[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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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\
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\1\ See, e.g., Association of Administrative Law Judges v. Heckler,
594 F. Supp. 1132 (D.D.C. 1984).
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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\
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\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.
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\4\ No. A-07-08-28094 (Aug. 2008). The report is available at
www.ssa.gov/oig/ADOBEPDF/A-07-08-28094.pdf.
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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\
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\5\ Social Security Disability: Better Planning, Management, and
Evaluation Could Help Address Backlogs, GAO-08-40 (Dec. 2007)(``GAO
Report''), p. 31.
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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\
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\6\ GAO Report, p. 32.
\7\ Id.
\8\ Id.
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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\
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\9\ OIG Report, p. 5
\10\ Id.
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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.
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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\
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\12\ OIG Report, p. 7.
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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.
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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.
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\14\ OIG Report, page 7, n. 25.
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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\
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\15\ OIG Report, p. 8.
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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.
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\18\ OIG Report, p. 5.
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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.
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\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.
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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.
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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.
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\23\ OIG Report, p. H-2.
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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
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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.
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\4\ National Ranking Report month ending 7/25/2008, Social Security
Forum, Vol. 30 No. 7, p.11(NOSSCR, August 2008).
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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.
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\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
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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.
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\6\ The SSI/SSDI Outreach, Access & Recovery initiative http://
www.prainc.com/SOAR/
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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.
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\7\ See note 5.
\8\ SSA strategic plan, Goal 1, p.8 http://www.ssa.gov/asp/
StrategicGoal1.pdf
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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.
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\9\ See Note 8, at p.8.
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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.