[Senate Hearing 112-800]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 112-800

                  SOCIAL SECURITY DISABILITY PROGRAMS:
                    IMPROVING THE QUALITY OF BENEFIT
                            AWARD DECISIONS

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

                                HEARING

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS


                             SECOND SESSION

                               ----------                              

                           SEPTEMBER 13, 2012

                               ----------                              

         Available via the World Wide Web: http://www.fdsys.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs




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                                                        S. Hrg. 112-800

                  SOCIAL SECURITY DISABILITY PROGRAMS:
                    IMPROVING THE QUALITY OF BENEFIT
                            AWARD DECISIONS

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

                                HEARING

                               before the

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                                 of the

                              COMMITTEE ON
               HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS


                             SECOND SESSION

                               __________

                           SEPTEMBER 13, 2012

                               __________

         Available via the World Wide Web: http://www.fdsys.gov

                       Printed for the use of the
        Committee on Homeland Security and Governmental Affairs




[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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20402-0001






        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware           SCOTT P. BROWN, Massachusetts
MARK L. PRYOR, Arkansas              JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana          RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri           ROB PORTMAN, Ohio
JON TESTER, Montana                  RAND PAUL, Kentucky
MARK BEGICH, Alaska                  JERRY MORAN, Kansas

                  Michael L. Alexander, Staff Director
               Nicholas A. Rossi, Minority Staff Director
                  Trina Driessnack Tyrer, Chief Clerk
                 Patricia R. Hogan, Publications Clerk
                                 ------                                

                PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

                     CARL LEVIN, Michigan, Chairman
THOMAS R. CARPER, Delaware           TOM COBURN, Oklahoma
MARY L. LANDRIEU, Louisiana          SUSAN M. COLLINS, Maine
CLAIRE McCASKILL, Missouri           SCOTT P. BROWN, Massachusetts
JON TESTER, Montana                  JOHN McCAIN, Arizona
MARK BEGICH, Alaska                  RAND PAUL, Kentucky
            Elise J. Bean, Staff Director and Chief Counsel
                       Daniel J. Goshorn, Counsel
         Christopher J. Barkley, Staff Director to the Minority
               Andrew C. Dockham, Counsel to the Minority
                     Kathryn Edelman, GAO Detailee
                     Mary D. Robertson, Chief Clerk








                            C O N T E N T S

                                 ------                                
Opening statements:
                                                                   Page
    Senator Levin................................................     1
    Senator Coburn...............................................     3
    Senator Collins..............................................    21
Prepared statements:
    Senator Levin................................................    53

                               WITNESSES
                      Thursday, September 13, 2012

Judge Patricia A. Jonas, Executive Director, Office of Appellate 
  Operations, Deputy Chair, Appeals Council, Office of Disability 
  Adjudication and Review, Social Security Administration, Falls 
  Church, Virginia...............................................    10
Judge Debra Bice, Chief Administrative Law Judge, Office of 
  Disability Adjudication and Review, Social Security 
  Administration, Falls Church, Virginia.........................    12
Judge Douglas S. Stults, Hearing Office Chief Administrative Law 
  Judge, Office of Disability Adjudication and Review, Social 
  Security Administration, Oklahoma City, Oklahoma...............    32
Judge Thomas W. Erwin, Hearing Office Chief Administrative Law 
  Judge, Office of Disability Adjudication and Review, Social 
  Security Administration, Roanoke, Virginia.....................    34
Judge Ollie L. Garmon III, Regional Chief Administration Law 
  Judge, Atlanta Region, Office of Disability Adjudication and 
  Review, Social Security Administration, Atlanta, Georgia.......    36

                     Alphabetical List of Witnesses

Bice, Judge Debra:
    Testimony....................................................    12
    Prepared statement...........................................    65
Erwin, Judge Thomas W.:
    Testimony....................................................    34
    Prepared statement...........................................    80
Garmon III, Judge Ollie L.:
    Testimony....................................................    36
    Prepared statement...........................................    83
Jonas, Judge Patricia A.:
    Testimony....................................................    10
    Prepared statement...........................................    55
Stults, Judge Douglas S.:
    Testimony....................................................    32
    Prepared statement...........................................    77

                                APPENDIX

Report of the Permanent Subcommittee on Investigations' Minority 
  Staff entitled Social Security Disability Programs: Improving 
  the Quality of Benefit Award Decisions, September 13, 2012.....    86

                              EXHIBIT LIST

 1. GDocuments relating to Alabama Case No. 64:
    a. GDecember 11, 2006 Report of Contact......................   252
    b. GJanuary 10, 2007 Consultative Exam.......................   253
    c. GExplanation of Benefits..................................   257
    d. GMarch 6, 2007 Medical Exam Record........................   258
    e. GAugust 13, 2007 Medical Exam Record......................   259
    f. GDecember 5, 2007 Medical Exam Record.....................   260
    g. GJanuary 30, 2008 Medical Exam Record.....................   261
    h. GMay 7, 2008 Medical Exam Record..........................   262
    i. GMay 28, 2008 Hearing Transcript..........................   263
    j. GJune 17, 2008 Notice of Decision-Fully Favorable.........   269
 2. GDocument relating to Alabama Case No. 65:
    a. GOctober 15, 2009 Notice of Decision-Fully Favorable......   280
    b. GDecember 8, 2008 Physical Summary Form...................   286
    c. GExplanation of Determination.............................   287
    d. GOctober 29, 2008 Pharmacy Statement......................   288
    e. GDecember 9, 2008 Psychiatric Review Technique Form.......   292
 3. GDocument relating to Alabama Case No. 67:
    a. GApril 23, 2010 Notice of Decision-Fully Favorable........   306
    b. GFebruary 6, 2007 Medical Exam Record.....................   311
    c. GJanuary 28, 2007 Medical Exam Record.....................   312
    d. GJuly 22, 2009 Medical Exam Record........................   313
    e. GJanuary 19, 2007 Medical Exam Record.....................   314
    f. GMarch 6, 2009 Medical Exam Record........................   315
    g. GAugust 19, 2008 Medical Exam Record......................   316
    h. GOctober 8, 2007 Medical Exam Record......................   319
    i. GOctober 22, 2008 Medical Exam Record.....................   320
    j. GDecember 23, 2008 Medical Exam Record....................   321
    k. GJanuary 26, 2009 Medical Exam Record.....................   322
    l. GJanuary 13, 2009 Vocational Rationale Form...............   323
    m. GApril 6 and 7, 2010 Medical Exam Records.................   326
    n. GApril 9, 2010 Hearing Transcript.........................   333
 4. GDocument relating to Alabama Case No. 69:
    a. GSeptember 2, 2008 Notice of Disapproved Claim............   347
    b. GSeptember 26, 2008 Notice of Disapproved Claim...........   352
    c. GPhysical Residual Functional Capacity Form...............   358
    d. GFebruary 1, 2007 Excuse from Work........................   366
    e. GJuly 18, 2008 Medical Exam Record........................   367
    f. GSeptember 10, 2008 Medical Exam Record...................   369
    g. GOctober 10, 2008 Appointment of Representative and Fee 
  Agreement......................................................   375
    h. GOctober 10, 2008 Request for Hearing by Administrative 
  Law Judge......................................................   377
    i. GJanuary 6, 2010 Clinical Assessment of Pain..............   379
    j. GJanuary 7, 2010 Hearing Transcript.......................   380
    k. GJanuary 25, 2010 Notice of Decision-Fully Favorable......   385
 5. GDocument relating to Oklahoma Case No. 102:
    a. GMental Residual Functional Capacity Assessment...........   389
    b. GPsychiatric Review Technique Form........................   393
    c. GMedical Exam Record......................................   407
    d. GExplanation of Determination.............................   409
    e. GMay 13, 2008 Hearing Transcript..........................   410
    f. GNotice Decision-Fully Favorable..........................   413
 6. GDocument relating to Oklahoma Case No. 109:
    a. GApril 25, 2008 Notice of Decision-Fully Favorable........   420
    b. GOctober 24, 2007 Medical Exam Record.....................   430
 7. GDocument relating to Oklahoma Case No. 111:
    a. GSeptember 22, 2005 Medical Exam Record...................   439
    b. GOctober 6 and 14, 2005 Medical Exam Records..............   442
    c. GJanuary 24, 2008 Medical Exam Record.....................   446
    d. GFebruary 28, 2006 Medical Exam Record....................   448
    e. GMarch 6 and 27, 2006 Medical Exam Records................   450
    f. GMay 22, 2006 Medical Exam Record.........................   452
    g. GFebruary 21, 2007 Medical Exam Record....................   453
    h. GMarch 22, 2007 Request for Reconsideration...............   457
    i. GMay 16, 2007 Function Report.............................   459
    j. GNovember 9, 2007 Letter..................................   467
    k. GDecember 26, 2007 Notice of Decision-Fully Favorable.....   468
 8. GDocument relating to Oklahoma Case No. 114:
    a. GJanuary 4, 2008 Medical Exam Record......................   480
    b. GJuly 30, 2008 Medical Exam Record........................   483
    c. GJuly 31, 2008 Medical Exam Record........................   485
    d. GAugust 5, 2008 Notice of Denial (Initial Application)....   487
    e. GNovember 18, 2008 Medical Exam Record....................   491
    f. GDecember 23, 2008 Notice of Denial (Reconsideration).....   492
    g. GApril 21, 2009 Letter from Attorney......................   495
    h. GMay 21, 2009 Notice of Attorney Advisor Decision-Fully 
  Favorable......................................................   497
    i. GMarch 12, 2009 Physical Capacities Evaluation............   508
    j. GNovember 26, 2008 Medical Exam Record....................   511
    k. GJanuary 22, 2009 Letter..................................   512
    l. GJuly 24, 2008 Medical Exam Record........................   513
    m. GSeptember 4, 2008 Medical Exam Record....................   515
    n. GOctober 14, 2008 Medical Exam Record.....................   516
 9. GDocument relating to Oklahoma Case No. 134:
    a. GOctober 22, 2010 Notice of Decision-Fully Favorable......   517
    b. GDecember 15, 2004 Medical Exam Record....................   531
    c. GJanuary 5, 2005 Medical Exam Record......................   534
    d. GFebruary 9, 2005 Medical Exam Record.....................   536
    e. GApril 14, 2005 Medical Exam Record.......................   538
    f. GApril 21, 2005 Medical Exam Record.......................   539
    g. GMay 5, 2005 Medical Exam Record..........................   540
    h. GMay 12, 2005 Medical Exam Record.........................   542
    i. GMay 19, 2005 Medical Exam Record.........................   544
    j. GJune 9, 2005 Medical Exam Record.........................   545
    k. GJune 16, 2005 Medical Exam Record........................   546
    l. GJune 23, 2005 Medical Exam Record........................   547
    m. GJuly 19, 2005 Medical Exam Record........................   548
    n. GAugust 11, 2005 Medical Exam Record......................   549
    o. GAugust 29, 2005 Medical Exam Record......................   551
    p. GSeptember 2, 2005 Medical Exam Record....................   553
    q. GJanuary 5, 2006 Medical Exam Record......................   555
    r. GJuly 13, 2006 Medical Exam Record........................   556
    s. GSeptember 21, 2006 Medical Exam Record...................   557
    t. GOctober 16, 2006 Application for Disability Insurance 
  Benefits.......................................................   559
    u. GDecember 12, 2006 Medical Exam Record....................   562
    v. GExplanation of determination.............................   565
10 GDocument relating to Oklahoma Case No. 151:
    a. GOctober 22, 2010 Notice of Decision-Fully Favorable......   566
    b. GDecember 15, 2004 Medical Exam Record....................   569
    c. GJanuary 5, 2005 Medical Exam Record......................   594
    d. GFebruary 9, 2005 Medical Exam Record.....................   595
    e. GApril 14, 2005 Medical Exam Record.......................   610
    f. GApril 21, 2005 Medical Exam Record.......................   611
    g. GMay 5, 2005 Medical Exam Record..........................   612
11. GDocument relating to Oklahoma Case No. 103: October 28, 2009 
  Notice of Decision-Fully Favorable.............................   617
12. GDocument relating to Oklahoma Case No. 118: October 10, 2008 
  Notice of Decision-Fully Favorable.............................   640
13. GDocument relating to Oklahoma Case No. 123: April 26, 2010 
  ALJ Bench Decision Checklist, Decision, and Hearing Transcript.   664
14. GDocument relating to Oklahoma Case No. 132: April 17, 2008 
  Notice of Decision-Fully Favorable.............................   707
15. GDocument relating to Oklahoma Case No. 166: December 4, 2007 
  Notice of Decision-Fully Favorable.............................   724
16. GDocuments relating to Virginia Case No. 249:
    a. GOctober 28, 2009 Medical Exam Record.....................   760
    b. GOctober 31, 2008 Notice of Disapproved Claim.............   765
    c. GSeptember 27, 2010 Medical Exam Record...................   768
    d. GSeptember 25, 2009 Medical Exam Record...................   777
    e. GNovember 10, 2008 Medical Exam Record....................   778
    f. GDisability Report Form 3368..............................   780
    g. GJanuary 28, 2011 Notice of Decision-Fully Favorable......   782
    h. GJune 16, 2010 Hearing Transcript.........................   786
17. GDocuments relating to Virginia Case No. 257:
    a. GDisability Report Form 3368..............................   791
    b. GApril 15, 2009 Notice of Reconsideration.................   797
    c. GApril 9, 2009 Physical Residual Functional Capacity Form.   800
    d. GMay 1, 2009 Request for Hearing by Administrative Law 
  Judge..........................................................   807
    e. GJanuary 7, 2010 Medical Exam Record......................   809
    f. GMay 19, 2010 Hearing Transcript..........................   811
    g. GMay 28, 2010 Notice of Decision-Fully Favorable..........   814
18. GDocuments relating to Virginia Case No. 278:
    a. GAugust 29, 2006 Notice of Disapproved Claim..............   819
    b. GApril 4, 2007 Notice of Reconsideration..................   822
    c. GSeptember 26, 2006 Medical Exam Record...................   825
    d. GFebruary 7, 2007 Medical Exam Record.....................   831
    e. GApril 4, 2007 Psychiatric Review Technique Form..........   832
    f. GApril2, 2007 Request for Medical Advice and Physical 
  Residual Functional Capacity Assessment........................   846
    g. GApril 24, 2008 Notice of Decision-Fully Favorable........   855
    h. GJanuary 25, 2008 Hearing Transcript......................   859
19. GSeptember 14, 2011 Social Security Directive from Douglas S. 
  Stults, Hearing Office Chief Administrative Law Judge to W. 
  Howard O'Bryan, Jr., Administrative Law Judge, Oklahoma City, 
  OK.............................................................   877
20 GOffice of Appellate Operations, Executive Director's 
  Broadcast, August 19, 2011.....................................   880
21. GOffice of Appellate Operations, Executive Director's 
  Broadcast, January 13, 2012, highlights top reasons ALJ 
  opinions have errors...........................................   883
22. GSocial Security Administration Powerpoint, Fiscal Year 2011, 
  Final Actions Report, Division of Quality, February 8, 2012....   889
23. GResponses provided by the Social Security Administration to 
  questions raised at the September 13, 2012 hearing.............   900
24. GSocial Security Administration's response to Recommendations 
  included in the Permanent Subcommittee on Investigations' 
  Minority Staff Report, Social Security Disability Programs: 
  Improving the Quality of Benefit Award Decisions...............  1123
25 GResponses to supplemental questions for the record from the 
  Social Security Administration. [As of August 2013 when this 
  hearing record went to press, responses to the Supplemental 
  Questions to the Record submitted to the Social Security 
  Administration were still pending. Responses will be made a 
  part of the Subcommittee hearing exhibit files when they are 
  received and will available for review at the Subcommittee 
  offices.]......................................................  1128

 
                  SOCIAL SECURITY DISABILITY PROGRAMS:
                    IMPROVING THE QUALITY OF BENEFIT
                            AWARD DECISIONS

                              ----------                              


                      THURSDAY, SEPTEMBER 13, 2012

                                 U.S. Senate,      
              Permanent Subcommittee on Investigations,    
                    of the Committee on Homeland Security  
                                  and Governmental Affairs,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:33 a.m., in 
room SD-342, Dirksen Senate Office Building, Hon. Carl Levin, 
Chairman of the Subcommittee, presiding.
    Present: Senators Levin, Coburn, and Collins.
    Staff Present: Elise J. Bean, Staff Director and Chief 
Counsel; Mary D. Robertson, Chief Clerk; Daniel J. Goshorn, 
Counsel; Brian Egger, Detailee (GAO); Christopher Barkley, 
Staff Director to the Minority; Andrew Dockham, Counsel to the 
Minority; Kathryn Edelman, Detailee (GAO); and Priscilla Hanley 
(Senator Collins).

               OPENING STATEMENT OF SENATOR LEVIN

    Senator Levin. Good morning, everybody. The Subcommittee 
meets this morning to look at our Social Security Disability 
Insurance (SSDI) program. This program provides financial 
support to Americans who, due to a disability, are incapable of 
working at a full-time job. The number of individuals applying 
for disability insurance aid has been increasing in recent 
years, made worse by the 2008 financial crisis when millions of 
workers lost their jobs and their employer-sponsored health 
insurance. Without health insurance, many of those individuals 
could not afford to pay for health care. Without health care, 
chronic conditions held in check by medicine and treatment 
worsened and sometimes became disabling. Those workers then 
turned to Federal disability insurance.
    More individuals receiving disability insurance payments 
has, in turn, increased the stress on the Social Security 
Disability Trust Fund. Recent estimates predict that the trust 
fund may be unable to pay full benefits by 2016, a problem that 
this country has a moral obligation to address.
    Another problem is how long the disability application 
process takes. Applicants can wait 2 years to get a hearing and 
even longer for their case to be decided. During that years-
long wait, claimants often have less access to medical care or 
medicines. Although the Social Security Administration (SSA) 
has recently reduced the backlog, large numbers of our most 
vulnerable citizens are still waiting in long lines.
    While there are many concerns about Social Security 
disability programs, including exhaustion of the trust fund and 
the backlog, today's hearing focuses on another set of 
concerns: what happens when an individual finally gets to the 
front of the line and gets their case heard. At the request of 
Dr. Coburn, the Ranking Republican on our Subcommittee, we 
launched a bipartisan investigation into how decisions are made 
to award disability benefits. After receiving actual case files 
from three counties in three different States, with all 
personal information removed, the files were reviewed to see 
how they were being decided, at both the initial and appellate 
levels. The review examined only cases in which benefits were 
awarded and not any cases in which benefits were denied.
    A number of troubling problems appeared. One judge who 
churned out over 1,500 cases per year took inappropriate 
shortcuts in his opinions, cutting and pasting medical evidence 
from the case file into his opinions without explaining or 
analyzing what it meant, and writing the phrase ``etc, etc, 
etc'' rather than describing the relevant evidence. His chief 
judge confronted him in person and by letter, but for years he 
turned out the same poor-quality work.
    In other cases that were reviewed, judges held perfunctory 
hearings that lasted less than 5 minutes, failed to elicit any 
testimony from the person applying for benefits, or failed to 
examine medical evidence raising questions about whether that 
person was entitled to disability benefits. In still other 
cases, poorly written opinions awarding benefits failed to 
identify medical evidence showing how the requirements for 
establishing a disability were met, did not acknowledge or 
address evidence that impairments were not disabling or 
evidence that the claimant had been working, and at times even 
misreported medical findings or hearing testimony.
    The report's findings of a large number of poor-quality 
decisions in the 300 case files reviewed are consistent with 
the Social Security Administration's own internal research. A 
Social Security Administration quality review process found 
that, in 2011, 22 percent or over 1 in 5 disability cases 
decided by administrative law judges contained errors or were 
inadequately justified. Those errors went in both directions, 
awarding and denying benefits. Those errors and inadequacies 
did not mean that the 1 in 5 disability decisions were all 
wrongly decided. What they meant was that the opinions being 
produced in those cases did not contain the type of analysis 
needed to be confident that the cases were correctly decided 
and that disability benefits go only to the truly disabled.
    Senator Coburn is releasing a report that describes the 
results of the investigation into the disability decisionmaking 
process. That report, in a unique way, provides detailed, 
relevant information about a process that is closed to the 
public, and necessarily so, since disability hearings discuss 
an individual's personal medical records. The report not only 
confirms the Social Security Administration's own findings; it 
demonstrates what is at stake. It identifies important issues 
illustrating how the quality of disability benefit award 
decisions must be improved, and it also shows why oversight by 
the Social Security Administration and by Congress is so 
critically important.
    The report also contains many recommendations with which I 
agree, including expanding the Social Security Administration's 
quality review process; closing the evidentiary record at a 
reasonable time before a hearing to ensure adequate time to 
review materials; updating the decades-old job list; and 
increasing training for the judges.
    I do have a significant concern about a key recommendation 
to mandate a government representative at all disability 
hearings because I fear that it would lead to an adversarial 
process. The Supreme Court has said that the Social Security 
Act calls for the agency to operate ``as an adjudicator, and 
not as an advocate or adversary.'' That is a central principle 
of the disability system, and if the proposed government 
representative is not to advocate for a particular position 
before the administrative law judge, it would then seem to be 
an expensive and a time-consuming duplication or a confusion of 
roles.
    The men and women who administer the Social Security 
disability programs do not have it easy. The plight of the 
disabled demands that they do their jobs quickly, given the 
backlog. The law requires them to navigate complex rules and to 
make difficult judgments. The threat to the program's solvency 
hovers over everything. I hope that the work of the 
Subcommittee will contribute to the ongoing efforts to improve 
the disability award process, and I look forward to the 
testimony of our witnesses today.
    I now turn to my friend, the Ranking Republican Senator 
Coburn, Dr. Coburn, for his opening statement, and I want to 
thank him for the extensive work that he and his hard-working 
staff put into this important effort. Dr. Coburn.

              OPENING STATEMENT OF SENATOR COBURN

    Senator Coburn. Thank you, Mr. Chairman, and I thank those 
that are going to testify before us today. I want to thank you 
for holding the hearing and especially your staff. In a 
Congress that is often divided on partisan issues, this is a 
unique Committee. The staffs work in parallel. We actually 
compromise. We work to find common ground to solve real 
problem. Without Chairman Levin's support, we would not have 
been able to undertake this investigation.
    We are here to discuss this report which really looks at 
how Social Security approves claims for both the SSDI and SSI 
systems. Both of those are critical promises to people in our 
country that have, not through their own means, acquired 
disabilities that requires that they can no longer achieve what 
they would like to achieve on their own through their own 
means.
    The Congressional Budget Office has been clear that the 
disability programs are teetering on bankruptcy. If you 
actually look at their recommendations over the last 5 years, 
you see we are coming closer and closer and closer. We are 
losing a year almost every year in terms of the time of 
insolvency.
    The Social Security Trustees have concluded that the 
disability insurance program may go bankrupt in 2015, and that 
is because the rolls have grown faster than anticipated. That 
is completely understandable given our financial experience 
over the past 4 years in this country and the fact that people 
who were truly disabled were still working because they had the 
benefits and the wherewithal to continue to do that. Losing 
health insurance through layoffs is one of the reasons that 
people who were disabled but were still working have increased 
in the number of applications.
    Since January 2009, the Social Security Administration has 
added 5.9 million Americans to the disability rolls. That is 
about 78,000 per month. That is 14,000 more added to the 
disability rolls than we actually created in terms of jobs.
    With the trust funds approaching insolvency and the law 
saying that the funds to provide SSDI come from the revenues 
that come into SSDI, Congress is handicapped in terms of 
supplementing that, which means that anyone who is collecting 
disability that should not be collecting disability will 
ultimately be taking funds from those people who actually 
deserve disability once the trust fund reaches its insolvent 
point.
    Millions of our neighbors depend on these programs to 
replace a portion of the income they earned before they became 
disabled. For many of them, this is a lifeline without which 
they would be absolutely overwhelmed.
    For the past 18 months, this Subcommittee has conducted a 
bipartisan investigation into how well the Social Security 
Administration is running these programs. Our hope is that 
where we find problems, we might also offer solutions.
    We decided to take a look at a random selection of 300 case 
files, all of which came from three counties and represented a 
broad mix of disability applicants.
    We carefully chose three areas of the country that had 
different concentrations of people receiving disability 
benefits--from a very high to a very low to a mid range. We 
worked closely with the Social Security Administration to 
develop a methodology that would give meaningful results.
    One of the places we looked at was Oklahoma City in my own 
home State. It was and is my firm belief that if Congress is 
going to get serious about reforming our government, oversight 
must start at home. Unfortunately, some of the worst problems 
we saw were in my home State.
    The good news is that Oklahoma is also home to a disability 
success story. The Oklahoma Department of Rehabilitation 
Services is helping set individuals on disability back into the 
work force to become productive, self-sufficient Americans. One 
individual there, Jason Price, developed a system of giving 
monetary incentives to vocational rehabilitation counselors who 
found work for disability recipients through the Ticket to Work 
program. Thousands of people who were disabled are now working 
in Oklahoma, and nearly 1,100 of those no longer are on SSDI.
    In 2010 alone, Price's initiatives resulted in 135 
individuals who were severely disabled going back to work, 
ending their dependence on disability payments. The State 
recouped over $2.3 million. I am proud of his work, and I hope 
his example will be shown to other States to see how to get 
even the very severely disabled back into the workforce.
    Let me tell you why that is important. When somebody is 
deemed disabled and we help them through the Social Security 
disability system, we are actually accomplishing one of the 
intents that we intend to. Our compassion becomes real. When 
somebody collects disability that is not truly disabled, we 
actually harm them. We limit their potential. We limit their 
ability to go through a program like Jason Price has developed 
to actually give them real meaning and to perceive their real 
worth in our society.
    To understand the problems we uncovered, it is important to 
explain how someone gets disability benefits. The first step is 
that a person applies at his or her Social Security office. 
They are eligible for benefits starting the day their 
disability began, not simply on the date that they made 
application. To support their claim, they can submit medical 
records if they have them. If they do not have medical record, 
the agency, the Social Security Administration, will pay for 
them to get a consultative exam. This forms SSA's basis of 
evaluating someone's initial claim.
    The local office does not make the initial decisions. 
Rather, this is done at the State-level Disability 
Determination Service, or DDS. There is one DDS office in every 
State, and that is where nearly 2.5 million applications are 
first dealt with each year, and 33 to 35 percent of those 
applications are approved.
    If it is denied at the DDS level, a person can ask for a 
different--have a second set of doctors take a second look, 
called a ``reconsideration.'' If it is denied again, the person 
can appeal once more to request a hearing before an 
administrative law judge. Then that is the point that Senator 
Levin made. That is where our big backup is, at the 
administrative law judge level.
    At this level, a claimant's case is supposed to get a fresh 
review by an impartial judge who has independence to decide 
cases on their merits and the record. They are not bound by any 
prior DDS decisions. Social Security has over 1,300 
administrative law judges who handle the 700,000 appeals they 
get each year. I am thankful to the Social Security 
Administration for the chart they sent us last night listing 
receipts of applications, receipts for reconsideration hearings 
and appeals, as well as Federal court. And what it shows is the 
tremendous increase that we have seen and the burden placed on 
those people working at Social Security through the financial 
consequences of the recession that we have been in and a 
significant increase in the workload for the employees that 
work at the Social Security Administration.
    The question that I really have which concern me the most 
is that the initial approval rate is between 33 and 37 percent 
at the initial determination rate. That percentage on 
reconsideration, about a 14-percent approval rate, which 
figures out to be about a 3-percent approval rating based on 
the total number that were denied. So before you ever get to an 
administrative law judge, we have essentially approved about 36 
to 40 percent of those people who apply for disability. And 
these are professionals who do this, who work for the Social 
Security Administration. They understand. This is not a simple 
system. It is a complex system. In my mind, they do a very good 
job.
    However, each year approximately 600,000 to 700,000 
claimants file for a hearing in front of an administrative law 
judge, and on average, of those that are heard, about 61 
percent are approved. So the real question that I have is: Here 
are the professionals in the Social Security Administration who 
are taking the record, taking the facts, and making a 
determination. And 61 percent of the time, the administrative 
law judge disagrees with the professionals at the Social 
Security Administration.
    So one of two things is happening: either we are not 
getting it right at the Social Security Administration by the 
people who work these records, know these records the most; or 
we are not getting it right at the administrative law judge 
level. And the other question that the Committee has not looked 
at yet is: Who are the number of people who have been denied 
that should have gotten Social Security disability payments?
    So I hope that as we go through our hearing today, we can 
gain some better understanding for why the professionals at 
Social Security are so often countered by the administrative 
law judge. One of the two is not working well to increase that 
level, and that is a question that has to be determined by this 
hearing. We need to know the answer to that.
    Let me continue on my survey. If an administrative law 
judge denies a case, a claimant can appeal to the Social 
Security Appeals Council, and anything unresolved after that, 
they can go to Federal court.
    There is another problem. We have different standards on 
appeal by each appellate division. So a Federal judge or 
magistrate in Oklahoma City looks at his district precedents, 
which are different than maybe the Second Circuit precedents. 
So we actually at the Federal court level have a different set 
of standards based on precedents for who becomes qualified and 
who does not. And I think that--Mr. Chairman, we have not had a 
chance to discuss that--is something that should be uniform 
throughout the country. It needs to be the same everywhere, not 
different in any of the different ten circuits.
    The results of our inquiry, to me, were deeply troubling, 
and I think Social Security is right on top of this. They 
essentially found the same thing we did. What we found was 
poor-quality decisions being made about cases at every level of 
review. Over and over again, this investigation found the 
Social Security Administration failed to follow its own program 
rules and procedures. The importance of Social Security getting 
decisions right cannot be overstated.
    Moreover, the agency rarely checks to see if a person's 
condition improves. While it is supposed to perform continuing 
disability reviews, what in actuality happens is, what the 
agency does in terms of continuing disability review, it sends 
out a card and asks the question: ``Are you still disabled?'' 
That is not a review. And I understand the budget constraints 
and the difficulties with those continuing disability reviews.
    Overall, the Subcommittee in its investigation found 
serious flaws in more than a quarter of the 300 cases that we 
reviewed. That is not to say that they were in error in terms 
of their ultimate decision or that they were right in terms of 
their ultimate decision. What we found is that they were not 
following the rules, they were not looking at the evidence. And 
if I may, I would like to put up this one--the top ALJ errors 
that we discovered: inadequate physical examinations, 
inadequate mental evaluations, claimant credibility issues, 
drug and alcohol abuse that was unexplained, and incomplete and 
inaccurate records, which I would note for the bottom is 
probably the most important aspect. It ought to be complete, 
and it ought to be accurate if it is coming from an 
administrative law judge. It ought to be complete and it ought 
to be accurate.
    The most concerning findings involved decisions made by a 
few of the agency's administrative law judges. This was 
consistent with a review that you all have done. In 2011, the 
Social Security Administration's Appeals Council found a 22-
percent error rate in cases it reviewed that were made by ALJs. 
In the Dallas Region, which Oklahoma City is part of, the ALJ 
error rate was over 26 percent.
    The kinds of problems we found with ALJ cases were both 
numerous and troubling. There was conflicting data, missing and 
insufficient evidence to make a determination according to 
their own guidelines and their own rules.
    Oftentimes, medical evidence was ignored, not looked at at 
all, not considered at all.
    Second, many judges held perfunctory hearings at which 
claimants did not even say a word. Despite involving some of 
the most complicated cases, some hearings lasted only 3 
minutes--leaving barely enough time to gavel in and gavel out.
    A third problem involved judges using late-arriving 
evidence, which the agency discourages. Some ALJs raised red 
flags about what they called ``dead man's reports'' and ``store 
bought opinions.''
    Fourth, some ALJs would ask vocational experts leading 
questions that could only give one answer. That is not on the 
basis of fairness and getting to the truth. That is to try to 
get a result.
    While the Social Security Administration officials that 
were interviewed by the Subcommittee acknowledged that all of 
these were significant problems, they said there was little 
they could do about it because, by law, administrative law 
judges are given a lot of independence to make their decisions.
    The result is a tension between the agency's ability to 
control the quantity and the quality of a judge's work. Many 
people we interviewed said this tension was evident in how the 
Social Security Administration tried to reduce its enormous 
disability case backlog.
    Nearly everyone we talked to said there was enormous 
pressure on judges to push through as many cases as possible. 
In May 2007, Commissioner Michael Astrue told Congress that he 
would end the growing wait time for an administrative law judge 
hearing. To reduce this wait time, the agency encouraged 
judges, where appropriate, to consider skipping hearings and 
write decisions on the record.
    One judge we encountered in our investigation played a big 
role in this effort. Between 2000 and 2009, an administrative 
law judge from the Oklahoma City office singly handled 5,401 
cases--almost all of them on the record and without a hearing. 
His decision rate was four times faster than the average 
judge's.
    At first I was astounded that somebody could decide 1,800 
cases a year--especially since on average they are 500 pages 
long. I am a speed reader. I am a fast reader. There is no way 
I could have done that, ingested that information and made a 
decision on it. I still have questions on how that was 
possible. On average, he decided five cases a day, 365 days per 
year, for 3 years.
    I soon learned that he could move through them so quickly 
because the quality of his work left so much to be desired. 
Unlike the other ALJs, he simply cut-and-pasted electronic 
images of medical evidence into his decisions. To speed up the 
process even more, instead of specifically listing and 
discussing all of a claimant's medical impairments, he would 
just write ``etc, etc, etc.''
    Worse still, the images that were pasted into the opinions 
would sometimes have nothing to do with a person's claim for 
disability. In several cases, the records he pasted said the 
opposite of his findings. For example, in one case he found 
somebody could no longer work, but pasted in a medical record 
that concluded, ``Claimant can adapt to a work situation.'' The 
basis for his decision was exactly opposite of the decision 
that he granted.
    He was eventually asked by the agency to improve his 
decision writing. But instead of reducing his caseload to a 
manageable level, the agency began shipping him cases from 
around the Nation. He told us that at one point he was asked to 
do 500 cases just from Little Rock--an average judge's caseload 
for an entire year. When he finished those, he was sent cases 
from Atlanta, Houston, Greenville, Des Moines, and Yakima.
    Why the Social Security Administration did that is a 
question I would love to have answered today. I know the 
pressure was to decrease backlog. The question is, With what 
quality and with what outcome? Who was denied that should have 
gotten disability? Who got disability that should not?
    The problems we found, however, were not limited to 
administrative law judges. The Subcommittee also identified a 
number of issues with the cases the State Disability 
Determination Services were making at both the initial and 
reconsideration levels as well.
    One of the biggest problems was in how the agency used its 
Medical-Vocational Rules. This complex set of rules--known as 
``the grids''--are for people who do not qualify under the more 
difficult ``medical listings,'' but might still be disabled.
    The grids contain a variety of factors--such as a person's 
age, education, and work experience--laid out in a large set of 
charts. Depending on whether a claimant can perform sedentary, 
light, medium, or heavy work, agency decision makers can use 
the charts to find out whether someone is disabled or not 
disabled. Finding someone disabled this way is referred to in 
the agency as ``gridding.''
    While most disability awards were at one time made to 
people who met the medical listings, today it is the opposite. 
The ratio is now 4:1 gridding versus a medical determination. A 
recent analysis by the agency found that ALJs awarded benefits 
through the vocational grids four times more often than through 
medical diagnoses.
    Another problem is that the grids are easily skirted. 
Frequently, the Subcommittee found that even if the grid found 
someone not disabled, ALJs would overrule it and award 
disability benefits, anyway.
    The most frequently seen problems involved the use of a 
claimant's age. The grids relax the rules for claimants once 
they turn 50 and then again at 55, appropriately so, making it 
progressively easier for applicants to be accepted when they 
hit these ages. And we all understand that. That is 
understandable and logical.
    In a lot of cases, the grids found someone was too young 
when their ailment started, and so they were not disabled. The 
ALJs then would just change the disability onset date to the 
claimant's 50th or 55th birthday. By doing so, the claimant now 
qualified under the grids. Nothing indicated that the person 
was more disabled on their 50th birthday than they were the day 
before.
    The conclusion is the purpose of this program is to make 
sure that all of our citizens who are truly disabled we help 
and that the safety net be secure. It should be remembered, 
though, that by the law, by the statute, being disabled means 
``being unable to work any job in the national economy.'' This 
is a high bar to meet. The agency must make sure it is awarding 
benefits to people who are entitled to them. If something does 
not change and the programs continue to operate the way they 
are today, there will not be a safety net left. The trust fund 
will be out of money. And those that are truly disabled will 
see a reduction in the payments of their benefits.
    So if, in fact, we are accurate to this point, it means 
Congress has to do something to increase the funding for these 
programs, either through increasing the tax rates that apply to 
them or changing the definitions.
    We can start by putting--and I know my Chairman disagrees 
with this, but we can start by putting somebody representing 
the taxpayer in one of these hearings, and just having them 
there will change ALJ behavior, somebody else who knows all the 
record. And my real worry, Mr. Chairman, as we looked at this, 
is that the record was not thoroughly reviewed oftentimes in 
many of the 300 cases that we looked at. And having somebody in 
the room that will force the ALJs to truly look at the whole 
record will make a big difference in the quality of the 
decisions and also the rules by which they make those 
decisions.
    I also would note that this is supported by the ALJs 
themselves and their union. It has been a long-time-standing 
recommendation of the Social Security Advisory Board, the 
bipartisan board created to advise both the President and 
Congress of the changes needed to the agency's programs.
    Other simple changes would also go a long way as well:
    The evidentiary record should close at least 1 week before 
the ALJ hearing to give the ALJ the opportunity to judge that 
information in light of the whole record. Late evidence would 
simply mean rescheduling. It would not mean the evidence would 
not be considered.
    The vocational grids must be eliminated or reformed so that 
someone who is 50 years old is no longer ``approaching advanced 
age in the United States.''
    These and other reforms outlined in today's report I 
believe are, at a minimum, what should be considered by 
Congress if we are to, in fact, continue what our ultimate goal 
is: to truly help those people who have become disabled with 
their life skills and their income as they mature.
    Mr. Chairman, again, I thank you for this hearing, and I 
look forward to the testimony of our witnesses.
    Senator Levin. Well, again, thank you, Dr. Coburn, for this 
thorough report of the report.
    We will now call our first panel of witnesses for this 
morning's hearing: Judge Patricia Jonas, the Appellate 
Operations Executive Director and Deputy Chair of the Appeals 
Council at the Office of Disability Adjudication and Review of 
the Social Security Administration; and Judge Debra Bice, Chief 
Administrative Law Judge at the Office of Disability 
Adjudication and Review of the Social Security Administration. 
We appreciate both of you being with us this morning. We look 
forward to your testimony.
    Pursuant to our rules, all witnesses who testify before the 
Subcommittee are required to be sworn, and at this time I would 
ask you both to please stand and raise your right hand.
    Do you swear that the testimony that you will give before 
us today will be the truth, the whole truth, and nothing but 
the truth, so help you God?
    Judge Jonas. I do.
    Judge Bice. I do.
    Senator Levin. We will be using a timing system today. One 
minute before a red light comes on, you will see the lights 
change from green to yellow. That will give you an opportunity 
to conclude your remarks. Your written testimony will be 
printed in the record in its entirety. Please limit your oral 
testimony to no more than 7 minutes.
    Judge Jonas, we are going to have you go first, followed by 
Judge Bice, and then after we have heard your testimony, we 
will turn to questions. So please proceed, Judge Jonas.

 TESTIMONY OF JUDGE PATRICIA A. JONAS,\1\ EXECUTIVE DIRECTOR, 
OFFICE OF APPELLATE OPERATIONS, DEPUTY CHAIR, APPEALS COUNCIL, 
 OFFICE OF DISABILITY ADJUDICATION AND REVIEW, SOCIAL SECURITY 
             ADMINISTRATION, FALLS CHURCH, VIRGINIA

    Judge Jonas. Chairman Levin, Ranking Member Coburn, and 
Members of the Subcommittee, thank you for the opportunity to 
appear before you today. My name is Judge Patricia Jonas. I am 
the Executive Director of the Office of Appellate Operations 
and the Deputy Chair of the Appeals Council for the Office of 
Disability Adjudication and Review (ODAR). Since 1940, the 
Appeals Council (AC) has helped oversee the hearings process by 
reviewing hearing procedures and decisions. I oversee 
approximately 75 administrative appeals judges who review a 
portion of our administrative law judges' (ADJs) allowances and 
denials.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Jonas appears in the Appendix 
on page 55.
---------------------------------------------------------------------------
    Prior to Commissioner Astrue's arrival, we had performed 
very little quality review at ODAR. This was due to several 
years of litigation and congressional reaction to the Bellmon 
Review in the 1980s and budget shortfalls. As a result of that 
litigation and congressional reaction, our policy guidance and 
feedback to our ALJs was very limited. In fact, for many years, 
a remand order was the primary feedback from the Appeals 
Council to ALJs. While this method of feedback and guidance to 
ALJs is still an appropriate mechanism to address individual 
cases, it has limitations. For example, the number of remands 
to any ALJ is relatively small, and it was generally limited to 
unfavorable decisions. Today, however, we are better leveraging 
the Appeals Council's unique position, our General Counsel's 
Office, and the Federal courts to provide better feedback. The 
key, as Commissioner Astrue advocated, was to institute a more 
balanced quality review into the hearings process.
    First, we developed serious data collection and management 
information for ODAR, and we also developed an electronic 
policy compliance system for the Appeals Council. These new 
tools permitted the Council to capture a significant amount of 
structured data about the application of agency policy in 
hearing decisions.
    In 2010, our Office of Quality Performance instituted an 
independent national review of hearings decisions to ensure a 
consistent and comparative review for all three adjudicative 
levels of our disability process. In 2009, Commissioner Astrue 
reestablished the quality review function in the Appeals 
Council, known as the Division of Quality, that reintroduced a 
sample review of favorable hearing decisions. It took nearly a 
year to fully implement this office because we had to hire, 
train, and obtain office space for about 50 staff to review 
hearing decisions to identify quality issues.
    In September 2010, the Division of Quality began reviewing 
favorable decisions. These new quality initiatives have 
improved our feedback and policy guidance. The data we have 
collected identify the most error-prone provisions of the law 
and regulations and help us better train our ALJs, which 
include annual judicial training and mandatory quarterly 
training for all ALJs. We also recently implemented a new 
process that expands the opportunity for ALJs to provide 
feedback to the Appeals Council on its remands. Improved 
communication increases consistency.
    We also provide feedback on decisional quality, giving 
adjudicators real-time access to their remand data. We provide 
specific training that focuses on the most error-prone issues. 
In addition, we provide individualized training as needed. In 
2011, the Graduate School USA recognized our government-leading 
training model with the prestigious W. Edwards Deming Training 
Award.
    These efforts are testing some longstanding traditions 
within ODAR. We are moving from training based primarily on 
anecdotal information to using data to identify issues. We 
develop training to refresh ALJs on policy and offer skill-
based training to improve the adjudicators' efficiency and 
accuracy.
    At the same time, we share this information so that the 
ALJs can more readily use it. Increased feedback and 
communication is improving our hearings process. Of course, 
opportunities for continued improvement remain.
    I understand the Subcommittee is releasing the report on 
300 disability cases. We recognize that the sample of cases 
selected for the report will limit the ability to generalize 
conclusions from the study, but that said, we believe that the 
report highlights the same concerns we have already identified, 
and we hope to work with you on further improvements to this 
vitally important program.
    While my office has not yet reviewed the 300 disability 
cases provided the Subcommittee, the agency's Office of Medical 
and Vocational Expertise did a basic review. I understand that 
they found a number of policy issues that are consistent with 
what we saw when the Division of Quality conducted a national 
random sample review of favorable hearing decisions in FY 2011. 
Two areas of concern were the evaluation of medical opinions 
and the assessment of residual functional capacity. Based on 
data from this review, we provided mandatory training to all 
ALJs on RFC and evaluation of medical source opinions.
    Just as with the cases we see at the Appeals Council, the 
majority of the ALJs in the cases that the Subcommittee 
requested appear to have complied with our policies. However, 
there are examples in which ALJs were not policy compliant in 
evaluating the appropriate weight given to a medical source's 
opinion and in assessing the claimant's residual functional 
capacity. There were also several case examples from one ALJ in 
which the written decision appeared inaccurate and contained 
boilerplate information that was not relevant to the individual 
claimant. The Division of Quality had identified the same issue 
in the random sample review, and as a result, the Chief ALJ 
instructed the ALJ to discontinue this practice. This example 
shows that our improvements are producing positive results, and 
we are committed to continuing our progress in this area.
    Finally, to guide our ongoing quality improvement efforts, 
we have partnered with the Administrative Conference of the 
United States (ACUS). Later this year, ACUS will issue 
recommendations on several areas of our hearings process, 
including the scope and manner of Appeals Council review, the 
duty of candor and the submission of all evidence, and the 
effect of the treating physician rule on the role of the courts 
in reviewing our disability decisions. We look forward to ACUS' 
findings to help us further improve the quality of our hearings 
and appeals process.
    Thank you, and I am happy to answer any questions you may 
have.
    Senator Levin. Thank you so much, Judge Jonas. Judge Bice.

  TESTIMONY OF JUDGE DEBRA BICE,\1\ CHIEF ADMINISTRATIVE LAW 
  JUDGE, OFFICE OF DISABILITY ADJUDICATION AND REVIEW, SOCIAL 
        SECURITY ADMINISTRATION, FALLS CHURCH, VIRGINIA

    Judge Bice. Chairman Levin, Ranking Member Coburn, and 
Members of the Subcommittee, thank you for the opportunity to 
appear before you today. My name is Judge Debra Bice, and I 
serve as the Chief Administrative Law Judge in the Office of 
Disability Adjudication and Review. I am responsible for 
overseeing approximately 1,500 administrative law judges. We 
strive to make the correct decision as early in the disability 
process as possible so that a person who is eligible for 
disability benefits receives them in a timely manner.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Bice appears in the Appendix on 
page 65.
---------------------------------------------------------------------------
    Our administrative review process generally consists of 
four levels: initial determination, reconsideration 
determination, hearing, and appeal.
    The provisions in the Social Security Act and regulations 
have been incorporated into a standardized five-step process 
for making disability decisions called the ``Sequential 
Evaluation Process.'' A disability adjudicator must use this 
process to arrive at fair, legally sufficient, and legally 
defensible decisions.
    Since the Social Security Board established the hearings 
and appeals process in 1940, we have sought to balance the need 
for accuracy and fairness to the claimant with the need to 
handle a large volume of claims in an expeditious manner.
    ALJs decide cases de novo, meaning that they must review 
cases with fresh eyes and are not bound by the determinations 
made at the prior levels of the disability process. This is an 
important principle because a case at the hearings level is 
often very different from what it was at the initial or 
reconsideration levels. There may be new evidence for the judge 
to consider as well as the testimony of the claimant, medical 
and vocational experts, and other witnesses at the hearing.
    In addition, any change in the claimant's vocational 
profile, such as age, education, or work experience, must be 
considered. Thus, an ALJ's decision to allow a claim on appeal 
does not necessarily mean that the earlier determination was 
incorrect.
    At one time there was a common belief within the agency 
that an ALJ's qualified decisional independence meant that ALJs 
were independent and not accountable for their conduct and 
their work. Under Commissioner Astrue's leadership, we have 
held ALJs accountable where the law permits. Fortunately, most 
ALJs welcome feedback and want to follow policy. The vast 
majority of issues are resolved informally by hearing office 
management. When they are not, management has the authority to 
order an ALJ to take a certain action or explain his or her 
actions. ALJs rarely fail to comply with these orders. In those 
rare cases where the ALJ does not comply, we may order 
counseling or issue a reprimand. However, the law forbids us 
from taking stronger measures, such as removal or suspension, 
unless the Merit Systems Protection Board finds that good cause 
exists.
    In egregious cases, we have been able to remove ALJs, but 
only after completing the lengthy MSPB disciplinary process, 
which can take several years and can consume over $1 million of 
taxpayer resources. Unlike other civil servants, the ALJs we 
seek to remove receive their full salary and benefits until the 
full MSPB sustains the removal. ALJs do not repay that money 
even if the MSPB ultimately sustains the disciplinary action. 
During this period, we place ALJs on administrative leave to 
protect the public, and they do not hear or decide cases.
    Thank you, and I will do my best to answer any questions 
you may have.
    Senator Levin. Thank you very much, Judge Bice.
    Let us have a 10-minute first round, and we can go back and 
forth.
    You have exhibits there in front of you, I believe. If you 
would look at Exhibit 22,\1\ this is a 2001 report from the 
Division of Quality, and last year the Social Security 
Administration set up a new quality review process to examine 
actions taken by the ALJs in disability cases. If you look at 
page 2 of that report, it indicates--I misspoke. Exhibit 22 is 
a 2011 report from the Division of Quality. Page 2 indicates 
that the quality review looked at 3,692 cases that were 
effectuated, 2,880 remanded, 665--I am sorry. Let me repeat 
this.
---------------------------------------------------------------------------
    \1\ See Exhibit 22, which appears in the Appendix on page 889.
---------------------------------------------------------------------------
    It looked at 3,692 cases; 2,880 were effectuated, 665 
remanded, decisions issued on 147. First, Judge Jonas, can you 
tell us what each of these categories are and what these 
actions mean?
    Judge Jonas. Thank you, Senator, for the question. I am 
going to begin with own motion review for a moment because I 
think it can be confusing. It is a technical term from the 
Social Security regulations, 404.969. And as you mentioned at 
the beginning, a percentage of own motion is not necessarily an 
indication of error in the outcome of the decision. I think 
that it can be misconstrued at times. It is more a measure of 
whether the ALJ followed the agency policy in arriving at the 
decision. So perhaps it is simpler to think of it as saying 
that the decision may be premature, that there was some further 
policy that the ALJ needed to comply with.
    The regulation 404.969 requires a random sample selection 
of cases. The number of cases, the 3,692, were the number of 
cases that were selected from that random sample that the 
Division of Quality considered during the fiscal year. 
Effectuation means that in the consideration of that case they 
believed that the ALJ had complied with the policy. They did 
not take review of the case and let it go forward for payment. 
So out of that, 78 percent of those were felt that they could 
go forward with payment.
    For the remands, the 665 means the cases in which they took 
own-motion review and decided that the case needed to be 
returned for a hearing or for some further action. In some 
cases, the Division of Quality issued a decision on their own, 
and that decision category, 147, reflects that. That might be a 
situation in which the decision itself was correct, but the 
onset date was in error. And so the Division of Quality has the 
authority to issue a decision.
    For those cases in which an attorney-advisor issued a 
decision, where the case needed a hearing, it had to be 
remanded. So 22 percent reflects the combination of those cases 
that were remanded and those cases in which the Appeals Council 
Division of Quality issued their own decision.
    Senator Levin. Could that decision be to affirm, or was 
that a decision which would reverse?
    Judge Jonas. If they had the information in the record 
where they could have affirmed, they did. Some of the decisions 
were denial decisions, some were later onsets, some were to 
correct the decision itself. If a decision had something 
inaccurate that would have prevented a continuing disability 
review at a later time, the Division of Quality issued a 
corrective decision.
    Senator Levin. So is it fair to say that about 20 to 22 
percent of the reviewed files contained errors or an inadequate 
basis for the decision?
    Judge Jonas. That is correct.
    Senator Levin. Were you surprised by that figure, 22 
percent?
    Judge Jonas. Senator Levin, this last year we reviewed over 
150,000 denial decisions. The main workload of the Appeals 
Council before this Division of Quality was instituted was the 
review of denial decisions, and we had seen--I am not going to 
describe it again as an ``error rate''--sort of the equivalent 
in a denial. It is a decision to grant review of a case when 
the claimant is denied and requests review by the Appeals 
Council, and that runs at about 20 percent this last year. So 
it is equivalent.
    Senator Levin. Were you surprised by the large number, or 
does that not strike you as a large number? A large percent?
    Judge Jonas. A large percentage, it is very concerning.
    Senator Levin. On the gridding matter, you have talked 
about gridding and Dr. Coburn talked about gridding. These are 
grids developed by the SSA for different levels of work, with 
columns for certain characteristics of the person seeking 
benefits, such as age, education, work experience. Are these 
grids guidance for the decision makers? Or are they directions? 
Are they binding?
    Judge Jonas. The application of the medical-vocational 
guidelines depends on what the claimants' impairments are. If 
they have exertional limitations only, then those medical-
vocational guidelines will direct a result. If there is a 
combination of impairments, both exertional and non-exertional, 
then those medical-vocational guidelines are, in fact, that. 
They are a guideline, not a direction.
    Senator Levin. Do you think the ALJs know that?
    Judge Jonas. Yes.
    Senator Levin. They know which are binding and which are 
guidelines that are not binding?
    Judge Jonas. Yes, sir.
    Senator Levin. You think that has been clear with the ALJs. 
OK. I notice that there is a reduction in the allowances in 
each of the four levels from 2010 and its previous years and 
2011. If you look, for instance, at the initial allowance rate, 
in the 5 years that this chart provides or looks at, it went up 
from 35-percent allowances at the lowest level to 37 percent in 
2009 and then down to 33 percent in 2011, which was the lowest 
percent allowed of the 5 years. On reconsideration, the 
allowance rate was 13 percent, then 14 percent, then 13 
percent. And then in 2001, it went down to 12 percent, which 
may not seem like a lot, but 1 percent when you are talking 
about 12 or 13 percent is a significant change.
    On hearings, the hearing allowance rate went from 61 
percent, which was steady--this is the ALJ level--for the 4 
years before 2011, and then in fiscal year 2011 dropped to 56 
percent.
    The allowance rate at the Appeals Council was steady at 2 
percent, but even at the Federal court level, it went from 5 
percent to 4 percent to 3 percent. So it would look as though 
there are fewer disability findings for the applicant in 2011 
as a percentage than it was in the previous 4 years. Is that 
significant? And if so, why?
    Judge Jonas. Senator, I think that there are a variety of 
factors that go into the outcomes into these percentages. I am 
certainly not an expert on the case workload at the initial or 
the reconsideration levels to give you a clearer understanding 
of why there has been a reduction. I think there are some 
issues with regard to the demographics, the type of claims 
coming forward.
    In looking at the significant reduction in terms of the ALJ 
level, I think that, again, we are seeing cases that have 
different demographics, perhaps younger individuals. Judge 
Bice, maybe you----
    Senator Levin. I mean, does it show, for instance, that 
there is greater care being taken? Is that a reflection, or is 
it premature to say that? Judge Bice, just perhaps we would get 
your comment, and then I will call on Dr. Coburn.
    Judge Bice. And, again, I am not an expert on that, but I 
think what Judge Jonas was mentioning is the change in 
demographics, and I know when I was hearing cases, I was seeing 
a lot more younger people applying, or maybe people who had 
been working and had lost jobs and were also applying. But I 
also think and I am very hopeful that it is a result of some of 
the increased efforts we have made on training our judges on 
our correct policy. As Judge Jonas mentioned, we have started a 
quarterly training for all of our adjudicators, and we have 
been hitting some of these most error-prone areas that were 
identified in her reviews.
    Senator Levin. Thank you.
    Judge Jonas. Senator Levin, I might supplement this as 
well. We have had a significant turnover in staff that support 
the administrative law judges over the last 5 years, and we 
have had the opportunity to have significant amounts of 
training for support staff as well as for the administrative 
law judges. I am cautious about saying that the reduction is 
the result just of increased quality. But I agree with Judge 
Bice; I think it is a significant part of this decision.
    Senator Levin. Thank you. Dr. Coburn.
    Senator Coburn. Thank you. Judge Bice, I just want your 
opinion on this. Are the rules for determining disability clear 
enough so that two trained, knowledgeable professionals could 
look at the same case and come up with the same decision? In 
other words, how subjective is this? If I went before and had a 
disability that was borderline and you had two ALJs looking at 
it, they all looked at exactly the same information, are they 
going to come to the same result?
    Judge Bice. No, and one of the factors is the qualified 
decisional independence of the judges. We do not tell the judge 
how to decide a specific case or put agency pressure on that. 
But we all follow the same law, regs, and agency policy. And we 
have invested a lot of time and effort into training our judges 
so that they all have that same understanding of the law. And I 
believe in most cases the vast majority of our judges do reach 
the right conclusion. They are very dedicated public servants. 
They want to apply the law correctly. They follow agency 
policy. At the hearing level, you can have a lot of conflicting 
medical evidence, and there really is substantial evidence to 
support different conflicting results.
    And so that is the job of the judge. I always tell our 
judges, ``Do not abdicate your role as a judge. Really develop 
it. Ask those difficult questions, make those difficult 
decisions.'' But they need to assess the credibility of the 
claimant. This is the first time that anyone is seeing the 
claimant and talking to the claimant about the claimant's 
testimony about their subjective symptoms, about their 
activities of daily living. Sometimes we get new information. 
So that can make a difference.
    Senator Coburn. So tell me why--what was the reasoning that 
the Social Security Administration has discontinued the 
Minnesota Multiphasic Personality Test for use by the ALJs 
since it is--as a trained medical professional, I know how to 
use that test, and so do ALJs. Why have they been excluded from 
using that test?
    Judge Bice. Senator Coburn, I would like to get back to you 
on the record for that. That is really an area for disability 
policy people. As judges, we administer the policy that is 
created, and, while you are a doctor, I am not.
    Senator Coburn. Well, does it make sense to limit the 
ability of ALJs? Given that part of their problem is 
independence or part of their advantage is truly independence, 
why would we limit their ability to use a very well proven, 
half-century-old psychological technique to look at--why would 
we take that tool away from ALJs? Can you give me any 
explanation of why you would think that should not be in the 
armamentarium of an ALJ in assessing a case?
    Judge Bice. I am going to defer to our disability policy 
people and ask to get back to you on the record for that.\1\
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    \1\ See Exhibit No. 23 which appears in the Appendix on page 900.
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    Senator Coburn. All right. Would you make sure that comes 
to me?
    Judge Bice. I will make sure it does.
    Senator Coburn. Thank you.
    Judge Bice. Thank you.
    Senator Coburn. We have concluded pretty much what the 
Social Security Administration has in terms of cases that do 
not meet the requirements for quality. What are the three 
biggest problems, Judge Bice, that you see that account for 
that lack of almost a quarter of the cases do not fit to the 
parameters of quality in the decisions?
    Judge Bice. Thank you for the question. I think it is 
important to recognize your cases came from 2006 to 2009. We 
have really invested a lot in training since then. I think the 
first one is the quality review that Judge Jonas spoke about.
    Senator Coburn. We did have cases in 2010.
    Judge Bice. Oh, OK. I am sorry, so 2010. But as Judge Jonas 
said, it was in 2010 that we were really starting that quality 
review. I know as a judge I received very little feedback 
initially. I could get remands that would tell me if I did 
something wrong, but that was usually on a denial. I was not 
receiving ongoing feedback on the favorables. Now, with the 
Division of Quality, we are providing that information to our 
judges, and we are actually providing it to them now in real 
time. We created an electronic tool where they can go in daily 
and see what the Appeals Council has seen on their cases. And 
we are also providing information. We are working on developing 
a training tool for them so that when they see that they have 
made an error, according to the Appeals Council--either a 
remand or a decision by the Appeals Council--they can click on 
a link and get a summary of what the policy is and examples of 
how they should apply that policy in real life.
    So these are the things we are trying to give back to the 
judges--that feedback on an ongoing basis. And we really 
believe most of our judges will self-correct if they get that 
information.
    Senator Coburn. Do you all know by judge error rate in 
terms of compliance with the rules?
    Judge Bice. I am going to defer to Judge Jonas.
    Judge Jonas. Senator, as I mentioned earlier, in our denial 
reviews--over 100,000 each year--we have information about the 
mistakes or the errors or the concerns--the policy issues--and 
certainly we make that available. And the point I think Judge 
Bice was making about individual accountability is sort of a 
national approach that we have been using for training that I 
summarized in my testimony about using data that it is not 
anecdotal anymore. So an ALJ knows that these are the issues 
that they are having.
    So we have a national approach to provide the information 
so that it is consistent to the ALJs and to the senior 
attorneys so that they are informed. And at the local level, 
they have got the tool that Judge Bice was discussing.
    But these are complicated--I think you addressed this 
during your opening, that these are complicated rules. People 
work very hard. We think that most people who come to work want 
to do a good job, whether you are at the DDS or at the ALJ 
level. So we have a lot of information. They have a record to 
review. We want to give them tools that they can use to assist 
them and do this, not just to make them more effective but also 
efficient in doing what they are doing.
    So one of the tools that we have been developing--I 
discussed it in my testimony--at the Appeals Council level, 
developing a policy-compliant tool for analyzing cases. We are 
developing a policy-compliant tool for the judges to use at the 
hearings level.
    Judge Bice. In fact, it is an electronic bench book, and 
actually we have been training on it in this last month, and 
this is going to be a policy-compliant electronic tool to help 
the judge in the adjudication of their claim. For instance, one 
example would be when the judge gets to the step on the 
listing. In this electronic tool, it will actually bring up the 
most current section of that listing and the specific areas 
that must be met in the record, and then we go through that, 
and it helps the judge make sure that they are making a correct 
decision at that level.
    Senator Coburn. You discussed the difficulty and the time 
constraints and the Merit Review Board of taking and 
terminating a judge who is noncompliant. I think your figure 
was $1 million, was what the cost was. Three cases wrongly 
decided is $1 million, on average. And when you have an ALJ 
that is an outlier--and let me State, the vast majority are 
wonderful public servants. There is no complaint there. But the 
fact is what we have discovered, like in Oklahoma City, one 
judge had a significant problem with quality. And no wonder. He 
was doing 1,500 cases a year.
    So I go back to this. Is somebody in the Social Security 
Administration tracking judge by judge based on quality so you 
know who is the problem and who is not? Where is the management 
to say here is a judge that has a 40-percent error rate in 
terms of the quality, not whether they decided the case right 
or wrong, but in terms of meeting the standards that you expect 
an ALJ to do, where is the management system to hold them 
accountable? That is what I am asking.
    Judge Bice. In a broad area, we take the results of the 
reviews done at the Division of Quality. And I believe they are 
valid at the regional level, correct? They do not go down to 
the judge level. So we do not have any valid data at that judge 
level, but just like in your report, we found what those common 
errors are, and we are addressing those with all of our judges, 
because if those are common errors, we are going to hit all of 
our judges and make sure that they are trained on that and that 
they are given the tools. This quarterly training we do is a 
cooperative effort. It is from the Appeals Council.
    Senator Coburn. I understand that, and I am not trying to 
be confrontive. But my point is, let us say you do all that, 
and in our region out of Dallas, we still have five judges that 
do not comply with your quality standards, do not follow the 
training. Who is watching that? And where is the control for 
that on a per judge basis?
    Judge Bice. Let me give you the example of what we do when 
we find judges that are not compliant with policy, and it might 
come various ways.
    Senator Coburn. And this is a rarity.
    Judge Bice. I know.
    Senator Coburn. I am not trying to generalize that this is 
across the board.
    Judge Bice. But we share your concern, and so we start with 
training. That is our building block. We go to the judge. We 
make sure that that judge has been trained on the policy. If 
they need remedial training, we will give them that. And this, 
again, is the broad approach that we take to this. And then we 
will monitor to make sure that that judge is now complying with 
the policy that we have trained them on.
    If we find that that judge continues to be noncompliant, we 
can issue a directive to the judge saying, ``You have been 
trained on the policy. The expectation is that you will follow 
that, and if you do not, we can take disciplinary action.'' 
Most of the judges going down this path, correct. But if they 
would not, after we had issued a directive to follow the 
policy, then we could start down a disciplinary track.
    Senator Coburn. So you are keeping track.
    Judge Bice. As we become aware of it. I am not keeping 
track individually because I do not have valid data. But if I 
from other sources become aware of problems----
    Senator Coburn. I guess then that is my question. Why would 
that not be part of the management system of the ALJs and the 
Social Security Administration to not track the four or five or 
ten outliers out of 1,500 to know when you have a problem and 
correct it rather than to anecdotally discover it.
    Judge Bice. And, again, I think because we do not have 
valid data at the judge level, so----
    Senator Coburn. OK, but what I am asking is why haven't you 
developed valid data at the judge level?
    Judge Jonas. Senator, certainly you have talked about that 
phrase ``outliers.'' So an outlier could be in terms of the 
outcome of the decision is one issue.
    Senator Coburn. Well, I was very specific. I am saying they 
do not meet the quality parameters under which you all say are 
the guidelines for which they should make a decision. I am not 
talking about the results of the decisions. I am talking about 
the quality of the work product as inside your guidelines.
    Judge Jonas. I am going to refer back to the testimony that 
I gave at the beginning just as a predicate for my answer, and 
it is the notion about litigation and concerns about the 
Bellmon Review. I mentioned that our review at the Division of 
Quality is a random sample. That regulation and the comments 
that came to it from 1998 reflect part of that history of 
litigation with regard to what was then described as targeting 
ALJs about outcomes.
    The random sample does give us some indications where there 
is an issue. As an example, in our Division of Quality, if we 
are seeing cases even just coming in on the random sample 
repeated from a judge who is not following that policy--say 
four out of the four cases they reviewed they took own motion--
then it allows us to go back and do a focused review as to what 
might be happening. We do not want to draw assumptions just on 
the basis of a handful of cases. We want to know a little bit 
more. What Judge Bice was alluding to earlier is we want to 
make sure that there is not something about the circumstance 
that the judge is working in that might be directing something, 
and it might be the type of cases he received or something in 
the hearing office that might be impacting that. So it requires 
us to look a little bit more deeply.
    Senator Coburn. So I understand this, because I am going to 
be on this for the next 4 years, you are saying, given previous 
case law and the Bellmon Review, that you are prohibited from 
actively managing quality parameters of ALJs. Is that what your 
testimony is?
    Judge Jonas. My testimony is that in our understanding of 
and your concern about respecting the administrative law judge 
qualified decisional independence, we are cautious about how we 
use information and how we follow those regulations. I do not 
think it precludes us from looking at individual ALJs. The 
Commissioner has a responsibility for oversight of the program 
and can look at any decision at any time. But we want to be 
cautious about that and careful. We want to be sure that we are 
doing this in a way that will facilitate improvement of the 
program. So when we look at an individual, if there is 
something about that case or something about the way a case has 
been adjudicated, we will look more carefully before we draw a 
conclusion. I think that requires us to manage very carefully 
at the administrative law judge level.
    Senator Coburn. But your testimony still is you do not have 
the capability to find the outliers through your management 
system. For example, in Oklahoma City, one of the 
administrative law judges that we interviewed and that we 
looked at their cases, the one that did over 5,100 cases in 3 
years, you do not have a management system to say that is going 
on, nor a flag that says somebody is handling four times as 
many cases as everybody else is handling, and we have no 
management system with which to deal with that.
    Judge Bice. I think we have a system. We get information 
from the reviews that are done, because if the Appeals Council 
does see something in the review, they are letting me know, and 
then we are taking further looks at that. We also get it from 
maybe bias complaints and all that. But it would take a lot 
more resources than we have right now to review. We have 
several hundred cases for every ALJ to get a valid sample. So I 
do not have the resources, and I do not think Judge Jonas has 
the resources, but we are looking--we are very concerned. I am 
very concerned about judges that pay a high number of cases, 
judges that pay a low number of cases, judges that produce a 
whole lot of decisions, judges that produce very little 
decisions. And we are looking at a number of factors, other 
factors in addition to just those, to try and identify judges 
or offices where we need to take a closer look. And when we 
have that data that says we should take a closer look, then we 
can perhaps do a focused review.
    Senator Coburn. Well, I am way over my time, and I want to 
defer to my Ranking Member. I would just ask that you all 
submit to this Committee what your management system is to 
capture, not after the fact but to anticipate outliers in the 
future, because the importance of that is creating the 
expectation on the ALJs that they will operate within the 
bounds that they are asked to operate within. And if there is 
no expectation, then there will not be any change in 
performance. And so all I am asking is what is the system and 
send it to me so we can look at it and analyze the management 
system for that.
    I understand the independence issue, but it does not change 
the fact that if the expectation is I am free to do whatever I 
want in the poorest quality that I want, like we saw on these 
5,100 cases, I would love to see somebody review those 5,100 
cases just to see what was the quality, because the samples 
that we got show a tremendous high number of problems--not in 
terms of outcomes necessarily but in terms of following your 
own guidelines on how those cases are to be decided.
    Thank you.
    Senator Levin. Thank you, Senator Coburn.
    Our Ranking Member, Senator Collins.

              OPENING STATEMENT OF SENATOR COLLINS

    Senator Collins. Thank you, Mr. Chairman.
    First, let me commend you and Senator Coburn for 
undertaking this investigation. I believe that there are very 
serious fairness and fiscal issues that are at stake. The 
fairness issues are obviously that we want to make sure that 
individuals who are unable to work and meet the high standard 
of being unable to perform any substantial gainful activity in 
the economy receive their benefits and do so promptly. At the 
same time, we want to make sure that those who do not qualify 
are not receiving benefits, and this is particularly important 
because of the fiscal issue.
    As Dr. Coburn has reminded us, the trustees of the Social 
Security system project that the disability insurance component 
of the trust fund will be exhausted in the year 2016. That is 
truly alarming and calls upon us to make sure that those who do 
not meet the standards are not receiving benefits as well as 
making sure that those who do meet the standards receive their 
benefits.
    Mr. Chairman, I suspect that you remember back in 1983 and 
1984 that Senator Cohen and you did an in-depth investigation 
on the Social Security Disability Program. I was a staffer on 
that investigation, and ironically, what we were looking at 
back then was the fact that people who clearly lacked the 
ability to work were being denied benefits unfairly. So it 
happens on both sides, and that is why we have to be careful as 
we proceed here not only to preserve the independence of ALJs 
but to recognize that they are an important check on a system 
that back in 1983 and 1984 produced outcomes that were just 
inexplicable. I remember one infamous case was an individual 
who literally was in an iron lung and was found to have work 
capacity. And so it does go both ways.
    But that brings me to follow up on Dr. Coburn's question on 
outliers. Now, if the Wall Street Journal in its article last 
year was able to identify this ALJ in West Virginia who 
approved 100 percent of some 729 cases and then also indicated 
that there were 27 judges that awarded benefits 95 percent of 
the time, it seems to me that, if the paper can come up with a 
system, Social Security ought to be able to come up with a 
system that identifies outliers. And, again, I want to 
emphasize there can be outliers on both sides. There can be an 
ALJ who, for reasons that do not follow the standards, is 
turning down everybody as well as someone who is approving 
everyone.
    But my question is very similar to Dr. Coburn's. Doesn't 
Social Security have a system to identify outliers and then 
take a look at their cases and see if more training is needed, 
if there is a disregard for standards, if there perhaps is an 
alcohol or drug abuse problem? There could be numerous reasons 
for it. Is there no system now in place that automatically 
flags the true outliers? Judge Jonas or Judge Bice, I am not 
sure which of you I should be directing this to.
    Judge Bice. I will start, and then I will defer to Judge 
Jonas. We do have a system where we can track the judges that 
are paying a lot of cases or denying a lot of cases, producing 
a lot or producing very little. We have good statistical data 
on that.
    Senator Collins. But that is the number of cases.
    Judge Bice. Right.
    Senator Collins. That is a different issue.
    Judge Bice. The quality is much more difficult to track, 
and I will defer to Judge Jonas on that. But I want to mention 
one thing in terms of expectations for our judges. This year I 
issued a memo to our judges. We are not silent on what we 
expect our judges to be doing in terms of quality. I issued a 
memo to all of our adjudicators, administrative law judges and 
senior attorneys, as to what they need to be doing, and it is 
many of the things that you found in your report. We talked 
about that their decisions have to have a very specific 
residual functional capacity, that they have to evaluate all 
medical source statements, that they have to apply the law and 
policy correctly. So we have gone through that, and we are 
very, very clear in our message to our judges that we do expect 
them to follow the policy, and we are giving them that 
information when they are not.
    But I will defer to Judge Jonas on the difficulties of 
tracking quality.
    Judge Jonas. I will comment briefly before we go to the 
quality. You noted that newspapers and others are able to look 
at data. So the agency has been very transparent with the 
administrative law judge data for a number of years, both in 
terms of the number of cases issued and the outcomes. And I 
think that is an important factor about making sure that the 
agency is transparent in what it does.
    It is harder to evaluate whether the outcome was correct or 
not, and that is where we do not have statistically valid data 
at the local office level. In FY 2011, we did about 3,600 
reviews under the random sample selection criteria that is 
described in the regulation. This year, we are doing close to 
7,000 of those. But it still gives us data that is only 
statistically valid at the regional level and at the national 
level. But when we do those reviews, it raises issues about 
individuals, so that does give us a chance to look more deeply 
and, again, probe more deeply as to what might be happening. In 
fact----
    Senator Collins. But then what happens? Say that an 
individual ALJ as a result of that review appears not to be 
following the law and regulations.
    Judge Jonas. This gives us an opportunity to do a focused 
quality review, but it is a post-effectuation review. It is not 
in line. I did not make clear earlier the difference between 
the types of reviews. Our Division of Quality is doing this 
random sample review in a pre-effectuation level. So the own-
motion review means that if we take review, it is precluding 
effectuation of the benefits until we decide whether that case 
either has to go back or can be effectuated.
    But in a post-effectuation review, our of Office of Quality 
Performance as well as the Division of Quality can do a post-
effectuation focused review, a probe to see what might be 
happening.
    Senator Collins. But do they?
    Judge Jonas. And we do that. And when we get the results of 
one of those reviews, the Division of Quality reports that to 
Judge Bice, to me, and to the executives in ODAR for whatever 
educational or other sort of executive decisions we need to 
make about that data.
    Senator Collins. Well, let me give you an example of a 
system that I think offers a model for you. In Maine, several 
years ago there was a program that identified outliers among 
physicians who were performing too many caesarean sections, and 
what happened----
    Senator Coburn. You are getting real personal here.
    Senator Collins. Sorry about that. [Laughter.]
    And it was an extremely effective program because 
statistical analysis was used to identify the outliers, and 
then that physician was counseled by other physicians who did 
ob/gyn work. And it was astonishing to see within the next 2 
years the physician who was the outlier's numbers dropped 
dramatically.
    Similarly, I am told that Medicare has an extensive 
integrity program to review the decisions of providers. It just 
seems to me you could do more without compromising the 
professionalism, the independence, the integrity of your 
program if you looked at models that Medicare is using and that 
the medical profession is using. And, again, I want to 
emphasize I think this goes both ways. We do not want people 
who are just automatically turning down everyone or doing only 
cursory reviews, as well as those who are automatically 
approving everyone.
    But what troubles me is your system, as you have described 
it, does not seem rigorous enough to me to identify outliers, 
which I think you could do easily statistically, and then have 
some sort of panel of ALJs review the cases. Because who knows? 
Maybe there were a batch of cases where every single one of 
them did deserve to be approved or every single one did 
deserve--so, but have someone take a look at the quality of the 
cases and whether the law, the regulations, the best practices 
are being implemented. That is what I think you need.
    Judge Jonas. Senator, let me add something to what I said 
before as well. In my testimony, I talked about a vigorous data 
collection tool at the Appeals Council when we review cases, 
and it does collect about 170 different types of errors. So we 
do have quite a bit of data about this.
    In my testimony I also discussed that we have been working 
with the Administrative Conference of the United States, asking 
them for recommendations in some areas, and this is actually 
one of those areas in which we have asked them for some 
recommendations in terms of how we might better use the focused 
reviews for identifying outliers and how that information would 
be appropriately used. We expect those recommendations by the 
end of the year.
    Senator Collins. Well, I am now over my time, but I just 
hope you will make this a priority. There just seems to be a 
vagueness in the system right now, and I think it could be 
tightened up using the medical model I have described without 
in any way undermining the decisional independence of the ALJs.
    Thank you, Mr. Chairman.
    Senator Levin. I have a few more questions, and then we 
will call on other Senators to see if they have additional 
questions.
    My understanding of the Bellmon Review was that the court 
said you could not look at outcomes and act against judges 
based on an outcome survey. What you are telling us today is 
that you do a random survey not of outcomes but of errors, in 
effect, error rates, and where that random survey shows that 
there is a particular judge that has a significant--or judges 
that have significant numbers of errors, that then you do a 
focused review of those judges. Do I have that right?
    Judge Jonas. Senator, the random selection is selecting 
cases as they come in. It is not identifying a particular ALJ.
    Senator Levin. OK. But, however it selects them, if that 
turns out that there is an indication that particular ALJs have 
a large number of errors that you then can do a focused review 
of that ALJ. Is that true?
    Judge Jonas. The regulation that I was referring to is the 
pre-effectuation random selection review. Post-effectuation, 
our focused reviews are not just about ALJs. They can be about 
other participants in the hearing process. It might be about 
something we see either through the random sampling reviews or 
through our denial reviews, or it might be about a particular 
type of medical report we see that is coming in. We have done 
focused reviews on those issues.
    Senator Levin. I think what Dr. Coburn was getting at--and 
I am not sure I understand your answers--is that we see error 
rates, that is what we are focused on, not outcomes but error 
rates, since you have a way of determining errors, you have 
standards, and if they are not met, there are errors. How do 
you get to judges that have large error rates? Put aside 
outcomes. It does not mean they are wrong. Just error rates. 
How do you get to those judges that have large numbers of 
errors?
    Judge Bice. Do you mean how do we find them?
    Senator Levin. Yes. He used the word ``anecdotal.'' So far 
that is about what I see as anecdotal. I do not see that there 
is any kind of a management process, which is what I think he 
was getting at, to try to find those ALJs to take initiative or 
to affirmatively look for ALJs that have large numbers of error 
rates.
    Judge Jonas. So, Senator, let me address it this way. Until 
we reinstituted the quality review of favorable decisions in 
2011, our focus would have been principally on reviewing those 
denial decisions. That is when we would have seen a decision 
for review as to whether or not there was a mistake or an error 
in terms of whether they were following the policy. So in my 
testimony, I mentioned the feedback from that. So if we 
identified in those reviews that there was some sort of policy 
problem with them, the feedback to the ALJ was typically a 
remand to that individual.
    When the Commissioner authorized us to reinstitute the 
Division of Quality to look at favorables, that is what gave us 
the opportunity to start looking at the favorables in a 
systematic way into this random sample that you then identify 
where are those significant problems. And that is at a national 
level that we are having that conversation.
    I think Judge Bice could certainly comment at a local 
level. There has always been a discussion about the quality of 
decisions.
    Judge Bice. Right, and I think what----
    Senator Levin. It is only one at a time. I may be wrong.
    Judge Bice. OK. Yes, and I think it is important that 
through the requests for review, the reviews of denials and 
remands, we are able to identify some ALJs or other 
adjudicators with issues and that we might then look at that in 
more depth.
    Senator Levin. Let me interrupt because I think maybe I am 
not really understanding what you are saying. I think the 
question is--to me it sounds anecdotal. Is there a way--and I 
do not want to misstate Dr. Coburn's question because he states 
them better than I can. But the way I understand it, there is 
no management tool that is in place to affirmatively take the 
initiative to identify ALJs with large error rates. Is that 
accurate? And if so, can that be put in place? You cannot, 
obviously, go through millions of cases or hundreds of 
thousands of cases and look at every single case to determine 
whether or not there is an error rate, whatever your hundreds 
of thousands number, you cannot do that. I do not think. But is 
there not some way that you can identify ALJs, taking an 
affirmative action, taking the initiative to identify the ALJs 
that have a large number of error rates? He asked you, I think, 
to do that for the record. I will put that question that way. 
It does not exist now, obviously, or else you would have said 
it exists.
    Judge Jonas. Let me summarize this, and perhaps it links 
back to my testimony. The fundamental way in which we improve 
quality and address these issues is to capture data, and so we 
capture structured data with these tools that we developed that 
were available to the Appeals Council beginning in 2008 and 
2009. That is our foundation for quality, for identifying 
quality problems. So we build on that structured data. We 
capture that, analyze that data to decide and to look at the 
various offices, various ALJs.
    We then can do the focused review to probe more deeply on a 
particular issue, particular area, particular type of 
disability, and that is what allows us then to go back and 
address that by building these policy-compliant tools like the 
electronic bench book that would then facilitate the 
appropriate action by the ALJ.
    Senator Levin. I understand. That does not get to what I am 
asking about, and if there is a way of doing that, I think we 
would like to know, and if not, tell us why not.
    Two other quick questions. One, there seemed to be very 
significant differences in the regions. Region VIII has a 15-
percent error rate, according to this chart. Region VI has a 
26-percent error rate. One in four cases were problematic--in 
other words, not wrong or right but problematic. Can you tell 
us why there is such a big difference between Region VIII and 
Region VI?
    Judge Bice. I noticed the same thing. We have gotten this 
data. It is something I would like to explore, but I have not 
gone there yet, and I do not know if Judge Jonas has done 
anything at the Appeals Council.
    Senator Levin. Would you let us know the answer after you 
look that up.
    Judge Jonas. We will provide that.\1\
---------------------------------------------------------------------------
    \1\ See Exhibit No. 23 which appears in the Appendix on page 900.
---------------------------------------------------------------------------
    Senator Levin. Let us know what you find.
    Finally, on the government representative issue, I believe 
that, Judge Bice, you were a government representative, if I 
understand what I heard.
    Judge Bice. Yes.
    Senator Levin. And this was some years ago. Can you give us 
your experience. There was some kind of a pilot project, was 
there, back in--was it as early as the 1980s?
    Judge Bice. Yes, it was. We briefed the Senate Finance 
Committee on much of this information. But during the 1980s--I 
believe it began in 1982--the agency tried a pilot where there 
was a government representative at the hearing at selected 
hearing offices. I participated in the pilot from 1984 to 1987.
    During the course of the pilot, there was a U.S. district 
court case, Sallings, that enjoined the project, and 
subsequently the agency discontinued the project because of the 
interruption caused by the court case and because of fiscal 
constraints.
    Congress originally supported the project, but as it was 
developing and proceeding, there was a lot of congressional 
opposition to that, and, in fact----
    Senator Levin. What is your personal experience?
    Judge Bice. My personal experience? I can tell you a little 
bit about what I did.
    Senator Levin. No. Just what did you find? Did you find it 
useful? Not useful?
    Judge Bice. We were present in the hearing, questioned the 
witnesses. We reviewed the cases ahead of time. We could 
request evidence. Overall, I did not see a significant 
difference in the case outcomes or in the timeliness of the 
decisions. Again, these are complicated cases with substantial 
evidence on either side. There were a handful of cases where I 
know I made a difference, but by and large, I did not see a 
significant change in the outcome of the hearings.
    Senator Levin. OK. Dr. Coburn.
    Senator Coburn. I just want to go back to one of the things 
that--we are concerned about high denials as well as high 
approvals. But the one thing this study found is the judge that 
did the most cases had the highest approval rate. The one doing 
5,100 cases over 3 years approved almost all of them. And what 
we are hearing today is you have no system to capture that or 
to manage that. And so I look forward to your commitment to 
return to us what your management system is for that.
    One of the things in discussing with the ALJs was the 
pressure to decide cases. One of the factors we heard in 
talking with them is there is pressure to get it decided and to 
get it decided quickly. Do you think ALJs can sometimes feel 
pressured to move faster than they would like? In other words, 
the pressure is so great that the attention to the case becomes 
sacrificed because of the pressure to move the case? One, where 
is the pressure coming from? From the agency or somewhere else? 
Each judge is expected, I think, to decide somewhere between 
500 and 700 cases a year. That would imply to me, given the 
depth of the complexity as well as the mass of the paper, that 
they are going to have to move quickly to be able to do that. 
Is 500 to 700 cases a reasonable demand? And are there not 
pressures--are there not results from the pressure to move 
cases quickly, just taking in human nature, that might increase 
the error rate?
    Judge Bice. Thank you. In 2007, Judge Cristaudo, who was 
the Chief Administrative Law Judge at the time, asked judges to 
do 500 to 700 decisions a year, but it was very important that 
he asked 500 to 700 legally sufficient decisions a year. That 
has not increased. We have not increased that expectation. It 
still to this day is 500 to 700 cases.
    We have invested a lot in the training of our judges. We 
provide them with lots of tools. They are not working in 
isolation. The case is developed before it comes to them. It 
might have been reviewed by a senior attorney. They have senior 
attorneys available to them to assist with that.
    My personal experience is I have been able to do over 500 
cases in a year in a legally sufficient manner. And I can say 
that in 2007 there were 46 percent of our judges that were 
within that range. There are now 77 percent as of the end of FY 
2011. And that was without an uptick in the allowance rate. So 
I do think it is fair and reasonable. I think the judges have 
to work hard at it, but I am giving them those tools. And I am 
very, very careful in my messaging that I always want judges to 
do legally sufficient decisions. When I talk to judges about 
moving a case, I always tell them, ``If it is ready to be 
decided, you need to decide it.'' And I want them to decide it 
and move it along quickly at that point. But if judges need the 
case developed, they should develop the case, again, in an 
efficient manner. They should get the evidence that they need. 
If they need additional medical evidence or a consultative 
examination, they should do that. They should do a really good 
hearing and----
    Senator Coburn. But you all have limited judges on getting 
the evidence they need because you have told them they cannot 
use the Minnesota Multiphasic Personal Test.
    Judge Bice. That is one exam, but they do have the right to 
request the medical evidence if the claimant does not submit it 
or a consultative exam.
    Senator Coburn. I know you are not a doctor.
    Judge Bice. Right.
    Senator Coburn. But you are much better. You are a judge--
the point being that is key medical evidence that is recognized 
worldwide as a standard with which physicians make judgments 
all the time. And when we limit--you say you take the time to 
develop the case, to mature the case, and then you limit what--
the other thing is you have limited--they cannot use any social 
media. So if somebody is out riding a horse, roping a calf, but 
they are making a claim for totally disabled and they have got 
Facebook showing them do that, you are telling the judge, ``You 
cannot look at that.'' I mean, that is part of the rules of 
Social Security today.
    Is there a limitation on the number of cases that the judge 
can see a year?
    Judge Bice. Yes. Twelve hundred.
    Senator Coburn. So how did our judge in Oklahoma City do 
1,500 and 1,600 a year?
    Judge Bice. Because Commissioner Astrue for the first time 
limited the number of cases that a judge can be assigned last 
summer, and he limited it to 1,200 because of the concern of 
judges doing a high number of cases. And so we have implemented 
that. We will not assign more than 100 cases to a judge in any 
1 month so that they can work on an even basis. And we do look 
at the judges that have high numbers. We have looked at their 
allowance rates. Not everyone that produced high numbers had a 
high allowance rate, and some had, in fact, a very low 
allowance rate.
    So we are looking at those dynamics, but we capped them at 
1,200, and we continue to monitor that monthly.
    Senator Coburn. OK. My other in regards to that is if a 
judge is doing 1,200 cases a year, that is three cases a day--
actually, that is more than three cases a day. That is three 
cases a day, 365 days a year, three-plus cases. Average 
background is 500 pages. How in the world can they possibly do 
that?
    Judge Bice. I am not going to speak for those individual 
judges. Again, this was a cap. My expectation is 500 to 700 
cases, and I have always told the judges, ``I do not want you 
doing more if you cannot do them in a legally sufficient 
manner.'' But I know many of our judges have developed very 
efficient means of reviewing the record. We have a lot of 
electronic tools. The case comes to them exhibited. The medical 
records are marked with whom they came from, the dates they 
came from. There is case data that is available electronically, 
a cover sheet that the legal assistants prepare for them 
outlining a lot of the information. They have senior attorneys 
available to help them.
    Senator Coburn. Yet our study shows 25 percent of those 
cases did not look at the complete record.
    Judge Bice. And we are encouraging our judges to do that. 
That is our expectation. We are training them on how to do 
that.
    Senator Coburn. All right. I want to cover one more topic, 
and you may have to defer on that, and that is fine. The 
outdated job list, cases filed show that the DDS examiners and 
the ALJs relied on the Dictionary of Occupational Titles. When 
was that last revised? It occurred in 1977? That was before 
Facebook, iPads, computers generally throughout every bit of 
our commerce. And so Social Security has a plan that is going 
to cost $108 million to create a new OIS system that will not 
be ready until 2016.
    Are you familiar with the Department of Labor's O'NET 
system?
    Judge Bice. Yes, I have been on it.
    Senator Coburn. And so why is that, first of all, not 
sufficient, one? And in what way specifically is it not 
sufficient? And, number two, why should we take $108 million to 
create a new system out here for Social Security when we could 
use O'NET and put that $108 million into speeding up the 
processing and the availability for people's adjudication of 
claims?
    Judge Bice. And you are correct, that is outside my area of 
expertise, so I would like to defer and get back to you on the 
record with that answer.
    Senator Coburn. Judge Jonas, do you have any comments on 
that?
    Judge Jonas. Senator Coburn, I think we all agree it is an 
outdated resource. I am aware that we have recently signed an 
agreement with the Department of Labor to build on something 
they already have. I am not aware of the details about this, 
but we will provide that for the record.\1\
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    \1\ See Exhibit No. 23 which appears in the Appendix on page 900.
---------------------------------------------------------------------------
    Senator Coburn. OK. I just want everybody in the hearing 
room to understand. We have a system. It is outdated. The 
Department of Labor has a system. Maybe it is going to be 
modified. In the era of trillion-dollar deficits that both 
Republicans and Democrats can claim responsibility for, $108 
million to create a list of jobs in our economy, does anybody 
think that might be a little high besides me, $108 million for 
a list of jobs when we have got a database at the Department of 
Labor that lists all the jobs? Does anybody have any comment on 
that?
    Judge Jonas. I think we would prefer to get back to you on 
the record.
    Senator Coburn. OK. Do you think it is quite remarkable 
that our list of jobs that we are using now at the Social 
Security system has no computer-related jobs in it for 
comparison, since the definition of ``disability'' is there is 
no job in the economy that you can perform?
    Judge Bice. One of the things that we do at the hearing 
level is we do have a vocational expert there, and we can rely 
on their testimony and their expertise.
    Senator Coburn. So the assumption is they would be additive 
to the old system that we have today.
    Judge Bice. Right, and they might explain why it is in 
conflict with----
    Senator Coburn. And do you see that--I would ask Judge 
Jonas this. In your review of both approved and denied claims, 
do you see the utilization of that effectively representing the 
jobs in the economy today?
    Judge Bice. I do not think I have that detailed information 
of what we have seen.
    Senator Coburn. OK. All right. Well, that is fair. That is 
fair.
    One last question. Since 1980, the number of claimants that 
are represented by attorneys has doubled in terms of the actual 
number of cases. Why is that?
    Judge Bice. I do not have an explanation for that.
    Senator Coburn. You do not dispute the number, though?
    Judge Bice. I do not have that data, so I cannot agree or 
disagree with it. We could get that for you or look at that. I 
can tell you as a judge, we do advise unrepresented claimants 
of their right to representation, but we are neutral. We 
neither recommend nor discourage. We just tell them of the 
right.
    Senator Coburn. All right. Thank you, Mr. Chairman.
    Senator Levin. Thank you very much, Dr. Coburn. Our two 
witnesses, thank you both for--oh, I am sorry. I did not see 
you come back.
    Senator Collins. That is OK.
    Senator Levin. I saw you leave, but I did not see you come 
back. I apologize. Senator Collins.
    Senator Collins. I am stealth-like. [Laughter.]
    I will just ask one question, and it is a philosophical 
question. The Supreme Court has described the Social Security 
Administration's administrative process as ``unusually 
protective of the claimant.''
    First of all, do you agree that the disability 
determination and appeals process as it currently stands is 
structured in a way that tends to favor the claimant? And a 
related question: If you do agree, is that the way that it 
should be? Judge Jonas, we will start with you.
    Judge Jonas. Thank you, Senator. I agree that our policies 
are structured in a way--and I think Judge Bice just mentioned 
the notion about making sure that the claimant is aware of 
their rights so that they are protected. We look at that in 
terms of reviewing cases at the appellate level to ensure that 
the claimant's due process rights are protected.
    It is certainly a culture in which we recognize that 
individuals can come without needing someone else with them and 
that we will look at them. It is protective, I would agree.
    Senator Collins. And my second question is: Should it be? 
The reason I ask that is I believe one of the recommendations 
that has been made in this report is to have a government 
representative at the ALJ hearing. And I am trying to decide 
whether that is a good idea or not, whether that would change 
it into more of an adversarial proceeding, which I do not think 
really is the goal of the process, or whether that government 
representative is needed to bring more balance into the process 
and to ensure that the taxpayers' interest is represented. So, 
again, I have not reached a conclusion on that, but when I look 
at what the Supreme Court said and your response, Judge Jonas, 
I am trying to evaluate that recommendation in the report.
    Judge Bice. I will just give you a little background. I do 
not know if you heard it before, but during the 1980s there was 
a pilot of the government representative project. So we have 
had some experience with that. There was a district court case 
that enjoined the process, and we discontinued it. We have not 
pursued it. Congress was in support of it originally. During 
the pilot, there was congressional opposition.
    We are always looking to improve our processes and our 
hearings, but we want them to be fair, accurate, and efficient. 
We are not sure whether a government representative approach 
can be crafted that would meet those principles.
    Senator Collins. So what would your concerns be? How would 
it undermine fairness, for example?
    Judge Bice. I do not have any official position on that. I 
am just saying that is kind of what our broad views are given 
the experience in the 1980s.
    Senator Collins. Well, let me just end my questions by 
saying that it would be helpful to me if you take a close look 
at the recommendations that were included in this report and 
provide us with your official reaction to the recommendations 
as we all seek to achieve the goal of a system that is 
financially responsible, fair and equitable, and that provides 
benefits to those who meet the requirements in the law, but 
does not provide benefits to those who do not. We need to make 
sure we are fulfilling both goals.
    Thank you, Mr. Chairman.
    Senator Levin. I wonder if it would be agreeable to you, 
Senator, and also to Dr. Coburn, if we ask actually the Social 
Security Administration for their reaction officially to the 
recommendations in the report rather than to ask these 
witnesses.
    Senator Coburn. I am fine with that.
    Senator Collins. That is probably a better approach, but if 
our witnesses have any insights that they would like to share 
with us as they think more deeply about that, I would welcome 
that also since they are on the front lines.
    Senator Levin. All right.
    Senator Collins. Thank you.
    Senator Levin. We would then add that, welcoming your 
insights on that question or any other question that we have 
asked, and there will be questions for the records, and we will 
send along to the Social Security Administration a request that 
they give us their----
    Senator Coburn. I would just add, a timely response is 
important to me. Oftentimes what happens in Committee hearings 
is we get an answer back 6 months later. I would consider that 
untimely. I just would let you know that.
    Senator Levin. To put a finer point on that, we would 
appreciate your response in 30 days to that question, and we 
will ask the Social Security Administration to give us their 
official response relative to the recommendations or any other 
comments they may have within 30 days as well. We thank you 
both, and we go to our next panel.
    We now will call our second panel of witnesses for this 
morning's hearing: Judge Douglas Stults, the Hearing Office 
Chief Administrative Law Judge at the Office of Disability 
Adjudication and Review of the Social Security Administration 
in Oklahoma City; Judge Thomas W. Erwin, the Hearing Office 
Chief Administrative Law Judge at the Office of Disability 
Adjudication and Review in Roanoke, Virginia; and, finally 
Judge Ollie L. Garmon, III, the Regional Chief Administrative 
Law Judge (Region IV) at the Office of Disability Adjudication 
and Review of the SSA in Atlanta, Georgia.
    We appreciate all of you being with us this morning, and, 
again, we look forward to your testimony. Pursuant to Rule VI, 
which I believe you hear because I think you all were in the 
room, all of our witnesses who testify before this Subcommittee 
are required to be sworn, so we would ask you to please stand, 
raise your right hand.
    Do you swear that the testimony that you will give before 
this Subcommittee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Judge Stults. I do.
    Judge Erwin. I do.
    Judge Garmon. I do.
    Senator Levin. Thank you. The same timing system will be in 
effect. You will see a yellow light come on one minute before 
the red lights comes on, and we would ask that you limit your 
oral testimony to no more than 7 minutes, and your written 
testimony will be made part of the record.
    I think, Judge Stults, we have you going first, followed by 
Judge Erwin and then Judge Garmon. Judge Stults.

 TESTIMONY OF JUDGE DOUGLAS S. STULTS,\1\ HEARING OFFICE CHIEF 
ADMINISTRATIVE LAW JUDGE, OFFICE OF DISABILITY ADJUDICATION AND 
REVIEW, SOCIAL SECURITY ADMINISTRATION, OKLAHOMA CITY, OKLAHOMA

    Judge Stults. Well, thank you, Mr. Chairman, Ranking Member 
Coburn, and Members of the Subcommittee. My name is Doug 
Stults, and I am the Hearing Office Chief Administrative Law 
Judge (HOCALJ) for the Oklahoma City, Oklahoma, Hearing Office. 
I have 4 years and 5 months of experience as an administrative 
law judge, and I have served 3 years and 9 months as chief 
judge of the Oklahoma City Hearing Office.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Stults appears in the Appendix 
on page 77.
---------------------------------------------------------------------------
    Prior to becoming an administrative law judge, I worked at 
the Oklahoma City Hearing Office for 12 years, 3 years as the 
hearing office director, 5 years as a group supervisor, and 4 
years as an attorney-advisor. Prior to working for ODAR, I was 
a staff attorney for the UAW Legal Services in Oklahoma City 
for about 7\1/2\ years, and prior to that I practiced law in 
central Oklahoma for about 8\1/2\ years.
    The Oklahoma City Hearing Office primarily serves central 
and western Oklahoma, specifically Oklahoma City, Lawton, 
Ardmore, and Clinton, Oklahoma, as well as Wichita Falls, 
Texas, and Santa Fe, New Mexico. Thus, the claimants served by 
the Oklahoma City Hearing Office live in urban, suburban, and 
rural areas and are of diverse cultural and economic 
backgrounds.
    The Oklahoma City Hearing Office is presently staffed with 
13 administrative law judges, supported by 59 staff, 
specifically one hearing office director, four group 
supervisors, one administrative assistant, two hearing office 
systems administrators, 12 senior attorneys; three attorney-
advisors, six paralegal-analysts, three lead case technicians, 
13 senior case technicians; six case technicians; four case 
intake analysis; and two contact representatives. Fifty-seven 
percent of our employees in Oklahoma City have 6 or more years 
of ODAR experience and 39 percent have 16 or more years of ODAR 
experience, myself included.
    In fiscal year 2011, the Oklahoma City Hearing Office 
achieved our regionally set dispositional goal, with 7,216 
claimants served. We also completed all of our aged cases, 
which were defined as 750 days old. Thus far in fiscal year 
2012, we have served 6,317 claimants. Through the end of July 
of 2012, Oklahoma City administrative law judges' dispositions 
have averaged 37.8 percent fully favorable, 3.2 percent 
partially favorable, 41.7 percent unfavorable, and 17.2 percent 
dismissals. Further, through the end of August of 2012, the 
Oklahoma City Hearing Office has had an average processing time 
of cases of 381 days. Our average cases pending per ALJ in the 
office is 591 days. The average age of pending cases overall is 
258 days. Cases under 365 days old are 76 percent. Our receipts 
per day per ALJ are 2.31; hearing scheduled per day per ALJ is 
2.39; and then hearings actually held per ALJ is 1.79, making a 
heard-to-scheduled ratio of 75 percent. Our dispositions per 
day per ALJ thus far in fiscal year 2012 is 2.15, and our 
dispositions-to receipt ratio is 103 percent.
    As the Hearing Office Chief Judge, I strive to ensure that 
my hearing office handles hearing requests in an orderly 
manner. I discuss ALJ workload and case assignment regularly 
with our hearing office director, who oversees the direction of 
our staff involved in preparing cases for hearing. Generally, 
cases are worked up for hearing in hearing request order date, 
with the oldest cases prepared first. Our hearing office 
director then randomly assigns a minimum number of cases to 
each of our Oklahoma City ALJs, at least 40 cases per month so 
far this fiscal year. I personally use our agency's technology 
to manage performance, quality, and productivity of our ALJs, 
mainly with the help of our Case Processing Management System 
and Disability Adjudication Reporting Tools (DART), including 
the ``How MI Doing'' and the ODAR Management Information 
Dashboard. My top priorities include the handling of our oldest 
cases, the number of hearings scheduled and held by each ALJ, 
the pending of each ALJ, and our monthly dispositional totals. 
I pass on general information concerning each of these 
categories to all of our ALJs and then pass on specific 
information to individual ALJs as necessary.
    I endeavor to work closely with our Oklahoma City ALJs. I 
have an unconditional open-door policy. I speak with all of our 
ALJs, both formally and informally, concerning questions, 
problems, or suggestions that they may have regarding 
individual cases as well as office policies and procedures. I 
regularly send emails to clarify issues and procedures for our 
ALJs and also to share general information.
    Now, while ALJs have qualified decisional independence 
under the Administrative Procedure Act, they must decide cases 
based upon the facts in each case and in accordance with agency 
policy. If I see a performance or quality issue with an ALJ in 
my office that I need to address, I will discuss that issue 
with the judge as soon as possible to ensure that the ALJ's 
actions are consistent with agency policy, and that the ALJ is 
performing at an acceptable level of productivity. While I 
exercise appropriate management oversight of the ALJs in my 
office and can take a number of actions to help ALJs improve 
their performance, I cannot and I do not interfere with or 
influence the ultimate decision in any case. In addition to my 
managerial duties, I hold hearings for disability cases 
regularly.
    I thank you for the opportunity to be here today, and I 
will be happy to answer any questions that you may have of me.
    Senator Levin. Thank you very much, Judge Stults. Judge 
Erwin.

   TESTIMONY OF JUDGE THOMAS ERWIN,\1\ HEARING OFFICE CHIEF 
ADMINISTRATIVE LAW JUDGE, OFFICE OF DISABILITY ADJUDICATION AND 
   REVIEW, SOCIAL SECURITY ADMINISTRATION, ROANOKE, VIRGINIA

    Judge Erwin. Thank you, Mr. Chairman, Ranking Member 
Coburn, and Members of the Subcommittee. My name is Thomas 
Erwin, and I serve as the Chief Administrative Law Judge for 
the Roanoke, Virginia, Hearing Office. I have a little more 
than 3 years of experience as an ALJ and 1-1/2 years as a 
Hearing Office Chief ALJ.
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    \1\ The prepared statement of Judge Erwin appears in the Appendix 
on page 80.
---------------------------------------------------------------------------
    Prior to becoming an ALJ, I was an attorney-advisor in the 
Roanoke, Virginia, Office of Disability Adjudication and Review 
for 3 years. Before joining the Social Security Administration, 
I served as a U.S. Navy JAG attorney on active duty for 5 years 
in San Diego and Port Hueneme, California, and was appointed as 
the Officer in Charge of the Naval Legal Service Office Branch 
Office in Port Hueneme. One of my duties in the Navy was to 
serve as criminal defense counsel in courts-martial cases; so 
yes, Tom Cruise did play me in the movie ``A Few Good Men.'' 
[Laughter.]
    I then worked in private practice in Southern California as 
a certified specialist in family law prior to joining the 
Social Security Administration in 2006.
    The Roanoke, Virginia, Hearing Office serves a broad area 
of southwest Virginia and southeast West Virginia. This service 
area is a part of a cultural region commonly known as 
Appalachia. The region's economy, once highly dependent on 
mining, forestry, agriculture, chemical industries, and heavy 
industry, has become more diversified in recent times.
    The Roanoke Hearing Office has eight ALJs, three of whom 
have fewer than 2 years of experience on the job. The newest 
judge has been with the office only since June of this year.
    The office has had significant ALJ turnover over the past 
several years and has lost eight judges to transfer or 
retirement. Social Security has assigned eight new judges in 
the same period; seven of these judges were new to the position 
or had less than 1 year of experience as an ALJ when they 
reported. The office has 48 employees.
    For fiscal year 2012, through August, the Roanoke Hearing 
Office has received 3,690 hearing requests, an average of 335 
cases per month. We have issued 3,643 decisions, so we have 
processed close to 99 percent of our total receipts. We have 
just under 4,700 cases pending in our office, an average of 
over 580 cases pending per judge. Our average processing time 
is 432 days from the request for hearing to decision.
    The Roanoke hearing office has an allowance rate of 57 
percent for fiscal year 2012. The judges have an allowance rate 
of 55 percent, with most of the judges having an allowance rate 
between 45 and 57 percent. The difference in allowance 
percentages between the overall office rate and the judges 
represents favorable decisions processed by our senior 
attorneys.
    As a chief judge, it is my job to make sure that the office 
functions smoothly and that we process cases fairly and 
efficiently. I strive to ensure that my hearing office handles 
hearing requests in an orderly manner. I work with three other 
office managers to make sure cases are worked up and ready for 
a hearing, that they are assigned to judges to allow them to 
hold hearings, and that writers draft legally sufficient 
decisions. I monitor the workloads of the judges to make sure 
they have sufficient cases at various stages of the process to 
allow them to review cases before scheduling, hold hearings, 
and issue decisions.
    A hearing office has many working parts, all of which need 
to operate smoothly to maintain both quality and productivity. 
The senior case technicians prepare the files and get them 
ready for hearing; the judges hold the hearings; and then the 
writers must draft, based on the directions they receive from 
the judges, legally sufficient and defensible decisions. As 
chief judge, I work with my fellow supervisors to manage 
performance, quality, and productivity at each phase of a 
case's development and resolution.
    I work with the ALJs in the office to make sure they are 
aware of monthly and yearly goals, that they move cases through 
each stage of the process in a timely manner, and that they 
issue quality decisions as quickly as possible. If the judges 
are having a problem, I help them resolve the issue so that 
they can continue doing their job. I try to lead by example.
    While ALJs have qualified decisional independence under the 
Administrative Procedure Act, they must decide cases based on 
the facts in each case and in accordance with the agency's 
policy. If I see a performance or quality issue with an ALJ 
that I need to address, I will discuss the issue with the judge 
as soon as possible to ensure that the ALJ's actions are 
consistent with the agency's policy and that the ALJ is 
performing at an acceptable level of productivity. While I 
exercise appropriate management oversight over the ALJs in my 
office and can take a number of actions to help ALJs improve 
their performance, I cannot and do not interfere with or 
influence the ultimate decision in any case.
    Thank you for the opportunity to be here today. I would be 
happy to answer any questions that you have.
    Senator Levin. Thank you very much, Judge. Judge Garmon.

   TESTIMONY OF JUDGE OLLIE L. GARMON III,\1\ REGIONAL CHIEF 
ADMINISTRATIVE LAW JUDGE, ATLANTA REGION, OFFICE OF DISABILITY 
   ADJUDICATION AND REVIEW, SOCIAL SECURITY ADMINISTRATION, 
                        ATLANTA, GEORGIA

    Judge Garmon. Thank you, Mr. Chairman, Ranking Member 
Coburn, and Members of the Subcommittee, my name is Ollie L. 
Garmon III, and I serve as the Regional Chief Administrative 
Law Judge in Region IV, which is commonly known as the Atlanta 
Region. The Montgomery, Alabama, Hearing Office is one of the 
offices in the Atlanta Region. I have 21 years' experience as 
an ALJ, 3 years as a hearing office chief, 4 years as an 
assistant to the regional chief, and 9 years as the regional 
chief judge.
---------------------------------------------------------------------------
    \1\ The prepared statement of Judge Garmon appears in the Appendix 
on page 83.
---------------------------------------------------------------------------
    As the regional chief judge, I provide general oversight 
for all program and administrative matters concerning our 
hearings process in the Atlanta Region. The Atlanta Region is 
composed of 37 hearing offices, nearly 400 administrative law 
judges, and a total staff of nearly 2,300 people in the 
following eight States: Alabama, Florida, Georgia, Kentucky, 
Mississippi, North Carolina, South Carolina, and Tennessee. 
This region serves a population of about 60 million citizens. 
We have approximately 25 percent of the agency's hearings 
caseload, which results in more than 200,000 decisions per 
year.
    I began my legal career in the private sector as an 
associate for a law firm; I then became a sole practitioner, 
after which I organized and was a partner in a law firm. During 
this same time, I served in the public sector as a city 
attorney and was elected county prosecuting attorney for a 4-
year term. In 1979, I was elected to a 4-year term to a full-
time judicial position of county court judge where I also 
served as a juvenile court judge. Afterwards, I was appointed 
by the Governor of the State of Mississippi to the position of 
Commissioner of the Mississippi Workers' Compensation 
Commission for a 6-year term.
    One of the hearing offices in Region IV is located in 
Montgomery, Alabama. The Montgomery Office's service area 
includes Alexander City, Anniston, Auburn, Demopolis, 
Montgomery, Opelika, Selma, and Tuskegee. The Montgomery Office 
currently has ten judges. We expect two new judges to report 
for duty on September the 24th of this year. The support staff 
for the ALJs includes a mix of attorney-advisors, paralegal 
specialists, and legal assistants. We have hired at least half 
of this office's staff within the past 3 years. The office has 
a high transfer rate for ALJs, who frequently request 
reassignment to other offices.
    In fiscal year 2011, the Montgomery Office received 8,357 
cases for adjudication and issued 7,252 dispositions. In fiscal 
year 2012 to date, the office has received 6,540 cases for 
adjudication and issued 6,246 decisions. The Montgomery Office 
currently has 8,323 cases pending, and the current average 
processing time is 430 days. The rate of average dispositions 
per ALJ per day is 2.37.
    Let me emphasize that while I can take actions to ensure 
that ALJs move their caseloads and apply the law and our 
policies correctly, the Administrative Procedure Act grants all 
ALJs qualified decisional independence. Qualified decisional 
independence means that ALJs must be impartial in conducting 
hearings. They must decide cases based on the facts in each 
case and in accordance with the agency's policy, as set out in 
the regulations, rulings, and other policy statements. It 
means, however, that ALJs make their decisions free from agency 
pressure or pressure by a party to decide a particular case, or 
a particular percentage of cases, in a particular way. If we 
see a performance or quality issue with an ALJ that we need to 
address, we will discuss the issue with the judge as soon as 
possible to ensure that the ALJ's actions are consistent with 
the agency's policy and that the ALJ is performing at an 
acceptable level of productivity. While we exercise appropriate 
management oversight over the ALJs in our offices and can take 
a number of actions to help the ALJs improve their performance, 
we cannot and do not interfere with or influence the ultimate 
decision in the case.
    Thank you for the opportunity to be here today, and I would 
be happy to answer any questions that you may have.
    Senator Levin. Thank you so much, Judge Garmon.
    Let me start by asking the same question that I asked of 
our earlier panel. If you take a look at Exhibit 22,\1\ which 
is the 2011 report issued by the Social Security 
Administration's Quality Division--are we short a book up 
there?
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    \1\ See Exhibit 22, which appears in the Appendix on page 889.
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    This is the Final Actions Report, the Division of Quality, 
and it shows that in your regions the error rate, I guess--we 
will simplify it--was 24 percent in Region III, 23 percent in 
Region IV, and 26 percent in Region VI. The national average is 
22 percent.
    Were you aware of this report prior to the hearing? Was 
this made available to you before we let you know that we 
wanted you to testify? And were you familiar with it before 
that time? Judge Stults.
    Judge Stults. Yes, I was aware of it. I had seen it.
    Senator Levin. Good. Judge Erwin.
    Judge Erwin. Yes, sir.
    Senator Levin. Judge Garmon.
    Judge Garmon. Yes, sir.
    Senator Levin. And what was your reaction to it, Judge 
Stults?
    Judge Stults. Well, I would begin by saying this is just 
one of many tools that is at the disposal of a hearing office 
chief judge to determine quality. This is important. There are 
policy issues that are not well covered in decisions, certainly 
as well as they should be. Another such tool is something I 
mentioned in my opening remarks. Recently the agency has given 
us access to look at our AC affirmation rates, the How MI 
Doing. I have used that as a tool because it now is looking 
more at unfavorable cases, but generally I have found that if a 
judge is doing quality unfavorables, they are probably doing 
quality favorables as well. But, quite frankly, perhaps the 
best gauge of quality within a hearing office is the staff 
itself, decision writers in particular. They are going to come 
to management in general, and they will come to me in 
particular and tell me what problems any particular ALJ may 
have both in their conduct of a hearing and/or in their 
decisional instructions.
    Senator Levin. Judge Erwin, what was your reaction to the 
report?
    Judge Erwin. Well, I think I was a little fortunate in that 
the Roanoke Office had closer to a 10-percent error rate, so I 
was glad to see that coming out of my office. I also think that 
we have all talked about----
    Senator Levin. Your office was much lower than the other 
offices in the region? Is that what you were----
    Judge Erwin. That is what my understanding was, yes, when I 
saw the report.
    Senator Levin. OK.
    Judge Erwin. So I just happened to be fortunate there.
    Senator Levin. So your reaction was relief? [Laughter.]
    Judge Erwin. I lost my train of thought for a minute. This 
is one tool that we have. I think we have all discussed and 
acknowledged that this does not talk about whether the decision 
was correct, but whether there was an error in the policy. A 
lot of times what we have to talk about when we are at the 
front lines and writing cases is about a balance, trying to do 
quantity and trying to do quality.
    In the past, as a decision writer, I can say that I was 
writing decisions between 2006 and 2009, which is when a lot of 
the cases you reviewed were happening. A lot of times we were 
told a fully favorable decision is where you save time. So I 
would not be surprised if you looked at some of my old 
decisions and I did not evaluate every opinion that was in the 
record and cite every conflicting evidence because we were 
giving greater emphasis--and we still have the writers give 
greater emphasis--to the unfavorable decisions.
    So, again, it goes down to quantity versus quality. Again, 
I would say I was a little surprised to see that the number was 
that high, but, again, we would need to get into the nature of 
the decision to see whether the decision itself was correct. 
And it seems like what we have got is more a problem of 
documentation and making sure the decision instructions and the 
decisions themselves comply with the policies as opposed to 
worrying about the results here, again, making sure that the 
decisions themselves are better written. And I can say that 
Judge Bice, our Chief Judge, has recently this year, through 
trainings and directives, stressed that. And I have had 
meetings with my judges and my decision writers to stress that 
a favorable decision needs to have a fully articulated residual 
functional capacity, and it needs to be supported with 
documentation.
    Senator Levin. Judge Garmon.
    Judge Garmon. Well, I guess humorously I would say that I 
was happy I was not on top of the list, but also sad at the 
same time that we were not lower than we were as far as 
personal feelings went.
    But, of course, again, it brings forth the admonition that 
we have got to be more careful, and we agree with you with 
regard to the quality of the decisions that are going out the 
door and the possible problems. And with the number of offices 
that we have in our region, of course, we had some that were 
higher, some that were lower, a mix, as you might imagine. So, 
yes, we are aware of this, certainly working on this.
    Senator Levin. If you were given the so-called error rate 
ALJ by ALJ rather than office by office, would that help you in 
terms of your counseling with the ALJs? If you knew that there 
was an ALJ that had insufficient findings in 40 percent of the 
cases and you had another ALJ that was insufficient in 5 
percent of the cases, would that not give you some guidance as 
to which of your ALJs needed some additional counseling and 
training? Would it be helpful to know those judge by judge? 
Judge Stults.
    Judge Stults. Yes, and, in fact, we have that. Again, as I 
said a second ago, under our DART report, the ``How MI Doing,'' 
it breaks down for the HOCALJ the AC affirmation rate for every 
judge in my office, and that started this summer. I have used 
that for three different judges--two informal discussions, one 
formal discussion. And at least I believe it was effective in 
bringing to the attention of two of those judges that they were 
making mistakes they were not aware of. So I was very pleased 
when this became available to us, and I use it regularly.
    Senator Levin. That is the AC----
    Judge Stults. And, again, that is for unfavorables, but, 
again, as I said a second ago, if a judge is deciding an 
unfavorable case well, providing sufficient rationale and 
then--of course, there is also a decision-writing aspect in 
here. But if they are doing unfavorables well, generally they 
are doing favorables well.
    Senator Levin. Well, but my question is a little different. 
If the breakdown for the entire office is useful, would not a 
breakdown of this particular rate be useful judge by judge?
    Judge Stults. Certainly. It would be more information. But 
there is a lot of information already available to a hearing 
office chief judge.
    Senator Levin. All right. But if this were doable, 
practically, if we could get these numbers judge by judge, if 
they were available to the chief judges, that would add some 
additional information for you?
    Judge Stults. I believe it may help affirm a trend that 
would already be known to exist.
    Senator Levin. Hopefully?
    Judge Stults. Probably.
    Senator Levin. Probably, OK. Judge Erwin, would that be 
useful to you?
    Judge Erwin. Well, I would again agree that, as chief 
judge, I already review all of the remands that come in, 
whether they are the own-motion ones where they are looking for 
policy problems or whether they are the remands where a case is 
being remanded for further action, either by the Appeals 
Council or the district court. I do pick up on trends. I 
recently had training with both the judges and the writers 
because there was a problem with the criteria analysis under 
the psychiatric review technique that sometimes the judges were 
not having a proper residual functional capacity evaluation 
with the criteria as stated earlier in the decision. And what I 
did was I addressed that with the judges and the writers to say 
if the judge makes it a problem, to go ahead and let me know, 
and we will make sure the decision goes out in a correct way.
    To answer your question, I think any more information along 
those same lines would be helpful.
    Senator Levin. I am going to wait until Dr. Coburn asks the 
question about workload because I have got to tell you, I agree 
with him. Just how does a judge do three or four or five cases 
a day, not just looking at the material I guess in a file, but 
also having read presumably hundreds of pages before that? So I 
am not going to ask that question, but if for some reason Dr. 
Coburn does not ask that question in his round, I will be 
asking it. It is stunning to me. I know he is a fast reader, 
and he is amazing, how much information he soaks up. But when 
he says he could not do it, I got to tell you, I am a little 
bit slower than he is, but I could not come close to doing it. 
And I would like to know, after listening to your answer to 
him, I am sure, I am curious as to that same question. How can 
you do a quality job with that kind of a responsibility to read 
that many pages?
    Dr. Coburn.
    Senator Coburn. Do you want me to ask that question first? 
[Laughter.]
    Senator Levin. Well, if you do not ask, I will ask it on my 
second round. I did not want to take your time asking it.
    Senator Coburn. Well, first of all, let me welcome all of 
you. Thanks for being here and thanks for what you do. This is 
hard work to make good decisions on this stuff. It is not easy.
    Judge Erwin, you said you knew for your office what your 
rating was, and it was 10 percent.
    Judge Erwin. Correct.
    Senator Coburn. Do each of you all know for your office 
what it was?
    Judge Garmon. Yes.
    Senator Coburn. And what was it?
    Judge Garmon. Well, I have a number of offices.
    Senator Coburn. Well, for your area, what were you rated?
    Judge Garmon. What was I what?
    Senator Coburn. Rated. In other words, Region VI I think is 
Oklahoma City.
    Judge Garmon. Yes.
    Senator Coburn. It was 26 percent.
    Judge Garmon. Yes. We were 24 percent.
    Senator Coburn. What about your office?
    Judge Garmon. As I said, they varied.
    Senator Coburn. What was the range?
    Judge Garmon. Off the top of my head, I do not remember, 
sir, but I can get you that information.
    Senator Coburn. You were 24, though, in your area.
    Judge Garmon. Yes, sir. Average, yes.
    Senator Coburn. And how about you, Judge Stults?
    Judge Stults. As I recollect, we were a bit above regional 
average. I know it was in the 20s. Again, I do not remember 
that off the top of my head.
    Senator Coburn. OK. Fair enough. Some of the ALJs we have 
talked to during our investigation stated that the agency puts 
a lot of pressure on them to get the cases through. Do you 
think there is an inordinate amount of pressure put on ALJs to 
move the cases? Anybody can answer.
    Judge Erwin. I will take this. I do not think there is an 
inordinate amount of pressure. I think there is pressure in any 
job. When I was in the Navy, there was pressure. When I was in 
private practice, there was pressure. The staff in our office 
has pressure to get the job done. So everybody in any job has 
pressure to get the job done.
    As a public servant, I am aware that we still have a 
backlog of 800,000 people, claimants, awaiting a hearing on 
their claim even though we are holding more hearings than we 
ever have and making more decisions. For a number of factors 
relating to the economy and the baby boomers aging, we are 
getting a record number of receipts as well.
    I do personally believe that the goal of 500 to 700 is 
attainable, mainly because I am doing it. I review cases before 
they get scheduled. Sometimes they can be approved without 
having a hearing. I then review the case again before a 
hearing, and I then issue decision-writing instructions and get 
the cases out. I am going to be between 500 and 600 this year, 
as I have been for I guess all 3 years I have been an ALJ.
    So is there pressure to get decisions out? Of course. Is it 
inordinate pressure? I do not believe so.
    Senator Coburn. So how can somebody effectively do 1,500 
cases a year?
    Judge Erwin. I do not want to speak for that person, but I 
do not think I would be able to get 1,500 cases out in a year 
the way----
    Senator Coburn. Do you know anybody that could get 1,500 
cases out in a year? The number one guy in your law school, 
could he have gotten 1,500 cases out in a year, or gal in your 
law school? Because most of the time they are gals now, and 
they are smarter than we are and tougher than we are. That is 
coming from an obstetrician's viewpoint. [Laughter.]
    Senator Levin. Is that physiologically or is that----
    Senator Coburn. It is called two X chromosomes. We are 
missing one little arm on one chromosome.
    Judge Erwin. I think the number one guy from my law school 
probably would spend too much time making sure the citations 
are correct. [Laughter.]
    He might be overly perfect.
    Senator Coburn. So the guy in the middle of your class.
    Here is the point. I will go back to what Senator--in Judge 
Stults' office, we had a guy do 5,100 in 3 years. He is also 
the same guy Judge Stults has written reviews on four times in 
3 years. Would it not make sense to you that somebody that is 
deciding that number of cases would have bigger quality 
problems, one? And if you have bigger quality problems, the 
potential for an error in the ultimate decision, whether denial 
or acceptance, would seem to me by logic to go up. Would you 
agree with that or disagree with that?
    Judge Erwin. I would probably agree that when you have 
judges that issue an inordinate number of cases, whether they 
approve an inordinate amount or disapprove an inordinate 
amount, it makes our impartiality look suspect when these 
judges are so far from the norm. And if the goal is between 500 
and 700 cases and someone is doing 1,500 cases, I do think it 
could create an appearance that they are not giving the case 
the full attention that it needs to get.
    Senator Coburn. Let me ask just theoretically all three of 
you, if you have somebody that is at a performance level based 
on number of cases done that is far above everybody else in 
your office under your authority, what do you do? I mean, what 
is your management approach to that? Do you say, ``Gosh, these 
are good cases,'' or ``Thanks for the job''? Or does it raise a 
question in your mind of comparison? There are stellar 
individuals, I understand, that can accomplish more than 
others. You know, they do not sleep. They do not have a social 
life. All they do is work. I understand that. But what is your 
thought process on this?
    Judge Garmon. I will speak for the regional office and let 
these two judges speak for what goes on at the hearing level. 
When we review our data and we see large numbers, then 
certainly it raises a flag, and you sit there and you look at 
it and you think, ``Why is this person getting this much out?'' 
The opposite side of the fence is you see somebody producing 
hardly anything, and you ask the same questions.
    We then follow up at the regional level. We have field 
liaison officers who are in contact almost every day with our 
field office management, our hearing office management. And we 
start working with the hearing office chief to determine what 
is going on here, and we begin to review decisions or we ask 
questions. Is there something inordinate about the cases that 
they are getting? In some areas you may have a large number of 
dismissals, for instance.
    So there are a lot of factors that have to be looked into, 
but, yes, it raises questions, and we do begin to work with the 
hearing office management to determine what is going on in that 
particular hearing office with that particular judge. And we do 
that without necessarily having the hard data with regard to 
quality. We can already go in and begin to review their 
decisions that they just made to determine whether or not 
something is going on. It is not a perfect process, and it 
takes hours to go through some of these decisions. We listen to 
sometimes also the hearings, and we have realized, of course, 
that in some cases these judges were missing in areas where 
there were quality questions.
    Senator Coburn. Does anybody else want to comment on that?
    Judge Stults. I can tell you exactly what I did when I was 
appointed chief judge. Yes, you have many different statistical 
reports that can give you all sorts of information from how 
many dispositions per month to average processing time to 
number of hearings heard and scheduled.
    In my case, when I became chief judge, you do look at the 
fringe, both too many and too few, and I counseled several 
judges. This judge that we are talking about in particular, he 
was not holding enough hearings, so we started getting him 
hearings, which, of course, cuts into the time available to 
look for On the Record (OTRs) cases. That first fiscal year his 
number of OTR cases dropped dramatically, and it has taken 3 
years, but this judge that we are talking about, this year as 
we speak, he has 519 total dispositions for the year. His pay 
rate is about 54 percent. He is back into the middle. And this 
was a concerted, planned, organized effort, both formally and 
informally, to move him there. And when I was appointed chief 
judge, I had several judges that needed some advice and 
guidance to increase their number of hearings, to do work more 
timely. This judge we are talking about is just one of several.
    Senator Coburn. Would it be helpful or do you see a 
correlation between large numbers of cases that are handled and 
the quality parameters--not deciding it right or wrong, but the 
quality parameters, in other words, meeting the guidelines 
under which you are to work. Is there a correlation, in other 
words, as the number of cases go up, do the quality parameter 
problems increase in your observation? I am not asking you for 
science or stats or anything else. What is your feeling about 
that?
    Judge Stults. Well, in my observation, most judges are good 
judges, but they are very poor decision writers. That was not 
their function. And, again, in the case of the judge we are 
talking about, he took upon himself for some very unique 
reasons to write these himself. In retrospect, that was 
probably not the best decision.
    So if a judge devotes their full time and attention to 
reviewing case files, working with the staff to prepare for 
hearing, goes in, holds a fair and complete hearing, and then 
makes a timely instructional document to a decision writer, who 
then is trained and has more time to really delve into the 
issues and to make sure a legally sufficient decision is 
written, then, yes, I think judges can be very efficient and 
very productive, well above the 500- to 700-case range.
    Senator Coburn. You mentioned the words ``unique reasons.''
    Judge Stults. Very unique reasons.
    Senator Coburn. What do you mean by that?
    Judge Stults. Well, it is kind of like the movie ``The 
Perfect Storm.'' During these 3 years we were talking about for 
this particular judge, he was chief judge. Hence, he could 
assign cases to himself. He could assign as many cases as he 
wanted to himself. That cannot happen anymore. This will never 
happen again. We are limited to 1,200 cases a year; and, number 
two, a judge cannot assign himself a case. I cannot even assign 
myself a case. I have to have a member of management assign me 
a case.
    So that is what happened. He was in charge. For a number of 
reasons--and I do not want to take too much time here.
    Senator Coburn. No, I do not want you to go into the 
details.
    Judge Stults. But I have explained it to Mr. Dockham, and 
it will not, it cannot happen again.
    Senator Coburn. I am over. I will go back to----
    Senator Levin. You can keep going if you want.
    Senator Coburn. No. Go ahead.
    Senator Levin. Going back to this document that we have 
here, Exhibit 22, and this Final Action Report. Region VIII 
here has a very low rate. Now, again, we are not looking at 
erroneous decisions. That is not the judgment. The question is 
judgments--are they problematic. These are decisions that have 
some errors, that policy was not followed. That does not mean 
that, again, they reached the wrong decision. I want to 
emphasize that. We do not know whether they did or not. But 
these are cases which have problems in them in terms of 
following the rules and the process.
    Have any of you talked to the chief judge in Region VIII 
and try to ask him, ``How come your rate is so much lower than 
our rate?'' Do you know who that is, by the way? Do you guys 
get together every year, the chief judges?
    Judge Garmon. Yes, sir, we get together. In fact, more 
often that that, and we are often on the phone talking to each 
other. The judge in that region is recently stepping down. Her 
name is Marsha Stroup, and Judge Stroup is a very fine judge.
    This particular region has been a region that has performed 
well over the years historically within ODAR. It is not a large 
region insofar as the number of offices and judges and so 
forth. And she has managed that region very well, and so did 
her predecessor.
    Senator Levin. Could their caseload be lower? Could that be 
a reason, do you know?
    Judge Garmon. Caseload being lower? I would have to look at 
some statistics, but there is a possibility, but I really do 
not know, Mr. Chairman. I would not know how to answer that 
question.
    Senator Levin. Do you have any other comments about talking 
to the chief judge in Region VIII to figure out why they are so 
much lower than the national average? Have either of the other 
two of you done that?
    Judge Stults. No.
    Senator Levin. OK. Judge Erwin.
    Judge Erwin. I have not spoken to them.
    Senator Levin. All right. On page 9 of the report, there is 
a three-page list identifying in a more detailed way the nature 
of the problems that have been found in these cases. On page 
10, in the middle, the listing indicates 46 percent of the 
problems involved, or about half, are inadequacies relating to 
identifying and evaluating the evidence. Consultative examiner, 
the opinion was rejected without adequate articulation. A non-
examining source, the opinion did not identify or discuss that 
source. Residual functional capacity, the effects of a 
combination of impairments inadequately evaluated.
    Have you looked at those specific identified problems that 
are common to see if those problems are common in your offices? 
Do you take this report and put it to that kind of use? Judge 
Stults.
    Judge Stults. Well, again, I have been with this agency 16 
years, and I think everyone would agree the top ten reasons for 
remand have not changed much at all over the last 16 years. 
This information is available and is being shared. Again, I go 
back to the website, the ``How MI Doing'' that every judge has 
at their fingertips. And Judge Jonas and Judge Bice talked 
about the ability. You can drill down, see your remands and see 
the reasons, and now they are adding a feature that will help 
explain the policy that should have been followed.
    So this is a recent development, but it is one of many 
recent training initiatives that this agency has undertaken. 
So, yes, we have talked about reasons for remands at judges' 
meetings, and I think probably that is true for all three of 
us.
    Senator Levin. Now, I asked the first panel this question 
about the grids as to whether or not the guidance as to how 
those grids are to be used is clear, and their answer was, yes, 
sometimes it is guidance, sometimes it is direction, it is 
mandates.
    Is it clear to your judges how these grids are to be used, 
or is there any uncertainty or confusion? Because apparently 
our staff found that there was some uncertainty among ALJs as 
to whether these were binding or whether these were goals?
    Judge Erwin. I think it is pretty clear to the judges.
    Senator Levin. You think it is?
    Judge Erwin. Yes.
    Senator Levin. Judge Stults.
    Judge Stults. Oh, yes, very clear.
    Senator Levin. OK.
    Senator Coburn. Is it clear that they are binding, or is it 
clear that they are guidance?
    Judge Stults. Well, both. That is the function of the 
grid--if there are only exertional functional limitations, then 
the grid directs an outcome. But if there are non-exertional 
functional limitations, then the grid is a framework for either 
a favorable or unfavorable outcome.
    Senator Coburn. So why have we seen the shift from 1:4 to 
4:1 from medical reasons for disability to grid-related 
disability over the last 5 years in this country?
    Judge Stults. Age of the claimant. The grid really does not 
kick in until 50. As people get older--and we are seeing a lot 
or at least I am seeing a lot of older claimants--the grid 
kicks in at 50 and 55 when you are----
    Senator Coburn. So what you are saying, it is demographic.
    Judge Stults. Yes, that is my personal experience.
    Senator Coburn. Any other comments?
    [No response.]
    Senator Coburn. Thank you.
    Senator Levin. No, that is fine. There is a demographic 
shift, I know, but not quite to that extent. I do not think it 
is 1:4/4:1. Are there any other reasons that you can think of 
besides demographics as to why there has been that shift?
    Senator Coburn. We heard earlier from both our chief 
appellate judge and chief judge that the one of the 
requirements that they wanted to firm up on was residual 
functional capacity and medical criteria. If, in fact, that is 
the case, if the medical criteria is actually looked at more 
firmly, you would--I would tend to think we would shift given--
forget age for a minute. Those under 50, we would see more back 
towards medical criteria as a basis for disability than 
functional residual capacity. Would you disagree with that 
statement?
    Judge Erwin. Do you mean a finding under Step 3 of the 
sequential evaluation process?
    Senator Coburn. Yes.
    Judge Erwin. Is that what you are talking about?
    Senator Coburn. Yes.
    Judge Erwin. I guess in my experience, generally the DDS is 
going to find a lot of the Step 3 cases and pay those. And so 
the ones we get are the ones where the medical evidence was not 
so clear as to, again, have a presumptive disability by meeting 
a listing where you have to do a more thorough analysis under 
Steps 4 and 5. I do not know if that answers your question or 
not.
    Senator Coburn. I think to go back, Mr. Chairman, one of 
the things that has happened is we have seen a large percentage 
of people, given the severe dip in the economy, that were at 
that age group that were operating with significant 
disabilities now shift off of employment, probably not by 
choice, and go this direction. So I think that can--the 
demographic shift probably can explain for it, but it should 
not explain for it in the future if the economy comes back up. 
So it is one of the things we are going to be tracking over the 
next couple of years, what is utilized.
    You all were all present
    Senator Levin. Just to interrupt you, and I am done with my 
questions, I am not sure it can explain that great a shift, 
though, demographically, can it?
    Senator Coburn. I think it can. If you have auto workers, 
we hit this economy, and they are 50 years of age, and they 
have been working with arthritis in their knees and back and 
hands and elbows, and all of a sudden they are laid off, you 
are going to see a disproportionate number of those----
    Senator Levin. I agree.
    Senator Coburn. --who qualify under the disability 
guidelines go and get that; whereas, if they still had that 
job, they probably would not.
    Senator Levin. I think that is true.
    Senator Coburn. And so functional residual capacity at that 
age, they can go to the grid, be gridded, and done.
    Senator Levin. But is the demographic shift in terms of the 
age of the applicants that dramatic that it explains the 1:4 
versus 4:1 ratio in terms of the use of the grid? It is hard to 
imagine it, but it could be. And if it is, so be it.
    Senator Coburn. Well, the other question that would go to 
that is: Can gridding be done at the DDS level? And the answer 
is yes. So why would that not be taken out before it gets to 
you?
    Judge Garmon. Senator Coburn, it depends on the information 
that the DDS has in front of it at the time. Remember, the DDS 
is at the very front end of the process. By the time the case 
gets to an administrative law judge, a lot of other medical 
evidence may have gotten into the file at that particular point 
in time. I can give you a personal example.
    A friend of mine, Tommy Warren, who was Director of the DDS 
in Alabama--and I was the Hearing Office Chief in Birmingham at 
that time--we were both puzzled at some times why they denied a 
case at the DDS level and we would get it and sometimes pay it 
on the record at the hearing office level. So we got together, 
we got his doctors, we asked him to give us a sample of the 
cases that he was interested in, and so we got the doctors to 
come over and look at those cases, considering the case and 
what we had in the case at that particular time.
    When they came over after looking at the cases, they really 
did not disagree with these files that we had paid on the 
record because there was additional medical evidence in the 
file or the 12-month period had gone by at that particular 
point in time. The claimant was still disabled, or at least 
there were medical records in the file that tended to indicate 
that.
    So, yes, they do apply, but they apply it with what they 
have at that point in time.
    Senator Coburn. I referenced in my opening statement kind 
of some midnight advisories and cheaply bought information that 
ends up showing up late in the process. And as a physician who 
has testified before an administrative law judge before, it is 
true that the medical record continues to mature during these 
cases. But it is also true that sometimes we are selecting the 
medical information we want presented in the case. And so tell 
me how you all decide a balance between here is what Tom 
Coburn, a primary care physician, has said about this patient's 
ability to work under the guidelines of disability that we use 
in terms of range of motion, etc, lifting capabilities, and 
observation, versus somebody who saw this patient for 10 
minutes and has written another one that says they are totally 
disabled, and you have got conflicting information. Here is 
somebody who has taken care of somebody for 15 years and says 
they are not disabled. Here is somebody that saw them for 10 
minutes and says they are. How do you balance that information?
    Judge Garmon. Well, first of all, we have a ruling that 
says that a treating physician's information is to be given 
more credibility under our guidelines, and so we weigh that 
evidence more than we would somebody coming in at the last 
moment with a 10-minute examination or however you described 
it. So the judge in his mind is actually looking at all of 
that. We certainly are under a duty to try to get as much of 
the claimant's treating information as we possibly can that is 
there.
    Now, I will tell you also that, when I was hearing cases in 
one State--a lot of times claimants just did not get any 
medical information, often because the fact that there was 
abject poverty and sometimes I would have a claimant walk in 
that I could just tell had some serious problems here and I am 
not a doctor, but I could tell. And I would send that person 
out to have a consultative examination, because if I had gone 
ahead at that particular point in time, I probably would not 
have found them disabled.
    So a judge is using his common sense. He is looking at the 
demeanor of the claimant. He is looking at everything that is 
going on in that hearing at that particular point in time and 
trying to make the best decision he can with the authority that 
he has got and with the instructions that he has got on how he 
is to decide those cases.
    Senator Coburn. Let us go to Exhibit 4,\1\ Alabama Case 69. 
The role of attorneys was something that a lot of the ALJs 
raised as sometimes a problem. In this case, this judge relied 
primarily on a three-question form filled out by the claimant's 
doctor the day before the hearing. That form was requested and 
sent to SSA by that claimant's attorney.
---------------------------------------------------------------------------
    \1\ See Exhibit 4 which appears in the Appendix on page 347.
---------------------------------------------------------------------------
    Exhibit 4b \2\ is a standard Notice of Disapproved Claim 
from SSA when a case is denied. It shows the case was denied on 
September 26, 2008.
---------------------------------------------------------------------------
    \2\ See Exhibit 4b which appears in the Appendix on page 352.
---------------------------------------------------------------------------
    Then if you look at Exhibit 4g,\1\ you will see a form 
submitted when a claimant hires a representative, this one 
dated October 10, 2008, 2 weeks after being denied.
---------------------------------------------------------------------------
    \1\ See Exhibit 4g which appears in the Appendix on page 375.
---------------------------------------------------------------------------
    The questions I have for--and all of you are free to 
comment on this. How common is it for someone to get an 
attorney if they are denied the first time? Fairly common.
    Judge Erwin. Yes, sir.
    Senator Coburn. All right. Do people who hire attorneys 
usually do so at the beginning of the process or the middle of 
the process?
    Judge Stults. Middle.
    Judge Garmon. Middle, I would say.
    Senator Coburn. OK. What does it say about our program that 
people need to have an attorney to process through this system? 
Any comments?
    Judge Stults. I would just say that our local bars are much 
more aggressive in locating claimants perhaps today than they 
were 10, 15, 20 years ago. I was a private practitioner 30 
years ago in central Oklahoma, and you did not see ads, you did 
not see TV or radio commercials that some of our 
representatives are now playing pretty regularly. And I think 
this goes back to the grid question. I think some of our 
representatives focus in on older folks seeking to see if they 
might want to become claimants.
    So I think it is the sophistication of the bar in reaching 
out to claimants to become a part of the process.
    Senator Coburn. Yes.
    Judge Erwin. I do not think a claimant needs to have a 
representative. To me, one of the best roles a representative 
does is get me the medical evidence in a timely manner and get 
the claimant to the hearing. If the claimant is going to come 
to the hearing, and if they filled out the forms in advance, we 
can request their medical records, and then I can ask questions 
of the claimant. If we do not have the medical records, I will 
have to ask the claimant at the hearing: ``Do we have 
everything? Is there any doctor that you have seen so I can get 
the objective findings?'' And then maybe I have to have a 
supplemental hearing, or I have to look at the records that I 
get.
    But there was a question earlier. Are we too claimant 
friendly? I do not think we are too claimant friendly, but we 
are very claimant friendly. And in the instance of a claimant 
without a representative, one of the hats we have to wear is to 
help them develop the record. And if I have a claimant that is 
going to appear and is going to cooperate and help me develop 
the record, I do not believe that person needs a 
representative.
    Senator Coburn. OK.
    Judge Garmon. By the same token--and I do not necessarily 
disagree with what my fellow judges said, but also at the same 
time--you sometimes have people who come in and their 
educational level is such that they really do not understand 
the process. A lot of times their memory, past medical 
treatment, and things of that nature are very limited and where 
I have found that the representative is especially helpful is 
in that and also in gathering things other than medical 
evidence. Sometimes there can be employment records that are 
missing from the file or other things like that, or the lack 
thereof.
    So there can be a very valid role for having a 
representative in a case, and I think sometimes they are very 
well served by having a representative.
    Senator Coburn. OK. Well, let us continue on with this one 
case because I want to kind of use it. Go to Exhibit 4i,\1\ if 
you will. In this case, a medical expert was asked to testify 
about the clinical assessment of pain. Do medical experts 
usually get evidence in advance of the hearing?
---------------------------------------------------------------------------
    \1\ See Exhibit 4i which appears in the Appendix on page 379.
---------------------------------------------------------------------------
    Judge Stults. Yes.
    Judge Garmon. Yes.
    Senator Coburn. OK. How long do they usually have to look 
it over?
    Judge Stults. In our office, I would say they get at least 
20 days prior to hearing.
    Senator Coburn. OK. Is it generally a good practice for 
medical experts to see the evidence for the first time at a 
hearing?
    Judge Stults. No.
    Senator Coburn. All right. So on page 3 of the hearing 
transcript, page 4j, the judge asks the doctor what he thinks, 
the doctor read the document into the record and said, ``So 
that would preclude an employment.'' So here is a case where a 
doctor had never seen the information, read the statement, and 
a decision is made. Is this really expert testimony when all we 
are doing is reading the statement by an expert and answering 
one question?
    And how does that fit into the quality parameters that you 
all are supposed to work under?
    Judge Garmon. Of course, this is where I am trying to put 
myself in the mind of the judge and the doctor and everybody 
else in there. I cannot really do that. But, I have seen 
doctors that I respect be able to give decisions, and valid 
decisions, who I have seen give decisions both ways--I mean, 
not just one way or the other way, but who have in cases read 
reports. Sometimes we get reports at the last moment. And so I 
have also--if the doctor felt that he needed more time--asked 
for more time to review the record. So in this particular case, 
I cannot say. I was not there. I do not know.
    Senator Coburn. Well, if you go and look at the record, you 
can see what was turned in, and right there, and it is a 
subjective assessment. It is not an objective assessment.
    Let me ask a couple questions, because I know we want to 
close out this hearing. Do you all agree that you should not 
get last-minute evidence before a hearing? In other words, 
there ought to be a time frame that you get to look at it, 
instead of it being given to you the day before or the day of 
the hearing? Do you agree, if you have information that is 
coming in that is new, that has to be looked at in light of the 
whole record, that to spring that on you the morning of the 
hearing is inappropriate and that we ought to have some 
guidelines for a cutoff date for the admission of information, 
and if new information comes, that we ought to delay the 
hearing rather than continue the hearing with new information 
that had not been seen in light of the rest of the record?
    Judge Erwin. I will certainly agree that it makes it 
difficult when you get sprung a large amount of evidence the 
night before or the day of the hearing.
    Senator Coburn. Any disagreement with that?
    Judge Garmon. No, sir. I mean, that is certainly 
reasonable. I would say also it depends on the evidence. If it 
is just a little bit, it does not make much difference. But if 
they come in with a stack of papers that high, yes, that is a 
whole lot of----
    Senator Coburn. Or if it is a major--or maybe it is one 
piece of evidence, but it contradicts everything else in the 
record.
    Judge Garmon. Well, then, that is a different question.
    Senator Coburn. That is right.
    Judge Garmon. Yes.
    Senator Coburn. So the point is late evidence ought to be 
considered in a thoughtful, intelligent way and not because it 
is just immediate to the hearing, and there is nothing wrong, 
if you are going to submit late evidence, fine, let us just 
delay the hearing to give the ALJ the time to consider that in 
light of the whole record.
    Judge Garmon. Yes, sir. I have actually continued cases 
where I have had too much at one point.
    Senator Coburn. All right. One other thing that I would 
like to ask you, because several ALJs have told me that they 
rely often on the Minnesota Multiphasic Personality Inventory 
(MMPI), or did until they were told they could not use it 
anymore as an assessment capability of the individual. And I 
can testify as a practicing physician up until January of this 
year that that is a valuable tool used throughout the medical 
community to assess large, difficult areas in terms of both 
personalities but also objectivity in terms of the statements 
of the patient as well as their overall condition.
    Do any of you have an opinion about whether or not you 
ought to be able to use tools that are out there that will 
actually help you decide the case better and whether or not the 
Social Security Administration ought to restrict your ability 
to use those tools since you are the decider of fact?
    Judge Garmon. Well, since medicine is a higher art than 
being a judge---- [Laughter.]
    Senator Coburn. I do not know that it is. You know, we say 
60 percent art, 40 percent science. My lawyer friends tell me 
that being a judge is 60 percent the law and 40 percent 
interpretation of the law. So I think they are a little bit 
reversed.
    Judge Garmon. All right. The point, though, is that I think 
along this line it would have to be deferred to our policy 
people. We did not make that decision.
    Senator Coburn. No, no. I am asking you about your opinion 
of the decision. You have an independence. I mean, we have 
heard from your bosses today that said they cannot get involved 
in interfering with your decisions, but yet they do because 
they have restricted your access to a tool that many of the 
ALJs in this country have used very effectively in deciding 
cases in the past. And so what, in fact, they are doing by 
limiting the MMPI is saying they are going to decide what you 
can look at and what you cannot.
    Judge Stults. Well, I would have to agree with Judge 
Garmon. It is a policy determined by the agency. We, in our 
qualified decisional independence, are limited to do what the 
Commissioner says.
    Now, I will tell you this right now: We are still getting 
consultative exams with the MMPI in it, and that will continue 
for a period of time. So at least for me personally, it is a 
little premature because I have not had the opportunity to have 
cases come before me where I do not have that as a tool.
    Senator Coburn. Well, but the point is you do not have the 
ability now under the rules to request an MMPI on a case.
    Judge Stults. That is true.
    Senator Coburn. Our judges could not answer it, but why 
would we limit your ability to utilize information that would 
help you make a better decision in a case?
    In other words, somebody needs to explain to this 
Subcommittee why in the world we would take something that has 
been used for years, that is recognized scientifically to be 
very valid and a very good tool for large areas in health care 
and also judgment and say all of a sudden you cannot use it?
    Judge Garmon. Yes, sir, and as I understood the answer of 
the prior panel, that information is coming to you, and you 
will get the reasoning behind it.
    Senator Coburn. Were any of you shocked that you could not 
use that anymore? Did it cross your mind that, ``Here is a tool 
that may help me decide a case accurately that I no longer am 
going to be able to utilize''?
    Judge Garmon. Well, sir, I am not a doctor, so I--again, 
you are asking me to step into your role----
    Judge Erwin. Without speaking to policy, without speaking 
for the agency, I did use the information, and a number of 
judges have wished they could still get it.
    Senator Coburn. OK.
    Judge Erwin. That is my personal opinion. I do not speak 
for the agency.
    Senator Coburn. I understand, and I know that is not 
policy. I am just saying, anybody that has used it and seen it 
has seen the value of it. Why do we take a valuable tool and 
restrict its use given that we are--you have significant 
freedom to make policy decisions about an individual case as 
long as you are doing it within the parameters of guidelines 
that the Social Security Administration sets up. Why would we 
restrict your ability to utilize information to help you make 
that case?
    All right. I will have some additional questions for the 
record, Mr. Chairman. I again thank you, and I thank all of 
you. Thank you for your service, one. You have got a tough job. 
Tough. Good luck.
    Judge Garmon. Thank you.
    Judge Stults. Thank you.
    Senator Levin. Dr. Coburn, I think we probably should then 
official ask the Social Security Administration to answer that 
question since this panel is not able to answer it. I think it 
is your suggestion--and I totally agree with it--that we find 
out. I do not know what an MMPI is, frankly, but I know that 
Dr. Coburn does, and we should know why information which has 
been traditionally relevant in a case is no longer apparently 
requestable.
    Senator Coburn. Yes.
    Senator Levin. So if that is all right with you we will 
official ask the Social Security Administration to give us the 
answer within 30 days as to why it is that they have taken that 
step.\1\
---------------------------------------------------------------------------
    \1\ See Exhibit No. 23 which appears in the Appendix on page 900.
---------------------------------------------------------------------------
    I want to thank Dr. Coburn, and I want to thank his staff 
and my staff for the work that they have done on this. It is a 
significant problem which has been addressed here. From my 
offices back in Michigan, this is not the number one problem by 
any means that we have with Social Security disability. The 
number one problem we hear about is the long wait, and that is 
something which I think has now been somewhat shortened, 
actually, but nonetheless represents a huge problem for us.
    I think the second problem we hear the most about is the 
fear that the Social Security disability program may run out of 
funding--will run out of funding at the current rate in a 
couple of years, and what are we going to do about that? But 
this problem that has been identified and gone into and 
investigated by this Subcommittee now relates to that second 
question. It probably relates to the first question, for that 
matter.
    So I want to thank Dr. Coburn for his leadership in looking 
at the problem. We just simply should not have 20 or 25 percent 
of the cases that have, according to the Social Security 
Administration, errors or inadequacies in them. The Social 
Security Administration has begun to tackle the problem. We 
both gave them credit for doing so. We hope our report helps 
that effort, and I know that is clearly the intention of the 
report.
    With that, I will thank again Dr. Coburn, and our staffs, 
and thank our panel, and we will stand adjourned.
    [Whereupon, at 12:45 p.m., the Subcommittee was adjourned.]





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