[Senate Hearing 111-973]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-973
 
IMPROVING SOCIAL SECURITY DISABILITY INSURANCE CLAIM PROCESSING IN OHIO

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

                                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

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                        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

                                 ------                                
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

                              ----------                              


                       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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. Astrue appears in the appendix on 
page 37.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \1\ The prepared statement of Mr. O'Carroll appears in the appendix 
on page 53.
---------------------------------------------------------------------------
    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.]


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