[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
ROLE OF SOCIAL SECURITY
ADMINISTRATIVE LAW JUDGES
=======================================================================
JOINT HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, COMMERCIAL
AND ADMINISTRATIVE LAW
OF THE
COMMITTEE ON THE JUDICIARY
AND THE
SUBCOMMITTEE ON SOCIAL SECURITY
OF THE
COMMITTEE ON WAYS AND MEANS
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 11, 2011
__________
Serial No. 112-67 Serial No. 112-SS8
(Committee on the Judiciary) (Committee on Ways and Means)
__________
Printed for the use of the Committee on the Judiciary and
the Committee on Ways and Means
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania DEBBIE WASSERMAN SCHULTZ, Florida
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
[Vacant]
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------
Subcommittee on Courts, Commercial and Administrative Law
HOWARD COBLE, North Carolina, Chairman
TREY GOWDY, South Carolina, Vice-Chairman
ELTON GALLEGLY, California STEVE COHEN, Tennessee
TRENT FRANKS, Arizona HENRY C. ``HANK'' JOHNSON, Jr.,
DENNIS ROSS, Florida Georgia
[Vacant] MELVIN L. WATT, North Carolina
[Vacant]
Daniel Flores, Chief Counsel
James Park, Minority Counsel
COMMITTEE ON WAYS AND MEANS
DAVE CAMP, Michigan, Chairman
WALLY HERGER, California SANDER LEVIN, Michigan
SAM JOHNSON, Texas CHARLES B. RANGEL, New York*
KEVIN BRADY, Texas FORTNEY PETE STARK, California
PAUL RYAN, Wisconsin JIM McDERMOTT, Washington
DEVIN NUNES, California JOHN LEWIS, Georgia
PAT TIBERI, Ohio RICHARD E. NEAL, Massachusetts
GEOFF DAVIS, Kentucky XAVIER BECERRA, California
DAVE G. REICHERT, Washington LLOYD DOGGETT, Texas
CHARLES W. BOUSTANY, Jr., Louisiana MIKE THOMPSON, California
PETER J. ROSKAM, Illinois JOHN B. LARSON, Connecticut
JIM GERLACH, Pennsylvania EARL BLUMENAUER, Oregon
TOM PRICE, Georgia RON KIND, Wisconsin
VERN BUCHANAN, Florida BILL PASCRELL Jr., New Jersey
ADRIAN SMITH, Nebraska SHELLEY BERKLEY, Nevada
AARON SCHOCK, Illinois JOSEPH CROWLEY, New York
LYNN JENKINS, Kansas
ERIK PAULSEN, Minnesota
KENNY MARCHANT, Texas
RICK BERG, North Dakota
DIANE BLACK, Tennessee
TOM REED, New York
Jon Traub, Staff Director
Janice Mays, Minority Staff Director
------
Subcommittee on Social Security
SAM JOHNSON, Texas, Chairman
KEVIN BRADY, Texas XAVIER BECERRA, California
PAT TIBERI, Ohio LLOYD DOGGETT, Texas
AARON SCHOCK, Illinois SHELLEY BERKLEY, Nevada
RICK BERG, North Dakota FORTNEY PETE STARK, California
ADRIAN SMITH, Nebraska
KENNY MARCHANT, Texas
--------
*Rep. Charles B. Rangel (D-NY) will serve as an ex officio member
sitting on all of the Subcommittees without voting rights in the 112th
Congress.
C O N T E N T S
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JULY 11, 2011
Page
OPENING STATEMENTS
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Courts,
Commercial and Administrative Law, Committee on the Judiciary.. 1
The Honorable Sam Johnson, a Representative in Congress from the
State of Texas, and Chairman, Subcommittee on Social Security,
Committee on Ways and Means.................................... 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 29
The Honorable Xavier Becerra, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Social Security, Committee on Ways and Means................... 30
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
Congress from the State of Georgia, and Member, Subcommittee on
Courts, Commercial and Administrative Law, Committee on the
Judiciary...................................................... 32
WITNESSES
Michael J. Astrue, Commissioner of Social Security, Social
Security Administration
Oral Testimony................................................. 35
Prepared Statement............................................. 37
Christine Griffin, Deputy Director, U.S. Office of Personnel
Management
Oral Testimony................................................. 48
Prepared Statement............................................. 50
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Sam Johnson, a Representative
in Congress from the State of Texas, and Chairman, Subcommittee
on Social Security, Committee on Ways and Means................ 4
APPENDIX
Material Submitted for the Hearing Record
Letter from Judge Richard A. Pearson, President, The Federal
Administrative Law Judges Conference........................... 76
Prepared Statement of the Honorable Randall Frye, President, the
Association of Administrative Law Judges (AALJ)................ 79
Prepared Statement of the Association of Administrative Law
Judges (AALJ).................................................. 81
Prepared Statement of Nancy G. Shor, Executive Director, and
Ethel Zelenski, Director of Government Affairs, the National
Organization of Social Security Claimants' Representatives
(NOSSCR)....................................................... 91
ROLE OF SOCIAL SECURITY
ADMINISTRATIVE LAW JUDGES
----------
MONDAY, JULY 11, 2011
House of Representatives,
Subcommittee on Courts,
Commercial and Administrative Law,
Committee on the Judiciary,
Washington, DC.
The Subcommittees met, pursuant to call, at 3:30 p.m., in
room 2141, Rayburn House Office Building, the Honorable Howard
Coble (Chairman of the Subcommittee on Courts, Commercial and
Administrative Law, Committee on the Judiciary) presiding.
Members Present from the Subcommittee on Courts, Commercial
and Administrative Law, Committee on the Judiciary:
Representatives Coble, Gowdy, Ross, Johnson of Georgia, Watt,
and Smith of Texas (ex officio).
Members Present from the Subcommittee on Social Security,
Committee on Ways and Means: Johnson of Texas, Smith of
Nebraska, and Becerra.
Staff Present from the Subcommittee on Courts, Commercial
and Adminstrative Law, Committee on the Judiciary: (Majority)
Daniel Flores, Subcommittee Chief Counsel; John Hilton,
Counsel; Allison Rose, Professional Staff Member; Ashley Lewis,
Clerk; and (Minority) Edward Salinas, Counsel.
Mr. Coble. Good afternoon, ladies and gentlemen. The
Subcommittee hearing on the ``Role of Social Security
Administrative Law Judges'' will be convened. Good to have each
of you here today. Let me give my opening statement here.
I think Mr. Johnson is on his way. Otherwise Mr. Becerra
and Mr. Johnson are here. And the other Mr. Johnson from
Georgia, I am told, is on his way down. I want to thank Sam
Johnson for his leadership on this issue, thanks to the
Chairman as well for his participation in this important
hearing. Finally, I want to thank our witnesses for their
testimony and for their attendance today.
On average Administrative Law Judges (ALJs) make $153,000
per year, including flexiplace provisions that allow them to
work oftentimes from their homes. Becoming an ALJ is
effectively an appointment for life on good behavior,
comparable to an Article III Federal judge. An ALJ can be
removed by misconduct by the Merit System Protection Board, but
oftentimes this is a lengthy process. Meanwhile the ALJ will
continue to earn his or her full salary. No doubt many, if not
most ALJs are conscientious, hardworking people who process
their dockets efficiently while giving each claimant the full
attention he or she deserves. Commissioner Astrue assures us of
that fact.
But cases like the one recently reported from West Virginia
starkly reveal how the near complete lack of accountability
offers an abundance of chances for abuse. Meanwhile it is the
claimants who suffer, not to mention the American taxpayer who,
like always, gets stuck with the bill.
In addition to these larger questions of efficiency,
accountability and professionalism in the Federal ALJ corps,
there remains the issue of SSA's backlog. Although Commissioner
Astrue assures us that SSA is making progress on discharging
its backlog, he adds that this progress will be jeopardized
without full funding from the President's fiscal year 2012
budget request.
Whenever we in the Congress confront a problem, we should
ask if it can be resolved without adding to the Federal budget
deficit. Instituting some kind of peer review among ALJs may
well be one option to consider. Creating tiers, other than a
career appointment would be another option that could be made
available perhaps.
Improving the pool of applicants from which SSA has to
choose when hiring ALJs also can go a long way, it seems to me,
toward solving or resolving the problem. I am sure Deputy
Director Griffin can speak to this issue and apprise the
Subcommittees of specifically what steps OPM is taking or will
take to address the issues raised in today's hearing.
I look forward to the witnesses' testimony and reserve the
balance of my time. I am pleased to recognize the distinguished
gentleman from Texas, Mr. Sam Johnson, for his opening
statement.
Mr. Johnson of Texas. Thank you, Mr. Chairman. I appreciate
it. I am pleased to be cochairing this hearing with my
colleague Howard Coble and his Subcommittee colleagues. And I
thank you for hosting this important event.
The Social Security and Supplemental Security Income
Disability programs are the largest of Federal programs that
provide assistance to people with disabilities, both
administered by the Social Security Administration, and only
individuals who have a disability may qualify for benefits
under either program. Social Security Disability Insurance pays
benefits to workers and their families if they work long enough
and recent enough, generally 10 years, 5 of which were in the
last 10, and paid Social Security taxes. Supplemental Security
Income, or SSI, pays benefits based on financial need and is
funded by general revenue.
According to the CBO, over $123 billion in disability
insurance benefits were paid to 10.2 million disabled workers
and their families in 2010, though the current system makes it
difficult, if not impossible to know if that is an accurate
number of Americans who are truly disabled and truly deserving.
Nonetheless, these are the numbers we have and CBO projects
that by 2021 the number of beneficiaries will increase by close
to 20 percent, to 12 million, and benefits will increase 57
percent to $193 billion.
In 2010, 6\1/2\ million disabled SSI recipients received
$41.8 billion in benefits. By 2021 CBO projects 7.1 million
disabled SSI recipients will receive $56 billion in benefits.
Request for benefits have increased with the aging of the Baby
Boomers and the recession, the latter suggesting that people in
some cases file for disability not because they are unable to
work, but because they are unable to find work.
Since 2007, disability insurance awards have increased 18
percent to 1.1 million people in 2010, while SSI disability
awards have increased 28 percent to 938,000. According to 2011
trustees report, disability program revenue will only cover 86
percent of the benefits in 2018.
At the center of Social Security's disability programs is
the disability process that determines whether claimants are
entitled to benefits. Pivotal to that process is a hearing
before an administrative law judge, or ALJ, at which many of
the difficult cases denied at early stages in the process are
newly reconsidered and awarded benefits.
The Ways and Means Subcommittee on Security has long
focused on ALJ and hearing office performance on a bipartisan
basis. A September 2008 Subcommittee hearing highlighted the
agency and agency's Inspector General's work to address hearing
office and ALJ performance. Some progress has been made.
Commissioner Astrue, who is here today, has implemented
close to 40 initiatives to boost adjudication capacity, improve
performance and increase efficiency. Also agency hiring efforts
have focused on increasing the number of ALJs and their support
staff. The waiting time for a hearing decision has been reduced
from a high of 500 days in August, 2008 to 350 days in June,
2011. Now 74 percent of ALJs are meeting their requested
threshold of 500 decisions, up from 47 percent when the request
was first made. The appeals processing statistics are posted
online.
Now the public is rightly paying attention and raising
questions about the integrity of the judges, and recent press
articles have highlighted judges awarding benefits 90 percent
or more of the time in comparison to a national average that
hovers around 60 percent, judges who decide extremely high
numbers of cases in comparison to their colleagues, awards that
are made without a hearing based on whatever medical evidence
may be in the file, disparities from office to office and State
to State where an outcome can be predicted based on the ALJ
assigned the case, and assignment of cases outside a random
rotation, raises the specter of inappropriate relationships
with counsel.
At the bipartisan request of this Subcommittee the agency's
Inspector General is investigating the most egregious of these
examples now. At a minimum these articles raise serious
questions about the fundamental fairness of this appeal system.
Our Members have been provided copies of these press
articles and, without objection, the articles will be inserted
into the hearing.
[The information referred to follows:]
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Mr. Johnson of Texas. So why do these judges get away with
this? Under the law ALJs have judicial independence, which
seems to mean they operate with little or no accountability.
Simply put, the agency can't question their decisions even if
they grant approval in most of their cases or deny most of
them.
ALJs who produce extraordinary numbers of decisions or who
do very little are hard to hold accountable. Their collective
bargaining agreement affords ALJs additional layers of
protection and the ALJ union has fought long and hard to keep
those protections in place. While the laws that protect ALJs
give the agencies the ability to pursue the most egregious
cases, it is a costly and time consuming project.
No one should have to wait months or even years longer than
their hearing decision because of the office or the ALJ the
appeal is assigned to, nor should the taxpayer have to foot the
bill. That is plain wrong. Those who aren't performing up to
expectations must be held accountable.
Social Security must work fairly for all Americans and
protect our hard earned taxpayer dollars, and we need to find
out what is going on in this program and fix it. And if current
law allows this to happen we need to change the law. Preserving
the public trust demands no less.
Mr. Coble. I thank the gentleman. I see the Chairman of the
full Committee is here, Mr. Smith, and then I will recognize
Mr. Becerra and Mr. Johnson in that order. Mr. Smith, you are
recognized for 5 minutes.
Mr. Smith of Texas. Thank you, Mr. Chairman. The first
thing to say is that this is the first joint hearing that the
Judiciary Committee has held with any other Committee this
year, and it is well worth our doing so.
Today Social Security is stretched to it the limit. There
is no margin of error for waste, fraud or abuse in our Social
Security system, but administrative law judges who work at the
Social Security Administration apparently have little
accountability for their performance.
Last May the Wall Street Journal reported on an
administrative law judge in West Virginia who awarded Federal
disability benefits in every single case, 729 all together,
that came before him in the first half of fiscal year 2011.
This judge is now on indefinite administrative leave but still
draws his full salary while not doing any work for the American
taxpayer. This case raises serious questions about how ALJs are
held accountable for their performance.
Why did we need to wait for the Wall Street Journal to
expose this case? Were there no red flags along the way? How
can we be sure that this is an isolated case and not a symptom
of a systemic problem for the entire Federal ALJ corps, 85
percent of whom work for the Social Security Administration?
In his written testimony Commissioner Astrue describes
another ALJ who also was working full-time for the Department
of Defense. Commissioner Astrue alludes to yet another ALJ who
was arrested for domestic violence. Meanwhile, SSA continues to
struggle to gain control of its backlog. More than 746,000
cases currently are pending. Last month it was reported the
number of pending cases increased by another 5 percent in just
1 month.
I hope that today we can have a frank discussion about
whether more money is the only answer or if other reforms would
solve the problem more efficiently. Commissioner Astrue insists
that most ALJs are dedicated and conscientious public servants,
but he acknowledges that there are a certain number who under
perform, approve or deny a suspiciously high number of cases or
otherwise misbehave in office.
Perhaps the Office of Personnel Management can shed some
light on this issue. As Deputy Director Griffin explains in her
testimony, the OPM accepts applications, administers the ALJ
exam, and maintains the register from which agencies hire their
ALJs. But according to Social Security Commissioner Astrue,
more than one-fourth of administrative law judges assigned to
the Social Security Administration do not meet even their
minimum annual benchmark of deciding 500 cases. This may be
progress from the abysmal levels recorded in 2007 when far
fewer administrative law judges met their benchmarks and
claimants sometimes had to wait 46 months, almost 4 years, for
their claims to be decided, but the Social Security
Administration has still not made enough progress. Last year a
claimant still had to wait 27 months, well over 2 years.
To clear the remaining backlog in cases, Commissioner
Astrue states that he needs increased funding to hire more
administrative law judges. Ms. Griffin states, ``It is the
responsibility of the agencies to hire ALJs,'' but agencies can
only hire administrative law judges from OPM's register. It is
incumbent upon OPM to properly screen applicants and maintain
the administrative law judge register.
Commissioner Astrue's agency will pay OPM $2.7 million this
year for personnel services related to administrative law
judges. The American taxpayer has the right to know whether the
Social Security Administration is getting its money's worth
from OPM.
Any human system is only as good as the people running it.
If the wrong people become administrative law judges, then we
shouldn't be surprised when the system fails.
I want to thank Congressman Johnson, my Texas colleague and
Chairman of the Social Security Subcommittee, for his efforts
on this important issue. And believe me, he has been talking to
me about this issue for months, if not years. And I also want
to thank the Chairman of this Committee, Mr. Coble, for trying
to address this issue in today's hearing, and I yield back.
Mr. Coble. I thank the gentleman. The Chair now recognizes
the distinguished from California, Mr. Xavier Becerra, who,
Sam, I told you that I was pretty sure you used to be an
alumnus of the Judiciary Committee. Good to have you back with
us, Xavier. You are recognized for 5 minutes.
Mr. Becerra. Mr. Chairman, it was always a pleasure to be
in this room, and I am pleased we are doing this hearing. So to
you, and to Chairman Johnson, the Chairman of my Subcommittee
on Social Security, I say thank you to the two of you for this
hearing. I am pleased to join my colleague, the ranking
Democrat on the Committee on the Judiciary side, Mr. Johnson,
as well.
Mr. Chairman, Social Security disability benefits are an
earned benefit that is a vital source of income for severely
disabled workers in this country. Only workers who pay into
Social Security are eligible to receive these disability
benefits. These benefits are modest, less than $13,000 a year
for the average beneficiary. For more than 4 of the 10 disabled
workers who are getting the benefits, those benefits provide
almost their entire income. Three-quarters of disabled workers
live in families with total family income of less than $15,000.
That is a statistic that is a little dated from 2001 but one of
the best measures that we have, and some 20 percent of those
individuals are living below the poverty level.
Although it often takes the Social Security Administration
longer than is reasonable to make a decision, our Social
Security Disability Program generally ensures that disabled
workers get the benefits they have earned and that those who do
not qualify are denied the benefits. Social Security has
extremely strict eligibility rules.
Last year SSA made decisions on approximately 3 million
initial applications for disability benefits and reviewed 1.4
million appeals of denied claims, including 620,000
determinations by SSA's independent ALJs, the administrative
law judges. About 35 percent of applicants were awarded
benefits based on their initial application. Of those who are
denied, historically about half accept the decision and do not
file an appeal and it ends there. Sixty-one percent of those
who do appeal were able to present evidence proving that they
were entitled to benefits.
Without Social Security's independent appeals process,
those individuals and their families would have been denied
benefits that they had earned through their work. The remaining
39 percent were not awarded benefits. Of the people who apply
for disability benefits each year, therefore, about half
eventually are awarded benefits. Only about half of those who
claim benefits get them.
As the backlog of disabled workers waiting for appeals
hearing shows, budget cuts for SSA have consequences. The
latest round of Republican budget cuts will have consequences,
too. One particular problem area in the Social Security
Disability Program has been the long delays claimants
experience while waiting to hear if they will receive
disability benefits, particularly for those who appeal.
SSA has been able to use the resources our Committee and on
the Ways and Means side worked on a bipartisan basis to
provide, starting in 2008, to significantly reduce waiting
times for disability appeals. Waiting times have dropped from a
high of 535 days delay in 2008 to an average of 354 days in May
2011. Instead of helping SSA continue reducing waiting times,
my colleagues on the Republican side this year chose to cut
SSA's operating budget by $1 billion below what the agency
needed to keep up with incoming claims and continuous efforts
to reduce wait time. I am increasingly worried that these cuts
will undo the hard won progress and worsen the hardship and
suffering of very ill and disabled people.
As this chart will show, already the Social Security
Administration has had to abandon its plan to open eight new
hearing offices this year, offices that could process thousands
of appeals to ensure that deserving applicants are paid the
benefits they are due. SSA is also losing personnel who help
process and approve claims because those budget cuts mean SSA
can't replace workers who retire or otherwise leave.
We should be very cautious about making changes that might
deny claimants due process, especially since we have mechanisms
in place that can address those ALJs who are found not to be
complying with SSA's rules and regulations. SSA today has the
authority to remove an ALJ who is not complying with the rules
and regulations. Commissioner Astrue has increased SSA's use of
the Merit System Protection Board to remove judges that
flagrantly violate the rules, as is appropriate, and we applaud
you for that, Mr. Commissioner.
Last month Chairman Johnson and I wrote to the Social
Security Inspector General asking him to review SSA's
management and oversight of ALJs, with a particular focus on
judges whose productivity or decision making appears to differ
greatly from their peers. Rather than rushing to judgment based
on news reports, we should wait for the results of that review.
We also asked the Inspector General to evaluate whether SSA
is effectively using management controls to ensure that ALJs
follow agency policies as they are required to do. I know we
are all looking forward to receiving those recommendations on
how we can remove the anomalies in an otherwise fundamentally
effective Social Security Disability system.
Mr. Chairman, I look forward to the testimony of the
witnesses, and I yield back the balance of my time.
Mr. Coble. I thank the gentleman. The Ranking Member for
our Subcommittee is not here, but Mr. Johnson, the
distinguished gentleman from Georgia, will fill in for Mr.
Cohen. You are recognized for 5 minutes.
Mr. Johnson of Georgia. Thank you, Mr. Chairman. Social
Security is the bedrock of the social safety net that Americans
have been committed to providing for one another since the New
Deal. That commitment reflects the kind of people we are and
our long-standing and fundamental values that, alongside our
commitment to individualism and self-reliance, is our belief
that we are our brothers and sisters' keepers.
The guarantees of social insurance unfortunately have come
under attack, severe attack over the last 30 years by those who
believe that all the risks in life should be borne by ordinary
people and that government has no obligation to mitigate those
risks, even to a minimal extent. Such a Darwinian view is easy
to hold when one has the wealth and resources to mitigate one's
own life risks. Most people, however, are not lucky enough to
have such resources. Most people will need what we have
prepared for them, which is Social Security and other social
insurance programs.
While the focus of today's hearing is on the role of
administrative law judges, or ALJs, at the Social Security
Administration, I feel that this hearing is really just a back
door attempt to undermine Social Security by those opposed to
having a social safety net. The ALJs are being used as whipping
boys and girls.
We should see this hearing in light of the majority's
broader anti-social safety net agenda, especially as
illustrated by Representative Paul Ryan's budget that
eliminates Medicare and by the majority's repeated attempt to
push for cuts to social insurance programs during the debt
ceiling negotiations.
What these opponents of the social safety net may not
accomplish outright, they seek to do on a piecemeal basis, in
this case by pushing to undermine the independence of ALJs from
the political pressure to deny benefits, including those to
deserving claimants.
ALJs decide the appeals from denials of Social Security
disability benefits. As such, they are bulwarks against
politically motivated, mistaken or otherwise unjustified
denials of disability benefits by the SSA. To ensure that
claimants who appeal a denial of disability benefits are given
due process, ALJs are insulated from potential political
pressure to deny benefits. This insulation comes in the form of
certain salary and tenure protections that are not afforded to
other employees of SSA.
It is for this reason that any attempt to undermine the
independence of security ALJs, including proposals to replace
them with less independent hearing examiners, should be met
with strong skepticism. In addition to the measures designed to
ensure their decisional independence, ALJs are distinguished
from other SSA employees in other ways that ensure the quality
and fairness of their decisions.
For instance, ALJs must be licensed lawyers, have a minimum
of 7 years of administrative law or trial experience before
local, State or Federal administrative agencies, courts or
other adjudicative bodies. These professional qualifications,
these requirements further help ensure that decisions
concerning disability benefits are approached with analytical
rigor and legal sufficiency and are not based on politics or
ideology.
I also find it telling that the majority is training its
guns on Social Security Administration ALJs at the very moment
that it is also seeking to undermine health and safety
regulations. Lax regulation of workplace, environmental, food
and drug, and financial safety and security potentially give
rise to greater numbers of Social Security disability claims.
If the majority has its way, people will be less protected from
harm in the first instance because of a lack of adequate
regulation, and they will be less protected should harm befall
them because there will be a weakened safety net to catch them
if they fall.
The majority's message to the American people is you are on
your own if you get injured at work, get sick because of
contaminated food, or lose your job because of reckless
corporate behavior.
Finally, I am deeply concerned that the minority was not
given an opportunity to invite a witness. At a minimum, a
representative of the Social Security ALJs should have been
invited in order for Members of our respective Committees to
have a more complete picture on the issues before us. The
majority has been a little too cute with its claim that the
witnesses represent the Administration.
With all due respect, the reality is that Social Security
Commissioner Michael Astrue is a George W. Bush appointee
serving out a fixed 6-year term. His views reflect the
political agenda of the Republican party and others who are
hostile toward the idea of a social safety net.
Everyone observing this hearing should bear those facts in
mind. The backlog in disability benefits determinations is
troubling. This backlog, however, may stem more from a lack of
adequate resources than from delinquent ALJs. When Congress has
given SSA more resources, the backlog has been reduced. I fear
that in the current political atmosphere that fetishes budget
cuts, above all else cuts in resources to Social Security
Administration, will result once again in an increased backlog
of cases.
Ultimately no one wants bad ALJs who do not do their jobs.
SSA, however, already has tools at its disposal to take adverse
employment actions against ALJs for cause, and I wonder just
how many times that has been done.
I view the thrust of today's hearing with great concern for
the reasons I have outlined, and so should you.
I yield back.
Mr. Coble. All other Members may submit opening statements
for the record. Mr. Johnson, I am told that the Democrats were
asked to invite a witness but that was declined. Much of what
you say I don't embrace, but you and I can talk about that
another day.
The best laid plans of mice and men oftentimes go awry.
Today is no exception. I did not know I was scheduled to Chair
this hearing until Friday afternoon. That was my fault, no one
else to blame. But Mr. Smith has given me an excused absence
when I have to abruptly depart subsequently, and I thank the
distinguished gentleman from South Carolina, Mr. Gowdy, for
agreeing to assume the gavel when that time comes.
We are pleased to have two outstanding witnesses before us
today. Michael Astrue is Commissioner of Social Security and
has had a distinguished career in both public and private
sectors. He is an honors graduate of Yale University and the
Harvard School of Law. After law school he clerked for Judge
Walter Skinner of the U.S. District Court in Massachusetts. Mr.
Astrue has a lengthy career in public service, serving as
Acting Deputy Assistant Secretary for Human Services
Legislation at the U.S. Department of Health and Human
Services, Counselor to the Commissioner of Social Security,
Associate Counsel to Presidents Reagan and George H.W. Bush,
and General Counsel of the U.S. Department of Health and Human
Services. We welcome Mr. Astrue and look forward to his
insights.
Ms. Christine Griffin is Deputy Director of the U.S. Office
of Personnel Management where she manages the Federal
Government's 1.59 million employees. Prior to OPM, Ms. Griffin
was a Commissioner of the U.S. Equal Opportunity Commission and
has worked in labor and employment law positions in both public
and private sectors. Ms. Griffin earlier served as the attorney
adviser to the former Vice Chair of the EEOC. Ms. Griffin
earned her undergraduate degree from the Massachusetts Maritime
Academy and her law degree from the Boston College School of
Law. Ms. Griffin is also a veteran of United States Army. We
appreciate her willingness to share her expertise with the
Subcommittee today.
Commissioner, we will start with you. And if you witnesses
could confine your statements to as near 5 minutes as possible,
there will be a green light that assures you the ice on which
you are standing is thick. The light then turns to amber and
then the ice becomes less thick. If you could wrap up when the
red light appears, we would appreciate that. Good to have you
both with us.
Commissioner, you may proceed.
TESTIMONY OF MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL
SECURITY, SOCIAL SECURITY ADMINISTRATION
Mr. Astrue. Thank you, Chairman Smith, Chairman Johnson,
Chairman Coble, Ranking Member Becerra, and Members of the
Subcommittees. Thank you for this opportunity to discuss what
the Supreme Court has called probably the largest adjudicative
agency in the Western world.
This year about 1,400 administrative law judges will decide
about 832,000 disability appeals. When I first testified before
the Social Security Subcommittee on my second day as
Commissioner, our backlog situation was bleak. Backlogs had
risen steadily throughout the decade, and the reform initiative
that I inherited, known as Disability Service Improvement, or
DSI, was aggravating the problem rather than helping it.
We took swift action to end the failures of DSI and to
accelerate its few successes. Then we went to work to manage
our hearing operations nearly 10,000 employees with
unprecedented rigor. As a result, we have reduced the time for
deciding a hearing request from an average of 532 days in
February 2008 to 353 days last month. We have achieved this
success despite recent budget constraints and almost 1.5
million more applications for benefits caused by the economic
downturn.
Hundreds of small but important initiatives, including
management information systems, uniform business processes,
smarter use of support staff, better training, better
allocation of resources, and decisional templates have steadily
brought us near our original goal of an average of 270 days to
decide a case.
An essential element of our progress has been improved
judicial productivity. Since 2007, when Chief Judge Cristaudo
issued his influential memo establishing 500 to 700 decisions
per year as our expectation for each judge, our judges have
improved from 2.19 decisions per day in fiscal year 2007 to
2.43 decisions per day so far this fiscal year. In fiscal year
2007, 46 percent of our judges met this expectation. In fiscal
year 2010, 74 percent met it, and we expect to do slightly
better this year.
Let me echo Mr. Coble and emphasize that most of our ALJs
responsibly handle their cases. However, recent Wall Street
Journal articles by Damien Paletta have provoked constructive
debate about an issue I have raised several times before
Congress--the small number of judges who do not properly apply
the statute.
It is critical that all Members of Congress understand what
our Subcommittee understands. We have not taken action against
judges based strictly on allowance or denial rates because
Congress has put great weight on an ALJ's qualified decisional
independence.
The Administration is open to exploring options for
addressing these situations in consultation with ALJs, other
Federal agencies, and other stakeholders. Areas to explore
could include examining statistical evidence showing very
significant variations between the decisions of a small number
of ALJs and the decisions of other agency ALJs, whether in the
direction of approving or denying claims.
We are doing what we can under the current law. With the
promulgation of our time and place regulation, we have
eliminated arguable ambiguities regarding our authority to
manage scheduling, and we have taken steps to ensure that
judges decide neither too few nor too many cases. By management
instruction, we are limiting assignment of new cases to no more
than 1,200 annually.
On my watch we have raised the standards for judicial
selections. Four years ago, we had an OPM list of judicial
candidates that was 10 years old, and nobody was doing
background checks on candidates. The 685 judges we have hired
since 2007 using a more rigorous internal hiring approach have
been productive and respectful of the statute. We have not had
a single case of serious misconduct by any of these new judges.
Insistence on the highest possible standards in judicial
conduct is a prudent investment for taxpayers, especially since
these are lifetime appointments.
Our efforts continue. I understand that later this month,
we expect to file a termination action with the Merit Systems
Protection Board based on the poor performance of an ALJ who is
deciding very few cases.
I know that you understand that I cannot comment on pending
investigations and personnel actions, but I am happy to answer
any other questions that you may have.Thank you very much.
[The prepared statement of Mr. Astrue follows:]
__________
Mr. Coble. Thank you, Commissioner. You beat the red light.
Kudos to you for that.
Ms. Griffin, good to have you with us. You may proceed.
TESTIMONY OF CHRISTINE GRIFFIN, DEPUTY DIRECTOR,
U.S. OFFICE OF PERSONNEL MANAGEMENT
Ms. Griffin. Thank you. Chairman Johnson, Chairman Coble,
Ranking Member Becerra, Mr. Johnson, and Members of the
Committee. I am pleased to have the opportunity to appear
before you this afternoon to discuss OPM's role in the hiring
process used for the administrative law judges.
The administrative law judge function was created by the
Administrative Procedure Act of 1946 to ensure fairness in
administrative proceedings before Federal Government agencies.
The Federal Government employs administrative law judges,
called ALJs, at a number of agencies across the Federal
Government.
As of December 2010 there were 1,704 ALJs assigned to
Federal agencies across the Federal Government. According to
statistics compiled by OPM, the Social Security Administration
employs 85 percent of all the ALJs.
Consistent with the Administrative Procedure Act (APA) and
Civil Service law, OPM is responsible for establishing ALJ
qualifications, establishing classification standards for
determining ALJ pay, developing and administering the ALJ
examination, and maintaining a listing of qualified ALJ
candidates for ALJ employment by Federal agencies. OPM also
approves noncompetitive personnel actions affecting current
ALJs, such as promotions.
By law OPM cannot delegate the ALJ examination to any other
agency. The qualification standards developed by OPM prescribes
minimum requirements for ALJ positions. In order to be
considered, an applicant must meet both the licensure and
experience requirements and place among the more highly
qualified applicants at the conclusion the first segment of the
examination.
Applicants who are among the more highly qualified group
must then complete additional components of OPM's ALJ
competitive examination. The current qualification
requirements, which were updated in 2007, are defined in the
qualification standard for administrative law judge positions.
Periodically open periods for the ALJ examinations are
posted by a job opportunity announcement on OPM's Web site. The
examination has been administered three times since 2007. The
last general administration of the ALJ examination occurred in
2009 to 2010. Further, OPM continues to periodically administer
the examination to 10 point preference eligible veterans upon
request.
It is the responsibility of the agencies to ultimately hire
the ALJs. Agencies must make selections from the certificates
that are consistent with the applicable merit principles and
veteran's preference rules regarding the order of selection.
However, it is OPM's responsibility to ensure that the ALJ
register maintains a sufficient number of qualified ALJ
applicants that meet the projected hiring needs of agencies,
including giving agencies an adequate number of choices for
each position to be filled.
Once an ALJ is appointed by an agency, the ALJ receives a
career appointment and is not subject to a probationary period.
The hiring agency is further prohibited by statute and
regulation from rating the job performance of the ALJ,
including from awarding the ALJ monetary awards, honorary
awards, or any other kind of incentive. The restrictions on
agency performance ratings are in place in order to ensure that
the ALJs are not influenced by an agency when performing their
judicial functions.
Nonetheless, ALJs not unaccountable to their agency.
Misconduct by an ALJ is subject to sanction. And an agency may
take actions against an ALJ for good cause as established and
determined by the Merit System Protection Board.
Members of the Subcommittee, thank you for having me here
today to explain the role of OPM in the selection of ALJs, and
I will be happy to address any questions you may have.
[The prepared statement of Ms. Griffin follows:]
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Mr. Coble. You even beat the amber light.
Ms. Griffin. I was going fast.
Mr. Coble. I appreciate that. Ladies and gentlemen, we try
to comply with the 5-minute rule against ourselves as well, so
if could you keep your questions tersely.
Commissioner, it gets one's attention when an ALJ is
granting on the one hand or denying on the other hand a
disproportionate number of claims in his or her cases. How do
you track this, A? And B, what do you with the data?
Mr. Astrue. Mr. Chairman, we have better tracking than we
had before because we use more precise management data than we
did in the past. We use this primarily for training initially
and then for counseling if the training does not work. Our
hands are substantially tied in terms of using a lot of that
data for discipline by a 1998 regulation that in my
understanding, was done in large part at the insistance of the
Congress at the time. So I can't use statistical deviation very
easily as a basis for removal or even to look more closely at a
judge. So we use that data now the best way we can, which is
for training and then for counseling. And I think it has been
somewhat effective.
Mr. Coble. I thank you for that.
Since 85 percent of the ALJs in the Federal Government are
employed by SSA, would it be helpful to you in your opinion,
sir, if OPM created a separate exam and ALJ register for SSA?
You can weigh in on this, too, Ms. Griffin.
Mr. Astrue. I don't think a separate exam is necessary. I
do think that there needs to be better consultation between OPM
and SSA than in the past. It is better under Director Berry,
but at the staff level when you try to engage, typically we
hear, well, there is litigation risk, and we are not allowed to
discuss those things. And it is frustrating historically to
have 85 percent of the administrative law judges and
essentially no input into how they are rated and selected.
Mr. Coble. Ms. Griffin, you want to be heard on that?
Ms. Griffin. I would just say, too, I don't think it is
necessary to have a separate exam. I think what we are looking
for is a register of really good people that can be used across
a variety of Federal agencies. And as the Administrative
Procedure Act stated and was passed, it was to support the fact
that we could have independent decision makers at the agencies
so that we were being fair. So I agree that I don't think it is
necessary.
And I do know that Director Berry and Commissioner Astrue
have had several talks since Director Berry has been there. And
he is committed, as I am, to continuing discussions. We do
every time the exam is open and we go through the process of
trying to evaluate and get really better at job analysis of
ALJs so that we are making sure the exam reflects what is
needed. We have consulted with the Commissioner and other
people at Social Security and will continue to do so.
Mr. Coble. Thank you.
Ms. Griffin. We are in the process of doing that again
right now.
Mr. Coble. I thank you for that.
Ms. Griffin, let me ask you this. When an ALJ is placed on
administrative leave, why would it not be fair for him or her
not to be paid during this time but rather to receive backpay,
including interest, maybe even attorney's fees if he or she
prevails before the MSPB?
Ms. Griffin. I actually don't--I don't know the answer to
that question. It was interesting to note that the ALJ in
question you referred to is being paid while on administrative
leave. I don't know exactly why that is and what rule governs
that, but I would be happy to find out.
Mr. Coble. You all think about that and get back to us.
[The information referred to follows:]
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Mr. Astrue. If could I just address that briefly, Mr.
Chairman. I actually would have some qualms about taking salary
away on administrative leave. Administrative leave in these
situations is usually for a brief period of time when you are
trying to get a handle on the situation. You have found out
there is a problem, and you are trying to freeze the situation
to decide what to do. It is not uncommon for someone to be put
on administrative leave and then we discover it is a false
alarm.
I do think something that the Committee should be
considering very closely is that once we have done that and we
have made a decision that someone should be removed, for judges
but not for other employees, the whole time an MSPB process is
continuing, which can take 2 to 3 years, full salary is paid
even after a removal order at the first level of determination.
Mr. Coble. I thank you, sir.
I want my colleagues to know I just barely missed the red
light. I almost beat it. You all set a good pattern. Mr.
Johnson is recognized for 5 minutes.
Mr. Johnson of Texas. Thank you, Mr. Chairman. Commissioner
Astrue, it is my understanding the Administrative Procedure Act
protects what an ALJ decides to do because of judicial
independence. So whether a judge grants approvals in most cases
or denies most claimants or handles too few or in some cases
well above the average, the APA prevents Social Security from
questioning their decision making, is that true?
Mr. Astrue. Mr. Chairman, I think it is a somewhat
debatable proposition. I think that our authority is not 100
percent clear. In fact as a technical matter, APA decisions in
the court don't apply to us because we are not under the APA.
The courts have ruled in the past that the APA was modeled
after the Social Security Act and, to a large extent, the
systems are parallel and the same rules should apply, but our
decisions are made under the Social Security Act.
Mr. Johnson of Texas. And you and I have talked about my
concerns about low producing and overly generous ALJs for a
long time. And our staffs have been working together to
determine the impact on the Disability Insurance Program. Of
judges whose allowance rates are above 85 percent and judges
whose allowance rates are below 20 percent, would you discuss
your staff's findings and tell me what effect the union has on
that?
Mr. Astrue. Sure, Mr. Chairman. We had--and I apologize for
the lateness of this--we had some technical issues, and right
before the hearing, the actuaries completed those numbers in
response to your request. We will be attaching those for the
record. But by the standards that you indicated, the 20 and the
85 percent, roughly the savings to the taxpayers on the less
generous side is about $200 million a year. The cost on the
more generous side is approximately a billion dollars annually.
We have it in all its complex glory for you, and we will attach
it for the record. But the short version is that there is a
substantial cost to the trust funds if you look at it with the
standards that you asked us to look at it at.
[The information referred to follows:]
__________
Mr. Johnson of Texas. Since people don't appeal awards
there is no way to know which appeals were wrongly awarded, is
there?
Mr. Astrue. As of fairly recently, we are looking at them
and are using that data for training and counseling, but in
terms of reversing decisions you are correct, Mr. Chairman.
Mr. Johnson of Texas. Do you look at every decision? Review
it, somebody?
Mr. Astrue. Not me personally. We look at a statistical
sample from the point of view of trying to identify patterns of
disconnect with the law. Again, that is fairly recent, and we
only look at a relatively small sample. We don't have the
resources to look at very many, but we do look to find the most
extreme cases of noncompliance with the statute and try to
address them through training and then, if training doesn't
work, through counseling.
Mr. Johnson of Texas. When a new judge is hired can you put
them on probation? If not, why not?
Mr. Astrue. No, the statute doesn't allow me to do that,
Mr. Chairman.
Mr. Johnson of Texas. Does OPM do background checks on
candidates before they are placed on the register for you to
interview and have you ever asked them to do that?
Mr. Astrue. The answer to the first question is no, they
don't. Yes, we have asked them to do it in the past. We have
gone ahead and done it on our own.
Mr. Johnson of Texas. What is their response?
Mr. Astrue. We have actually used contractors to do it as
opposed to having agency officials do it.
Mr. Johnson of Texas. What was their response to you?
Mr. Astrue. They declined to do it.
Mr. Johnson of Texas. You want to respond?
Ms. Griffin. This is in preparation for this hearing, this
is something that we looked at. And we have right now, I think
there are approximately 900 ALJs on the list. So in order to do
a suitability background check on every single one of these
people when the majority of them aren't going to end up being
ALJs given the number that are hired each year is cost
prohibitive. It would actually cost the Commissioner and all
the other agencies that pay for this service a lot more. What
we do suggest and what we do with all Federal employees is that
they have a suitability check when they are offered the job. So
the offer is always conditional on a background check of some
type, depending on the level of work they are going to be
doing, all the way up to--depending on the type of clearance we
need. So I think the appropriate time to do is before they are
offered and before they actually begin the job.
Mr. Astrue. Just to be clear, we do not in the agency check
everyone on the list. It is only when they are sent to us by
OPM for potential hire. It is at that time when we do the
background check.
Mr. Johnson of Texas. Thank you.
Mr. Gowdy. [Presiding.] Thank you. The gentleman from
Georgia, Mr. Johnson.
Mr. Johnson of Georgia. Thank you, Mr. Astrue, there have
been a number--or there has been some additional funding
provided by earlier Congresses and based on that additional
funding and very hard work by SSA judges and hearing office
staff, the wait times have gone down from a peak of 18 months
and that was in 2008 to just below the 1 year mark last month;
is that correct?
Mr. Astrue. Yes.
Mr. Johnson of Georgia. And unfortunately Republicans this
year chose not to continue helping SSA bring down wait times by
cutting the agency's budget by $1 billion below what was
requested to keep up with incoming claims and drive down
waiting times. What will be the impact across the agency of
this kind of cut?
Mr. Astrue. Well, certainly this year halfway through the
fiscal year we started implementing----
Mr. Johnson of Georgia. This is going to hurt, isn't it, in
terms of your ability to quickly----
Mr. Astrue. I am trying to get to that, Mr. Johnson. Yes,
it has hurt. As one of the Members, I don't remember who
mentioned--I think it was Mr. Becerra--we have canceled office
openings, we have closed the McLean case assistance center, and
that is in the area which is our number one priority. I have
heard complaints from many of you because we closed remote
offices.
Mr. Johnson of Georgia. I don't want to go that far now
because I only have 5 minutes and I don't want you to
filibuster me.
Mr. Astrue. I am not filibustering you. I am trying to be
responsive, Mr. Johnson.
Mr. Johnson of Georgia. Let me ask this question. Have you
noticed a tsunami of ALJs recently who seem to go too far in
allowing awards or who are nonproductive in terms of low
producers?
Mr. Astrue. We are actually as----
Mr. Johnson of Georgia. Has there been an avalanche or has
it been just a trickle?
Mr. Astrue. Well, in fact there has been slight improvement
in both categories and I think a lot of that is because we have
hired 685 ALJs on my watch. And if you look at the performance
of those 685, there are fewer of them at the extremes in
decision making, and there are fewer of them on the
nonproductive end. So I think it bears out what I said in my
testimony, committing to excellence----
Mr. Johnson of Georgia. I am sorry.
Mr. Astrue. It is a better product.
Mr. Johnson of Georgia. Sorry for interrupting. I did want
to just continue with my questions. So we are having a hearing
on ALJs today and it appears to be no real problem that we
should be having a hearing on; is that fair to say?
Mr. Astrue. I think if you look at this historically, this
is an issue that has been periodically before the Congress for
35 years.
Mr. Johnson of Georgia. It----
Mr. Astrue. It has been a source of concern of Members of
both parties for a long period of time.
Mr. Johnson of Georgia. We should not cause any panic among
the public insofar as the abilities of our ALJs is concerned
handling the Social Security claims. There is no real need to
make them a whipping boy or girl, is it?
Mr. Astrue. I have never made anyone a whipping boy or a
whipping girl. I think what is important is that judges perform
an important public function. They should work hard, they
should behave properly, and they should decide cases in
accordance with the law.
Mr. Johnson of Georgia. How many of those types of judges
who have not met that benchmark have you had to compel to go
into training or counseling during your tenure?
Mr. Astrue. Well, during my tenure we have disciplined 58
judges.
Mr. Johnson of Georgia. Fifty-eight have been disciplined
out of 85 percent of 1,704?
Mr. Astrue. When I first started, we had about a 1,000
ALJs. We have about 1,400 now.
Mr. Johnson of Georgia. And they were disciplined for being
excessive in terms of one way or the other which way they
ruled?
Mr. Astrue. No, we haven't disciplined any judges for that.
Mr. Johnson of Georgia. Disciplined because of failure to
decide cases?
Mr. Astrue. We have had some disciplined for failure to
decide cases, yes.
Mr. Johnson of Georgia. About how many?
Mr. Astrue. After repeated warning, one certainly comes to
mind, and I will answer for the record how many others fell in
that category.
[The information referred to follows:]*
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original transcript.
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__________
Mr. Johnson of Georgia. And the others were for things
other than the substance of the cases that they decided?
Mr. Astrue. We haven't disciplined any judges yet on the
substantive cases.
Mr. Johnson of Georgia. Thank you.
Mr. Gowdy. I thank the gentleman from Georgia. The Chair
now recognizes the gentleman from Nebraska, Mr. Smith.
Mr. Smith of Nebraska. Thank you, Mr. Chairman.
Commissioner, you have asked the ALJs to make approximately 500
to 700 decisions every year, and why would you say that it was
necessary to establish that expectation?
Mr. Astrue. We decided that you can't do everything by
rules and directives, that a part of change is cultural change.
And so one of the interesting things about this very effective
memo is that there are no sanctions attached to it. So the
combination of saying this is what we expect and being much
more open about performance, I think a significant number of
judges to their credit said, I am being challenged by the
Commissioner to do better, and I am going do better, and I
applaud those judges who have done that.
Mr. Smith of Nebraska. So how would you describe the
analysis that the agency used in deciding on that number--those
numbers?
Mr. Astrue. We had old data that I don't think was very
relevant that suggested that a number a little bit below 500
might be appropriate. We relied on the professional judgment of
our management judges saying, among the people who are doing
the best, what are they doing, what is a reasonable
expectation? We relied heavily on former Chief Judge Frank
Cristaudo and decided that 500 to 700 cases as a benchmark was
a fair and reasonable benchmark.
Mr. Smith of Nebraska. Okay. So, if my math is correct,
approximately 350 judges are not meeting the expectation?
Mr. Astrue. Yes.
Mr. Smith of Nebraska. And what do you think is necessary
to ensure that the expectations can be met?
Mr. Astrue. There are some judges who haven't met the 500
but seem to be trying in good faith and are close. There are
some that have had health or other issues that are reasonable
excuses. We have, I believe, 118 judges who are eligible for
reduced time because they are union representatives.
If you look at the few judges apart from those categories,
who are not fully carrying their weight, it is a relatively
small number, but we will be taking an increasing amount of
action there. We have clarified our regulatory authority with
the time-and-place regulation. And, as I indicated in my
testimony, we will be filing shortly against a judge purely for
nonperformance based on the total lack of productivity.
Mr. Smith of Nebraska. Okay. Now, their compensation is
based on a salary schedule type of approach, is that accurate?
Mr. Astrue. Yes, that is right.
Mr. Smith of Nebraska. And so it is conceivable that some
judges would be paid the same as those they supervise?
Mr. Astrue. Yes, that is right. There is pay compression
there, and I think that is an issue that OPM and the Congress
should be considering. Because, right now, there is no
incentive to be a management judge. And believe me, there is a
lot of heartache, I was a general counsel for over 10 years in
government and outside government. There is a lot of heartache
managing lawyers in any area. And I think that some
differential for the added management responsibilities is an
appropriate issue to consider.
Mr. Smith of Nebraska. And what, specifically, do you think
would work that we could implement via statute or however?
Mr. Astrue. My understanding is that it may require a
statutory change. So that is one of the things where we would
like to work with OPM and with you, the Members of Congress, to
see if there is a better way moving forward.
Mr. Smith of Nebraska. Okay. All right. Thank you.
I yield back.
Mr. Gowdy. The Chair thanks the gentleman from Nebraska and
recognizes the gentleman from California, Mr. Becerra.
Mr. Becerra. Thank you for your testimony here.
Commissioner, thank you for the work that you have been
doing to try to address this issue of outlier judges. And I
hope that we are able to hear soon the results of some of these
investigations and examinations that are under way so we can
deal with that.
I also know that a lot of these judges are under extreme
stress. They are dealing with a huge number of cases on a daily
basis that they must dispose of and do so in a not just
reasonable way but in a legal way.
I know that you say in your testimony, your written
testimony, you mention that your number-one priority is trying
to relieve this backlog. And I know you have made some
progress. You state specifically--I am quoting you--
``Eliminating our hearings backlog and preventing its
reoccurrence remains our number-one priority.''
You go on to cite on page 4 of your testimony, ``Due to the
economic downturn and the aging of the baby boomers, our
workloads have been skyrocketing. We received 130,000 more
hearing requests in 2010 than we received in 2008, and we
expect to receive 114,000 more requests in FY 2011 than we did
in FY 2010. Without our hearing backlog reduction plan, our
national average processing time would be approaching at least
600 days and we would be well on our way to 1 million people
waiting for a decision.''
Now, we all remember the bad old days back in 2005, 2006,
2007. In your testimony, you go on to say, ``In 2007, we had
claimants who waited for a hearing decision for as long as a
staggering 1,400 days.'' I don't think any of us wants to go
back to those days again.
You then go on in your testimony on page 6 to say,
``However, to continue our progress, we need Congress' help. We
must receive full funding of the FY 2012 President's budget
request,'' which, by the way, is $12.5 billion. Let me repeat
your words: ``We must receive full funding of the FY 2012
President's budget request.''
You go on to say, ``Unless Congress provides us with the
President's budget, we will not be able to meet Congress' goal
and our commitment to the American public to eliminate the
hearing backlog in 2013. The gains that we achieved will
vanish. The additional funding we received in recent years was
critical to achieving our success to date.''
Now, I mentioned previously that you got more money in
2008, you got more money, much of it through the economic
recovery package in 2009 for 2010 as well. But last year, your
budget was cut from what you needed, a billion dollars less.
Now, you have done, I don't know how, but an admirable job of
doing without that billion dollars that you needed. I am
hearing you now that you are saying, we got to get what the
President said, 12.5 billion.
Now, I know you had to spend some of your reserve money in
order to boost up the amount that you got from Congress for
2011 funding. That means you have less money in reserve to do
some of those things that sometimes you are able to do because
you have the reserve.
Mr. Astrue. Actually, Congress took the reserve money away.
So we don't have that anymore either.
Mr. Becerra. That is correct. The 2011 budget also took
from you several hundred million dollars.
The results? Well, you have mentioned the eight offices,
hearing offices, that you were planning to open--no longer. I
suspect that if you don't get the money that the President has
requested on your behalf, you likely will have to look at a
hiring freeze?
Mr. Astrue. We have been in a full hiring freeze for this
entire fiscal year. We actually started a substantial hiring
freeze even before the start of the fiscal year, being
concerned that----
Mr. Becerra. Furloughs? Will you have to consider
furloughs?
Mr. Astrue. Well, we were very close. In April, we believed
that we were looking at 8 to 12 furlough days.
Mr. Becerra. Had you not used some of your reserves to
cover some of your expenses, would you have had to consider
furloughs?
Mr. Astrue. I don't want to make a mistake on an important
question. Let me supply that analysis for the record.
Mr. Becerra. Okay.
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Mr. Becerra. Is it possible for you to tell us today that
you will continue to make progress in reducing the backlog--the
backlog that obviously impacts the workload of each one of
those administrative law judges, and certainly it impacts the
American workers who are making the requests for the benefits
that they believe they are entitled to. Does not getting the
money that the President and you have requested impact your
ability to meet that process?
Mr. Astrue. Absolutely. The Congress has, quite
understandably, wanted to verify that we were making the
progress that we told you we were making. So GAO told you a
couple of years ago that we were 78 percent likely to make the
goal. More recently, the IG said that we were on target but we
were very fragile, that 1 percent either way and we would miss
the goal.
Right now, with the budget numbers that I am hearing from
the Hill, which are another absolute reduction in numbers, I
can guarantee you that we will miss at that level. I also close
to guarantee you that we will make it with the President's
budget. We are still in the game on that.
So, really, you know, my view is, it is up to Congress to
decide how important is backlog reduction. I came here to do
this 5 years ago and said I would do it. Not many of you
believed me. We are on the verge of getting there. And if we
miss it, it is not because I failed. It is not because any of
the people sitting behind me or any of the 85,000 people who
work for us have failed. It is because Congress chose to fail.
And it is up to all of you.
Mr. Becerra. Thank you, Mr. Chairman.
Thank you for your testimony.
Mr. Gowdy. I thank the gentleman from California.
The Chair would now recognize the gentleman from Texas, Mr.
Brady.
Mr. Brady. Thank you, Mr. Chairman. I appreciate you all
holding this joint hearing today.
Just to sort of correct the record, it sounds like the 2011
budget was devastating to Social Security. First, you have to
ask, which President signed that bill? It was President Obama,
if I recall. And which Senate passed that bill? It sounded like
it was the Senate Democrats. If I recall----
Mr. Astrue. So----
Mr. Brady. Commissioner, just hold on.
Mr. Astrue. Okay.
Mr. Brady. If I recall, it passed that funding bill,
bipartisan, passed 260 to 167, with 81 Democrats in the House,
including the Ranking Member of Ways and Means, supporting that
bill. It was a bipartisan effort to try to get this terrible
deficit under control.
And I would also point out that in the past decades, the
Social Security Administration stockpiled over $1.3 billion in
the information technology fund, reserve fund. In a bipartisan
way, Congress agreed to rescind about less than half of that,
$500 million, of the unused fund. Clearly, resources matter.
But it is not the only reason for the progress that is being
made at SSA.
I think, looking overall, that you are making progress in
speeding up the hearing times, increasing the productivity of
judges. And that is to be commended in a major way. But a lot
of concerns still remain: the variations between the States'
DDS. I still question the value of the reconsideration process
at the DDS level, and I would be curious to hear what the 10
prototype States--what the impact of skipping that step has
been.
I still think too many cases go to the ALJ hearing levels.
It increases the cost by three times, lengthens those decisions
dramatically. Still has to be a better way of resolving these
cases before they get to that level.
There continue to be dramatic variances between offices,
some in the same community. In the Houston area, the difference
between our downtown office and our Bellaire office is
dramatic.
And I still heard, over the holidays, two complaints from
claimants about their representatives who, they believe, were
actually slowing down the process of resolving their claims.
And I still am concerned we don't have the right incentives in
place to move--for the claimants' representatives to help
resolve these processes sooner rather than later.
So, Commissioner, starting with making sure we have good
candidates and a good registry for our administrative law
judges--I disagree with the thought that we ought not have a
specific test that tests specific substantial knowledge of the
technical aspects of Social Security Disability.
So I would ask you, Commissioner, have you found candidates
who pass the exam and make the register but who aren't suited
to handle a high caseload or aren't suited to dealing with the
public?
Mr. Astrue. Absolutely. We have had people with criminal
records, failure to pay taxes. The reason we spent a
substantial amount of money on the background checks is that it
is cost-beneficial. It is much better to screen out the bad
actors early and not allow them on the bench than to chase them
down years later, spending millions going before the Merit
Systems Protection Board.
So, as I said, the background checks that we do on judges
are one of the most cost-efficient things that we do in the
entire agency.
Mr. Brady. Since we are--we select the majority of those on
the registry, have you asked OPM for a separate test related to
SSA Disability for those candidates?
Mr. Astrue. No, I have not.
Mr. Brady. Will you?
Mr. Astrue. I would like the testing of the judges to be
more of a partnership than it has been in the past. I think
that Director Berry is trying to move it in that direction, but
we are not where I would like to see us be yet. I think that is
more important than a separate test.
Mr. Brady. Okay.
Deputy Director Griffin, why doesn't OPM have a separate
performance management system for ALJs, one that, obviously
based on law, applies to all within the system, but that helps
us identify those performance measures quicker and more
clearly?
Ms. Griffin. Well, I know that OPM is very interested in
performance management and getting good Federal employees hired
and have them perform appropriately and do their job very well
while they are working for the Federal Government. But we are a
little hamstrung with regard to the ALJs and what is allowed by
law and what our role can really be.
Our role is actually to develop the list, get good,
qualified people, the best that we can find, to put on that
list so that the other agencies can hire them. It is really the
agency's responsibility to then develop what the measures of
performance should be for whoever their Federal employees are.
Mr. Brady. Wouldn't you think it would be helpful to know,
as you are developing that registry, who and who has not worked
out so that your screening and your testing and your
application process can better reflect those who are likely to
succeed, correct?
Ms. Griffin. Well, we have a process by which we try and do
exactly that. So we try and make sure that we have people that
are qualified to do this work, that have experience and
licensing to do the work. Every time we have changed the exam,
we do engage with Social Security. And, again, we have just
begun in the last few months to do that. That was one of the
recommendations in the GAO report, that we do another analysis,
job analysis.
So every time I think we do that, we do get better at
providing an examination that really, hopefully, gives us the
best ALJs on that list that the other agencies can choose from.
However, again, the specific criteria by which someone
should be judged as to whether they are doing their job well or
not is really left up to the agency. We are developing a list
that is available to 27 different agencies that hire ALJs. So
we are trying to find the best people that have the best legal
skills to do that work.
Mr. Brady. Sure. Thank you.
I yield back. I have exceeded my time, Chairman.
Mr. Gowdy. I thank the gentleman from Texas.
The Chair would now recognize the gentleman from North
Carolina, Mr. Watt.
Mr. Watt. Thank you, Mr. Chairman.
I came back early for this hearing because I think this is
perhaps among the most important areas that we do work in.
There is nothing more frustrating for me, as a Member of
Congress, than looking at an applicant for Social Security, or
Social Security Disability in particular, and telling him or
her that he or she has to wait 18 months, 3 years sometimes,
get in a queue, because we can't get decisions.
I thought this hearing was going to be about trying to
diminish that waiting time further and that we--I am encouraged
to hear that we are moving in the right direction. I am
discouraged to hear that we may be in the process of blaming
the backlog and the failure to diminish the backlog on some bad
apples in the administrative law judge ranks. I think that is a
problem, and if it is a problem, we certainly need to address
it. I am not sanctioning bad decisions, disproportionality in
outcomes.
But if Congress is making decisions to diminish the funding
for this agency and then turning around and blaming the
increase in the backlog on, what, 50-some administrative law
judges out of 1,400 that may not be performing up to standards,
then I am disappointed that that is where this hearing is
headed.
So I am hopeful that out of this won't come our going out
and saying that the reason that we have this massive backlog in
Social Security Disability claims is because we have bad
judges. And, you know, we have some bad judges, and I think we
need to deal with that. But if anybody is telling the American
people that that is the only problem that is creating our
backlog, then I think we are doing a disservice.
And if we are going to walk out of here and say, you know,
we cut the budget by a billion dollars and we are getting ready
to take the reserves and cut the budget even further, and all
of a sudden the problem is we have some bad judges over there,
I can't help you message that. If you want to deal with the bad
judges, I want to help the message that we need to deal with
the bad judges, but we have to step up and live up to our
responsibilities, too.
I heard Mr. Brady say that there is a disparity within
inner cities and Bellaire. That probably means the people out
in Bellaire are getting better medical care and better
decisions from their doctors about what their problem is than--
and that is a real problem in this process.
So I stayed here to try to clarify the record. I don't have
a dog in the fight between whether it is a budget issue or bad
judges. I think it is both of them. And I think it is
inexcusable to have people who are eligible, qualified for
Social Security Disability die before they can get the
determination made because of this backlog. And I am a lot more
concerned about that aspect of the disparity in our system than
I am about the judges that are not performing, although I am
not excusing them, and I think we need to deal with that too.
But we need to be honest with the American people that we
are not doing what we need to do to solve this backlog, and not
blaming it on somebody else. We have to step up to the plate
and give these people fair hearings by good judges who work,
and we have to fund more judges to get this backlog down.
So I didn't ask a question, but I got that off of my chest.
And I thank you, Mr. Astrue, for getting this backlog down
and continuing to work on it and being straightforward in your
testimony, written testimony, about the fact that you need this
funding if you are going to keep moving it in the right
direction. Because if we don't move it in that direction, we
will be back here blaming somebody else for what we didn't do.
Mr. Chairman, I yield back. Thank you.
Mr. Gowdy. I thank the gentleman from North Carolina.
The Chair would recognize himself for questions.
The gentleman from North Carolina made reference to fair
hearings, and I want to ask you about that, some systemic
things that ideally could be done to streamline and improve the
system.
The adversarial system seems to work for everything from
shoplifting cases to capital murder cases. Why not here?
Mr. Astrue. It has been tried, and it was extremely
expensive and not very successful. There was a government
representative project that was actually terminated when I was
working for the Commissioner almost 25 years ago. It didn't
change outcomes very much. You would need to add another 1,500
employees or so at a time when we don't have the resources to
do that.
And I think that we in the agency and I think the Congress,
at least implicitly at the time, agreed that the non-
adversarial model, given the nature of disability, while not
perfect, was the best way to proceed. And that is what I
believe.
Mr. Gowdy. Well, who cross-examines the physicians that
assign some level of disability to a claimant?
Mr. Astrue. That is what the judges do.
Mr. Gowdy. They cross-examine a physician or they cross-
examine an affidavit?
Mr. Astrue. No, it is a live hearing. The first two
levels--or first level in a prototype state--are an entirely
paper process. At a hearing--and the judges have latitude, and
they do it----
Mr. Gowdy. What is the standard of proof required at the
first two stages? Preponderance?
Mr. Astrue. I believe that is correct. I don't want to make
a mistake on that, so I will supply that information for the
record. But, yes.
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Mr. Gowdy. So if it is approved at the initial stage, can
it ever be reversed in one of the three subsequent appellate
stages?
Mr. Astrue. No, not under the current process.
Mr. Gowdy. And there are four stages by which it can be
granted, correct?
Mr. Astrue. Substantially true. We have 10 States--one of
the Members, I believe it was Mr. Brady, mentioned before that
there are 10 prototype States, where the reconsideration stage
has been dropped. But in most of the country, yes, there are
four levels.
Mr. Gowdy. So there are four stages at which it can be
granted and one stage at which it can be denied?
Mr. Astrue. Well, it can be denied at any point. I mean,
people bring denials up.
Mr. Gowdy. But nobody appeals it.
Mr. Astrue. Yes, that is right. If you are saying, is there
a tilt in the system in the direction----
Mr. Gowdy. That is sort of what I am suggesting.
Mr. Astrue. Yes, that is right.
Mr. Gowdy. So judges are in the unique position of both
being questioner and final arbiter. Is there any other system,
justice system, administrative system--I am not familiar with
that model, where the judge is the questioner and then
ultimately the finder of fact.
Mr. Astrue. I am a little bit away from my hardcore
administrative law work. I believe that there are parallel
systems, some of the continental systems. But it is an unusual
system here in the United States.
Mr. Gowdy. All right.
There are four levels of appeal. Why so many?
Mr. Astrue. It is a decision by the Congress--
Mr. Gowdy. Would you support a decision to shorten it to
two?
Mr. Astrue. Well, I have to get to three first. And I think
that, in recent years, I have generally been supportive of
bringing reconsideration back, because I think that the first
level wasn't accurate enough to get rid of reconsideration. But
I do think there is some reason to hope that, after I am gone,
that you may decide that it is appropriate to do that.
And a couple things are changing. We have much better
systems in the DDSs. Our quality rate--because we are very
dedicated to quality--had plateaued at about 96 percent at the
DDSs. We have climbed up to 98 percent, largely because of
these expert systems that are cueing largely inexperienced
examiners on what they need to know, what they need to do.
But I think the next step--and this is really important for
us--is when health IT comes. We spend an enormous amount of
time, money, and energy, and we make a lot of our mistakes
because of incomplete medical records. It is going to take a
while for it to come, and it will take a while to get the kinks
out of the system. But I think with the combination of the
quality improvements that we have made, when the health IT
comes in about 2 or 3 years, I think it will be realistic to
talk about eliminating reconsideration at that stage.
Mr. Gowdy. And I have about 30 seconds. Are private
attorneys used, and in what percentage of the cases?
Mr. Astrue. About 75 percent of the claimants use
attorneys. About another 10 percent use lay representatives.
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Mr. Gowdy. And how were those attorneys compensated?
Mr. Astrue. It gets a little complicated. But, basically,
up to certain limits, they take a percentage of the back due
payment from the claimant.
Mr. Gowdy. But the claimant needs that money, right, for
medical bills or expenses?
Mr. Astrue. Yes, these kinds of things are a tradeoff
between access to the benefit and----
Mr. Gowdy. Right. And the other tradeoff is despite the
fact that we may not think it is fiscally responsible to have
another person in the room advocating on behalf of the
taxpayer. That would be another fiscal tradeoff, wouldn't it?
Mr. Astrue. It is reasonable to take a look at, but, again,
I would urge you to go back--we have run this experiment once
before, and the agency, I believe in 1987, terminated it. And I
think there were some valid reasons for why it was terminated.
Mr. Gowdy. The Supreme Court just decided that there will
be attorneys at all magistrate-level criminal cases, where the
most you could get is a fine. And the counties and the States
have to provide for public defenders in magistrate-level cases.
So, apparently, justice has no price tag. And I can't help but
think that an adversarial process might result in something
other than a 100 percent approval rate, like the one we had in
West Virginia.
I have a colleague who is on his way. I would ask you for
your--the gentleman from Florida, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman. I appreciate your
patience here.
Commissioner Astrue, these are non-adversarial proceedings,
right?
Mr. Astrue. That is correct.
Mr. Ross. So the judges really take the role of almost
being an advocate for the petitioner. Is that correct?
Mr. Astrue. Yes, that is correct.
Mr. Ross. Interesting, I guess the statistics are such
that, in 2010, almost 22 percent of cases appealed to the
appeals court were remanded back to the hearing level, and 45
percent of cases appealed to the Federal courts were remanded
back.
It doesn't sound like the best batting average for them,
does it?
Mr. Astrue. No, I agree. And we have been working to try to
reduce the remand rate at both levels. We haven't made the
progress yet that I would like to see.
Mr. Ross. And what has been the basis for the remands? I
mean, has it been just a misapplication of law?
Mr. Astrue. We believe that the standard seems to have
changed. The Federal district court judges are not hearing as
many of these cases. They are being delegated to magistrate
judges. And they seem to be applying a different standard than
historically. And they seem to be much more likely to remand
cases than Article III district court judge.
Mr. Ross. I was going to say, close to 50 percent are being
remanded. Not a good record.
Now, I understand also that the ALJs are unionized? I mean,
they----
Mr. Astrue. Yes, that is correct.
Mr. Ross [continuing]. Have their own union. Have there
been any conversations with the union as to probably
performance assessments, things of that nature, to try to
enhance or at least increase the performance level of the ALJs?
Mr. Astrue. My understanding is we are statutorily barred
from doing that.
Mr. Ross. Why is that? I mean, you are statutorily barred
from having any performance evaluations whatsoever?
Mr. Astrue. Performance reviews, yes, that is correct. That
is your decision, not mine.
Mr. Ross. Okay. Because when I was here for the openings
and Ms. Griffin commented that the accountability, that I guess
they--how do you create accountability?
Ms. Griffin?
Ms. Griffin. There is a variety of ways you can do it. And
I think you can look at some of the other agencies that have
ALJs that look at--they look at error rate.
And I think some of what Commissioner Astrue is doing is
looking at a variety of things--giving people training, giving
them chances to become better ALJs. And then, at some point, if
somebody can't, you take the actions that are appropriate.
Mr. Ross. But has the union made any comment on how to
enhance performance? Have they come up with any suggestions?
Internally, obviously, you know, not from others.
Mr. Astrue. They have made suggestions about adopting
certain ethics rules and things like that. But in terms of
actual performance reviews, my understanding has always been
that they are opposed to that.
Mr. Ross. And flexiplace or flex-place? That is one of the
options where they can work out of the home?
Mr. Astrue. Yes, that is an option that they have now.
Mr. Ross. So how would that work? Would they still conduct
hearings out of their home through videoconferencing?
Mr. Astrue. Right now, as I understand it--if I am making a
mistake on the collective bargaining agreement, I apologize and
will correct it for the record--but they are entitled under the
collective bargaining agreement that I inherited to do a
minimum of 4 hours of flex-place each week and possibly have
more than that, depending on the negotiation within the hearing
office.
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Mr. Ross. Now, I guess there is, what, 26 percent of the
ALJs who are not meeting the minimum performance standards; is
that correct? Has the union offered in any way whatsoever to
help correct that?
Mr. Astrue. No.
Mr. Ross. Has it even been a topic of conversation within
the union?
Mr. Astrue. No.
Mr. Ross. Don't you think that that is something that ought
to be addressed? I mean, if the efficiency and performance of
the ALJs really is at issue here, would not it be in the best
interest of the union that represents them to want to at least
suggest and even advocate such a process?
Mr. Astrue. Yes.
Mr. Ross. But nothing is coming about?
Mr. Astrue. No.
Mr. Ross. You have 27 months for a hearing to be resolved--
--
Mr. Astrue. Well, not now. We have brought that down to--we
are under 12 months now, 353 days, as of June of this year.
Mr. Ross. And your goal is for cases to be decided within
270 days?
Mr. Astrue. Two-seventy is the goal, yes.
Mr. Ross. And, again, I have to ask with regard to the
union's position on this, do they have any position on your
timetable of getting it out at 270?
Mr. Astrue. Well, I think for a long time they have been
denying that we have been succeeding in backlog reduction at
all through a rationale that, I have to be candid, I don't
understand.
Mr. Ross. I appreciate that, because that helps me
understand too, because I don't understand why it is that way.
Ms. Griffin, any comments with regard to whether you feel
the union is doing anything to help the ALJs meet the minimum
performance standards?
Ms. Griffin. I couldn't actually speak to that whatsoever
because I have no knowledge of Mr. Astrue's and Social
Security's relationship with the union.
But I would say this. I think if the ultimate goal is to
actually reduce the backlog--and, actually, Chairman Johnson
alluded to it in his opening, about some people getting on the
rolls because--not because they don't want to work--because
they want to work and there aren't opportunities.
We have the ability in the Federal Government, here in
Congress too, to hire more people with disabilities. We have a
President that actually signed an Executive order last July
saying the Federal Government should hire more people with
disabilities. And, frankly, if we did a better job of this
overall in society and gave people more opportunities, we
wouldn't have that many people applying for Social Security,
either SSI or SSD.
Mr. Ross. I see my time is up.
Ms. Griffin. So there is a fix, and we need to do that.
Mr. Ross. I yield back. Thank you.
Mr. Gowdy. I thank the gentleman from Florida.
I thank both of our witnesses. All of us do, on both sides
of the aisle.
I note our colleague, Mr. Berg, wanted very much to come
back. He has been detained in another hearing.
So, with that, let me thank our witnesses.
And, without objection, all Members will have 5 legislative
days to submit to the Chair additional written questions for
the witnesses, which we will forward and ask the witnesses to
respond to as promptly as they can so their answers may be made
part of the record.
Without objection, all Members will have 5 legislative days
to submit additional materials for inclusion in the record.
With that, again, I thank both of our witnesses.
The hearing is adjourned.
[Whereupon, at 5:02 p.m., the Subcommittees were
adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Letter from Judge Richard A. Pearson, President,
The Federal Administrative Law Judges Conference
Prepared Statement of the Honorable Randall Frye, President,
the Association of Administrative Law Judges (AALJ)
Prepared Statement of the Association of Administrative Law Judges
(AALJ)
Prepared Statement of Nancy G. Shor, Executive Director, and Ethel
Zelenski, Director of Government Affairs, the National Organization of
Social Security Claimants' Representatives (NOSSCR)