlier this summer and we enjoyed a frank exchange of 
ideas directed toward a common goal--improving Social Security programs 
for her constituency and for all Americans. I've appeared before this 
Subcommittee many times during my tenure as Inspector General, and on 
almost every occasion, she held my feet to the fire, driven by her own 
commitment to public service and to the people who elected her. Like 
you, and like the people of Ohio, I lost a friend. The thoughts and 
prayers of all 600 employees of the Office of the Inspector General are 
with her loved ones.
    The best way to serve her memory is by doing exactly what we're 
doing here today--standing together and looking under the hood of the 
Social Security disability appeals process to find ways to make the 
engine run more smoothly. The disability appeals backlog is 
unacceptable to the Social Security Administration (SSA), to you, and 
to me, just as it is unacceptable to the American public and to 
everyone at this witness table. This hearing by no means represents our 
first attempt to make the necessary repairs, nor will it be our last. I 
believe, however, that it represents an important step forward, as the 
work requested by this Subcommittee and recently completed by my office 
sheds some new light on the challenges confronting us.
    By way of background, it is important to understand that the 
backlog is not the result of a lack of dedication or commitment on the 
part of SSA or any of its employees, nor of the Administrative Law 
Judge (ALJ) corps, though it falls on all of these parties to join in 
seeking solutions. In 2004, looking at hearing office factors that 
contributed to the increasing backlog, my office found that although 
the number of dispositions had increased--ALJs were processing more 
cases than ever before--the number of incoming appeals was growing even 
faster, leading almost inevitably to longer processing times and an 
increased backlog. And the phenomenon has continued. In 2001, the 
Office of Disability Adjudication and Review's (ODAR) average 
processing time for an appeal was 308 days. Now, despite all of our 
efforts, the average processing time is 505 days.
    Earlier this year, we conducted an audit that focused specifically 
on ALJ productivity. While we recognized then--as we do today--that not 
all of the responsibility for the backlog can be laid at the feet of 
the ALJs, understanding the challenge and seeking a solution is not 
possible without understanding the role of the ALJ in the process.
    We found significant discrepancies in ALJ productivity in that 
audit. We also found, however, that processing delays and increases in 
the appeals backlog were partially attributable to hearing office 
staffing, use of management information, and other issues not directly 
related to the ALJs themselves.
    While we were reporting these hearing office-based findings, the 
Subcommittee requested that we undertake a separate study on the key 
role that the hearing office plays in the efficiency of the disability 
appeals process. Specifically, you asked that we consider ALJ case 
disposition statistics, but also that we examine case processing times, 
the reasons for variances among hearing offices and ALJs, ODAR's 
management of ALJ performance, and SSA's management initiatives aimed 
at reducing the backlog and improving processing time.
    To accomplish this, we conducted the most thorough review we have 
ever undertaken in this area. We visited 49 of ODAR's 141 hearing 
offices across the country. In each of these 49 offices, we interviewed 
the Hearing Office Chief ALJ (HOCALJ), one high--or low-producing ALJ, 
a mid-producing ALJ, the Hearing Office Director, a senior attorney-
advisor, and a senior case technician. We interviewed Judge Cristaudo, 
SSA's Chief ALJ, 9 Regional Chief ALJs, a total of 143 ALJs, and a 
total of 146 hearing office staff.
    We looked at management tools and practices, including disciplinary 
actions taken against ALJs for performance issues, and we studied 37 
initiatives that SSA has undertaken to reduce the backlog. Our 
findings, organized by the specific subject areas set out in your 
request, follow.
ALJ Case Disposition Statistics
    To analyze ALJ case disposition data, we looked at the case 
disposition statistics of all ALJs who issued dispositions during the 
years in question. This included full-time and part-time ALJs, new 
ALJs, and ALJs who may have retired, separated, resigned, or died 
during the year. This also included ALJs with union or management 
duties, of whom fewer cases might be expected, as long as they issued 
at least one disposition. In other words, rather than use the 
traditional government notion of ``full-time equivalents,'' we looked 
at every ALJ who issued even one case disposition in the given year.
    On the other side of the equation, we considered all case 
dispositions, including cases remanded to the appropriate disability 
determination services (DDS) office for further processing or 
consideration of an allowance.
    Using these definitions, we found that the average number of case 
dispositions per year per ALJ had increased by 13 percent between 
fiscal year 2005 and fiscal year 2007. Specifically, the ALJ corps 
averaged 421 case dispositions in 2005, and improved to an average of 
474 case dispositions in 2007. This 2007 average saw 1,155 ALJs issue a 
total of 547,951 dispositions. Discounting approximately the highest 
and lowest five percent of ALJs to eliminate statistical anomalies, the 
number of dispositions issued by the ALJs in our study (which included 
both fully- and partially-available adjudicators) ranged from 101 to 
800 cases. Later in my statement, I address some of the reasons for 
this wide range.
Case Processing Time
    The numbers that matter most to the public have nothing to do with 
ALJ productivity or hearing office practices. Rather, the 
understandable concern of any disability appellant is how long it will 
take SSA to render a decision on his or her appeal.
    Looking at the same period, the average case processing time in 
fiscal year 2005 was 443 days. By fiscal year 2007, the average 
processing time had increased 16 percent, to 512 days. This, despite a 
13 percent improvement in ALJ case disposition numbers. Again 
discounting for statistical anomalies, for ninety percent of the ALJs 
in our study, the average processing time per ALJ ranged from an 
average of 301 to 700 days.
    Understandably, SSA attributes much of the increase in case 
processing time to increases in the numbers of appeals filed and 
limitations on resources necessary to process these appeals. This is 
true, but as you were aware when you requested this review, investment 
in improving this process must be made wisely and carefully. While 
hiring additional ALJs is a necessary component of improvement, that 
alone will not resolve the matter.
    It is also worth noting that of ODAR's 141 hearing offices, 22 of 
them, or 16 percent, had average case processing times that exceeded 
the national average (512 days) by 100 or more days. This suggests that 
both ALJ productivity and hearing office practices play a role in 
processing delays.
Reasons for Variances Among Hearing Offices and ALJs
    We identified eight major factors that contribute to the wide 
variances described above among hearing offices and among ALJs.
Valid and/or Immutable Factors
    As stated earlier, a thorough study required that we look at all 
ALJs that issued dispositions in a given year. This meant that we could 
not take into account--in our overall analysis--ALJs with good reason 
for issuing relatively few dispositions. Looking beyond the initial 
review, however, reveals that in many cases, what appear to be lower-
producing ALJs are not cause for concern.
    We looked again at the 95 ALJs in our study of fiscal year 2007 who 
issued fewer than 200 case dispositions. We found that of these 95, one 
was Judge Nancy Griswold, the Deputy Chief ALJ, who certainly had other 
issues occupying her time. Similarly, five of these 95 ALJs were 
Regional Chief ALJs.
    Another 13 of these 95 ALJs were new to their jobs (and thus had a 
significant learning curve), were part-time employees, or were on 
extended leave during the year. And another 54 of these ALJs either 
retired, separated, resigned, or passed away during fiscal year 2007. 
This left 22 ALJs who produced fewer than 200 dispositions. Ten of 
these 22 ALJs were union officials who, under the collective bargaining 
agreement, had officially authorized union responsibilities. We 
interviewed the ten union officials as part of our study.
    We then interviewed the twelve remaining ALJs, each of whom issued 
between 150 and 200 dispositions during fiscal year 2007. The reasons 
they cited for their disposition numbers are incorporated in our 
report, and in this testimony.
Internal Factors
    Through our interviews, we found that internal factors--
unquantifiable factors internal to each ALJ--were significant 
contributors with respect to disposition productivity. In fact, our 
interviews with Regional Chief ALJs (RCALJ) revealed that work ethic 
and motivation were one of the main factors that contributed to high or 
low productivity. One of these interviews even revealed an ALJ who 
remained unmotivated despite oral and written counseling, a written 
directive, and a reprimand.
    One RCALJ told us ``Some ALJs process fewer cases than expected due 
to a lack of motivation.'' Another stated that ``Some ALJs are not 
motivated to process more cases or are stuck in a time when fewer 
dispositions were expected.''
    Since, however, work ethic and motivation--as well as other 
internal factors--are particular to each ALJ and cannot be quantified, 
our ability to study this factor's precise effect on processing time 
and on the backlog is limited.
DDS Disparities
    We consistently heard from ALJs and hearing office staff that DDS 
disparities were a significant factor with respect to hearing office 
performance and processing times. As one RCALJ stated, ``Poor quality 
cases from the DDS level can cause some ALJs to process fewer cases.''
Staffing
    The support staff in SSA hearing offices conduct initial case 
screening and preparation, maintain the case control system, conduct 
pre-hearing analysis, develop evidence, schedule ALJ hearings, prepare 
notices and decisions, and perform various other functions in support 
of the appeals process. As we recognized both in our February audit and 
in this one, insufficient staffing appears to be a factor in ALJ and 
hearing office performance and case processing times.
    We found that hearing offices with a staff ratio higher than the 
national average of 4.46 staff per ALJ were likely to have higher-
producing ALJs. Specifically, we found that more than half (52 percent) 
of the higher-producing ALJs we interviewed were in offices with staff 
ratios higher than that average, but only 17 percent of the lower-
producing ALJs we interviewed were in hearing offices with above-
average staffing levels. Similarly, 63 percent of the hearing offices 
ranked by ODAR as being in the top half nationwide for productivity had 
a staff ratio higher than 4.46 staff per ALJ, while only 38 percent of 
the hearing offices ranked in the bottom half were staffed above that 
level.
    Our conclusion that staffing was a key factor in hearing office 
productivity was confirmed by the fact that all 48 hearing office 
directors we interviewed stated that staff ratio had a significant 
impact, and hearing office staff in 39 of the 49 offices we visited 
told us that more staff was needed.
    ``Support staff ratios have a significant impact on productivity 
and processing times,'' said one RCALJ. ``Hearing offices often over-
burden the strongest employees which often leads to the best staff 
leaving the office and a demoralization of the office. Further, it is 
difficult to meet timeliness goals with limited staff. If one staff 
person is gone, there is often no backup.''
Hearing Docket
    Typically, ALJs provide hearing office staff with the number of 
hearings the ALJ would like to have scheduled three months in advance 
of the period being scheduled. We found, however, that 55 percent of 
the lower-producing ALJs sometimes did not have as many hearings 
scheduled as they requested, generally due to staffing levels that were 
insufficient to support preparation for that many hearings. Of the ALJs 
who told us this, 39 percent went on to state that this was a regular 
occurrence. Moreover, we learned that in offices where this was a 
problem, most had staff ratios below the national average of 4.46 staff 
per ALJ.
    In contrast, only 23 percent of the higher-producing ALJs told us 
that they regularly had fewer hearings scheduled than they requested, 
though they, too, pointed at insufficient staffing levels as the cause. 
Our interviews with hearing office directors and senior case 
technicians further confirmed this finding.
    Said one low-producing ALJ, ``While hiring more ALJs will help with 
hearing cases, the hearing office needs more trained staff.''
Favorable Rates
    According to our study, higher-producing ALJs issued favorable 
decisions (decisions in which the appellant's initial denial was 
reversed and the claimant was awarded benefits) in 72 percent of their 
dispositions, while lower-producing ALJs had a favorable rate of only 
55 percent. Put another way, 65 percent of the higher-producing ALJs we 
studied had a favorable rate above the national average, while only 31 
percent of the lower-producing ALJs had a favorable rate above the 
average.
    This discrepancy is attributable to on-the-record decisions--cases 
reviewed by an ALJ in which the appellant is found to be eligible for 
benefits without need for a hearing. Higher-producing ALJs were more 
proactive in screening cases for on-the-record decisions, with 65 
percent of them stating that they regularly screened cases for possible 
disposition in this fashion. Only 34 percent of the lower-producing 
ALJs stated that they regularly screened cases for on-the-record 
dispositions.
    As one HOCALJ pointed out, ``If goals are too high the corners get 
cut, and the easiest thing is to grant a case.''
Individual ALJ Preferences
    We found that certain preferences of individual ALJs with respect 
to how cases were processed were indicators of higher or lower 
performance.
Case Preparation and Docketing
    The amount of time spent reviewing a case prior to a hearing was a 
contributor to productivity: higher-producing ALJs spent an hour or 
less preparing a case, while lower-producing ALJs typically spent from 
three to eight hours.
    Case docketing practices was also a factor. Higher-producing ALJs 
requested 10-50 hearings per week, while lower-producing ALJs requested 
between two and 30 hearings. Higher-producing ALJs were also more 
likely than lower-producing ALJs to schedule hearings before office 
staff prepares the file.
Length of Hearings
    The length of hearings proved to be another indicator. Higher-
producing ALJs stated that their hearings generally lasted less than an 
hour, while lower-producing ALJs stated that their hearings lasted from 
30 to 90 minutes. Higher-producing ALJs also reached a decision more 
quickly, having reviewed the file beforehand and taken careful notes 
during the hearing.
Bench Decisions
    Bench decisions--cases in which the ALJ rules in favor of the 
claimant during the hearing--are an indicator of higher ALJ 
performance. Only 14 percent of the lower-producing ALJs we interviewed 
issued bench decisions during fiscal year 2007, while 58 percent of the 
higher-producing ALJs utilized this practice.
Rocket Docket
    By scheduling multiple cases involving unrepresented claimants for 
the same day and time, some hearing offices and ALJs are able to reduce 
their backlogs. Since cases involving unrepresented claimants are often 
dismissed (because the claimant does not appear) or postponed (because 
the claimant appears, only to decide that he or she wants 
representation), the rocket docket allows many hearing requests to be 
moved forward at the same time.
Time Spent Editing Decisions
    The decision-editing process also slowed lower-producing ALJs, with 
41 percent of them stating that they had substantial edits to more than 
half of the decisions prepared by their staff. None of the higher-
producing ALJs we interviewed stated that they had such frequent edits.
Expert Testimony
    In some areas, the ALJs and hearing offices do not always have 
control over factors that can cause delays. For example, under certain 
circumstances, an ALJ is required to obtain the testimony of medical or 
vocational experts, but in most cases, obtaining such expert testimony 
is discretionary. We found that 21 percent of the lower-producing ALJs 
used medical experts in more than half of their hearings, while only 
six percent of the higher producing ALJs fell into this category. 
Similarly, 72 percent of the lower-producing ALJs used vocational 
experts more than half the time, while 32 percent of the higher-
producing ALJs did.
Postponements
    Like the use of experts, postponement can be mandatory, but is more 
often discretionary. In our study, 52 percent of the lower-producing 
ALJs had more than one-fourth of their hearings postponed. Only 32 
percent of the higher-producing ALJs did.
Management of ALJ Productivity
    We looked at the use of ODAR's Case Processing and Management 
System (CPMS), and found that Hearing Office Chief ALJs (HOCALJ) use 
the system to monitor ALJ performance in varying degrees. Most of the 
HOCALJs we interviewed monitored the number of hearings that each ALJ 
in the office scheduled and met with ALJs who were scheduling low 
number of hearings. Five of the HOCALJs we interviewed actually 
approved each ALJ's schedule, and it is worth noting that four of those 
five offices ranked in ODAR's top 30 nationwide.
    We also found, however, that fewer than half of HOCALJs were using 
CPMS to monitor bench decisions or on-the-record dispositions, methods 
described above as indicators of high ALJ productivity. The HOCALJs who 
did not use CPMS to monitor these types of cases stated that doing so 
would intrude upon an ALJ's decision-making process.
    Our study also looked at disciplinary actions taken against ALJs 
for performance issues. Only a few of the HOCALJs we interviewed stated 
that they would make recommendations for disciplinary action against 
ALJs for performance issues like low productivity. Among the reasons 
they cited was that such actions are difficult and time consuming.
    Almost all of the 31 disciplinary actions initiated against 30 ALJs 
from fiscal year 2005 through June of 2008 were for conduct, not 
performance (there are two performance actions before the Merit Systems 
Protection Board), but Regional Chief ALJs we interviewed stated that 
they were beginning to address performance issues more than they had in 
the past. Counseling on performance issues also occurs, but is not 
tracked; the Regional Chief ALJs we interviewed indicated, however, 
that these also pertain mostly to conduct issues, not performance.
Management Issues
    To address productivity, backlog, and processing time issues, the 
Commissioner implemented a four-pronged plan, to be achieved through 37 
initiatives, many directly related to the factors I've discussed today. 
We believe that those that may have the most impact are the following:
Productivity Expectation
    This is the most direct initiative, and one which comports with our 
February 2008 audit on ALJ productivity. The Chief ALJ has requested 
that ALJs issue between 500 and 700 dispositions per year. In our 
February report, we stated that if ALJs were hired, and all ALJs 
completed 500 dispositions annually, the excess backlog would be 
eliminated by 2012. As of April, 49 percent of ALJs nationwide are on 
track to meet the Chief ALJ's goal.
Hiring ALJs and Staff
    In addition to 20 ALJs hired in fiscal year 2007, SSA has hired 
another 189 ALJs in fiscal year 2008. Further, ODAR is filling 230 
staff positions in phases to balance staffing needs in each region. 
During Phase One, 92 immediate hires are being allocated to ODAR 
regional offices; during Phase Two, 138 hires are being allocated for 
distribution to the regions to backfill vacancies and balance staff 
ratios.
New Automation: Electronic Folder
    In fiscal year 2007, ODAR transitioned from paper to electronic 
case folders (about 73 percent of folders were electronic as of March 
2008). It was anticipated that this transition would bring with it a 
learning curve and period of adjustment, but some ALJs continue to 
assert that it is easier to use paper folders, and that the electronic 
folder slows the process. It is too early to assess the impact of the 
electronic folder on case processing times.
New Automation: ePulling
    ePulling refers to customized software that is designed to 
facilitate the process of preparing cases for hearing. ePulling is 
underway on a pilot basis, with national rollout scheduled for fiscal 
year 2009. ODAR has estimated that it takes 3.5 hours to manually 
prepare an electronic folder for hearing, but that with ePulling, it 
will take only two hours (though additional staff time will still be 
needed after the ePulling process). My office has begun an audit on the 
ePulling pilot, and we will be happy to provide you with our findings 
when that work is complete.
DDS Informal Remand Project
    Using profiles designed by SSA's Office of Quality Performance, 
certain paper cases are sent back to DDS offices for a determination of 
whether a favorable decision can be issued without a hearing. The DDS 
staff, using overtime, reviews the case and if a fully favorable ruling 
can be issued, returns the case to SSA for processing and payment. If a 
favorable ruling cannot be issued, the DDS prepares the case for a 
priority hearing and returns it to the hearing office.
    The results of this initiative are still being reviewed, and use of 
the same process for electronic files is also getting underway.
Quality Assurance
    As part of the Commissioner's plan, SSA intends to develop and 
implement a quality assurance program for the hearing process. The 
program will be rolled out in three phases. First will come a review of 
attorney adjudicator decisions; second, a review of decision drafts; 
and third, a review of cases with a hearing scheduled but not yet held. 
Reports will be issued and recommendations made based on SSA's 
findings.
    To date, SSA has reviewed 111 senior attorney adjudicator decisions 
and found them to be 95 percent accurate.
Conclusion
    This statement summarizes the information presented in our 
Congressional Response Report, Administrative Law Judge and Hearing 
Office Performance. I believe the report, which is available on our 
website, provides Congress and SSA with a wide range of findings that 
may prove useful as we continue to work to ensure that disability 
applicants receive timely and accurate decisions on their claims. We 
have other work, both planned and underway, that focuses on various 
aspects of this challenge, and will result in recommendations to SSA 
for improvement.
    Clearly, the hiring of additional ALJs and hearing office staff is 
the single most important step forward that can be--and now has been--
taken. The prudent use of those resources, however, requires studies 
such as this, initiatives such as those put forward by the 
Commissioner, the support of the Chief ALJ, and the oversight of this 
Subcommittee. I thank you all for your interest, your concern, and your 
dedication. I would be happy to answer any questions.

                                 

    Chairman MCNULTY. Thank you very much. I would just advise 
those present that we have been joined by Congressman Sander 
Levin, who is a senior Member of the Committee on Ways and 
Means, a Member of this Subcommittee, and the former Ranking 
Member of this Subcommittee, and an expert on Social Security 
generally, and we collectively want to extend our condolences 
to him on the passing of Mrs. Levin.
    We will now go to Ms. Zelenske.

STATEMENT OF ETHEL ZELENSKE, CO-CHAIR, CONSORTIUM FOR CITIZENS 
          WITH DISABILITIES SOCIAL SECURITY TASK FORCE

    Ms. ZELENSKE. Chairman MCNULTY, Ranking Member Johnson and 
Members of the Subcommittee, thank you for inviting me to 
testify today. I am here in my capacity as co-chair of the CCD 
Task Force on Social Security.
    First, let me take this opportunity to join you in mourning 
the loss of your colleague, Representative Stephanie Tubbs 
Jones. She was a very strong advocate on behalf of vulnerable 
populations, and we will miss her very much.
    We are all too familiar with the intolerably long 
processing times for disability claims and their disastrous 
impact on thousands of individuals waiting for decisions. For 
many, their lives have come unraveled and sadly, some have 
died.
    We believe that the main reason for the growing backlog is 
the persistent under-funding of SSA over the last decade. This 
has had a significant impact on hearing office performance 
resulting in too few ALJs and support staff.
    Today's witnesses will discuss the productivity of ALJs. 
However, the numbers alone do not tell the whole story. They 
should not be the impetus for lessening the protections ALJs 
have under the Administrative Procedure Act, given the critical 
role that ALJs have played in protecting the rights of 
claimants.
    A claimant's right to a hearing before an ALJ is central to 
the fairness of the SSA adjudication process. ALJs are 
impartial and free from Agency coercion or influence.
    In the eighties, the disability claims process was in 
turmoil for reasons very different from the problems we face 
today. During that period, ALJs confronted Agency policies they 
considered inconsistent with the Social Security Act and due 
process, frequently reversing denials based on these policies.
    The most striking example involved the termination of 
benefits to nearly 500,000 severely disabled beneficiaries, and 
they suffered great hardships upon losing their benefits.
    As a Legal Services attorney at the time, I represented 
numerous clients in their appeals. Many ALJs agreed that the 
terminations were improper and restored the benefits that were 
so vital to my clients' well-being.
    Another example from that period involved the clandestine 
policy to deny and terminate benefits to tens of thousands of 
individuals with serious mental illness, who did not meet the 
then-outdated Listings of Impairments.
    In cases I handled, many clients had benefits awarded or 
continued because the ALJs found the policy inconsistent with 
the law.
    SSA no longer follows these policies, but these examples 
are a reminder of why it is critical to ensure that ALJs 
continue to be independent as guaranteed by the Administrative 
Procedure Act.
    We urge extreme caution regarding any proposals to amend 
the Administrative Procedure Act that will lessen its 
protections for ALJs.
    Turning to the recent Inspector General report on hearing 
office performance, while it focuses on ALJ productivity, it 
also discusses factors outside the control of ALJs that affect 
performance.
    My written statement discusses these factors in more 
detail, but we believe that the most critical factor is 
insufficient hearing office staff to handle the workload.
    We agree with the ALJs who said that a lack of support 
staff to prepare case files is the main reason that hearings 
are not timely scheduled. The delay just to schedule a hearing 
can be months or even years, and many hearing offices will not 
schedule a hearing until a case file is ready.
    Sufficient staff is needed to prepare the files for 
hearing, and without the staff, delays will ensue.
    A related problem is the failure to ensure that submitted 
evidence is retrieved and placed in the claimant's file. 
Claimants' representatives often find that evidence that has 
been submitted weeks if not months earlier is not in a 
claimant's file at the hearing. This delays the case both 
during and after the hearing while the ALJ spends time 
determining what evidence should be in the claimant's file.
    Finally, I would like to take this opportunity to repeat 
our support for many of the Commissioner's initiatives to 
reduce the disability claims backlog. Overall, these 
initiatives, like the senior attorney program, informal remands 
to the state agencies, and the use of video hearings, are not 
controversial and we generally support them.
    However, while these initiatives can help to address the 
backlog, we believe that hearing office performance cannot 
improve significantly until SSA is provided with the funds to 
adequately staff the Agency.
    The backlog has not reached record numbers because of low 
productivity of a few ALJs. It would be overreaching to amend 
the Administrative Procedure Act for that reason, particularly 
because of the impact on claimants.
    Thank you. I will be happy to answer any questions you 
have.
    [The prepared statement of Ethel Zelenske follows:]
  Statement of Ethel Zelenske, Co-Chair, Consortium for Citizens with 
                Disabilities Social Security Task Force
    Chairman McNulty, Ranking Member Johnson, and Members of the 
Subcommittee, thank you for inviting me to testify at today's hearing 
on the Performance of Social Security Administration Appeals Hearing 
Offices.
    I am the Director of Government Affairs for the National 
Organization of Social Security Claimants' Representatives (NOSSCR). I 
also am a Co-Chair of the Consortium for Citizens with Disabilities 
(CCD) Social Security Task Force. CCD is a working coalition of 
national consumer, advocacy, provider, and professional organizations 
working together with and on behalf of the 54 million children and 
adults with disabilities and their families living in the United 
States. The CCD Social Security Task Force focuses on disability policy 
issues in the Title II disability programs and the Title XVI 
Supplemental Security Income (SSI) program.
    Prior to my work with NOSSCR, I was an attorney for fourteen years 
at the Legal Aid Bureau, Inc. in Baltimore, Maryland, where I 
represented hundreds of clients in Social Security and SSI disability 
cases at all administrative levels and in the federal courts.
    First, let me take this opportunity to join you in mourning the 
loss of your colleague, Rep. Stephanie Tubbs Jones. From observing her 
time on this Subcommittee, it was apparent that Rep. Tubbs Jones was a 
strong advocate on behalf of vulnerable populations, including 
individuals with disabilities who find it necessary to file claims for 
disability benefits. We will miss her very much.
    As was Rep. Tubbs Jones, all of the Members of this Subcommittee 
have been very concerned about the intolerable processing times for 
disability claims. As the backlog in decisions on disability claims 
continues to grow, people with severe disabilities have been bearing 
the brunt of insufficient funding for the Social Security 
Administration's (SSA) administrative budget. Behind the numbers are 
individuals with disabilities whose lives have unraveled while waiting 
for decisions--families are torn apart; homes are lost; medical 
conditions deteriorate; once stable financial security crumbles; and 
many individuals die. Numerous recent media reports across the country 
have documented the suffering experienced by these individuals. Access 
to other key services, such as replacing a lost check or promptly 
recording earnings, also has diminished. Despite dramatically increased 
workloads, staffing levels throughout the agency are at the lowest 
level since 1972.
    The primary reason for the continued and growing disability claims 
backlogs is that SSA has not received adequate funds for its management 
costs. Although Commissioner Astrue has made reduction and elimination 
of the disability claims backlog one of his top priorities, without 
adequate appropriations, the situation will deteriorate even more. As 
discussed below, the persistent under-funding of the agency has had a 
significant impact on the performance and productivity of SSA hearing 
offices.
    Recent Congressional efforts to provide SSA with adequate funding 
for its administrative budget are encouraging. The final appropriation 
for fiscal year 2008 was $148 million above the President's request and 
was the first time in years that the agency has received at least the 
President's request. This amount allows the Commissioner to hire more 
than 180 new Administrative Law Judges (ALJs) and some additional 
support staff. However, sufficient funding to maintain an adequate 
number of ALJs and support staff is necessary in FY 2009 and future 
years to continue reducing the backlog. Statistics through August 2008 
show that the number of appeals received and the average processing 
time continue to increase. We hope that this disturbing trend will 
reverse once the new ALJs are handling a full caseload later in the 
next fiscal year. However, if SSA funding is subject to a Continuing 
Resolution for part of fiscal year 2009, as looks likely, it will be a 
serious setback to SSA's efforts to reduce the backlog.
    While the FY 2008 appropriation has allowed the agency to hire some 
new staff and work to reduce processing times, it is far from adequate 
to fully restore the agency's ability to carry out its mandated 
services. Between FY 2000 and 2007, Congress appropriated less than 
both the Commissioner of Social Security and the President requested, 
resulting in a total administrative budget shortfall of more than $4 
billion. The dramatic increase in the disability claims backlog 
coincides with this period of under-funding the agency, leaving people 
with severe disabilities to wait years to receive the benefits to which 
they are entitled.
I. THE IMPORTANCE OF MAINTAINING ALJ DECISIONAL INDEPENDENCE
    A claimant's right to a de novo hearing before an ALJ is central to 
the fairness of the SSA adjudication process. This right guarantees 
that individuals with disabilities have a full and fair administrative 
hearing by an independent decision-maker who provides impartial fact-
finding and adjudication, free from any agency coercion or influence. 
The ALJ questions and takes testimony from the claimant and other 
witnesses, and considers and weighs the evidence, all in accordance 
with relevant law and agency policy. For claimants, a fundamental 
principle of this right is the opportunity to present new evidence to 
the ALJ, testify in person before the ALJ, and receive a decision based 
on all available evidence.
    ALJs are appointed under the Administrative Procedure Act (APA), 
which guarantees their independence from undue agency influence, as 
demonstrated by the following requirements:

      The Office of Personnel Management (OPM)--not SSA--
conducts the competitive ALJ selection process. While SSA ultimately 
appoints ALJs, it can only do so from a list of eligible candidates 
created by OPM.
      ALJs can be removed only for ``good cause.''
      Most disciplinary actions may be taken only according to 
standards and procedures established by the Merit Systems Protection 
Board (MSPB)
      The pay classification system for ALJs is set by OPM, not 
by SSA, and is separate from the agency's performance rating process.

    The critical role that ALJ decisional independence plays in 
protecting the rights of claimants cannot be underestimated. In the 
early to mid-1980s, the SSA disability claims adjudication process was 
in turmoil, for reasons very different than the problems we face today. 
In the most detrimental example for beneficiaries, the agency had 
changed its policy regarding the cessation of disability 
determinations. The result was that between 1981 and 1984, nearly 
500,000 severely disabled beneficiaries who continued to meet the 
statutory eligibility requirements had their benefits terminated. Like 
my many colleagues nationwide, I represented numerous clients in 
appeals of the agency's decision to terminate their benefits because 
their disabilities had allegedly ``ceased.'' Many ALJs agreed with our 
arguments that the agency's policy was inconsistent with the Social 
Security Act and due process and reversed the termination of benefits. 
Thus, beneficiaries were able to retain the cash and medical benefits 
vital to their well-being.
    There are other examples from this period of ALJs confronting 
agency policies they considered inconsistent with the Social Security 
Act, including a clandestine policy to deny and terminate benefits to 
tens of thousands of seriously mentally ill claimants who did not meet 
the then-outdated Listings of Impairments. Also at that time, the 
agency had a policy of non-acquiescence, i.e., not following 
precedential decisions issued by the U.S. Courts of Appeals in 
subsequent individual cases. I also represented clients in many cases 
involving these issues and ALJs frequently reversed the lower level 
administrative decisions because the policies were not consistent with 
the Social Security Act and precedential case law.
    During the same period in the mid-1980s, SSA was pressuring ALJs to 
reduce the rate of favorable decisions. ``Bellmon Review'' involved SSA 
targeting the performance of ALJs that it considered to have favorable 
decision rates that were too ``high'' and imposing quotas for 
allowances and denials. ALJs challenged the program in litigation and 
the agency eventually abandoned the program.\1\
---------------------------------------------------------------------------
    \1\ See, e.g., Association of Administrative Law Judges v. Heckler, 
594 F. Supp. 1132 (D.D.C. 1984).
---------------------------------------------------------------------------
    SSA no longer follows these policies. However, the importance of 
maintaining the APA-protected ALJs in the SSA adjudication process was 
brought to light earlier this year regarding actions at the U.S. 
Department of Justice (DOJ). Some federal agencies use non-ALJs as 
adjudicators and their independence, as a general rule, is less 
protected than ALJs. One example of non-ALJ adjudicators is Immigration 
Judges (IJs) in the DOJ. The process for selecting IJs provides a stark 
contrast to that for ALJs, since, as noted in a recent report by the 
DOJ Office of Inspector General, the Attorney General of the United 
States has the authority to manage the selection process and appoint 
IJs.\2\ The report documented an investigation by the DOJ Office of the 
Inspector General and the DOJ Office of Professional Responsibility 
regarding possible political influence in the hiring of IJs. The 
Offices found that certain DOJ officials ``violated federal law and 
Department [of Justice] policy--by considering political and 
ideological affiliations in soliciting and selecting IJs, which are 
career positions protected by the civil service laws.'' \3\
---------------------------------------------------------------------------
    \2\ An Investigation of Allegations of Politicized Hiring by Monica 
Goodling and Other Staff in the Office of the Attorney General (July 
28, 2008), p. 71. Available at http://www.usdoj.gov/oig/special/s0807/
final.pdf.
    \3\ Id. at 137.
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II. FACTORS THAT AFFECT HEARING OFFICE PERFORMANCE
    Merely looking at numbers regarding productivity may not 
necessarily tell the entire story. We cannot condone low productivity 
that is completely within the control of individual ALJs. Nevertheless, 
there are a number of factors outside their control that can 
significantly affect performance. The recent report on hearing office 
performance by the SSA Office of Inspector General (OIG), Congressional 
Response Report: Administrative Law Judge and Hearing Office 
Performance (OIG Report),\4\ requested by Chairman McNulty and Ranking 
Member Johnson, discusses the impact of these factors. The OIG's 
findings are consistent with concerns reported to us by claimants' 
representatives.
---------------------------------------------------------------------------
    \4\ No. A-07-08-28094 (Aug. 2008). The report is available at 
www.ssa.gov/oig/ADOBEPDF/A-07-08-28094.pdf.
---------------------------------------------------------------------------
A. Staffing Shortages Are the Most Critical Factor Affecting Hearing 
        Office Performance
    Over the last decade, concurrent with the marked increase in the 
disability claims backlog, claimants' representatives 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 1998 and 2006. In FY 
1998, there were 1,087 ALJs available to conduct hearings. This number 
dropped to 1,018 in FY 2006, while the number of pending cases more 
than doubled.\5\
---------------------------------------------------------------------------
    \5\ Social Security Disability: Better Planning, Management, and 
Evaluation Could Help Address Backlogs, GAO-08-40 (Dec. 2007)(``GAO 
Report''), p. 31.
---------------------------------------------------------------------------
    Whether there enough ALJs may not even be the primary staffing 
issue in hearing offices. According to the Government Accountability 
Office (GAO): ``By the close of fiscal year 2006, SSA saw the highest 
level of backlogged claims and the lowest ratio of support staff over 
this period [FY 1997 to FY 2006].'' \6\ Productivity is not related 
solely to the number of ALJs, but also to the number of support staff. 
In 2006, the actual ratio of support staff to ALJs was 4.12. SSA senior 
managers and ALJs recommend a staffing ratio of 5.25.\7\ The actual 
ratio represented a significant decrease, about 25 percent, from the 
recommended level, at a time when the number of pending cases had 
increased dramatically. It is also important to note that the number of 
pending cases older than 270 days was much lower when the support staff 
to ALJ ratio was higher (FY 1999 to FY 2001).\8\
---------------------------------------------------------------------------
    \6\ GAO Report, p. 32.
    \7\ Id.
    \8\ Id.
---------------------------------------------------------------------------
    The OIG's findings are consistent with those of the GAO: ``[I]t 
appears that staff ratios may be one factor that impacts ALJ and 
hearing office productivity and processing times.'' \9\ The OIG found 
that ALJs with higher disposition levels were more likely to be in 
hearing offices with staffing ratios above the FY 2007 national average 
of 4.46 staff members per ALJ. The OIG found that hearing offices 
ranked in the top half for productivity were ``much more likely to 
exceed the national average staff ratio than hearing offices ranked in 
the lower half for productivity.'' \10\
---------------------------------------------------------------------------
    \9\ OIG Report, p. 5
    \10\ Id.
---------------------------------------------------------------------------
    An inadequate number of support staff is not the only issue to 
consider. In addition to having enough staff, the quality and 
composition of staff also may impact productivity. As the OIG points 
out: ``[A]n office may have an ideal staff ratio, but if it does not 
have enough writers to prepare decisions or if the writers do not 
prepare quality decisions, the hearing office's productivity may be 
impacted negatively.'' \11\
---------------------------------------------------------------------------
    \11\ OIG Report, p. 6.
---------------------------------------------------------------------------
    An ALJ working with poor decision writers should not be faulted for 
maintaining her/his level of expectation for quality decisions. The 
need for adequately written and supported decisions should not be 
underestimated. I review many decisions by the Appeals Council and the 
federal courts and a significant percentage of remand orders are based 
on poorly written ALJ decisions that do not provide sufficient 
rationales explaining their conclusions.
B. The Impact of Staffing Shortages on Preparing Cases for Hearing
    The shortage of staffing in hearing offices also contributes to 
other factors affecting productivity. For instance, the OIG found that 
one reason why some ALJs have lower disposition rates may be due to 
fewer hearings scheduled than requested by the ALJ. ALJs told the OIG 
that ``the main reason not enough hearings were scheduled was because 
of insufficient support staff to prepare cases. Our [the OIG's] 
analysis of staff ratios confirmed the lack of support staff may have 
impacted the ability of these--hearing offices to schedule as many 
hearings as the ALJs requested. '' \12\
---------------------------------------------------------------------------
    \12\ OIG Report, p. 7.
---------------------------------------------------------------------------
    Claimants' representatives across the country have similar concerns 
about preparation of cases for hearing. Some hearing offices do not 
schedule hearings until a case is ``pulled,'' i.e., evidence is 
identified and placed on the Exhibit List for the record.
    The most significant problem for representatives is hearing office 
failure to ensure that submitted evidence is placed in the claimant's 
file. In electronic folder cases, evidence is submitted electronically 
using a unique barcode, either through a dedicated fax line which scans 
the evidence or by uploading to the secure SSA website. Representatives 
are finding that evidence they have submitted, often weeks if not 
months before the hearing, does not appear in the exhibited file, even 
at the hearing. We believe that the primary reason this happens is 
that, due to a shortage of staff, the submitted evidence is not 
retrieved and associated with the exhibited file.
    Another recent OIG report buttresses the concerns of ALJs and 
representatives. The June 2008 report found three ``bottlenecks'' in 
the hearing process, all occurring before the hearing is held: (1) 
Master Docket (claim information input to the case processing 
management system); (2) ALJ Review Pre-Hearing; and (3) Ready to 
Schedule (claim work-up and development completed).\13\
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    \13\ Quick Response Evaluation: Timeliness of Medical Evidence at 
Hearing Offices No. A-05-08-28106 (June 13, 2008), p. 6, n. 19. 
Available at http://www.ssa.gov/oig/ADOBEPDF/A-05-08-28106.pdf. This 
report concluded that data from the hearing level case processing 
management system did not indicate that the late submission of medical 
evidence was a significant reason for postponement of cases.
---------------------------------------------------------------------------
    Scheduling cases for hearing. The OIG Report notes that SSA plans 
to issue proposed regulations ``that SSA, rather than the individual 
ALJ, will set the time and place for a hearing.'' \14\ We do not know 
what SSA intends to propose, but we would strongly object to any change 
that would interfere with an ALJ's decisional independence as 
guaranteed by the APA. At a minimum, we recommend that the procedures 
proposed by SSA include a requirement that the claimant 
representative's schedule is taken into account when scheduling 
hearings. Given the long delays, representatives do not want to be put 
in a position where they have to request a postponement due to a 
scheduling conflict. This can be avoided by contacting the 
representative, as some hearing offices already do. Currently, there is 
much variation among hearing offices whether they contact 
representatives prior to scheduling a hearing.
---------------------------------------------------------------------------
    \14\ OIG Report, page 7, n. 25.
---------------------------------------------------------------------------
C. The Impact of Staffing Shortages on Screening Cases for On the 
        Record Decisions
    According to the OIG Report, ALJs with higher productivity tend to 
issue more ``on the record'' (OTR) decisions. OTR decisions are fully 
favorable to the claimant and are issued without the need for a 
hearing. As a result, it can take considerably less time for 
disposition of the claim. The OIG found that for higher producing ALJs, 
the average OTR rate was 35%, while for lower producing ALJs the OTR 
rate was 11%.\15\
---------------------------------------------------------------------------
    \15\ OIG Report, p. 8.
---------------------------------------------------------------------------
    The key factor, according to the OIG, seems to be that the ALJs 
with higher disposition rates are ``more proactive in screening cases 
for OTR decisions than were lower producing ALJs.'' \16\ We would agree 
with this assessment. In the April 23, 2008, testimony presented on 
behalf of the CCD Social Security Task Force,\17\ we presented a number 
of stories about the hardships endured by claimants while waiting to 
have a hearing before the ALJ and to receive a decision. In many of 
these cases, the representative wrote letters to the ALJ, often more 
than one time, requesting that a decision in the case be expedited due 
to the claimant's ``dire need'' and that an OTR decision be issued.
---------------------------------------------------------------------------
    \16\ OIG Report, p. 8-9.
    \17\ Testimony by Marty Ford, Co-Chair, CCD Social Security Task 
Force, Hearing on ``Clearing the Disability Backlog--Giving the Social 
Security Administration the Resources It Needs to Provide the Benefits 
Workers Have Earned,'' House Committee on Ways and Means, April 23, 
2008. Available at http://waysandmeans.house.gov/
hearings.asp?formmode=printfriendly&id
=6874.
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    Representatives report that some ALJs will not issue OTR decisions 
and insist on having an in-person hearing. We believe that this is a 
small minority of ALJs and, at any rate, they have the discretion to do 
so. However, the bigger problem is that the ALJs in some hearing 
offices simply are not made aware that a request for an OTR decision 
was submitted by the claimant's representative and there is no response 
to the request. At the hearing, ALJs often learn for the first time 
that the request was submitted. While this may be due to lack of staff, 
there also is no uniform procedure to bring these requests to the 
attention of the ALJs. We have recommended to SSA that it establish 
some type of notice or acknowledgment that the request was received and 
is under review by the ALJ.
D. The Impact of DDS Development on Productivity
    The OIG found that ``ALJs and Hearing Office staff at all levels 
stated that Disability Determination Services (DDS) allowance rates and 
the quality of case development from DDSs can impact ALJ and hearing 
office productivity and processing times.'' \18\ Productivity is 
affected if ALJs need to spend more time reviewing cases prior to the 
hearing due to the limited development of evidence by the DDS.
---------------------------------------------------------------------------
    \18\ OIG Report, p. 5.
---------------------------------------------------------------------------
    We agree that the lack of development by the DDSs is a significant 
factor contributing to the backlog at the hearing level. Improvements 
at the front end of the process can have a significant beneficial 
impact on preventing the backlog and delays later in the appeals 
process. Developing the record so that relevant evidence from all 
sources can be considered is fundamental to full and fair adjudication 
of claims. The adjudicator needs to review a wide variety of evidence 
in a typical case to make the necessary findings and determinations 
under the SSA disability criteria.
    There are a number of reasons why the DDSs do not develop cases 
adequately, including: (1) They do not request specific information 
tailored to the SSA disability criteria; (2) They do not explain to 
claimants or providers what evidence is important, necessary, and 
relevant for adjudication of the claim; (3) Medical providers delay or 
refuse to submit evidence and cases must then be decided by the DDS, 
based on an incomplete file, in order to meet targeted DDS processing 
timelines; and (4) Reimbursement rates for providers are inadequate.
    Claimants' representatives are often able to ensure that the claim 
is properly developed. Based on the experiences and practical 
techniques of representatives, we have a number of recommendations that 
we believe could improve the development process at the DDS level:

      Provide more assistance to claimants at the application 
level.
      Require that DDSs obtain necessary and relevant evidence.
      Increase reimbursement rates for providers.
      Provide better explanations to medical providers.
      Provide more training and guidance to DDS adjudicators to 
avoid erroneous application of existing SSA policy.
      Improve use of the existing methods of expediting 
disability determinations such as Quick Disability Determinations, 
Presumptive Disability in SSI cases, and terminal illness (``TERI'') 
cases.
      Improve the quality of consultative examinations to avoid 
inappropriate referrals, short perfunctory examinations, and 
examinations conducted in languages other than the applicant's.
III. SSA INITIATIVES TO IMPROVE HEARING OFFICE PERFORMANCE
    Money alone will not solve SSA's crisis in meeting its 
responsibilities. Commissioner Astrue is committed to finding new ways 
to work better and more efficiently. CCD has numerous suggestions for 
improving the disability claims process for people with disabilities. 
Many of these recommendations have already been initiated by SSA.\19\ 
We believe that these recommendations and agency initiatives, which 
overall are not controversial and which we generally support, can go a 
long way towards reducing, and eventually eliminating, the disability 
claims backlog.
---------------------------------------------------------------------------
    \19\ Commissioner Astrue announced a number of initiatives to 
eliminate the SSA hearings backlog at a Senate Finance Committee 
hearing on May 23, 2007. The 18-page summary of his recommendations is 
available at www.senate.gov/finance/sitepages/hearing052307.htm. An 
update on the status of the recommendations/initiatives is the subject 
of the Plan to Eliminate the Hearing Backlog and Prevent Its 
Recurrence: Semiannual Report, Fiscal Year 2008, SSA Office of 
Disability Adjudication and Review (``ODAR Report''). The OIG Report 
also provides an update of the initiatives in Appendix H.
---------------------------------------------------------------------------
Caution Regarding the Search for Efficiencies
    While we generally support the goal of achieving increased 
efficiency throughout the adjudicatory process, we caution that limits 
must be placed on the goal of administrative efficiency for 
efficiency's sake alone. The purposes of the Social Security and SSI 
programs are to provide cash benefits to those who need them and have 
earned them and who meet the eligibility criteria. While there may be 
ways to improve the decision-making process from the perspective of the 
adjudicators, the bottom line evaluation must be how the process 
affects the very claimants and beneficiaries for whom the system 
exists.
    People who find they cannot work at a sustained and substantial 
level are faced with a myriad of personal, family, and financial 
circumstances that will have an impact on how well or efficiently they 
can maneuver the complex system for determining eligibility. Many 
claimants will not be successful in addressing all of SSA's 
requirements for proving eligibility until they reach a point where 
they request the assistance of an experienced representative. Many face 
educational barriers and/or significant barriers inherent in the 
disability itself that prevent them from understanding their role in 
the adjudicatory process and from efficiently and effectively assisting 
in gathering evidence. Still others are faced with having no ``medical 
home'' to call upon for assistance in submitting evidence, given their 
lack of health insurance over the course of many years. Many are 
experiencing extreme hardship from the loss of earned income, often 
living through the break-up of their family and/or becoming homeless, 
with few resources--financial, emotional, or otherwise--to rely upon. 
Still others experience all of the above limits on their abilities to 
participate effectively in the process.
    We believe that the critical measure for assessing initiatives for 
achieving administrative efficiencies must be the potential impact on 
claimants and beneficiaries. Proposals for increasing administrative 
efficiencies must bend to the realities of claimants' lives and accept 
that people face innumerable obstacles at the time they apply for 
disability benefits and beyond. SSA must continue, and improve, its 
established role in ensuring that a claim is fully developed before a 
decision is made and must ensure that its rules reflect this 
administrative responsibility.
A. Technological Improvements
    Commissioner Astrue has made a strong commitment to improve and 
expand the technology used in the disability determination process. CCD 
generally supports these efforts to improve the disability claims 
process, so long as they do not infringe on claimants' rights. Some of 
the technological improvements that we believe can help reduce the 
backlog include the following:

    1. The electronic disability folder. The initiative to process 
disability claims electronically has the prospect of significantly 
reducing delays by eliminating lost files, reducing the time that files 
spend in transit, and preventing misfiled evidence. The electronic 
folder should reduce delays caused by the moving and handing-off of 
folders, allowing for immediate access by different components of SSA 
or the DDS.
    2. Electronic Records Express (ERE). ERE is an initiative to 
increase the use of electronic options for submitting records to the 
electronic folder for disability claims. Registered claimant 
representatives are able to submit evidence electronically through the 
SSA secure website or to a dedicated fax number using a unique barcode 
assigned to the claim.
    As discussed above, while this initiative holds great promise, 
significant problems with the current process exist. In many cases, all 
of the medical records submitted by the representative do not find 
their way into the exhibited list of evidence used at the hearing. This 
can cause significant delay during and after the hearing, which affects 
productivity because the hearing is longer than it needs to be, while 
the representative and ALJ attempt to determine what evidence is 
missing. If the evidence needs to be re-submitted after the hearing, it 
can delay the issuance of a decision by the ALJ.
    3. Use of video hearings. Video hearings allow ALJs to conduct 
hearings without being at the same geographical site as the claimant 
and representative and have the potential to reduce processing times 
and increase productivity. We support the use of video teleconference 
hearings so long as the right to a full and fair hearing is adequately 
protected; the quality of video teleconference hearings is assured; and 
the claimant retains the absolute right to have an in-person hearing as 
provided under current regulations.\20\
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    \20\ 20 C.F.R. Sec. Sec. 404.936 and 416.1436.
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B. Other Hearing Level Initiatives
    1. The Senior Attorney Program. In the 1990s, senior staff 
attorneys in hearing offices were given the authority to issue fully 
favorable decisions in cases that could be decided without a hearing 
(i.e. ``on the record''). While the Senior Attorney Program existed, it 
helped to reduce the backlog by issuing approximately 200,000 
decisions. We are pleased that Commissioner Astrue has decided to 
reinstate the program for at least the next two years \21\ and has 
proceeded with implementation. We believe that this initiative will 
help to reduce the backlog of cases at the hearing level. As of April 
2008, there have been more than 12,000 decisions issued by Senior 
Attorneys.\22\
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    \21\ The interim final rule reinstating the program was published 
in August 2007 and became effective on October 9, 2007. 72 Fed. Reg. 
44763 (Aug. 9, 2007). The final rule was published at 73 Fed. Reg. 
11349 (Mar. 3, 2008).
    \22\ OIG Report, p. H-1.
---------------------------------------------------------------------------
    2. Informal remands to DDSs.  Under this initiative, SSA screens 
pending hearing level cases, according to a profile, and remands the 
cases to the DDSs for possible favorable decisions. Through April 2008, 
the DDSs have reversed their prior decisions and allowed about 33% of 
the remanded cases,\23\ with the remainder returned to hearing offices 
for a hearing and decision. Claimants do not lose their place in the 
queue if the remanded case is sent back to the hearing office.
---------------------------------------------------------------------------
    \23\ OIG Report, p. H-2.
---------------------------------------------------------------------------
    Generally, representatives have had favorable results with these 
cases. However, the procedures used by DDSs to gather updated medical 
information and to contact authorized representatives have not been 
uniform and vary from state to state. Some representatives report that 
they are not notified either by the hearing office or the DDS that a 
remand has taken place so that they can assist with development of 
evidence. Also, some DDSs contact claimants directly, even when a 
signed Appointment of Representative form is in the file. We also have 
received reports that representatives have difficulty reaching the DDS 
examiners in order to assist with evidence development.
    3. Interregional transfers. SSA is transferring cases from hearing 
offices with large backlogs to those offices with a lower number of 
pending cases. The transferred cases are usually held by video hearing, 
although some ALJs travel to the office transferring cases. We have 
heard from representatives that claimants in the hearing office to 
which cases are transferred have problems getting hearings scheduled, 
with the transferred cases given priority. As a result, representatives 
have great difficulty explaining to their clients why their hearings 
are delayed due to cases transferred from another part of the country. 
The local clients are often in desperate circumstances, especially if 
they live in cities with a high cost of living.
    Representatives also report significant problems with the 
submission of evidence and contacting the hearing office to which cases 
are transferred, especially if there is a three-hour time difference. 
For example, California hearing offices often return phone calls late 
in the afternoon Pacific Time but in the evening Eastern Time and do 
not seem to take into consideration the time difference. The 
difficulties contacting the hearing office become quite pronounced when 
there are problems with ensuring that submitted evidence is in the 
exhibited file and before the ALJ at the hearing
    4. Findings Integrated Templates (FIT). FIT is used for ALJ 
decisions and integrates the ALJ's findings of fact into the body of 
the decision. While the FIT does not dictate the ultimate decision, it 
requires the ALJ to follow a series of templates to support the 
ultimate decision. Representatives can use the FIT template, which is 
available on the SSA website, to draft proposed favorable decisions. 
The draft proposed decision is then submitted to the ALJ, similar to 
attorneys drafting proposed orders in court, which assists the ALJ in 
making a speedier decision. The use of FIT should result in better 
written decisions with supported rationales, leading to fewer remands 
by the Appeals Council and the federal courts.
CONCLUSION
    Delays in decision-making on eligibility for disability programs 
can have devastating effects on people already struggling with 
difficult situations. We believe that staffing is the key factor 
affecting hearing office performance. On behalf of people with 
disabilities, it is critical that SSA be given substantial and adequate 
funding to make disability decisions in a timely manner and to carry 
out its other mandated workloads. We appreciate your continued 
oversight of the administration of the Social Security programs and the 
manner in which those programs meet the needs of people with 
disabilities.
    Thank you for the opportunity to testify today. I would be happy to 
answer questions.
ON BEHALF OF:
    American Association on Intellectual and Developmental Disabilities
    American Council of the Blind
    American Network of Community Options and Resources
    Bazelon Center for Mental Health Law
    Council of State Administrators of Vocational Rehabilitation
    Easter Seals, Inc.
    Epilepsy Foundation
    National Alliance on Mental Illness
    National Association of Disability Representatives
    National Disability Rights Network
    National Organization of Social Security Claimants' Representatives
    Paralyzed Veterans of America
    Research Institute for Independent Living
    The Arc of the United States
    Title II Community AIDS National Network
    United Cerebral Palsy
    United Spinal Association

                                 

    Chairman MCNULTY. Thank you very much.
    We will now go to Ms. Meinhardt.

 STATEMENT OF KATHY MEINHARDT, PRINCIPAL EXECUTIVE OFFICER FOR 
  FEDERAL MANAGERS ASSOCIATION, CHAPTER 275, SOCIAL SECURITY 
OFFICE OF DISABILITY ADJUDICATION AND REVIEW, FEDERAL MANAGERS 
               ASSOCIATION, MINNEAPOLIS, MICHIGAN

    Ms. MEINHARDT. Chairman MCNULTY, Ranking Member Johnson and 
Members of the Subcommittee, my name is Kathy Meinhardt. I am 
here today representing the nearly 800 managers in the Social 
Security Administration's Office of Disability Adjudication and 
Review in my role as Principal Executive Officer for the 
Federal Managers Association, Chapter 275.
    Let me join the others in expressing our sympathy in the 
passing of Stephanie Tubbs Jones.
    We are committed to carrying out the mission of the Agency 
in the most efficient and effective manner. I currently serve 
as a hearing office director for the Minneapolis ODAR Office, a 
position I have held since 2000. I have worked for SSA for 
nearly 35 years in various capacities and offices throughout 
the country. Please keep in mind that I am here on my own time 
representing the views of FMA and do not speak for SSA.
    The Social Security Administration plays a vital role in 
serving over 160 million American workers and their families. 
In February, Commissioner Astrue testified that SSA's 
productivity has increased over 15 percent since 2001. 
Considering the magnitude of its mission, SSA does a remarkable 
job administering critical programs.
    In ODAR, however, there currently exists a backlog of over 
767,000 requests for hearings. In 6 years, the number of 
pending hearing requests has grown by almost 300,000. It now 
takes over 525 days to process a typical request for a hearing 
and these delays tarnish SSA's otherwise strong record of 
service to the American public.
    As managers, we are acutely aware of the impact of this 
backlog. I am here to confirm what you have heard before, that 
the ongoing lack of adequate staffing levels and resources have 
contributed to this backlog. If these inadequacies continue, 
clearing the backlog will be impossible and the service 
delivery will continue to deteriorate.
    We at FMA appreciate the attention the Subcommittee and the 
Commissioner are placing on examining the reasons for the 
backlog and addressing the remedies to this problem. This year, 
189 administrative law judges were hired by SSA which could 
translate into an additional 94,000 dispositions if each ALJ 
issued 500 decisions per year. While this is a step in the 
right direction, ALJs alone will not solve the problem. Without 
additional staffing, the current level of prepared work would 
be distributed among more judges essentially resulting in the 
same outcome.
    The report issued by the Office of Inspector General in 
August agrees and concludes that SSA must hire additional 
support staff. Accordingly, ODAR is filling 230 staff 
positions. We are encouraged by this, but several hundred more 
staff must be hired to accommodate the additional judges.
    As it stands, hearing offices do not even have the staff to 
accommodate the current judges let alone the ability to process 
the over 49,000 new cases we receive each month. More than one-
third of the current pending is over 365 days old. It is 
evident that under the best case scenario, the current staffing 
levels in ODAR barely maintain the status quo, which means the 
backlog stays the same and the processing time exceeds 500 
days.
    The accepted staff to ALJ ratio is roughly 4.5 production 
staff per judge. However, this only ensures productivity 
necessary to handle the incoming work. For offices with heavy 
backlogs, the ratio is inadequate.
    SSA has undertaken 37 initiatives to achieve the four 
aspects of Commissioner Astrue's plan to eliminate the backlog. 
The National Hearing Center has the potential to greatly expand 
the Agency's capacity to redirect resources where the cases 
are. The potential for this is huge. However, we still need 
staff to prepare, schedule and draft decisions.
    Within ODAR, most case files are now in the electronic 
format, which will provide a more efficient process ultimately. 
Much of the promise of increased efficiency is tied to the 
success of the e-polling initiative. A pilot is underway at 
five hearing offices. Minneapolis is one of them.
    We are only 8 weeks into the program but the process has 
slowed down the staff by more than 50 percent. We understand 
that staffing decisions are being made considering the success 
of this initiative. We caution that any success in the near 
future is overly optimistic.
    To enable SSA to meet the goals set forth in the 
Commissioner's approach, Congress must approve a sufficient 
level of funding. Without a doubt, the failure to fund in the 
past has had a devastating effect on our ability to deliver.
    The President has requested $10.3 billion for the 
administrative expenses in fiscal year 2009. To remedy the 
unprecedented backlog, Congress should, at a minimum, pass the 
budget request which would allow the Agency to process 85,000 
more hearings in 2009 than it did in 2008.
    However, as the 110th Congress draws to a close and 
speculation over a long term CR begins, we once again are faced 
with a situation where we will be forced to take a step 
backward instead of moving forward.
    In this era of shrinking budgets, SSA has attempted to 
maximize its use of scarce resources to provide the best 
possible service. We are struggling to handle the current 
workload and will be hard pressed to manage the anticipated 
increase in hearing requests without additional staff. We are 
committed to serving Americans in need, but we need your help 
to provide us with the necessary resources.
    Thank you for your time and your consideration of our 
views. I am happy to answer any questions you may have.
    [The prepared statement of Kathy Meinhardt follows:]
 Statement of Kathy Meinhardt, Principal Executive Officer for Federal 
Managers Association Chapter 275, Social Security Office of Disability 
  Adjudication and Review, Federal Managers Association, Minneapolis, 
                               Minnesota
    My name is Kathy Meinhardt and I am here today representing the 
nearly 800 managers in the Social Security Administration's (SSA) 
Office of Disability Adjudication and Review (ODAR) in my role as 
Principle Executive Officer for the Federal Managers Association 
Chapter 275. 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 necessary 
services to millions of Americans.
    I currently serve as the Hearing Office Director for the 
Minneapolis, Minnesota ODAR office, a position I have held since 2000. 
From 1991--2000, I served as the hearing office manager in the same 
office. I have been working for the Social Security Administration for 
nearly 35 years and in my years with SSA, I have supervised both claims 
and service units, aided in the expansion of the nationwide 1-800 
number system, coordinated information technology growth, and addressed 
labor management relations issues. Throughout my career, I have worked 
in various SSA offices serving a variety of needs in Minneapolis, St. 
Louis, Northern Virginia, Milwaukee, Chicago and New Haven. Please keep 
in mind that I am here on my own time and of my own volition 
representing the views of FMA and 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 
nonprofit, 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 successful administration of Social 
Security's disability determination process and providing needed 
services to American customers.
    As you are keenly 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 seven 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). 
At a February 28, 2008 hearing before the House Appropriations 
Committee, Commissioner Astrue testified that SSA's productivity has 
increased over 15 percent since fiscal year 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 767,500 requests for a hearing. It 
now takes over 525 days to process a typical request for a 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 6 years, that number increased to over 767,000, 
despite the fact that dispositions are at record levels. Although 
clericals in hearing offices prepared 472,168 cases in FY07, claimants 
submitted almost 580,000 new requests during the same period. The files 
simply awaiting preparation for review by an administrative law judge 
(ALJ) at the close of August 2008 totaled 450,852 cases, an increase of 
12,354 cases since the beginning of fiscal year 2007. Unless something 
is done to reverse this trend, the number of files awaiting decisions 
could realistically reach one million by 2013 with the aging Baby Boom 
generation.
    As managers and supervisors within ODAR, we are acutely aware of 
the impact these backlogs are having on our ability to deliver the 
level of service the American public deserves. I am here to confirm 
what you've heard several times before-- 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.
BACKGROUND
    By way of background, when a request for a hearing is received at a 
local Social Security office, it is automatically propagated to our 
computer system by a case intake employee in ODAR who adds ODAR-
specific coding such as ALJ assignment, site of the hearing and the 
representative involved. Basic screening is done to ensure timeliness 
of filing, verify procedural issues are met, and determine the need for 
critical or expeditious handling. An acknowledgement is prepared and in 
some offices, a CD is burned and bar codes are prepared to send to the 
claimant or representative.
    If staffing allows, ALJs or attorneys will screen the cases for 
anything that might qualify it as an ``on the record'' (OTR) decision. 
This allows for cases to be decided favorably and paid without a 
hearing based on the evidence in file. However, such cases are rare and 
if an OTR is not possible, the electronic record will await preparation 
for ALJ review. As noted earlier, there are almost 451,000 files in 
this status as of the end of August. The national average for this 
period of inactivity is 209 days. In the Dallas region, a file will 
wait only 82 days on average, but in Kansas City, the wait is an 
average of 301 days. In all but 71 offices, the wait for folder 
preparations exceeds the national average. These delays are simply due 
to the volume of work coming in and the lack of staff to tackle it. 
Additionally, receiving duplicative information from the claimant also 
taxes the staff. During all stages of the process, evidence is received 
in paper form or electronically and often times in both formats. Each 
piece of evidence creates workload items which must be filed and 
documented by ODAR staff.
    Cases are generally worked in hearing request date order. Those 
cases deemed critical or dire in need may be given preference. The 
``workup'' of the file involves a support person who reviews and orders 
the evidence, identifies each exhibit, obtains the jurisdictional 
documents, and provides a brief summary of the evidence in file. 
Currently, a pilot project dubbed ePulling is underway designed to 
automate this process. As a pilot office, I can tell you that at this 
stage, the process has more than doubled folder preparation time. 
However, this is not atypical for a pilot project and hopefully as the 
program moves forward and enhancements are made, we will see the 
average savings of 1.5 hours per case that our agency leadership is 
claiming.
    Once the file is completed and the exhibit list is prepared, it is 
referred to an ALJ for review and scheduling instructions. It is then 
scheduled for hearing based on the individual ALJ instructions. 
Scheduling requires coordinating the schedules of the ALJ, the 
claimant, the representative, medical and vocational experts, a 
reporter and hearing room availability. The claimant and representative 
must be given a Notice of Hearing at least twenty days in advance of 
the hearing and these hearings can be done in person, by video in the 
local hearing office, a permanent remote site, or in a temporary remote 
site, such as a hotel or local government office.
    After the case has been heard, the ALJ can make a decision or order 
supplemental records and a consultative examination if necessary. Once 
the ALJ has all the evidence and testimony needed to make a decision, 
he/she will write instructions for the decision writer. At the end of 
August, there were almost 25,000 cases nationally in which an ALJ had 
made a decision but was waiting for an attorney or paralegal to draft 
the decision.
    When the written decision is completed, it is made available for 
the ALJ to review, edit, return for redraft if necessary, and then 
electronically sign. At this point, the electronically signed case 
sends an alert which allows the support staff to print, mail and code 
the case to completion. It is my understanding that this mailing 
process will be shortly automated to send the decision to a central 
mailing site. Once the decision is mailed and the coding is complete, 
we have a disposition.
WHERE WE ARE TODAY
    We at FMA appreciate the attention both the Subcommittee and 
Commissioner Astrue are placing on examining the reasons for the 
backlog and addressing remedies to the problem. ODAR began fiscal year 
2008 with 438,498 pending cases awaiting preparation for a hearing. In 
all likelihood, those cases will realistically wait at least 1 year 
before any action is even initiated to prepare the cases for review and 
hearing in front of an Administrative Law Judge. In August, processing 
times across the nation ranged from a low of 389 days in the Boston 
region to a high of 712 days in the Chicago region. 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. Thus far 
in FY08, ALJs have gone even further and averaged 2.28 dispositions. At 
the end of January 2007, SSA employed 1,088 ALJs, and dispositions in 
FY07 totaled 547,951, 31,000 less cases than were received in the same 
time period. For the current fiscal year through August, receipts 
totaled 541,259 while only 520,408 dispositions were completed. This 
amounts to a net gain of over 20,000 cases.
    Earlier this year, hiring letters went out to administrative law 
judges SSA plans to employ this fiscal year and already 189 judges have 
been hired in FY08. A total of 189 new ALJs could translate into an 
additional 94,500--132,300 dispositions if each ALJ issued 500--700 
dispositions per year, as requested by the Chief ALJ in October. While 
this is certainly a step in the right direction, Administrative Law 
Judges alone will not solve the problem. Without additional staffing, 
the current level of prepared work would be distributed among more 
judges, essentially resulting in the same dispositional outcome. 
Without adequate support staff to prepare cases for the judges, both 
existing and new, we will not achieve an increase in hearing 
dispositions. The report issued by the SSA Office of the Inspector 
General in August agrees. The ALJs interviewed by the IG stated the 
main reason not enough hearings were scheduled was because there was 
insufficient support staff to prepare cases. The report also states 
that Hearing Office Directors believed staff ratios have a significant 
impact on productivity and processing times. The report concludes that 
SSA must hire additional staff to support the ALJs and accordingly ODAR 
is filling 230 staff positions. We are encouraged by this, but in order 
to maintain an adequate ALJ to staff ratio in each office, several 
hundred more staff will have to be hired.
    In recent years, however, budgetary constraints have forced the 
agency to hire additional Administrative Law Judges without providing 
adequate support staff to prepare the cases for hearing. We recognize 
that the Commissioner is 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. By 
following in his predecessor's footsteps, Commissioner Astrue will 
encounter the same problems--no matter how many new judges come on 
board, without clerical staff to prepare cases for them and write the 
decisions the backlog cannot be addressed.
    Undoubtedly, adequate clerical support is necessary to prepare 
cases for hearing, as well as staff to write a disposition after the 
ALJ has made his/her decision. As it stands, hearing offices do not 
even have the staff to accommodate the current judges, let alone enough 
staff to process the over 49,000 new cases the Office of Disability 
Adjudication and Review receives each month. If receipts remained flat, 
over 767,000 cases will remain pending, more than one-third of which 
are over 365 days old. At the beginning of FY07, ODAR had over 63,000 
cases which were over 1,000 days old, a number which was both 
unacceptable to the agency as well as the American people it serves. 
Commissioner Astrue identified these cases as ODAR's number one 
priority and this backlog has since been eliminated. FMA applauds the 
Commissioner for his efforts and the new attention being paid to the 
900 day old cases. ODAR began FY08 with 135,000 900 day old cases and 
is now down to 4,000. According to the IG, ODAR is on target to 
eliminate these cases by the end of the fiscal year. We are committed 
to working with the Commissioner as he tackles this challenge. In FY09, 
it is our understanding that ODAR will target the cases that will reach 
850 days old within the fiscal year. There are over 191,000 cases that 
meet this criteria and it is our belief these targets are indicative of 
a national processing time average that is unacceptable.
    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. In fact, the IG reiterates this point several times throughout 
his report. It is evident that under the best case scenario, the 
current staffing levels in ODAR barely maintain the status quo. That 
means that the backlog stays the same and processing times continue at 
a rate which exceeds 500 days.
    The accepted staff to ALJ ratio is roughly 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. 
The interviews mentioned in the IG report disclosed that quality and 
composition of staff also impacts productivity. Management and 
administrative employees should not be included in these figures, as 
they are not the employees performing the production work on hearing 
requests.
    The solutions to the backlog problem start with adequate staffing 
levels and timely budgets which will allow us to address the pending 
cases. As of last month, just over 767,000 requests for a hearing were 
pending. However, it is worth noting that the agency can reasonably 
process 450,000--550,000 cases during a given fiscal year. As such, the 
actual ``backlog'' at this point is around 300,000 cases. As noted 
earlier, a trained, productive ALJ with adequate support staff should 
be able to produce about 500--700 dispositions in a given year. 
However, the IG reported that only 64 percent of ALJs were on track to 
meet this goal in FY08. The report also acknowledges that support staff 
ratios are a factor in ALJ productivity and processing times. Hearing 
Office Directors confirmed this finding. With a national average of 
4.46 staff per ALJ, it is not surprising that 63 percent of the offices 
on the top half of the productivity scale had a staff ratio higher than 
the average.
    Average pending cases per ALJ range from a low of 414 in the Boston 
region to a high of 775 in Seattle. Seven regions average over 600 
pending cases per ALJ, four of which exceed 700. Individual offices 
range from a low of 262 pending cases per ALJ to a high of 1,528 and 
thirteen offices exceed 1,000 cases per ALJ. On a national level, 
processing times range from 389 days in Boston to 712 in Chicago. At 
the end of August, 24,810 decisions that have been made by the ALJs are 
simply waiting to be drafted by a decision writer. Decision writing 
pending, measured in the number of days it would take to complete the 
work, ranges from 8 days in Boston to 28 days in San Francisco. Fifty-
five offices listed on the ranking report have less than 10 days work 
while 37 have more than thirty days work on hand. Greenville has 6 
months of writing pending, indicating a disturbingly low number of 
decision writers and support staff. In my office alone, over 750 cases 
have been decided by the ALJs, but the decisions have yet to be written 
due to a lack of staff to do the work. The significant imbalances in 
the workload and the electronic nature of our work provide 
opportunities for sharing resources among offices. It is our belief 
that this is an underutilized resource.
MANAGEMENT INITIATIVES
    SSA has undertaken 37 initiatives to achieve each of the four 
aspects of Commissioner Astrue's plan to eliminate the backlog. The 
Commissioner should be applauded for his commitment to delivering a 
level of service acceptable to the American public. The first of these 
is Compassionate Allowances, a concept that has been introduced in a 
variety of iterations over the years. The concept is admirable; 
however, we expect that this will have little impact on our pending 
cases.
    The Commissioner also laid out a number of initiatives that are 
designed to Improve Performance. As already noted, there are over 
191,000 cases that will age to 850 days in FY09, which means almost 33 
percent of the work to be completed in FY09 will be from this very aged 
category and far from an acceptable processing time. Additionally, 
giving adjudication powers to attorney advisors has the benefit of 
adding to dispositions; however, it redirects the work of these very 
skilled attorneys from reviewing and advising ALJs on the most 
difficult cases and makes them unavailable for decision writing. In 
many instances, these employees are not replaced with others to do 
their original tasks and those tasks go undone or are redirected to 
others who are already overburdened.
    The third aspect of the Commissioner's plan is to Increase 
Adjudicative Capacity through Streamlined Folder Assembly, which has 
made additional folders available for hearings as evidenced by the 
21,600 cases prepared using this method between October 2007 and April 
2008. It has been expanded to the electronic folder, but this process 
was optional for the ALJs and requires additional review time on their 
part because of the ``rough'' nature of the preparation.
    The introduction of the National Hearing Center (NHC) has the 
potential to greatly expand the agency's capacity to redirect the 
resources where the cases are. It is our understanding that installing 
video centers in heavily impacted parts of the country so that the 
claimant can go to a video center in order to have his/her case heard 
by the NHC or other Hearing Office via video is the goal. We believe 
the potential for delivery of service with this process is huge. 
However, we would caution that in order to hear these cases, we still 
need staff to prepare, schedule and draft decisions. Without adequate 
staff support, the NHC will have no cases to hear.
    Along the same lines, additional video equipment has the potential 
to expand the number of video hearings. In fact, in some impacted 
areas, we understand that stand alone video sites are being built that 
will allow assistance to be provided from around the country. However, 
we must not forget that without adequate staff to prepare cases, 
additional capacity is a moot point. Furthermore, regulations allow the 
claimant and their representative to opt out of the process, and our 
business process also allows the ALJs to opt out. The process only 
works when you have parties that will use it.
    Increasing Efficiency with Automation and Business Processes is the 
fourth aspect of the Commissioner's plan. There are a large number of 
initiatives under this aspect. The greatest percentage of case files 
are now in the electronic folder format. Although there remain many 
cultural and training challenges, we believe this will ultimately 
provide for an efficient process. Much of ODAR's promise of increased 
efficiency is tied to the success of the ePulling initiative. According 
to the IG report, the pilot is being expanded to five hearing offices 
and the NHC. Rollout to additional offices is dependent on the 
performance of the software at the pilot locations. Minneapolis is one 
of those five hearing offices. We are only 8 weeks into the pilot, but 
at this point, the process has been very time consuming and has slowed 
the staff down by more than 50 percent. We at FMA believe that many 
staffing decisions are being considered assuming the success of this 
initiative. We would caution that its success and ability to deliver 
significant numbers of folders for ALJ review anytime in the near 
future is overly optimistic. Successful implementation of eScheduling 
would certainly free up additional individuals whose services could be 
used to complete other tasks, including folder preparation. Given the 
complicated nature of the scheduling process which takes into account 
many schedules and many individual scheduling preferences, we believe 
this will be a difficult challenge.
    The temporary service area realignments went a long way to 
adjusting some of the imbalances in the workloads. We believe that the 
electronic nature of our cases provides us with significant 
opportunities to expand this concept to individual work categories. Any 
office with excess writing or pulling capacity should have that 
capacity redirected to offices with significant backlogs. No office 
should be allowed to process their work in an average of under 300 days 
when there are 42 offices who are processing their work in 600 days at 
best.
    The Electronic Records Express initiative also has significant 
promise and needs to be implemented as soon as practical. While 
representatives have the ability to submit records using this process, 
currently they do not have access to the files via a secure Web site. 
This requires the local office to provide CDs with the evidence and we 
believe results in significant duplicate submissions since they cannot 
confirm what evidence is on file.
    Many reports are available to provide enhanced management 
information. Additionally, management training has been improved. These 
initiatives are certainly supported by FMA, as management of the 
workload is enhanced by trained employees and adequate tools. However, 
the critical issue once again is the lack of adequate staff to actually 
do the work. We know what needs to be done; we simply do not have 
enough people to do it. Furthermore, management is not allowed to hold 
employees accountable for production standards, making ongoing 
performance measures a challenge.
    Ultimately, this is a numbers game. Should Congress define what it 
considers to be an adequate level of service, we believe the agency can 
define what we need to get there. None of the initiatives outlined 
above, whether alone or combined, is the silver bullet that will 
eliminate the backlog. We either have to slow the cases from coming in 
at the front end which would require significant changes in 
legislation, or we have to provide more capacity on the back end. The 
challenge is yours.
FUNDING
    To enable SSA to meet the goals set forth in Commissioner Astrue's 
four-pronged approach to eliminating the backlog, Congress must approve 
a sufficient level of funding for the agency. The Continuing Resolution 
(CR) signed into law in March 2007 was severely inadequate to address 
both the staffing and backlog problem at SSA for fiscal year 2007, 
despite the meager increase SSA received above the fiscal year 2006 
appropriation. Between 2001 and 2007, Congress has appropriated, on 
average, $180 million less than the President has requested each year. 
The value of this differential is equivalent to processing an 
additional 177,000 initial claims and 454,000 hearings. In the 10 years 
prior to fiscal year 2008, Congress has appropriated nearly $1.3 
billion less than the President's request. Without a doubt, this has 
had a devastating effect on the services provided to the American 
public, as evidenced by the situation we are in today.
    Recognizing the needs of SSA, Congress appropriated $150 million 
above the President's request for FY08 in an effort to bring down the 
backlog. Congress should be applauded for their commitment to serving 
the American people in this capacity. In fact, it is this increase 
which is allowing the agency to hire the additional 189 ALJs.
    The President requested $10.327 billion for SSA's administrative 
expenses in FY09, only $100 million below Commissioner Astrue's request 
and 6 percent more than Congress appropriated this fiscal year. 
Furthermore, the House Budget Resolution (H.Con.Res. 312) recommended 
an additional $240 million for SSA's administrative expenses. 
Ultimately, the House Labor/HHS/Education Appropriations Subcommittee 
allocated $100 million over the President's budget for SSA's salaries 
and expenses, while the Senate Appropriations Committee approved only 
$50 million above the President's request. We applaud these efforts.
    To remedy the unprecedented backlog situation, Congress should at a 
minimum pass the President's 2009 budget request of $10.327 billion for 
SSA's Limitation on Administrative Expenses account. Under his budget, 
the agency would be able to process 85,000 more hearings in FY09 than 
in FY08. In FY06 and FY07, SSA replaced one worker for every three that 
retired. The President's budget will allow for a 1 to 1 replacement 
ratio. While this will not allow us to eliminate the backlog 
immediately, we will be able to make significant strides to reducing 
it. However, as the 110th Congress draws to a close and speculation 
over a long-term CR begins, we are once again faced with a situation 
where we will be forced to take a step back, instead of moving forward.
    In addition to having an immediate impact on the current backlog, 
underfunding the Social Security Administration will negatively impact 
every service area of the agency. Staffing at SSA will soon reach its 
lowest level since 1972; however, SSA today has nearly twice the number 
of beneficiaries it had in 1972. SSA officials estimate that more than 
40 percent of its 65,000 employees will retire by 2014. Reversing this 
trend is a necessary step to reducing the backlog.
CONCLUSION
    While the President's budget request for FY09 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. We believe 
this is the workforce we have now, strengthened under the leadership of 
former-Commissioner Barnhart and Commissioner Astrue. 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 fund because they are 
approaching retirement are also entering their most disability-pr1 
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 everyday. 
We see people of all ages come in and out of our offices seeking the 
services they depend on for survival from the Social Security 
Administration. We are committed to serving a community of Americans in 
need, but we need you to provide us with the necessary resources to 
help them. Thank you for your time and consideration of our views and I 
am happy to answer any questions you may have.

                                 

    Chairman MCNULTY. Thank you very much. Sam and I and other 
Members of the Committee, Sandy and others, are attempting to 
address that issue. We hope to have some good news by next 
week.
    Ms. MEINHARDT. Thank you.
    Chairman MCNULTY. Mr. Schieber.

 STATEMENT OF SYLVESTER J. SCHIEBER, CHAIRMAN, SOCIAL SECURITY 
                         ADVISORY BOARD

    Mr. SCHIEBER. Thank you. Chairman McNulty, Mr. Johnson, 
Members of the Committee, I am pleased to have this opportunity 
to discuss ways to improve the performance of the Social 
Security hearing offices.
    The Board also wishes to acknowledge the passing of 
Stephanie Tubbs Jones, who repeatedly expressed passion and 
concerns about the issues we are discussing today, issues we 
think deserve passion and concern.
    About 18 months ago, I appeared before this Subcommittee to 
present the Social Security Advisory Board's perspective on the 
causes and the possible solutions to the growing disability 
backlogs.
    At that time, the Advisory Board's perspective was things 
had gotten pretty much out of control. Since then, the Agency 
has implemented a series of initiatives that we have talked 
about this morning, that focus on clearing out the backlogs and 
they should help in the near term bring the system somewhat 
back into balance.
    Mr. JOHNSON. Could you put the mike over closer to you? The 
recorder is having trouble hearing you over there. Thank you.
    Mr. SCHIEBER. Are we getting there? I am not going to start 
over.
    [Laughter.]
    Mr. SCHIEBER. The backlog of cases has climbed to over 
767,000, nearly 20,000 more cases now than at the start of the 
fiscal year. A singular focus on just one aspect of this 
program is not the solution to the systemic problems that exist 
across the whole system.
    The public is entitled to timely and high quality 
disability decisions, but currently the Agency is forced to 
walk a fine line in its efforts to manage personnel and 
process.
    Much of the context in which the hearing offices operate is 
a result of the 1946 Administrative Procedure Act. The Act 
created the position of the administrative law judge and set 
out a number of protections to ensure their decisional 
independence.
    ALJs in effect have a lifetime appointment and may only be 
removed for cause by the Merit Systems Protection Board. They 
are excluded from Civil Service performance appraisal systems 
and newly appointed ALJs do not serve any sort of probationary 
period.
    I note in my prepared testimony and we have heard this 
morning about concerns of productivity levels among the judges, 
about the numbers of cases that are being processed, and it is 
on both ends of the distribution. Some judges are hearing very 
few cases. There are also some judges hearing more cases than 
seems reasonable under any appreciation of what is involved.
    There are also concerns about allowance and denial rates. 
Some judges seem to approve a disproportionate share of the 
cases that they handle and others approve very few cases that 
they handle. This is not a game of penny ante poker. This is a 
game of people who participate in a program, who apply often 
times in dire circumstances for benefits, in many cases, to 
which they are entitled, and they deserve fair consideration of 
their applications.
    On the other hand, these benefits are quite expensive and 
they have to be paid for by the taxpayers. We ought not be 
granting benefits to people who are not qualifying for them 
under the rules.
    By establishing clear performance expectations and measures 
as well as creating incentives that encourage the ALJs to 
achieve the goals, decisional independence can be preserved and 
the public's interest and a consistent and efficient hearing 
process can be achieved.
    Furthermore, SSA needs to be able to rely on OPM to provide 
candidates who can meet their expectations. We strongly urge 
that at a minimum, OPM be required to establish a separate 
candidate register that emphasizes Social Security's specific 
needs.
    Strengthening the Agency's ability to set performance 
expectations and changing the ALJ recruitment process addresses 
only part of the challenges with the hearing process.
    We have heard the hiring of support staff has not kept pace 
with hiring of new ALJs in some cases. This lack of staff to 
support the hearing process properly obviously constrains 
productivity in some cases. However, it is not at all clear to 
us that either the staffing mix or the ratio of the support 
staff to ALJs has been adequately analyzed by the Agency.
    Probably one of the most difficult jobs in SSA is that of 
the hearing office's Chief Judge. The Chief is responsible for 
managing the work of the office, but has little authority to do 
so effectively. It is critical that competent leadership be in 
place in each hearing office, but the current process has too 
many disincentives to attract talented managers.
    SSA is committed to using technology to improve the 
performance, and they have made impressive strides in moving 
into an electronic environment. From where we sit, however, the 
problem is that most of the work is piece meal and lacks an 
over arching strategy that coordinates the projects and helps 
set priorities.
    As the Agency continues to develop automation tools, they 
must ensure that the decisions being made for one part of the 
organization are the right decisions for the disability program 
as a whole.
    SSA has massive administrative challenges ahead, and while 
there is no magic bullet, much can be accomplished through the 
appropriate adaptation of technology, recruiting, and retaining 
highly skilled staff, and instituting performance measures that 
ensure timely and equitable hearings is a step in the right 
direction.
    I hope these comments are helpful to the Subcommittee as it 
examines SSA's management of its hearing offices, and I would 
be happy to answer any questions you might have.
    [The prepared statement of Sylvester J. Schieber follows:]
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 present the Board's view on the performance 
of the Social Security Administration's hearings offices.
    In February 2007 I appeared before the Subcommittee to present the 
Social Security Advisory Board's perspectives on the causes and 
possible remedies for the lengthy and sometimes unconscionable delays 
disability applicants face in the processing of their claims. Press 
articles about the sky-rocketing hearings backlogs were appearing 
across the country; members of Congress were flooded with letters from 
constituents looking for relief. In the 18 months or so since then, the 
Social Security Administration has put into place a series of short-
term initiatives designed to stop the growth in the backlog--
initiatives that should provide the agency some breathing room while 
they develop and implement new electronic tools, simplify and unify 
program policies, and expand adjudicatory capacity.
    The hearings process is complex and improving the performance of 
hearing offices is equally complex. But to truly effect change in 
productivity and increase efficiency in the performance of the hearings 
offices, we must first understand the barriers the agency must overcome 
before we can propose solutions.
Administrative Procedures Act: Balancing Public Interest and Decisional 
        Independence
    However, as this Subcommittee has noted, the public deserves timely 
and high quality disability decisions, but currently the agency must 
walk a fine line in its effort to manage personnel and process.
    Much of the context in which the hearing offices operate is 
established by the 1946 Administrative Procedures Act (APA) which 
created the position of administrative law judge (ALJ), as well as a 
number of protections to ensure their independence. ALJs receive what 
is, in effect, a lifetime appointment. They may be removed only for 
cause after a formal adjudicatory hearing by the Merit Systems 
Protection Board. No one, including the employing agency, may approach 
an ALJ regarding the facts at issue in a particular case, except on the 
record. And, unlike almost all other Federal executive branch 
employees, ALJs are excluded by the Administrative Procedures Act from 
the civil service performance appraisal system. In addition, they are 
exempt from the standard requirement that new competitive service 
employees serve a probationary period.
    There is no doubt that administrative law judges must have the 
independence to make decisions that are based on their best objective 
assessment of the facts in each case without being influenced by the 
need to please supervisors, to meet allowance or denial quotas, or in 
any way to fear that the outcome of their decisions will affect their 
future status with the agency. But that independence must be balanced 
with the public's interests and expectations.
    I have done a statistical analysis of the outcomes of hearings in 
fiscal year 2006 to see if the data told a story, and they did. I want 
to caution that this analysis does not go as far as I would like but it 
is indicative of the issues that I believe are important. The 
limitations in what I have done so far are that my analysis focuses on 
the full duration of the fiscal year but I did not have available 
information on the amount of time individual ALJs actually had in 
service during the year. Because of illness, other leave taken, 
retirements and the like, not all judges worked throughout the whole 
year. Still, some of my results raise important concerns in my mind.
    When I arrayed administrative law judges by the number of cases 
they disposed of in 2006 and by the outcome of those cases, I saw 
several things. First of all the range of cases handled and the range 
of allowance rates were both very wide. About a quarter of all judges 
disposed of fewer than 360 cases and 14 percent disposed of fewer than 
240 cases. Half the ALJs disposed of between 30 and 50 cases a month 
during 2006 and the average for all ALJs was between 400 and 500 cases 
per year. And the spread also extends on the upper side with about 10 
percent of ALJs handling more than 720 cases in 2006. There are some 
ALJs who rendered decisions at incredible rates of 1000, 1800, and even 
2500.
    I should note that the agency has attempted to address the 
situation of judges who were hearing few cases in the past by letting 
judges know that they want them to attempt to process up to 500 cases 
per year. One of the most important elements of management in any 
organization is setting out expectations for workers.
    In terms of my analysis of what was happening in 2006, I found that 
the average allowance rate of all cases disposed of was about 60 
percent and that is about the average for ALJs who handled 400 to 600 
cases that year. Averages, however, hide the real questions about the 
decision making process behind them. Among judges who heard between 240 
and 720 cases in 2006, the allowance rates varied from 3 percent to 99 
percent. Among these judges who handled most of the caseload in 2006, 
1.25 percent allowed less than 20 percent of the cases they ruled on in 
2006 and 7 percent allowed more than 80 percent of their cases. I 
cannot believe that either the low or high allowance rates noted here 
are appropriate.
    But judges who handle many more cases than the average tend to have 
significantly higher allowance rates, nearly 20 percentage points 
higher in the cases of those judges who dispose of more than 1000 cases 
per year. The raw statistics here cry out for more scrutiny regarding 
how cases are being handled across the organization.
    I know that there are many anecdotal reasons advanced that purport 
to explain apparently anomalous numbers. But, this program is too 
important both to the taxpayer and to the affected individuals to 
dismiss statistical evidence with offhand theoretical arguments. There 
are administrative law judges who are deciding upwards of 1000 cases 
with allowance rates in the mid to high 90s. And there are 
administrative law judges who are deciding upwards of 1000 cases with 
allowance rates in the mid to low 30s. This is not a penny-ante poker 
game where we can shrug ``Them's the breaks.''
    There is more in play here than decisional independence. If wrong 
decisions are being made then we are either depriving disabled 
individuals of vital income support and health insurance or we are 
improperly imposing on taxpayers a major cost that has been estimated 
to have a present value of about a quarter of a million dollars per 
case. And the numbers I see make it look very much like we are doing 
both to a completely unacceptable degree.
    It is possible, with an appropriate statutory change, to reconcile 
the interests of the public to receive an independent decision with a 
process that is consistent and efficient. But this process must have 
three key features: clear performance expectations, accurate and timely 
performance measures, and incentives that encourage the judges to reach 
the performance expectations.
    Achieving the bold strokes of this new system will be very 
difficult given the need to walk the fine line required by the APA. 
Multi-dimensional performance measures are required to capture 
decisional accuracy and provide useful feedback on less quantitative 
aspects of performance such as judicial comportment and demeanor. 
However, such a system is precluded under the APA. We therefore 
recommend that Congress consider changing the law to permit better 
performance measurement while also protecting the ALJs' decisional 
independence. A key feature of a new law would be well-defined 
performance criteria set in advance so all parties know what it being 
expected of them.
    In any large organization there are always the exceptional cases of 
``bad actors,'' who, despite counseling, engage in inappropriate or 
illegal behavior. Discipline is an option, but under the APA, action 
may only be taken with the prior approval of the Merit Systems 
Protection Board. We have been told by SSA that it can easily take a 
year from the time an MSPB hearing is requested until a decision is 
made. That initial decision can then be taken to the full Board, which 
takes another nine to twelve months. The disciplinary system should be 
changed to allow for a quicker response.
The Unique Role of SSA's Administrative Law Judges
    SSA needs to have a skilled ALJ corps that is capable of managing a 
500 case docket that involves the application of a large number of very 
complicated policy rules. This need runs counter to the OPM argument 
that it is in the government's best interest to have a mobile workforce 
of ALJs, individuals who can learn the laws and regulations of any 
agency and perform with equal competence wherever they are placed.
    While administrative law judges are employed at 24 Cabinet-level 
and independent agencies, SSA employs the great majority. As of March 
2008, 1,317 ALJs were employed by the Federal Government, of whom 
1,066, or 81 percent of the total, worked for SSA. Like other agencies 
hiring ALJs, SSA reimburses OPM for its cost of administering the 
selection process in proportion to its share of the number of ALJs on 
duty. In SSA's case, it is about $1 million per year.
    SSA's interest is not just a question of subject matter expertise, 
but of organizational and management skills to perform a significantly 
higher volume of work than is required in other agency settings. It is 
the 500+ caseloads of SSA ALJs that distinguishes their work from that 
done by ALJs at regulatory agencies, such as the Securities and 
Exchange Commission or the Federal Communications Commission, which 
often have much smaller caseloads. Beyond managing high caseloads, SSA 
ALJs are required to develop the record, represent the interests of the 
government and actively ensure that claimants understand the rules and 
their options.
    In view of the fact that SSA employs more than 4 out of 5 ALJs and 
pays a proportional share of the costs of the selection process, it 
should have a process that identifies candidates that meet its unique 
needs. We would argue that this is a key to improving hearing office 
performance.
    We recommend that the Congress weigh alternatives that can achieve 
the public's interest in fairness but will also satisfy its interest in 
efficiency and timeliness. There are at least three options that the 
Congress could consider:

      Separate SSA register: OPM could work with SSA, using 
data on quality and quantity of decisions of current SSA ALJs, to 
identify characteristics of judges with high quantity and quality of 
work and develop a separate selection process and separate register for 
SSA that uses those characteristics.
      Single register with supplemental qualifications data: 
OPM could continue to maintain a single register of qualified 
candidates but provide SSA with a greatly expanded certificate of 
qualified candidates, together with supplementary information on the 
candidates' demonstrated ability to manage a large docket and other 
qualifications that SSA identifies as essential for productive judges.
      Transfer management of selection process to SSA: SSA 
could be given authority to conduct its own merit selection process, 
including suitability and background checks, to meet its needs in a 
timely manner. Current regulations already require agencies to conduct 
a job analysis to identify the knowledge, skills, and abilities needed 
for successful employees as well as to establish the factors used in 
the evaluation of candidates. SSA has competent human resources 
professionals who are experienced in managing selection processes in a 
timely manner.
Hearing Office Staffing
    Changing the ALJ recruitment process, hiring more judges, and 
strengthening the agency's ability to set performance expectations 
addresses only part of the challenges relative to improving the hearing 
process. As we have talked to staff throughout the Office of Disability 
Adjudication and Review (ODAR) what has become abundantly clear is that 
hearing office productivity has, in the end, become constrained by a 
lack of support personnel to organize the cases, locate old paper 
folders, develop new evidence, schedule medical and vocational experts, 
and write decisions. In 2007, there were 4.1 support staff for every 
ALJ; this has increased slightly to a 4.4 to 1 ratio. Maintaining 
sufficient levels of staff has been exacerbated by the loss of over 500 
support personnel in the last two years through regular and ``early 
out'' retirement.
    When ODAR was in a paper folder environment with few automated 
tools, we were told that the staffing ratio of support staff to ALJs 
should be in the 5:1 range. As they gain more experience with 
electronic case processing tools and eventually fold in electronic case 
pulling and scheduling of experts, some efficiencies should be 
realized. But whether or not the current ratio of 4.4:1 or some other 
mix is the right one, remains to be seen. We are concerned that there 
is not sufficient analysis going on to determine the proper staffing 
ratios. Moreover, now is the time to conduct in-depth analysis to 
determine what these jobs should look like in the future and what will 
be the skills sets needed for a successful employee.
    While the issue of staff ratios is critical in planning stable 
operations we must be careful that it does not mask the fact that ODAR 
is falling behind in its workload and is not even close to being a 
stable operation. This suggests in the short run that staffing and 
investment in technology may need to be greater than currently planned 
in order to catch up.
Demands Placed on the Hearing Office Chief Judge
    When the Board was conducting its research for our 2006 report on 
improving the hearings process, we looked very closely at how the 
individual hearings offices were managed; and specifically at the 
duties and responsibilities of the hearing office chief administrative 
law judge (HOCALJ), the senior official charged with overall 
responsibility for managing the office. The first duty listed in the 
official position description for the hearing office chief has to do 
with the responsibility for holding hearings. The second addresses the 
chief judge's responsibility for the overall management of the workload 
within the hearing office. Now, this strikes me as being a bit 
backward, but given this emphasis, it was not a surprise to learn that 
most hearing office chief judges carry full caseloads, upwards of 500 
cases. In fact, they are the only management officials in the agency 
who are specifically charged with in-line production responsibilities. 
One cannot help but wonder how these individuals can effectively manage 
a complex organization while juggling a full caseload.
    Do not get me wrong on the point I am making here. I believe that 
working managers are highly desirable in many in-line management 
positions. They often understand the nature of the work and problems 
associated with it better than full-time managers. I am simply saying 
that full case-load obligations and line-management responsibilities 
together may result in undesirable handling of all aspects of the 
assignment.
    Although, on paper, the hearing office chief has managerial 
responsibility for all staff, in practice there are two parallel 
management structures. There is one chain for the administrative law 
judges and supervisory staff attorney who report directly to the HOCALJ 
and there is another one for the non-attorney staff who report directly 
to the hearing office director. The office director, in turn, reports 
to the HOCALJ. In theory, this should work. But instead what we see is 
administrative and procedural guidance flowing through the 
organizational stovepipes. The lines of authority and communication can 
be confusing and at times, at cross purposes. For example, support 
staff often receives directions from the judges that may be at odds 
with the guidance received from their line supervisor. Perhaps these 
two structures make sense in this blended environment of attorneys and 
non-attorneys; however, it seems to contribute to a lack of clarity 
about lines of authority, dilutes accountability, and ultimately 
affects office performance. The current structure demands an 
extraordinary level of effort and a strong commitment to communicating 
across the divide in order to make it work.
    It is crucial that competent leadership be in place in every 
hearing office, but the current process has too many disincentives to 
attract talented managers. There are a limited number of qualified 
individuals willing to take on these additional tasks. Turnover is high 
and ``burn out'' is not uncommon. One way to improve and make hearing 
offices more efficient is to improve the quality, attraction and 
retention of the principal leaders in the hearing office. At a minimum, 
the position description for the HOCALJ should emphasize that 
management responsibilities are first and foremost, including 
responsibility for ensuring that office and agency performance 
standards are met, initiating disciplinary actions, and counseling 
underperformers.
    One other aspect of the HOCALJ position deserves consideration. The 
hearing office chief judge is not only expected to ``manage'' the 
resources under his or her domain but to carry a full case load as 
noted earlier. But the individuals who take on this added burden and 
responsibility are paid exactly the same as the other regular line 
judges. You might wonder why anyone would sign up for such a role if 
there is no added reward for doing so. Well, there is a reward of 
sorts. HOCALJs can apply for vacancies elsewhere around the country 
when positions come open and will be moved if they are selected to head 
up another office. It seems some judges are willing to take on this 
assignment because it is a way to get moved to other geographical 
locations that they find more attractive for personal reasons. I am not 
saying that a judge signing up to be a HOCALJ to increase the prospect 
of relocation is necessarily bad in many cases, but it strikes me as a 
peculiar way to compensate people for providing a valuable and 
necessary service to the agency and the program.
    Compensation for the HOCALJs should be adjusted to reflect that 
they indeed do have the responsibility for assuring that the work of 
the office is accomplished and that they will be held accountable for 
its performance. Nevertheless, we recommend that the HOCALJs carry an 
ongoing caseload to be sure that they are current with policies, so 
they can provide programmatic guidance to their ALJs and staff 
attorneys and so they can provide regular feedback to central 
management on the performance of the operational system of which they 
are a part.
The Road Ahead
    SSA has made tremendous strides in moving its work into an 
electronic environment. The challenge is that most of this work is 
piecemeal and lacks an overarching vision to facilitate coordination 
across the projects and to provide a guide for setting priorities.
    Over the past four years they have automated the field office 
disability interview, provided channels for medical providers to submit 
evidence electronically, and created an electronic claims folder. 
Electronic cases now comprise over three-quarters of ODAR's workload 
and they are working diligently to finish the paper cases still in the 
pipeline.
    The success of the agency's plan to reduce the hearings backlog and 
prevent its recurrence is highly dependent on the successful 
implementation and rollout of a series of streamlined and automated 
case tasks. This past June electronic file assembly (ePulling) was 
implemented in Tupelo, Mississippi and early feedback has been 
positive; in July a pilot to permit claimant representatives access to 
the electronic folder was initiated; and work continues on software 
that will enable the electronic scheduling of experts, hearing 
locations, and ALJ availability.
    While each of these accomplishments taken individually represents 
an important achievement, their cumulative effect may be far less than 
what could have been possible given the resources that have been used. 
The lack of a unifying vision inhibits the administration's ability to 
identify and set developmental priorities. For example, achieving a 
specific task using COBOL may have short term gains but in the long run 
it runs counter to the agency's need to move toward more modern 
programming languages.
    High performance requires a forward-looking and creative vision of 
a business process that is efficient, fosters consistent application of 
program policy, and is agency wide. In particular the agency needs to 
ensure that the decisions made to improve the hearings and appeals 
process are consistent with the decisions being made for the disability 
program as a whole.
    Even with a unifying vision managing this improvement process will 
be hampered by the lack of meaningful performance measures. The agency 
needs to be able to measure the productivity and accuracy gains 
resulting from these new systems. This requires the ability to measure 
consistently performance with and without the change. Furthermore, 
detailed information about staffing and resource requirements for each 
new system is needed in order to determine what will be required to 
take them to scale within the agency.
    Performance measurement must move away from focusing solely on 
decisional accuracy. Quality assurance must go beyond merely fulfilling 
Congressional requirements to check 50 percent of all DDS allowance 
determinations, but must inform the analysis of proposed legislation, 
program implementation and shape policy research activities. Moreover, 
quality management must become part of the fabric of the organization. 
It must be reflected in the agency's strategic plan, in its culture, 
and its day-to-day business.
    Throughout the Board's existence, we have spent the vast majority 
of our time studying the disability program and how well it serves the 
public. In our 1999 report on how SSA can improve service to the 
public, we noted that SSA needed to improve the way it measures 
performance. This is an agency that collects a wealth of data on case 
characteristics, decisional outcomes, timeliness, productivity, 
quality, and cost. The data are tallied and put into charts and called 
``management information.'' I am not convinced that much of this is 
nearly as helpful as it might be. I believe that many modern 
organizations confuse data for information. They are not the same.
    Part of the problem may be that data itself is often of little 
value if not refined into information and knowledge that managers on 
the ground can use to improve the efficiency of the units they run. For 
example, a raw statistic that shows that a particular ALJ may be 
extremely productive in terms of disposing of cases provides little 
value if it hides the fact that the individual's productivity is 
correlated (and possibly responsible) for low productivity of other 
ALJ's in the same unit. Statistics on gross dispositions may be 
misleading if they are not highly correlated with net dispositions 
after remands. Data on individual ALJ productivity can only be properly 
assessed in an analysis that controls for other environmental 
variables--number and characteristics of support staff, characteristics 
of cases being assessed, percentage of decisions being remanded and 
other variables that affect work flows.
    SSA has the technology in place to provide it with the opportunity 
for immediate creation and retrieval of information, yet it seems there 
is little innovative analysis occurring. Strengthening management's 
ability to effect change is through the identification of and targeting 
the root causes of bottlenecks and vulnerable processes and then 
implementing performance measures that track outcomes. We recommend 
that SSA invest in better management information systems that provide a 
basis for concrete steps for process improvement within a unified 
vision for a high performing organization.
    The Social Security Administration is at a crossroad in its ability 
to continue to fulfill the mission that was set out for it in 1935. 
Granted, the mission has grown and the scope of the agency's 
responsibilities undoubtedly far exceeds what the original framers had 
in mind. The SSA has always stepped up to meet every new challenge and 
they can do it again. But it takes adequate resources and investment in 
its staff. Chronic under-funding has contributed to the current crisis 
and has diverted the agency's attention away from long-term planning. 
Short term initiatives must be linked to a longer range vision for the 
future that, together, make a compelling case for sufficient and stable 
funding. SSA has massive administrative challenges ahead and while 
there is no magic bullet, much can be accomplished through the 
appropriate adaptation of technology, recruiting and retaining highly 
skilled staff, and instituting performance measures that ensure timely 
and equitable hearings is a step in the right direction.
    Mr. Chairman, I hope these comments are helpful to the Subcommittee 
as it examines SSA's management of its hearing offices. I 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 very much.
    Mr. Bernoski.

STATEMENT OF THE HONORABLE RON BERNOSKI, PRESIDENT, ASSOCIATION 
       OF ADMINISTRATIVE LAW JUDGES, MILWAUKEE, WISCONSIN

    Judge BERNOSKI. Mr. Chairman, thank you for inviting us to 
testify here today. We also mourn the death of Congresswoman 
Tubbs Jones.
    As administrative law judges, we are keenly aware of the 
disability case backlog because we work with it on a daily 
basis.
    I am happy to report that administrative law judges at 
Social Security are working hard and our productivity has 
steadily increased during the past decade. In fact, in 2007, we 
issued about 550,000 cases which amounts to over two cases per 
day per judge.
    The only Agency study that we know of regarding ALJ 
production was part of a 1994 Agency reform effort known as a 
``Plan For A New Disability Claim Process.'' This study 
prepared a time line for Social Security disability cases for 
the entire process. At the ALJ level, it concluded that a judge 
could efficiently produce about 25 to 55 cases a month.
    This would mean that a judge would devote about three to 7 
hours to each case. The Social Security Administration has 
determined that each case is worth about $250,000, including 
Medicare.
    We believe that three to 7 hours is not too much time to 
devote to a claim that can cost the trust fund up to a quarter 
of a million dollars.
    Mr. Chairman, it takes a complete team to make a hearing 
office function. There must be a balance between judges and 
staff. It is clear that we need at least four and a half staff 
persons per judge.
    The IG report correctly states that factors in the 
disability process impact on our productivity, and I submit to 
you that we have little control over most of these factors.
    The case production chart in the IG report shows a bell 
curve with a normal distribution with most judges in the center 
of the curve. Most of our judges are producing in the range of 
300 to 700 cases per year, which is within the reasonable 
limits of that Agency study I referred to. Only 22 out of 1,155 
judges issued a low number of decisions.
    Finally, Mr. Chairman, the IG jumps to the unsupported 
conclusion that varying levels of ALJ production is based on 
the lack of motivation and work ethic. There is a lack of 
evidence supporting that conclusion.
    This conclusion is instead based on the comment from one 
regional chief judge relating to one administrative law judge. 
Further, the IG did no study to substantiate that conclusion.
    Mr. Chairman, no group of Social Security employees is 
responsible for the disability backlog. In fact, a GAO report 
in December 2007 concluded that the backlogs were caused by: 
one, a substantial growth in initial applications; two, staff 
losses, including administrative law judges; and, finally, 
management weaknesses evidenced by the number of reform 
initiatives.
    Earlier this year, Mr. Chairman, a Federal Magistrate Judge 
on a panel for a Federal Bar Association program in Chicago 
stated that based upon his experience in handling Social 
Security cases, because they hear our cases on review, 700 
cases is more than an administrative law judge could reasonably 
issue each year.
    At an AALJ round table this Spring, the panel concluded 
that no group of employees is responsible for the backlog and 
it was instead a systemic problem causing systemic failures in 
the system.
    In this regard, in January 2008, we prepared a white paper 
discussing the systemic problems with recommendations to 
address the same.
    Mr. Chairman, that concludes my remarks.
    [The prepared statement of Honorable Ron Bernoski follows:]
  Statement of The Honorable Ron Bernoski, President, Association of 
            Administrative Law Judges, Milwaukee, Wisconsin
    Thank you for inviting us to testify at this hearing. My name is 
Ronald G. Bernoski. I am an administrative law judge (ALJ) who has been 
hearing Social Security Disability cases in Milwaukee, Wisconsin, for 
about 28 years. I also serve as President of the Association of 
Administrative Law Judges (AALJ), a position I have held for over a 
decade. AALJ represents the administrative law judges employed at the 
Social Security Administration (SSA) and some administrative law judges 
at 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 and to promote judicial education for administrative law 
judges. The AALJ represents about 1100 of the approximately 1400 
administrative law judges in the entire Federal Government.
    The Association of Administrative Law Judges is most grateful for 
the oversight of the Social Security disability program provided by the 
Subcommittee. 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.
    In 1946, Congress enacted the Administrative Procedure Act to 
protect, inter alia, the American public by giving administrative law 
judges decisional independence. Under the APA's statutory scheme, the 
American public was ensured of receiving full and fair hearings from 
agencies of the United States Government. These safeguards are in 
addition to those set forth in the Social Security Act, which preceded 
the enactment of the APA. These two laws, together with the United 
States Constitution, impose a huge burden on administrative law judges 
to process cases on their dockets with the ultimate goal of seeking the 
truth and administering justice.
Administrative Law Judge Duties
    Any discussion of ALJ productivity must begin with an understanding 
of the daily tasks that judges must perform in handling their dockets 
of cases. The labor intensive process begins in the hearing office with 
support staff assembling and marking exhibits and, as may be requested 
by the judge, obtaining current or new medical and related evidence. 
The judge reviews the file and determines if the case is ready to be 
heard or if other evidence needs to be developed. When the case is 
fully developed the judge then needs to determine whether a favorable 
decision can be made on the record presented, without a hearing. If a 
hearing is required, the judge evaluates the evidence to determine 
whether expert witnesses will be required for the hearing. After this 
review, the staff secures the expert witnesses and schedules the case 
for hearing. Once the hearing is scheduled, the judge continues to be 
involved with the case to review newly submitted evidence, to consider 
and resolve prehearing motions and issues. Typically, a day or two 
before the hearing, the judge will conduct another review of the file 
to insure familiarity with the facts and issues for the hearing. When 
the hearing is concluded the judge must prepare thorough decisional 
instructions for the writing staff, review and edit the draft decision 
and sign the decision. Thereafter, the staff prepares and mails the 
decision to the appropriate parties.
    As can be readily seen from the above, measuring productivity of a 
judge is a difficult, if not impossible task, because there are so many 
variables to consider. Thus, as the Inspector General correctly notes 
in his report, a sufficient number of competent and well trained staff 
is critically important to the ability of a judge to process his or her 
caseload.
History and Overview of ALJ Productivity
    Cases routinely handled by our judges today are far more complex 
than at any other time in our history. Nonetheless, in fiscal 2007, the 
Social Security administrative law judges heard and decided 550,000 
cases. Individual administrative law judge productivity in the Social 
Security Administration has increased every year over the last decade 
and is presently at historic highs. As you noted in the Advisory for 
this hearing, according to the recent report of SSA's Inspector General 
(A-07-08-28094) (the IG Report), from FY 2005 to FY 2007 the average 
number of case dispositions issued per ALJ increased 13%. Specifically, 
in FY 2005, ALJs issued an average of 421 dispositions each, while in 
FY 2007, ALJs issued an annual average of 474 dispositions each. 
According to the IG report, 1,155 Social Security administrative law 
judges issued 547,951 case dispositions in FY 2007.
    Because of this progress, the law of diminishing returns applies to 
future increases in the level of ALJ productivity. To be sure, the 
number of decisions issued by each judge varies, however, such 
variation is dependent on the factors noted above and is clearly 
consistent with the Agency's previous study. That study, the Plan for a 
New Disability Claim Process, conducted in 1994, projected a time line 
for a disability claim at all levels of the process, including the 
administrative law judge level. The study, based on an average month of 
4.3 weeks, concluded that a reasonable disposition rate for a judge 
should be 25 to 55 cases per month, averaging 40 per month. The results 
showed that a judge should spend 3 to 7 hours of time in processing 
each case. In considering numerical performance it is important that 
the Congress understand first that a judge must carefully review the 
voluminous documentary evidence in the claimant's file to effectively 
prepare and conduct the hearing and to issue a correct decision; and 
second that case carries an average cost to the trust fund of $250,000. 
A judge hearing 40 cases per month is entrusted to correctly decide on 
$10,000,000 of cases per month, $120,000,000 annually. We respectfully 
submit that an average investment of three to seven hours per case per 
judge is a very reasonable cost-benefit expectation of administrative 
law judge productivity. I will offer the Plan for a New Disability 
Claim Process study for the record of this hearing.
    As the Subcommittee is aware, the SSA disability process has 
historically required for maximum performance a ratio of support staff 
to administrative law judge of about 4.5 staff for each administrative 
law judge. Ideally, the complement would include 2.5 attorneys and 2 
support staff persons for each administrative law judge. ``Support 
staff'' does not include managerial, supervisory or administrative 
personnel. Presently, the staff to administrative law judge ratio is in 
the 3.5 range which means the Agency needs to hire over 1000 support 
staff employees just to restore the status quo. However, restoring the 
status quo will only arrest, not eliminate, the disability back log.
    The Social Security Administration's adjudication system is the 
Office of Disability Adjudication and Review (ODAR), formerly the 
Office of Hearings and Appeals (OHA). It is one of the largest 
adjudication systems in the world. As stated above, in FY 2007 it 
provided the American people with 550,000 case depositions. The 
Commissioner is required to provide a requested hearing to any 
individual who asserts, in writing, that his/hers rights may be 
prejudiced by any decision of the Commissioner. The Commissioner is 
further required to give such applicant reasonable notice and an 
opportunity for a hearing. If a hearing is held, the Commissioner 
shall, on the basis of evidence adduced at the hearing, affirm, modify 
or reverse the prior findings of fact and decision. [42 U.S.C. 405]
    The hearing system that Congress established for the Social 
Security Administration is so highly regarded for the protections that 
it provides for the American people, that the United States Supreme 
Court stated that it ``does not vary from'' the Administrative 
Procedure Act and that the Administrative Procedure Act ``is modeled 
upon the Social Security Act''. [Richardson v. Perales, 402 U.S.]
    389 (1971)] Social Security claimants are not only protected by the 
Social Security Act, but they are also entitled to a due process 
hearing under the Constitution of the United States according to the 
procedures established in the Administrative Procedure Act. [5 U.S.C. 
554, 555 and 556] In establishing this process, ``Congress intended to 
make hearing examiners (now administrative law judges) `a special class 
of semi-independent subordinate hearing officers' by vesting control of 
their compensation, promotion and tenure in the Civil Service 
Commission (now the United States Office of Personnel Management) to a 
much greater extent than in the case of other federal employees''. 
[Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 931 (1953)] 
The United States Supreme Court has stated that ``there can be little 
doubt that the role of the modern federal hearing examiner or 
administrative law judge within this framework is `functionally 
comparable' to that of a judge. His powers are often, if not generally, 
comparable to those of a trial judge: He may issue subpoenas, rule on 
proffers of evidence, regulate the course of the hearing, and make or 
recommend decisions.'' [Butz v. Economy, 438 U.S. 478 (1978), Federal 
Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 
743 (2002)]
    This administrative hearing system provides an opportunity for a 
hearing to each individual requesting a hearing and it provides justice 
to the American people ``one case at a time''. Each individual who 
appears before an administrative law judge is entitled to a full and 
fair meaningful hearing after timely notice, has a right to be heard, 
has a right to be confronted with all adverse evidence and to cross-
examine adverse witnesses, is entitled to representation, and is 
entitled to thoughtful and meaningful deliberation as well as receiving 
a well written decision that is based on evidence adduced at the 
hearing. [Goldberg v. Kelly, 397 U.S. 254 (1970)]
    Federal administrative law judges play a vital role in the judicial 
structure of this nation. They are part of the Executive Branch of the 
government, but the United States Supreme Court has held that ``the 
judicial power of the United States is not limited to the judicial 
power defined under Article III and may be exercised by legislative 
courts.'' [Williams v. United States, 289 U.S. 553 (1933)] Further, the 
agencies do not have the authority to withhold the powers vested in 
Federal administrative law judges by the Administrative Procedure Act 
and the United States Supreme Court has stated that its impartiality 
``serves as the ultimate guarantee of fair and meaningful proceedings 
in our constitutional regime''. [Marshall v. Jerrico, 446 U.S. 238 
(1980)]. Administrative law judges in Social Security proceedings 
preside over an inquisitorial rather than an adversarial system as is 
customary in our judicial process. The inquisitorial system relies more 
on the administrative law judge and places more responsibility on the 
judge. It is the duty of the judge to develop the facts and develop the 
arguments both for and against granting benefits. This is in large part 
required because the Social Security
    Administration is not represented at the hearing. Therefore, Social 
Security judges are required to wear the ``so-called'' three hats 
(protect the interests of both the claimant and the trust fund and 
render a decision based on the evidence in the hearing record). 
Hearings based on this process are more time consuming and labor 
intensive for the judge. This of course begs the question, how much 
time should a Social Security judge devote to each case to provide the 
required fairness to both the claimant and the trust fund? One answer 
was presented by a Federal magistrate judge who was a presenter at a 
Federal Bar Association program in Chicago this spring. He said ``I am 
required by the 7th Circuit to read the entire record to determine if 
the ALJ decision is supported by substantial evidence and to insure 
that there are logical bridges connecting the evidence and the 
conclusions. I don't think 500-700 dispositions a year is reasonable if 
one is going to read these cases as I do.''
    Social Security judges have worked hard to attempt to address the 
disability case backlog. We had an excellent relationship with former 
Commissioner Barnhart, and we worked hard with her to reform the 
hearing process. We were in strong support of the reform effort known 
as DSI. We still endorse the concept of a Federal Reviewing Officer or 
FEDRO, an attorney who reviews the claim files before they go to a 
judge to see if the case can be paid fully or partially on the record, 
to meet with the representative to narrow the issues or perhaps even 
reach a proposed settlement for the judge's approval, who might appear 
at the hearing to present the Agency's position in the case. This 
reform, or a similar reform, would provide a method to prevent these 
cases from going to an administrative law judge hearing. There are many 
reasons for the large disability case backlog over which judges have no 
control. These reasons include factors such as:

    --  The failure of the Congress to provide adequate funding for 
Social Security,
    --  The failure of SSA to hire adequate support staff for judges,
    --  The failure of SSA to hire additional administrative law 
judges,
    --  The failure of Social Security to manage and forecast the 
impact of increased case receipts during the mid-1990's and the failure 
of the Agency to implement a plan to address the same, and
    --  The failure of many of SSA's reform initiatives.

    A United States Government Accountability Office report in December 
2007 (GAO-08-40) on the Social Security disability case backlog 
concluded that the increases in the case backlog during the last decade 
were caused by:

    --  A substantial growth in initial applications,
    --  Staff losses (including administrative law judges), and
    --  Management weaknesses evidenced by the number of failed reform 
initiatives.

    In January 2008 the Association of Administrative Law Judges hosted 
a Roundtable at the National Press Club to discuss the Social Security 
disability case backlog. The distinguished panel for this Roundtable 
consisted of GAO Director David Walker, former Social Security 
Commissioners Jo Anne Barnhart and Stanford Ross, and former Social 
Security Advisory Board Staff Director Margaret Malone. This panel 
concluded that no single group of employees in Social Security is 
responsible for the disability case backlog; the problems instead 
relate to systemic failures in the system. In this regard, the 
Association of Administrative Law Judges prepared a white paper 
discussing systemic problems in the Social Security disability process 
with recommendations to address the same. I will offer this white paper 
for the record of this hearing.
Systemic Problems
    The Reports of the GAO and SSA's OIG show the Social Security 
disability process is plagued with serious systemic problems and that 
``silver bullet'' solutions or attempts to scapegoat one or more 
classes of employees will not address, let alone solve, the problems 
confronting the Agency.
    Social Security has consistently over-estimated the benefits of 
technology at the administrative law judge level and has often 
implemented the technology before it has been ready for general use. 
Further, technology does little to assist the judge or reduce the time 
we spend doing our work. We still need to review the case before the 
hearing, conduct the hearing, prepare the hearing decision 
instructions, and edit the draft decision. The Agency is now claiming 
that technology will reduce the number of staff employees needed to 
support administrative law judges. This claim has not yet been 
certified therefore policy cannot be based on hoped for benefits of the 
new technology.
    While we embrace the use of technology in the future, current 
Agency initiatives do little to reduce the disability case backlog. For 
administrative law judges, electronic files slow down the process 
because pages take longer to ``load'' and view. Electronic organizing 
of files has not yet been perfected. Equipment failures cause delays, 
some for long periods, because the system is often not strong enough to 
handle peak work loads. The use of desktop monitors to conduct hearings 
and conducting video hearings from the offices of attorneys is fraught 
with danger. The administrative law judge hearing is the first time in 
the Social Security disability process where the American citizen has a 
chance to meet face-to-face with a high ranking government official and 
be permitted to explain the elements of his/her case. A major part of 
due process is making the claimant feel that he/she had a day in court 
and received a full and fair hearing. How can this basic fairness be 
ensured if a government employee is not present at the hearing site? 
How can use of a computer monitor deliver a hearing which is full and 
fair to both the claimant and the trust fund?
    One of the major problems and ironies in ODAR is that in addition 
to a chronic shortage of clerical support staff, it is ``top heavy'' 
with managers. In this time of declining resources, we recommend that 
the number of managers in the ODAR regional offices be reduced and 
instead be transferred to the hearing offices to work on disability 
cases. We have further recommended that the ODAR regional offices be 
closed and the staff personnel be transferred to the hearing offices. 
There is a hearing office in each regional office city and this reform 
will not cause significant changes of location for employees. In this 
electronic age, the functions of the ODAR regional offices can be more 
efficiently handled by the Office of the Chief Administrative Law Judge 
who can now easily communicate with all hearing offices without delay.
Lower Producing ALJs
    The Association of Administrative Law Judges has repeatedly offered 
its assistance to the Social Security Administration to meet with the 
judges the Agency contends have the lowest case production to attempt 
to determine the reasons for the work production, and to attempt to 
address any existing problems. Further, we have long recommended that 
the American Bar Association's Model Code of Judicial Conduct be 
adopted for administrative law judges. It should be noted that the last 
American Bar Association model judicial code specifically included 
administrative law judges. The Association of Administrative Law Judges 
first started working on this initiative in the late 1970's. However, 
the
    Agency has consistently declined to work with us in this effort.
The Report of SSA's OIG on ALJ and Hearing Office Performance
    The recent report of SSA's OIG, Administrative Law Judge and 
Hearing Office Performance (the IG Report) is deeply flawed and does 
not rest on any reliable evidence. The Agency has made much of some of 
its conclusions, but a careful reading shows those conclusions to be 
unfounded. The IG Report must be read cautiously and critically.
    The methodology--interviews with judges and staff who were not 
provided with the questions in advance--hardly meets the requirements 
of a scientific study. Further, it is clear that the inference the 
Agency wishes you to draw is that a judge's productivity is a product 
of a judge's motivation and work ethic, as this so-called finding is 
listed first among the factors that impact productivity and is repeated 
throughout the report. Much emphasis is also placed on a handful of 
judges who have low case dispositions. Yet, the conclusion regarding 
motivation and work ethic is unsupported by any facts and is based upon 
the unsupported statements of one or two managers who themselves 
produce few dispositions.
    Other major flaws: The IG Report fails to examine whether the 
factors reviewed impact the legal sufficiency of decisions, it fails to 
take into account remand rates, and it fails to consider numbers of 
cases withdrawn or dismissed in reckoning the number of dispositions. 
These are all components of performance and productivity that cannot be 
ignored. Failing to take these factors into consideration creates a 
skewed picture of performance. Further, the IG Report relies heavily on 
anecdotal evidence, sometimes from just one individual, which severely 
undermines its reliability.

    There are several fallacies implicit in this report: (1) Faster is 
better. (2) Shorter hearings are better. (3) Avoiding or limiting the 
use of expert witnesses is preferable. (4) Postponements are wasteful.

      Faster is better. The IG Report implies that spending 
less time in handling a claim and disposing of claims without holding 
hearings is a superior method of operating and that those who do so are 
more ``productive.'' The IG Report shows that the number of 
dispositions is directly related the amount of time the ALJ spends on a 
claim in reviewing the file, holding the hearing, making a decision and 
preparing the instructions, and editing the draft. The ``higher 
producers'' spend less time on these duties. But it must be noted that 
the ``higher producers'' pay more cases. It is easier and faster to 
approve a claim than to deny it. Denials demand far more detailed 
rationale. Thus, if ALJs are required to issue more decisions, it 
should be expected that less time will be devoted to the work required 
to process cases properly, which will result in a higher number of 
claims incorrectly paid. The IG Report repeatedly emphasizes ``fast'' 
while ignoring the legal and ethical obligations of handling a 
caseload. Productivity cannot be divorced from legal sufficiency.
      Use of expert witnesses. The IG Report, pointing out that 
the use of experts slows the hearings and reduces the number of 
decisions that a judge issues, states that such use is within the 
judge's discretion. This is largely incorrect. Experts, particularly 
vocational experts, must be used under certain circumstances (such as 
the rulings of the Circuit Courts and the Agency's own regulations and 
rulings) unless the judge plans to pay the claim. Reducing the use of 
vocational experts will lead to greater pay rates. The use of medical 
expert witnesses to assess the severity of often complex medical 
conditions clearly is preferable to relying solely on the assessment of 
the judge, a medical layperson.
      The conclusion that lower producing judges postpone more 
hearings than the higher producing judges implies that one group--the 
lower producers--grant too many postponements. However, there is no 
evidence to back up this implication. It may well be that higher 
producing judges have better staff support (scheduling hearings on 
agreed-upon dates with the representative), work in locations where 
transportation is less of a problem, or are wrongfully refusing to 
postpone hearings. Without a study, no conclusions can be drawn.

    Note that there are but 22 Judges out of 1,155--less than 2%--who 
issue a very low number of decisions. Note also that the number of 
dispositions per judge creates a bell curve, which is a normal 
distribution, and that most judges are in the center of the curve.
    A careful reading of the IG Report establishes that the ALJ Corps 
is working extremely hard and is extraordinarily productive. ALJs have 
increased their dispositions thirteen percent from FY 2005 to FY 2007--
this in spite of insufficient resources and an electronic file system 
that slows the processing of cases for the judges. The IG Report fails 
to mention that this increased productivity comes on the heels of 
increases in ALJ productivity for the several years prior to 2005 as 
well.

    The IG Report and GAO Reports actually substantiate that there are 
a number of factors outside of the control of the judge that affect 
productivity: ratio of staff to judge, quality and composition of the 
staff, State Agency Disability Determination Service (DDS) allowance 
rates and quality of case development, and the availability of worked-
up cases for hearings.

      Higher staff ratios allow a judge to be more productive. 
More cases can be scheduled for hearing in offices where there are 
sufficient numbers of support staff to prepare the files; there are 
times when ALJs do not have as many hearings scheduled as requested 
because there is insufficient support staff to prepare the cases. The 
Agency's failure to hire sufficient support staff should be strenuously 
questioned as this has had and continues to have the most serious 
direct impact on productivity and increased processing times. Over 60% 
of the 770,000 cases in the system awaiting hearings have not yet been 
seen by a judge.
      The quality of staff will affect the number of cases a 
judge can handle; some decision writers are attorneys and others are 
former clerical employees. Resources may be distributed unequally to 
the Judges within an office, which will impact the ability to issue 
decisions.
      The DDS informal remand procedure is touted as an 
initiative to reduce the backlog. What is missing from this IG Report 
is that the Agency unwisely removed the reconsideration step from the 
claims process in about ten states, which had the effect of helping to 
create the backlog. In some respects, the informal remand is merely a 
return to past procedures.

    Much is made of Agency expectations, as if these expectations had 
any basis in fact. They do not. The expectation of five hundred to 
seven hundred dispositions per year is not based on any time study of 
how long it takes for a judge to handle a case.
    The Agency expects writers, who perform fewer functions in 
processing a case than judges, to spend four hours drafting a favorable 
decision and eight hours to produce an unfavorable one. The current 
average number of decisions written by the writers is 32 per month, 384 
annually. Should judges be afforded less time to handle a case?
    Taking a closer look at the IG Report, the following issues are 
raised as to the accuracy of the findings and conclusions:

      The assertion that SSA's disability program will continue 
to grow at an increasing rate as ``aging baby boomers reach their most 
disability-prone years'' is not supported by any data in the IG Report. 
Statistical samplings in some offices have shown that the majority of 
claimants--sixty percent--are under fifty years of age. Planning for 
handling the disability workload should be based on hard statistical 
data.
      Table 1 Dispositions Issued in FY 2007 is misleading as 
it includes ALJs who were precluded from handling cases on a full time 
basis for reasons related to illness, leave, other assignments, or 
management duties.
      Despite listing motivation and work ethic as a factor in 
productivity and processing times, no study was done to support this 
contention. In fact, buried in the IG Report at page five is an 
admission that the impact of motivation and work ethic on productivity 
and processing times was not measured.

    ``Shortcuts'' such as ``Streamlined'' folders and scheduling cases 
before they are worked up are more often counterproductive. A 
``streamlined'' claim file is one which is not worked up, i.e., 
prepared for hearing. Duplicates of often hundreds of pages of exhibits 
are not removed. Exhibits are not identified, placed in chronological 
order or even numbered. This allows the support staff to spend less 
time in preparing a case record. However it requires that the judge, 
and the writer, and medical experts and the representative to spend far 
more time reviewing the record. Scheduling cases before work-up will 
not alleviate ALJs having insufficient cases for hearing. The cases 
will still need to be worked up before the hearing.
    Another Agency initiative, the ``rocket docket'' changes scheduled 
hearings to a ``cattle call'' in which all unrepresented claimants are 
told to appear at the beginning of the day. The purpose is to determine 
which ones will not appear. Their claims are dismissed. Those who 
appear are told their hearings will be held in the near future. This 
discriminates against unrepresented claimants who may have to travel 
long distances to the hearing office on more than one occasion to have 
their cases heard and who may have to wait hours to be called.
    While the electronic initiatives may save time for support staff 
and will offer other significant future benefits in storage, access 
etc., these changes do nothing to reduce the time spent by the judges. 
In fact, it takes longer to review an electronic file. Moreover, the 
system periodically slows down or stops working altogether. Although 
the IG Report appears to address this issue, it merely lists the 
comments of judges, some of whom do not believe that electronic files 
take longer to process; no study was done to determine the length of 
time it takes to handle electronic cases. The judges who believe that 
electronic files take no more time to process than paper files may well 
be in offices where the electronic files, being newer, have 
considerably fewer medical documents than paper files.
    Finally, this IG Report is disingenuous as it seeks to leave the 
reader with the impression that many ALJs are not very productive and 
that this is of their own choosing. It further implies that Judges need 
to be disciplined in order to increase their output. There are simply 
no facts to support such conclusions. Moreover, this IG Report is a 
grave disservice to the Judges who every day fulfill their oath of 
office by providing due process to every claimant. It is also a 
disservice to the American public, which has a right to expect that 
every Judge will provide a full and fair hearing, an opportunity to be 
heard, thoughtful and meaningful deliberation and a well-written 
decision.
Conclusion
    Chairman McNulty and members of this subcommittee, there are just 
three salient points the Association of Administrative Law Judges would 
like to leave with you.
    The most pressing need for ODAR at this time is a major addition of 
support staff. This has been the major contributing factor to the 
backlog. Virtually all the ``boots on the ground''--judges, hearing 
office managers or hearing office chief judges--will confirm that, 
without a substantial infusion of additional support staff, at least 
1,000, the backlog will not be substantially reduced.
    No single group of employees is at fault for the backlog, certainly 
not the corps of administrative law judges. The undisputed facts show 
the judges have increased their production year after year.
    The Association of Administrative Law Judges wants to work with, 
not joust with, Agency management as we have worked together in the 
past. To the extent there may be judges whose productivity is below a 
reasonable level, we specifically want to join with Agency management 
to try to work with those judges to assist them to become more 
productive. The judges are not part of the problem. We do want to be 
part of the solution.
    We thank you for your consideration.
            Sincerely,
Ronald Bernoski
President

                                 

    Judge BERNOSKI. I offer for the record the part of the Plan 
For A New Disability Claims Process that I referred to, and 
also the AALJ white paper that I referred to. I will offer them 
today in paper and then I can submit electronic copies later so 
the staff can include them more efficiently in the record.
    Chairman MCNULTY. Without objection, those documents will 
be included in the record.
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    Chairman MCNULTY. Thank you very much. We have been joined 
by Congressman Pomeroy.
    Mr. Hill.

   STATEMENT OF JAMES HILL, PRESIDENT, CHAPTER 224, NATIONAL 
           TREASURY EMPLOYEES UNION, CLEVELAND, OHIO

    Mr. HILL. Good morning. A familiar smiling face is missing 
today. Stephanie Tubbs Jones was my representative in Congress. 
We have all lost a friend. Please accept my deepest sympathies.
    I want to thank you, Mr. Chairman, and the other Members of 
this Subcommittee for inviting me to testify on this very 
important topic.
    I have worked as an attorney advisor in the Cleveland, Ohio 
hearing office for 25 years. I am also the President of Chapter 
224 of the National Treasury Employees Union, that represents 
attorney advisors and other staff members in approximately 110 
ODAR hearing and regional offices across the United States.
    We are here today to talk about ODAR hearing offices. 
First, it must be understood that a vast majority of hearing 
office employees are very dedicated workers. These employees 
are not the cause of the backlog.
    There are four basic causes of the backlog. One, too few 
employees to efficiently process the workload. Two, poor 
managerial decisions. Three, an inefficient adjudicatory 
process, and four, the mis-use of skills and talents of hearing 
office personnel.
    The solution to the first cause is obvious. Hire more 
employees. Specifically, ODAR must increase the number of 
clerical workers and attorney advisors. Without sufficient 
staff, hearing offices will be unable to effectively address 
their workload.
    Unfortunately, SSA has never recognized the professionalism 
and competence of hearing office staff and their contribution 
to an efficient adjudication process.
    Additionally, the Agency has a history of assuming that 
untried technological improvements can replace staff. SSA 
automation initiatives rarely if ever come in on time and even 
more rarely deliver what is promised.
    No significant progress can be made until hearing offices 
are fully and properly staffed. ODAR needs to hire at least 400 
new attorney advisors.
    SSA has a long history of poor managerial decisions 
regarding the disability process. These decisions include 
terminating the Senior Attorney Program in 2000 which 
eliminated the backlog in the nineties, and the pursuit of 
expensive, expansive and ineffective initiatives such as the 
disability process redesign, HPI, DSI, and others that have 
cost the taxpayers millions and have produced virtually nothing 
of value.
    Management has also instituted a number of ill conceived 
and ill advised quick fixes whose long term effects have been 
disastrous to productivity.
    The inefficient adjudicatory process in today's hearing 
offices is primarily the result of lack of sufficient staff and 
the mis-use of the talents and skills of hearing office 
personnel.
    For example, the lack of staff has resulted in eliminating 
or degrading pre-hearing activities such as preparing case 
summaries and ``pulling''. While this saves clerical staff 
time, it significantly increases the time that the more highly 
paid paralegals, attorneys and ALJs must spend at later stages 
of the adjudication process.
    The lack of a sufficient number of attorney advisors has 
shifted some of the pre-hearing screening and decision writing 
workloads to ALJs. ALJs should be permitted to perform their 
jobs but not required to perform everybody else's.
    Finally, there is no need for ALJs to adjudicate each and 
every case at ODAR hearing offices. In fiscal year 2008, ODAR 
will process approximately 95,000 dismissals and approximately 
95,000 on the record decisions. Most of the dismissals and all 
of the on the record decisions do not require ALJ involvement.
    Commissioner Astrue has initiated a limited temporary 
program called the ``Attorney Adjudicator Program.'' It should 
be expanded and made permanent. Despite its limited nature and 
less than full support by ODAR management, it has been a 
success and will produce approximately 25,000 on-the-record 
decisions this year with an accuracy rate of 95 to 97 percent.
    In order to maximize adjudicatory capacity of hearing 
offices, the number of senior attorneys should be increased to 
700. The senior attorneys can then concentrate on adjudicating 
cases that can be resolved on the record rather than drafting 
ALJ decisions. This could produce as many as 150,000 on the 
record decisions a year without adversely effecting ALJ 
productivity.
    The backlog could be eliminated before the end of fiscal 
year 2011 and done so in a fiscally prudent manner.
    Thank you.
    [The prepared statement of James Hill follows:]
  Statement of James Hill, President, Chapter 224, National Treasury 
                    Employees Union, Cleveland, Ohio
    Good Morning Mr. Chairman and members of the subcommittee. My name 
is James Hill. I have worked as an Attorney-Adviser in the Office of 
Disability Adjudication and Review (formerly the Office of Hearings and 
Appeals) for over 25 years. I am also the President of Chapter 224 of 
the National Treasury Employees Union (NTEU) that represents Attorney-
Advisers and other staff members in approximately 110 Office of 
Disability Adjudication and Review (ODAR) Hearing and Regional Offices 
across the United States.
    Let me also mention that I am a resident of the 11th congressional 
district of Ohio. For many years I was deeply honored to be represented 
in Congress by the late Stephanie Tubbs Jones. She was an outstanding 
member of the House and ably served on this subcommittee. I, my family 
and the members of my union mourn her passing.
    Disability adjudication at SSA has a troubled history. The backlog 
problems of the SSA disability program began in the early 1990s when 
the cases pending at the then Office of Hearings and Appeals (OHA) 
hearing offices rose from approximately 180,000 in 1991 to 
approximately 550,000 in mid-1995. At the end of FY 1999 the number of 
cases pending at OHA had been reduced to slightly over 311,000 
primarily as the result of over 220,000 decisions issued by Senior 
Attorneys in addition to the then record level of productivity by ALJs. 
In fact by the end of FY 1999, there was no longer an appreciable 
backlog, since 300,000 cases was deemed to be the optimum number of 
pending cases for efficient adjudication.\1\ The Hearings Process 
Improvement Plan (HPI) ended the Senior Attorney Program. The demise of 
the Senior Attorney Program and the rise of the backlog were not 
coincidental and are illustrative of the management deficiencies that 
have plagued the disability program. Since that time the number of 
cases pending at ODAR has risen to over 767,000 cases.
---------------------------------------------------------------------------
    \1\ GAO in its report entitled Social Security Disability, Better 
Planning, Management, and Evaluation Could Help Address Backlogs dated 
December 7, 2007 reaffirmed that SSA's target pending at the hearings 
level was 300,000 cases. More recently, the Agency has increased the 
target pending level to 400,000 reducing the ``backlog'' but leaving 
the pending level, average processing time, average age of pending, and 
the poor level of service to the public unaffected.
---------------------------------------------------------------------------
    The size of the disability backlog (now over 467,000 cases) does 
not in and of itself illuminate the degree of suffering endured by our 
claimants. Because of this enormous backlog, the average age of cases 
pending at the hearings level increased from approximately 160 days in 
FY 2000 to the current 316 days. Average processing times at the 
hearings level have increased from approximately 260 days at the 
beginning of FY 2000 to the current 532 days. Even the 532 day figure 
is somewhat misleading. The average processing time for a case that has 
an ALJ hearing is 588 days. These unconscionable numbers do not include 
the time the case was at the State Agency for an initial and 
reconsideration determination. Further darkening the picture is the 
specter of significantly increased receipts resulting from the aging 
``baby boomers'' and a less than robust national economy. Currently, 
SSA disability adjudication is unconscionably slow causing untold harm 
to some of the most vulnerable members of society. Unless decisive 
action is taken now, the dysfunction of the disability system may lead 
to the public's loss of faith in Social Security.
    Currently, it is in vogue to blame low producing Administrative Law 
Judges (ALJs) for the backlog. This is merely scapegoating. Further, 
given the recent statement by Office of the Inspector General (OIG) 
that the higher producing ALJs tend also to pay more cases, it is not 
unreasonable to assume that unreasonably high ALJ productivity will 
come at the price of stewardship of the trust fund. The Congress is 
also blamed for persistently underfunding the Social Security 
Administration as well as adding a number of non-core workloads 
diverting assets from its traditional programs. While SSA has been 
underfunded, it is under an absolute duty to use that funding as 
efficiently as possible. SSA has consistently failed to efficiently 
apply the resources it has at its command to effectively manage the 
disability adjudication process. The Government Accountability Office 
(GAO) in a report entitled Better Planning, Management, and Evaluation 
Could Help Address Backlogs published in December 2007 stated: ``. . . 
management weaknesses as evidenced by a number of initiatives that were 
not successfully implemented have limited SSA's ability to remedy the 
backlog.''
    Because of a persistent lack of vision and leadership in its 
administration of the disability process, SSA has failed to prevent or 
reduce the backlog. Previous Commissioners have indulged in a number of 
expensive and ineffective initiatives that were intended to improve the 
disability system. The Disability Process Redesign of the mid-1990's 
never got off the ground and the Hearing Process Improvement (HPI) of 
the early 2000's is one of the prime causes of today's backlog. 
Finally, the Disability Improvement Initiative (DSI) has been 
suspended. While each of these programs alleged that they were 
correcting fundamental flaws in the adjudication process, each was more 
concerned with form than function. As a result each of these plans cost 
the taxpayers millions and produced virtually nothing of value.
    The process at the hearings level is quasi-judicial, not unlike the 
process that prevails in modern day court houses. There are some 
significant differences related to the informality of the proceedings 
such as the inapplicability of the rules of evidence, but these aid 
rather than impede an efficient process. The most significant 
difference between the ODAR process and that of most courts is the 
percentage of cases that do proceed through a hearing. The Honorable 
Ronald G. Bernoski, President of the Association of Administrative Law 
Judges, has noted on numerous occasions the necessity of reducing the 
number of cases that proceed to an ALJ hearing. In his response to 
questions from the Appropriation Committee, he stated: ``Social 
Security can no longer have over 90% of its disability cases continuing 
on to a full hearing before an administrative law judge.'' Judge 
Bernoski further stated ``nowhere in our judicial system is a judge 
required to take to hearing such a high percentage of cases compared to 
the total docket.'' NTEU absolutely concurs.
    There are a number of contributing factors to the backlog at ODAR, 
but its fundamental cause is an inefficient adjudicatory process. ODAR 
is severely understaffed at the hearing office level. There is an over-
reliance on the ALJs and a failure to make effective use of the other 
hearing office staff. Because of the lack of adequate staffing, ALJs 
are now performing many of the tasks formerly done by the other staff. 
ALJs are the only hearing office personnel that can conduct hearings, 
but much of their time is spent doing tasks that can be performed as 
well or better and certainly in a more efficient and fiscally 
responsible manner by other members of the hearing office staff.
    The lack of adequate staff impedes the development and preparation 
of a case at the pre-hearing stage and causes further delays after the 
hearing. ALJs are expected to do prehearing screening, review 
``unpulled'' files, conduct hearings on cases that have not been 
properly prepared, adjudicate cases not requiring a hearing for 
disposition, and decision writing. Primarily as a result of ill-advised 
short sighted fixes, ALJs have been drafted to perform many of the job 
duties of other staff. While in the short run these ``fixes'' appeared 
to increase productivity, in the long run they merely exacerbated the 
problem. The ALJs should be doing their job, not everyone else's.
    Another ``quick fix'' in the Plan to Eliminate the Hearing Backlog 
and Prevent Its Recurrence is an initiative that ordered the remand of 
profiled unworked cases from the hearing office back to the state 
agency. The state agencies reviewed the cases, and according to OIG 
paid 33% of those cases. Since only paper files were involved, both the 
hearing office and the state agency were required to allot significant 
work hours to the transportation, both to and from, of these files. 
This work was done on overtime by the state agencies. The review could 
have just as easily been performed by Attorney Adjudicators in the 
hearing office. More to the point, the state agencies have their own 
workload including Continuing Disability Reviews (CDRs) that have been 
to a great extent sacrificed to the disability backlog. The reduction 
in CDRs is particularly painful since each dollar spent on CDRs saves 
the trust fund 10 dollars. Additionally, failure to identify those who 
are no longer entitled to disability benefits seriously erodes the 
credibility of the disability system with the general public.
    Staffing shortages have also resulted in the elimination and 
degradation of functions performed by the support staff that are 
essential in an efficient adjudicatory process. Because of the failure 
to replace the 450 clerical workers who were promoted to the Paralegal 
Specialist position pursuant to HPI, the task of the then Legal 
Assistants to prepare a case summary for the ALJ was eliminated. This 
significantly increased the time an ALJ must spend reviewing a file 
before the hearing. The lack of sufficient clerical staff has led to 
the overwhelming backlog in cases to be ``pulled''. The current 
streamlined and modified pulling initiatives and the policy of 
encouraging ALJs to hear ``unpulled'' cases, instituted because of the 
lack of clerical staff to perform the ``pulling'' function, 
significantly increases the time much more highly paid ALJs, Attorney 
Advisers, and Paralegal Specialists must spend to perform their jobs. 
This is inefficient and fiscally irresponsible.
    Because of inadequate numbers of Attorney Advisers, ALJs drafted 
over 91,000 decisions, about 10% of the decisions drafted in FY 2007 
and FY 2008. ODAR maintains a staff of nearly 1300 Attorney Advisers 
and Paralegal Specialists whose primary responsibility is to prepare 
written draft decisions. While it is difficult to accurately quantify 
the amount of time ALJs devoted to decision drafting, it substantially 
reduced the time they could spend conducting hearings. A similar 
observation can be made about the overall effectiveness of having ALJs 
involved in early pre-hearing screening and adjudicating cases that do 
not require a hearing for disposition.
    After the termination of the Senior Attorney Program in 2000, until 
November 2007, an Administrative Law Judge was required to adjudicate 
each and every case at ODAR hearing offices. During FY 2007 
approximately 16% of ODAR dispositions and in FY 2008 over 18% of 
dispositions were dismissals. In FY 2007 over 18% of decisions and in 
FY 2008 over 20% of decisions were made on-the-record--without a 
hearing. Only an ALJ can conduct a hearing, but obviously not every 
case of ODAR hearing offices requires a hearing or ALJ involvement. In 
fact, during FY 2007 and FY 2008 nearly \1/3\ of ODAR hearing office 
dispositions did not involve an ALJ hearing. The simple fact of the 
matter is that neither a hearing nor an ALJ is needed to dispose of 
every case. By relieving ALJs of the responsibility for adjudicating 
cases which do not require an ALJ, the ability of ALJs to focus on 
those cases requiring their expertise can be enhanced. That is the 
rationale behind the Attorney Adjudicator Program. The disposition of 
many of the dismissals and all on-the-record decisions can be 
accomplished without ALJ involvement, freeing the ALJs to hold more 
hearings and issue additional decisions.
    Many cases (dismissals, fully favorable on-the-record cases, 
favorable requested closed period cases, and cases in which the 
claimant waived his/her right to a hearing) should be adjudicated 
without ALJ involvement. In FY 2007 84,800 decisions were issued on-
the-record (without a hearing) and through the end of August 2008 
88,175 on-the-record decisions have been issued. It is likely that over 
95,000 on-the-record decisions will be issued in FY 2008 and over 
100,000 in FY 2009. Nearly all of these decisions could have been 
issued by ODAR Attorney Adjudicators. With sufficient staffing to 
support the ALJs and an effective Attorney Adjudicator program, ODAR 
dispositions could easily increase by over 150,000 a year at a minimal 
cost.
    As part of his Plan to Eliminate the Hearing Backlog and Prevent 
Its Recurrence, Commissioner Astrue has reinstituted a version of the 
original Senior Attorney Program that was largely responsible for 
eliminating the disability backlog in the 1990's. Decisional accuracy 
is not an issue with the Attorney Adjudicator Program. Quality review 
by the Office of Quality Performance (OQP) establishes an accuracy rate 
beginning at 95% and subsequently rising to 97%, an extraordinarily 
high accuracy rate, particularly since OQP utilized a preponderance of 
the evidence standard (essentially substituting the judgment of the 
reviewer for that of the adjudicator) rather than the substantial 
evidence standard applied by most appellant bodies including the 
Appeals Council. The success of the former Senior Attorney Program in 
eliminating the backlog of the 1990's and the very favorable beginning 
of the current Attorney Adjudicator Program render arguing the merits 
of the concept of attorney adjudication unnecessary. The Program should 
be made permanent immediately.
    However, the current Attorney Adjudicator Program is only temporary 
and too limited in scope and range to attack the backlog problem as 
effectively as did the original Senior Attorney Program. Additionally, 
inadequate staffing of Attorney Advisers and Attorney Adjudicators and 
a limited, haphazard, ineffective and occasionally obstructive 
implementation by ODAR have severely limited the effectiveness of the 
Attorney Adjudicator Program in terms of the number of on-the-record 
decisions issued. Properly administered, this program will produce over 
150,000 decisions a year in addition to, and not at the expense of, the 
number of ALJ decisions issued. Like its predecessor Senior Attorney 
Program of the 1990's, the Attorney Adjudicator Program can help 
eliminate the current backlog and ensure that a backlog does not recur.
    Nonetheless, despite the promise of the Attorney Adjudicator 
Program, the current crisis is of such magnitude that additional 
changes are required if SSA is to get control of the backlog problem 
within an acceptable timeframe. Recently, the Agency announced an 
increase in the number of Senior Attorneys to 450; a net increase of 81 
positions. This is certainly a step in the right direction. However, 
the time allocated to case adjudication by Attorney Adjudicators is 
typically about one day a week. In a number of offices the initiative 
has never been implemented. At the current rate, the Program will have 
generated approximately 25,000 on-the-record decisions during FY 2008. 
While this reduced the rate of the increase in the pending, its long 
term effect, even considering the augmentation of the ALJ Corps to 
1,250 ALJs, will not eliminate the backlog. Attorney Adjudicators, who 
in this very truncated program have produced over 22,000 on-the-record 
decisions so far this year with an accuracy rate of 97%, have 
demonstrated that fuller implementation of even this limited Attorney 
Adjudicator Initiative could have produced as many as 50,000 on-the-
record decisions in FY 2008 thereby freeing the ALJs to hold many 
additional hearings. Such productivity from the Attorney Adjudicator 
Program requires securing sufficient decision drafting capacity to 
adequately support the ALJs. The productivity gains from the 
implementation of an expanded and comprehensive Attorney Adjudicator 
Program would be far greater.
    ODAR can decrease its pending by well over 150,000 cases a year by 
promoting just 250 skilled and experienced GS-12 Attorney Advisers one 
grade, to the GS-13 Senior Attorney position, and allowing the Attorney 
Adjudicators to devote nearly all of their time to reviewing every 
disability case appealed to ODAR and adjudicating those cases that do 
not require ALJ participation (dismissals and cases in which on-the-
record decisions can be issued). With unnecessary ALJ involvement, ODAR 
is currently generating nearly 100,000 on-the-record decisions. Given 
the number of receipts and the size of the backlog, the number of cases 
suitable for on-the-record treatment is at least 50% greater than the 
number of on-the-record decisions currently issued.
    Because Attorney Adjudicators work on ``unpulled'' cases, an 
additional important benefit of a vigorous Attorney Adjudicator Program 
would be a significant decrease in the number of cases that need to be 
``pulled'' leading to a significantly reduced average processing time. 
Attorney Adjudicators work on ``unpulled'' or ``unassembled'' files. 
Those that result in fully favorable decisions do not have to be 
``pulled''. The benefit from not having to ``pull'' these cases cannot 
be overstated. Today there are approximately 450,000 cases pending 
``pulling''; a workload that will require over 200 work days to process 
at which time approximately 450,000 new cases will have been received 
that will need to be pulled. Most ALJs will not and should not hold 
hearings on ``unpulled'' cases. ODAR's inability to ``pull'' sufficient 
cases to maintain ALJ dockets is a significant factor in the creation 
and maintenance of the current backlog. Each disposition by an attorney 
adjudicator is one less case that must be ``pulled'' and one less case 
contributing to the backlog.
    An extensive and intensive Attorney Adjudicator Program would 
involve a decrease in ALJ decision drafting capacity that must be 
replaced. In a Statement on Behalf of the Association of Administrative 
Law Judges, before the House Subcommittee on Labor, Health, and Human 
Services and Related Agencies of the Committee on Appropriations, Judge 
Bernoski stated that a judge could not perform his/her work in 
isolation and the support of sufficient competent and trained staff is 
essential. He further indicated that adequate staff included 2.5 
attorneys and 2.0 clericals for each ALJ. While NTEU believes that 
ratio may be too high, clearly at least 1.5 Attorney Advisers are 
needed for each ALJ to draft ALJ decisions.
    Currently, there are 1190 ALJs available for duty (the highest 
number since at least 1996) and approximately 1,270 Attorney Advisers 
and Paralegal Specialists (decision writers). In light of the current 
shortfall in the number of Attorney Advisers, the replacements needed 
for Attorney Advisers that would be promoted to the Senior Attorney 
position (250), and the capacity required to replace decision drafting 
by ALJs, approximately 400 new Attorney Advisers should be acquired. 
This is slightly less than the 440 attorneys that Judge Bernoski 
indicates are necessary to support the new 175 ALJs. NTEU recognizes 
that this constitutes a major increase in staff, but given the value of 
the 150,000 decisions in addition to those issued by ALJs and the 
increase in the number of ALJ decisions that adequate levels of 
staffing will facilitate, the cost of the additional staff is well 
justified. The current backlog could be eliminated by the end of FY 
2011. The backlog would never recur.
    The most effective remedy for the disability backlog is to hire 
sufficient staff, effectively utilize the skills of the staff, and 
permit the ALJs to direct their attention to the tasks that only they 
can do. Without sufficient support staff, SSA cannot properly prepare 
enough cases to fill the dockets of the ALJs or timely prepare and 
issue the written decisions. NTEU does not have sufficient information 
to accurately assess the number of additional clerical employees 
currently required to permit an efficient hearing operation. The 
acquisition of sufficient support staff would facilitate developing the 
record, scheduling hearings, pulling cases, and the other clerical work 
that needs to be done to support administrative hearings. In addition, 
hiring 400 additional attorneys and expanding the Attorney Adjudicator 
Program would permit ALJs to return to the task of deciding cases that 
required a hearing and would provide those disabled claimants who do 
not require a hearing a favorable decision months, if not years, 
earlier than otherwise would be the case.
    SSA seems unwilling to acquire sufficient staff to permit efficient 
hearing office operations as it apparently believes that automation 
will significantly increase productivity without hiring additional 
staff. The GAO Report of December 2007 reported that many SSA senior 
managers and ALJs recommended a staffing ratio of 5.25 support staff to 
administrative law judge. With over 767,000 cases pending and the 
backlog continuing to grow it would be dangerous to reduce or suppress 
staffing based on potential improvements from unproven and in some 
cases non-existent electronic automation initiatives.
    Even if all of the Agency's electronic initiatives can be developed 
and implemented successfully there is no evidence that ODAR will 
require significantly less staff in light of an increasing case load 
and the 767,000 cases currently that have to be processed. If history 
is the guide, optimism is probably not justified. SSA automation 
initiatives rarely, if ever, come in on time, and even more rarely 
deliver what was promised. For example, the unjustified reliance in 
technology instead of professionally trained employees is demonstrated 
by the Agency's proposal to increase the number of decisions drafted by 
ALJs through automation. OIG reported that a SSA initiative involves 
using a FIT template to create instructions that generate the rationale 
for favorable decisions. I have seldom, if ever, seen instructions 
detailed enough to generate the rationale for a decision. These 
``decisions'' may well be CDR proof preventing those who are no longer 
disabled from being removed from the rolls. It also betrays a tendency 
to deal with the backlog by ``paying down'' the backlog that winds its 
way throughout the Plan to Eliminate the Hearing Backlog and Prevent 
Its Recurrence.
    In any event the crisis is now, and the solution should be directed 
toward the present. While automation may and almost certainly does hold 
promise for the future, ignoring the present while focusing on the 
future is one of the causes of the backlog. Even if the success of 
automation does reduce the number of employees needed, the demographics 
of the workforce indicate that retirement will more than eliminate any 
chance of excess employees.
    SSA is also committing funds to establishing ``National Hearing 
Centers''. The first is already operational in Falls Church, VA; the 
second is in Chicago which already has four hearing offices; and a 
third is to be situated in Albuquerque, NM co-located with the hearing 
office. No operational efficiencies are achieved through the 
establishment of these adjudicating entities that are not already and 
better served at hearing offices. Certainly the capacity for conducting 
video-conference hearings already exists in nearly every current 
hearing office to facilitate conducting remote hearings and for 
adjudicating temporary excess workloads. We see no value in creating a 
duplicate hearing structure and attendant bureaucracy. The centralized 
nature of National Hearing Centers, which do not provide for in-person 
hearings, will alienate the public and further damage the Agency's 
credibility. For more than seventy years SSA has strived to maintain 
face-to-face contact at the local level with the public it serves. This 
is one of the factors that separate SSA from the majority of federal 
agencies. The proliferation of National Hearing Centers will 
significantly weaken the bond between SSA and the public it serves 
while not adding value to the process. Not incidentally, National 
Hearings Centers significantly lessen the ability of a Member of 
Congress to effectively protect the rights of his/her constituents.
    The advent of electronic hearing folders facilitates the movement 
of cases to other hearing offices as easily as to a National Hearing 
Center. There is no operational justification for the establishment of 
such centers. Moreover, their unique staffing structure emphasizes the 
Agency's commitment to achieving its political rather than operational 
goals over providing high quality service to the public. The extent and 
the expense to which SSA pursues the National Hearing Center concept 
rather than committing these assets to hearing offices should give all 
a reason to doubt the sincerity of the Agency to provide quality 
service to the public.
    In order to expeditiously eliminate the backlog and prevent its 
recurrence NTEU recommends:

    Hiring 400 additional Attorney Advisers.
    Expanding and making permanent the Attorney Adjudicator Program.
    Expanding the jurisdictions of Attorney Adjudicators to include 
dismissals and cases in which the claimant waives his/her right to a 
hearing.
    Hiring sufficient clerical staff to adequately support the ALJs.
    Ensuring that new automation processes are properly tested and 
viable before they are fully implemented.
    Making no reduction of hearing office staff based on unproven 
automation initiatives.
    Making no reduction in hearing office staff until the backlog is 
eliminated and there are no more than 300,000 cases pending at ODAR 
hearing offices.
    Eliminating the National Hearing Centers in order to expand the 
local hearing offices.

                                 

    Chairman MCNULTY. I want to thank all of you very much for 
your testimony and for your good work. We are all trying to get 
to the same goal here. It is just a matter of coming together 
and reaching agreement on how to get there.
    Judge Cristaudo, Ms. Meinhardt's testimony states that on 
average, cases in hearing offices wait 209 days before the case 
can be prepared by clerical staff for review by the ALJ. She 
stated at the end of August 2008, there were more than 450,000 
cases waiting to be prepared. That is more than half of the 
hearings' backlog.
    I just wanted to ask you, number one, do you agree with 
these figures, and number two, can you give us a little bit 
more detail about what we are doing to fix that problem.
    Judge CRISTAUDO. Thank you, Mr. Chairman. In terms of the 
exact numbers, Kathy is a very skilled manager. I am sure the 
numbers are precise. Yes, they seem accurate to me.
    The issue, of course, is pretty much what everyone on the 
panel has talked about. We simply do not have enough people to 
do the work. What happens is we have cases that get added to 
our docket and we have not had enough judges or adjudicators to 
handle that workload.
    Complicating matters is that in many of the situations, we 
have not had enough staff to get cases ready for the judges. It 
is natural to have a significant number of cases in that 
category because we need to maintain a certain number of cases 
pending just to be an efficient operation.
    We define a backlog of cases as being above 360 cases 
pending per judge. With about 1,200 judges, if you multiply 
that by 360, any number above that product would be the 
backlog. There is going to be a fair number of cases in that 
category at any time, even without a backlog.
    I certainly agree with Ms. Meinhardt that there are cases 
in that group that we could be getting ready for the judges to 
hear. Again, we need judges to hear those cases.
    One of the things that we are doing, as some of the 
panelists have talked about, is the e-pulling initiative. E-
pulling is an initiative that the Agency is looking at as 
something that perhaps may help some time into the future. We 
are piloting that in five of our offices, including in Ms. 
Meinhardt's office. We do not have any plans to implement that 
initiative completely until we know it is in fact working.
    We have not made decisions based on expectations in terms 
of staff at this point with that initiative. If it does work as 
expected, it certainly would affect the number of staff that 
would be necessary.
    Chairman MCNULTY. It all seems to get back to staff. 
Despite what you have just said, SSA has indicated that the 
Agency does not plan to hire as many hearing office support 
staff as some have suggested are needed because of the 
automation initiatives that would hopefully reduce the need for 
staff in the future.
    Anybody on the panel, but I particularly want to hear from 
Ms. Meinhardt, Judge Bernoski and Mr. Hill about this, because 
this concerns me greatly.
    As people who work on the frontlines in SSA's hearing 
offices, do you agree with this strategy or do you think it 
would be more effective to hire the needed staff now and let 
staffing levels shrink through attrition should the automation 
reduce the need for staff some time in the future?
    Mr. HILL. I absolutely agree with what you just said. The 
crisis is now. Automation initiatives may or may not be 
effective. We do not know. Judge Cristaudo just indicated that. 
We have had a long history of anticipating these things coming 
out in planning.
    We have 767,000 people waiting for hearings. It is 200 and 
some odd days pending pulling. Back in the year 2000, the 
number of days pending pulling was 50, not 200. That is 200 
work days. That is the better part of a year.
    I agree that hiring the staff now given the demographics of 
the workforce, attrition through retirement will handle any 
problem three or 4 years down the line. Deal with today's 
problem now and if improvements come, and there will be 
improvements to come, adjust to them as time goes on. There is 
a danger in anticipating.
    Chairman MCNULTY. Judge Bernoski?
    Judge BERNOSKI. Mr. Chairman, I, too, agree with what Jim 
Hill has said, at this point, the problem is here. We need the 
additional staff to address the problem at this time because we 
are at acritical choke point in our process.
    Also, the Agency has traditionally placed an over reliance 
on technology and they have over promised what technology will 
deliver. We have no knowledge at this point, as Kathy Meinhardt 
said during the course of her testimony, as to what is going to 
happen with the e-pulling, for instance, whether it is in fact 
going to be successful.
    Last week at one of our meetings, we were advised that the 
experience so far has been that e-pulling has taken about the 
same amount of time as manual pulling for the preparation of 
the file.
    If that is the case, this electronic process is not going 
to in fact provide any benefit for us. I assume that in the 
future, we will get that up to speed. It is going to take some 
time. It is a very, very complicated system.
    Also, with regard to the hiring of judges, the Agency has 
this year hired 189 or 190 judges, but this is not a 190 
increase because we have lost probably about 60 judges since 
the last hiring. It is only a ``plus up'' of the difference 
between those two figures.
    We also must keep in mind that the staffing and hiring are 
just temporary patches on the problem. The problems of the 
Social Security disability system are systemic in nature and 
there has to be a comprehensive review or overhaul of the 
process to have a long term reform or improvement of the 
system.
    Chairman MCNULTY. Thank you. Ms. Meinhardt?
    Ms. MEINHARDT. I definitely agree. We have to get on top of 
the backlog. The problem with backlogs is in and of themselves, 
they create work. If I am not getting to a case, the public 
calls. The Representative calls. You guys call.
    While it sits there, the people continue to get sicker and 
sicker. The evidence keeps growing and growing. Instead of a 
file with a year's worth of medical evidence, I have a file 
with 2 years' worth of medical evidence. By the time I get to 
it, it is old. Now I have to go out and get new evidence.
    It is just a problem. It is like a snowball rolling down 
hill. It just gets bigger and bigger.
    If we do not get on top of the backlog, we are just going 
to be in a heap of hurt here.
    I think the concept of e-polling is great and I think the 
potential is huge if they can actually get it to do what they 
anticipate it to do, which is a very clerical function. The 
computer should be able to say this belongs--this is a medical 
record, for this period of time.
    If it in fact can do that so we do not manually have to 
intervene, it would actually return us to a position where as 
Mr. Hill indicated we no longer do summaries of the case record 
because we just cannot even get enough records polled any more, 
but if we could get the computer to do that, we could return to 
the position where the support staff would be able to do that.
    I think there are fears that if you hire all these people 
to do the work and now what do you do with them when the work 
is not there any more because we have conquered the backlog. 
Maybe we can hire some people on a temporary basis.
    The hiring allows for that kind of thing. Hire people with 
2 year not to exceed so that we can get on top of the backlog 
and see the other side, if we still need them, we can keep 
them. If we do not need them any more, they go away.
    The backlog is our biggest problem every single day.
    Chairman MCNULTY. Thank you. Mr. Johnson may inquire.
    Mr. JOHNSON. Thank you, Mr. Chairman. I am interested in 
opposition between one side of the table and the other.
    The Inspector General, as I recall, indicated that there 
were some judges who did not do any cases. Is that true?
    Mr. O'CARROLL. Mr. Johnson, we went out and asked the 
judges what they believed were the issues. We also talked to 
the support staff.
    When we did the poll on the lower-producing judges, we 
asked for judges that issued one or more dispositions in a 
year. We had a group of judges that issued a limited number 
dispositions.
    So, in answer to your question, yes, there were some judges 
that issued very, very few dispositions, in the single digits.
    Mr. JOHNSON. Judge Cristaudo, you want to talk to that 
subject? Are we working on that and does the Union play a part 
in it? I was told the Union guys did not pull their load. Is 
that true or false? I know Judge Bernoski are Union.
    Judge CRISTAUDO. Thank you. All of our judges in our 
hearing offices are doing cases now.
    Mr. JOHNSON. She is talking about hiring lawyers or he is, 
to assist them. Would that cut the workload for the judge?
    Judge CRISTAUDO. Certainly, if we had additional lawyers in 
the offices, they could do a couple of things. They certainly 
could write more decisions for the judges and more of our more 
experienced lawyers could be used to do the screening that our 
senior attorney adjudicators do.
    Mr. JOHNSON. Can you find them at the salaries we can pay?
    Judge CRISTAUDO. Yes, we certainly can find new lawyers or 
even experienced lawyers who could come into the offices and 
write decisions. We wait until our lawyers have substantial 
experience before we ask them to adjudicate cases, but we 
certainly could have our more experienced lawyers who are now 
simply writing decisions adjudicate more cases.
    Mr. JOHNSON. What you are saying and I think others are, 
too, is we might not want to focus on hiring more ALJs. We 
might want to hire some more lawyers and support staff to help 
with the problem as it exists. Do you all agree with that?
    Judge CRISTAUDO. The way we looked at this was to project 
current receipts into the future and also consider that, as 
Judge Bernoski pointed out, we lose 60 to 65 judges every year.
    We want to make sure that we have enough judges on our 
rolls essentially because only judges can issue unfavorable 
decisions and partially favorable decisions. Judges are also 
the only ones who can issue dismissals.
    There is a limited group of cases that the attorneys can 
actually do. As we know, the Agency gets a certain number of 
hires it can make each year. The Agency cannot hire as many 
people as it would like. There is a finite limit.
    The Agency attempts to allocate those new full-time 
permanent (FTP) employees among the components to the degree 
that seems best in terms of all the service the Agency provides 
in all our offices.
    The disability backlog is clearly the Agency's top 
priority. We have received a significant number of FTPs. I 
think we all agree that additional staff would clearly be 
helpful to us, and our judges and attorneys would actually 
issue more decisions. There is no question about that.
    Mr. JOHNSON. Do you have any reason to believe some of the 
judges are awarding benefits, more benefits, just to get the 
cases cleared?
    Judge CRISTAUDO. I do not, absolutely not. Our judges go 
through a very selective process in terms of their appointments 
as administrative law judges. I am expecting, and I believe, 
our judges are making the decision they think is appropriate in 
the individual case.
    It is certainly not our position that judges should pay a 
case or that an attorney should pay a case that should not be 
paid.
    As Mr. Hill pointed out, the Attorney Adjudicator Program 
has a 97 percent accuracy rate. What we look at is the 
allowance rate over the last five to seven years. It has 
remained consistent. It is around 61 percent. It really has not 
changed.
    Mr. JOHNSON. Some of them, I understand, are working from 
home. How do you supervise those individuals?
    Judge CRISTAUDO. We have a number of people working at 
home. The judges, the attorneys, the paralegal's, and other 
support staff work at home a varying number of days.
    What we expect our managers to do is to make sure they know 
what cases the individuals are working on when they are at 
their homes. A log is supposed to be kept of the cases that 
leave the office and when people return from their homes, they 
are supposed to note that the cases have been returned. That is 
how it is supposed to be working.
    Mr. JOHNSON. Do you agree with that, Mr. O'Carroll?
    Mr. O'CARROLL. Yes, Mr. Johnson. We have some concern about 
work at home in relation to personal information and the 
protection of personal information.
    As you are well aware, there have been releases of people's 
very personal information. SSA's type of information is health 
information, a lot of PII that is very, very important.
    Our concern is regarding the transmittal of work. As long 
as they are using encrypted computers and SSA's network, we 
feel pretty good about the security of the PII.
    Where we are concerned is where folders are taken home, 
left at home, or left in a car, situations like that.
    It's important keep reminding anybody who is working at 
home in any of SSA's capacities to protect PII.
    Mr. JOHNSON. If the computer system is functioning like it 
should, there should not be any folders going home, should 
there?
    Mr. O'CARROLL. There are still a few paper folders but SSA 
also has the CDs of the folders that the judges and staff are 
working on at home. They are using SSA's computers while 
working at home.
    Mr. JOHNSON. Do you all have any comments on those 
questions?
    Judge BERNOSKI. Yes, I do have a comment. First of all, 
with relationship to the number of judges, I think the Agency 
is contemplating hiring--Chief Judge Cristeado probably can 
correct me--I think it is 1,250 administrative law judges 
during the completion of this round of hiring going into the 
next year, which is not unreasonable. We are in agreement with 
that.
    With relationship to the backlog, it depends on how you 
want to look at this problem, how do you want to solve it. When 
the former Commissioner, Jo Anne Barnhart, was here, she 
developed a reform which had the so-called Federal reviewing 
official in it, the objective of the program was to take cases 
out of the system earlier in the process so that fewer cases 
would actually come up to the administrative law judge for a 
hearing.
    We agree with that. It is a good approach. Or you can let 
all of these cases come up to the administrative law judge and 
in that case, you are going to need more administrative law 
judges, and I would submit to you it is a more expensive way to 
adjudicate the case because administrative law judge's salaries 
are higher and the case has been in the system longer. There 
has been more staff work, as Kathy Meinhardt said, so that is 
the more expensive way to handle cases.
    That is a policy decision that has to be made at your side 
of the dias or by the Social Security Administration as to how 
we are going to handle this particular program with 
relationship to the administration of it.
    With relationship to judges and working, I want to make it 
absolutely clear for the record, that our Association is not 
complacent with any type of program to not have our judges 
working. Our policy has always been that a judge should work 
and provide a full day's work for a full day's pay.
    We have had several judges who have not been doing as much 
work as they normally would, but both of these judges, we had 
two, both of these judges were on assignments. One was on an 
Agency task force that was working on the E-systems when they 
were first being developed, the electronic file. He spent a 
considerable amount of time working on that reform.
    In both of these cases, management concurred with them 
taking these judges off of case rotation. I can now report to 
you that both of these judges are back in full case rotation.
    It is no different for us to have a reduced caseload as it 
is with management judges. For example, the chief judge, Frank 
is here, he is the Chief Judge, the deputy chief judge, 
regional chief judges, the deputy regional chief judges, none 
of these judges are on full case rotation.
    I am not criticizing them, but this is just the way you 
manage a program. You have other people brought into the 
program to help. We do not manage anything from our side, but 
we offer advice to the Agency and our expertise in helping them 
make their decisions.
    This is part of the program and the way it functions and 
the way it works.
    Mr. JOHNSON. Thank you. My time has expired. Thank you, Mr. 
Chairman.
    Chairman MCNULTY. Mr. Levin may inquire.
    Mr. LEVIN. Thank you. I cannot count how many times we have 
had hearings. I think that is a tribute to our Chair and our 
Ranking Member that that has been accelerated.
    I think what is missing here is a human face on who are 
these people who are waiting years. It is not easy to get 
there.
    I just asked the chief of staff for Social Security what 
percentage of the claims that are filed end up receiving 
benefits, and she said about a third. She is so knowledgeable 
so I assume she is right. About two-thirds of those that go 
before an ALJ end up receiving benefits.
    We are talking about hundreds of thousands of people who 
are waiting and waiting and waiting, and what has been missing, 
I think, is a sense of outrage.
    I think under the privacy laws, there are some limits, but 
is it possible for the Agency to look at cases and tell us 
information about them, the age of people, et cetera, male, 
female? Anything about the disability that is being claimed? Do 
we know that?
    Judge CRISTAUDO. Yes, we can identify that information. We 
have that information; yes.

    WITNESS INSERT

    Mr. LEVIN. I would like to see it. I think we all would 
like to try to get a profile of the people.
    When we fought over unemployment comp, one of the problems 
was they were invisible because in most states, there are not 
offices any more. You cannot go out like we did years ago and 
go to the lines of people and have them tell their stories. We 
did a bit of that with the round table in Michigan and it was 
so astounding to hear the stories of those people. They had 
written us and what the impact was on their lives.
    I think it would be helpful if you could give us as much 
information as you possibly can, so that when you look at a 
chart--and I say this only as a lesson for us, in the year 
1999, there were less than 300,000 cases pending, claims 
pending. Now, it is over 700,000. It has been going up every 
year.
    I do not mean to be provincial at all. It really struck 
home to me. This is the number of cases per ALJ as of August 29 
in Michigan, in some of the offices.
    In Detroit, 964. In Lansing, 1,166. In Grand Rapids, 1,221. 
In Oak Park, 1,269. In Flint, 1,528.
    If we have tried to provide some additional money and our 
Chair and Ranking Member are trying to get some more money into 
the CR, I think if we went out and could talk to a random 
sample of people who have filed claims, we might reach the 
conclusion in some cases the claim should not be awarded, but I 
think in so many, many cases what we would find are people who 
are essentially without liveable income, and in many cases, who 
are losing their homes, and in many, many cases, whose health 
care does not exist, and who are getting more and more ill 
while we wait, and that makes the work of the Agency more 
difficult in a sense.
    I think it is wise to have this hearing but we need to help 
develop an acknowledgement of the failure of our public system 
to respond and also if I might say, on behalf of these people 
who are waiting, a sense of despair if not outrage.
    This is outrageous in this country.
    I do not know what the plan is, if somebody could tell me 
under the present plan, in two or 3 years, what the likely 
caseload would be.
    Judge CRISTAUDO. Yes, Mr. Congressman. You have raised a 
number of issues. The situation in Michigan is one of the worsT 
in the country in terms of the pending per judge.
    We have done a number of things. The overall plan has a 
number of initiatives that will certainly help everywhere in 
the country, but Michigan in particular. We are doing a number 
of things, specifically in Michigan.
    I do want to say I certainly agree with you. I have sat 
with thousands of these people in my former role as claimants' 
attorney. It is a very desperate situation. I know what they 
are going through.
    What we are doing with the plan is a number of things. You 
mentioned how the pending started rising around 1999/2000. As 
Jim Hill pointed out before, that was the time that one of the 
prior plans to fix the hearing operation was implemented, the 
Hearings Process Improvement (HPI) initiative. The Agency 
eliminated the Senior Attorney program. HPI took hundreds of 
people out of our ranks that prepared cases for judges and that 
started us on a path to increasing backlogs.
    Then we went years without being able to hire judges 
because of the lawsuit, and then we went a number of years 
without enough funding to hire people to do the work.
    Mr. LEVIN. Not enough funding?
    Judge CRISTAUDO. That has been the biggest part of the 
problem, not enough funding to have the people to do the work. 
Part of it also is what Jim pointed out. In the past, when 
people tried to fix the hearing operation, they adopted some of 
these ideas that were just pie in the sky: people did not know 
if they would work, and they became the things that the Agency 
was relying on.
    That is one of the main differences with this current plan. 
This plan is based on proven techniques. We implemented the 
Informal Remand program last Summer and the Senior Attorney 
program in November. Just by implementing those two programs, 
40,000 additional claimants have already received their 
decisions. As we go on, there will be additional people that we 
assist using those initiatives.
    The other thing that we are doing specifically that applies 
to Michigan is we are moving cases from the hearing offices in 
Michigan and some other parts of the country, Ohio, and Kansas 
City, to parts of the country where we have more capacity.
    The situation is bad nationally, but it is worse in 
Michigan, Ohio and some other places. We are having judges, for 
example, in the Philadelphia region, San Francisco region, and 
the Boston region, help out in the Michigan and Ohio areas by 
realigning the service areas.
    This is the first time this has ever been done, where we 
are taking receipts and pending cases in those hearing offices 
and shifting them over from one region to another.
    The Commissioner has also announced that our plan is 
subject to funding. We want to open a new office in Michigan to 
help that situation. In Oak Park, we are expanding that office. 
We had two judge vacancies there. We have filled those two 
spots. We have a space action there where we could expand it 
even further so we can add additional judges.
    We are close to finishing up something called a video 
center that we are putting in Oak Park also. That will give us 
some additional capacity so judges around the country will be 
able to do even more cases, helping out in Michigan.
    Part of this really deals with something that Ron mentioned 
before about what is the Agency doing in terms of maybe 
stopping some of these receipts that are coming into the 
hearing operation.
    This Commissioner and the Agency are very committed to 
looking at what is happening at the earlier level, to see if 
there is anything going on there that actually we should be 
changing. Maybe we need to be doing some things differently 
there.
    The Commissioner's Compassionate Allowances initiative is 
one where we have identified a number of impairments that in 
looking at the data that you are talking about, we find these 
people are disabled. However, because they have little known 
diseases or there is some other factor related to their 
impairment, they go through the entire system.
    We are identifying those impairments so we can let the DDSs 
know to just take care of those cases immediately when they 
come into the DDSs.
    We are also having our Office of Quality Performance look 
at cases around the country from a number of DDSs before they 
make their final denial decision; they look at those decisions 
and decide whether that decision is the appropriate decision.
    They are doing that for a couple of reasons. They certainly 
want to prevent a bad decision. They are doing it with a sample 
to do some study. They are also looking at what they are 
finding, to see if we need to change our policies, to let the 
DDSs know a little bit more about certain cases that should be 
allowed.
    It is a long answer but you raised an excellent point, and 
we are very, very concerned about the situation, certainly in 
Michigan, but certainly all over the country.
    Mr. LEVIN. It is the same everywhere.
    Mr. SCHIEBER. If you look at Social Security staffing 
levels going back 25/30 years, they have gone through a steady 
reduction in staff. Over the last decade or so, there has been 
a surge in disability applications.
    When you look at what is happening, this growing pending 
caseload, it is pretty clear they have not had the resources 
given the processes that they have, to handle this workload.
    We can fuss about some judges not hearing as many cases as 
they should be and what have you. If you look at these long 
term trends, I think it is one trend crashing into another that 
is resulting in this outcome.
    If you are in a situation where you have a crushing 
workload coming down on you and you do not have additional 
resources to throw at it, you start to flail around looking for 
ways to deal with it. They have done a little of this and they 
have done a little of that.
    The last time I was here I said maybe we ought to step back 
and we ought to look at this process from beginning to end, 
from the day somebody walks into a field office and says I 
think I have a disability, I want to apply for benefits, and it 
gets handed off to the DDS and then the DDS handles it for a 
while, and then it gets handed off to the Office of Disability 
Adjudication Review, and they handle it for a long time, and 
maybe it gets a proper disposition and maybe it does not.
    Maybe we ought to look at this as a systemic process and 
try to streamline this process from beginning to end and 
provide a capital budget to do it.
    What we have been doing as we have built this electronic 
system at the DDS level and now we are trying to do it somewhat 
in the Office of Disability Adjudication and Review, we are 
stealing operating budget dolalrs at the time we are already 
drowning.
    Maybe we ought to take care of the drowning with our 
operating budget and have somebody step back and look at this 
from soup to nuts and put some capital resources, not 
unlimited, ongoing resources, to see whether or not we can get 
this workload to a level where the existing resources can 
handle it.
    If we come to the conclusion that technology is not going 
to resolve all the problems, then we have to have a very frank 
discussion about whether or not we want 200 days waiting times 
or 600 days waiting times. If we do not want 600 days waiting 
times and the processes and the budget are giving us 600 days 
waiting times, we have two different ways of handling it.
    We learn to live with 600 days or we figure out how to fund 
200 days.
    Chairman MCNULTY. I have been advised that we may have a 
vote as early as 11:30. Since we only have three Members 
remaining and we are going to make sure they all have a chance 
to inquire, we will take a crack at trying to finish the 
hearing and not require the witnesses to stay here.
    If we can just keep that in mind, we will try to 
accommodate the witnesses.
    Mr. Pomeroy may inquire.
    Mr. POMEROY. Thank you, Mr. Chairman.--I would like to 
congratulate you for the leadership you have shown for this 
Subcommittee, particularly relative to driving that funding 
issue. I think you and the Ranking Member, perhaps more than 
anyone else in Congress deserve credit for the fact that 
additional resources have been at last committed into the 
administration of Social Security. I think there are many 
problems with the administration of Social Security, but 
funding perhaps is the most basic and you have driven getting 
that funding improved, so thank you very much for your 
leadership.
    I also want to thank Mr. Hill for mentioning our colleague 
Stephanie Tubbs Jones. When Mr. Levin talks about having the 
feeling of those caught in the system, and interminable delays 
in the system, and they are in desperate life circumstances, I 
will tell you that our colleague Stephanie Tubbs Jones never 
let us forget that perspective, and would often quite freely 
impart that perspective to witnesses also, and we so love the 
memory of her passion of those, and so thank you Sandy for 
bringing that up.
    Beyond funding, I have been absolutely driven to 
distraction about the problem with having a functional list for 
the hiring of ALJs, and I have been particularly critical of 
OPM and what I believe has been just a complete bungling of 
this circumstance. Judge Cristaudo, we had talked about funding 
being the main thing, and then this litigation that delayed the 
hiring, well I think you gave OPM a pass. There was litigation 
that tied things up between 1999 and 2003.
    However, in 2003 that litigation was resolved and we didn't 
have that list opened up until 2007 when our former Ways and 
Means colleague Rob Portman was head of OMB and had influence 
with the approval of the OPM revision. They sat on this thing, 
they twiddled their thumbs, they diddled around, and we had 
report after report about this thing being opened up and it 
wasn't. I believe it was absolutely an astonishing lapse within 
the administration. It was unjustifiable, it was inexcusable, 
it was irresponsible. A lot of people got hurt and the 
disability backlog about doubled, and I think a lot of it 
relates to the performance of OPM.
    Now if I am trying to run an agency and what I can do is 
link to another agency and that agency doesn't seem to treat 
the needs of Social Security as an urgent issue, we have a real 
problem. How would you assess the relationship? Do we have 
something structural that we need to do to address this SSA/OPM 
issue?
    Judge CRISTAUDO. Well thank you, Congressman. We think that 
we need to open a dialog more with OPM so that the process that 
is used to appoint candidates to the ALJ register works better 
for Social Security. Most of the appointments off that register 
are appointed to Social Security. The other agencies hire a few 
off the register each year. Many times they essentially hire 
their judges out of our ranks. At the staff level we have had 
some discussion, certainly. At the higher levels, I am not sure 
there has been the kind of dialog that we really need.
    I hate to say this--because most of our judges are 
outstanding people, outstanding judges, they do great work--but 
what we would like is a list that ensures that candidates that 
are presented to us are well suited for our work. In some of 
the other agencies, the judges do adversarial hearings where 
they do a few cases a year. Our judges are confronted with huge 
workloads, it is high volume adjudication.
    Mr. POMEROY. I think you are exactly right. I think there 
is a particular type of judge you are looking for, and the fact 
that you are giving most of the judges of OPM means to me that 
there ought to be very particular consideration for the 
candidates that will be appropriate for SSA ALJs, especially 
given the 10 year delay they had in refreshing the list.
    I am interested in the role of the advisory Committee. As 
we looked at too many issues, too little time. There are many 
other things I would like to inquire, but one of the things 
that I would like to do is see the advisory Committee act 
really as a kind of institutional advocacy for system 
functionality. From the time I have spent on the Oversight 
Committee looking at the role of the advisory Committee on the 
IRS, I think that we have gotten quite a bit of value from that 
advisory Committee. Is there more that can be done to basically 
sharpen the dialog between the advisory Committee and Congress 
so that we are getting kind of an arm's length view of what the 
system needs for optimal operations?
    Mr. SCHIEBER. I believe in one of my recent testimonies up 
here I indicated that in my tenure on the board, which is now, 
I guess, I am now going into my 12th fiscal year on the board, 
we have issued some, I would guess it is now 17 or 18 reports 
on the disability program. This goes back to 1998. The first 
report we issued in my tenure was on disability.
    Many of the issues that we are talking about here today, 
this board has written about, published, has testified in front 
of you and your counterparts on the other side of the Capitol 
about. We have been talking about the lack of resources or the 
want for resources, we have been talking about the need for 
more systemic approaches to how these issues are addressed by 
the agency.
    My concern is that no one is listening, and what ultimately 
happens is then we have something blow up. We have a disability 
caseload that blows up. There are other things that are lurking 
down there. The 800 number, call on any random day----
    Mr. POMEROY. I was thinking about this. The advisory 
Committee is being, I think, more effective within the IRS 
because of a taxpayer advocate that basically often captures 
the advisory Committee work and uses it to augment her own 
advocacy perspective. Is there something we could add to the 
system that helps----
    Mr. SCHIEBER. Well one of the things that I think that the 
IRS board does that we have not done is they actually develop 
an annual report around the IRS's budget.
    Mr. POMEROY. Right.
    Mr. SCHIEBER. You supposedly, when you set Social Security 
up as an independent agency, said that the Commissioner was 
supposed to do a Commissioner's budget, and that was to be 
submitted to Congress. Well that budget actually gets submitted 
initially to OMB, and they review it and it is input into the 
development of the President's budget. When the Commissioner's 
budget gets to you in the middle of the budget document, it is 
basically a number that is buried in, I don't know, thousands 
of pages of material.
    So, one of the things we have discussed is actually putting 
together an annual report around the Commissioner's budget that 
we would make public.
    Mr. POMEROY. My time has expired, Syl, but I would strongly 
encourage you to do that, and we in the Subcommittee ought to 
have more discussion with the advisory Committee on that.
    When I was on the Oversight Committee, it was kind of a 
triggering event. You would have the report to take a look, and 
it caused us to read the report and get more attuned to what 
the advisory Committee was saying. It is kind of an annual, 
'You have to pay attention to the advisory Committee,' and we 
don't have that with Social Security.
    Also, it does highlight what has happened to the 
Commissioner's budget within OMB and that is also very useful. 
I think that would be helpful. Thank you, Syl.
    I yield back.
    Mr. Bernoski. Mr. Chairman, may I comment on the issue that 
Mr. Pomeroy raised with relation to OPM. It will only take a 
minute.
    Chairman MCNULTY. Yes.
    Mr. Bernoski. We agree with your observation completely 
regarding OPM. OPM has completely mismanaged the administrative 
law judge function of the Federal Government, and it is a 
substantial part of the problems that we are now laboring 
under.
    First of all, OPM abolished the office of administrative 
law judges during the last several years. So, it is literally 
impossible to get any information or any management function 
from them because we are such a small group buried in a big 
organization and they have rendered it virtually impossible to 
provide any effective management of the Federal administrative 
law judge function in the government.
    In the 106th Congress we did offer a solution, and it was 
introduced by Congressman Gekas, who is no longer with us, who 
was then chair of the Subcommittee in the Judiciary Committee 
on Administrative Law, which would have set up a Conference of 
administrative law judges which was patterned after the U.S. 
Conference for the Federal Courts.
    What it would have done is take the Office of 
administrative law judges that was then existing out of OPM, 
and set it up as a small separate organization that would be 
just dedicated to managing the administrative law judge 
function in the Federal Government. It should not have cost any 
money because it involved taking an existing structure and 
making it freestanding. Also, the agencies pay OPM to manage 
the system. For example, I think in the last year, Social 
Security paid OPM over $1 million to manage the administrative 
law judge function with relationship to SSA's burden on that 
program for the use of the program.
    In our opinion, those are things we should look at to 
improve the management of the Federal administrative law judge 
system in the Federal Government.
    Chairman MCNULTY. Mr. Nunes has yielded his time to the 
Ranking Member who has a couple more questions, and the Ranking 
Member has graciously agreed to allow Mr. Becerra to go first, 
so Mr. Becerra may now inquire.
    Mr. BECERRA. Mr. Chairman, thank you.
    Mr. JOHNSON. Only for you.
    [Laughter.]
    Mr. BECERRA. I am afraid to ask what it is going to cost 
me.
    [Laughter.]
    Mr. BECERRA. Mr. Chairman, thank you to you and the Ranking 
Member for once again holding a hearing on something that is 
very important. We very much appreciate that you continue to 
keep the profile very high on this issue and we thank every one 
of you here on the panel for your testimony.
    I have a couple of questions. I would like to first begin 
with the issue of the performance of the ALJs and their 
efficiency. Over the last couple of years, two or 3 years, we 
have seen their output increase. We now have some additional 
resources, principally due to the two gentleman to my left, 
that will help staff up on the ALJ and support staff side. But 
this call for the ALJs to produce 500 to 700 dispositions 
annually, very briefly, is that something, Judge, that you all 
think is possible? To go from the 420 or so of 2005 
dispositions per year to the 470 or so that we saw last year to 
something between 500 to 700 dispositions annually?
    Judge CRISTAUDO. Well thank you, Congressman. The 400 
numbers that you are looking at are based on--unfortunately 
there----
    Mr. BECERRA. Do me a favor. I am going to run out of 5 
minutes real quickly. I am just asking, do you believe that 
they can get to upwards of 600 to 700 dispositions on an annual 
basis?
    Judge CRISTAUDO. I think most judges can get to at least 
500.
    Mr. BECERRA. I agree with you on 500. But my understanding 
is you are calling for 500 to 700.
    Judge CRISTAUDO. Well what we are asking the judges to try 
to do--we haven't mandated, we are asking--is to get to 500. 
The 700 was more of an indication to this other group that are 
doing thousands of cases that at some point there may be a 
limit as to how many cases a judge can actually do and still do 
quality work. That is what the 700 was about.
    Mr. BECERRA. So, let me ask you this. If we were to try to 
get a sense of how many cases ALJs should be able to handle and 
dispose of, you are saying you believe that in the very short 
term we should get to 500 or so?
    Judge CRISTAUDO. As long as we provide adequate staff 
support----
    Mr. BECERRA. Yes, I understand that, but 500 is reasonable, 
without losing quality and so forth?
    Judge CRISTAUDO. Yes, I think about 40 cases a month is a 
reasonable number to strive for.
    Mr. BECERRA. I appreciate that.
    What I think confounds me and perhaps others is that it is 
not as if Social Security doesn't have the money to do its 
work. Social Security is about the only thing in the Federal 
Government that isn't running in a deficit, and yet somehow the 
Social Security Administration never gets the money it needs to 
do its work. That is kind of strange. I think most Americans 
would think that the money they are putting in to pay for 
Social Security should be available to do the work. Yet here we 
have these massive backlogs for hundreds of thousands of 
people.
    My sense is that we are--I want to just separate myself 
from this. OMB has decided to starve Social Security of 
receiving its own money. Now we could increase the number of 
ALJs, as we are doing, but you are going to need the support 
staff. You need someone to do the prep to get these cases ready 
to go, otherwise we are wasting the ALJ's time, and the 
lawyers, and the claimants. Also, then, after you have had the 
hearing, you need the support staff to issue the decisions.
    Would anyone argue that today we have enough support staff 
to do the front-end work and the back-end work that the ALJs 
need to make sure a disposition occurs? I don't need 
commentary, I just want a yes or no, there is enough.
    Mr. SCHIEBER. The evidence is clear they are not 
succeeding.
    Mr. BECERRA. So, there is not enough support staff. So, Mr. 
Chairman, I think it is very clear. We need to make sure that 
Social Security is getting some of its own money to do what it 
needs to do to have the resources to hire the support staff.
    Judge Cristaudo, what is the correct level of support staff 
per ALJ?
    Judge CRISTAUDO. It varies on a number of factors. I mean, 
traditionally----
    Mr. BECERRA. Don't go technical on me. Just give me a rough 
sense.
    Judge CRISTAUDO. Of course part of this is----
    Mr. BECERRA. Give me a rough sense.
    Judge CRISTAUDO. It varies based on time, is what I am 
saying. Today versus next week versus----
    Mr. BECERRA. We have four and half or so support staff per 
ALJ today.
    Judge CRISTAUDO. We are little bit below that, but----
    Mr. BECERRA. Okay, you a little below that. Where should 
you be?
    Judge CRISTAUDO. Certainly I think if we were at a much 
higher level it would make----
    Mr. BECERRA. I understand that. Where would you like to be?
    Judge CRISTAUDO. I would immediately like to be at 4.5 with 
the understanding that as we move ahead with the automation 
that perhaps it would reduce that.
    Mr. BECERRA. When you get to the 500 dispositions annually 
per ALJ, where you say we can get, what should the support 
staff level be at that point?
    Judge CRISTAUDO. It varies by individual, certainly, but 
nationally it is somewhere around 4.5, maybe a little higher, 
maybe a little bit lower.
    Mr. BECERRA. Because I want to be able to point to your 
testimony as the chief ALJ to say 'this is what our chief ALJ 
says is necessary,' so you are speaking over a thousand of your 
colleagues, so don't sell them short. What do you need to do 
your work? Because don't come back here in a year or two and 
say 'oh, we really need a lot more.' We are asking now. What do 
you need to make sure that you can get a case ready to go, and 
then issue your decision once you have held your hearing?
    Judge CRISTAUDO. Yes, and as I have said, I think with our 
current process and with our current automation, I think it is 
around 4.5.
    Mr. BECERRA. 4.5, okay. To get to 4.5 what kind of hiring 
would you need to do? My time has expired, so I will leave that 
last question. How many more support staff at the front- and 
back-end do you need to hire?
    Judge CRISTAUDO. I would have to do the actual computations 
to give you a precise number. It would certainly be a few 
hundred more. We are hiring about 500 people this year. Most of 
that is offsetting attrition. But we would have to add hundreds 
more, certainly, to get up to that level.
    Mr. BECERRA. It looks like basic math, so maybe later on 
after this hearing is over you can provide us a written 
response to what you think you need in terms of support staff.
    By the way, I would urge anyone who would like to respond 
to that as well, I would be very interested to hear what you 
might have to say in terms of what you think the support staff 
level should be and what you would need to hire.
    Mr. Chairman, I thank you very much for the time.
    Chairman MCNULTY. Judge, would you later respond in more 
detail to the Congressman's last question?
    Judge CRISTAUDO. Yes.

    WITNESS INSERT

    Chairman MCNULTY. Okay. The Ranking Member may inquire.
    Mr. JOHNSON. Thank you Mr. Chairman.
    Mr. Schieber, your testimony included discussion about the 
fact that there are judges who process 1,000 cases a year with 
allowance rates in the mid--to high-nineties, and there are 
those who process 1,000 cases a year with allowance rates in 
the mid--to low-thirties, and you say it is possible to receive 
an independent decision with a process that is consistent and 
efficient with a statutory change. Would you talk more about 
that and tell me what change would be?
    Mr. SCHIEBER. Well one of the things we have heard here 
this morning on more than one occasion is that there is a bell 
curve around the judging process, and part of this has to do 
with productivity levels, through-put levels, and I have talked 
to the judges about it. I have probably talked to the judges in 
group more about productivity than, my guess is, almost anybody 
has. The judges who aren't doing very many cases, I am told, it 
is not often because they are not working hard, it is because 
they have difficulty getting to the point of making decisions.
    It seems to me if you have some people who can't judge, 
then we ought to have a way to make sure that they are either 
not getting into the corps or a way to move them out of the 
corps at some juncture, because we need people. We need 
resources that are producing cases. That is what this is about.
    On the upper end, you have some people, I believe, probably 
because they see the overwhelming burden that is coming in, and 
they are trying to be good soldiers, are handling cases very 
rapidly. The data that I have looked at is once you get to this 
700 threshold, somewhere around there, as the caseloads go up, 
as the judgments go up, the approval ratings go right up with 
it.
    Now my sense is people probably aren't spending very much 
time, or else maybe they are coming to the table with 
preconceived notions. It seems to me that if you have got these 
judges--throughout the corps judges, you have significant 
variation in terms of approval and denial rates. If you have 
got judges that are on one tail or the other--and you can 
determine this statistically. You don't have to put arbitrary 
numbers there, you can do it in a variety of ways--it seems to 
me that judges ought to go back for re-training to make sure 
that they understand the rules that are being applied.
    Ultimately if they are going to continue to operate 
completely outside reasonable tails of the judgment process, 
there ought to be some kind of a review board that determines 
whether or not they are appropriately handling cases. So, you 
can set up a process to review cases at outliers, you can 
counsel these people, and ultimately if they are going to be 
misjudging, then it seems to me you need, again, to have a way 
to move them out of the corps.
    Mr. JOHNSON. Anyone else want to comment on that?
    Mr. Bernoski. Yes, I do.
    Mr. JOHNSON. Thank you.
    Mr. Bernoski. Yes, just briefly. We have long suggested 
that the agency adopt the model ABA code of judicial conduct. 
Actually, we would rather have OPM adopt it so it would be 
government-wide for all administrative law judges in all 
agencies. This code would provide a standard, a measurement 
standard for many of the problems that we are talking about 
today, together with an implementation procedure that should be 
appended to the code.
    This is not Earth science by any stretch of the 
imagination. Every bar association in this country has a code 
of professional conduct together with a mechanism for enforcing 
it. We believe that we should pattern a system after the state 
bar associations so we have some type of standard for 
regulating the system of judging within our agency and within 
the Federal Government.
    As Mr. Schieber and Chief Judge Cristaudo said, we have a 
different type of program because we have a very high volume 
adjudication system. It requires a different type of mindset. 
It is hard work. Believe me, this is hard work. This is heavy 
lifting. When you are handling 40 cases a month, month after 
month after month, that is as hard as handling one big case for 
a year or so.
    We have a different type of process. While they are all 
difficult, we should develop a system that recognizes these 
particularities within the judicial process.
    Mr. JOHNSON. Well video hearing seemed to be supported by 
some of you and not all of you. Is that a solution to some of 
this?
    Mr. Bernoski. Well video hearings, there are two types of 
video hearings.
    First, the agency is experimenting with a video type 
hearing that would be conducted from the attorney's offices. We 
have a concern with that type of hearing, because we question 
whether or not it ceases to be a true government hearing. You 
probably will not have a government representative at that 
hearing, you don't know how the hearing is being conducted, and 
you don't know what the environment is in which the claimant is 
seated. We don't think that this is a good idea. Video hearings 
that are conducted from one government location to another 
government location is less problematic.
    The real problem that we are concerned about is the 
credibility issue. Is it really the same when you examine a 
claimant on a flat screen TV as opposed to the claimant sitting 
right next to you? When a person is sitting three feet away 
from you, you make different types of observations than you do 
on a face on a flat screen. You see the person walk in, you see 
the person walk out, you see the person sit down. These are all 
body mechanisms that send signals to you that are not available 
on a TV screen.
    So, we are saying proceed with caution. Proceed with 
caution.
    Mr. JOHNSON. Thank you. I appreciate those comments.
    Chairman MCNULTY. Mr. Hill?
    Mr. HILL. If I may, a response to your question, the first 
question in particular, Mr. Johnson.
    Looking at what individual judges do can be illuminating, 
but I think you are missing the point when we do that. It is 
just a simple fact, in ODAR it is easier to pay a case than to 
deny it. It takes less time, it takes less assets, it subjects 
the decisionmaker to less risk. If you deny a case, it is very 
likely to get appealed. If you pay a case, 14,000 a year get 
reviewed out of, what, 250,000 or whatever the number is.
    When you start to put people under pressure to produce it 
is natural to think, 'Well, let me do the easy way.' It may not 
even be conscious. You have a system that is as tilted toward 
one way and production pressures that aren't associated with 
what you really have to do. It is just because you have to do 
these numbers, I think you start to run into some problems. I 
think that is why I have noticed that the payment rate goes up 
when people are pressured to produce more cases. It is just 
easier to do.
    Ms. Zelenske. Could I say something? Just in response to 
Representative Johnson's questions, I just want everyone to 
remember what Representative Levin was talking about in terms 
of keeping the focus on the individuals who are waiting to get 
their decisions. I think that any inferences that there is 
improper decisionmaking going on is really unfortunate given 
what people are going through. I know in the CCD testimony at 
the April full Committee hearing, we provided page after page 
after page of individual stories about what people are going 
through, and I think it is really important to keep our focus 
on the individuals that are waiting for a decision.
    I just wanted to say, I guess this is going back to what 
Mr. Schieber was talking about in terms of dealing with ALJs. 
There are a number of actions that the agency can take that are 
consistent with the Administrative Procedure Act in terms of 
peer counseling and quality assurance and performance goals 
that they can undertake to try to deal with ALJs to move them 
up into the range that Judge Cristaudo was talking about.
    But I think, again, we need to look behind the numbers that 
were in the Inspector General's report because a lot depends on 
the staffing ratios for an ALJ in terms of what they are 
producing. You can have an ALJ who has been doing gangbusters 
in terms of getting decisions out and maybe moves to another 
office, and the staff isn't as good there, cases aren't getting 
prepared as quickly, decision writers there may not be enough, 
the quality may be worse, and they may see their production 
plummet because of that. I think it is very important to keep 
that in mind, that numbers are just numbers and you really have 
to look behind them.
    Mr. SCHIEBER. I agree wholeheartedly with that. My guess is 
that the primary reason that the Chief Judge here had in terms 
of giving the precise number about how many support staff each 
judge needs is that they have not done nearly the systematic 
evaluation that they ought to do to really know that answer. 
This is an extremely important issue, that a judge is not 
necessarily a judge in an isolated, existential environment. It 
is a very complicated environment and we need to understand 
what makes all of these resources most effective.
    Judge CRISTAUDO. May I?
    Mr. SCHIEBER. Go ahead.
    Judge CRISTAUDO. May I just comment?
    Chairman MCNULTY. Yes.
    Judge CRISTAUDO. Just a few of the issues. The thing about 
the ABA code of judicial conduct, I personally support the 
concept of adopting it, but it is not within the agency's 
authority to adopt a code like that. The Office of government 
Ethics has the delegated authority to make those kinds of 
decisions about those kinds of rules being adopted.
    In terms of the high and low producers, actually, it is 
interesting to look at the allowance rates, the high producers 
and the low producers. The allowance rates actually vary. Among 
the high producing judges, extremely high producing judges, a 
number of them have high allowance rates, but there are a few 
of them, actually, that have very low allowance rates, which is 
kind of interesting, I think.
    At the very low ends, there are judges that do very few 
cases that have high allowance rates and certainly low 
allowance rates. So, it varies a lot. As someone else said on 
the panel, we are judges, and we are looking at the facts, 
making decisions, and we are applying the facts. You are always 
going to have some discretion, essentially, in applying the law 
to the facts.
    In terms of the video hearings, we have conducted so far 
about 50,000 video hearings this year of about the 400,000 
hearings that we have conducted. We don't require claimants to 
do a video hearing. If a claimant wants to do an in-person 
hearing we allow them to do an in-person hearing. We send the 
judge to where they are or have them come into the hearing 
office, certainly, and we do think it provides a due process 
hearing.
    In terms of the project of having claimants' attorneys use 
video equipment in their offices, that certainly increases, 
potentially, the video hearing capacity that we have because we 
have some limitation on how many hearing rooms that we have 
with videos. But at this point we are just testing it. We are 
testing it with a number of representatives. It is a test 
program. We have a very clear protocol that everyone needs to 
follow.
    The claimant's representative needs to tell us who is in 
the room and provide other information. We are requiring that 
they have equipment that is just like our equipment in the 
sense of having the functionality that we needed to have, so 
the judge can pan the room and do those kinds of things that 
some of our judges do.
    Ms. MEINHARDT. Could I offer----
    Chairman MCNULTY. Mr. Becerra has an additional question, 
and then--Yes, you may go ahead, Ms. Meinhardt.
    Ms. MEINHARDT. I would just like to make sure that 
everybody here understands that at the hearing offices we 
really do see the faces of the people. Every single day we see 
the people that we aren't serving, we hear from the people we 
aren't serving. We are trying to figure out how in the world we 
can handle what we handle.
    You asked about staffing. If you are Santa Claus over 
there, shoot for five a judge, that would be very good. The 
problem with staffing is always that, at a national level you 
can say 'Well, the staffing is 4.5,' or whatever it might be, 
but you have an office out there that is at three and an office 
out there that is at--and maybe they even meet the staffing, 
but the balance is off. They have 4.5 per judge, but they have 
a lot of writers and they don't have any pullers, or they have 
the pullers who prepare the files, but they don't have any 
writers. At the end of August my office had 750 cases that had 
been decided that weren't written. I could meet my goal this 
year if I had enough people to write the cases, but I don't 
have enough people to write the cases. You see the ranking 
reports, I know you do, you can see the spread between how many 
cases are waiting to be written and how many cases are waiting 
to be pulled. The difference is huge.
    So, that is my two cents.
    Chairman MCNULTY. Mr. Becerra.
    Mr. BECERRA. Mr. Chairman, I think this last 20 minutes of 
conversation has been very illuminating because it sounds to 
me--and Inspector General O'Carroll, I would like to ask you a 
question on this.
    It sounds to me like what we are finding is that we can't 
move toward any one size fits all characterization of what we 
need, but it sounded like Mr. Schieber was saying that we 
haven't really made a prudent assessment of what really the 
ratio should be, staff to ALJ, and maybe part of that is 
because the needs differ by office to office regionally. Is 
there anything you discovered in your work examining this issue 
that gives us a better sense of how we can make a good decision 
on resources to make sure that there are an appropriate number 
of staff people available to each ALJ as we continue to 
increase the number of ALJ and their productivity?
    Mr. O'CARROLL. Mr. Becerra, we interviewed a number of 
people, and we found 80 percent of the people that we talked to 
said that SSA needed more staff. That is across the board.
    We also took a look at what the agency called their 
average, which is 4.5 and we found that the higher-performing 
offices had either 4.5 support staff per ALJ or more, which, 
again, indicates you are going to be more efficient with more 
people.
    However, the one thing that I have even underlined in my 
notes is that it is easy to use a number like 4.5, but in 
actuality you need a mix in that 4.5. You have to have the 
right mixin terms of the right ratio of decision writers, et 
cetera. That is really the important point. One of the other 
trends that we have, is that the office management, in terms of 
making sure that you have the right ratio of people, is very, 
very important.
    That is the short synopsis to a long story. We are seeing 
that at 4.5 and above, the performance is higher, and the 
lower-performing offices usually have a lower ratio of staff to 
ALJs. Some offices have as low as three-to-one ratios, and 
usually they are under-performing.
    Mr. BECERRA. Mr. Chairman, the last thing I would say on 
this is that I hope the managers take or can heed the call that 
has come out of this particular hearing that we need to hear 
from the managers about what their mix is and what they would 
like to see, because we obviously don't want to just use a 
wholesale approach and say 'We need to be at 4.6 and we don't 
care what the mix within that is.'
    So, I suspect at some point soon when we follow up with 
another hearing, Mr. Chairman, we will probably want to hear 
from the managers from the various offices on what their mix 
is, where they are shy and where they are doing very well, and 
perhaps use some of the offices as good examples of getting a 
good mix of staff. So, that way we have a better way, Mr. 
Chairman, of making assessments of what ultimately we need to 
try to push OMB to do to fund the administration correctly.
    Chairman MCNULTY. I thank the gentleman and I want to thank 
all of the witnesses for an outstanding hearing. I want to 
thank my good friend Sam Johnson for my birthday cake. I wanted 
to let him know that I was provided one by the staff before the 
hearing started, so I am going to have a good energy level 
today.
    [Laughter.]
    Chairman MCNULTY. I want to end this hearing with a 
message, because I think there ought to be a message going out 
to across this land to the vast majority of ALJs and hearing 
officers and employees of the Social Security Agency, thank you 
for your outstanding work each and every day for the citizens 
of the United States of America. We have some changes that we 
need to make, but we have a common goal, which is to eliminate 
the backlog.
    Sam and I have been working very hard on the CR. Hopefully 
we will have some additional good news for you as early as next 
week. But we want the vast majority of those out in the field 
every day working to correct this problem to know that they 
have our thanks and our gratitude, and that goes all the way to 
the top to Commission Astrue and his staff, who I know are 
dedicated to correcting this problem.
    I also want to point out that I am retiring from Congress, 
and because of the schedule for the rest of the year, this is 
likely to be my last hearing as a member and as a Chairman of 
the Subcommittee, and I want to thank all the members of the 
Subcommittee, all the Members of the full Committee, all of my 
colleagues for their many kindnesses over my last 20 years in 
Congress, and also my family, friends, and constituents for 
their continuous support over my last 39 years as an elected 
public official.
    It gives me great pleasure as I am going out the door to 
turn to my left and to, again, salute the person I referred to 
many times as one of my heroes in life because I have such 
tremendous respect for all of those who have served our nation 
in uniform. My own brother Bill made the supreme sacrifice in 
the Vietnam War. My buddy Sam here spent years in a prison camp 
enduring torture on behalf of our country, and Sam we are all 
deeply in our debt, and I again want to thank you for the 
privilege of working with you through these years. I want you 
to know that next year I know we are going to continue on this 
issue, and going to be watching C-SPAN, and I know you are 
going to carry on the fight.
    Finally, I think it would be proper for us to adjourn this 
hearing in memory of both Mrs. Levin and our dear friend 
Stephanie Tubbs Jones. Hearing is adjourned.
    [Whereupon, at 12:00 p.m., the hearing was adjourned.]
    [Submissions for the Record follow:]
                   Statement of Disability Law Center
    The Disability Law Center submits this testimony on behalf of the 
people we serve. The Disability Law Center (DLC) is the Protection and 
Advocacy agency for Massachusetts. DLC provides free legal services to 
people with disabilities throughout Massachusetts. A key mission of the 
DLC is to help ensure that people with disabilities are able to access 
the services they need to live and work in the community. Access to 
cash disability benefits from the Social Security Administration (SSA) 
and the associated medical coverage is crucial for many to achieve this 
goal--whether the benefits are needed for a year or two or longer term 
or episodically. I have worked in the Disability Benefit Project at DLC 
since 1990. Since 1983, the Disability Benefits Project (DBP) has 
provided technical back up and support to legal services advocates and 
private attorneys engaged in Social Security and SSI law practice. The 
DBP supports high quality representation and advocacy for those seeking 
Social Security Insurance and SSI benefits.
    I write to support the testimony of Ethel Zelenske, Co-Chair, 
Consortium for Citizens with Disabilities Social Security Task Force. I 
agree that the over arching problem for SSA in fulfilling its mission 
is inadequate staffing. This is true at all levels involving service to 
the public. I also agree that the potential impact on claimants must be 
the critical measure for assessing the effectiveness of initiatives for 
achieving administrative efficiencies. The disability benefit programs 
are too important for people with disabilities who rely on them when 
unable to work to put these benefits at risk for the sake of misguided 
efforts to achieve administrative efficiency. Too many disability 
benefit applicants wait for far too long for their claims to be 
adjudicated and they and their families suffer greatly from the lack of 
money and health coverage. Certainly, achieving administrative 
efficiency is important to relieving this crisis, but it must be done 
carefully and thoughtfully, with close attention to the potential 
effect on applicants and recipients.
    The problems with the disability determination process start at 
SSA's field offices where there are not enough claims representatives 
to handle all the workloads. The field offices have seen increased 
workloads (e.g., Medicare Part D) while losing experienced staff. I 
have seen accurate and timely service slip significantly for SSA's 
customers over the past several years, and I believe that it is due to 
inadequate staffing. Staff in SSA's field offices work hard but 
inadequate staffing still results in inadequate applications, incorrect 
denials, and unnecessary appeals.
    The Disability Determination Services (DDS), where disability 
benefit applications are developed and adjudicated at the initial and 
reconsideration levels, also experience staffing problems, tending to 
have high staff turnover and high training needs. In addition, the DDSs 
often lack doctors of the appropriate medical specialities to review 
claims or perform consultative examinations. These factors result in 
poorly developed claims, unnecessary denials and appeals to the 
overburdened Administrative Law Judge (ALJ) level of appeal. It would 
be very efficient to make sure that disability claims were more fully 
developed at the front end of the disability determination process.
    It was good news that SSA recently has been able to hire some 
additional ALJs to help work down the enormous backlog at that level of 
appeal and begin to relive the delays for claimants. Unfortunately, the 
number of ALJs hired was not enough to solve the backlog problem, 
especially since SSA has not been able to hire enough staff to 
efficiently support the ALJs. Key to good ALJ productivity is a good 
staff to ALJ ratio. SSA has made great strides in improving 
efficiencies through use of electronic case files. However, staff are 
still necessary to prepare the electronic files for hearing. The 
promise of achieving efficiencies through SSA's electronic 
transformation will not be fulfilled without adequate staffing. 
Disability Benefit Project advocates report that it is not unusual to 
find that relevant documents are missing from the hearing file and for 
medical evidence submitted electronically prior to hearing to be 
unavailable to the ALJ at hearing, causing delay and even the need for 
a supplemental hearing. In addition, requests for on the record 
decisions, which can save time by obviating the need for a hearing, may 
not be reviewed and brought to the attention of the ALJ in time to 
avoid an unnecessary hearing.
    Neither will the promise of efficiencies through use of video 
teleconferenced hearings be realized without sufficient hearing office 
staffing. Hearing office staff must prepare the file for hearing, and 
assure that the claimants and representatives have timely access to the 
file and that new evidence can be timely submitted and made available 
to the ALJ. Claimants and their representatives will take advantage of 
time saving video teleconferenced hearings if they are well set up and 
supported and do not result in any diminution of the right to a full 
and fair hearing. Without that confidence, claimants and their 
representatives may be reluctant to assent to video teleconference 
hearings.

                                 

                     Statement of Frank M. Klinger
    I have for years myself, along with many other Judges, presently 
and formerly of the Montgomery AL office who have participated in the 
formulation of these Ten Points, been very concerned with the issues 
pertaining to the disability backlog and delay and in trying to find 
and suggest some very clear, concise, concrete, positive and definitive 
steps that can be taken to eliminate this backlog and delay. I believe 
that that is what your Committee is interested in. We have called these 
suggestions the ``Ten Points''. I believe that our views are perfectly 
consistent with the presentation given to you by our National 
President, Ron Bernoski, who speaks for the Association as a whole, 
which I do not, and also with any and all Agency initiatives to 
eliminate the backlog and to provide better, more efficient service. By 
way of background, I served in the past as both an attorney and a state 
court Judge in upstate New York (my wife is originally from Troy, N.Y. 
in Congressman McNulty's district). I have tried to ``think outside the 
box'' and to apply some well-settled legal concepts, procedures and 
rules that I have learned from other legal forums and proceedings to 
ours in order to improve our efficiency and service to the public.
Hire more support staff--much, much more.
    I understand that at least in the very recent past, Social Security 
staff was at its lowest level since 1972. Ten years ago OHA staff was 
in desperate need of more staff. Since then, to my knowledge, there 
were essentially no new hires and for every worker who died, retired or 
left the system, very few were replaced. As support staff and the ratio 
of support staff to the Judges drastically declined, despite increasing 
ALJ productivity, the backlog has also steadily and proportionately 
increased to what it is today.
    Furthermore, the computerization i.e. e-file, despite its many 
unquestionable benefits, has made it much harder, not easier, more time 
consuming, not less time consuming, for both Judges and staff. That is 
why in many offices, remaining staff are now not even able to work up 
files, mark the exhibits or do the necessary ALJ files, which makes the 
ALJ's job much harder and takes much longer. Also, when the DRAP 
recording equipment malfunctions, hearings cannot be held. When the 
office computer system is ``down'', no work can be done. Yet the HOSA 
position is not very well compensated and is considered by many to be a 
``dead end career job''.
    Lately staff are being hired. This is excellent. When will we have 
enough? The 4.5 to 1 ratio suggested in the past is reasonable. I would 
also say when we have reached the point that no Judge will ever again 
be asked to take a bunch of unorganized, unmarked and undated 
documents, many of which may be duplicates, missing or belong to other 
claimants, and do all the necessary clerical work to assemble, make 
sense out of and process the file (the time for which drastically 
decreases ALJ productivity), then, hopefully, we will be there.
Hire more ALJ's.
    This certainly is now being done and of course it will help 
enormously. But it will require a lot more support staff.
    Distribute, as the APA envisions, the cases fully and properly 
worked up, developed, with exhibits marked and with an ALJ file to each 
Judge at each office, evenly, proportionately, fairly and at random and 
then expect each Judge to handle their caseload or to explain why they 
cannot . That is what I understand is essentially done in most state 
and federal courts. Obviously, in those Courts, some cases are far more 
difficult and complex than others, and some Judges have better staffs 
than others, yet all Judges are expected, as a general rule, to handle 
their caseload. Absolute ``numbers'' are not the best criteria (they 
are too easy to manipulate i.e. give the ``easiest'' cases to the 
favored Judge), but certainly it is very wrong if there are any Judges 
on active duty who receive their salary but accomplish very little or 
nothing unless of course there is a very good reason for it.
    In our system, in all cases a Request for Hearing (RFH) is filed 
and eventually the case is scheduled. This is a time consuming process 
in which staff, on the required assumption that the claimant will 
appear and be ready for their hearing, has to coordinate the schedules 
of the Judge, the reporter, the medical expert and/or vocational expert 
and courtroom availability, make up a calendar, send out the 
appropriate notices and prepare all the necessary vouchers Yet when the 
claimant arrives, we are required to give them all their rights, 
warnings and information including phone numbers with regard to 
representation (even if this has previously been mailed to them) and to 
give them at least one adjournment to try to obtain representation. If 
they avail themselves of that right (which many do including, but 
certainly by no means limited to, ``in pay status'' claimants, whose 
payments must continue until a final decision is reached), then the 
experts must still be paid and, moreover, the staff must do all this 
all over again, taking up a slot (cases being processed from start to 
finish, in general, oldest first) while other claimants who are ready, 
willing, able and often desperate to proceed must wait and wait and 
wait. By contrast, in my experience in state courts, the case does not 
even go on the court calendar until the plaintiff files a ``statement 
of readiness'' which states that they are ready for trial. The case can 
then be called for trial at any time by the court and the plaintiff 
must immediately proceed to trial or have the case dismissed.
    Why not, above the claimant's signature on the RFH, inform them at 
that time of all their rights and warnings and information including 
phone numbers pertaining to representation and inform them that their 
case will never be heard until they sign a ``statement of readiness'' 
(clearly ``in pay status'' claimants would have to sign one within say 
90 days or lose their ``in pay status'' or else many never would sign). 
The ``statement of readiness'' would, above their signature, state that 
they are ready for a full hearing, could again restate their rights, 
warnings, telephone numbers of representatives etc. and moreover would 
clearly state that if they wish to be represented, it is their 
responsibility to have their representative present at the hearing (any 
representative who has filed, or does file before the hearing is 
scheduled, a form 1696 would of course still have the hearing scheduled 
at their availability) and that if they appear at the hearing without a 
representative, then they must proceed with the full hearing without a 
representative or else have their RFH dismissed and start over again.
    What this would accomplish is: No more adjournments except for 
medical emergency or other very compelling cause. As a precaution you 
could certainly provide that the ALJ may grant an adjournment to any 
claimant who, by reason of established mental defect, did not 
understand the above, although in many cases the person, claimant or 
helper, who figured out how to file the claim and the RFH, would be at 
least as likely to understand without excessive difficulty these 
instructions. Therefore, in any event, at least almost all of the cases 
will move quickly and should have only one hearing date so that other 
claimants will not have to wait as they do now.
    Eliminate the requirement in all unfavorable decisions that the 
ALJ, in addition to the sequential evaluation, must specifically 
evaluate (twice for substance abuse cases) the claimant's functioning 
in a very large number of precise physical and even more mental 
categories (RFC and PRTF). This requirement has lead to a lot of 
development, the use of a lot of consultative examinations (CEs), 
medical and vocational experts, a lot of time spent in preparing the 
decision (is it any surprise that the writer alone needs an average of 
8 hours to write an unfavorable decision? And that by no means 
guarantees that the Judge will find that the proposed decision is 
anywhere close to being legally sufficient) and a lot of remands, all 
of which would not occur except for the fact that it is required by our 
regulations
    For example, assume a case with no physical evidence and virtually 
no psychological evidence. except for one psychological report finding 
a psychological impairment, but no RFC is provided (and DDU CE's 
frequently do not provide them despite the requirement that they do and 
of course there is nothing the ALJ can do about that except live with 
it or order another CE) except for the conclusion of the psychologist 
that ``there is no reason why this person cannot work full time at 
whatever he is physically capable of''. That case might seem to be 
ready for a speedy decision, but under our current rules a whole lot--
much much more--needs to be done. Take another example. Congress by law 
has provided that substance abuse disabilities are not legally 
compensable. Take a case where there are only two impairments: 
``alcohol abuse'' and ``drug abuse''. A simple decision? Very far from 
it. We must still go through the sequential evaluation process step by 
step and make findings with discussion on every aspect of the 
claimant's physical RFC and more pertinently every aspect of the 
claimant's mental RFC and PRTF and do all this not once but twice, once 
for the claimant as the claimant is with substance abuse and once for 
how they would be without it!!! In all cases, the failure to prove any 
one aspect of any of these categories to the satisfaction of the 
Appeals Council or the Federal Courts will often result in a remand.
    In short, the burden of proof as to a number of very detailed and 
complex categories has been effectively shifted to the ALJ. However, in 
virtually any other sort of a civil action, it is sufficient enough for 
the finder of the facts to find, sometimes with reasons required, 
sometimes not (but they certainly should be required here), that the 
plaintiff has not met their burden of proof, Period. End of case. Do 
the same for our cases and it will save us an enormous amount of time 
that can be put into doing many more cases (although I must note 
parenthetically that most of us probably already do more cases than 
most other Judges in other systems).
    I believe that the Committee is also interested in numbers of 
filings. Since the Zebley  U.S. Supreme Court decision of the early 
1990s, child disability claims have skyrocketed. Possibly the Agency 
might have the statistics broken down. I do not. I do know that very 
many parents have filed for all types of physical disabilities and very 
many mental disabilities of their children such as ADHD, personality 
disorders, conduct disorder, disruptive behavior disorder, oppositional 
defiant disorder, antisocial personality disorder, mental retardation, 
borderline intellectual functioning etc. etc. The problem, if there is 
a problem, is not in how child disability is defined nor how it is 
adjudicated by us or others. It is in how the process works and 
moreover what happens after disability is adjudicated.
    Let us compare an adult with a child. An adult, to get disability, 
must cease all work at substantial gainful activity (SGA) level while 
they wait for years for the system to operate. A child, by contrast, is 
of course not expected to be working and therefore the parent 
sacrifices nothing financially, merely a little time, hence they have 
nothing to lose--only a possibility of gain, when they file for 
disability for the child. However, the child, certainly if old enough 
to understand, as well as the parent, has a very definite financial 
incentive to demonstrate the child's disability, or the underlying 
behavior that has or will result in a diagnosis of the disability, at 
school and elsewhere, often to the detriment, disruption and 
displeasure of others. And of course if disability is found, then there 
is definitely a strong financial incentive for that disability or the 
behavior that is the basis for the disability to continue indefinitely 
so that the checks will continue indefinitely. I have personally seen a 
number of cases in which psychologists have commented that the parent 
is not at all motivated to improve the child's behavior or to cure the 
disability, but is merely seeking a disability check for the child.
    If disability is found, the adult receives a monthly check, which 
is apparently some form of compensation (however inadequate in many 
cases) to the adult and his/her family for the wages that he/she might 
otherwise be earning. If the child is found to be disabled, the parents 
receive a monthly check for the child which is apparently some form of 
compensation to the family for . . . ??? . . . exactly what I am not 
clear. In some cases, the disability is causing substantial financial 
expense. Just one example: I have seen cases in which the parent of a 
young ADHD child was unable to work because no one would take the 
child. Yet, in general, the child as a child is not expected to work. 
In many cases, all the services that the child is receiving or would 
receive are provided by the public schools and other public funding.
    Why not change the compensation for child disability to include all 
reasonable and necessary medical, psychological, counseling and all 
other reasonable and necessary expenses, lost wages, transportation 
etc. etc. (which will very probably result in substantially more money 
for some claimants) rather than simply a monthly check? Clearly what 
else this would accomplish is that it would likely very substantially 
reduce the caseload in that many filers whose children's alleged 
disabilities actually cost them very little or nothing at all will not 
bother to file if there is no possibility of a monthly check each and 
every month at the end of the process.
Abolish the ``Quality Control'' Program to the extent that it involves 
        Judges.
    To my knowledge, this program takes about 20 Judges for I believe 4 
months at a time 3 times a year, off of hearing real cases, thereby 
adding enormously to the backlog, to do studies reviewing anonymously 
decisions previously made by other Judges. These Quality Control 
reviews have no affect whatsoever on any real live case. They are for 
bureaucratic purposes. True, they issue a lengthy report but to my 
knowledge many Judges don't even read it and those who do, I'm sure, 
say ``they're talking about someone else, surely not me''. State and 
federal courts certainly have nothing like it and do fine. The whole 
thing is completely unnecessary because there already exists another 
much better Quality Control Program. It is done on real live actual 
cases. It is known as the appellate process and it ought to continue as 
is with the Appeals Council reviewing both favorable and unfavorable 
decisions. I must now add that I have heard that this QC program has 
been suspended and is under review. If it hasn't already been, it 
should be abolished as it pertains to Judges.
Prison cases.
    In many offices, the vast majority of the oldest cases are prison 
cases. That is because their lives are literally in the hands of their 
jailors and, sorry to say but it's true, most of the jailors could not 
care less whether the prisoner ever gets their disability hearing or 
not. Therefore their inefficiency is legendary and very often the 
prisoner is not made available for their phone hearing despite repeated 
promises that they will be. Therefore an enormous amount of staff time 
and taxpayer money is expended constantly scheduling and rescheduling 
the cases of prisoners. The solution: Find a way that an ALJ can issue 
an easily enforceable order (as state and federal Judges do) requiring 
the jailors to bring the prisoner to our hearings (which makes for a 
much shorter and smoother process than any phone hearing). This is done 
I understand to bring the prisoners to medical appointments. If this is 
not possible, then provide that all prisoners' hearings will be held in 
abeyance until their release from jail. Prisoners lose a lot of rights. 
I don't see why the right to a disability hearing can't be delayed 
until their release.
Close the record at the end of the hearing.
    Provide that on appeal of any decision or dismissal (for dismissal 
if and only if the Hallex has been followed), no facts or issues may be 
raised or discussed on appeal that were not presented to the ALJ at the 
hearing.
    Points 9 and 10 will make it a lot easier for us to decide cases 
much more quickly and coherently with far fewer time-consuming 
supplemental hearings with experts, additional development and/or 
remands. Therefore we can decide a lot more cases. All that these 
changes do procedurally is to put our proceedings on the same basis as 
virtually every other type of legal civil proceeding known to mankind.
    In virtually every other court, administrative body or civil forum 
in the country and probably the world except our system at ODAR 
formerly OHA, when the case is called for trial or hearing, that is 
when the parties must be present and present all their evidence. When 
the hearing or trial is over, no more evidence is received. Additional 
evidence is not allowed to be submitted after the hearing or trial but 
prior to the verdict or decision, or on appeal. Isn't it amazing that 
the representatives, generally lawyers, in all of these other forums, 
when they have to comply with this rule (or face possible loss of the 
case and a very angry client), are quite capable of doing so?? If they 
were made to follow these rules in our forum, they can and would do so. 
In any event, in the worse case scenario, our rules already provide 
that a claimant may always refile and that a prior decision may be 
reopened for good cause.
    But what about the pro se (unrepresented) claimant? Hasn't he/she 
gone through enough just to get their ``day in court''?? Isn't it 
unconscionable to try to avoid the merits of their claim and defeat 
them with procedural legal jargon and technicalities??? It certainly 
is!!! But that is not what would happen. Why not?? Because, as 
President Bernoski explained, under the law we as ALJ's figuratively 
wear three hats and one of them already (although it would do no harm 
if it were restated somewhere) imposes upon us the absolute duty to 
assist the claimant. To do this, we should and do inquire of the pro se 
claimants, who is treating them for their impairments and then we ask 
our staff to obtain the evidence from these providers. Perhaps some 
additional exceptions to these rules might be appropriate, particularly 
for pro se claimants. But a means to enforce rules requiring timely 
submissions of everything to the ALJ in general would aid our 
timeliness and productivity immeasurably.

                                 

                     Statement of James E. Andrews
    As a disabled individual with a pending disability claim with the 
Social Security Administration, I would like to know what you are doing 
to ensure that the disability claim procedure and hearings and appeals 
adjudication process is being administered correctly. I am specifically 
addressing and greatly concerned with the following:
    The completeness and accuracy by the Social Security Administration 
in reviewing an individuals: application, forms, statements, medical 
records, and vocational rehabilitation records. That a fair, unbiased, 
and accurate decision is being rendered at each level of disability 
determination.
    That a timely resolution is being sought regarding the backlog of 
pending disability claims. I have already contacted my State Senators 
and the Congressman from my district for an official inquiry into my 
disability claim. I am not asking for an inquiry from you regarding my 
specific claim, I am respectfully requesting answers to these 
questions.
    As an individual with medical conditions that require constant 
care, I do not think that filing a disability claim should be this 
demoralizing. I believe the Social Security Disability Program was 
established as a safeguard for people unable to work because of their 
disabilities. I can see how a vast majority of claimants quickly become 
overwhelmingly frustrated and quite discouraged with the manner in 
which they are dealt with by the Social Security Administration.

                                 

                   Statement of Judge Steven A. Glaze
    The Federal Administrative Law Judges Conference (FALJC), of which 
I am President, is a voluntary professional association, organized over 
60 years ago for the purpose of improving the administrative judicial 
process, presenting educational programs to enhance the judicial skills 
of Administrative Law Judges, and representing the concerns of Federal 
Administrative Law Judges in matters affecting the administrative 
judiciary. The membership of the Conference includes Judges from almost 
every administrative agency which employs Administrative Law Judges.
    It has come to the attention of FALJC that Michael J. Astrue, the 
Commissioner of Social Security, sent you a bill proposal that would 
allow all agencies in certain instances to immediately ``discipline'' 
ALJs who work for them without a prior finding of good cause 
established by the Merit Systems Protection Board. FALJC strongly 
opposes this proposal.
    Under the current law, Administrative Law Judges are subject to 
agency discipline for most conduct and productivity problems just like 
any other government employee. However, an action against an 
Administrative Law Judge leading to removal, suspension, reduction in 
grade, reduction in pay, or furlough of 30 days or less, may be taken 
by his or her agency only for good cause established and determined by 
the Merit Systems Protection Board (MSPB) on the record after 
opportunity for hearing before the Board.\1\ The current law allows 
only three exceptions to the requirement that an agency show good cause 
before the MSPB before firing or otherwise disciplining an ALJ: a 
suspension or removal in the interests of national security under 5 
U.S.C. Sec. 7532, a reduction-in-force action under 5 U.S.C. Sec. 3502, 
or any action initiated by the Special Counsel under 5 U.S.C. Sec. 1215 
for (1) committing a prohibited personnel practice, (2) violating a 
law, rule or regulation, or engaging in other conduct that is within 
the jurisdiction of the Special Counsel under 5 U.S.C. Sec. 1216, or 
(3) knowingly and willfully violating an MSPB order.\2\
---------------------------------------------------------------------------
    \1\ 5 U.S.C. Sec. 7521(a) (2000).
    \2\ 5 U.S.C. Sec. 7521(b) (2000).
---------------------------------------------------------------------------
    Commissioner Astrue proposes to upend this procedure by allowing 
any agency to ``discipline'' its ALJs without an MSPB finding of good 
cause whenever an ALJ (i) is indicted or convicted of an imprisonable 
crime; (ii) is disbarred or suspended from the practice of law; (iii) 
is found by a court or administrative tribunal ``to have discriminated 
against an individual in a protected class, showed disrespect to an 
individual in a protected class, committed discriminatory physical or 
verbal conduct against a protected class member, or committed sexual 
harassment;'' or (iv) ``is indicted or convicted of a misdemeanor 
involving fraud, theft, assault, physical violence, prostitution, 
solicitation, sexual misconduct, or an offense involving narcotics or 
is found civilly liable for engaging in one or more of these 
activities.''
    Commissioner Astrue's proposal is ill-considered, unwise, 
irrational and unreasonably punitive. His explanatory letter offers 
absolutely no rational basis for it. ``Reducing the disability 
backlog,'' as the Commissioner recites, is certainly no reason for it. 
The Social Security Administration already disciplines its 
Administrative Law Judges for conduct and performance infractions by a 
variety of methods, several of which do not require an MSPB finding of 
good cause, including counseling and oral and written reprimands.\3\ 
Commissioner Astrue has offered no evidence that these methods do not 
work.
---------------------------------------------------------------------------
    \3\ See Congressional Response Report, Administrative Law Judge and 
Hearing Office Performance, A-07-08-28094, at 18 and App. E (August 
2008), available at http://www.ssa.gov/oig/ADOBEPDF/A-07-08-28094.pdf,
---------------------------------------------------------------------------
    The proposal vaguely calls for ``discipline'' for certain types of 
offenses but does not explain what form that ``discipline'' may take. 
Presumably, that ``discipline'' would include the specific punishments 
that the current law prohibits without an MSPB finding of good cause. 
The proposal does not even indicate which should come first, the 
agency's ``discipline'' or an MSPB determination of good cause.
    Commissioner Astrue's idea crosses the line not only by expanding 
what punishments may be meted out without showing good cause, but also 
by contracting the nature of offenses that otherwise call for due 
process. It calls for ``discipline'' without a showing of good cause 
upon an indictment for a crime, not just a conviction, even though 
indictments are not in and of themselves proof of anything. The 
proposal also allows for ``discipline'' without a showing of good cause 
in instances of civil liability, not just criminal liability, for which 
standards of proof are much lower and inappropriate for punishing 
egregious behavior.
    As for ``discipline'' without a showing of good cause upon being 
found to have shown ``disrespect'' to someone or some class of 
individuals, Commissioner Astrue's idea goes far beyond the boundaries 
of good sense. Administrative Law Judges are by the very nature of 
their jobs susceptible to accusations of this sort in many 
circumstances and should not be singled out for harsh agency punishment 
in such cases without due process. To give one example, in Social 
Security cases, claimants unhappy with their case outcomes sometimes 
make accusations of bias and mistreatment that may be unfounded. SSA 
hypothetically could use such complaints to get rid of ALJs for 
political, case outcome, or retaliatory reasons.
    Commissioner Astrue's proposal allows for ``discipline'' without a 
hearing or finding of good cause in a variety of circumstances that, if 
anything, should not lead to ``discipline'' unless there is proper 
notice, an opportunity for hearing, and a showing of good cause. The 
hallmark of ``due process'' is the right to a hearing on the record, 
which the subject proposal eliminates. Strangest of all, this proposal 
singles out Administrative Law Judges for a unique form of punishment 
from those whom the Administrative Procedure Act (APA) expressly 
forbids so acting--the very agencies for which ALJs are required to 
render independent, impartial initial decisions without regard to 
agency pressure or politics.\4\ The proposal attempts to destroy one of 
the most important features of the ALJs' decisional independence in the 
APA: protection from agency discipline or dismissal without 
accountability to the MSPB.
---------------------------------------------------------------------------
    \4\ 5 U.S.C. Sec. 554(d)(2).
---------------------------------------------------------------------------
    Administrative Law Judges who are found guilty of committing the 
offenses that Commissioner Astrue lists in his proposal are subject to 
ample punishment under the laws of the United States, just as any 
recalcitrant public official would be. For such conduct, they are also 
subject to specific disciplinary actions by the Merit Systems 
Protection Board upon a finding of good cause. There is no need to 
impose a needless in terrorem provision on Administrative Law Judges 
beyond the more-than-adequate provisions of civil and criminal law.
    For the foregoing reasons, FALJC respectfully opposes this measure.
            Very truly yours,
            Judge Steven A. Glazer
            President
            THE FEDERAL ADMINISTRATIVE
            LAW JUDGES CONFERENCE
Cc: Ms. Rachel Shoemate
Executive Office of the President
Office of Management and Budget

                                 

                      Statement of Rhone Research
    The Solar Energy Industries Association (SEIA) is the national 
trade association of solar energy manufacturers, project developers, 
distributors, contractors, installers, architects, consultants and 
financiers. Established in 1974, SEIA works to make solar energy a 
mainstream and significant energy source by expanding markets, 
strengthening the industry, and educating the public on the benefits of 
solar energy.
www.seia.org
Executive Summary
    A new energy paradigm for our country depends on the growth and 
development of carbon-free energy generation. Naturally, there will be 
a mix of different energy sources. However, for the next ten to fifteen 
years, only ready-to-deploy technologies such as solar energy can fill 
the nation's need for pollution-free generation.
    A carbon constraint, in and of itself, will not succeed in rapidly 
deploying solar technology at the scale necessary to begin combating 
the climate crisis. Any successful carbon policy must be designed to 
scale up the market for solar as rapidly as possible. Depending on the 
form of the carbon constraint this could mean allowances allocated to 
solar generators based on the amount of carbon-free energy produced or 
pools of auction proceeds that fund a solar roofs program, a renewables 
transmission corridor, or a loan guarantee initiative to help 
businesses and homeowners ``go solar.''
    The climate crisis is the single largest problem ever faced by our 
country and the world at large. Solar energy is a crucial part of the 
solution and, as such, it must be recognized and rewarded in any 
climate policy.
Statement of Climate Problem
    Global warming is caused by a thickening layer of carbon dioxide 
and other pollutants that trap heat from the sun. Global warming 
pollution has already caused average worldwide temperatures to increase 
by over 1 degree Fahrenheit over the last century. Scientists say that 
unless global warming emissions are reduced, average temperatures could 
rise another 3 to 9 degrees Fahrenheit in the United States by the end 
of the century, with far-reaching effects:

      Higher temperatures will worsen air pollution;
      Sea levels will rise, flooding coastal areas;
      Heat waves will be more frequent and intense;
      More droughts and wildfires will occur in some regions, 
more heavy rains and flooding in others; and
      Species will disappear from historic ranges as habitats 
are lost.
    Many of these changes have already begun. More carbon pollution 
means higher temperatures and greater dangers. If we do not begin to 
reduce emissions now, we will leave our children and grandchildren with 
an unsafe and unhealthy environment.
    The window of opportunity to avoid the worst global warming impacts 
is closing. Carbon pollution stays in the atmosphere for more than a 
century and, with each passing year, emissions build up to increasingly 
dangerous levels. To avoid reaching levels that trigger irreversible 
damage, we must limit how much carbon pollution we put into the 
atmosphere over the next decades. This leaves us with a choice: the 
more carbon pollution we put in the atmosphere now, the less we'll be 
able to put there later. Delaying action now will only force more 
drastic, and more expensive, reductions in the future.
Benefits of Solar Energy
    Solar technology has the highest carbon return on investment of any 
energy generation source. As one example, the energy lifecycle cost of 
photovoltaic panels is paid back in 1.5--2.5 years and the equipment 
will continue to generate carbon-free electricity for 25-50 years. In 
addition to being a zero-carbon source of energy, the solar industry 
also supports other public policy goals:
Energy Security
    Solar helps to stabilize the grid, provide clean, reliable power, 
and reduce the impact of natural disasters or terrorist attacks on the 
nation's energy infrastructure. Producing domestic, clean solar energy 
will reduce our dependence on foreign sources of energy.
Peak Energy
    In most of the U.S., peak electric loads occur when solar 
electricity is near optimal efficiency (9 a.m. to 6 p.m.). Those loads 
are almost exclusively served by high-cost central station gas 
generation, often at the least efficient plants. This makes solar the 
ideal technology for easing congestion on the grid when it is most 
necessary.
Job Creation
    All segments of the solar industry require highly-skilled workers. 
For manufacturers, distributors, contractors, installers, architects, 
consultants and financiers alike, the solar energy industry will create 
hundreds of thousands of jobs and help put America back to work. With 
the passage of the 8-year extension of the Solar Investment Tax Credit 
(ITC), the solar energy industry is expected to support 440,000 jobs by 
the year 2016. Properly designed carbon legislation can increase these 
job and investment numbers significantly.
Clean Energy
    Solar energy is the cleanest of all renewable energy sources, 
producing electricity and thermal energy with zero emissions, and no 
waste byproducts. Photovoltaic, or PV, technologies have the added 
benefit of no water use, which will become an even greater issue as 
climate change affects the nation's water supply.
State of the Solar Technologies
    While the sun generates enough energy to meet the world's energy 
needs many times over, the challenge is to capture that power for 
consumer use at a reasonable cost. Today's solar energy technologies 
convert the sun's light to electricity, absorb its heat for heating and 
cooling systems or concentrate its heat to power steam turbines that 
produce electricity.
Solar Electric (Photovoltaic)
    Photovoltaic (PV) panels generate electricity directly from 
sunlight via an electronic process that occurs naturally in certain 
materials, like silicon.
    PV panels can be used to power anything from small electronics such 
as calculators and road signs to homes and large commercial businesses, 
and solar farms are capable of powering entire towns.
    The U.S. is the world leader in the manufacture of both next-
generation thin film technologies and the polysilicon feedstock used in 
most PV applications. U.S. PV manufacturing grew by 74 percent in 2007 
and U.S. PV installations grew by 45 percent--both among the fastest 
growth rates in the world. Globally, the U.S. is the fourth largest 
market for PV installations behind world leaders Germany, Japan and 
Spain.
Solar Thermal
    Solar thermal technology harnesses the power of the sun to provide 
energy for solar hot water, solar space heating and cooling and solar 
pool heaters.
Solar Water Heating
    Most solar water heating systems have two parts, a solar collector 
and a storage tank. The solar collector gathers the sun's energy, 
transforms it into heat then transfers the heat to water. The heated 
water is then stored in the tank for later use, with a conventional 
system providing additional heating as necessary. Solar water heating 
systems can be either active (relying on electric pumps to circulate 
water) or passive (relying on gravity and the tendency for water to 
naturally circulate when heated), but the most common type for use in 
commercial and residential buildings is active.
Solar Space Heating and Cooling
    Active solar space heating systems collect and absorb solar energy 
and use electric fans or pumps to transfer and distribute the heat. 
These systems also contain an energy-storage system to provide heat at 
night or when the sun is not shining.
    Passive solar space heating capitalizes on the sun's warmth through 
design features as well as materials in walls or floors that absorb 
heat during the day and release that heat at night.
    Perhaps the most interesting new solar thermal technology is the 
absorption chiller--a closed-loop system that converts solar-heated 
water into air conditioning. Water heated by the sun through flat-panel 
collectors or evacuated tubes is subjected to a low-pressure loop with 
lithium bromide, a phase-change catalyst, which causes the water to 
reach a cool 44 degrees F. This cooled water runs through copper 
piping; forced air passing over the coils produces air conditioning.
Solar Pool Heating
    Solar pool heating systems use the existing pool filtration system 
to pump the water through a solar collector and the collected heat is 
transferred directly to the pool water. Solar pool heating collectors 
typically operate at a slightly warmer temperature than the surrounding 
air and normally use unglazed, low-temperature collectors made from 
polymers.
Concentrating Solar Power
    Concentrating solar power (CSP) plants are typically utility-scale 
generators that produce electricity by using mirrors or lenses to 
efficiently concentrate the sun's energy. CSP technologies include 
parabolic trough systems, power towers, compact linear Fresnel 
reflectors, and dish systems which concentrate the thermal energy of 
the sun to drive a conventional steam turbine.
    Parabolic trough systems use parabolic curved, trough shaped 
reflectors to focus the sun's energy onto a receiver pipe running at 
the focus of the reflector. Because of their parabolic shape, troughs 
can focus the sun at 30 to 60 times its normal intensity on the 
receiver tube. The concentrated energy heats a heat transfer fluid in 
the tube, which is then used to generate produce steam to power a 
turbine which drives an electric generator, thereby producing 
electricity.
    Power tower systems use a field of computer-controlled flat mirrors 
(called heliostats) to focus solar heat on a central collector tower. 
The high energy at this point can then be used to heat water to produce 
steam (and run a central generator) or it can be transferred used to 
heat to a heat transfer material fluid (typically liquid sodium) which 
can then stores the heat for later use.
    The compact linear Fresnel reflectors use flat reflectors moving on 
a single axis while using a Fresnel lens to concentrate the solar 
thermal energy into collectors onto receiver tubes, as with parabolic 
troughs. The flat mirrors used in this system allow for a greater 
density of reflectors in the array, increasing the efficiency of land 
use.
    Dish systems use a large concave dish to track the sun and focus 
the energy onto a high-efficiency motor, which generates electricity 
directly. Utility-scale solar projects will site scores of individual 
dishes in an array on one plot of land.
Carbon Constraint Policy and Solar Energy
    The industry does not have a preference between a cap and trade 
system or a carbon tax. What is imperative is that the policy be 
optimized for the maximum deployment of solar technologies and that the 
policy provides a revenue stream to immediately deploy carbon-free 
technologies today, rather than ten years in the future.
The Myth of Benefit
    There is an unfortunate and inaccurate notion that simply by 
implementing any type of carbon constraint, zero-emission technologies 
such as solar and wind energy will greatly and instantly benefit. This 
is not the case. Most of the climate bills which have been introduced 
in the last two years provide a long ramp-up period, with no immediate 
or near-term costs added to energy from fossil fuel generation. At the 
same time, these bills have placed faith and trust in new technologies 
still in the experimental stage that will not have results for years to 
come.
    In order to truly benefit the growth of ready-to-deploy, carbon-
smart technologies, such as solar and wind, any climate policy must 
explicitly be optimized to benefit these deployment-ready technologies.
The 10-Year Solar Window
    Solar is ready today to deploy on a massive scale and immediately 
begin producing gigawatts of carbon-free electricity. While carbon 
capture and sequestration (CCS) may offer promise for the continued use 
of fossil generation in the future, the technology will be in the 
testing stage for years to come. Additionally, the pipeline 
infrastructure necessary for the broad deployment of a working CCS 
network will add additional years of development. Similarly, nuclear 
technology--which produces no carbon emissions while generating 
electricity--faces siting and environmental challenges which will make 
large scale development in the next decade difficult at best.
    During this 10-year window, in order for any real progress to be 
made in changing the energy paradigm of this country and moving us 
toward a carbon-smart future, we will need to deploy solar on a massive 
scale. The technologies are ready today and offer unrivaled 
environmental benefits while creating the energy we need to feed our 
economy.
What Is Needed to Create Solar Wedges
    Solar energy has the potential to fill a clean-energy wedge in 
meeting the nation's growing energy needs. This includes all forms of 
solar energy: photovoltaic (PV), utility-scale concentrating solar 
power (CSP), and solar heating and cooling.
What is needed for the vast deployment of solar energy generation:
Federal RES with Solar-Carve-Out or Set-Aside
    Renewable Portfolio Standards (RPS), also referred to as Renewable 
Electricity Standards (RES), puts a requirement on retail electricity 
providers to supply a minimum percentage of their electricity from 
renewable sources, such as solar, wind and geothermal.
    Approximately half the states have mandatory RPS programs and of 
those states, approximately a dozen have solar-specific designs (either 
a solar carve out or a multiplier). Analysis of state RPS (RES) 
programs has shown that, if our goal is to encourage a carbon-smart 
energy mix, it is imperative that a federal RPS (RES) contain a solar 
carve out (e.g., a minimal percentage of the renewable energy supply 
coming from solar electric and solar thermal sources). Without a solar 
carve out, any federal RES will only assist in deploying wind and 
biomass generation.
    Additionally, any federal legislation must not preempt more 
ambitious state RPS (RES) programs which demand a higher percentage of 
electricity to come from renewable sources or a high percentage to 
specifically be supplied from solar sources.
Solar Roofs Program
    A Ten Million Solar Roofs program, modeled on the very successful 
California million solar roofs initiative, will help to aggressively 
deploy solar throughout the country. The program would provide a rebate 
of $3 per watt (or thermal equivalent) for solar systems up to 4 
megawatts in size.
Guaranteed Low-Interest Loans for Solar Property
    A ``Stafford loan'' renewable energy program would allow business 
and home owners to receive subsidized loans to install solar thermal or 
solar electric equipment.
Zero-Carbon Energy Generation Access to Federal Lands
    A Solar Reserves program would set-aside large swaths of federal 
land for utility-scale solar projects. In order to optimize the 
effectiveness of the program and the speed at which projects could come 
online, the environmental assessments should be completed on the entire 
reserves area.
Renewable Energy Transmission Corridors
    Establish transmission corridors which give preferential treatment 
to renewable generation, such as utility-scale solar power plants. 
Policies that encourage upgrades and build-out of the transmission grid 
to reach areas rich in renewable resources must also be pursued.
Increased Solar Research & Development
    There needs to be massive increase in the funding for research and 
development for solar technologies. This is needed not only to continue 
to develop new polysilicon, thin film, and concentrating solar 
technologies, but also to lower manufacturing costs and improve 
techniques for deploying solar to market, such as the use of solar 
thermal technologies in zero- and low-energy buildings.
Solar Access Rights
    It should be the recognized right of every American to be an energy 
patriot, creating their own clean, carbon-free energy. Necessary 
policies must be put in place to protect this freedom.
Net metering
    Net metering programs allow customers who generate more solar 
energy than they consume to sell the excess electricity back to their 
local utility. Nearly forty states plus the District of Columbia 
feature some kind of net metering program, though the amount of 
electricity that can be sold back varies. SEIA supports a single 
national standard for net metering.
Interconnection
    Interconnection standards dictate the administrative process and 
technical specifications a homeowner or installer must follow to 
install solar electric property (solar panels, solar hot water heater, 
etc.) and connect that property to the local utility's distribution 
system. Not only do these standards vary by state, in some cases they 
vary from utility to utility. Requiring a local solar installer to know 
and follow many sets of rules and regulations increases the cost to 
consumers and creates a market barrier, inhibiting widespread adoption 
of solar technologies. SEIA's goal is to have a single, national 
standard for interconnection rules, which will ensure the safe and 
expedient installation of solar technologies for all consumers.
Restrictive Covenants/HOA Rules
    Across the country, local zoning laws and homeowners' associations 
(HOA) govern the approved uses of a property. While these rules are 
often created to ensure uniformity or uphold a community's aesthetic 
standard, they may unwittingly prohibit the installation of solar 
panels, solar water heaters or solar heating and cooling technologies.
    The tide is shifting and zoning laws are now being used to protect 
a homeowner's right to solar access from California to Maryland. SEIA 
aims to eliminate zoning laws and HOA rules prohibiting the 
installation of solar technologies nationwide.
Conclusion
    If the United States plans to combat climate change, the next 
decade is crucial. A carbon constraint alone is not enough. It must be 
optimized to deploy carbon-smart technologies that are ready today.
    Solar energy has the technological and environmental benefits 
necessary to meet the country's increasing need for clean power, while 
at the same time relieving much of the concern that climate policy 
might hurt the economy. Solar is an economic engine capable of creating 
hundreds of thousands of American jobs and billions of dollars of 
private investment.
    No one technology may be the silver bullet to solve the problem of 
climate change. However, if the country plans to meet its 
environmental, energy, and economic goals, any climate policy must 
promote the wide-scale deployment solar energy.

                                 

                   Statement of Robert Vanlangendonck
    If the handling of my application for Social Security benefits and 
the re-deduction for Windfall Elimination Provision (WEP) is typical of 
the Social Security Administration (SSA), then I can understand the 
backlog that now occurs for disability claims before an Administrative 
Law Judge (ALJ).
    On May 9, 2002, I applied for Social Security benefits while I was 
still employed. The clerk convinced me financially it would be better 
to start my benefits on May 9, 2002 at a reduced rate instead of on my 
65th birthday. I accepted the suggestion. I continued working and 
decided to retire on January 3, 2005.
    On November 2, 2004, I went to the local Social Security Office 
(SSO) stated my retirement date of January 3, 2005 from the State of 
Louisiana and was given a printout of my benefits with the WEP 
reduction. I was very vocal about this reduction and told the clerk it 
was a hoax and a rip-off. To pacify me, the clerk told me with the cost 
of living increase for the coming year, which had not been included in 
the calculation, my benefits would be about same as before the 
inclusion of WEP. I was also given form CMS-40B (1-90) Application for 
Enrollment in Medicare (Part B) that states effective ``3 January 
2005'' and form CMS-L564 (4-2000) Request for Employment Information 
that I brought to my employer and returned the documents to the local 
SSO on November 5, 2004. I also received by mail a printout of my 
``Indexed Earnings'' from the same clerk.
    My point in related the above information is that the local SSO was 
well aware that I would be retiring on January 3, 2005.
    I received a letter dated September 26, 2006 from SSA stating that 
my benefits were overpaid by $2,480.00; the WEP had not been deducted. 
On October 10, 2006, I filed a Request for Reconsideration. I received 
a letter dated June 6, 2007 from SSA stating my request had been 
denied, and I should contact the local SSO to file a formal 
reconsideration. In the letter, it states, ``You are overpaid because 
you did not tell us that you started getting a pension from Louisiana 
State Employee Retirement System.'' I will not go into detail with the 
additional letters and documents filed, but the SSA deducted the 
overpayment from my benefit checks the latter part of 2007 even though 
I had filed a ``Request For Hearing by Administrative Law Judge on 
August 22, 2007.''
    I received a letter dated July 22, 2008 for my ``Notice of 
Hearing'' to be on September 17, 2008 at 9:30 AM. On that date, I 
arrived at the Office of Disability Adjudication and Review about 8:20 
A.M. to make copies of my exhibits that I would present at the Hearing. 
After copying them, I was stapling together the multiply pages when the 
court reporter approached me and wanted to see my exhibits. She rifled 
through the exhibits pulling some out and making various piles. The 
ones she left on the table she stated were in the record and could not 
be introduced. She left with the pulled documents and returned almost 
immediately stating the judge was ready to hear my case. I grabbed my 
documents and followed her to the hearing. I stated my case although 
not how I had planned because of the actions of the court reporter. The 
hearing was over before 9:00 A.M. During the hearing that included a 
judge, a court reporter and me, a question of procedure arose. The 
judge referred the question to the court reporter. It was after the 
hearing that I realized the court reporter was not an independent one. 
Although I represented myself in proper person, the court reporter had 
no right to do or say what she did. I only hope the judge was not 
involved. I do hope other cases with or without legal representation 
are handled fairly without SSA interference. I cringe at the thought of 
cases concerning disabilities are treated like mine.
    One wonders if the SSA deliberately omitted my WEP deduction 
because of my involvement in its unfairness. In addition, is the SSA 
trying to swell its workload to justify a bigger budget? Regardless, 
when I contacted the SSA in November 2004 a simple form could have 
prevented all the unnecessary paperwork and wasted time, that is, if 
the SSA would have processed it properly.

                                 

           Statement of Social Security Disability Coalition
    My name is Linda Fullerton, and I have an inoperable blood clot and 
tumor in my brain, and suffer from several incurable autoimmune 
disorders that are too numerous to list, which have caused me to become 
permanently disabled. I currently receive Social Security Disability 
Insurance/SSDI and Medicare. You can get even more detailed information 
about my personal horror stories, which are not for the faint of heart, 
on my websites:
``A Bump On The Head``
http://www.frontiernet.net/lindaf1/bump.html
Social Security Disability Nightmare--It Could Happen To You!
http://www.frontiernet.net/lindaf1/SOCIALSECURITYDISABILITYNIGHTMARE
.html
    Social Security Disability is an insurance policy which was created 
to be a safety net for millions of disabled Americans, and for many 
such as myself, it has become their only lifeline for survival. I filed 
an SSDI claim in December 2001, was denied in March 2002 by the NYS 
ODTA (Office Of Temporary And Disability Assistance), filed an appeal, 
and then had to wait until June 2003, due to the severe hearing backlog 
in the Buffalo NY Office Of Hearings & Appeals, before my SSDI claim 
was finally approved. It is hard enough to deal with all the illnesses 
that I have, but then to have my entire life destroyed with the stroke 
of pen by neglectful government employees, to whom I was just an SS 
number, is more than I can bear. So now, not only will I never recover 
from my illnesses, but I also will never recover from the permanent 
financial devastation this has had on my life. I don't know how I am 
going to survive without some miracle like winning the lottery. I lost 
all my resources, life savings, and pension money during the 1\1/2\-
year wait for my SSDI claim to be processed. Due to the 24 month 
waiting period for Medicare, (I didn't become eligible for it until 
June 2004) I had to spend over half of my SSDI check each month on 
health insurance premiums and prescriptions, not including the 
additional co-pay fees on top of it. All the SSDI retro pay is gone now 
as well--used to pay off debts incurred while waiting for 1-1/2 years 
to get my benefits. I know first hand about the pain, financial, 
physical and emotional permanent devastation that the SSDI process can 
cause. My ``American Dream'' will never be realized. I have now been 
forced to live the ``American Nightmare'' for the rest of my days, 
because I happened to get sick, and file a claim for Social Security 
Disability benefits, a Federal insurance policy that I paid into for 
over 30 years. As a result, I will never be able to own a home, replace 
my lost financial resources, or replace my only means of 
transportation--a failing 11 year old car, and several other 
necessities. When things break down now, I cannot afford to fix or 
replace them and have to do without. I currently live strictly on the 
inadequate, monthly SSDI check I receive, always teetering on the brink 
of disaster. I do not qualify for any public assistance programs. I am 
doomed to spend what's left of my days here on earth, living in 
poverty, in addition to all my medical concerns. I struggle every day 
to pay for food, medicines, healthcare, gas etc, and this totally 
unbearable, continuing source of stress and frustration, along with my 
worsening health conditions, is killing me. I did not ask for this 
fate, and I tell you this not for pity or sympathy, but so you can get 
an accurate picture of what is really happening to disabled Americans 
in this country, whom you were elected to serve and protect.
Call For Open Congressional/SSA Disability Hearings
    I was forced to watch this hearing on the internet, because my 
repeated requests over the last several years to testify in person, 
have been blatantly ignored. I have made it very clear in previous 
written testimony submitted for the hearing record, through faxes, e-
mails and phone calls, to all the Congress people in my district, 
others on this Subcommittee, including you Congressman McNulty, 
Congressman Rangel, and many others in both the House and the Senate 
Committees that affect the Social Security Disability Program in any 
way, that I want to testify in person at these important hearings that 
directly affect me and others like myself. For some reason beyond my 
comprehension, you still will not let me do that. I have been following 
these hearings, for over five years now, and I find it deeply 
disturbing, and glaringly obvious, that not one panelist/witness 
selected to appear, has been an actual disabled American who has tried 
to get Social Security Disability benefits, and who has actually 
experienced this nightmare. Unfortunately this continues to be the case 
with this current hearing as well. While the witnesses you continually 
rely on may be very reputable in their fields, unless you personally 
have experienced trying to file a claim for Social Security Disability, 
you cannot begin to understand how bad this situation really is, and 
therefore are not fully qualified to be the only authority on these 
issues. I watched in amazement as Congressman Levin, actually mentioned 
that what was missing from these hearings was a ``face'' on this 
problem. This is the first time I felt that someone finally realized 
what I have been trying to tell you. But even this brief moment of 
brilliance, was quickly swept away as the hearing proceeded on like he 
had said nothing. Based on this apathy toward Congressman Levin's 
remarks, and my repeatedly denied requests to testify, it is my 
opinion, that you don't want to know what is REALLY going on. If you do 
not have to face someone such as myself, that has actually experienced 
this horrible nightmare, and has had their whole life permanently 
devastated as a result, we remain just a bunch of statistical SS 
numbers whose lives can be destroyed without guilt. We are in fact, 
your mothers, fathers, sisters, brothers, children, grandparents, 
friends, neighbors, and honorable veterans who have served this 
country.
    It is my understanding that there are also those within the SSA 
itself, who have wanted to testify for several years, and until 
recently have also been shut out of these hearings as well. Something 
is severely wrong with this picture! How you get an accurate handle on 
this situation without all the facts and possible witnesses who wish to 
testify in person? I find it hard to believe that these hearings cannot 
be scheduled in such a way that more appropriate witnesses could be 
chosen to testify.
    I heard some of you talk about hearing waiting times 200 days vs 
600 days, like it was nothing but a number to you. Everyday that a 
disabled American must wait for their benefits, is a day that their 
life hangs on by a thread, or worse yet, they do not survive. The 
stress from that alone is enough to kill you. Since it has been proven 
over the years that the average American has about two weeks worth of 
savings, anything over a 14 day waiting period in any phase of the SSDI 
process is totally unacceptable. Cutting the hearing wait time down to 
even 200 days, is nothing to tout as some great accomplishment on your 
part. If any other company or organization operated with the processing 
times that you still consider acceptable, they would be shut down and 
all the employees fired within the first 6 months of operation. Commons 
sense would lead you to the conclusion, that there is a strong 
correlation between the crisis that disabled Americans face while 
trying to get their benefits, and the housing, and economic meltdown 
this country is in the midst of. I challenge anyone of you to try and 
live for more than two weeks, not relying on your assets (since many 
SSDI applicants lose all their assets while waiting for approval) and 
with absolutely no income, and see how well you survive. Also keep in 
mind that you are not disabled on top of it, which adds its own 
challenges to the problem.
    As an actual disabled American, 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 before 
Congress, to risk my very life for the opportunity, should I 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 millions of other 
disabled Americans just like me. 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 
also propose that Congress immediately set up a task force made up of 
SSDI claimants, such as myself, who have actually gone through the SSDI 
claims process, that has major input and influence 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.
Social Security Disability Claimants Face Death And Destruction When 
        Applying For Benefits
    I must report with great sadness and disgust, that all these 
hearings have not brought about much progress, if any at all, and 
things continue to worsen by the day. In our country you're 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 right to legitimate SSDI benefits 
everyday. This is outrageous when something this serious, and a matter 
of life and death, could be handled in such a poor manner. Based on my 
own experience, the experiences of thousands of others which have been 
shared with me, and current conditions, I firmly believe that 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 SSDI benefits! The 
following statistics back up my statement:
    During 2006 and 2007, at least 16,000 people fighting for Social 
Security Disability benefits died while awaiting a decision (CBS News 
Report--Disabled And Waiting--1/14/08). This is more than 4 times the 
number of Americans killed in the Iraq war since it began.
    During 2007, two-thirds of all applicants that were denied--nearly 
a million people--simply gave up after being turned down the first time 
(CBS News Report--Failing The Disabled--1/15/08)
    In 2007 there were 2,190,196 new applications for SSDI benefits, 
and as of August 2008 there have already been 1,564,160 new 
applications.
    As of April 2008 there are about 1,327,682 total pending cases and 
out of that number, 154,841 are veterans.
    Nationally as of August 2008, over 63% of disability cases were 
denied at the initial stage of the disability claims process and it 
took from 101.9--111 days for claimants to receive the initial decision 
on their claim.
    If a claimant appeals the initial denial asking for 
reconsideration, in all but 10 test states where the reconsideration 
phase has been removed, 86.3% of cases were denied and the waiting time 
for this phase was an average of 89.6 days.
    As of August 2008 there are 767,595 cases waiting for hearings with 
an average wait time of 532 days.
    As of August 2008 over 290,840 hearings (38 %) have already been 
pending over a year, and there are only 962 Administrative law judges 
(ALJ's), to hear all those cases, with an average of 660.58 cases 
pending per judge nationwide.
    If a claimant appeals an ALJ hearing decision to the Federal 
Appeals Council, the average time from request for AC/Appeals Council 
Review to Appeal Council's Decision is 8 months. NOTE: It is not 
unusual to find cases pending for up to 24 months for various reasons. 
Cases pending longer than 24 months are then considered for expedited 
processing. In 2006--71% of the 88,907 cases that were sent to the 
Appeals Council were denied.
    In 2007--637,686 disabled Americans were forced by law to endure 
the mandatory 24 month waiting period for eligibility to receive much 
needed Medicare benefits.
Source: Social Security Administration Reports
    According to Health Affairs, The Policy Journal of the Health 
Sphere, 2 February 2, 2005: Disability causes nearly 50% of all 
mortgage foreclosures, compared to 2% caused by death.
    ``The escalating pace of foreclosures and rising fears among some 
homeowners about keeping up with their mortgages are creating a range 
of emotional problems, mental health specialists say. Those include 
anxiety disorders, depression, and addictive behaviors such as 
alcoholism and gambling. And, in a few cases suicide.
    ``Historically, research shows, rates of depression and suicide 
tend to climb during times of economic tumult.''
    ``Studies show a strong connection between financial distress and 
emotional stress, including anxiety, depression, insomnia and 
migraines.''
    Excerpts from Foreclosures Take Toll On Mental Health--Crisis 
Hotlines, Therapists See A Surge In Anxiety Over Housing--USA Today--
Stephanie Armour--5/15/08
    AARP/USA Today: Health Care To Get The Hollywood Treatment--5/28/
08--``More middle-class people file for bankruptcy because of health 
care related expenses than for any other reason.''
    MarketWatch: Illness And Injury As Contributors To Bankruptcy--
February 2, 2005--found that: Over half of all personal U.S. 
bankruptcies, affecting over 2 million people annually, were 
attributable to illness or medical bills. 15% of all homeowners who had 
taken out a second or third mortgage cited medical expenses as a 
reason.
    According to an insurance survey, conducted by the International 
Communications Research of Media, PA from Jan 10-14th 2007, on behalf 
of the National Association of Insurance Commissioners, researchers 
found 56% of U.S. workers would not be able pay their bills or meet 
expenses if they become disabled and unable to work. 71% of the 44% who 
had insurance, stated it was employer provided, so if they lose or 
change jobs they would no longer have disability coverage.
    In April 2006, Parade Magazine in an article called ``Is The 
American Dream Still Possible?''--published the results of their survey 
of more than 2200 Americans who earned between $30,000 and $99,000 per 
year, most stating that they were in reasonably good health. 66% say 
they tend to live from paycheck to paycheck and nearly 83% say that 
there is not much money left to save after they have paid their bills.
    Nearly 1 in 2 (133 million) Americans live with a chronic 
condition.
    20.6% of the population, about 54 million people, have some level 
of disability
    9.9% (26 million people) have a severe disability
    Note: The sources for these statistics and even more information is 
listed here:
    http://www.mychronicillness.com/invisibleillness/statistics.htm
    Approximately 54 million Americans, an estimated 20% of the total 
population, have at least one disability, making them the largest 
minority group in the nation, and the only group any of us can become a 
member of at any time. As our baby boomer population ages and more 
veterans return from war, this number will double in the next 20 years. 
It is a diverse group, crossing lines of age, ethnicity, gender, race, 
sexual orientation and socioeconomic status.
    Between 1990 and 2000, the number of Americans with disabilities 
increased 25 percent, out pacing any other subgroup of the U.S. 
population.
    Of the 69.6 million families in the United States, more than 20 
million have at least one family member with a disability.
    People with disabilities are nearly twice as likely as people 
without disabilities to have an annual household income of $15,000 or 
less.
    There are 133 million people in the United States living with a 
chronic health condition. That number is expected to increase by more 
than one percent a year to 150 million by 2030. 75% of people with 
chronic health conditions are younger than 65
    Notwithstanding the strides made in disability rights in the past 
25 years, the majority of people with disabilities are poor, under-
employed and under-educated due largely to unequal opportunities.
    The source for these statistics: Disability Stats And Facts--
Disability Funders.org
    http://www.disabilityfunders.org/disability-stats-and-facts
    52% of Americans would rather die than live with a severe 
disability, according to a recent national survey commissioned by 
Disaboom (www.disaboom.com), the premiere online community for people 
touched by disability.
    Disaboom Press Release--July 2008
    Two-thirds of those who appeal an initial rejection eventually win 
their cases (New York Times 12/10/07)
    It is also important to mention here that 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, and our membership increases by the day. It 
was born out of the frustration of my own experience, and the notion 
that others may be dealing with that same frustration. I was proven to 
be totally correct in that notion beyond my wildest imagination. Our 
group is a very accurate reflection and microcosm of what is happening 
to millions of Social Security Disability applicants all over this 
nation. If you visit the Social Security Disability Coalition website, 
or the Social Security Disability Reform petition website:
    Social Security Disability Coalition--offering FREE information 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 five years worth of documented horror stories on 
our Messageboard (over 19,000 messages), and see thousands of 
signatures (over 7800) and comments on our petition, from disabled 
Americans whose lives have been harmed by the Social Security 
Disability program. You cannot leave without seeing the excruciating 
pain and suffering that these people have been put through, just 
because they happened to become disabled, and went to their government 
to file a claim for disability insurance that they worked so very hard 
to pay for. I 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!
    This organization fills a void that is greatly lacking in the SSDI/
SSI claims process. While we never represent claimants in their 
individual cases, we are still able to provide them 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 connects 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
    There are three key reasons why the Social Security Disability 
program has been broken for decades, lack of proper funding for the 
SSA, apathy on the part of Congress and the SSA to fix the problems, 
and lack of crucial oversight on all parts of the program. In order for 
the hearing backlog to be eliminated these problems must be addressed.
Changes/Proper Funding Necessary For SSA To Accomplish It's Goals And 
        Properly Serve Disabled Americans
    I continually hear talk at these hearings about increasing the 
funding for the SSA, and you asking witnesses for answers, on how much 
the SSA will need to fix the current problems, and prevent new ones 
from arising in the future. Still I see that the SSA is under funded 
almost every year, and there is a continued challenge to get the money 
that the SSA requests. 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.
Excerpt from: Social Security Administration: Inadequate Administrative 
        Funding Contributes to the Disability Claims Backlog Crisis and 
        Service Delivery Challenges
    ``Due to budget constraints in recent years the amount of 
administrative funding the Social Security Administration (SSA) has 
received through the annual appropriations process has been 
significantly below the level necessary to keep up with the agency's 
workloads. From 2001 to 2007, Congress appropriated approximately $150 
million less per year for SSA's administrative funding needs than the 
President requested. In FY 2006 the final funding level approved by 
Congress was $300 million less than the President's Budget Request. In 
FY 2007 it was $200 million less. The FY 2008 enacted level was $148 
million above the President's requested budget and it was the first 
time this decade that Congress has been able to provide funding above 
the President's request. However, the funding for Fiscal Year 2008 was 
$127 million less than the Conference Agreement on the FY 2008 Labor-
HHS Appropriations bill would have provided. The level agreed to by 
Congress was reduced due to the Presidential veto of the Labor-HHS 
Appropriations bill.''
Source: National Council of Social Security Management Associations 
        (NCSSMA) September 17, 2008
    One thing is said at the hearings, but when push comes to shove to 
vote for the SSA budget money, other programs or projects become higher 
priority, even though properly funding the SSA is literally a matter of 
life and death for millions of Americans. Even as I write this 
testimony, both the Senate and the House are voting on a continuing 
resolution package to provide stopgap funding for the Federal 
Government through March of 2009, but there are no special provisions 
for the SSA in this CR, which is going to make a horrendous situation 
even worse. Nothing is more important than the health and wellbeing of 
the American people, and as elected officials it is crucial that you 
never lose sight of that priority! SSA should not have to compete each 
year for funding with the Departments of Labor, HHS and Education which 
are highly publicized and therefore, often more popular programs. As 
stated in the previous testimony provided by Witlold Skierwczynski--
President--National Council Of Social Security Administration Field 
Operation Locals to the House Ways And Means Committee on 4/23/08 it is 
recommended that:

    Congress should enact off budget legislation including SSA 
administrative expenses with benefits which are already off budget. 
Congress should retain appropriations and oversight authority albeit 
unencumbered by artificial budget caps and scoring restrictions.
    Congress should enact legislation requiring the Commissioner to 
submit the SSA appropriation request directly to Congress.
    Congress should support the House Budget Committee recommendation 
to increase the SSA administrative budget by $240 million over the 
President's budget request.
Oversight is Crucial!
    The SSA Commissioner Improperly Allocated ALJ's For SS Disability 
Hearings--Recently SSA Commissioner Michael Astrue asked Congress to 
approve extra funding in order to hire additional ALJ's to try and 
reduce the severe SS Disability hearings backlogs across the country. 
While I agree that the SSA does need more funding, in fact way more 
than was actually finally given to them in 2008, there must be some 
major oversight by independent entities to ensure that these funds in 
fact are actually used/allocated appropriately. Here is a recent 
example that raises a red flag for such oversight and an immediate 
investigation. At the link below you will find a spreadsheet that shows 
the locations where the newly acquired ALJ hires announced by the SSA 
Commissioner had been allocated:
http://www.ssa.gov/legislation/ALJAppointmentsbyState032508.xls
    As you will see on this report--no ALJ's were originally allocated 
to the Buffalo/Rochester NY area, which is one of the worst in the 
nation for processing SS Disability hearings.
As of August 2008:
    It took 715 days (nearly two years) for the average Western New 
Yorker to have their SSA case heard and processed in the Buffalo NY 
Office Of Hearings & Appeals. This office is the worst in NY State for 
SS Disability hearing backlogs and out of 147 hearing offices reporting 
nationwide, Buffalo ranks at #130, as one of the worst processing times 
in the country. It ranks at #114 out of 150 hearing offices reporting, 
where the average age of a case pending a hearing is 349 days. 
Administrative Law Judges in Buffalo have some of the largest caseloads 
in the country, ranking at #107, out of 137 hearing offices reporting 
nationwide, with an average of 796.64 cases pending before each judge.
As of July 2008:
    47% (5,542) of cases in the Buffalo Hearing Office (which is higher 
than the national average) had been pending for over a year.
Source: Compiled from various SSA reports July and August 2008
    Commissioner Astrue used the argument that there was not enough 
office space in the Buffalo hearing office but that was immediately 
refuted by Congressman Brian Higgins:
Congressman Higgins Says Lack of Space Is Poor Argument for Staffing 
        Shortfalls in Local Social Security Disability Office--4/24/08
http://higgins.house.gov/newsroom.asp?ARTICLE3116=7715
    ``If the problem is office space, I would be happy to find them 
available space in downtown Buffalo tomorrow,'' Higgins added, pointing 
out that according to a Militello Realty report on downtown Buffalo 
property, as of January 779,228 square feet of Class A office space was 
vacant in the immediate downtown area. Congressman Higgins noted that 
staffing shortages aren't exclusive to the Administrative Law Judges. 
Staffing at Western New York field offices have decreased 
substantially--by approximately 170 employees--over the past 25 years, 
even though the need for services has increased.''
    It was only after heavy pressure by Congress, and major media 
exposure, that additional ALJ's were added to the Buffalo/Rochester NY 
area. How many other states is this happening to? Where is the much 
needed oversight to ensure that these ALJ's are properly allocated 
where they are needed the most?
    In an editorial letter from SSA Commissioner Astrue dated 8/21/08 
to the Atlanta Journal Constitution in regards to the severe hearing 
backlogs it was stated that ``We have taken a big step toward resolving 
that problem by bringing onboard 175 additional administrative law 
judges and additional staff to support them.''
In reality:
    At of the end of fiscal year 2007 the amount of ALJ's available to 
hear cases was at 1006. That number has steadily declined over the past 
several months and as of August 2008 there were in fact only 962 ALJ's 
currently available to hear cases*. The 175 new ALJ's that the SSA 
Commissioner has hired, (NOTE: most of the 175 newly hired ALJ's may 
actually already be factored into the August 2008--962 number--the 
report does not distinguish) once they are fully operational. In 
January 2008 there were 945 ALJ's * (a significant drop) from FY 2007 
and that may in fact only increase the available ALJ level to 114 
judges (not 175), over the number that were available to hear cases at 
the end of FY 2007. Basically this is still inadequate level, since it 
does not account for the fact that more judges may continue to leave 
for various reasons (retirement etc), and that the level of disability 
claims continues to increase instead of decrease, based on past 
history. So the likelihood of the claims backlog being resolved with 
this so called ``current fix'' is slim to none. In other words ``this 
is like putting a band aid on a gushing wound.'' More investigation of 
this problem by Congress, the Inspector General and GAO needs to happen 
immediately!
*Source: Social Security Administration Reports
    Horrendous Customer Service
    In a January 2007 Harris poll designed to evaluate the services 
provided by 13 federal agencies, the public rated SSA at the bottom of 
the public acceptance list and it was the only agency that received an 
overall negative evaluation. SSA Field Offices have lost over 2,500 
positions since September 2005 and nearly 1,400 positions since 
September 2006. In 2007 SSA Field Offices saw about 43 million visitors 
a week, and that number is expected to increase by over a million more 
in 2008. Constituents visiting these local Field Offices continue to 
experience lengthy waiting times and the inability to obtain assistance 
via the telephone.
    Here is just a small sampling of some of the major problems with 
the current Social Security Disability program and State Disability 
(DDS) offices who process the initial phase/medical portion of 
disability claims:
    Severe under staffing of SSA workers at all levels of the program 
Claimants waiting for weeks or months to get appointments, and hours to 
be seen by caseworkers at Social Security field offices Extraordinary 
wait times between the different phases of the disability claims 
process
    Very little or no communication between caseworkers and claimants 
throughout the disability claims process before decisions are made.
    Employees being rude/insensitive, not returning calls, not willing 
to provide information to claimants or not having the knowledge to do 
so
    Complaints of lost files and in some states, case files being 
purposely thrown in the trash rather than processed properly
    Security Breaches--Complaints of having other claimants information 
improperly filed/mixed in where it doesn't belong and other even worse 
breaches
    Fraud on the part of DDS/OHA offices, ALJ's, IME's--purposely 
manipulating or ignoring information provided to deny claims, or 
doctors stating that they gave medical exams to claimants that they 
never did.
    Claimants being sent to doctors that are not trained properly, or 
have the proper credentials in the medical field for the illnesses 
which claimants are being sent to them for.
    Complaints of lack of attention/ignoring--medical records provided 
and claimants concerns by Field Officers, IME doctors and ALJ's.
    Employees greatly lacking in knowledge of and in some cases 
purposely violating Social Security and Federal Regulations (including 
Freedom of Information Act and SSD Pre-Hearing review process).
    Claimants cannot get through on the phone to the local SS office or 
800 number (trying for hours even days)
    Claimants getting conflicting/erroneous information depending on 
whom they happen to talk to at Social Security--causing confusion for 
claimants and in some cases major problems including improper payments
    Proper weight not being given to claimants treating physicians 
according to SSA Federal Regulations when making medical disability 
determinations on claims.
    Complaints of ALJ's ``bribing'' claimants to give up part of their 
retro pay (agreeing to manipulation of disability eligibility dates) or 
they will not approve their claims
    Poor/little coordination of information between the different 
departments and phases of the disability process
    Complaints of backlogs at payment processing centers once claim is 
approved
    Federal Quality Review process adding even more wait time to claims 
processing, increasing backlogs, no ability to follow up on claim in 
this phase
    NOTE: These complaints refer to all phases of the SSDI claims 
process including local field offices, state Disability Determinations 
offices, CE/IME physicians, Office of Hearings and Appeals, the Social 
Security main office in MD (800 number)
    Excerpts from: Social Security Administration: Inadequate 
Administrative Funding Contributes to the Disability Claims Backlog 
Crisis and Service Delivery Challenges
    SSA has two classes of phone service: 800 Number and Field Office. 
The 800 Number had a busy rate of 7.5% in FY 2007 and handled about 59 
million calls through agents and automation. At the same time over 60 
million phone calls are directed to SSA Field Offices each year. In FY 
2007, 45% of callers who eventually reached a Field Office by telephone 
said that they had received a busy signal or were told to call back at 
another time on an earlier call. Consequently, the actual busy rate is 
higher than 45%.
    About 43 million people visited SSA Field Offices for assistance in 
2007. SSA Field Offices continue to receive more and more customers. 
This year SSA Field Offices are expected to see more than a million 
more customers than last year. One manager stated this in a recent 
NCSSMA survey: ``The staff usually feels overburdened with the never-
ending volume of interviews. They are usually one after the other daily 
with no ending. They are in need of time at their desk to process the 
numerous listings and actions that go with them.''
    In a survey by the National Council of Social Security Management 
Associations (NCSSMA) of their members performed in May 2008, they 
received the following feedback:
    81% stated they did not have enough staff to keep workloads current
    64% stated waiting times for the public were longer than they were 
one year ago
    65% stated the quality of their office work product has declined in 
recent years
    45% stated they could provide prompt telephone service 0-40% of the 
time
    49% stated their staff did not receive adequate training which was 
primarily due to lack of time an increasing pressure to process 
workloads
    Source: National Council of Social Security Management Associations 
(NCSSMA) September 17, 200 States Of Denial--The REAL Reason Behind The 
Social Security Disability Hearing Backlogs
    Since Social Security Disability is a Federal program, where you 
live should not affect your ability to obtain benefits. Sadly this is 
not the case. While funding is a major problem that SSA faces, the 
other primary reason for these hearing backlogs, continues to be 
ignored during these proceedings, and that is the initial phase of the 
disability qualification process which is handled by the individual 
state DDS/Disability Determination Services offices. 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.
    Excerpts from GAO Report GAO-04-656--SSA Disability Decisions: More 
Effort Needed To Assess Consistency of Disability Decisions--
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.''
    Excerpt from: Social Security Administration: Inadequate 
Administrative Funding Contributes to the Disability Claims Backlog 
Crisis and Service Delivery Challenges
    ``The Disability Determination Services (DDSs) have lost about 
1,270 positions since the beginning of Fiscal Year 2006, as a result 
their staffing levels are down about 8.7%. The attrition rate in recent 
years at the DDSs has averaged 12.7 % versus 6.8% for Federal 
Government employees. This has forced the DDSs to invest significant 
resources to train new staff. The DDSs will not be able to adequately 
address staffing losses either.''
    Source: National Council of Social Security Management Associations 
(NCSSMA) September 17, 2008
    What would be an incentive for states to deny Federal claims? Since 
many Social Security Disability claims are SSI or both SSI/SSDI 
combined claims and many states offer to supplement SSI payments at a 
higher benefit amount, therefore they want to keep as many off the 
rolls as possible so they do not have to pay out this supplement. Also 
since there is a different pay scale for government vs state employees 
who are often underpaid, lack training, are overworked, and must meet 
quotas of cases processed, the tendency is greater to rubber stamp 
denials to move claims off their desk when a case needs too much 
development. Thus the explanation for the fluctuation in denial/
approval/backlog rates by state. Unfortunately there is very little if 
any training or oversight on the state DDS offices to make sure they 
are making the proper decisions on disability claims. This is why so 
many claimants appeal to the hearing level where a huge percentage of 
bad claims decisions are overturned and cases are finally approved. 
Anyone who doesn't see that a ``Culture Of Denial'' has become a 
pervasive part of an SSDI claimants encounter with the SSA, is either 
totally out of touch with reality or is reacting evasively to the 
subject.
    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. Also many 
times medical records submitted are lost or totally ignored. If more 
time and effort were put forth to communicate with claimants, and to 
make the proper decision at the onset, there would be no need for all 
these cases to be appealed to the hearings level in the first place. 
That in itself would be a huge factor in reducing the hearing backlogs, 
but again, this fact has been greatly ignored and it is a major failure 
on your part. Until you properly devote the time and energy to look 
into this crucial part of the problem, the hearing backlogs will 
continue to grow at an uncontrollable rate, no matter how much money 
you give to the SSA.
    All phases of disability claims processing should be moved to and 
handled out of the Social Security individual field offices, including 
the DDS phase which is the medical determination phase currently 
handled by the states, and all hearing phases of the disability 
process. All people who process Social Security disability claims 
should be employees of the Federal Government to ensure accuracy and 
uniform processing of disability claims under Federal regulations and 
Social Security policies which is currently not the case. If the states 
are to continue to handle the DDS phase of the disability process, then 
all state employees handling Social Security claims should be required 
to receive a minimum of 3 months standardized training by the Social 
Security Administration, in SSA policies and Federal regulations 
governing SSDI/SSI claims processing.
    Too much weight at the initial time of filing, is put on the 
independent medical examiner's and SS caseworker's opinion of a claim. 
The independent medical examiner only sees you for a few minutes and 
has no idea how a patient's medical problems affect their lives after 
only a brief visit with them. The caseworker at the DDS office never 
sees a claimant. 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. Since many times doctors, hospitals etc often do not respond 
to SSA requests for medical information in a timely manner, or 
sometimes ignore these requests entirely, ALL doctors, and medical 
professionals including those at the VA should be required by Federal 
or State law, to fill out any medical forms and submit documents 
requested by the SSA within strict timelines or they will not be 
allowed to practice medicine in this country. Also as part of their 
continuing education program in order to keep their licenses, doctors 
should also be required to attend seminars provided free of charge by 
the SSA, in proper procedures for writing medical reports and filling 
out forms for Social Security Disability and SSI claimants. 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 also eliminate many cases from having to advance to the hearing 
or appeals phase.
Social Security Disability Program Problems--Contributing Burden Factor 
        on Medicaid/Social Service Programs For States
    There seems to be a relationship, between SSDI claims processing 
issues/backlogs, and the need for claimants to also apply for state 
funded Medicaid/Social Service programs. Many are forced to file for 
Medicaid, food stamps and cash assistance, another horrendous process. 
For example in New York State, about half the 38,000 people now waiting 
on disability appeals, for an average of 21 months, are receiving cash 
assistance from the state (New York Times 12/10/07). Those who file for 
these programs while waiting to get SSDI benefits, in many states, have 
to pay back the state out of their meager benefit checks once approved. 
As a result they're often kept below the poverty level, almost never 
able to better themselves since they can't work, and now are forced to 
rely on both state and federally funded programs instead of just one of 
them. This practice should be eliminated.
Improper CE/IME Medical Exams Ordered By Social Security Result In 
        Higher Rate Of Denials, Hearings And Appeals
    CE/IME examiners are paid a fee by Social Security for each person 
they see, so the more claimants they process, the more money they make. 
Often times they are caught saying they performed exams that they in 
fact never performed, make mistakes, or make false, misleading 
statements about claimants. Many times the DDS offices or ALJ's are 
sending claimants to doctors that have very limited knowledge of their 
specific health conditions, who are not specialists, or even the proper 
type of doctor, to be examining a claimant for the type of medical 
conditions that they have. 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. Even though a claimant's treating physicians are 
supposed to be given greater weight in decision making, this is often 
not the case. Whenever SSA 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). Common sense dictates that these 
poorly executed, and often unnecessary, medical exams result in a waste 
of time, money and energy, for both the claimants and the SSA, when the 
claimant ends up appealing a denial based on these improper SSA ordered 
examinations.
Utilize Hearing On The Record/Pre-Hearing Review Option To Reduce 
        Backlogs
    More emphasis and support staff need to be devoted to the pre-
hearing review process which could greatly reduce the current hearing 
backlog. This would obviously and should require more communication 
between hearing office staff and claimants or their representatives to 
update case files. Once the files have been updated, many would be able 
to be decided solely on the records in the file without having a full 
hearing in front of an ALJ.
Streamline Social Security Disability/SSI Claims For Veteran's To 
        Reduce Backlogs
    When a veteran has a 100% disability rating, receives VA benefits 
approval for that rating, and it is deemed by the VA that they can no 
longer work at any job under SSA Guidelines, that veteran should 
automatically be approved for their Social Security Disability/SSI, as 
long as they also meet the Non-Medical requirements for those 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. These claims 
should be processed by a special division within the SSA or the VA that 
is equipped to process both claims simultaneously. Congress and the SSA 
should designate special funding to see that this is implemented 
immediately for our veterans, so it moves a large group of claimants 
through the system faster thus reducing the backlog problem.
Regulation Is Necessary To Avoid Improper Social Security Disability 
        Claim Filings Due To State And Private Insurance Company 
        Policies
    There is a growing number of claims being filed by people who may 
not actually qualify for disability benefits under Social Security 
guidelines, but who are being forced to file Social Security 
Disability/SSI claims by their private disability and state disability 
carriers or risk not being eligible for benefits under those programs. 
Recently there has been media coverage on this issue which can be found 
here:
Trial Against Unum Over Handling of Disability Insurance Claims Opens 
        Today--Market Watch--PRNewswire via COMTEX--Boston--9/22/08
    http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/
story/09-22-2008/0004890097&EDATE=
Senate Asks 9 Insurers To Furnish Information--NY Times--Mary Williams 
        Walsh--7/25/08
    http://www.nytimes.com/2008/07/25/business/
25insure.html?_r=2&adxnnl=1&oref=slogin&ref=business&adxnnlx=1216988114-
xUJWefbXim4ZjKuyMloRVA&oref=slogin
Insurers Faulted As Overloading Social Security--NY Times--Mary 
        Williams Walsh--4/1/08
    http://www.nytimes.com/2008/04/01/business/01disabled.html
    Congress and the SSA needs to look into this issue and this 
practice needs to be stopped immediately as this too greatly adds to 
the disability backlog problem.
Americans Most Sensitive Data In Jeopardy
    I was very disturbed to learn as I watched this hearing, about the 
practice of allowing SSA employees to take work home with them. The 
following article discusses the SSA employee work at home situation.
Concern Over Federal Times Article: Arbitrator Tells SSA To Restore 
        Telework, Negotiate Changes--Federal Times--Courtney Mabeus--4/
        16/08
    http://www.federaltimes.com/index.php?S=3482166
    I am very concerned with the increased possibility of identity 
theft if SSA employees are allowed to take work home because they are 
too overloaded on their jobs. Employees should never be allowed to take 
this sensitive data home for any reason. Sensitive data has already 
been compromised at the VA, and this should not be allowed to happen 
ever again, especially jeopardizing our most vulnerable citizens to 
this very real and stressful possibility. I have personally caught the 
SSA in some major security breaches already, and this practice will 
only make those incidents even more common. Every effort must be made 
to properly secure this most sensitive information for the American 
people. In order to properly protect citizen's identities ALL sensitive 
data should only be able to be accessed on government secure systems at 
the job site only. This is obviously going to require more manpower and 
financial resources, and Congress must make sure that the SSA has every 
resource it needs to protect this data, at their disposal immediately.
Put Disabled American People First--Remove Detrimental Regulations
    There are some very detrimental, regulations that SSDI applicants 
are subject to as well, and are a great shock to them. Under Federal 
law, there's a five month benefit waiting period, and five months of 
back money withheld, which claimants will never see again. It was 
originally six months but Congress voted to reduce it to five. 
Apparently it is assumed that disabled Americans do not need that 
money. SSDI recipients must also wait another 24 months, in addition to 
the 5 month waiting period from disability date of eligibility (the 
date that SS determines that you were officially disabled) in order to 
qualify for Medicare benefits. Keep in mind that if you let any sort of 
health insurance policies lapse for too long, and don't maintain 
continuous health coverage, you may have a very difficult time getting 
a new insurance carrier, since they may hold your poor health against 
you, and consider many things as ``pre-existing conditions'' so you may 
not be covered for those illnesses. Congress expects a population who 
can no longer work, to go without five months of retro pay, have no 
health insurance, and wait several months to several years to have 
their disability claims processed. In my state when a healthy person 
loses their job, provides the necessary documents and files for 
Unemployment Insurance, their payments automatically start within a few 
weeks. It is blatantly obvious that those who find this to be 
acceptable standards are totally out of touch with reality and have no 
regard for human life.
Permanent Devastation Resulting From The SSDI Claims Process
    Unbearable stress, severe depression and suicidal thoughts are very 
common side effects of the SSDI/SSI claims process. Many are under the 
mistaken notion that when the SSDI benefit checks finally come, if one 
is in fact finally approved, that everything will be OK. Often the 
abuse and worry that applicants are forced to endure, and the 
devastation caused while waiting for SSDI claims to be processed, 
leaves permanent scars on one's health and financial wellbeing as it 
did for me. It causes even further irreparable damage to their already 
compromised health, and it is totally unacceptable. As a result use of 
the highly promoted SS Ticket to Work program, or any future chance of 
possibly getting well enough to return to the workforce, even on a part 
time basis, becomes totally out of the question. Then if you eventually 
get approved for benefits, there is always the added 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.
    I not only have complaints which I have presented today, but also 
many solutions to this crisis, so I hope you will join me in my quest 
for total reform of this program. Please introduce/support--Fullerton--
Edwards Social Security Disability Reform Act:
    http://groups.msn.com/SocialSecurityDisabilityCoalition/
fullertonedwardssocial
securitydisabilityreformact.msnw

                                 

           Statement of Social Security Disability Coalition
    My name is Linda Fullerton, and I have an inoperable blood clot and 
tumor in my brain, and suffer from several incurable autoimmune 
disorders that are too numerous to list, which have caused me to become 
permanently disabled. I currently receive Social Security Disability 
Insurance/SSDI and Medicare. You can get even more detailed information 
about my personal horror stories, which are not for the faint of heart, 
on my websites:
``A Bump On The Head``
http://www.frontiernet.net/lindaf1/bump.html
Social Security Disability Nightmare--It Could Happen To You!
http://www.frontiernet.net/lindaf1/SOCIALSECURITYDISABILITYNIGHTMARE
.html
    Social Security Disability is an insurance policy which was created 
to be a safety net for millions of disabled Americans, and for many 
such as myself, it has become their only lifeline for survival. I filed 
an SSDI claim in December 2001, was denied in March 2002 by the NYS 
ODTA (Office Of Temporary And Disability Assistance), filed an appeal, 
and then had to wait until June 2003, due to the severe hearing backlog 
in the Buffalo NY Office Of Hearings & Appeals, before my SSDI claim 
was finally approved. It is hard enough to deal with all the illnesses 
that I have, but then to have my entire life destroyed with the stroke 
of pen by neglectful government employees, to whom I was just an SS 
number, is more than I can bear. So now, not only will I never recover 
from my illnesses, but I also will never recover from the permanent 
financial devastation this has had on my life. I don't know how I am 
going to survive without some miracle like winning the lottery. I lost 
all my resources, life savings, and pension money during the 1\1/2\-
year wait for my SSDI claim to be processed. Due to the 24 month 
waiting period for Medicare, (I didn't become eligible for it until 
June 2004) I had to spend over half of my SSDI check each month on 
health insurance premiums and prescriptions, not including the 
additional co-pay fees on top of it. All the SSDI retro pay is gone now 
as well--used to pay off debts incurred while waiting for 1\1/2\ years 
to get my benefits. I know first hand about the pain, financial, 
physical and emotional permanent devastation

that the SSDI process can cause. My ``American Dream'' will never be 
realized. I have now been forced to live the ``American Nightmare'' for 
the rest of my days, because I happened to get sick, and file a claim 
for Social Security Disability benefits, a Federal insurance policy 
that I paid into for over 30 years. As a result, I will never be able 
to own a home, replace my lost financial resources, or replace my only 
means of transportation--a failing 11 year old car, and several other 
necessities. When things break down now, I cannot afford to fix or 
replace them and have to do without. I currently live strictly on the 
inadequate, monthly SSDI check I receive, always teetering on the brink 
of disaster. I do not qualify for any public assistance programs. I am 
doomed to spend what's left of my days here on earth, living in 
poverty, in addition to all my medical concerns. I struggle every day 
to pay for food, medicines, healthcare, gas etc, and this totally 
unbearable, continuing source of stress and frustration, along with my 
worsening health conditions, is killing me. I did not ask for this 
fate, and I tell you this not for pity or sympathy, but so you can get 
an accurate picture of what is really happening to disabled Americans 
in this country, whom you were elected to serve and protect.
Call For Open Congressional/SSA Disability Hearings
    I was forced to watch this hearing on the internet, because my 
repeated requests over the last several years to testify in person, 
have been blatantly ignored. I have made it very clear in previous 
written testimony submitted for the hearing record, through faxes, e-
mails and phone calls, to all the Congress people in my district, 
others on this Subcommittee, including you Congressman McNulty, 
Congressman Rangel, and many others in both the House and the Senate 
Committees that affect the Social Security Disability Program in any 
way, that I want to testify in person at these important hearings that 
directly affect me and others like myself. For some reason beyond my 
comprehension, you still will not let me do that. I have been following 
these hearings, for over five years now, and I find it deeply 
disturbing, and glaringly obvious, that not one panelist/witness 
selected to appear, has been an actual disabled American who has tried 
to get Social Security Disability benefits, and who has actually 
experienced this nightmare. Unfortunately this continues to be the case 
with this current hearing as well. While the witnesses you continually 
rely on may be very reputable in their fields, unless you personally 
have experienced trying to file a claim for Social Security Disability, 
you cannot begin to understand how bad this situation really is, and 
therefore are not fully qualified to be the only authority on these 
issues. I watched in amazement as Congressman Levin, actually mentioned 
that what was missing from these hearings was a ``face'' on this 
problem. This is the first time I felt that someone finally realized 
what I have been trying to tell you. But even this brief moment of 
brilliance, was quickly swept away as the hearing proceeded on like he 
had said nothing. Based on this apathy toward Congressman Levin's 
remarks, and my repeatedly denied requests to testify, it is my 
opinion, that you don't want to know what is REALLY going on. If you do 
not have to face someone such as myself, that has actually experienced 
this horrible nightmare, and has had their whole life permanently 
devastated as a result, we remain just a bunch of statistical SS 
numbers whose lives can be destroyed without guilt. We are in fact, 
your mothers, fathers, sisters, brothers, children, grandparents, 
friends, neighbors, and honorable veterans who have served this 
country.
    It is my understanding that there are also those within the SSA 
itself, who have wanted to testify for several years, and until 
recently have also been shut out of these hearings as well. Something 
is severely wrong with this picture! How you get an accurate handle on 
this situation without all the facts and possible witnesses who wish to 
testify in person? I find it hard to believe that these hearings cannot 
be scheduled in such a way that more appropriate witnesses could be 
chosen to testify.
    I heard some of you talk about hearing waiting times 200 days vs 
600 days, like it was nothing but a number to you. Everyday that a 
disabled American must wait for their benefits, is a day that their 
life hangs on by a thread, or worse yet, they do not survive. The 
stress from that alone is enough to kill you. Since it has been proven 
over the years that the average American has about two weeks worth of 
savings, anything over a 14 day waiting period in any phase of the SSDI 
process is totally unacceptable. Cutting the hearing wait time down to 
even 200 days, is nothing to tout as some great accomplishment on your 
part. If any other company or organization operated with the processing 
times that you still consider acceptable, they would be shut down and 
all the employees fired within the first 6 months of operation. Commons 
sense would lead you to the conclusion, that there is a strong 
correlation between the crisis that disabled Americans face while 
trying to get their benefits, and the housing, and economic meltdown 
this country is in the midst of. I challenge anyone of you to try and 
live for more than two weeks, not relying on your assets (since many 
SSDI applicants lose all their assets while waiting for approval) and 
with absolutely no income, and see how well you survive. Also keep in 
mind that you are not disabled on top of it, which adds its own 
challenges to the problem.
    As an actual disabled American, 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 before 
Congress, to risk my very life for the opportunity, should I 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 millions of other 
disabled Americans just like me. 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 
also propose that Congress immediately set up a task force made up of 
SSDI claimants, such as myself, who have actually gone through the SSDI 
claims process, that has major input and influence 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.
Social Security Disability Claimants Face Death And Destruction When 
        Applying For Benefits
    I must report with great sadness and disgust, that all these 
hearings have not brought about much progress, if any at all, and 
things continue to worsen by the day. In our country you're 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 right to legitimate SSDI benefits 
everyday. This is outrageous when something this serious, and a matter 
of life and death, could be handled in such a poor manner. Based on my 
own experience, the experiences of thousands of others which have been 
shared with me, and current conditions, I firmly believe that 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 SSDI benefits! The 
following statistics back up my statement:
    During 2006 and 2007, at least 16,000 people fighting for Social 
Security Disability benefits died while awaiting a decision (CBS News 
Report--Disabled And Waiting--1/14/08). This is more than 4 times the 
number of Americans killed in the Iraq war since it began.
    During 2007, two-thirds of all applicants that were denied--nearly 
a million people--simply gave up after being turned down the first time 
(CBS News Report--Failing The Disabled--1/15/08)
    In 2007 there were 2,190,196 new applications for SSDI benefits, 
and as of August 2008 there have already been 1,564,160 new 
applications.
    As of April 2008 there are about 1,327,682 total pending cases and 
out of that number, 154,841 are veterans.
    Nationally as of August 2008, over 63% of disability cases were 
denied at the initial stage of the disability claims process and it 
took from 101.9--111 days for claimants to receive the initial decision 
on their claim.
    If a claimant appeals the initial denial asking for 
reconsideration, in all but 10 test states where the reconsideration 
phase has been removed, 86.3% of cases were denied and the waiting time 
for this phase was an average of 89.6 days.
    As of August 2008 there are 767,595 cases waiting for hearings with 
an average wait time of 532 days.
    As of August 2008 over 290,840 hearings (38 %) have already been 
pending over a year, and there are only 962 Administrative law judges 
(ALJ's), to hear all those cases, with an average of 660.58 cases 
pending per judge nationwide.
    If a claimant appeals an ALJ hearing decision to the Federal 
Appeals Council, the average time from request for AC/Appeals Council 
Review to Appeal Council's Decision is 8 months. NOTE: It is not 
unusual to find cases pending for up to 24 months for various reasons. 
Cases pending longer than 24 months are then considered for expedited 
processing. In 2006--71% of the 88,907 cases that were sent to the 
Appeals Council were denied.
    In 2007--637,686 disabled Americans were forced by law to endure 
the mandatory 24 month waiting period for eligibility to receive much 
needed Medicare benefits.
Source: Social Security Administration Reports
    According to Health Affairs, The Policy Journal of the Health 
Sphere, 2 February 2, 2005: Disability causes nearly 50% of all 
mortgage foreclosures, compared to 2% caused by death.
    ``The escalating pace of foreclosures and rising fears among some 
homeowners about keeping up with their mortgages are creating a range 
of emotional problems, mental health specialists say. Those include 
anxiety disorders, depression, and addictive behaviors such as 
alcoholism and gambling. And, in a few cases suicide.
    ``Historically, research shows, rates of depression and suicide 
tend to climb during times of economic tumult.''
    ``Studies show a strong connection between financial distress and 
emotional stress, including anxiety, depression, insomnia and 
migraines.''
    Excerpts from Foreclosures Take Toll On Mental Health--Crisis 
Hotlines, Therapists See A Surge In Anxiety Over Housing--USA Today--
Stephanie Armour--5/15/08
    AARP/USA Today: Health Care To Get The Hollywood Treatment--5/28/
08--``More middle-class people file for bankruptcy because of health 
care related expenses than for any other reason.''
    MarketWatch: Illness And Injury As Contributors To Bankruptcy--
February 2, 2005--found that: Over half of all personal U.S. 
bankruptcies, affecting over 2 million people annually, were 
attributable to illness or medical bills. 15% of all homeowners who had 
taken out a second or third mortgage cited medical expenses as a 
reason.
    According to an insurance survey, conducted by the International 
Communications Research of Media, PA from Jan 10-14th 2007, on behalf 
of the National Association of Insurance Commissioners, researchers 
found 56% of U.S. workers would not be able pay their bills or meet 
expenses if they become disabled and unable to work. 71% of the 44% who 
had insurance, stated it was employer provided, so if they lose or 
change jobs they would no longer have disability coverage.
    In April 2006, Parade Magazine in an article called ``Is The 
American Dream Still Possible?''--published the results of their survey 
of more than 2200 Americans who earned between $30,000 and $99,000 per 
year, most stating that they were in reasonably good health. 66% say 
they tend to live from paycheck to paycheck and nearly 83% say that 
there is not much money left to save after they have paid their bills.
    Nearly 1 in 2 (133 million) Americans live with a chronic 
condition.
    20.6% of the population, about 54 million people, have some level 
of disability
    9.9% (26 million people) have a severe disability
    Note: The sources for these statistics and even more information is 
listed here:
    http://www.mychronicillness.com/invisibleillness/statistics.htm
    Approximately 54 million Americans, an estimated 20% of the total 
population, have at least one disability, making them the largest 
minority group in the nation, and the only group any of us can become a 
member of at any time. As our baby boomer population ages and more 
veterans return from war, this number will double in the next 20 years. 
It is a diverse group, crossing lines of age, ethnicity, gender, race, 
sexual orientation and socioeconomic status.
    Between 1990 and 2000, the number of Americans with disabilities 
increased 25 percent, out pacing any other subgroup of the U.S. 
population.
    Of the 69.6 million families in the United States, more than 20 
million have at least one family member with a disability.
    People with disabilities are nearly twice as likely as people 
without disabilities to have an annual household income of $15,000 or 
less.
    There are 133 million people in the United States living with a 
chronic health condition. That number is expected to increase by more 
than one percent a year to 150 million by 2030. 75% of people with 
chronic health conditions are younger than 65
    Notwithstanding the strides made in disability rights in the past 
25 years, the majority of people with disabilities are poor, under-
employed and under-educated due largely to unequal opportunities.
    The source for these statistics: Disability Stats And Facts--
Disability Funders.org
    http://www.disabilityfunders.org/disability-stats-and-facts
    52% of Americans would rather die than live with a severe 
disability, according to a recent national survey commissioned by 
Disaboom (www.disaboom.com), the premiere online community for people 
touched by disability.
    Disaboom Press Release--July 2008
    Two-thirds of those who appeal an initial rejection eventually win 
their cases (New York Times 12/10/07)
    It is also important to mention here that 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, and our membership increases by the day. It 
was born out of the frustration of my own experience, and the notion 
that others may be dealing with that same frustration. I was proven to 
be totally correct in that notion beyond my wildest imagination. Our 
group is a very accurate reflection and microcosm of what is happening 
to millions of Social Security Disability applicants all over this 
nation. If you visit the Social Security Disability Coalition website, 
or the Social Security Disability Reform petition website:
    Social Security Disability Coalition--offering FREE information 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 five years worth of documented horror stories on 
our Messageboard (over 19,000 messages), and see thousands of 
signatures (over 7800) and comments on our petition, from disabled 
Americans whose lives have been harmed by the Social Security 
Disability program. You cannot leave without seeing the excruciating 
pain and suffering that these people have been put through, just 
because they happened to become disabled, and went to their government 
to file a claim for disability insurance that they worked so very hard 
to pay for. I 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!
    This organization fills a void that is greatly lacking in the SSDI/
SSI claims process. While we never represent claimants in their 
individual cases, we are still able to provide them 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 connects 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
    There are three key reasons why the Social Security Disability 
program has been broken for decades, lack of proper funding for the 
SSA, apathy on the part of Congress and the SSA to fix the problems, 
and lack of crucial oversight on all parts of the program. In order for 
the hearing backlog to be eliminated these problems must be addressed.
Changes/Proper Funding Necessary For SSA To Accomplish It's Goals And 
        Properly Serve Disabled Americans
    I continually hear talk at these hearings about increasing the 
funding for the SSA, and you asking witnesses for answers, on how much 
the SSA will need to fix the current problems, and prevent new ones 
from arising in the future. Still I see that the SSA is under funded 
almost every year, and there is a continued challenge to get the money 
that the SSA requests. 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.
Excerpt from: Social Security Administration: Inadequate Administrative 
        Funding Contributes to the Disability Claims Backlog Crisis and 
        Service Delivery Challenges
    ``Due to budget constraints in recent years the amount of 
administrative funding the Social Security Administration (SSA) has 
received through the annual appropriations process has been 
significantly below the level necessary to keep up with the agency's 
workloads. From 2001 to 2007, Congress appropriated approximately $150 
million less per year for SSA's administrative funding needs than the 
President requested. In FY 2006 the final funding level approved by 
Congress was $300 million less than the President's Budget Request. In 
FY 2007 it was $200 million less. The FY 2008 enacted level was $148 
million above the President's requested budget and it was the first 
time this decade that Congress has been able to provide funding above 
the President's request. However, the funding for Fiscal Year 2008 was 
$127 million less than the Conference Agreement on the FY 2008 Labor-
HHS Appropriations bill would have provided. The level agreed to by 
Congress was reduced due to the Presidential veto of the Labor-HHS 
Appropriations bill.''
Source: National Council of Social Security Management Associations 
        (NCSSMA) September 17, 2008
    One thing is said at the hearings, but when push comes to shove to 
vote for the SSA budget money, other programs or projects become higher 
priority, even though properly funding the SSA is literally a matter of 
life and death for millions of Americans. Even as I write this 
testimony, both the Senate and the House are voting on a continuing 
resolution package to provide stopgap funding for the Federal 
Government through March of 2009, but there are no special provisions 
for the SSA in this CR, which is going to make a horrendous situation 
even worse. Nothing is more important than the health and wellbeing of 
the American people, and as elected officials it is crucial that you 
never lose sight of that priority! SSA should not have to compete each 
year for funding with the Departments of Labor, HHS and Education which 
are highly publicized and therefore, often more popular programs. As 
stated in the previous testimony provided by Witlold Skierwczynski--
President--National Council Of Social Security Administration Field 
Operation Locals to the House Ways And Means Committee on 4/23/08 it is 
recommended that:

    Congress should enact off budget legislation including SSA 
administrative expenses with benefits which are already off budget. 
Congress should retain appropriations and oversight authority albeit 
unencumbered by artificial budget caps and scoring restrictions.
    Congress should enact legislation requiring the Commissioner to 
submit the SSA appropriation request directly to Congress.
    Congress should support the House Budget Committee recommendation 
to increase the SSA administrative budget by $240 million over the 
President's budget request.
Oversight is Crucial!
    The SSA Commissioner Improperly Allocated ALJ's For SS Disability 
Hearings--Recently SSA Commissioner Michael Astrue asked Congress to 
approve extra funding in order to hire additional ALJ's to try and 
reduce the severe SS Disability hearings backlogs across the country. 
While I agree that the SSA does need more funding, in fact way more 
than was actually finally given to them in 2008, there must be some 
major oversight by independent entities to ensure that these funds in 
fact are actually used/allocated appropriately. Here is a recent 
example that raises a red flag for such oversight and an immediate 
investigation. At the link below you will find a spreadsheet that shows 
the locations where the newly acquired ALJ hires announced by the SSA 
Commissioner had been allocated:
http://www.ssa.gov/legislation/ALJAppointmentsbyState032508.xls
    As you will see on this report--no ALJ's were originally allocated 
to the Buffalo/Rochester NY area, which is one of the worst in the 
nation for processing SS Disability hearings.
As of August 2008:
    It took 715 days (nearly two years) for the average Western New 
Yorker to have their SSA case heard and processed in the Buffalo NY 
Office Of Hearings & Appeals. This office is the worst in NY State for 
SS Disability hearing backlogs and out of 147 hearing offices reporting 
nationwide, Buffalo ranks at #130, as one of the worst processing times 
in the country. It ranks at #114 out of 150 hearing offices reporting, 
where the average age of a case pending a hearing is 349 days. 
Administrative Law Judges in Buffalo have some of the largest caseloads 
in the country, ranking at #107, out of 137 hearing offices reporting 
nationwide, with an average of 796.64 cases pending before each judge.
As of July 2008:
    47% (5,542) of cases in the Buffalo Hearing Office (which is higher 
than the national average) had been pending for over a year.
Source: Compiled from various SSA reports July and August 2008
    Commissioner Astrue used the argument that there was not enough 
office space in the Buffalo hearing office but that was immediately 
refuted by Congressman Brian Higgins:
Congressman Higgins Says Lack of Space Is Poor Argument for Staffing 
        Shortfalls in Local Social Security Disability Office--4/24/08
http://higgins.house.gov/newsroom.asp?ARTICLE3116=7715
    ``If the problem is office space, I would be happy to find them 
available space in downtown Buffalo tomorrow,'' Higgins added, pointing 
out that according to a Militello Realty report on downtown Buffalo 
property, as of January 779,228 square feet of Class A office space was 
vacant in the immediate downtown area. Congressman Higgins noted that 
staffing shortages aren't exclusive to the Administrative Law Judges. 
Staffing at Western New York field offices have decreased 
substantially--by approximately 170 employees--over the past 25 years, 
even though the need for services has increased.''
    It was only after heavy pressure by Congress, and major media 
exposure, that additional ALJ's were added to the Buffalo/Rochester NY 
area. How many other states is this happening to? Where is the much 
needed oversight to ensure that these ALJ's are properly allocated 
where they are needed the most?
    In an editorial letter from SSA Commissioner Astrue dated 8/21/08 
to the Atlanta Journal Constitution in regards to the severe hearing 
backlogs it was stated that ``We have taken a big step toward resolving 
that problem by bringing onboard 175 additional administrative law 
judges and additional staff to support them.''
In reality:
    At of the end of fiscal year 2007 the amount of ALJ's available to 
hear cases was at 1006. That number has steadily declined over the past 
several months and as of August 2008 there were in fact only 962 ALJ's 
currently available to hear cases*. The 175 new ALJ's that the SSA 
Commissioner has hired, (NOTE: most of the 175 newly hired ALJ's may 
actually already be factored into the August 2008--962 number--the 
report does not distinguish) once they are fully operational. In 
January 2008 there were 945 ALJ's * (a significant drop) from FY 2007 
and that may in fact only increase the available ALJ level to 114 
judges (not 175), over the number that were available to hear cases at 
the end of FY 2007. Basically this is still inadequate level, since it 
does not account for the fact that more judges may continue to leave 
for various reasons (retirement etc), and that the level of disability 
claims continues to increase instead of decrease, based on past 
history. So the likelihood of the claims backlog being resolved with 
this so called ``current fix'' is slim to none. In other words ``this 
is like putting a band aid on a gushing wound.'' More investigation of 
this problem by Congress, the Inspector General and GAO needs to happen 
immediately!
*Source: Social Security Administration Reports
    Horrendous Customer Service
    In a January 2007 Harris poll designed to evaluate the services 
provided by 13 federal agencies, the public rated SSA at the bottom of 
the public acceptance list and it was the only agency that received an 
overall negative evaluation. SSA Field Offices have lost over 2,500 
positions since September 2005 and nearly 1,400 positions since 
September 2006. In 2007 SSA Field Offices saw about 43 million visitors 
a week, and that number is expected to increase by over a million more 
in 2008. Constituents visiting these local Field Offices continue to 
experience lengthy waiting times and the inability to obtain assistance 
via the telephone.
    Here is just a small sampling of some of the major problems with 
the current Social Security Disability program and State Disability 
(DDS) offices who process the initial phase/medical portion of 
disability claims:
    Severe under staffing of SSA workers at all levels of the program 
Claimants waiting for weeks or months to get appointments, and hours to 
be seen by caseworkers at Social Security field offices Extraordinary 
wait times between the different phases of the disability claims 
process
    Very little or no communication between caseworkers and claimants 
throughout the disability claims process before decisions are made.
    Employees being rude/insensitive, not returning calls, not willing 
to provide information to claimants or not having the knowledge to do 
so
    Complaints of lost files and in some states, case files being 
purposely thrown in the trash rather than processed properly
    Security Breaches--Complaints of having other claimants information 
improperly filed/mixed in where it doesn't belong and other even worse 
breaches
    Fraud on the part of DDS/OHA offices, ALJ's, IME's--purposely 
manipulating or ignoring information provided to deny claims, or 
doctors stating that they gave medical exams to claimants that they 
never did.
    Claimants being sent to doctors that are not trained properly, or 
have the proper credentials in the medical field for the illnesses 
which claimants are being sent to them for.
    Complaints of lack of attention/ignoring--medical records provided 
and claimants concerns by Field Officers, IME doctors and ALJ's.
    Employees greatly lacking in knowledge of and in some cases 
purposely violating Social Security and Federal Regulations (including 
Freedom of Information Act and SSD Pre-Hearing review process).
    Claimants cannot get through on the phone to the local SS office or 
800 number (trying for hours even days)
    Claimants getting conflicting/erroneous information depending on 
whom they happen to talk to at Social Security--causing confusion for 
claimants and in some cases major problems including improper payments
    Proper weight not being given to claimants treating physicians 
according to SSA Federal Regulations when making medical disability 
determinations on claims.
    Complaints of ALJ's ``bribing'' claimants to give up part of their 
retro pay (agreeing to manipulation of disability eligibility dates) or 
they will not approve their claims
    Poor/little coordination of information between the different 
departments and phases of the disability process
    Complaints of backlogs at payment processing centers once claim is 
approved
    Federal Quality Review process adding even more wait time to claims 
processing, increasing backlogs, no ability to follow up on claim in 
this phase
    NOTE: These complaints refer to all phases of the SSDI claims 
process including local field offices, state Disability Determinations 
offices, CE/IME physicians, Office of Hearings and Appeals, the Social 
Security main office in MD (800 number)
    Excerpts from: Social Security Administration: Inadequate 
Administrative Funding Contributes to the Disability Claims Backlog 
Crisis and Service Delivery Challenges
    SSA has two classes of phone service: 800 Number and Field Office. 
The 800 Number had a busy rate of 7.5% in FY 2007 and handled about 59 
million calls through agents and automation. At the same time over 60 
million phone calls are directed to SSA Field Offices each year. In FY 
2007, 45% of callers who eventually reached a Field Office by telephone 
said that they had received a busy signal or were told to call back at 
another time on an earlier call. Consequently, the actual busy rate is 
higher than 45%.
    About 43 million people visited SSA Field Offices for assistance in 
2007. SSA Field Offices continue to receive more and more customers. 
This year SSA Field Offices are expected to see more than a million 
more customers than last year. One manager stated this in a recent 
NCSSMA survey: ``The staff usually feels overburdened with the never-
ending volume of interviews. They are usually one after the other daily 
with no ending. They are in need of time at their desk to process the 
numerous listings and actions that go with them.''
    In a survey by the National Council of Social Security Management 
Associations (NCSSMA) of their members performed in May 2008, they 
received the following feedback:
    81% stated they did not have enough staff to keep workloads current
    64% stated waiting times for the public were longer than they were 
one year ago
    65% stated the quality of their office work product has declined in 
recent years
    45% stated they could provide prompt telephone service 0-40% of the 
time
    49% stated their staff did not receive adequate training which was 
primarily due to lack of time an increasing pressure to process 
workloads
    Source: National Council of Social Security Management Associations 
(NCSSMA) September 17, 200 States Of Denial--The REAL Reason Behind The 
Social Security Disability Hearing Backlogs
    Since Social Security Disability is a Federal program, where you 
live should not affect your ability to obtain benefits. Sadly this is 
not the case. While funding is a major problem that SSA faces, the 
other primary reason for these hearing backlogs, continues to be 
ignored during these proceedings, and that is the initial phase of the 
disability qualification process which is handled by the individual 
state DDS/Disability Determination Services offices. 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.
    Excerpts from GAO Report GAO-04-656--SSA Disability Decisions: More 
Effort Needed To Assess Consistency of Disability Decisions--
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.''
    Excerpt from: Social Security Administration: Inadequate 
Administrative Funding Contributes to the Disability Claims Backlog 
Crisis and Service Delivery Challenges
    ``The Disability Determination Services (DDSs) have lost about 
1,270 positions since the beginning of Fiscal Year 2006, as a result 
their staffing levels are down about 8.7%. The attrition rate in recent 
years at the DDSs has averaged 12.7 % versus 6.8% for Federal 
Government employees. This has forced the DDSs to invest significant 
resources to train new staff. The DDSs will not be able to adequately 
address staffing losses either.''
    Source: National Council of Social Security Management Associations 
(NCSSMA) September 17, 2008
    What would be an incentive for states to deny Federal claims? Since 
many Social Security Disability claims are SSI or both SSI/SSDI 
combined claims and many states offer to supplement SSI payments at a 
higher benefit amount, therefore they want to keep as many off the 
rolls as possible so they do not have to pay out this supplement. Also 
since there is a different pay scale for government vs state employees 
who are often underpaid, lack training, are overworked, and must meet 
quotas of cases processed, the tendency is greater to rubber stamp 
denials to move claims off their desk when a case needs too much 
development. Thus the explanation for the fluctuation in denial/
approval/backlog rates by state. Unfortunately there is very little if 
any training or oversight on the state DDS offices to make sure they 
are making the proper decisions on disability claims. This is why so 
many claimants appeal to the hearing level where a huge percentage of 
bad claims decisions are overturned and cases are finally approved. 
Anyone who doesn't see that a ``Culture Of Denial'' has become a 
pervasive part of an SSDI claimants encounter with the SSA, is either 
totally out of touch with reality or is reacting evasively to the 
subject.
    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. Also many 
times medical records submitted are lost or totally ignored. If more 
time and effort were put forth to communicate with claimants, and to 
make the proper decision at the onset, there would be no need for all 
these cases to be appealed to the hearings level in the first place. 
That in itself would be a huge factor in reducing the hearing backlogs, 
but again, this fact has been greatly ignored and it is a major failure 
on your part. Until you properly devote the time and energy to look 
into this crucial part of the problem, the hearing backlogs will 
continue to grow at an uncontrollable rate, no matter how much money 
you give to the SSA.
    All phases of disability claims processing should be moved to and 
handled out of the Social Security individual field offices, including 
the DDS phase which is the medical determination phase currently 
handled by the states, and all hearing phases of the disability 
process. All people who process Social Security disability claims 
should be employees of the Federal Government to ensure accuracy and 
uniform processing of disability claims under Federal regulations and 
Social Security policies which is currently not the case. If the states 
are to continue to handle the DDS phase of the disability process, then 
all state employees handling Social Security claims should be required 
to receive a minimum of 3 months standardized training by the Social 
Security Administration, in SSA policies and Federal regulations 
governing SSDI/SSI claims processing.
    Too much weight at the initial time of filing, is put on the 
independent medical examiner's and SS caseworker's opinion of a claim. 
The independent medical examiner only sees you for a few minutes and 
has no idea how a patient's medical problems affect their lives after 
only a brief visit with them. The caseworker at the DDS office never 
sees a claimant. 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. Since many times doctors, hospitals etc often do not respond 
to SSA requests for medical information in a timely manner, or 
sometimes ignore these requests entirely, ALL doctors, and medical 
professionals including those at the VA should be required by Federal 
or State law, to fill out any medical forms and submit documents 
requested by the SSA within strict timelines or they will not be 
allowed to practice medicine in this country. Also as part of their 
continuing education program in order to keep their licenses, doctors 
should also be required to attend seminars provided free of charge by 
the SSA, in proper procedures for writing medical reports and filling 
out forms for Social Security Disability and SSI claimants. 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 also eliminate many cases from having to advance to the hearing 
or appeals phase.
Social Security Disability Program Problems--Contributing Burden Factor 
        on Medicaid/Social Service Programs For States
    There seems to be a relationship, between SSDI claims processing 
issues/backlogs, and the need for claimants to also apply for state 
funded Medicaid/Social Service programs. Many are forced to file for 
Medicaid, food stamps and cash assistance, another horrendous process. 
For example in New York State, about half the 38,000 people now waiting 
on disability appeals, for an average of 21 months, are receiving cash 
assistance from the state (New York Times 12/10/07). Those who file for 
these programs while waiting to get SSDI benefits, in many states, have 
to pay back the state out of their meager benefit checks once approved. 
As a result they're often kept below the poverty level, almost never 
able to better themselves since they can't work, and now are forced to 
rely on both state and federally funded programs instead of just one of 
them. This practice should be eliminated.
Improper CE/IME Medical Exams Ordered By Social Security Result In 
        Higher Rate Of Denials, Hearings And Appeals
    CE/IME examiners are paid a fee by Social Security for each person 
they see, so the more claimants they process, the more money they make. 
Often times they are caught saying they performed exams that they in 
fact never performed, make mistakes, or make false, misleading 
statements about claimants. Many times the DDS offices or ALJ's are 
sending claimants to doctors that have very limited knowledge of their 
specific health conditions, who are not specialists, or even the proper 
type of doctor, to be examining a claimant for the type of medical 
conditions that they have. 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. Even though a claimant's treating physicians are 
supposed to be given greater weight in decision making, this is often 
not the case. Whenever SSA 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). Common sense dictates that these 
poorly executed, and often unnecessary, medical exams result in a waste 
of time, money and energy, for both the claimants and the SSA, when the 
claimant ends up appealing a denial based on these improper SSA ordered 
examinations.
Utilize Hearing On The Record/Pre-Hearing Review Option To Reduce 
        Backlogs
    More emphasis and support staff need to be devoted to the pre-
hearing review process which could greatly reduce the current hearing 
backlog. This would obviously and should require more communication 
between hearing office staff and claimants or their representatives to 
update case files. Once the files have been updated, many would be able 
to be decided solely on the records in the file without having a full 
hearing in front of an ALJ.
Streamline Social Security Disability/SSI Claims For Veteran's To 
        Reduce Backlogs
    When a veteran has a 100% disability rating, receives VA benefits 
approval for that rating, and it is deemed by the VA that they can no 
longer work at any job under SSA Guidelines, that veteran should 
automatically be approved for their Social Security Disability/SSI, as 
long as they also meet the Non-Medical requirements for those 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. These claims 
should be processed by a special division within the SSA or the VA that 
is equipped to process both claims simultaneously. Congress and the SSA 
should designate special funding to see that this is implemented 
immediately for our veterans, so it moves a large group of claimants 
through the system faster thus reducing the backlog problem.
Regulation Is Necessary To Avoid Improper Social Security Disability 
        Claim Filings Due To State And Private Insurance Company 
        Policies
    There is a growing number of claims being filed by people who may 
not actually qualify for disability benefits under Social Security 
guidelines, but who are being forced to file Social Security 
Disability/SSI claims by their private disability and state disability 
carriers or risk not being eligible for benefits under those programs. 
Recently there has been media coverage on this issue which can be found 
here:
Trial Against Unum Over Handling of Disability Insurance Claims Opens 
        Today--Market Watch--PRNewswire via COMTEX--Boston--9/22/08
    http://www.prnewswire.com/cgi-bin/stories.pl?ACCT=109&STORY=/www/
story/09-22-2008/0004890097&EDATE=
Senate Asks 9 Insurers To Furnish Information--NY Times--Mary Williams 
        Walsh--7/25/08
    http://www.nytimes.com/2008/07/25/business/
25insure.html?_r=2&adxnnl=1&oref=slogin&ref=business&adxnnlx=1216988114-
xUJWefbXim4ZjKuyMloRVA&oref=slogin
Insurers Faulted As Overloading Social Security--NY Times--Mary 
        Williams Walsh--4/1/08
    http://www.nytimes.com/2008/04/01/business/01disabled.html
    Congress and the SSA needs to look into this issue and this 
practice needs to be stopped immediately as this too greatly adds to 
the disability backlog problem.
Americans Most Sensitive Data In Jeopardy
    I was very disturbed to learn as I watched this hearing, about the 
practice of allowing SSA employees to take work home with them. The 
following article discusses the SSA employee work at home situation.
Concern Over Federal Times Article: Arbitrator Tells SSA To Restore 
        Telework, Negotiate Changes--Federal Times--Courtney Mabeus--4/
        16/08
    http://www.federaltimes.com/index.php?S=3482166
    I am very concerned with the increased possibility of identity 
theft if SSA employees are allowed to take work home because they are 
too overloaded on their jobs. Employees should never be allowed to take 
this sensitive data home for any reason. Sensitive data has already 
been compromised at the VA, and this should not be allowed to happen 
ever again, especially jeopardizing our most vulnerable citizens to 
this very real and stressful possibility. I have personally caught the 
SSA in some major security breaches already, and this practice will 
only make those incidents even more common. Every effort must be made 
to properly secure this most sensitive information for the American 
people. In order to properly protect citizen's identities ALL sensitive 
data should only be able to be accessed on government secure systems at 
the job site only. This is obviously going to require more manpower and 
financial resources, and Congress must make sure that the SSA has every 
resource it needs to protect this data, at their disposal immediately.
Put Disabled American People First--Remove Detrimental Regulations
    There are some very detrimental, regulations that SSDI applicants 
are subject to as well, and are a great shock to them. Under Federal 
law, there's a five month benefit waiting period, and five months of 
back money withheld, which claimants will never see again. It was 
originally six months but Congress voted to reduce it to five. 
Apparently it is assumed that disabled Americans do not need that 
money. SSDI recipients must also wait another 24 months, in addition to 
the 5 month waiting period from disability date of eligibility (the 
date that SS determines that you were officially disabled) in order to 
qualify for Medicare benefits. Keep in mind that if you let any sort of 
health insurance policies lapse for too long, and don't maintain 
continuous health coverage, you may have a very difficult time getting 
a new insurance carrier, since they may hold your poor health against 
you, and consider many things as ``pre-existing conditions'' so you may 
not be covered for those illnesses. Congress expects a population who 
can no longer work, to go without five months of retro pay, have no 
health insurance, and wait several months to several years to have 
their disability claims processed. In my state when a healthy person 
loses their job, provides the necessary documents and files for 
Unemployment Insurance, their payments automatically start within a few 
weeks. It is blatantly obvious that those who find this to be 
acceptable standards are totally out of touch with reality and have no 
regard for human life.
Permanent Devastation Resulting From The SSDI Claims Process
    Unbearable stress, severe depression and suicidal thoughts are very 
common side effects of the SSDI/SSI claims process. Many are under the 
mistaken notion that when the SSDI benefit checks finally come, if one 
is in fact finally approved, that everything will be OK. Often the 
abuse and worry that applicants are forced to endure, and the 
devastation caused while waiting for SSDI claims to be processed, 
leaves permanent scars on one's health and financial wellbeing as it 
did for me. It causes even further irreparable damage to their already 
compromised health, and it is totally unacceptable. As a result use of 
the highly promoted SS Ticket to Work program, or any future chance of 
possibly getting well enough to return to the workforce, even on a part 
time basis, becomes totally out of the question. Then if you eventually 
get approved for benefits, there is always the added 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.
    I not only have complaints which I have presented today, but also 
many solutions to this crisis, so I hope you will join me in my quest 
for total reform of this program. Please introduce/support--Fullerton--
Edwards Social Security Disability Reform Act:
    http://groups.msn.com/SocialSecurityDisabilityCoalition/
fullertonedwardssocial
securitydisabilityreformact.msnw

                                 

 Statement of SSI Task Force of the National Health Care for Homeless 
                                Council
    Thank you for the opportunity to submit testimony on behalf of the 
SSI Task Force of the National Health Care for the Homeless Council. 
The Council has long recognized the importance of prompt receipt of 
disability benefits for homeless individuals.\1\
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    \1\ See Policy Statement on Disability Benefits and Homelessness, 
National Health Care for the Homeless Council, http://www.nhchc.org/
Advocacy/PolicyPapers/DisabilityBenefits2008.pdf
---------------------------------------------------------------------------
    Disability precipitates and prolongs homelessness.\2\ Homeless 
people suffer extraordinary and well-documented health risks associated 
with poverty, overcrowding, and poor access to health care. People 
without homes are mercilessly exposed to the elements, to violence, and 
to communicable diseases and parasitic infestations. Circulatory, 
dermatological, and musculoskeletal problems are common results of 
excessive walking, standing, and sleeping sitting up. Homelessness and 
malnutrition go hand-in-hand, increasing vulnerability to acute and 
chronic illnesses. Stresses associated with homelessness also reduce 
resistance to disease and account for the emergence of some mental 
illnesses. Homeless people experience illnesses at three to six times 
the rates experienced by housed people.\3\
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    \2\ A ``homeless individual'' is defined in section 330(h) (5) (A) 
of the Public Health Service Act as ``an individual who lacks housing 
(without regard to whether the individual is a member of a family), 
including an individual whose primary residence during the night is a 
supervised public or private facility that provides temporary living 
accommodations and an individual who is a resident in transitional 
housing.'' ``. . . A recognition of the instability of an individual's 
living arrangement is critical to the definition of homelessness.'' 
(Principles of Practice for Health Care for the Homeless grantees, 
Bureau of Primary Health Care Program Assistance Letter 99--12, March 
1, 1999)
    \3\ Wright JD. Poor People, Poor Health: The health status of the 
homeless. In: Brickner PW, Scharer LK, Conanan BA, Savarese M, Scanlan 
BC. Under the Safety Net: The Health and Social Welfare of the Homeless 
in the United States. New York: WW Norton & Co., 1990: 15--31 
[email protected] www.nhchc.org
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    There is increasing awareness of the role of medical impairment and 
disability in precipitating and prolonging homelessness. The fact that 
people with disabilities constitute the ``chronically homeless'' 
population in America is extremely troubling. Any national strategy to 
end and prevent homelessness must include adequate financial supports 
to enable persons with disabilities (limiting their ability to earn 
sufficient incomes through employment) to secure housing and meet other 
basic needs, including health care.
    Disability assistance can mitigate health risks associated with 
homelessness. Persons who qualify for SSI/SSDI are more likely than 
others to obtain available low-cost housing and receive priority for 
certain types of housing. By increasing access to housing and health 
care, disability benefits can help to mitigate health risks associated 
with homelessness, facilitate recovery, improve quality of life for 
many homeless people, and help them to resolve their homelessness. The 
timely receipt of SSI or SSDI benefits dramatically improves access to 
food and stable housing. Both the Medicaid coverage that accompanies 
the receipt of SSI and the Medicare benefits that follow receipt of 
SSDI improve access to comprehensive health care, including mental 
health services and addiction treatment. Homeless individuals with 
disabilities who receive comprehensive health services, intensive case 
management, and the means to meet their subsistence needs are much more 
likely to achieve stabilization, end their homelessness, and eventually 
participate in gainful employment. Expedited SSI/SSDI benefits are 
therefore extremely important to protect and increase their economic 
security.
    Effect of hearing delays on homeless claimants: The delay in 
obtaining an SSI hearing can have particularly devastating consequences 
for individuals coping serious disabilities without safe housing. James 
J. O'Connell, MD, President, Boston Health Care for the Homeless 
Program, writes:
    As a physician engaged fulltime in the medical care of homeless 
persons, I have frequently accompanied my patients to these SSI 
hearings and have often been frustrated by the prolonged wait for this 
critical step the SSI process. One of my patients suffers from 
cirrhosis and end-stage liver disease and was denied twice because of a 
lack of medical evidence. I had not been aware of his application 
process, but I completed a letter and awaited a date for his appearance 
before the ALJ. As more than six months passed, his disease progressed 
rapidly while he lived on the streets of Boston. His emergency room 
visits escalated, and he was frequently admitted to our hospital for 
management of his ascites and encephalopathy. Of critical concern to me 
was our inability to obtain housing for him. Without an income, he was 
ineligible for many of the innovative housing programs available here 
in Boston. I have no doubt that we would be much better able to manage 
his chronic and debilitating illness with the safety and security 
provided by stable housing. He would be able to adhere to his complex 
medication regimen, and I have no doubt that his visits to the 
emergency rooms and hospitals would decrease significantly.
    One other patient of mine with peripheral neuropathy and an 
affective disorder is currently in a special housing first program. He 
has been denied twice for his SSI and we have now been waiting over six 
months for a hearing date. In the interim, he has no income and cannot 
afford to buy enough food each week. He spends many of the days back on 
the streets, begging for money and living in the very areas where he 
has been most vulnerable. I am dismayed, especially because we were 
finally able to house this man after he spent over twenty years living 
on the streets of Boston. The irony abounds, as he has obtained the 
housing that is so essential to his health, but without his SSI he is 
more impoverished than when he lived on the streets and now risks 
becoming homeless once again.
    Mark Dalton, Administrator, DSHS Belltown Community Services 
Office, Seattle, Washington, has had similar experiences on the other 
side of the country. He has described 5 cases of homeless claimants who 
wandered through the SSI maze for years without result. In one case, 
the claimant took over two years to get to ALJ, only to have his case 
dismissed because he did not have an attorney. In another, the 
claimant, with an attorney representative, has been told that now that 
he has lost his ALJ hearing, the Appeals Council may take up to three 
years to decide his case. See Attachment A. Mellani Calvin, Benefits 
Program Manager of B.E.S.T.(Benefits and Entitlements Specialist Team) 
in Portland, Oregon, describes the effect of the SSI wait on one young 
man:
    20 years old, one of seven children. He has hemophilia and has been 
in the foster care system mu Mr. B is ch of his life. He has had 
numerous suicide attempts during his teen years. He has been homeless 
on and off for over fours years, at times living on the streets with 
his mom. Currently he does not know where his mother, father or his 
siblings are. Apart from his blood and mental health problems he also 
has had a nervous system ganglioglioma near his hypothalmus. It is 
believed that his has learning and cognitive deficits. He is schedule 
for testing in this regard. Mr.B has had another recent hospitalization 
and could not be discharged to the streets. He does have an existing 
claim for SSI pending at the hearing level. Our SOAR based B.E.S.T. 
program (Benefits and Entitlements Specialist Team) has signed on as 
his authorized representative and are working on an On-the-Record 
decision request to our local ODAR office. His request for hearing was 
filed earlier this month and it is our belief that we will be 
successful is waiving the two year wait for benefits as his severe 
conditions are such that he is at high risk of death from a medical 
standpoint and/or from his fragile mental health.
    The average processing time for the Boston regional hearing office 
is 397 days, and for the Seattle regional office, it is 575 days.\4\ 
The descriptions of what happens to homeless claimants, as provided by 
Dr. O'Connell, Ms. Calvin, and Mr. Dalton, are testimony to the need 
for reform.
---------------------------------------------------------------------------
    \4\ National Ranking Report month ending 7/25/2008, Social Security 
Forum, Vol. 30 No. 7, p.11(NOSSCR, August 2008).
---------------------------------------------------------------------------
    Changes Necessary to hearing system: The Council endorses the 
comments of Citizens with Disabilities Social Security Task Force,\5\ 
and further comments on the changes that are necessary to address the 
specific needs of homeless claimants.
---------------------------------------------------------------------------
    \5\ Statement of Ethel Zelenske, Co-Chair, CCD Social Security Task 
Force, before the Subcommittee on Social Security of the Committee on 
Ways and Means,(Sept. 16, 2008), http://waysandmeans.house.gov/
hearings.asp?formmode=printfriendly&id=7387
---------------------------------------------------------------------------
    Properly develop the claim at the DDS level: the single best reform 
of the hearing system would be to ensure that the claims of homeless 
individuals never needed to get to that level, and were developed 
sufficiently at the DDS level to find the individual disabled at the 
earliest possible level, not the latest. As described by Dr. O'Connell 
and Mr. Dalton, the delays at the hearing office level impose 
particular hardship on homeless claimants, who depend on this income to 
ensure access to subsidized housing and medical care. The claim of Mr. 
B, as described by Ms. Calvin, should have had focused attention 
earlier in the process---not having to wait until the hearing stage. 
Efforts such as SOAR \6\ , which have proven effective at getting 
claims of homeless individuals approved at the initial stage, must be 
continued and expanded.
---------------------------------------------------------------------------
    \6\ The SSI/SSDI Outreach, Access & Recovery initiative http://
www.prainc.com/SOAR/
---------------------------------------------------------------------------
    SSA initiatives to improve hearing office performance must take 
into account the needs of homeless claimants: SSA has implemented 
numerous initiatives to reduce and then eliminate the disability claims 
backlog. We agree with the CCD testimony that the ``critical measure 
for assessing initiatives for achieving administrative efficiencies 
must be the potential impact on claimants and beneficiaries.'' \7\ This 
is particularly true with respect to the claims of homeless claimants, 
who already are disadvantaged by the complexity of the disability 
determination process. For example, Commissioner Astrue's goal of 
eliminating the backlog no later than FY2013, anticipates 466,000 
pending cases to ensure a ``sufficient `pipeline' of cases to maximize 
the efficiency of our hearings process and achieves an average 
processing time of 270 days.'' \8\ While taking another four fiscal 
years to eliminate the backlog may be a realistic assessment, it makes 
all the more imperative that homeless claims are as fully developed as 
early as possible in the process. An ``average processing time of 270 
days'' is simply too long for the claimants described in this letter to 
wait, even with no hearings backlog. SSA must continue to fulfill its' 
statutory duty to fully the claim before a decision is made, and it 
must ensure that its' administrative procedures reflect this role.
---------------------------------------------------------------------------
    \7\ See note 5.
    \8\ SSA strategic plan, Goal 1, p.8 http://www.ssa.gov/asp/
StrategicGoal1.pdf
---------------------------------------------------------------------------
    Technological improvements must be accessible to homeless 
claimants, their medical providers and their advocates: improvements 
such as the electronic disability folder and the Electronic Records 
Express (ERE) must ensure that the needs of homeless claimants are 
taken into account in their design and implementation. It's not clear 
that many homeless claimants will know how to use the electronic folder 
on a CD in the hearing office. Advocates have found that medical 
evidence submitted through ERE may be somewhere in the electronic file, 
but is not listed in the hearing file. This can create confusion and 
delay at the hearing, and should be corrected.
    Strategies to hear and decide cases must take into account the 
particular requirements of homeless claimants: SSA is making efforts to 
screen hearing requests to quickly identify possible allowances, 
through refining computer models and triage hearing requests.\9\ To 
date, homeless claimants have not benefited from more refined 
algorithms in screening cases. Their impairments may be too complex to 
easily fit into a computer model. Triaging hearing requests can be a 
more productive tool, but is labor intensive. Informal remands to DDS, 
or senior attorney decision making can also be productive as long as 
the DDS or the senior attorney is familiar with adjudication of 
homeless claims. Even at the hearing level, additional development is 
needed to assure that SSA has a fully developed claim. Even though the 
claims are complex, SSA must develop strategies at the hearing offices 
to have homeless claims decided as soon as possible, given the 
importance of the decision to the individual.
---------------------------------------------------------------------------
    \9\ See Note 8, at p.8.
---------------------------------------------------------------------------
    Thank you again for the opportunity to submit these comments.
Respectfully submitted,
On behalf of the SSI Task Force of the National Health Care for the 
Homeless Council
Robert L. Taube, PhD, MPH
Chair, SSI Task Force
President, National Health Care for the Homeless Council, Inc.
Sarah F. Anderson, esq.
Greater Boston Legal Services
Co-chair, SSI Task Force
Mark Dalton, Administrator, DSHS Belltown Community Services Office, 
Seattle, Washington
Examples of homeless claimants and hearing office delays
    Mr. J.S. is 48 years old and has been homeless for many years in 
Seattle, WA. He graduated from high school and had worked as a meat 
cutter. He has been receiving General Assistance for Unemployable (GAU/
X) benefit from 2004 to 2008 in Washington State because he cannot work 
due to mental illness, physical problems, and chemical dependency 
issues. He recently has reapplied for GAU benefit and will meet with a 
Social Worker at the Belltown Community Services Office. From 2004 to 
present, his case has been handled by five different offices and this 
tells you that has been moving around a lot within the four years time 
and has no telephone and no message phone numbers to contact. He has no 
stable, close friends in the area, and no relative that he can depend 
on.
    In June, 2004, Mr. S. had filed the SSI/SSDI claim with Social 
Security Administration. In late July, 2004 the Division of Disability 
Determination Services (DDDS) denied his application based on his 
capacity to do substantial and gainful employment and no qualifying 
visual impairment. In early fall 2004 he had submitted the 
Reconsideration Request to DDDS because he did not agree with DDDS 
decision. In late October of that year his claim was denied at the 
Reconsideration level. Then in February 2005 he had requested for the 
Hearing and Appeal by Administrative Law Judge (ALJ) to hear his case. 
The Office of Hearings and Appeals had taken over a year to schedule 
the Hearing by ALJ, but the hearing did not occur because client did 
not attend--likely because he did not receive the notice. Therefore, by 
the fall of 2006 A's claim was dismissed by ALJ. Client did not have 
SSI attorney representation. An SSI Facilitator will need to assist him 
to file the new disability claim once he is eligible for General 
Assistance benefits again.
    Mr. A.B. is 51 years old and has been homeless since November 2004 
until now in Seattle, WA. He has been receiving General Assistance 
benefits since November 2004 to present. He completed 11th grade 
education and later on he managed to complete the GED. He had worked 
primarily in laboring jobs, outdoors. He was diagnosed with mental 
illness which prevents him from working, and substance abuse issues. He 
was been declared a Need Special Assistance (NSA) client because of his 
inability to function and take care of his own needs. Within these four 
years he has been moving around a lot and his General Assistance case 
has been handled by four different offices. He has no phone and no 
phone message numbers to contact. He does not know anyone and has no 
relative that he can depend on.
    In the summer of 2004, he filed the SSI/SSDI claim with the Social 
Security Administration. However, in March, 2005, his claim was denied 
by DDDS for slight impairment-medical consideration alone, no visual 
impairment. In May, 2005, he filed for the Reconsideration claim to 
DDDS because he disagreed with DDDS decision. The DDDS disability 
adjudicator denied his claim for the second time late in the summer. In 
early fall, 2005 he filed A hearing request. In early 2006, the Office 
of Hearing and Appeal dismissed his claim--client did have SSI attorney 
representation for his case. An SSI Facilitator will need to assist 
client to file the new disability claim.
    Mr. H.J. is 54 years old and has been homeless in Seattle, WA from 
2003 to present. He has been receiving General Assistance since 2003 to 
present after being diagnosed with mental illness and multiple medical 
impairments. He completed 11th grade education and managed to earn his 
GED and worked short time as a laborer. In the fall of 2005 he filed an 
SSI claim with the Social Security Administration. In November of 2005, 
his SSI claim was denied because of insufficient information, no 
medical data furnished, no visual impairment. Early in 2006 he filed a 
reconsideration request with DDDS, which was accepted, but later that 
spring his disability claim was denied the second time. Due lost of 
contact, he failed to request an Appeal timely. He has no close friends 
or relatives in the area. He has no phone and no message phone numbers. 
An SSI Facilitator will need to assist him to file a new claim.
    Mr. J.K. is 43 years old living in a subsidized apartment by 
himself, supported by his General Assistance benefits. He has been 
receiving General Assistance since May 2002 to present. He received 
high school diploma overseas and worked short time in customer services 
in America. He has not been able to work because he was diagnosed with 
both mental illness and physical impairments. He has no close friends 
or relative to assist him. Late in 2002 he filed a disability claim 
with Social Security Administration. Early in 2003 DDDS denied his 
disability claim because he had failed to or refused to submit to 
consultative examination, no visual impairment. We continued to pursue 
the claim, ultimately submitting a hearing request. In mid-summer, 2005 
the ALJ heard the case and gave an unfavorable decision. The SSI 
Facilitator at the Belltown Community Services Office has assisted 
client to file the new claim and as of now, his claim is now in the 
pending status with DDDS awaiting a decision.
    Mr. G.J. has been on General Assistance since late in 1998 for 
mental illness & chemical dependency issues. His diagnoses are major 
depressive disorder, pathological gambling, drug dependence, and panic 
and antisocial personality D/Os. The initial SSI application was filed 
in the fall of 2003, all denials were appealed, and the Hearing was 
lost in March of 2007; his attorney filed an argument in July 2007 and 
claim is currently pending at Appeals Council in Virginia State. Client 
reports that Appeals Council staff told him that it could take another 
3 years (from initial filing until then, a total of eight years) before 
the claim can be decided. Client has had, and has, no means of support 
other than his $339 state General Assistance check.

                                  
