[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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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.
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\1\ The prepared statement of Judge Jonas appears in the Appendix
on page 55.
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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.
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\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\
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\1\ See Exhibit No. 23 which appears in the Appendix on page 900.
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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.
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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.
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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.
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\1\ The prepared statement of Judge Garmon appears in the Appendix
on page 83.
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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.
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\1\ See Exhibit 4 which appears in the Appendix on page 347.
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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.
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\2\ See Exhibit 4b which appears in the Appendix on page 352.
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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.
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\1\ See Exhibit 4g which appears in the Appendix on page 375.
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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?
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\1\ See Exhibit 4i which appears in the Appendix on page 379.
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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\
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\1\ See Exhibit No. 23 which appears in the Appendix on page 900.
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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.]
A P P E N D I X
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