[Senate Hearing 111-973]
[From the U.S. Government Publishing Office]
S. Hrg. 111-973
IMPROVING SOCIAL SECURITY DISABILITY INSURANCE CLAIM PROCESSING IN OHIO
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HEARING
before the
OVERSIGHT OF GOVERNMENT MANAGEMENT,
THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
FIELD HEARING IN AKRON, OHIO
__________
NOVEMBER 15, 2010
__________
Available via the World Wide Web: http://www.fdsys.gov
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana GEORGE V. VOINOVICH, Ohio
CLAIRE McCASKILL, Missouri JOHN ENSIGN, Nevada
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
ROLAND W. BURRIS, Illinois
CHRISTOPHER COONS, Delaware
Michael L. Alexander, Staff Director
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
Joyce Ward, Publications Clerk and GPO Detailee
OVERSIGHT OF GOVERNMENT MANAGEMENT, THE FEDERAL WORKFORCE, AND THE
DISTRICT OF COLUMBIA SUBCOMMITTEE
DANIEL K. AKAKA, Hawaii, Chairman
CARL LEVIN, Michigan GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana SCOTT P. BROWN, Massachusetts
ROLAND W. BURRIS, Illinois LINDSEY GRAHAM, South Carolina
CHRISTOPHER COONS, Delaware
Lisa M. Powell, Staff Director
Christine S. Khim, Counsel
Jennifer A. Hemingway, Minority Staff Director
Aaron H. Woolf, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Akaka................................................ 1
Senator Voinovich............................................ 2
Prepared statement:
Senator Brown................................................ 35
WITNESSES
Monday, November 15, 2010
Hon. Michael J. Astrue, Commissioner, Social Security
Administration................................................. 5
Hon. Patrick P. O'Carroll, Jr., Inspector General, Social
Security Administration........................................ 7
Richard E. Warsinskey, Manager, Cleveland Downtown District
Office, and Past President, National Council of Social Security
Management Associations........................................ 20
D. Randall Frye, President, Association of Administrative Law
Judges......................................................... 22
Alphabetical List of Witnesses
Astrue, Hon. Michael J.:
Testimony.................................................... 5
Prepared statement........................................... 37
Frye, D. Randall:
Testimony.................................................... 22
Prepared statement........................................... 70
O'Carroll, Hon. Patrick P., Jr.:
Testimony.................................................... 7
Prepared statement........................................... 53
Warsinskey, Richard E.:
Testimony.................................................... 20
Prepared statement........................................... 58
IMPROVING SOCIAL SECURITY
DISABILITY INSURANCE CLAIM
PROCESSING IN OHIO
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MONDAY, NOVEMBER 15, 2010
U.S. Senate,
Subcommittee on Oversight of Government
Management, the Federal Workforce,
and the District of Columbia,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9 a.m., in
Main Place Building, Third Floor Conference Room, 121 South
Main Street, Akron, Ohio, Hon. Daniel K. Akaka, Chairman of the
Subcommittee, presiding.
Present: Senators Akaka and Voinovich.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. This hearing will come to order.
Aloha and good morning. Let me tell you what I meant when I
said, ``Aloha'' and begin by saying we share such a deep Aloha
between Senator Voinovich and me. And ``aloha'' is a Hawaiian
word that has a simple meaning, and that meaning is ``love.''
And as you know, our State is known as the Aloha State, and
that word for me and for many others is a spiritual word.
But you know what love does to people. It brings about
changes, and normally the changes are towards a positive
direction and one that continues to look for better ways of
helping people, working with people, and taking care of
people's problems. And so in the State of Hawaii, we call it
the ``aloha spirit.'' And so that pervades, and we are proud of
that. We try to live it. And so I thought I would take the time
to explain what that word means and why I said it, because
whenever there is aloha, people come together to try to do what
is best. And for me, that is what we are doing here today. So
this is why I said, ``Aloha and good morning.''
Thank you so much for joining us as the Subcommittee on
Oversight of Government Management, the Federal Workforce, and
the District of Columbia meets to examine the Social Security
disability process in Ohio. My very dear friend and Ranking
Member of this Subcommittee, Senator Voinovich, has spent many
years working on this issue, and I am very pleased to join him
here today in this new facility that is open thanks in no small
part to his efforts.
Over the past years, Social Security disability claims have
risen across the Nation. As baby boomers nearing retirement
experience high levels of disability, a tough economy
discourages workers with health problems from continuing to try
to keep working. The high number of claims combined with
limited resources and an insufficient number of administrative
law judges (ALJs) and other staffing challenges have led to an
unacceptably low and slow claims process.
Additionally, some States like Ohio and my home State of
Hawaii have furloughed Disability Determination Services (DDS)
employees, causing further delay. Average Ohioans must wait 479
days for their disability claims to be processed.
At the end of fiscal year 2010, the Social Security
Administration (SSA) had a backlog of almost 850,000 initial
claims and over 700,000 claims waiting to be heard on appeal.
These are staggering numbers. However, over the past year, SSA
has made a serious commitment to addressing the backlog. Some
of the credit for this work, I want to tell you, is due to
Senator Voinovich's sustained focus on the issue.
Senator Voinovich shed light on this issue back in 2004
when he held a field hearing in Cleveland on Social Security
Disability Insurance (SSDI) claims processing. The hearing
looked not only at workforce and administrative challenges in
Ohio, but also at Social Security Administration's systemwide
approach and strategy for resolving disability cases.
Recommendations from this hearing served as a starting point
for SSA as it worked to refine its staffing needs and goals.
Senator Voinovich continued to focus on this issue for several
years, working with General Accountability Office (GAO) and the
SSA Inspector General to improve the claims system and with
Senate colleagues to provide SSA with the resources needed to
make lasting changes. Senator Voinovich has been a tireless
advocate for the Social Security Administration and people of
Ohio. I am encouraged that people like George Voinovich have
chosen a life of public service, and I am very sad by his
departure from the Senate. I value the years we have spent
working together on the complicated management challenges our
country faces, including these types of Federal benefits
issues.
I believe our teamwork has made a difference. Although the
issues we work on often do not receive front-page attention,
they, nonetheless, have a real impact on the way the Federal
Government works and the everyday lives of millions of
Americans.
George, I want you to know that I plan to continue to
monitor SSA resources and strategic planning as well as the
workforce challenges that must be addressed to provide high-
quality service to disabled Americans, and I look forward to
hearing from our witnesses in order to assist our congressional
oversight of this issue.
So, George, will you please go ahead with your opening
statement? I also would like to defer to you to introduce the
witnesses and to start questions of the rounds, if that is OK
with you.
OPENING STATEMENT OF SENATOR VOINOVICH
Senator Voinovich. That is OK with me. I have not done it
for a while.
Senator Akaka and I have been working with each other for
over 10 years, and I know there is a lot of feeling in the
country that somehow there is not a good feeling in the Senate
among the members and that we are not getting things done
because we are too busy with partisan politics. But the fact of
the matter is there are some wonderful things that do happen in
the Senate, and one of them is this wonderful relationship that
I have had with Senator Akaka. The two of us together over the
last 10 years, I think, have made the biggest changes in the
Federal Title 5 since 1975. And because of his background in
management schools and my background as a Governor and mayor,
we understand how important the team is. We call it the ``A
Team,'' the people who are our internal customers that are so
very, very important to providing the services to the citizens
of our respective States and to our Nation.
One of the things I am going to really miss is the
wonderful relationship that I have had with Senator Akaka. He
is one of the finest people I have ever met, and he is in
government for the right reasons, and together we have had a
great partnership. I have gotten to know Senator Akaka and his
wife, Millie, and his family, and so I just again want to thank
you, Senator Akaka, publicly here in my own State for your
friendship over the years and the work that we have done
together. We want to try and make a difference in people's
lives, and I think that we have done that, particularly for
those that are in our Federal workforce.
So I want to thank you for coming to Akron. It was a lot
easier for me to go to Hawaii. [Laughter.]
Our last hearing in another State was when I was in Hawaii,
in Honolulu, and I think at that time we were talking about the
new system for the Federal Government in terms of the defense
workers, the National Security Personnel System (NSPS)--
whatever. It has now gone back to the old system. And I am
really pleased that Senator Akaka indicates that he is going to
continue to stay on top of this so that those of you who are
here testifying today know that we are going to stay on top of
this and he is going to stay on top of it, because we know how
important it is.
I would like to thank our witnesses here today. I thank you
for the new office here, and also in Toledo, and the fact that
we now have 14 new administrative law judges in the State and
37 people to support those judges.
As Senator Akaka says, we have been looking at this for
some time, and I just thought particularly for maybe some of
the people here from the media to remind them that this program
started back in 1956, and it is to provide disability benefits
to employees who work, pay Social Security taxes, and become
disabled to the point where they can no longer work, and that
Supplemental Security Income (SSI), is an additional program
developed to provide disability payments on the basis of
financial need. If a disabled person wants to apply to either
program, they submit an application through their local Social
Security office.
Mr. Astrue, I want to say to you that the one we have in my
local community does a very, very good job. I am really pleased
with the service there.
And then that application is sent to the State Disability
Determination Service, the DDS, and that office is made up of
State employees but are employees paid by the Federal
Government. If the application is denied, there is another
opportunity for reconsideration at that level. If it is again
denied, then it goes on appeal through the Federal Office of
Disability Adjudication and Review (ODAR), a hearing office
like the one we have right here, where you have an
administrative law judge and they make a decision on the case.
If the applicant is still unhappy with the situation, they can
appeal to an SSA appeals council, and then finally they can go
to Federal court. So that is the way the system works. It is a
very, very extensive--it is probably one of the most extensive
judicial things in the world today.
Last year--and I think these numbers are really boggling--
SSI paid $155 billion--to 14.5 million disabled workers and
their families here in this country. And I have learned over
the years that the process for getting those benefits is
difficult. In fact, right now in my own office, we have 174
disability cases that constituents have complained about, and
we are trying to follow up right now.
The reason why I am into this is because of the fact that
so many people have had to turn to our office, our constituent
office, to try and get help for it. Where is Michael Dustman?
He heads up our caseworker office, and they do a very good job.
Over the last number of years, it is hard to believe this, but
we have had 6,000 cases in our office, Commissioner--that is
about 500 a year--where they feel they just cannot get
anywhere, and they come to us and ask us to get the job done.
What we are really striving for is they ought not to have
to come to my office or to Senator Akaka's office or anybody
else's office. The system ought to be able to take care of
them.
So in terms of our numbers in Cleveland, I think, Senator
Akaka, the national average I think is 390, and 6 years later
it is still 481 days in my town. And we have the same kind of
problem in some other areas.
The good news is that the ranking for cases per
administrative law judge was 140th out of 149th in May 2010,
and we are down to 40 right now, so that is pretty good. We are
making some progress. But as Senator Akaka says, the situation
has gotten worse because of the fact that we have had a 21-
percent increase in the number of people who are asking for
disability benefits. These are a lot of folks that were out
there working at a job and did not come in for disability. Now
they are coming in, and they need help. And at the same time
they are coming for help, the people that handle them in Ohio,
the numbers are not there because we have furloughed them. In
our State, we had 20 furlough days, and I think, Senator Akaka,
you had 42 in Hawaii. So the people at the State level that
hear these claims initially are not working as much as they
did. And I know I have talked to Governor Strickland about
this. I think it is a problem, maybe the Commissioner and
others, that we need to deal with nationally because we have a
disconnect here. We have more people that want it, and we are
furloughing more. And one of the things I pointed out to our
Governor is this money is not coming from Ohio. It is coming
from the Federal Government. So it is not doing anything on the
Ohio budget. So I think this is something that we really need
to look at if we are going to deal with the problems that we
are confronted with today.
I really again want to thank you, Senator Akaka, for being
here today, and I am pleased that--we are honored today that we
have the Commissioner, Michael Astrue, who is here, and Patrick
O'Carroll, Jr., who is the Inspector General for the Social
Security Administration. We have the Inspector General that
kind of watches over them. We have the General Accounting
Office that watches over them. And so we are pleased to have
both of you here, and if you will stand up, as is our
procedure, raise your right hand. Do you swear that the
testimony you are about to give is the truth, the whole truth,
and nothing but the truth, so help you, God?
Mr. Astrue. I do.
Mr. O'Carroll. I do.
Senator Voinovich. Thank you.
See, I am not used to that, Senator Akaka. I have not been
doing it for a couple of years. [Laughter.]
All right. Let it be noted that they did take the oath.
Mr. Astrue, will you proceed with your statement?
TESTIMONY OF THE HON. MICHAEL J. ASTRUE,\1\ COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION
Mr. Astrue. Thank you. Chairman Akaka and Ranking Member
Voinovich, thank you for this opportunity to discuss our
rapidly improving disability process here at our new Akron
hearing office.
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\1\ The prepared statement of Mr. Astrue appears in the appendix on
page 37.
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Your support has made this and other service improvements
possible. The resources we received in the last few years have
proved critical. We appreciate your commitment to a faster,
more accurate disability process in Ohio, and thank you for
your critical role in helping us open new Ohio offices.
Senator Voinovich, as you prepare to retire from the
Senate, we at the Social Security Administration want to thank
you for your commitment and for your critical role in the
opening of these new offices. We will miss you.
Together we have accomplished much over the last few years
despite the surge of benefit applications and the misguided
furloughs of many Disability Determination Services (DDS)
employees. We remain on track to eliminate the hearings backlog
in 2013, our top priority. Despite many challenges, we have
made progress in reducing the number of pending hearings and
the average processing time.
Our progress, though, extends beyond the hearings workload.
Our employees worked hard to keep the level of pending initial
disability claims below our fiscal year 2010 projections, even
as we receive a record number of new claims due to the
recession. Despite the workload pressures, we achieved our
highest level of accuracy since 1997. Waiting times in our
field offices dropped, and our performance on the 800 number
was our best ever. We increased staffing for program integrity,
which enabled us to increase the number of Supplemental
Security Income (SSI) redeterminations and improve accuracy.
Our employees deserve enormous credit for these successes.
Since fiscal year 2007, they have increased productivity by an
average of nearly 3.7 percent each year.
Our hearing backlog plan is succeeding. In the last 2
years, we have hired about 375 new administrative law judges
(ALJs) and the staff to support them. We will open over two
dozen new hearing offices by the end of 2011. We have
standardized our business processes, realigned our workloads,
and used technology to become more efficient.
Pending hearings reached a high point in December 2008, but
we have steadily worked the number down, ending fiscal year
2010 with the lowest year-end pending in 5 years. We have made
these gains despite record receipts that jumped nearly 100,000
cases from fiscal year 2009.
We are also making decisions more quickly. Four years ago,
some hearing requests had been pending as long as 1,400 days.
Waiting this long for a decision is immoral, so we focused on
handling the oldest cases first, even though that makes some of
our other statistics improve more slowly. Since then, we have
decided over one-half of a million cases that were 825 days old
or older. Now we have a negligible number of cases in that
category. This year we have again raised the bar and expect to
resolve all cases 775 days old or older.
Even as we work the oldest, most time-consuming cases, we
have reduced the average time to make a decision from a monthly
high of 532 days in August 2008 to 377 days in October of
2010--the lowest average processing time in more than 6 years.
Moreover, every hearing office nationwide had average
processing times under 600 days in September and October of
2010. Two-thirds of our cases have been pending less than 270
days, which is our target processing time under our plan.
Since May 2007, when I joined Senator Voinovich in Columbus
to discuss hearings in Ohio, we have improved all major
performance metrics in this State. Four years ago, average
processing times in the Ohio hearing offices were between 600
and 800 days. That range has fallen to 400 to 600 days, and it
is still dropping. Our greatest progress is in the most
backlogged offices.
For example, in May 2007, the average processing time in
the Columbus Hearing Office was 760 days, the worst in the
State. By the end of October 2010, the wait had decreased to
557 days.
The new Akron and Toledo hearing offices which have just
opened will accelerate our progress and bring even more relief
to Ohio claimants. The new Muncie Indiana Office will bring
some relief as well to people now being served by the Dayton
office.
As we eliminate the hearings backlog, we are responding to
the additional disability claims resulting from the economic
downturn. Nationwide, we received more than 3.2 million claims
in fiscal year 2010, 24 percent more than in fiscal year 2008.
We have responded to this increase by adding staffing in the
State DDSs and Federal disability processing components,
improving online services, and refining our policies and
business processes. Our fast-track initiatives allowed us to
issue favorable determinations to over 100,000 disability
claimants last year within 20 days of filing.
A sharp increase in disability claims and high employee
turnover in the Ohio Bureau of Disability Determinations (BDD)
contributed to the disappointing outcomes in Ohio in fiscal
years 2008 and 2009. The State furlough only compounded these
difficulties.
Our prompt response has turned the situation around. We
increased staffing in the Ohio BDD by over 90 new hires in the
last 2 years. We transferred over 15,000 disability cases to
Federal processing units, which resulted in a 10-percent drop
in pending workload. Ohio closed fiscal year 2010 with about
54,000 cases pending. Accuracy improved significantly, and
productivity is increasing as the new hires gain experience.
As misguided as it is for the States to respond to fiscal
crisis by furloughing employees whose salaries and benefits we
fully fund, many of them have done so. In Ohio, we estimate
that the 20 furlough days in fiscal year 2010 and 2011 will
delay decisions on nearly 16,000 disability claims and postpone
over $3.7 million in Federal benefits to the State's most
vulnerable citizens. Additionally, Ohio will lose over $7.3
million in Federal funds.
Nationwide, furloughs have already delayed $29 million in
benefits and cost States over $56 million in administrative
funding. To stop these furloughs, we have proposed legislation
in the last few months that would prohibit States from
furloughing DDS employees without the agency's approval. I urge
Congress to take quick action on this legislation.
Our employees are proud of how far we have come over the
last 2 years, and they do not want to backtrack. We are trying
to maintain momentum despite the loss of employees. Due to our
uncertain appropriations situation, in July we froze most
hiring. Only components critical to the backlog reduction
effort can replace staffing losses, and we may not be able to
maintain that policy much longer.
To see continued progress, we ask Congress to approve the
critical funding that the President requested for us. The
American people are depending on us, and we have demonstrated
that with adequate funding we deliver on our promises.
Thank you, and I am happy to answer any questions you may
have.
Senator Voinovich. Thank you very much. Mr. O'Carroll.
TESTIMONY OF THE HON. PATRICK P. O'CARROLL, JR.,\1\ INSPECTOR
GENERAL, SOCIAL SECURITY ADMINISTRATION
Mr. O'Carroll. Good morning, Chairman Akaka and Senator
Voinovich. Thank you for having me here today to testify.
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\1\ The prepared statement of Mr. O'Carroll appears in the appendix
on page 53.
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My office continues to assist SSA in its efforts to reduce
backlogs of both initial disability claims and appeals
hearings. At the end of fiscal year 2010, SSA had nearly
850,000 initial disability claims pending. More than 700,000
applicants are awaiting a hearing with an administrative law
judge.
In Ohio, a disability applicant will wait 119 days for a
decision on an initial claim. However, hearing offices in Ohio
take 479 days on average to issue decisions on disability
appeals. Here in Akron, the average disability appellant will
wait 334 days for their case to be decided. In Columbus, the
wait for an appellate decision is 557 days.
A large population of baby boomers reaching retirement age
has created workloads that have taxed SSA's resources and
helped cause these delays. The current economic climate has
made matters worse for some States, including Ohio, that have
decided to furlough DDS employees. The furloughs have delayed
case decisions and benefits from reaching the people who really
need them. We commend SSA for campaigning against DDS furloughs
and for bolstering staffing levels. However, the backlogs
remain.
In recent years, my office has placed a high priority on
helping SSA improve the disability claims process and reduce
backlogs. Senator Voinovich, in 2009, you asked us to review
productivity levels among hearing offices and identify why some
offices had productivity rates below the national average.
Earlier this year, we released that report, which identified
factors affecting hearing office productivity. Those factors
included: ALJ motivation and work ethic; case review times;
hearings management; and staff quantity, quality, and
composition.
Through hiring, SSA has worked to address some of these
support staff factors we identified. SSA seeks to have a
national average of 4.5 support staff for every ALJ. Hearing
office chief ALJs are responsible for managing ALJ performance.
Managers have taken action against underperforming ALJs, but
those actions primarily include mentoring and counseling rather
than discipline.
In another report we issued in August, we identified four
disabilities that are most often allowed by ALJs on appeal. The
four impairments are: Back disorders, degenerative arthritis,
diabetes, and muscle or ligament disorders. We recommended that
SSA analyze why these claims were denied before being allowed
by ALJs. We suggested SSA consider variables such as claimant
age and representation.
In May 2007, SSA began implementing its ``Plan to Eliminate
the Hearings Backlog and Prevent its Recurrence.'' By fiscal
year 2013, SSA wants to reduce pending cases to the desired
level of 460,000 cases and reduce average case processing time
to 270 days. The agency has determined ALJs could manage that
pending case level of 460,000 cases without claimants
experiencing any unnecessary delays.
In a July report, we said that SSA will achieve its fiscal
year 2013 pending hearings backlog goal. SSA has made several
assumptions about variables that affect the pending case level.
Those variables are: Hearings requests, ALJ availability and
productivity, and senior attorney adjudicator decisions. SSA
must continue to assess these factors and make necessary
adjustments to stay on track to meet its 2013 goal.
Finally, my office continues to encourage the creation of a
revolving integrity fund that would pay for initiatives such as
continuing disability reviews and our Cooperative Disability
Investigations (CDI) program. These are additional ways to help
SSA reduce the backlog of disability claims and to ensure that
only those who are eligible for benefits receive them in a
timely fashion. We continue to work with you and SSA to
accomplish these goals.
Thank you again for the invitation to testify today, and I
will be happy to answer any of your questions.
Senator Voinovich. Thank you very much.
Senator Akaka, would you like to begin the questioning?
Senator Akaka. You proceed with your questions.
Senator Voinovich. OK. Does anybody have a clock or
something? I will start out with 5 minutes and then let me
know.
There are two things that I wrote down that are big-picture
issues. First is the appropriations. I do not think the public
understands what a disadvantage it puts an agency when we pass
continuing resolutions and we do not do our appropriations
work. I think Senator Akaka has heard me say this before that
if I had been mayor and had not gotten our appropriations done
on time, or Governor, I would have been impeached. That is a
fundamental responsibility, and for some reason we just cannot
get it done. And I suspect that when we go back, because of the
change in the House, we will probably pass another continuing
resolution, which I would like you, Commissioner Astrue, to--
puts the question of where does that put you, because you are
banking on appropriations that the President recommended in
your budget. So I would like you to respond to that. And second
also to fill us in a little bit about the likelihood of our
possibly getting Federal legislation that will disallow States
from putting these folks on furlough at a time when we need
them more than ever before. And last but not least--I will give
you three of them, and then I will stop--is that possibly do
you think that instead of these folks working for the State
that they ought to be brought into the Social Security
Administration rather than being under the aegis of their
respective States?
Mr. Astrue. Thank you, Senator Voinovich. So on the
question of continuing resolutions (CRs) and appropriations, I
think we are on the same wavelength. A lot of agency heads are
a little reluctant to speak up on this issue because it is
viewed as impolitic. But I did so a few months ago, I believe
in the National Journal, which actually tracked big swings in
our number of employees tied into the delays in the continuing
resolution. And when you have a budget approximately in the $12
to $13 billion range, if you do not know how much money you
actually have to spend until halfway through the fiscal year,
which is the situation I have had to deal with, you cannot
spend the money that you have as well. The contracting process
and the other agencies that you have to go through to get
things done takes so long that you really cannot spend your
money as prudently as you should.
So I am with you 100 percent. I am old school. I would urge
the Congress to pass appropriations before the start of the
fiscal year to make sure that the taxpayers get the most value
for their money, and the longer the Congress goes into the year
with continuing resolutions, the harder it is to plan and the
less wisely money is spent. So I am with you 100 percent on
that.
I think we are on the same wavelength on furloughs. I have
spoken up fairly vocally on this. We were caught off guard by
this. This is not a historic problem. And when it started in
California, I will be honest, I made the mistake of thinking
this was going to be a one-off and other States would not
follow California's lead. But I turned out to be wrong on that,
and we have had at any given point in time usually about 10 to
15 States in the last year and a half or so that have done at
least some degree of furloughing. And your two States, just
coincidentally, have been two of the most aggressive, and I
think people in your States have suffered unduly for that.
We worked with the Office of Management and Budget (OMB) to
come up with legislation on this topic, which we sent to the
Hill too late in this legislative year to expect action this
year. I believe we sent it up in August. The Legislation is a
good blueprint for next year, and I would certainly ask for
your support to help us line up as many initial cosponsors as
possible and try to put an end to these furloughs. There is no
benefit for a State to Furlough DDS employees and a lot of
negatives. It has been puzzling to me that I have to continue
dealing with this.
As an alternative, I would also note, having served on two
gubernatorial transition teams myself in the past, it is a time
of fluidity where policies are reconsidered. Both Ohio and
Hawaii are going through gubernatorial transitions, so I would
recommend strongly to each of you to contact your new Governors
and urge them administratively to end furlough policies.
Experience has taught me that Governors are not terribly
impressed by my opinion, but they do need to listen to senior
members of their congressional delegation. I hate to ask for
your help one more time, but any contact you could make with
your new Governors would be very helpful.
The third question, Senator Voinovich, was on
Federalization of the DDSs. At the moment, I think the
administration has not been supportive of that primarily
because of the cost issue. There are some other issues as well.
We have taken a look at this. It is about a $4 billion cost
over 4 years, with about $2.5 billion in the second year. And
it really comes from the fact that State employees get paid
substantially less than Federal employees. So to bring the DDS
workers into the Federal workforce would involve substantial
increases in salary, and that delta has a substantial cost for
the Federal Government. But certainly as we have experienced
more and more difficulties with the furloughs, we have looked
at this issue again, and we are not at the point to----
Senator Voinovich. The other thing in Ohio, we have a
turnover rate that is like 15 or 16 percent. I think the
average is like 8.5 or something of that sort. So you wonder
whether or not the salary levels are competitive in terms of
other States.
Mr. Astrue. Yes. We have often been in the situation with
States where we have actually tried to get them to increase
salaries to reduce the level of attrition. It tends to create
some difficulties in terms of comparability throughout States.
That is usually what we hear back. But when we see attrition
rates higher than the norm, we typically do look at it and
often do see if we can recommend some sort of increase,
directly or indirectly, to try to reduce that attrition,
because it is a real concern. About half of our examiners have
3 years of experience or less, and that is an issue.
Senator Voinovich. Well, that is the heart of it. If the
State level is the first level of determination, then to me
that is the most important. If you really had a slick operation
where you had consistency in terms of determination of, when
people were eligible for it, you had training across the
country--so that, Mr. O'Carroll, in your testimony and others
noted the discrepancies in terms of certain cases, I think. In
one State, you had a certain type of back injury; they turned
them all down. And then when they got up to appeals, they
overrode them and agreed to them. The system could be really
done much better, and it would eliminate some of the need for
the judges that we have. I mean, that is the beginning.
We did that with our Ohio Bureau of Workers' Compensation
(BWC). We had a situation here where we had a three-judge
hearing, and we concentrated on the intake and retrained the
people, and that helped to make the system a whole lot better
and more efficient. And, by the way, it saved a whole lot of
money.
Mr. Astrue. I would agree. I do not have any significant
policy concerns. I think it comes down to a flat budget
question. To take us back to 1956, when the program started, I
think there was some thinking that housing the DDSs with State
vocational rehabilitation agencies would be a benefit to the
public and to the Federal Government. I would have to say I do
not think that has really worked out in practice. And, in fact,
at this point in many States, they do not house the DDSs within
the vocational rehabilitation agency. It is in a separate part
of the State organization.
So I think it really just comes down to a question of cost.
It is expensive, and we are in a period in which we are already
worried about going backwards on our budget on our basic
functions. I think it is just really a question of cost at this
point.
Senator Voinovich. I think the final thing--and then I will
turn it over to Senator Akaka--is that if you can get a much
better DDS operation--you say that if they go on the Federal
payroll they might get more money. But I would think that if
you do it right you would save, as I mentioned, down the road
in terms of administrative law judges, I think we are talking,
what, about 4.5 people on average that we should have to help
the administrative law judge. It might be a good thing to look
at that so that if Congress said, ``Well, it is going to cost
more money,'' you can come back and say, ``You know something?
It probably will cost less money.'' But more important than
anything else, it is going to be better for people.
Mr. Astrue. Yes, I agree.
Senator Voinovich. So often people get lost in the shuffle
here, and I have several cases here, I mean, unbelievable
situations where people have been out there delayed and call,
especially now, they could not get their disability payment,
foreclose on the house--I mean, just it really is a situation
that all people should be concerned about.
Mr. Astrue. I agree with you, Senator.
Senator Voinovich. Senator Akaka.
Senator Akaka. Thank you.
Mr. Astrue, thanks to the Recovery Act and increased
funding, your agency was able to hire thousands of new
employees. This has been, I think, one of the advantages that
we have had with the Recovery Act. We have hired these
thousands, and I am sure it has made a difference. But I would
like to be more specific and ask you to describe how SSA is
handling the challenge of training, the challenge of adequately
training all new staff on their responsibilities. As we know,
in government management as well, we have to continue to be
sure that staffs are efficient at what their responsibilities
are. And with all of these new ones coming in, I want to
specifically ask you about what you are doing in meeting that
challenge of training.
Mr. Astrue. Sure. We have tried, even with all the fiscal
concerns, to invest more in--and actually, we are trying to use
the phrase ``learning'' rather than ``training.'' ``Training''
tends to have sort of a top-down, hierarchical sense. We are
trying to create a culture where, to some extent, we provide
people with an opportunity to learn on their own and do more
than is absolutely required from a top-down basis.
I think with the judges the training has gone extremely
well. Typically, they spend 2 weeks in a hearing office before
they go into training sessions so that they have some real-
world context before they get a lot of very difficult abstract
information thrown at them in a relatively short period of
time. We have received positive feedback from the new judges on
the training. Their performance has been quite good. We are
feeling quite good about that.
With the other staff, it is a little bit more decentralized
in the hearing offices. I think generally that has gone well.
Probably because it is a more diffuse operation, there have
been a few places where we could do better. But generally I
think that is going well.
For the claims representatives, we have training that we
are trying to make a little more user-friendly. We do most of
that through remote video because it is too expensive to bring
people into central locations. That presents some challenges,
but we are doing things--for instance, there are national chat
boards for the young people who are going through the training.
They actually expect to interact with peers and supervisors in
that way rather than in the way that would have been our
expectations 20 years ago.
So we are trying to adapt to sort of new ways of learning
in addition to trying to make sure we transmit information in
the traditional way. I think we have a way to go. We are doing
something we have not done since the 1970s. We actually are
having college classes taught on the headquarters campus that
people at their own expense are taking advantage of.
We are trying to create a real learning culture and
transmit a lot of complicated information in different ways
than we have before. Generally, I think that is going well, but
I would be misleading you if I said I think we have it down
perfectly, because we do not yet.
Senator Akaka. Commissioner, as you well know,
administrative law judges play a critical role in the claims
process, and it is important to have access to qualified or
well-qualified judges.
Mr. Astrue. Yes.
Senator Akaka. This has been an issue. So my question to
you is: What challenges has your agency faced in the process of
hiring these judges? And how have you addressed them?
Mr. Astrue. Sure. Senator Voinovich and I have gone through
this in a lot of detail, so he will probably remind me of
things I forget to mention to you.
We are in a much better place than we have been
historically. One of the things about which I am pretty sure I
expressed considerable frustration to Senator Voinovich in 2007
was the fact that we had not had a refreshed roster of judges
from the Office of Personnel Management (OPM) in almost a
decade. And if you stop and think about it, if you were hiring
in your Senate offices with only the resumes that had come in
10 years before, what caliber of people would you have? And
would you be proud of the staff that you would hire in that
process? In 2007 and 2008, we encountered considerable
resistance from OPM concerning refreshing the roster. I want to
thank Senator Voinovich and several of the key Members of our
Subcommittees of jurisdiction for working with me to persuade
OPM to refresh the roster once and then a second time, because
that was not easy.
I think that it is critical to refresh the roster,
particularly as the number of ALJs being hired is increasing,
not only at our Agency but at other agencies with new
responsibilities, particularly Health and Human Services (HHS).
We should always be able on short notice to tap a very deep
list of highly qualified people for these positions. And I
think John Berry, the new Director of OPM, agrees in principle,
and OPM has done much better. I do not think we are still quite
where I would like to see us.
I also think it would be timely for some authoritative
outside groups to take a look at the criteria and the process
for hiring. OPM often, because of perceived litigation risks,
is not very transparent with us about the requirements, the
process, the timing, even the number of people who are on the
list. And that is a little bit of a frustration for me as the
agency head that hires 95 percent of the judges.
I think that they have well-intentioned people within OPM
who are using outdated and inappropriate criteria for the
hiring of judges. And I know that there is skepticism often
about the agency's motives. But I think that we have a revived
Administrative Conference of the United States which has a lot
of experience in these type of matters. That would be one
outside experienced group that you could look to. You could
look to the American Bar Association and other groups. But I
really do think it is time to look at the criteria. I think we
have ended up with great judges, even with a process that is
highly imperfect. But if you are essentially asking me is this
the best that we can do, my answer is I do not think it is. I
think that we can do better. And rather than make specific
recommendations, I think it is important to build a consensus
around a better process.
Senator Akaka. Mr. O'Carroll, Commissioner Astrue addressed
this issue, and I would like to hear from you as well on this
issue. As you know, States like Ohio and Hawaii have chosen to
furlough DDS employees, even though the Federal Government pays
for all costs associated with processing disability insurance
and Supplemental Security Income cases. If furloughs continue,
do you believe it will hinder SSA's ability to reach its
backlog reduction goals?
Mr. O'Carroll. That is a very good question, Chairman,
because there is a very delicate balance in SSA's ability to
meet that 2013 goal. If there is as much as a 3-percent
increase in the number of new claims, that could affect SSA's
ability to meet the goal. At the front end of it, because DDSs
supply the information coming forward, if there are DDS
furloughs or more initial claims, that is all part of the
balance.
We have been tracking the DDS furloughs and the
productivity of these States, and have issued several reports
on this. I am often asked to speak to the National Association
of Disability Examiners (NADE), which is made up of DDS
employees from around the country, and they are very, very
interested in the furloughs. They have used OIG reports to ask
for help from their local Representatives and Senators. We are
extremely concerned with the furloughs, because we are having
more applicants than ever before.
Transferring caseloads from one State to another State is
really not solving the problem. And as Senator Voinovich
mentioned before, one of our concerns, is the training level of
the employees. They are very crucial, the DDS employees, at the
State level because they know their work so well. It takes 2 to
3 years to really come up to speed. As Senator Voinovich
mentioned, if we lose a person in 2 years for that reason, all
that training is gone, and the DDS has to start over again. So
it is a very delicate balance, and this influx/outflux of
employment is going to hurt dramatically.
Senator Akaka. Senator Voinovich, do you have any further
questions?
Senator Voinovich. Yes. I would like to get back to the
availability of these ALJs. We have had more cooperation from
OPM, but I do not think people realize that they are the intake
for just about all the Federal agencies. So basically what you
are saying is that they open it up, people make application,
they review the applications, and then they make the
appointments, these are the people that are going to be your
judges. Is that correct?
Mr. Astrue. It is pretty close. The only refinement I would
add, Senator, is--and, again, I am not a master of the
intricacies of the process--we specify the locations where we
want to hire, and what OPM does is give us what they consider
the three most highly ranked candidates for that position, and
we hire off of that list of three. If there are some exceptions
and qualifications, I will add those for the record.
INFORMATION FOR THE RECORD
The Office of Personnel Management (OPM) maintains a ``register''
of individuals who have applied for the position of administrative law
judge (ALJ) and who meet the minimum eligibility requirements according
to OPM's qualifications and criteria.
When we want to hire individuals to ALJ positions, we request a
list of eligible candidates from OPM. That request identifies specific
geographic locations where ALJs are most needed based on workload and
where we have physical space. OPM identifies an adequate number of
``eligibles'' from the ALJ register, prepares a certificate, and issues
the certificate to us. On average, we receive three ``eligibles'' per
vacancy per location.
Once we receive the certificate of ``eligibles'' from OPM, we begin
our process that includes:
Our Office of Personnel (OPE) contacts all candidates to
reconfirm their geographic availability and initiates the background
investigation process.
An outside contractor conducts background investigations
of the ALJ candidates and provides us with a report.
We conduct panel interviews of all candidates not
interviewed for previous vacancies.
Based on all of the above, we make selections.
OPE confirms compliance with all selection procedures,
and we make offers to the candidates.
We also fulfill our bargaining obligations under Article 20 of the
Association of Administrative Law Judges/International Federation of
Professional and Technical Engineers and Office of Disability
Adjudication and Review National Agreement. We consider requests for
reassignments of incumbent judges to the vacant locations prior to
considering the assignment of a newly hired ALJ and before we request
the certificate.
Senator Voinovich. But the qualifications that they are
looking at are--they draft them, and you were mentioning that
those qualifications could be better reviewed to make sure that
they are the kind of people that you are going to need for your
particular assignment. I think people do not understand. There
has to be big competition. These are lifetime appointments.
Mr. Astrue. Yes.
Senator Voinovich. If you are an attorney out there and you
get a chance to get a lifetime appointment if you become an
administrative law judge for Social Security, that is quite an
incentive.
Mr. Astrue. Absolutely. And, of course, a sign that you are
exactly right is that the process up until recently was on an
unannounced basis. All of a sudden there would be something on
the OPM website saying it is open, and so many applications
flooded in that they closed it usually within about 24 to 36
hours. And I think that is fundamentally unfair to a lot of the
well-qualified people out there who are not clicking onto the
OPM website on a daily basis. So there is an enormous amount of
interest in these jobs.
I give Director Berry credit for being uncomfortable with
that, so this most recent time OPM issued a press release
saying it was going to be open on such and such a date. And I
commend Director Berry for doing that because I think it is a
step in the right direction.
But there are some fundamental questions that I think the
Congress should be asking outside experts. Most notably, I
think the OPM model is a one-size-fits-all for administrative
law judges. And I have some question that you have non-experts
in administrative law with no real experience in the area,
drawing from a human resources (HR) background and putting too
much weight on qualifications that I do not think matter
generally. But I also think it is a reasonable position to
observe the day-to-day work of our judges--we are a mass
production operation. We need to have each judge produce a lot
of cases numerically in order to serve the American public. It
is very different day-to-day work than, say, what a judge would
do at the National Labor Relations Board (NLRB) or the
Securities and Exchange Commission (SEC), where it is a very
fact-bound, long, adversarial process, and they may only have a
caseload of half-a-dozen cases for a year; whereas, our
expectation is our judges will handle 500 to 700 cases a year.
And it is a different profile, and maybe we need to have
agency-specific rosters. But even if we do not, I think that
there needs to be more attention paid to Social Security
because we hire over 90 percent of the judges. I do not think a
lot of the criteria, to the extent that I understand them,
really tie in very directly with what we need.
Again, having said that, we can go fairly deep on the
roster, and from my vantage point, we have been seeing
extremely qualified candidates.
Senator Voinovich. Well, that is something that you would
not need legislation for. Could you not work that out with John
Berry and say, ``John, we have to give him your insight in
terms of the kind of people that----''
Mr. Astrue. Theoretically, I think that is right.
Senator Voinovich. In effect, you are hiring people for
your system, but the people that are hiring them and making the
determination--you are not making that determination. OPM is.
Right?
Mr. Astrue. I think that is right. But I think that within
the agency there is a lot of attachment to the status quo, and
I think that is not likely to change until significant outside
interested parties, particularly the Congress, express concern
about the process and encourage the----
Senator Voinovich. We have talked about, even with the
administrative law judges, you get the performance of them--and
I have to say that their performance has improved, at least
from what I can see.
Mr. Astrue. Right.
Senator Voinovich. But the fact of the matter is if you get
somebody out there that is not doing a job, what do you do? I
mean, you cannot do much about it.
Mr. Astrue. Right. My----
Senator Voinovich. They are there, and, we have talked
about the idea of maybe having the term a 15-year term, and at
the end of 15 years they are reviewed in terms of their
performance, and if they are doing their job, they can come on
for another period of time. If not, at least you have that over
their heads in terms of their responsiveness and, performance.
Mr. Astrue. I agree. I want to credit the vast majority of
judges who have embraced the mission, and I think are working
very hard. Since the time we announced our performance
expectation a couple years ago, we have moved from, 46 percent
of the judges meeting our minimum case expectation to this
year, 74 percent. And a substantial percentage are within
striking range of our expectation.
Senator Voinovich. Does their performance have anything to
do with their pay?
Mr. Astrue. No, we are not allowed to do that. I think the
truth is that the agency in the 1980s overstepped its bounds
with regard to the independence of judges. Congress reacted and
largely tied our hands in lots of ways. And I think in general
I am not going to be critical of that, but I think there were
some unintended results of that. And there are a small number
of outlier judges who essentially have taken early retirement
while at the top of the Federal pay scale. We had one judge in
Rhode Island who went 6\1/2\ years without deciding a case.
When we started calling him out, he started to do a small
number of cases, but he basically allows them all. From my
vantage point, that is essentially theft from the public.
We have had some judges in this category, and we have
benefited from the fact that the arrogance that leads you to do
that also leads to misconduct at work. So we have actually been
more aggressive in taking judges to the Merit Systems
Protection Board (MSPB) who have engaged in inappropriate
conduct. They are often low performers as well.
We had, for instance, a judge we removed in Georgia a
couple years ago, and it turned out he was a low performer
because he also had a full-time job in the Department of
Defense for 3 years, and so he was double-dipping and not
giving full effort at either Federal job.
Sometimes, by going after behavior, we remove a low
performer, but it is very difficult under the current rules to
take any action against a judge who is doing next to nothing or
transparently not following the rules of the agency.
Senator Voinovich. The last part of it--and I will end on
that. But, Mr. O'Carroll, could you comment on that?
Mr. O'Carroll. Yes, Senator. Interestingly 3 years ago we
did an audit on the productivity of administrative law judges,
taking a look, as the Commissioner talked about, at those
judges processing a few cases per year all the way up to the
ones doing over a thousand per year. At the time, we worked
with the agency and asked what their expectations and goals
were. About 500 cases per year would have been the top of the
bell curve. And the majority of judges were processing fewer
than 500. I would say over the last 3 years, that has changed,
and we are finding that many are processing more than 500 cases
per year. As the Commissioner just said, that is happening. So
we are looking at that in terms of their productivity. We have
been monitoring that.
One thing that we have not mentioned too much in terms of
the productivity, again, and I mentioned in my testimony, is
that 4.5 support staff ratio. Very critical. We have
recommended that ratio because of that first report when we
were looking at the productivity of judges. We looked the
better performing hearing offices compared to others, and we
interviewed chief judges, judges, and support staff. And we
found out that when offices had 4 to 5 support staff per ALJ,
they were the most productive offices.
Our most recent work indicates that the agency is moving in
a positive direction.
Senator Voinovich. Thank you. Senator Akaka.
Senator Akaka. Yes, let me offer a final question to this
panel, and I would like both of you to answer it, beginning
with Commissioner Astrue.
You have mentioned some of the processes and what needs to
be done to improve them. And based on your experiences and your
work thus far, my question to you is: In the years to come,
what are the top three factors you believe will determine
whether SSA is successful at maintaining progress that has been
made and staying on track to meet its goals? I am asking this
to see maybe what we need to do legislatively to improve the
entire system.
Mr. Astrue. Sure. Well, my first two would really be the
appropriation--the first is the size, and the second is the
timeliness. Our Inspector General is entirely right. He
mentioned before that while we are on track to hit our goal for
2013, it is fragile, and it would not take very much for us to
miss that goal.
I know that we are in a time of a lot of concern about the
Federal budget; there will be cutbacks. I have tried to be
responsive to that. I submitted a tighter budget this year than
I ever have before. But at the end of the day, we have an aging
population, which adds to the workload. We have a recession
that gives us more disability cases and more retirement cases.
And we have a lot more statutory responsibilities. So workloads
are going up enormously.
If we do not get budgets that reflect those workloads and
the need to reduce the backlog, then we will miss the goal. I
cannot tell you that we can hit the goal just by sheer
administrative effort on level funding. We cannot. We will miss
the goal if we go to level funding. And the timeliness, as
Senator Voinovich was pointing out before, is almost as
important as the amount.
I think the other factor that, again, I cannot control--and
maybe the Congress only can to a fairly limited extent--is the
recession. There is a lot of discussion about ``the plan'' to
reduce the backlog, and I think GAO sometimes has wanted us to
sort of lock in something and then measure against, what we
expected. And it has not been that way, and it should not be.
It has been a much more fluid plan, and we have had to adapt to
radically changed circumstances. So we made a lot of
adaptations to ``the plan'' when the recession hit, and all of
a sudden, we are seeing over half-a-million more disability
applications than we saw 2 years ago--a little less than 20
percent of which will eventually show up in the hearings and
appeals process, so at least another 100,000 at the Office of
Disability Adjudication Review (ODAR).
And the extent to which the recession continues at 9.5, 9.6
unemployment is critical, too, because all the studies have
shown--and it has held up in this recession--that there is a
very high correlation between increases in disability
applications and increases in unemployment. What I need more
than anything else is for people to start hiring and for that
rate to go down because that will do more than anything that I
can do administratively to help move these cases along. So I
think those are the three most important factors.
Senator Akaka. Thank you.
Mr. O'Carroll. Mr. Chairman, the Commissioner said it well.
One of the big issues for SSA is service versus stewardship. On
the service side, the challenge is going to be, as we mentioned
before, the large influx of claimants coming in, the baby
boomers, etc. One aspect of that challenge that they are going
to have to be looking at is Information Technology (IT) support
and electronic services. We are doing a lot of oversight on
that and trying to give advice to the agency on long-range
planning in relation to that.
Long-range planning should happen, and one challenge is
trying to address IT strategic planning as well as all the
personnel and staffing issues that we have been talking about
today. But, again, the IT infrastructure of the agency is going
to be a challenge into the future.
On the stewardship side, I think all of government now has
to be very cautious in terms of improper payments in the
benefit programs. We are very involved in the issue of improper
payments for the Inspector General (IG) community, representing
the community in dealing with all the different agencies and
departments. Specifically here at SSA, in terms of stewardship
and taking a look at improper payments, two of the things that
are of interest to us is an integrity fund as part of future
appropriations for the agency, where money would be set aside
above the cap just for doing integrity activities like
continuing disability reviews (CDR). When a claim is
adjudicated through the system and approved, somebody gets
benefits. Three to 5 years out, SSA conducts a CDR to see if
they have improved, so there is a safety net with CDRs. And
that safety net has been weakening. When the agency puts more
resources towards service, there is less for stewardship, and
as a result there have not been enough CDRs. So we are
recommending that more resources go towards integrity; to do
more CDRs and more redeterminations.
Finally, I want to mention that we have a partnership with
SSA on a continuing disability investigative (CDI) process
where we have State employees, SSA employees, and Office of
Inspector General (OIG) employees taking a look at claims at
the front end of the disability process. They try to eliminate
fraudulent claims before the individuals receive benefits.
These units investigate when a DDS examiner suspects somebody,
and they try to make sure that the disability the person claims
that they have is, in fact, genuine. And that CDI program is
very successful.
So thank you for the chance to mention our important
initiatives.
Mr. Astrue. Mr. Chairman, if I could just add briefly, I
want to second what the Inspector General said. And I think if
you look at the decade for the agency, as our funding
contracted in the early part of the decade, not only did the
backlogs go through the roof, but the program integrity work
dwindled from close to optimal levels down to almost nothing.
And despite tight resources, we have increased our commitment
to program integrity. Every year it is not as much as we would
like to do it, particularly on the continuing disability
reviews.
There will be a moment--and it may be after I am gone as
Commissioner--where the economy starts to improve
significantly, and for intake of new cases of disability, we
may be slightly overstaffed at the DDS level. Now we are not.
We are nowhere close to that. We are struggling right now. But
when that happens, there will be a very important moment for
the Congress from a program integrity point of view, because I
think it will be important to hold onto those resources and
dramatically increase the number of continuing disability
reviews, because as you well know, there is about a 10:1 return
for the trust funds each time we do one of those continuing
disability reviews, and we will have the resources in place
whenever this recession starts to improve. I think it is very
important for the Congress to keep an eye on that so it makes a
very important choice to dedicate those resources to program
integrity work when the paradigm shifts.
Senator Akaka. Thank you very much.
Senator Voinovich. I would just like to ask, who decides
how that budget is spent, though, in terms of the money for
these reviews? Do you do that? Or is that part of----
Mr. Astrue. We have a process with OMB to try to set
program integrity work within the budget, but then we also take
guidance from the Appropriations committees on that. So
usually, what we target for a year is heavily influenced by
both the OMB and Congress----
Senator Voinovich. I am sure Senator Akaka has had people
come up to him and say, ``That person is on Social Security
disability and they have another job,'' or, they are painting
their house or whatever the case may be. And, of course,, that
brings discredit to the whole process. And I think,
particularly right now, if you let us know that you are out
there doing the job and that, we are trying to do the very best
that we can and make sure that those that are eligible get it
and those that are not eligible do not get it. And, again, that
gets back to the initial entry into the system. If you can get
it taken care of there, then it eliminates the problem down the
line.
Mr. Astrue. The other thing, Senator in that category that
is new--and I think it is working very well so far, and we are
excited about it--is our Access to Financial Institutions
Program (AFI) where we are very efficiently checking with banks
on the asset levels of our Title XVI applicants. And we are
doing this not only in continuing disability reviews, but we
are building it into the front end of the process. We are not
finished yet with establishing this network, but the early
returns seem to be quite good, and we think that this is going
to be the most important new anti-fraud initiative of the
agency in quite a few years.
Senator Voinovich. Great. Well, listen, we thank you very
much. I think that I have learned a lot today, and, again, I
appreciate your coming here to Akron.
Mr. Astrue. And, again, thank you to the both of you for
your leadership. We are more grateful than I know how to
express. I guess that is all I know how to say. So thank you.
Mr. O'Carroll. Thank you.
Senator Voinovich. Thank you. I just noticed that Betty
Sutton is here, our Congresswoman from this area. Betty,
welcome. Thank you for being here this morning.
For the next panel, Richard Warsinskey is the Downtown
Cleveland District Office Manager and Past President of the
National Council of Social Security Management Associations.
Mr. Warsinskey, we are glad to have you here today. And Randall
Frye, who is the President of the Association of Administrative
Law Judges. Mr. Frye, I saw you listening intently out there
and picked up some agreement or disagreement from watching your
expressions.
We are very happy that you are here today, and I would like
you to stand, if you will, and be sworn in, as is the protocol.
Do you swear that the testimony you are about to give is the
truth, the whole truth, and nothing but the truth, so help you,
God?
Mr. Warsinskey. I do.
Judge Frye. I do.
Senator Voinovich. Let the record note that the witnesses
answered in the affirmative, and, Mr. Warsinskey, we will start
with you.
TESTIMONY OF RICHARD E. WARSINSKEY,\1\ MANAGER, CLEVELAND
DOWNTOWN DISTRICT OFFICE, AND PAST PRESIDENT, NATIONAL COUNCIL
OF SOCIAL SECURITY MANAGEMENT ASSOCIATIONS
Mr. Warsinskey. Aloha and good morning.
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\1\ The prepared statement of Mr. Warsinskey appears in the
appendix on page 58.
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Senator Akaka. Aloha.
Mr. Warsinskey. Chairman Akaka, Ranking Member Voinovich,
my name is Rick Warsinskey, and I represent the National
Council of Social Security Management Associations. Our
organization represents the field office and teleservice center
management from over 1,300 offices nationwide.
I also help coordinate the activities of the SSA Advocacy
Group, and I have been the manager of the Social Security
office in downtown Cleveland for over 15 years. I am pleased to
have the opportunity to testify before you.
Today we celebrate the opening of the Akron hearing office.
This opening, along with that of the Toledo hearing office,
will be a significant help to thousands of Ohioans waiting for
a decision on their disability hearing. We greatly appreciate
Senator Voinovich's strong leadership along with the
Commissioner's perseverance in ensuring the opening of these
two offices.
Ohio's hearing offices have had backlogged hearing requests
for many years. Senator Voinovich first held a hearing on these
backlogs over 6 years ago. It was taking over 600 days for a
hearing decision to be rendered. This created hardships for
many Ohioans.
When Commissioner Astrue took office in February 2007, he
immediately focused on addressing the hearing backlogs
nationwide and in Ohio. He initiated a plan that is coming to
fruition now. A key component of this was securing additional
resources to open more hearing offices and to add more staff.
His plan received solid support from Congress. Senators Akaka
and Voinovich were strong advocates in helping SSA get
additional resources.
Starting in fiscal year 2008, SSA appropriations were at or
above the level the President requested. These appropriations
infused much needed funds into SSA to reduce backlogs in
hearing offices. Favorable funding received in fiscal years
2009 and 2010 was critically important as SSA was flooded by a
dramatic increase in disability claims being filed due to the
recession.
Disability claims continue to arrive in hearing offices in
unprecedented numbers, contributing to an increase in the
number of pending hearing requests. However, with the
significant addition of new judges and support staff, SSA has
been addressing this new onslaught of claims. National
processing times are being reduced significantly. In October,
the overall hearing processing time was 377 days, the lowest
since December 2003. Processing times are also dropping rapidly
in Ohio hearing offices. In October, processing times in the
Cleveland, Columbus, Dayton, and Cincinnati hearing offices
were about 75 days lower than they were last fiscal year.
Improvement should continue with the opening of the Akron and
Toledo hearing offices.
Ohio hearing offices are working diligently to adjudicate
cases as efficiently as possible. One key component to the
success of these efforts is the productivity of the hearing
offices. Historically, the average number of clearances in Ohio
has been significantly below the national average. Improving
productivity will accelerate the reduction of the backlog.
The Ohio Disability Determination Service (DDS), is also
under considerable pressure to process their increased
workloads. The number of pending claims has risen 48 percent
since the beginning of fiscal year 2009. This pressure has
intensified due to the mandated 10-day furloughs of Ohio DDS
staff in fiscal year 2010. These furloughs will continue during
the current fiscal year. The furloughs have resulted in $2.3
million in monthly benefit delays reaching Ohio citizens. All
of this is completely unnecessary as SSA pays for all expenses
of the Ohio DDS. Nevertheless, the State has mandated the
furloughs. We support the immediate ending of these furloughs
and applaud the Commissioner's efforts to rectify the
situation.
SSA has certainly faced many challenges in recent years.
The agency is currently operating under a continuing
resolution. With the significant increase in SSA's workloads,
it is imperative SSA receive adequate funding. We strongly
support the President's proposed funding for the Social
Security Administration for fiscal year 2011. Attempting to
address the current workload demands at fiscal year 2010
resource levels is not a prudent course of action. Freezing
SSA's budget at fiscal year 2010 levels or lower would almost
certainly lead to major service cutbacks and would be
catastrophic for members of the public who rely on SSA for
assistance.
We ask for your continued support for appropriate funding
for SSA. We believe that the American public deserves to
receive thorough, timely service for the tax dollars they have
paid to receive Social Security benefits and services.
In conclusion, we want to express our great appreciation
for the Senators' ongoing support of SSA funding and for all
your efforts to make possible what is happening today: The
opening of the Akron hearing office. I thank you for this
opportunity to testify today and would welcome any questions
you may have.
Senator Voinovich. Thank you very much. Thank you for your
service. Mr. Frye.
TESTIMONY OF D. RANDALL FRYE,\1\ PRESIDENT, ASSOCIATION OF
ADMINISTRATIVE LAW JUDGES
Judge Frye. Good morning and aloha to each of you. Mr.
Warsinskey stole my thunder in that regard, but I want you to
know it comes from the heart.
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\1\ The prepared statement of Mr. Frye appears in the appendix on
page 70.
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I am here today the behest of the administrative law judges
of this great Nation. I serve, as indicated earlier, as
President of the Association of Administrative Law Judges. We
represent 1,400 administrative law judges at the Social
Security Administration and Health and Humans Services (HHS).
We are affiliated and known as Council Number 1 of the
International Federation of Professional and Technical
Engineers (IFPTE). Of the 1,600 Federal administrative law
judges, we represent 1,400 of those.
I, too, am extremely pleased with what we have been able to
achieve in the last 2 years. We have experienced over the
decade almost insurmountable backlogs, created for the most
part by staffing imbalances. We suffered budget shortages that
precluded judges from having the staff necessary to hear and
decide cases on behalf of the American people. I want you to
know how painful that was during that period of time. Let me
tell you, there is nothing worse than having a widow show up at
a hearing because the spouse died waiting for the benefits from
Social Security. Judges have worked incredibly hard to avoid
that circumstance, and I am very proud of what we have been
able to achieve.
On the other hand, it is not we that deserve the credit. It
is the Congress of this great Nation that provided the
resources in the last 2 years to permit us to bring more judges
on board and to address the rather significant backlog already
in place. In my view, it is the Congress that has saved the
disability adjudication system in this Nation, and I am proud
of each and every Member of Congress for doing so. In doing
what you have been able to achieve, you have saved the lives of
many Americans, and certainly you have saved a lot of dignity.
People are not losing their homes because they are waiting on
benefits and are not able to work. More and more are getting
their benefits. And believe me, with continued congressional
support, more of that will be seen.
We have been advocates for many years of addressing the
backlog by appointment of additional judges and the appropriate
staff. The results of those recommendations I think are being
seen in what we are able to do today. It really is--this is a
manpower kind of job. You need people in place to move the
cases. And we recognize and appreciate and support the idea
that we are a high production operation. We take great respect
in doing what we do in that area.
On the other hand, we do grow concerned when the pressure
to produce numbers impairs our ability to give a fair due
process hearing, and that is happening more and more. That is
not to say that we do not support goals. Indeed, I think
goals--and I have said this many times--are important in many
aspects of our lives, personal and professional. However, goals
are becoming quotas at this agency. The record numbers of cases
that are being heard, I must tell you, in large part are being
heard at that level because judges admittedly are not able to
review all of the evidence in a file.
Our average file consists of about 400 pages of evidence. I
hope the expectation of the Congress is that we read that
evidence and understand that evidence. If you can imagine
comparing the file we review, most of which is medical evidence
and a little harder than reading a 400-page novel, but similar
in many respects, because both tell a story and you cannot skip
pages or chapters and still understand the story.
Not so bad, I suppose, if you are reading the novel because
the worst embarrassment may well be that you look foolish to
your book club when you are discussing the novel. On the other
hand, if you fail to review evidence that is critical in a case
and you either reverse a case that should not be or you deny a
case that should be, you either hurt the claimant and the
claimant's family, or you hurt the American people by reversing
a case that costs $250,000 at minimum.
Now, if you think about this, even at the low end of the
goals the Commissioner mentioned, 40 cases a month is worth
about $12 million per judge per month, $120 to $140 million
annually. We do not want judges making incorrect decisions. I
am concerned that we are or at least potentially being forced
to do the numbers by sacrificing the quality of their review.
Now, also understand that it is so wrong to evaluate
performance on a per judge per case disposition method. Whether
a judge does 2.0 cases a day or 3.0 cases a day is beyond his
or her control for the most part. If I could only sit you down
with me for a couple weeks and walk through what we do in a
hearing office, it would probably be far better in terms of
understanding than what I can explain to you. But suffice it to
say that we are totally dependent on what comes into our office
from DDS. Oftentimes it takes our staff significant amounts of
time to create a file that can go to a judge for hearing. We
then get a file that is sometimes 2 years old and no medical
development. You cannot hold a hearing without medical
development or at least exploring whether there is additional
medical evidence. It would be unfair to the claimant and,
indeed, even worse if the claimant was unable to afford some
medical care and you need to order some kind of medical
evaluation to assist you in the disability process.
So we are concerned about the process. We are concerned
that we are measured in terms of cases per day. That is not as
it should be. There is a better way to evaluate an office's
performance, and we do not need to get into that here at this
point, but it should be a quantitative kind of assessment based
on the production or the performance of all the staff in a
hearing office, not just the judge, because the judge cannot
control the number that goes out each week or each month.
There are a number of things that we are very appreciative
of this Commissioner. He was quick to appoint judges. He was
quick to train those judges, and as a result, the American
people have been well served.
There are other programs that he has established that we,
too, believe have been important to help reduce the backlog.
They have been mentioned, and I will not go into them at this
point.
There are a couple things, however, that I want you to know
that we do disagree with. We disagree with the large number of
management positions that have been established in the last 2
years in the agency. In our view, that does little to assist us
in addressing the backlog. What obviously from our history now
assists the backlog is judges and judges' staff, not more
Senior Executive Service (SES) people, not an expensive Deputy
Commissioner's office, and certainly not additional management
positions in the regional offices across the country. We
believe those resources should have been better used in
appointing staff, particularly in those offices where we do not
have the 4.5 ratio. In fact, we believe judges are most
productive if we have a ratio of five staff per judge. That
ensures that cases get processed, good decisions get written
and issued.
Senator Voinovich. Mr. Frye, could you kind of wrap it up?
Judge Frye. I am. Just before doing that, there are three
things that I would like to leave you with that are important
to judges.
First is courtroom security. We are terribly concerned
about the increased threats against judges and judges' lives
because of the unfavorable decisions that are issued.
We also believe morale has been adversely affected because
our judges do not have an adequate pension system. We ask you
to support H.R. 2850.
And, finally, we ask that you support a bill in the Senate
that would provide judges with the same leave benefit that
other members of senior staff have been provided as a result of
legislation in 2004.
With that, again I give you my thanks, and to you, Senator
Voinovich, we wish you well in your new venture in life.
Senator Voinovich. Thank you very much.
You both had an opportunity to hear the testimony of Mr.
Astrue and Mr. O'Carroll, and I would like to get into the
issue of the DDS and their importance to the system. You just
were mentioning, Mr. Frye, what kind of paperwork do you get
that comes before you, and how good that is and how thorough it
is has a lot to do with whether or not a judge and staff can
get it ready so that you can come up with the right decision.
In addition to that, it appears that in many cases you have
people turned down and then reversed when they go to the
judges, and it varies around the country. You just wonder what
kind of uniform training people get in terms of what is the
basis of someone's eligibility.
So I would be interested in having you comment on how
important that is and also the issue of this furlough business
at a time when cases are increasing. You said a 48-percent
increase?
Mr. Warsinskey. Yes. And SSA has also been getting help
from the component in Chicago to look at cases. They have a
component up there to help them on that. But even with help the
DDSs still have more pending cases up, and I know this is
startling but--I have been tracking cases week to week this
fiscal year that started, 2011. They have been going up on a
weekly basis, so it is not a good situation, with the
furloughs.
Senator Voinovich. In other words, you have 48 percent more
cases than you had in, what, 2008?
Mr. Warsinskey. At the beginning of fiscal year 2009. There
is 48 percent more cases pending. That is one of the reasons
why the processing time has gone up.
Senator Voinovich. Mr. Frye, do you want to comment on
that?
Judge Frye. Indeed, thank you. I have been an ALJ for 16
years, and I have had the pleasure of hearing cases in
different parts of the country, so I have seen the work product
from different DDSs. I also was at the agency when it began a
process of trying to make more uniform decisions at the time--I
think that program was called Process Unification--to convince
the DDS to follow the Commissioner's rules and regulations.
I think there has been improvement, but I do not think
there has been enough improvement. I think that there are times
I am so frustrated that I want to call my congressional
representatives and say please Federalize this program because
we need uniformity, and it seems to me that is the only way you
are going to get it in the long term.
I do not know the answer, but I do think----
Senator Voinovich. Do you think that is a good idea?
Judge Frye. I think it is a great idea. I think it is--it
will resolve the problem, believe me. I know it is, I have been
told at least, a huge political issue because of----
Senator Voinovich. Well, who hires these people?
Judge Frye. The State.
Senator Voinovich. So, in other words, they are applying to
the State, and they have the control over it.
Judge Frye. Yes.
Senator Voinovich. So you get whatever the State decided--
--
Judge Frye. Indeed.
Senator Voinovich [continuing]. In terms of those offices.
Judge Frye. That is correct. Yes, I think it is an area
ripe for some oversight hearings and legislation.
Senator Voinovich. And how about this furlough thing? Would
you urge Congress to try and----
Judge Frye. It is incredibly--I cannot imagine that
everyone in the country would not be outraged over furloughing
employees in a State whose salary is being paid by the Federal
Government. I thought it would be a slam-dunk to reverse the
California decision. But, obviously, and as the Commissioner
said, other States followed. It has been a battle on a regular
basis. It is unfortunate. It is an American tragedy, in my
view. And I am sure it is not consistent with the intent of
Congress.
Senator Voinovich. Well, part of the problem I think is--at
least that is what I have heard from our State--that we have to
treat them all alike. If we did that, then the unions would
come back to us and say, ``If you are not furloughing these
people, then, by golly, you should not be furloughing the
others.''
Has there been any kind of--do you belong to any national
labor organizations where----
Judge Frye. We are associated with a national labor
organization, but I can assure you that we would not oppose
Federally funded employees doing their jobs during periods
where other non-federally funded employees may have to take a
furlough. These are not like positions. They are different
positions. And they are funded differently.
So I think it is most unfair that Governors have taken the
positions they have and have in reality hurt the people who are
the bottom of the spectrum who are waiting for decisions. I
think that is unconscionable.
Mr. Warsinskey. There may be other ways to force the States
to do things other than Federalizing them. I do agree that if
you Federalize them, I think you will have uniformity because
there are some differences in the approval rates among the
DDSs. And I think you would have uniform training, although I
think they do try to have training in every State be the same.
I think there would be a lot of advantages to it. I agree with
the Commissioner that it would be more costly, but in the long
run, you might save money. You would have fewer cases going to
the hearing offices, which is expensive and has untold
hardships to the public.
On legislation, maybe the Congress could hold some money
back from the States for other things that--I do not know if
that is possible, because they do give a lot of money to the
States. If they are not going to fully fund the DDS and they
are going to furlough State employees that work on the cases
then we should not pay everything.
Senator Voinovich. To change the subject, something that
the folks have testified to and, that is, this whole business
of the appropriations and the continuing resolutions. You know,
you are on the firing line. You run a local office. What kind
of havoc does it play in terms of your offices, in terms of
your decisionmaking, when you are on a continuing resolution
and you are not aware of what--I mean, even the lease for this
building I suspect might have been up in the air because the
appropriation had not been made and they could not enter the
lease because they did not know whether the money to pay for
the lease would be available. Could you comment on that?
Mr. Warsinskey. Well, I can tell you, being in Cleveland,
our offices are really busy. The walk-in traffic is very high.
We are getting a tremendous number of calls. We are packed with
people coming in to visit us, and a lot of it is because of the
workloads we have been asked to do. SSI redeterminations is a
large workload for us, continuing disability reviews, and we
have a lot more people coming in to file for disability.
If you cut back, what will happen if we do not get the
adequate funding this year, then we will probably go into a
freeze. We will not be able to hire. We will probably have less
extra hours to work.
Senator Voinovich. Well, where are you right now? You are
on a continuing resolution. What does that mean to you? That
you are just able to spend what you spent last time?
Mr. Warsinskey. Right.
Senator Voinovich. And you are anticipating that you are
going to have more money because of the appropriations, but you
have to hold that in abeyance until the appropriation is made?
Mr. Warsinskey. Correct. And so if we do not get it--I
mean, we are kind of on hold--we are treading water right now,
waiting. And that is very inefficient for us, as the
Commissioner mentioned, because you cannot really plan ahead.
You cannot do the kind of hiring you need to do for the year.
Most of the time we hire the second half of the year, and
we are doing our training now for all of our hires we did this
past year. It just is not efficient.
Senator Voinovich. Mr. Frye, would you like to comment on
that?
Judge Frye. Indeed. I have spent over 37 years in the
Federal Government, and a great pleasure spending a couple of
years in the Cincinnati regional office of the National Labor
Relations Board as its Director. I have never seen a good
situation come from spending resolutions at the end of the
year. We have always had to cut back, always spend money in the
most inefficient way, and more toward the end of the year,
further backlogs build, even worse here, because, yes, it will
build more backlogs, but the problem is much deeper than that.
It hurts people. And that is why I urge Congress to please pass
the budget for at least this agency or create a higher spending
level for this agency. It is just too tragic for the American
people. I just cannot express that enough.
Mr. Warsinskey. SSA does not have the flexibility to cut
back. They are not an agency with a lot of programs. Most of
their budget goes to paying personnel costs and to support
that. So if they get cut, it is going to get cut directly into
the staff that services the people.
Senator Voinovich. Senator Akaka.
Senator Akaka. Thank you very much.
Mr. Warsinskey, you testified that while SSA has hired new
ALJs and support staff, many current ALJs and staff are
eligible for retirement now or in the coming years. What
management challenges would SSA face if these employees are not
replaced, and what steps have been taken to address these
potential skill gaps? It has been mentioned that
appropriations, of course, is one of the key parts of this. In
addition to that, what management challenges do you see?
Mr. Warsinskey. I have always said as a manager the most
important thing a manager does is who they hire and being able
to hire the best people as you can and it makes the most
difference. And I think we have to have the necessary time to
recruit people, to hire people. I cannot speak as much for the
judges, but, I know that they do hire using those lists and the
rule of three, and there has been some discussions, I know,
with OPM about moving away from the rule of three just for
hiring in general for the Federal Government to well-qualified
lists. They are making that change now. John Berry is doing
that. I think that is an improvement, allowing us a little bit
more flexibility in terms of who we select off a list.
I have gone to a number of recruiting fairs this year. I go
personally. I meet with people to sell them on coming to work
for Social Security. We work hard in our agency. I think we are
one of the hardest-working agencies in government, and you have
to have good people.
In terms of management, I think we have a culture to have
good management. I think it is important that you don't just
manage but also, I think, have a staff that wants to work for
you and have good morale. I think we really preach that. We are
under the gun. I mean, the staff is under the gun, and they
know that. But, you try to have good morale. Every day you come
to work and reflect that in management. And training, I know,
Senator, both of you have been very interested in training. SSA
does try to do as much training as they can. It is sometimes
challenging for us to train because we are so busy and we have
so much work to do and we have to take that necessary time
aside to train. But you have to invest in your people.
Senator Akaka. Mr. Frye, I appreciate you mentioning my ALJ
leave equity bill. It would put ALJs on equal footing with
other senior-level Federal employees and would be a valuable
tool for recruiting talented attorneys from the private sector
to government service.
What sorts of challenges or frustrations have the ALJ
workforce at SSA expressed regarding recruiting and retaining
qualified individuals?
Judge Frye. I think we have been over the years as
frustrated as heads of agencies have been because of some of
the problems at OPM.
On the other hand, I think under Director Berry he has the
system back in queue, and I think he is performing. I think we
are getting good candidates. I visit usually with all of the
new appointees, and I am incredibly impressed with what we are
able to bring into the system. Could it be more efficient? I am
sure it could. Could they increase the qualifications? I am
sure they could, to bring in perhaps more experienced
candidates.
With respect to the attorney hiring, there is always some
good out there when there is bad, and the recession has been
bad for most of us. But I can tell you, we are hiring the best
attorneys I have seen even going back 30 years with the
National Labor Relations Board, and that is directly because of
the recession, lay-offs in law firms. We are getting top-notch
lawyers on board, and that is making a difference in terms of
helping judges issue quality decisions.
Senator Akaka. Mr. Frye, you testified that focusing on a
number of dispositions issued per judge can lead to cutting
corners to meet output goals. You also testified that measuring
the work output of each work unit would help SSA more
accurately measure productivity and direct its resources.
Would you please elaborate on that suggestion, and how you
believe it would help?
Judge Frye. Well, again, I made that statement in my
testimony, written testimony, earlier. And it is based on my
management experience at the National Labor Relations Board.
That is the way we evaluated offices, not based on a number of
decisions that a regional director issued, as an example.
A hearing office is a group of different employees assigned
to do different but very important tasks to assist the judge in
getting cases out. If you want an accurate measurement of the
work productivity of a hearing office, you develop discrete
units of work for each of those groups, and you measure then
the output of the group. Believe me, judges are working as hard
as they ever have. Judges are working at night. They are
working on weekends to meet this 500 goal. It is unfair, I
think, to put them out as the reason a judge--or a hearing
office is falling below the Commissioner's goal. It is not the
hearing office that is failing. It is the judge that is
failing, when in reality the judge does not control the number
of decisions he or she issues.
So I think it is a much better way and a better way for
Congress to understand. Do I have a problem in Ohio? And if I
do, where is the problem? With productivity units for all of
the work units, this would take into account staffing ratios,
whether you are understaffed or overstaffed. The training issue
could be factored in. So many of these factors could give you a
much better picture of what is going on in different hearing
offices.
Now, with respect to Ohio, I know for a fact our judges
have worked far more than 40 hours a week trying to address the
backlog here. They are honorable men and women, and I am proud
to be associated with them. I think they would be better served
with a different way to measure the success of a particular
hearing office.
Senator Akaka. Thank you.
Any further questions?
Senator Voinovich. Just for the record, what is the
starting salary of an administrative law judge?
Judge Frye. That is a very good question. I am not certain
what the starting salary is. I think, however, because of pay
compression it has dropped below a GS-15 level. I do know the
top pay is around $162,000 or $163,000 to $167,000, depending
on where you live based on the cost-of-living factors for those
cities. I would guess it is in the low hundreds, the starting
rate, and it goes up to $167,00, basically.
Senator Voinovich. And it is a lifetime appointment.
Judge Frye. It is lifetime, but not the same as Article III
judges. There are areas that judges can be removed for. The
Commissioner indicated conduct is one, and we certainly support
that. We do not want judges who are engaging in misconduct as
part of our corps.
Senator Voinovich. What kind of peer pressure does your
organization exert on your judges in terms of meeting high
standards? And so you have annual training sessions every year
for your members and so forth?
Judge Frye. We do indeed. And, in fact, it is one of the
real important things this organization does. We sponsor an
educational seminar every year. This past year was our 19th. We
developed the program. We put the program on. Judges pay their
own expenses to come. And, indeed, we encourage both
quantitative and qualitative performance. All of our judges
understand we are in a huge, high-volume adjudicatory system,
and we are proud of that fact, and we want to serve the
American people well.
Believe me, this organization emphasizes performance. We do
not believe, however, that judges should be hearing cases that
they are not prepared to hear.
Senator Voinovich. Now, the staffing level is determined by
you. Is that right? You hire the staffing people?
Mr. Warsinskey. Yes, SSA hires the staffing people. The
number of people assigned to each hearing office is decided by
SSA. You know, staffing comes down from the headquarters, then
goes down to the regional--
Senator Voinovich. Let me just say this: OPM puts out the
notice of job availability, correct?
Mr. Warsinskey. Correct.
Senator Voinovich. OK. And then they send you the list?
Mr. Warsinskey. Right.
Senator Voinovich. And then you select based on one in
three, but you know right now under the law you can do
categorical hiring, too.
Mr. Warsinskey. That is just changing.
Senator Voinovich. Pardon?
Mr. Warsinskey. That is just changing, right. It started
November 1, right.
Senator Voinovich. Well, it should have been done a couple
years ago.
Mr. Warsinskey. Yes. Right. [Laughter.]
Senator Voinovich. It just did not get done. So the point
is, though, you are hiring the staffing people to provide the
staff to your judges. Is that right?
Mr. Warsinskey. Right. I mean, there are two different
lists. There is one for the judges, and there is a list that we
have for the hearings offices, and those are advertised in
USAjobs, also. And then, as you say, there was the rule of
three, and now there is this category rating which they will be
using to hire them.
Senator Voinovich. We are changing that system, aren't we,
Senator Akaka? The President has an Executive Order out, and we
are trying to put it in law so that----
Mr. Warsinskey. All the human resource departments are now
implementing it now, so they will not be using the old method,
right.
Senator Voinovich. Good. And you do the training then of
those individuals, the staff and new people you bring on?
Mr. Warsinskey. Yes. We have to train them. I mean, anyone
that comes in to work for any Social Security office generally
does not understand the lingo we use. There is quite a bit of
training. In the field office, you start out with usually 4 or
5 months of training, and you have a similar amount, quite a
bit of training in the hearings offices. And it is just
critical, and you have to have ongoing training. Our jobs are
very complicated. There is no college you can go to--to learn
Social Security. Obviously, in a hearings office, you are going
to have a lot of attorneys, senior attorneys, plus the judges
that have legal training that is specialized that they need to
have.
Senator Voinovich. So when you were talking about the
quality of lawyers that are available, these are lawyers that
come in and are doing the staffing. Is that it?
Judge Frye. That is correct.
Senator Voinovich. So many of the people that you hire on
staffing are attorneys, correct?
Mr. Warsinskey. Right. They recruit often at the local law
schools, like at Akron U and Cleveland Marshall, and----
Senator Voinovich. Those are for staffing positions in
Social Security.
Mr. Warsinskey. Right. There are many attorneys, these
attorneys provide a great deal of support in the hearing
offices, and one of the things they are doing now is they are
assisting the judges now on the decisions to take off some of
the work on them, on the cases. Mr. Frye probably can talk more
about that, but that is cutting down on some of the work,
although in our written testimony we pointed out that I think
the judges are having to handle probably some more complicated
cases on average now because they are trying to take off some
of the other cases that could be handled by the attorneys.
Senator Voinovich. What percentage of the cases are people
who are represented by lawyers?
Judge Frye. It probably varies geographically. In the
Charlotte area, we are up to about probably 94, 95 percent. A
very high rate. And that is not bad. I think that has been
beneficial to the process.
Senator Voinovich. What do those lawyers get if they are
successful?
Judge Frye. By law, they get a percentage of the back pay
that may be due the claimant up to, I think, $6,000, maybe
more.
Senator Voinovich. What?
Judge Frye. Up to $6,000 per case.
Senator Voinovich. It is a monetary limit rather than a
percentage?
Judge Frye. Indeed--well, there is a percentage, but the
percentage would kick in if there is less back benefits
withheld. For example, if the back benefits due a claimant is
only $4,000, they are limited to that amount.
Senator Voinovich. So, really, in effect, the people that
represent people before you are kind of limited in terms of
their compensation based on some kind of procedural standards?
Judge Frye. They are limited to the extent that the law
precludes more than 25 percent of back benefits, yes. On the
other hand--and I do not want to speak for the attorneys of the
world--I think most disability attorneys do quite well
financially in representing claimants. And I think they do a
very good job in representing claimants.
Senator Voinovich. But if the DDS did a lot better job,
there would be less claims that needed lawyers.
Judge Frye. No doubt about that. There is no doubt about
that. I do not want to say a ``better'' job. Perhaps they do
not have the resources they need to address the issues more
accurately.
Senator Voinovich. Senator Akaka, do you have any other
questions?
Senator Akaka. No.
Senator Voinovich. Well, we want to thank you very much,
Mr. Frye, for coming here and speaking for your organization.
Senator Akaka. At this point, let me say thank you to our
witnesses for testifying today. I have learned a great deal
about the challenges facing the Social Security Administration,
particularly in the area of furloughs and the need for
increased resources. I am encouraged by the progress that has
been made in Ohio and across the Nation, and I look forward to
monitoring these issues in this next Congress.
George, at this point I would like to defer to you for any
closing statement you have.
Senator Voinovich. Well, first of all, I want to again
thank you, Senator Akaka, for being here today. We talked about
this. Ordinarily in this time of a person's--I am retiring.
Someone will ask, ``What in the world are you having a hearing
for?'' But this is an issue that Senator Akaka and I have been
working on a long time, and I really know how important it is
to people. I get a weekly report from Michael Dustman, who is
here, some of my staff people, and, Senator Akaka, I want to
thank you for your staff people and the cooperation we have
from them. But we get these reports back, and your heart goes
out to these people. And this system has been around a long
time, and it just seems like, it is one step forward, two steps
back. And unless we stay on it, it is going to fall apart
again. And I think part of the problem is that not enough
people understand how important it is and how the system works.
So I am hoping that, Senator, as a result of this hearing--I
have written some things down. I am going to get on our new
Governor and the legislative leaders and talk to John Berry
again about some of the things that came up here, because John
is doing a good job. He is probably one of the best OPM people
that we have had since--I have been there 12 years, and he is
very good. He is very conscientious, wants to do the job. So
hopefully as a result of this hearing--write and tell your
friends--maybe something is going to happen. Brother Akaka will
be there to help out, and, Mr. Warsinskey, thank you very much
for your service, both of your services, distinguished--how
many years in the Federal Government?
Judge Frye. Thirty-seven.
Senator Voinovich. Thirty-seven. I have been in the
business almost 45, and I thought it is time to get off the
stage. So thank you very, very much, and I want to thank--
probably there are people here that work in your offices that
are here. We want to thank you, too, for your services to our
country. You are making a difference in people's lives. You
know what happens sometimes. We get in the weeds and the trees,
and we kind of forget about we are touching people's lives. And
I think one of the compensations that certainly I have
derived--and I am sure Senator Akaka--from being in government
is the opportunity to make a difference in people's lives. A
great opportunity to witness the second great commandment.
So I thank you all very much for being here, and, Senator
Akaka, you are the Chairman. You can adjourn the meeting.
Senator Akaka. You can adjourn.
Senator Voinovich. OK, thank you. The meeting is adjourned.
[Whereupon, at 11 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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