[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

                              ----------                              

                             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:]

    
    
    
    
    
    


                               __________
    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:]

    
    
                               __________

    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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    *Note: The page and line number notation are a reference to the 
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

                              ----------                              


               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)














                                 
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