[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] OVERSIGHT OF RISING SOCIAL SECURITY DISABILITY CLAIMS AND THE ROLE OF ADMINISTRATIVE LAW JUDGES ======================================================================= HEARING before the SUBCOMMITTEE ON ENERGY POLICY, HEALTH CARE AND ENTITLEMENTS of the COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION __________ JUNE 27, 2013 __________ Serial No. 113-44 __________ Printed for the use of the Committee on Oversight and Government Reform Available via the World Wide Web: http://www.fdsys.gov http://www.house.gov/reform U.S. GOVERNMENT PRINTING OFFICE 82-276 WASHINGTON : 2013 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM DARRELL E. ISSA, California, Chairman JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland, MICHAEL R. TURNER, Ohio Ranking Minority Member JOHN J. DUNCAN, JR., Tennessee CAROLYN B. MALONEY, New York PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of JIM JORDAN, Ohio Columbia JASON CHAFFETZ, Utah JOHN F. TIERNEY, Massachusetts TIM WALBERG, Michigan WM. LACY CLAY, Missouri JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts JUSTIN AMASH, Michigan JIM COOPER, Tennessee PAUL A. GOSAR, Arizona GERALD E. CONNOLLY, Virginia PATRICK MEEHAN, Pennsylvania JACKIE SPEIER, California SCOTT DesJARLAIS, Tennessee MATTHEW A. CARTWRIGHT, TREY GOWDY, South Carolina Pennsylvania BLAKE FARENTHOLD, Texas MARK POCAN, Wisconsin DOC HASTINGS, Washington TAMMY DUCKWORTH, Illinois CYNTHIA M. LUMMIS, Wyoming ROBIN L. KELLY, Illinois ROB WOODALL, Georgia DANNY K. DAVIS, Illinois THOMAS MASSIE, Kentucky PETER WELCH, Vermont DOUG COLLINS, Georgia TONY CARDENAS, California MARK MEADOWS, North Carolina STEVEN A. HORSFORD, Nevada KERRY L. BENTIVOLIO, Michigan MICHELLE LUJAN GRISHAM, New Mexico RON DeSANTIS, Florida Lawrence J. Brady, Staff Director John D. Cuaderes, Deputy Staff Director Stephen Castor, General Counsel Linda A. Good, Chief Clerk David Rapallo, Minority Staff Director Subcommittee on Energy Policy, Health Care and Entitlements JAMES LANKFORD, Oklahoma, Chairman PATRICK T. McHENRY, North Carolina JACKIE SPEIER, California, Ranking PAUL GOSAR, Arizona Minority Member JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of JASON CHAFFETZ, Utah Columbia TIM WALBERG, Michigan JIM COOPER, Tennessee PATRICK MEEHAN, Pennsylvania MATTHEW CARTWRIGHT, Pennsylvania SCOTT DesJARLAIS, Tennessee TAMMY DUCKWORTH, Illinois BLAKE FARENTHOLD, Texas DANNY K. DAVIS, Illinois DOC HASTINGS, Washington TONY CARDENAS, California ROB WOODALL, Georgia STEVEN A. HORSFORD, Nevada THOMAS MASSIE, Kentucky MICHELLE LUJAN GRISHAM, New Mexico C O N T E N T S ---------- Page Hearing held on June 27, 2013.................................... 1 WITNESSES The Hon. Tom Coburn, M.D., A United States Senator from the State of Oklahoma Oral Statement............................................... 2 Written Statement............................................ 5 The Hon. Drew A. Swank, Administrative Law Judge, Pittsburgh Office of Administrative Law Judges, U.S. Department of Labor Oral Statement............................................... 13 Written Statement............................................ 16 The Hon. Larry J. Butler, Administrative Law Judge, Ft. Myers Office of Disability Adjudication and Review, U.S. Social Security Administration Oral Statement............................................... 42 Written Statement............................................ 44 Mr. Glenn E. Sklar, Deputy Commissioner, Disability Adjudication and Review, Social Security Administration Oral Statement............................................... 57 Written Statement............................................ 59 The Hon. J. E. Sullivan, Administrative Law Judge, Office of Hearings, U.S. Department of Transportation Oral Statement............................................... 75 Written Statement............................................ 77 The Hon. Thomas W. Snook, Administrative Law Judge, Miami Office of Disability Adjudication and Review, Social Security Administration Oral Statement............................................... 100 Written Statement............................................ 102 Mr. Thomas D. Sutton, Board of Directors, National Organization of Social Security Claimants' Representatives Oral Statement............................................... 112 Written Statement............................................ 114 APPENDIX A Chart Prepared by the Office of Disability Adjudication and Review Submitted for the Record by The Honorable James Lankford, a Member of Congress from the State of Oklahoma...... 166 OVERSIGHT OF RISING SOCIAL SECURITY DISABILITY CLAIMS AND THE ROLE OF ADMINISTRATIVE LAW JUDGES ---------- Thursday, June 27, 2013, House of Representatives, Subcommittee on Energy Policy, Health Care & Entitlements, Committee on Oversight and Government Reform, Washington, D.C. The subcommittee met, pursuant to call, at 9:32 a.m., in Room 2154, Rayburn House Office Building, Hon. James Lankford [chairman of the subcommittee] presiding. Present: Representatives Lankford, Gosar, Jordan, Walberg, DesJarlais, Woodall, Massie, Speier, and Horsford. Also Present: Representative Kelly. Staff Present: Alexia Ardolina, Majority Assistant Clerk; Brian Blase, Majority Senior Professional Staff Member; Caitlin Carroll, Majority Deputy Press Secretary; John Cuaderes, Majority Deputy Staff Director; Linda Good, Majority Chief Clerk; Christopher Hixon, Majority Deputy Chief Counsel, Oversight; Michael R. Kiko, Majority Staff Assistant; Mark D. Marin, Majority Director of Oversight; Emily Martin, Majority Counsel; Scott Schmidt, Majority Deputy Director of Digital Strategy; Sharon Meredith Utz, Majority Professional Staff Member; Peter Warren, Majority Legislative Policy Director; Jaron Bourke, Minority Director of Administration; Nicholas Kamau, Minority Counsel; Adam Koshkin, Minority Research Assistant; and Safiya Simmons, Minority Press Secretary. Mr. Lankford. The committee will come to order. I would like to begin this hearing by stating the Oversight Committee mission statement. We exist to secure two fundamental principles: first, Americans have the right to know that the money Washington takes from them is well spent and, second, Americans deserve an efficient, effective Government that works for them. Our duty on the Oversight and Government Reform Committee is to protect these rights. Our solemn responsibility is to hold Government accountable to taxpayers, because taxpayers have the right to know what they get from their Government. We will work tirelessly in partnership with citizen watchdogs to deliver the facts to the American people and bring genuine reform to the Federal bureaucracy. This is the mission of the Oversight and Government Reform Committee. Before we proceed to our opening statements, I would like to hear from Senator Coburn. He is a guest of this committee today. The Honorable Dr. Coburn is the Ranking Minority Member of the Senate Committee on Homeland Security and Governmental Affairs. He is also a fellow Oakie with me as well, and he has done extensive research on this issue, and I would like to ask Dr. Coburn to do a quick statement and then we will allow you to get back to your senatorial duties. You are recognized. WITNESS STATEMENTS STATEMENT OF HON. TOM COBURN, M.D., A UNITED STATES SENATOR FROM THE STATE OF OKLAHOMA Senator Coburn. Well, thank you, Mr. Chairman. I appreciate the opportunity to come before you. Several years ago we started, in the Permanent Subcommittee on Investigations, an in-depth study of the Social Security disability system, and we started that because what looks like the trust fund is now less than 15 months until those with true disabilities are going to see a reduction in the payments that they get from the disability trust fund. We looked at both the manner, the method, and the lack of oversight that Congress has had over the last 30 years over this program, and what we found were some significant flaws, both in the management and the valuation. We saw significant delay in bringing the factors with which you would make this decision up to date, and I am talking about the vocational grid program. What we know is 1 in 17 Americans today collect a disability check through the Social Security system, and for those that are truly disabled, their ability to survive on not a great amount of money is going to be further limited if in fact we don't make some rather significant changes. Interestingly enough, our committee looked at 300, randomly selected by Social Security, cases from three different offices throughout the Country. One of those was Oklahoma City. I asked to have one in Oklahoma done so we would have the pressure to not be biased against the system, but yet see a reflection of what happens in Oklahoma as well. Through that assessment we found that 25 percent of the cases at the ALJ level were decided in appropriately. It could be note that Social Security's own internal assessment is at 22 percent, so we weren't far off, and we weren't aware of that at the time. So there is a large agreement, both by Social Security Administration and the Permanent Subcommittee on Investigations in the Senate, Government Affairs Committee, that we have a real problem, and the problem is manifest in several ways. One is because of the extreme backlog, the requirements placed on ALJs to try to hit 500 to 700 cases a year is really an impossibility to do it properly; two, the default position is to approve rather then to find the facts, and it is to approve because it is much easier and quicker to write an approving decision than it is a disapproval decision. The average case has over 600 pages in it, so if you think about what a judge would have to do to actually truly look at the whole case, the whole file, you can see that doing 700 cases a year, and doing it well, is an impossibility. The second thing we found is judges actually changing dates of disability so they can use the grid, so they can get a case out, when in fact they would change the date at which an injury occurred so they could utilize the grid, so they wouldn't have to make a determination. The other thing we found, and we can't comment to a great extent now because it is going to the Justice Department for prosecution, is a tremendous amount of collusion between some ALJs and lawyers representing claimants. And you will see that come out in the future. But a pretty significant malfeasance in that area. And it is understandable because of the economic benefits to those that are representing those individuals who may in fact not be disabled, but in fact the economic benefit for those representing those that are not in fact disabled nearest to those that are representing them. Finally, significant decisions within Social Security to abandon the use of well-proven and well-recognized standards in the medical community to diagnose and ascertain malingering have been eliminated from ALJs. For example, the Minnesota Multiphasic Personality test, which is something physicians use all the time. It is a well known standard in the disability community, as well as in the medical community. Within the last two years that is no longer a tool available to ALJs, so the bias has shifted. The other points I would make for your consideration as you look at this is continuing disability review is a joke. It is not happening to any significant extent. And then the final point I would make is we need to reform the process. We have great people working in Social Security. They actually know their job, they actually read all the data, and they make a determination about whether somebody is disabled or not. When somebody comes before an ALJ, they have already been denied two times by professionals at Social Security who actually have looked at all the data, so when you have a nationwide approval rate of 60 percent after that, you have to ask yourself why. And the real answer is that ALJs don't look at all the information and that there is nobody representing the taxpayer, i.e., Social Security in the courtroom to present the other side of the case. So you have a finder of fact and an ALJ, you have a claimant and their attorney, but you have nobody representing Social Security, who has actually gone through the fine twice to look at it. We also have a significant number of problems with gaming the system, where lawyers withhold real information and buy, through the medical community, the result they want. Now, I will just give you an anecdote. When I first went into medical practice, I had a very well known lawyer in my hometown send me a candidate that he was representing before an ALJ, and I used the guideline book to assess the candidate and the candidate was not disabled. I got a call after that from the attorney saying he could never refer any patients to me again because I didn't find his patient disabled. So it tells you the bias is not to find fact, the bias is to find disability; and what we need to do is rebalance that. And I leave you with a final thought: We all know people who are truly disabled, and we have a system that is designed to really help them. That system now has been put at risk and the amount of money those individuals will collect two years from now, if we don't reform this, will be significantly less. We cannot move money, we do not have the capability to move money to this trust fund. Nor do we have the ability to draw money and borrow money for this trust fund. So what will happen is, about 17 months from now, people who are collecting a disability check are going to get a much smaller check. So the very people in the disability community who are worried about us reforming this, when they really think about it, what they really want us to do is truly reform it so that the people who are truly disabled. Last anecdotal story. Oklahoma had a significant winterized storm about five years ago, and in my home, which is loaded with trees, I lost big trees, snapped and everything else, and I made an agreement with an individual to come and clear those trees, trim those trees; and when I went to pay him, I asked him for his Social Security Number to pay him and he said, really, I really want you to make the check out to my mom, and I said, well, why? I said, I need to withdraw Social Security earnings and the FICA taxes on what I am paying you because this is labor. Come to find out three years prior to that he had fallen out of a tree and broken his ankle and was on full disability, but had been working the last three years after his ankle healed; and nobody from Social Security ever contacted him. He we was still collecting. He knew if he reported the income, and he was making about $50,000 a year trimming trees, that in fact he would not continue to collect this money. Well, he didn't deserve the money; he was no longer disabled. So we have the problem of continuing disability that is not reviewed; we have the problem of putting people on disability that aren't, all putting at risk the people who are truly disabled in this Country for what we have promised and should be there to supply to them. I thank you for hearing me. [Prepared statement of Senator Coburn follows:] [GRAPHIC] [TIFF OMITTED] 82276.001 [GRAPHIC] [TIFF OMITTED] 82276.002 [GRAPHIC] [TIFF OMITTED] 82276.003 [GRAPHIC] [TIFF OMITTED] 82276.004 Mr. Lankford. Thank you. We will take a short recess to be able to reset the panel. Dr. Coburn, thank you for being here and the work that you have done on the Senate side on this issue for a very long time. [Recess.] Mr. Lankford. I recognize myself for an opening statement. The Social Security Administration oversees Federal disability programs, the Social Security Disability Insurance Program and the Supplemental Security Income Program. Over the past 25 years, the number of people enrolled in the Disability Insurance Program has tripled and the number of people enrolled in the SSI program has doubled. Today's hearing focuses on the large growth in Federal disability programs. Growth has implications for the national economy, national character, and, as has already been mentioned, for those that desperately need the help the most. The rapid growth in these programs corresponds to a period of time when a typical job became less physically intensive and the health of Americans nearing retirement improved. The consensus of expert, academics, and researchers from across the political spectrum attributes a large part of growth to a broader constituency attracted to the programs since claims are increasingly judged on subjective criteria. A large number of individuals who are able to work who are now receiving Federal disability benefits represents a large threat to disabled individuals who cannot work. When the Disability Insurance Trust Fund is insolvent, in three years or less, benefits will be cut by 20 percent across the board. According to a 2010 paper published jointly by the Liberal Center for American Progress and the left-of-center Brookings Institution, SSDI is ineffective in assisting workers with disabilities to reach their employment potential or maintain economic self-sufficiency. Instead, the program provides strong incentives to applicants and beneficiaries to remain permanently out of the labor force. Government policy that encourages permanent separation of an individual from the workforce is bad for the individual and for society. The Social Security Administration has failed to take steps to address the problem of the rapid disability growth, probably because the agency has failed to recognize many of these problems. At today's hearing, four administrative law judges employed currently or formerly by the agency will testify about significant problems in the disability determination process at the appeal stage and how SSA rules and policies might be a part of the problem. First, it is important to emphasize that disability cases typically only reach ALJs after applicants have been denied at the local disability determination level twice. Despite this, many ALJs have historically approved a vast majority of cases presented to them. In 2010, the average rate at which ALJs awarded benefits in cases they decided was 67 percent. Nearly 100 ALJs awarded benefits in over 90 percent of the decisions, while 29 ALJs awarded benefits in over 95 percent of the decisions. The excessive approval rates by hundreds of judges over the past few years means there are probably millions of people receiving disability benefits who are able to work in this economy. Second, it is important to emphasize the significance of the ALJs in the process. According to program expert Richard Pierce, as a practical matter, ALJs' decisions that grant disability benefits are final and irrevocable commitments of taxpayer funds. Less than 1 percent of individuals who are awarded benefits ever leave the rolls as beneficiaries. Part of the reason ALJ decisions are final is because the Social Security Administration has failed to prioritize continuing disability reviews since 2006. Despite its legal requirement to perform timely CDRs, the agency has allowed a backlog of over 1.3 million medical CDRs to develop. The ALJ role is complicated by the increasingly subjective nature of criteria used to award benefits. The emergence of a profession earning immense profits from enrolling people in disability programs and several outdated and unwise agency policies, including the fact that the agency has failed for 35 years to update a vocational and medical grid used to determine eligibility, despite the significant change in the economy, health care, and life span. A treating physician rule gives disproportionate weight to the applicant's treating physician, even if the applicant has only seen that physician once. The agency does not require applicants and their representatives to include complete medical evidence. Almost all applicants are represented at hearings by attorneys or other advocates, while no one represents the Government or taxpayers at those hearings, so the ALJs only hear evidence from one side. The agency has failed to adequately address attorney misconduct that games the appeals process and the agency prevents ALJs from acquiring information about applicants from social media sources and other outside sources. Today's hearing will examine these topics. It is also going to try to explore the effects of SSA's decision to decide cases more quickly to try to reduce the growing backlog. In November 2011, The Wall Street Journal reported the agency was pressuring and incentivizing doctors to conduct quicker medical reviews. One doctor was quoted that the implication was that you really didn't have to be that careful to study the whole thing. Some reforms to correct the broken disability determination process will need congressional action, but there are many steps the agency can unilaterally take to better protect American taxpayer dollars and those most in need, the truly disabled who will suffer most from a continuation of the excessive growth in disability claimants. I look forward to hearing about some of those steps today and try to find some resolution and ideas of how we are able to move forward. With that, I recognize the gentlelady from California, Ms. Speier. Ms. Speier. Mr. Chairman, thank you, and I thank the witnesses for being here today to participate in the hearing. Disability insurance benefits are a lifeline program for people who can no longer work because of a serious disability. It is an all or nothing program; either you can work doing something, not necessarily what you used to do, or you can't work at all. It is not a generous program. Average benefits are about $1,130 for an individual and $1,915 if you have a spouse and children. You are in or you are out. This is a benefit that American employees pay for through their FICA taxes, and when disabled workers reach full retirement age they switch to Social Security and stop drawing disability insurance. Again, these are benefits that are earned. For many years this was a system with poor leadership and no accountability. In 2007, more than 63,000 disabled claimants had to wait more than 1,000 days to have their claims adjudicated. The average wait time for a hearing in 2007 was 512 days. People died waiting for a decision. Many of these were the sole bread winners of their families. In response to criticism from members of Congress who were hearing horror stories from their constituents, and some additional funding, the Social Security Administration undertook a massive task to improve its performance. They hired hundreds of additional administrative law judges and other support employees, utilized new technology and video hearings, and set preference goals to reduce the enormous backlog and processing time for claims. There have been significant improvements. The backlog has been reduced and the average wait time is now down to 375 days. That is still too high, but certainly an improvement. At the same time, hearing level approval rates have gone down, from a high of 61 percent in 2008 to 47 percent in 2013. Mr. Chairman, these numbers are significant. And there are a lot of numbers that we are throwing around. I think it would be helpful to us as a committee to get the actual numbers. If in fact the numbers have dropped to 47 percent, that is something for us to applaud. If they are still at 61 percent, then we have a problem. But from my understanding it has dropped to 47 percent. The national approval rate for disability claims is the lowest it has been since the 1970s. I have been a vociferous critic of the VA for its backlog, and I think the SSA still has work to do to lower the current backlog and time delays. However, it must have the support of this body to do it. The committee of jurisdiction, the Ways and Means Committee, held four hearings in the past year examining these changes and improvements, and approved of them. Now, some have decided months ago that the Social Security Administration was allowing the widespread, improper payment of disability insurance benefits. I don't think it is proper to make up our minds before we hold a single hearing or initiate an investigation in this matter. Now, some have already stated the Federal disability claims are often paid to individuals who are not legally entitled to receive them. Well, there is fraud and abuse in virtually every system. Our job is to make sure we reduce it to the smallest amount possible. Now, I am sure that there is some fraud in the system. In fact, the Social Security Administration had 1400 convictions in fraud last year. Continuing disability review to ensure that those receiving benefits are still eligible must be performed on schedule and the Social Security Administration must have the resources to do it. This is where I think we need to spend a lot more time. Many people are justifiably disabled for a period of time and then become capable of doing other work, and I don't think we have enough accountability on the back end, and that is where I think we should be spending a great deal of our time. No one wants to hold any agency of Government accountable to the taxpayer or to uncover fraud and abuse more than I do, but I wish the committee would actually perform its oversight role by asking questions and considering answers before asking loaded questions or drawing such broad conclusions. If we did that, we would listen to the testimony of witnesses today and consider what they have to say in light of some facts. We would also recognize that some of the issues under discussion today are the subject of ongoing litigation. And I remind the members of this committee that we are prohibited from interfering in ongoing litigating. There are some basic facts we should acknowledge before we begin. It is a fact that more people are applying for disability benefits than ever before. That is true in the veterans system as well. When we have a downturn in the economy, there is typically more access made to these programs. Those collecting disability insurance is also larger than ever before. Is that evidence that the system is broken? Not necessarily. Because it is also true that it was known more than 20 years ago that the number of applicants and beneficiaries would significantly increase by 2016. An actuary already predicted this some 20 or 30 years because of us, the baby boomer, who have been growing older, and as we grow more feeble we need to access some of these services. It is a fact that most ALJs meet or exceed the goals established by management's work plan, 79 percent of them, and there are few repercussions for ALJs who do not meet their targets. There are no performance reviews and they are appointed for life. Nobody is telling an ALJ how to decide a case, and I think it is important to point out that these ALJs are appointed for life. There are no performance reviews; there is no judicial council, as most States have for their judges, and that is something I think that is worth looking at as well. It is also a fact that funding for the Social Security Administration has fallen dramatically in the past two fiscal year and we are likely to see backlogs grow again if this continues. Drawing conclusions before evaluating the evidence, before even asking any questions is not a credible way to conduct an oversight and Government reform. I respect the work that administrative law judges do every day, as well as the work of State hearing officers, claimant representatives, and the management of the Social Security Administration, but I think accountability is part of this. And while there has been a lot of discussion and we are going to spend a lot of time today on the workload and the so-called goals that each ALJ is to make, let's make it very clear: they have the ability to handle as many cases or as few cases, and nobody, nobody can remove them from their position unless they conduct themselves in a manner that is immoral. With that, I close. Mr. Lankford. With that, we will have your admonition there to let's ask questions first, before we assume what the ALJs are going to say on it, and I definitely agree that the CDRs are an important, that is why I included it in my opening statement as well. We have a series of issues that have to be dealt with here. This is also not the first hearing that has ever been done on this; we are joining a stream that is in motion. We are building on several hearings and then there are several more still to come. Members may have seven days to submit opening statements for the record. We will now recognize our panel today. Thank you for being here, all of you. The Honorable Drew Swank is an administrative law judge for the Pittsburgh Office of Administrative Law Judges for the Department of Labor; the Honorable Larry Butler, the only one without an S in your last name, I may say, so you stand out there today on our panel, is an administrative law judge for the Ft. Myers Office of Disability Adjudication and Review for the Social Security Administration; Mr. Glenn Sklar is the Deputy Commissioner for the Office of Disability Adjudication and Review for the Social Security Administration. Thank you for being here, sir. The Honorable J.E. Sullivan is an administrative law judge for the Office of Hearings with the Department of Transportation; the Honorable Thomas Snook is an administrative law judge for the Miami Office of Disability Adjudication and Review with the Social Security Administration; and Mr. Thomas Sutton is the past President and current member of the Board of Directors of the National Organization of Social Security Claimants' Representatives. Thank you all for being here. Pursuant to committee rules, all witnesses will be sworn in before they testify. Ironically enough, I need to ask all the witnesses, including the judges, to stand to be sworn in. Please raise your right hand. Do you solemnly swear or affirm that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you, God? [Witnesses respond in the affirmative.] Mr. Lankford. Thank you. Let the record reflect the witnesses answered in the affirmative. You may be seated. In order to allow time for discussion, we would ask you to limit your testimony to about five minutes. If you have not testified before, there is a little clock in front of you which we ask you to pay attention to, and we will sometimes pay attention to as well in the times ahead. That will count down from five to zero. You will see the lights go from green to yellow to red. If you get as close to five minutes as you can. You get bonus points for getting under five. And then we will allow the conversation to go after that when we do a round of questioning. With that, I would like to recognize Judge Swank for the first statement. STATEMENT OF THE HONORABLE DREW A. SWANK Judge Swank. Thank you, Mr. Chairman. I thank you for inviting me and the other honorable members of the subcommittee for inviting me to be here today. I spent six years as an administrative law judge with the Social Security Administration. Based on questions of law and public policy I encountered, I wrote a series of Law Review articles. I have been asked to come here today to share some of the results of my research and analysis. I would like to make clear that I am testifying in my personal capacity and my views do not necessarily reflect those of the Administration or the Department of Labor. In my research, I discovered two reoccurring themes: first, the agency's overriding priority is to reduce the massive backlog of pending disability applications; second, the Social Security Administration has been going about this, at least in part, by improperly awarding benefits. From 2000 to 2010, the number of disability applications grew over 25 times more than the growth of the Country's population. A common explanation for this has been the dismal state of the economy. Social Security disability programs were designed to assist adults who are unable to work due to a physical or mental impairment. They were never designed to be a substitute for unemployment insurance compensation. Furthermore, there is an inherent inconsistency with the notion that a person can switch back and forth between working when the economy is good and collecting disability benefits when the economy is bad, irrespective of any disability. With this huge influx of disability applications from people who were working and lost their jobs just due to the economy, awards of disability benefits should have plummeted in the last few years. Instead, they have risen by 28 percent between 2007 and 2010. Since 2009, twice as many people have applied for disability benefits as have started new jobs. Despite improvements in health care and shifts towards less physically intensive labor, the percentage of Americans receiving disability benefits has risen in the last 20 years. Something other than being disabled is encouraging individuals to apply for Social Security disability benefits. Working or not, disabled or not, people are increasingly seeing Social Security disability benefits as a relatively easy means of earning a lifetime of Government payments and a gateway to a host of other Government entitlement programs. Because of this, a variety of observers have concluded that the agency's disability programs have become unsustainably generous. Furthermore, the agency's leadership, being most concerned with the ever-growing backlog of disability cases, has prioritized the speed of processing cases over accuracy. It has become increasingly clear that the agency, instead of only awarding benefits to adults who are unable to work, is effectively handing out money for free. By even the agency's own analysis, 15 percent, or $21 billion worth a year, of its administrative law judge decisions are improperly granting disability benefits. Even by Government standards, $21 billion a year is real money. Of course, the agency does not care if undesired benefits are granted; it is not the agency's money. If a claimant is paid, the case disappears, the backlog shrinks, and nobody ever complaints. This is obviously not true if a case is denied. Denials lead to appeals or new applications, both of which increase the backlog. In a shortsighted approach to the backlog problem, the agency's command climate is to pay the case so it goes away. This approach not only makes a mockery of the administrative disability adjudication process that Congress has created, but it harms the disabled public the agency is supposed to serve. These problems are not merely academic. The trust fund that pays for the Social Security disability programs will exhaust its money in 2016, only three years away. Furthermore, improperly paying disability benefits harms the economy as a whole. Once awarded disability benefits, individuals will almost never return to the active workforce. Beyond the cost to the taxpayer and to the economy, improperly paid disability benefits undermine the integrity of the entire system and stigmatizes the people who truly deserve their disability benefits, as the validity or degree of their disability will undoubtedly be called into question. The agency's improperly awarding disability benefits harms the very same people the agency is supposed to be helping and the taxpaying public that supports them. Thank you. [Prepared statement of Judge Swank follows:] [GRAPHIC] [TIFF OMITTED] 82276.005 [GRAPHIC] [TIFF OMITTED] 82276.006 [GRAPHIC] [TIFF OMITTED] 82276.007 [GRAPHIC] [TIFF OMITTED] 82276.008 [GRAPHIC] [TIFF OMITTED] 82276.009 [GRAPHIC] [TIFF OMITTED] 82276.010 [GRAPHIC] [TIFF OMITTED] 82276.011 [GRAPHIC] [TIFF OMITTED] 82276.012 [GRAPHIC] [TIFF OMITTED] 82276.013 [GRAPHIC] [TIFF OMITTED] 82276.014 [GRAPHIC] [TIFF OMITTED] 82276.015 [GRAPHIC] [TIFF OMITTED] 82276.016 [GRAPHIC] [TIFF OMITTED] 82276.017 [GRAPHIC] [TIFF OMITTED] 82276.018 [GRAPHIC] [TIFF OMITTED] 82276.019 [GRAPHIC] [TIFF OMITTED] 82276.020 [GRAPHIC] [TIFF OMITTED] 82276.021 [GRAPHIC] [TIFF OMITTED] 82276.022 [GRAPHIC] [TIFF OMITTED] 82276.023 [GRAPHIC] [TIFF OMITTED] 82276.024 [GRAPHIC] [TIFF OMITTED] 82276.025 [GRAPHIC] [TIFF OMITTED] 82276.026 [GRAPHIC] [TIFF OMITTED] 82276.027 [GRAPHIC] [TIFF OMITTED] 82276.028 [GRAPHIC] [TIFF OMITTED] 82276.029 [GRAPHIC] [TIFF OMITTED] 82276.030 Mr. Lankford. Thank you. Judge Butler? STATEMENT OF THE HONORABLE LARRY J. BUTLER Judge Butler. My name is Larry Butler, and I am very pleased and honored to have the opportunity to be invited to talk to you today. I agree with Judge Swank, for the most part. I think you have to keep in mind, when you are talking about this program, some important facts. One, every decision that I make or any Federal ALJ makes as a judge, a disability judge, has been valued at probably $300,000. So when I make 500 decisions in a year, I am dealing with $150 million worth of taxpayer funds. And I don't look at them exactly as just a general tax; these are FICA funds that are paid by people who are working out there day after day, that is where the money is coming from. The second thing you have to realize is right now Social Security is paying out almost $2 billion a year for attorney and representative fees. This program has changed. When these regulations and grids and everything were put in place originally, this was supposed to be an informal program where a person could apply for disability and not have to go to an attorney or anybody else to figure out how to do that. We don't have that anymore; that is not the reality. Two billion a year for attorney fees and non-attorney representatives are withheld from the claimant's benefits. The third thing you have to realize is that just about everybody out there, except that person paying that FICA tax, wants to see this claim paid. Now, the ranking minority member mentioned that an average award may be worth $1500, approximately, or whatever. I am not sure of the exact amount myself, but the point is that is just the tip of the iceberg. Like Judge Swank said, we are talking about payment after two years on Medicare, or earlier than that on Medicaid with the SSI, Supplemental Security Income, program. Those monies go to doctors, they go to hospitals, they go to clinics, and all these third parties are interested in seeing that claim paid. Nobody is representing the person paying the FICA tax that supports this entire program. There have been recommendations made for a long time, including Senator Coburn mentioned this morning that we need a representative in these hearings. We need a representative not to represent the Government, represent the taxpayers. It would stop some of these paid out billion dollar judges who have paid these cases, a number of them, I can go through them, if you want me to, one by one, pay thousands of cases. One of them that was mentioned by Senator Coburn was a judge in Oklahoma City. He is 87 years old. He paid 5,000 cases in less than two years, I believe it was, over $1 billion worth of claims. Paid 90 percent of the cases the agency put before him to review. Now, he got those cases from the agency. If you take a look at his testimony when they took the judge's interview by the staff with the committee took his interview, those cases were provided by the agency from all over the Country And the one I remember was 500 cases from Little Rock, Arkansas, because that is a whole year's work for an average judge, even by the standards the agency applies. The agency sat there and let him pay those cases. You don't have a judge problem. You have 1400 judges out there, and 9 out of 10 of them are great judges; they work hard, they do the best they can. The ones that are not should have been dealt with years ago. Years ago. There is an action pending in New York, a class action involving five judges at a particular office up there. The claim is that these judges have been generally biased against claimants, I guess, because general bias, I don't even understand exactly what that means. The original complaint was back to 2005. Well, my question is if they have been doing that, if that is true, where was the agency? Why are those judges even sitting there for somebody to bring a class action against them? I have run out of time, very close to it. Two points: I think you need to look at this issue of paying down the backlog. It has been called in testimony over here by agency personnel anecdotal and innuendo. That is what is behind it. It is media hype. It is not media hype; it is real. And for six years it has been going on. The second thing I think you need to focus on is not disclosing evidence. The agency has allowed these attorneys to take the position, and the agency has done nothing about it, that they can conceal evidence if it doesn't support a claim for disability. I don't need a judge or anybody else to tell me that is fraud. I don't care what the agency says or what Chief Judge Bice says. If you are going to sit there and let somebody withhold evidence from me, and I pay a claim worth $300,000 that some taxpayers have paid for to a person who is not disabled, that is fraud. To me, I can't see anything clearer than that; and this agency has perpetuated that for years. Thank you. [Prepared statement of Judge Butler follows:] [GRAPHIC] [TIFF OMITTED] 82276.031 [GRAPHIC] [TIFF OMITTED] 82276.032 [GRAPHIC] [TIFF OMITTED] 82276.033 [GRAPHIC] [TIFF OMITTED] 82276.034 [GRAPHIC] [TIFF OMITTED] 82276.035 [GRAPHIC] [TIFF OMITTED] 82276.036 [GRAPHIC] [TIFF OMITTED] 82276.037 [GRAPHIC] [TIFF OMITTED] 82276.038 [GRAPHIC] [TIFF OMITTED] 82276.039 [GRAPHIC] [TIFF OMITTED] 82276.040 [GRAPHIC] [TIFF OMITTED] 82276.041 [GRAPHIC] [TIFF OMITTED] 82276.042 [GRAPHIC] [TIFF OMITTED] 82276.043 Mr. Lankford. Thank you. Mr. Sklar? STATEMENT OF GLENN E. SKLAR Mr. Sklar. Chairman Lankford, Ranking Member Speier, and members of the subcommittee, my name is Glenn Sklar. I have had the distinct honor to work for Social Security for over two decades now. In January 2010, I was asked to serve as the Deputy Commissioner for the Office of Disability Adjudication and Review. In this capacity I currently oversee the hearings and appeals levels at SSA. While I have previously held various other posts during my 21-year tenure at SSA, including leadership posts in the anti-fraud component, policy component, and quality component, I will limit my testimony today strictly to the hearings and appeals process. Our disability program has been described as one of the largest adjudication systems in the free world. This year we will handle a staggering 800,000 requests for hearings. To accomplish this, highly trained adjudicators follow a complex process for determining disability according to the requirements in the law as designed by Congress. In 2007 there was widespread dissatisfaction with backlogs and delays at the appellate levels. The numbers were pretty stark. The average wait time for a hearing was over 500 days. Over 60,000 people waited over 1,000 days for a hearing decision, with the most extreme cases being waits of nearly four years. The cause could be directly tied to decades of chronic under-funding and under-investment. There was an urgent call to action. As we all know, justice delayed is justice denied. We developed an operational plan that focused on the gritty work of truly managing the unprecedented hearings workload. We made dozens of critical changes, such as improving our IT infrastructure, enhancing quality checks and feedback, simplifying policies, standardizing business processes, establishing clear expectations and expanding our use of video hearings. With the support of the Congress, we committed the resources to get this job done. The plan has worked exceptionally well. We have significantly improved the quality and timeliness of our hearing decisions. Our appropriators offered the following words of encouragement in Senate Report 112-176: ``The committee applauds the work SSA has done in recent years to reduce the disability backlog and the time it takes to process disability hearings. SSA has reduced the average time it takes to process a disability hearing from 532 days in 2008 to 354 days in 2012, despite a record increase in disability hearings over that period. SSA has also greatly improved the parity of processing times across the Country. In fiscal year 2008, some hearing offices that averaged processing times over 900 days, but this year no hearing office had a processing time over 475 days.'' Additionally, we have enhanced the quality of our decisions over the last several years. The rate at which our reviewing body, the Appeals Council, is remanding cases to our judges for re-review has declined. The percentage of Federal Court review requests is also declining. So how did we approve our quality while moving more work? We improved our quality by, among other things, hiring over 800 highly skilled ALJs, all of whom have received in-depth national training; emphasizing and reemphasizing the need for policy compliance; hiring attorneys, support staff, and decision writers to help ALJs obtain and organize evidence and write decisions; providing quarterly training on error-prone topics for all adjudicators at the hearing level and annual training for a significant percentage of the ALJ corps each year; giving ALJs access to real-time data that highlights where they might be making mistakes and encouraging them to self-correct; standardizing business processes and encouraging all ALJs to work electronically; establishing a brand new Division of Quality that reviews a statistically valid sample of favorable determinations for accuracy and policy compliance before the money goes out the door; reducing the maximum number of cases that our ALJs may decide each year to less than 1,000 per ALJ; and, finally, collecting substantial amounts of national data to determine how we can get better in the hearings process each and every day. Making disability decisions for Social Security is a challenging and complicated task. I am truly proud that our ALJ corps rises to the challenge each and every day, making timely and legally sufficient decisions for the American public. Thank you for inviting me to be here today, and I stand ready to answer any questions you may have. [Prepared statement of Mr. Sklar follows:] [GRAPHIC] [TIFF OMITTED] 82276.045 [GRAPHIC] [TIFF OMITTED] 82276.046 [GRAPHIC] [TIFF OMITTED] 82276.047 [GRAPHIC] [TIFF OMITTED] 82276.048 [GRAPHIC] [TIFF OMITTED] 82276.049 [GRAPHIC] [TIFF OMITTED] 82276.050 [GRAPHIC] [TIFF OMITTED] 82276.051 [GRAPHIC] [TIFF OMITTED] 82276.052 [GRAPHIC] [TIFF OMITTED] 82276.053 [GRAPHIC] [TIFF OMITTED] 82276.054 [GRAPHIC] [TIFF OMITTED] 82276.055 [GRAPHIC] [TIFF OMITTED] 82276.056 [GRAPHIC] [TIFF OMITTED] 82276.057 [GRAPHIC] [TIFF OMITTED] 82276.058 [GRAPHIC] [TIFF OMITTED] 82276.059 [GRAPHIC] [TIFF OMITTED] 82276.060 Mr. Lankford. Thank you. Before I recognize Judge Sullivan, if anyone else has their microphone on, you might want to turn it off, because we are getting a little bit of ringing feedback. It will change a little bit when we do the questions, but during the opening statement just have one at a time on. Judge Sullivan, pleased to recognize you. STATEMENT OF THE HONORABLE J. E. SULLIVAN Judge Sullivan. Thank you, Chairman Lankford, Minority Member Speier, members of the committee for holding this hearing and for the opportunity to testify before you. From April 2008 to June 2011, I served as a United States administrative law judge in the Social Security Administration's Disability Program. My testimony today is in my individual capacity and not as a representative of the United States Department of Transportation, where I am currently employed as a judge. In my testimony today, I want to focus on the SSA management's mistaken emphasis on production goals and speed of production within the adjudication offices. Production is the code word for when a judge signs a disability decision. Speedy and high volume production by a judge in a short period of time, i.e., ``making goal,'' is the prism lens through which all SSA management decisions regarding adjudication of disability are made. A judge's production, or ``making goal'' is SSA management's singular and exclusive focus in its administration and oversight of SSA's disability hearings process. For SSA management, ``making goal'' is more important than the adjudicatory process, the quality of a judge's work, and any considerations in making that decision. Instead of managing a meaningful Federal adjudication program, SSA management has substituted a factory-type production process. Judging is not a factory work process, but SSA has taken that approach for speed and high volume results. As a result, SSA management can present to Congress and the American people with some impressive production statistics, but these statistics have been achieved by causing incalculable damage to the adjudication process at SSA. You will be hearing today and in the future from a wide variety of individuals who can give you statistics, formulas, production numbers, mathematical calculations, and other such material. My testimony today is focused on two things: my personal experiences working for three years as a Social Security administration law judge and interacting with local, regional, and national SSA managers during that process; and, number two, my 24 years of State and Federal service as a trial and hearings judge. My resume is attached to the back of my materials, but I just want to highlight that before I joined the SSA family, I had already served as a judge for 19 years in the State of Washington; 10 years as a State trial court judge part-time on the Court of General Jurisdiction, 9 years as a State industrial insurance appeals judge. I had also five years of experience working both as a criminal defense lawyer and as a deputy prosecuting attorney, so I brought with me my experience, and that basically addresses why I have reached the opinions I am presenting today. There are seven primary points in my testimony that I want to make sure that I get out before my time is up. Number one, SSA management measures the adjudication program solely by a judge's speedy issuance of a very high number of decisions, and that I would be calling ``making goal.'' Number two, the SSA's high volume and speedy production goals result in management perceiving that the only value to a judge's work is that final decision; nothing else matters. Number three, the process of a judge's work, which I call meaningful adjudication, takes time and involves complex, difficult work processes. Number four, the SSA management's prism lens of management, which is ``making goal,'' is incompatible with a judge's meaningful adjudication work. Number five, the SSA management's high volume and speedy production goal agenda results in management pressuring judges to stop all meaningful adjudication work. Number six, the high volume and speedy production goals result in production of a large number of disability decisions that have not been properly reviewed, analyzed, or decided. Number seven, the production mandate by SSA management and the pressure for high volume and speedy disability decisions results in high rates of error in judicial decisions. As a result, you see the loss of billions of dollars incorrectly expended from the trust fund and in hardship for countless American citizens. My time is up, sir. Thank you. [Prepared statement of Judge Sullivan follows:] [GRAPHIC] [TIFF OMITTED] 82276.062 [GRAPHIC] [TIFF OMITTED] 82276.063 [GRAPHIC] [TIFF OMITTED] 82276.064 [GRAPHIC] [TIFF OMITTED] 82276.065 [GRAPHIC] [TIFF OMITTED] 82276.066 [GRAPHIC] [TIFF OMITTED] 82276.067 [GRAPHIC] [TIFF OMITTED] 82276.068 [GRAPHIC] [TIFF OMITTED] 82276.069 [GRAPHIC] [TIFF OMITTED] 82276.070 [GRAPHIC] [TIFF OMITTED] 82276.071 [GRAPHIC] [TIFF OMITTED] 82276.072 [GRAPHIC] [TIFF OMITTED] 82276.073 [GRAPHIC] [TIFF OMITTED] 82276.074 [GRAPHIC] [TIFF OMITTED] 82276.075 [GRAPHIC] [TIFF OMITTED] 82276.076 [GRAPHIC] [TIFF OMITTED] 82276.077 [GRAPHIC] [TIFF OMITTED] 82276.078 [GRAPHIC] [TIFF OMITTED] 82276.079 [GRAPHIC] [TIFF OMITTED] 82276.080 [GRAPHIC] [TIFF OMITTED] 82276.081 [GRAPHIC] [TIFF OMITTED] 82276.082 [GRAPHIC] [TIFF OMITTED] 82276.083 [GRAPHIC] [TIFF OMITTED] 82276.084 Mr. Lankford. Thank you. Judge Snook? STATEMENT OF THE HONORABLE THOMAS W. SNOOK Judge Snook. Thank you. Chairman Lankford and Ranking Member Speier, thank you for inviting me to present testimony to the subcommittee. I am honored to report to you what has happening in the trenches from the perspective of one who has been a Social Security line judge for 16 years. Although I feel the majority of line judges share my views, I am testifying in my individual capacity. I paid my own expenses to attend the hearing and am on personal leave. Shortly before I was appointed a Social Security judge, I represented an uncle who had applied for disability benefits on his own. He was awarded benefits posthumously, five years after he applied. I think I understand how the system does not work. I am going to focus on the authority of the judges and the disability hearing itself from the perspective of a line judge. I am a judge in Miami. I hear many SSI cases; I only hear about two or three disability insurance benefits cases a month; I hear some concurrent cases. So the cases that I am talking about the taxpayers are paying for. Mr. Chairman, I want to congratulate you on the quality of your staff. I have been very impressed with their knowledge and dedication. However, Mr. Chairman, what if Speaker Boehner selected all your staff and you could not direct them to do any work, you could only request that they perform a task because they all worked for the speaker? That is my position as a judge with the Social Security Administration. Although we also have excellent staff, nobody works for me. I have no authority over the staff, nor can I direct them to do anything. Not only do I not have any authority over the support staff, I have no authority over the attorneys who appear before me. I cannot direct them to submit evidence before the hearing. I cannot direct them to submit all relevant evidence, not just evidence favorable to the claimant. I can impose no sanctions when they withdraw the day of the hearing. I can impose no sanctions when they show up at the hearing with hundreds of pages of new evidence, even if the hearing has to be postponed because the medical expert does not have time to read the new evidence. Let me shortly describe what happened to three judges in Cleveland who had the temerity to issue a prehearing order 10 years ago. It was a typical generic order using all judicial systems to make the hearing run more efficiently. However, the order directed the evidence be submitted before the hearing to a staff supervisor. The judges were charged with insubordination because they had no authority to direct the supervisor to accept the evidence. The resulting litigation lasted several years. While the case was on appeal, one of the judges died. Let me tell you how compassionate this agency is with regard to insubordinate judges. They made his widow a party to the lawsuit. To her credit, when Commissioner Barnhart learned about the facts, she immediately had the widow dismissed from the lawsuit. Now, I don't want a misunderstanding with regard to the attorneys representing claimants. We have outstanding attorneys representing claimants. My remarks are directly mainly towards these mega-firms. The Wall Street Journal has had several articles about that and Binder and Binder was bought out by a hedge fund. Now, is this really what Congress intended, that disability law firms be owned by hedge funds? Let me make some proposed recommendations. I propose five procedural steps to make the hearings more efficient, reduce staff, and save taxpayer money. They are based on the Disability Service Improvement plan proposed by former Commissioner Barnhart, except I propose a Trust/Treasury Representative as recommended by the American Bar Association in 1995. One, require that the claimants develop the record. They are making probably $2 billion. The last data was $1.7 billion. Two, require claimant's attorney to submit all relevant evidence. Unlike other judicial systems, under Social Security regulations they only have to submit evidence favorable to the claimant. Require the claimant's attorney to timely submit evidence and to timely withdraw. It is the only judicial system where the claimant's attorney may submit hundreds of pages of new evidence the day of the hearing or withdraw the day of the hearing. Close the record after the disability hearing. You can't have a moving target. I make mistakes, but I have one of the lowest remand rates in the corps. I don't mind a judge telling me I made a mistake on my record, but if the record changes and it is remanded. Lastly, appoint a trust or public representative. How many companies would issue a check for $300,000 without having two signatures? Having a representative in the hearing room will solve many problems. One, let's abandon pay and chase. CDRs aren't the answer. Making the correct decision at the beginning of the process is a correct answer. That is where the money should be put. A trust representative would also prevent abusive judges. We know there are some abusive judges, there are articles about them. These are secret proceedings, and having two government officials in the proceedings would be beneficial. And let me just end with a phrase attributed to President Reagan: Let judges be judges in the Social Security disability system, sir. Thank you, ma'am. [Prepared statement of Judge Snook follows:] [GRAPHIC] [TIFF OMITTED] 82276.085 [GRAPHIC] [TIFF OMITTED] 82276.086 [GRAPHIC] [TIFF OMITTED] 82276.087 [GRAPHIC] [TIFF OMITTED] 82276.088 [GRAPHIC] [TIFF OMITTED] 82276.089 [GRAPHIC] [TIFF OMITTED] 82276.090 [GRAPHIC] [TIFF OMITTED] 82276.091 [GRAPHIC] [TIFF OMITTED] 82276.092 [GRAPHIC] [TIFF OMITTED] 82276.093 [GRAPHIC] [TIFF OMITTED] 82276.094 Mr. Lankford. Mr. Sutton. STATEMENT OF THOMAS D. SUTTON Mr. Sutton. Thank you, Mr. Chairman, Ranking Member Speier, members of the subcommittee. My name is Thomas D. Sutton and I am here as a member of the Board of Directors and a past President of the National Organization of Social Security Claimants' Representatives. I represent the disability claimants before Social Security and in the Federal courts, and I have done so for 25 years. I appreciate your invitation today so that I may bring the perspective of claimants, the people who should be the focus of our concerns here, to the witness table. We believe the Social Security disability program is fundamentally sound in that it implements a strict but fair standard of disability established by statute. Individuals claiming benefits must prove that their severe medical impairments prevent them from performing not only the work they have done in the past, but any other work which exists in significant numbers in the economy. The severity of this standard is illustrated by the fact that one in five men and one in six women who are awarded disability benefits die within five years of the award. While no system is perfect, Social Security's administration of the disability program is not broken and the system is not in crisis. Unfortunately, some of the proposals for change, while well meaning, would not improve the system and, in fact, would cause real harm to deserving individuals who are unable to work and have nowhere else to turn. Some of these proposals are in fact based on myths which need to be exposed as such. The primary myth here is that Social Security is awarding disability at high rates to people who are able to work. In reality, approval rates for disability applicants have fallen significantly over the last few years. In fact, while the ALJ union has complained in court that the production goals which Social Security has attempted to impose on them have caused them to cut corners and award benefits to undeserving claimants just to ``keep up with the flow,'' the facts simply do not support this idea. The national average allowance rate at the ALJ level has declined, from 62 percent in 2007, the year in which the agency announced its production goals, to 52 percent in fiscal year 2012, and appears to be declining even more so far this year. A study by Dean Harold Krent for the Administrative Conference of the United States found no evidence of any bias toward allowance of cases caused by the agency's production goals. Moreover, Dean Krent's study revealed that the ALJ corps contains more outliers, defined as two standard deviations above or below the mean, in the low range of allowance rates, 3 percent of judges awarding fewer than 24 percent of claimants, then there are outliers in the high range, 2 percent awarding more than 82 percent of claimants. Our experience in the representation of claimants informs us that there is no rush to award benefits to claimants in response to increased applications or production goals. If anything, the actual data is trending in the opposite direction. This is tragic for claimants whose claims are allowed by the State agencies less than one-third of the time and who have always relied on the ALJ court to provide a fair hearing with consideration of all the evidence, much of which was never obtained by the State agencies as it should have been from the start, and some of which has emerged later in the process when new illnesses have arisen and more tests have been done to confirm their severity. Understood in this context, it should not be surprising that ALJs reach different conclusions than State agencies, who never lay eyes on a claimant and often fail to obtain all available evidence before denying claims. A second myth that has been repeated incessantly is that the standards for disability have been loosened over time, resulting in higher numbers of beneficiaries. Nothing could be further than the truth. For example, Social Security has abolished its listing of impairments for conditions like diabetes and obesity, leaving claimants suffering from such conditions at a serious disadvantage. Regulatory criteria for other impairments such as liver disease have not been abolished outright, but have been changed to make them virtually impossible to meet. The increase in applicants and awards is due almost entirely to two demographic factors, the age of the population and the advent of women as full participants in the labor force who have achieved the insured status they lacked historically. These factors obviously have nothing to do with the standards contained in the statute and regulations or the judges applying those standards. I see that my time is about to expire. I will conclude to say this: The disability adjudication system of Social Security provides a thorough and fair means of determining, through face-to-face hearings conducted by ALJs with assistance from vocational and medical experts, whether claimants meet the strict definition of disability in the Social Security Act. Claims that the system is ``rife with corruption'' and ``biased toward allowing claims'' are ill-founded and not supported by the evidence. We urge the subcommittee to ensure that any changes it contemplates are based on facts and evidence, not conjecture and supposition. The disability program is too important to the American people, both those it currently serves and those it will help in the future, to make wholesale changes which could deprive truly disabled people the benefits they have paid for with payroll taxes all their working lives. Thank you for your consideration of our views. [Prepared statement of Mr. Sutton follows:] [GRAPHIC] [TIFF OMITTED] 82276.095 [GRAPHIC] [TIFF OMITTED] 82276.096 [GRAPHIC] [TIFF OMITTED] 82276.097 [GRAPHIC] [TIFF OMITTED] 82276.098 [GRAPHIC] [TIFF OMITTED] 82276.099 [GRAPHIC] [TIFF OMITTED] 82276.100 [GRAPHIC] [TIFF OMITTED] 82276.101 [GRAPHIC] [TIFF OMITTED] 82276.102 [GRAPHIC] [TIFF OMITTED] 82276.103 [GRAPHIC] [TIFF OMITTED] 82276.104 [GRAPHIC] [TIFF OMITTED] 82276.105 [GRAPHIC] [TIFF OMITTED] 82276.106 [GRAPHIC] [TIFF OMITTED] 82276.107 [GRAPHIC] [TIFF OMITTED] 82276.108 [GRAPHIC] [TIFF OMITTED] 82276.109 [GRAPHIC] [TIFF OMITTED] 82276.110 Mr. Lankford. Thank you to all of you for bringing the testimony. What I would like to have is a conversation that will happen. There will be several of us that will come in and out and be able to ask questions. We will have about five minutes apiece. We will probably do a couple rounds of questions just to be able to answer them, and we will have that ongoing dialogue and try to see whether we can be able to pull the facts out as we walk through this process. Today is not a day to try to determine everything; today is the day to get as much information as we can out, and then we will follow up in the days ahead to say what do we need to do to be able to resolve some of these things. Judge Swank, let me ask you a question. You began all this. You mentioned that ALJs have felt some pressure before to approve disability requests, and several of you have mentioned that. Judge Sullivan, you also mentioned the production goals and such. How is that manifested? How is there a sense that there is a push to produce approvals rather than denials? Judge Swank. If I may, Mr. Chairman, if I can slightly change the question. Mr. Lankford. Sure. Judge Swank. Because in the articles that I wrote and published, my focus was more on systemic factors with the program that encourage approvals. Mr. Lankford. Okay. Judge Swank. And, secondly, restrictions on the judges that limit their ability to serve as judges. Mr. Lankford. Okay, so let's talk through a couple of those. Judge Swank. Sure. I think one of the most glaring, and it was the focus of the article that American University Law School was kind enough to publish, deals with the Social Security administrative law judges' inability to report attorney misconduct to their State bars. Per Social Security regulations, a Social Security judge is prohibited from reporting attorney misconduct to their State bar. They can only report it to agency management, and the Office of General Counsel of the Social Security Administration then will determine whether or not to pursue the misconduct. It creates a situation in which an administrative law judge, who is required to be a member of a State bar, and I went through in my article, looked at every single State bar's requirements, whether you are in judicial status or attorney status, to report misconduct, because the legal profession is self-policing. And it puts the administrative law judge in some States, as I cite in my article, in the position that they are conducting misconduct themselves by not reporting attorney misconduct to the bar. And since the administrative law judge cannot even report it to the Office of General Counsel, it has to go through the filter of management, whether or not to pursue the attorney misconduct. Mr. Lankford. So it is basically an oversight issue. It is the same thing Judge Snook was mentioning; you don't actually oversee your own staff, which, by the way, just to let you know, Judge Snook, everyone here does work for Speaker Boehner, so that is a whole different issue as well. [Laughter.] Judge Swank. But it also, sir, is something that goes a little bit beyond that from the standpoint that the administrative law judge can't police his own courtroom. Mr. Lankford. Are other courts run that way? Is this run different than a typical court? Judge Swank. Well, again, sir, I am here in my personal capacity, but, for instance, in the Department of Labor, an administrative law judge can report misconduct directly to the bar, and they do. Misconduct I don't want to say is rife, but the odds of an attorney being suspended or removed as their ability to appear before the Social Security Administration is the exact same odds of any given service member in the United States Army, Marines, Navy, Air Force, and Coast Guard, of winning the Congressional Medal of Honor. The Social Security Administration, as shown by my articles and as the minority member stated, there are many statistics. My articles have 788 footnotes combined. You can check my statistics, and if you draw as different conclusion from them, great. I have documented everything from open source documents. But the agency pursues misconduct against attorneys 16 times fewer than State bars do, on average, and State bars are very hesitant to remove someone's law license. Mr. Lankford. Let me ask you several questions, as well, because we are running out of time and I want to be able to honor everyone's time to go through the questions. What is the best way to determine if someone can work? It seems that ultimately you have had two reports that have come in to you that this person has been denied for disability saying, no, this person is capable of working somewhere in the economy. Then they are standing in front of you with counsel there and additional documents. What is the best way to determine if this person can work? Judge Swank. The regulations are actually very good. The agency has done a good job creating the regulations. You have to have the complete record, and not merely those pieces of the record that people want you to see. Mr. Lankford. Do you feel confident you are getting the complete record? Judge Swank. No, sir. Mr. Lankford. Can you subpoena additional records or additional requests? Judge Swank. Luckily, sir, when I was serving as an ALJ, I have a partial photographic memory, and I can go through the records that the doctor provided and the records that the attorney provided, and if there are records missing there is a problem there, and also from the attorney's records I would note that the visit from September of 2009 wasn't in there because the doctor said I saw him in September 2009. You subpoena that. And I also had instances where attorneys and non-attorney representatives actually changed records. Mr. Lankford. Just a quick statement. Do you have the ability to be able to ask people when is the last time you did work and what was that work, or do I have records from every doctor you have seen? Is that a typical question or are you only getting the information in from the last doctor that approved everything? Judge Swank. I would always ask that question, and I always required the attorneys, I asked them provide the rest of the information; and if they chose not to, I would subpoena. Mr. Lankford. Okay. Thank you. Judge Swank. Yes, sir. Mr. Lankford. Ms. Speier. Ms. Speier. Thank you, Mr. Chairman. First of all, thank you all for your service and thank you for your testimony this morning. I think we have so many issues here that we could spend a couple of hearings on them. First of all, I want address this issue of the backlog and the impression that is being given that somehow you have to pay it down, and that you are pressured to take on between 500 and 700 cases a year. I am just going to read from fiscal year 2010, because that is the last year that all of you were in the Social Security Administration as ALJs. Judge Swank, you disposed of 604 cases that year and your denials represented about 78 percent. Judge Sullivan, you handled 158 cases that year and you had an 83 percent denial rate. Judge Snook, you handled 111 cases that year and you had a 39 percent denial rate. Judge Butler, you had a 68 percent denial rate and you handled 659 cases. So two of you handled a workload that exceeded what was the goal; two of you did not. And your denial rates, for the most part, were very high. Judge Snook was the only one where yours was very low. So one of the statements made by Chairman Issa in March of 2013 stated that Federal disability claims are often paid to individuals who are not legally entitled to receive them. And I guess my question to you, Mr. Sklar, is it true that most applicants for disability are declined? Mr. Sklar. Let's talk a minute about what happens at the State agency level. And I think it has been noted earlier that three out of four cases that are paid happen at the State agency level, so 75 percent of all allowances happen before you even get to the administrative law judge level. Their actual allowance rate at the State agency is about 33 percent right now. For fiscal year 2013, when cases do get to the administrative law judge level, the allowance rate has been less than 50 percent. So I think the data kind of speaks for itself. Ms. Speier. All right. Can we put up on the screen there? [Slide.] Ms. Speier. Here is the other problem I see. Since 2007 the number of support staff added for ALJs has dramatically increased. The ALJs do not write their own opinions, their staff does, attorneys on their staff do. They have support staff. Judge Snook suggested that he can't appoint the staff, but he does have 3 to 4 staff persons at his disposal, is that correct, Judge Snook? Judge Snook. I don't think that is correct, Congresswoman. Ms. Speier. Well, how many staff do you have? Judge Snook. I have one clerk that does the exhibits and such for my cases. The writers are pooled, so we submit our decision instructions and then they go with management and sometime later we get them back. But I have no control on how long it takes to get my draft decisions back to me, ma'am. Ms. Speier. But you don't write the decision or the opinion, someone else does. Judge Snook. Normally not. Normally somebody else does, Congresswoman. Ms. Speier. All right. If you look here, we have a situation where the total claims are up dramatically and we in Congress have reduced the funding dramatically. So, on the one hand you have ALJs saying, you know what, we are being pushed to handle more claims and we shouldn't have to do that, and on the other hand we are saying we are going to continue to reduce your funding. We can't have it both ways, in my view. I think that we have augmented funding dramatically since 2007. Mr. Sklar, is that correct? Mr. Sklar. There was an infusion of funding around 2010, 2011, and that was incredibly helpful in helping us get down the backlog and improve quality throughout the organization. Ms. Speier. And has that been steady or has that now been declining, as this suggests it is? Mr. Sklar. Unfortunately, since October 2011 we have been declining, and nationwide at Social Security we are down about 10,000 employees. Ms. Speier. So you are down 10,000 employees, the amount of revenue that you have to operate has declined, and the number of claims that are being processed are increasing. Is that correct? Mr. Sklar. Yes. Ms. Speier. Is that a recipe for disaster? Mr. Sklar. Again, I prefer not to offer an opinion on the disaster point. We are trying to do the best we can with what we have, but we are in a really tough spot. We have made tremendous progress bringing down the backlog and improving quality, and I do believe our progress is somewhat jeopardized and the numbers reflect that, and processing times are going back up and we are trying to hold the line on quality, but it has been really tough. Ms. Speier. Thank you. Mr. Chairman, my time has expired, and I realize that we have very few members on the minority side here, so I am hopeful that you might allow me to be someone else at some point in time to ask some additional questions. Thank you. Mr. Lankford. Mr. Walberg. Mr. Walberg. Thank you, Mr. Chairman, and thank you for this hearing; it is illustrative of a number of things that we have to deal with. Let me ask a question going back to Mr. Sutton, just to make sure that I understand where he is coming from in relationship to the work that is being done and concerns about involvements. Is the executive director of your organization, Nancy Shore, married to Charles Binder? Mr. Sutton. Congressman, I believe the answer to that is yes, but I am really not at all clear why I am being asked that question. Mr. Walberg. Well, the only reason I am asking the question is that what we are hearing today about ALJs and their ability to get accurate information. We want to make sure that there is not only accurate information, but the process is appropriate. I understand that Charles Binder is a partner in the firm of Binder and Binder, which made $88 million in 2010, supplying claimant representatives for ALJ hearings. He personally, according to The Wall Street Journal, made over $22 million in that year. Doesn't it financially benefit your organization, and you personally, to keep the system functioning, or malfunctioning, the way it is now? Mr. Sutton. Again, I don't really accept the premise of the question, Congressman. Mr. Walberg. Well, you may not accept the premise of the question, but the fact of the matter is there seems to be some involvement for personal gain, significant gain, with policies that are promoted that really don't give the taxpayer an opportunity to benefit by having information put out. Mr. Sutton. Well, let me put it this way: I have been involved with the National Organization of Social Security Claimants' Representatives, a membership organization of over 4,000 attorneys nationwide, since 1997 as a member of the Board of Directors and as a past president. I have never seen any influence by the firm you reference or any other particular individual or firm that is undue or improper, in any way, shape, or form. Mr. Walberg. Thank you. I appreciate that. And, for the record, we have the record. Mr. Sklar, are claimants and claimants' representatives required by law to provide complete and accurate evidence, medical, financial or other that bears on the case, whether or not the information is adverse, unfavorable to their claim? Mr. Sklar. Congressman, right now there is some ambiguity in that area. That is why we have asked the Administrative Conference of the United States to take a look at this very tricky issue. There have been prior attempts at regulatory reform, and we ran into fierce congressional opposition. This is at least two prior commissioners. For the third time we decided to go to the experts, and the experts have actually written up a very thoughtful roadmap for how we can begin to regulate in this area. We are taking their recommendations very seriously and we are certainly going to be putting something together in fairly short order. Mr. Walberg. What was the basis for the fierce opposition that you indicated? Mr. Sklar. Actually, I was certainly not in this position at that time, but I suspect it was highly controversial, and there was certainly push-back from Congress as well. Mr. Walberg. If claimants and their representatives don't represent all relevant evidence, I guess the question is how are ALJs expected to fully develop the record to make a fair decision. Mr. Sklar. Again, I think a lot of these points are very legitimate. I think the regulations right now are ambiguous and I think they need to be fixed, and we will be moving to fix them. We haven't decided precisely which route we are going to take, we are discussing them back at Social Security with my boss, the acting commissioner of Social Security, and you can be sure we are going to take that recommendation very seriously. Mr. Walberg. Well, I appreciate that. On the issue of malingering, why is it the policy that the testing for malingering isn't allowed? Mr. Sklar. It is our thought that there is no magic bullet, so to speak, that can determine whether a person is actually malingering, so it really goes to the validity of the test. Those particular tests are also not available for individuals with low IQ or lower education levels, so our current position is that if it is in the file, the judge can certainly look at it and consider it as one piece of evidence, but we are not going to pay for that test. Mr. Walberg. I see my time has expired. Thank you. Mr. Lankford. Mr. Horsford. Mr. Horsford. Thank you, Mr. Chairman. Thank you for scheduling this very important topic around Social Security benefits. And I want to thank Mr. Sutton for his opening statement because, for me, it is really about focusing on the beneficiaries first, and then making sure that the system, which is there to serve the beneficiaries, is doing the right thing and has the resources necessary to do it. So this is a very important topic. In Nevada, I hear from my constituents all the time that their Social Security disability claims take months, even years, before receiving a determination. Applying for disability is a great hardship for many people. The family who has lost an income source, so their money is tight. People, in my opinion, want to work, but are unable to do so. The disability application process becomes even more disheartening when you find out how long Social Security takes in the processing of these claims. And I know in our backup it indicated that in 2007 63,770 disabled workers had to wait 1,000 days or more for a determination on their disability claims. So, Mr. Sklar, I want to ask you is that the proper pronunciation? Mr. Sklar. Yes. Mr. Horsford. Okay. First is, based on the investments by the Obama Administration and the hiring of 550 support staff and the additional administrative law judges since 2009, what is the current number of people, disabled workers, and what is the current amount of time people are waiting for a claims determination? Mr. Sklar. Okay, in terms of wait times, they have dropped from an average of about 530 days back in 2007 to roughly 375 to 380 days today. So it is about a 30 percent reduction in processing time. And, yes, the infusion of resources was absolutely critical. We hired over 800 judges; we actually hired a lot of support staff, actually, more than 400 or 500, quite a bit more; and it has really made a difference in turning the ship around. And we did take a good bit of those resources and pump them right back into quality, making sure we are getting the right answer, making sure we are looking at both pay cases and deny cases, because otherwise you get some very weird distortions in the system, and we didn't like that. Mr. Horsford. So what accounts for the backlog generally? Mr. Sklar. SSA has developed backlogs on multiple occasions, and typically it is directly tied to the funding levels we received. If you do graph out how we fared compared to the President's budget, and that spans over multiple administrations, typically we did not receive the level of funding recommended in the President's budget, and in some years, like the last two years, we were hundreds of millions of dollars below that level. Mr. Horsford. So what is currently being done now to address this, and are there regional places where you see improvement over others? We have been focused on the veterans backlog issue and we are starting to see some improvement there now based on our focus, so have you seen areas of the Country or centers that have historically done a better job than others? Mr. Sklar. One really nice thing is that we have invested a lot in IT and we have a fully electronic system, so we really move our work around a lot. So if you have an office that has really high processing times, we will send their work out to a different office so that they can begin to work down those cases. So we really smoothed out the variations, and if you do look at the chart in my written testimony you will see that there were only a handful of offices with processing times over 475 days, and that is largely a function of having a fully electronic workload, which is really, really important for us. Mr. Horsford. So by the time it gets to the administrative law judge step, there are steps before that. Mr. Sklar. Correct. Mr. Horsford. So what is the bottleneck? Because today we are talking about really the third and last step, but it is the steps prior to it that, if we are making progress and improvement, then by the time it gets to the administrative law judges, some of the issues that are being raised today should be addressed, or at least aware. Mr. Sklar. Typically they are very efficient, the State agencies, but they suffer from the same realities we do in that SSA funds the State agencies at 100 percent level, and if our budget is cut, effectively their funding is going to be cut too. So right now those State agencies are also starting to build up backlogs in stage cases. That basically means they have cases that they really can't work that they logged in. So if you look ahead down the road, they are going to be having problems too, and it is just beginning. Mr. Horsford. Thank you, Mr. Chairman. I know my time is expired. I just want to say that I know the Social Security Administration is facing a lot of difficulties in ensuring that no one is gaming the system, and I know that that is the intent with the hearing today, but we need to find a way to address the backlog issue because there are honest, hardworking Americans waiting for their disability claims to be processed in order to provide for themselves and their families, and I just hope that throughout this process and the subsequent ones that we will keep the beneficiaries of SS programs at the forefront. These are people with disabilities, some of them young, some of them older; they are people who have paid into the system and they are entitled to these benefits. So we shouldn't be setting up an unnecessarily burdensome process for them to get the benefits that they have earned. Thank you. Mr. Lankford. Thank you, Mr. Horsford. Dr. Gosar? Mr. Gosar. I appreciate the gentleman's comments and kind of want to take along that because we are tasked with looking at the flawed process. Judge Sullivan, I want to ask you a number of questions because I am very process oriented. I am a dentist; I like process. Were you told to look through cases to pay them without a hearing? Judge Sullivan. No. Mr. Gosar. Were you told to set an egg timer so not to spend so much time with any one case? Judge Sullivan. Yes. Mr. Gosar. How much time were you supposed to spend on a typical case? Judge Sullivan. I received special training in January 2010 within a month of being taken off caseload. And just as an aside, Congresswoman Speier, the statistics you have about my particular caseload are slightly incorrect. I did not work on adjudication for most of the fiscal year 2010; I was off caseload as of February 2010. So what you have identified as a full year's caseload is actually less than a half year's caseload for me, and it does not count all the cases that were taken out of my calendar before final decision was reached. So it is a little bit, the reality of my work and other judges' work is different from the statistic you have. In terms of your question, Congressman, I was given special training in January 2010, set up by the regional chief of the region in which I was working, and a special judge in his regional office provided training for me and two other judges in my office so that we could increase our goal, and I was told at that time that I should spend no more than 20 minutes reviewing all the medical evidence in the file on a regular case and no more than an hour reviewing any file, regardless of how much evidence was in that case, including cases that included over 4,000 pages of medical reports. Mr. Gosar. So were you told to put 50 exhibit pages on a single screen to quicken your review? Judge Sullivan. Yes. Mr. Gosar. Were you told that the only thing that mattered was whether you produced and met agency goals, correct? Judge Sullivan. Repeatedly. Mr. Gosar. Were you told that the careful review of applicants' files were not necessary? Judge Sullivan. Yes. Mr. Gosar. Were you told not to spend more than one hour reading any applicant's file? Judge Sullivan. Yes. Mr. Gosar. Were you told you could ignore primary care physicians' notes? Judge Sullivan. Yes. Mr. Gosar. Wow. You received the same direction in West Virginia and Oregon? Judge Sullivan. I did not receive that direction in Oregon because by that time I was off adjudication caseload, but I was also told, when I moved to Oregon, that I was not welcome and not valued as a member of the office because I was not making goal. Mr. Gosar. So were you told not to continue a case even if an attorney filed lots of new medical evidence at the last minute? Judge Sullivan. Yes, repeatedly. Mr. Gosar. Were you told to hold hearings without evidence? Judge Sullivan. Yes, repeatedly. Mr. Gosar. Were you threatened by senior management that if you didn't meet goals, that you would likely not be able to transfer to a preferred office? Judge Sullivan. That was one of many threats, yes. There is tremendous pressure on judges to avoid all meaningful adjudication in order to make the numbers. Mr. Gosar. Were you told by senior management that judges who failed to meet the quota were lazy? Judge Sullivan. Yes, all the time. Let me just say that that is a very, very common response by SSA management officials to any complaint that a judge who is trying to do meaningful work, that the judges are lazy, they don't care, they are not hardworking, they are not efficient, they are not productive, and so forth. There is this tremendous vision by Social Security management that the only thing that matters in the adjudication process is signing that final decision, and if you do not make those numbers, then all negative labeling begins to occur, and other things too. Mr. Gosar. So kind of going along this---- Ms. Speier. Mr. Chairman? Mr. Gosar. I do not yield. Ms. Speier. Mr. Chairman, I have a point of order. Mr. Gosar. When judges that met productivity goals would find it easier to schedule travel? Judge Sullivan. Yes. Mr. Gosar. This is to all the judges. Mr. Lankford. Can we hold on the time for just a moment? Excuse the gentleman there. What is the point of order? Ms. Speier. Mr. Chairman, isn't it true that if a case is in litigation, it should not be the topic of discussion at a committee hearing? Mr. Lankford. The conversation as a whole here doesn't imply that we are trying to gain additional evidence. These are things that are also all out there, and we not trying to litigate a case at this point, we are trying to deal with what are the realities for judges, what are the pressures that are there. So I think it was the line of questioning. We are not trying to gain anything for litigation. Ms. Speier. Well, but the questions that were being asked of the judge would suggest that it was on point for the issues that are before the court in litigation right now. So I would like to suggest that we be a little more introspective about raising questions and asking questions that would impact ongoing litigation, because that is not something that we should be engaged in doing. Mr. Lankford. No, I would agree that we should not try to impact any kind of litigation; we should try to get to the facts of what do within a typical work day with an ALJ and how they function, and is that an operation that is helping them get to the end goal of actually helping the disabled. I yield back to Dr. Gosar. Mr. Gosar. And I would agree this is about process, and we have a problem with process; and any time you want to have a fix, you need to understand the process. To all the judges, I would like to have your answers. Would you agree that the agency has actually curried ALJs to decide cases based on a flawed case file? Judge Swank? Judge Swank. Yes, sir. As I wrote in my articles, that is actually quite common in that, statistically, 93 percent of the cases came before me were incomplete. So to be able to make a determination on an incomplete file is very difficult. In all fairness, though, because you are having to wait on doctors and the records aren't instantaneously available, sometimes if a person saw the doctor a month ago, those records might not be available, and that is understandable. But many times, sir, it is the same exact evidence that was before the State disability determination service that denied it one time and two times, done by professionals using the exact same rules and regulations that the administrative law judge must follow. So it calls into question why are there so many reversals of those State agency determinations if there is the same exact evidence, unless the individual crossed a grid line, in case a new impairment has come, which would justify a later onset determination. But if it is the same exact evidence, granted, there would be some times when the State determination system was wrong, and I saw it. I did over 4,000 cases; I saw it. But for the most part they are right on, so, if there is no new evidence, how could you have a different determination unless they were wrong or something else has changed. Mr. Gosar. Mr. Chairman, I would like to have the other judges please respond. I think it is important to the hearing. Mr. Lankford. Quick response. Mr. Gosar. Judge Butler, would you agree with Judge Swank? Judge Butler. Yes, it is true. Part of the problem, as we have discussed before, I don't get complete information, and I have letters, responses from attorneys where they have told me that Judge Bice and different agency representatives have formed NOSSCR and other groups in meetings, conferences that they don't have to produce evidence. That leaves me in a difficult position. A lot of the evidence, for instance, will deal with worker compensation records, and they don't want to produce them. Personal injury type cases, they don't want to produce them for various reasons. But when you talk about using a subpoena to subpoena records, we can't enforce our subpoenas. And if you are doing with anybody who has an attorney or has some idea how this program works, they totally ignore you. So you don't have any avenue to close this gap. If you don't put an obligation on attorneys to participate in this system openly and honestly, and not conceal evidence, you are in a very difficult situation, and that is why, one of the reasons, you have had so many people possibly put on disability that shouldn't be there. Mr. Gosar. Judge Sullivan? Judge Sullivan. The answer to the question in terms of the medical record file is I was encouraged and pressured to decide cases without medical evidence in the file. I would also amend my answer to your earlier question, Congressman. No one ever suggested to me or told me to pay a specific case, but I was strongly encouraged, in my recommended 20 minutes of review, to look for evidence in which I could pay the case and then stop reading it. I was also encouraged by management to simply pay cases. Mr. Gosar. Judge Snook? Judge Snook. The answer is yes, Congressman. And with regard to incomplete files, we also get cases where the DDS has insufficient evidence. They will say the claimant didn't attend the consultive examination; incomplete evidence, pass it on to the ALJ. Now, I have to develop the entire record, and I don't understand why they send it to the ALJ. There is a regulation that says if the claimant doesn't cooperate, you can dismiss the claim. These type cases should never come to the ALJs; the DDS should handle it themselves, and if they don't attend the CE, dismiss the case. My colleague Judge Butler, it might be good to ask Commissioner Sklar how many subpoenas have been enforced. None of my subpoenas over 16 years have ever been enforced. Mr. Gosar. I thank the chairman's indulgence because I think it was very valuable to the testimony. Mr. Lankford. Mr. Woodall. Mr. Woodall. Thank you, Mr. Chairman. You know, one of the great responsibilities and, really, privileges that we have is going to bat for folks who are going through this process too. I think about your work. Mr. Sutton, I confess that at most town hall meetings I tell folks don't call an attorney, call your congressman, because you have already paid our salary ahead of time. So trying to take some business away from you, but knowing that business is good already, and I consider that a failure that business is good. Business shouldn't have to be good. But I am thinking about Judge Swank's concern that he couldn't get a full picture of the case. Why can't we ask our attorneys operating before these ALJs to give us both sides of the story? You can advocate for your client without concealing the truth from the judge. Tell me about that. Mr. Sutton. Absolutely, Congressman. I appreciate the question and a chance to respond. The statute that Congress wrote requires that all material facts be disclosed and that no material fact be withheld from the tribunal. Judge Swank talked about seeing cases where his partial photographic memory told him that a page was missing or he averted to altered records. I will tell you that any attorney who would do such a thing should not only be barred from practicing before the Social Security Administration, they should be disbarred in their home State. In my State of Pennsylvania, that attorney would be disbarred for such activity. Mr. Woodall. Well, I want to focus on those things on which we agree, because so often here we end up focusing on things we disagree about. But I think you are absolutely right. Judge Swank would agree those folks ought to be disbarred; you would agree those folks ought to be disbarred. Mr. Sklar, why is it that we can't report those, why your judges can't report those things directly to the State bars? Is that something we have done wrong in Congress? Is that a Social Security regulation? What is the reason that we can't move directly from a judge's learned opinion directly to a State bar? Mr. Sklar. Okay, to sort this out, to be clear, if the allegation is some type of criminal allegation, it is going to go right to the inspector general; if it is a State bar type allegation, those typically will be routed through our general counsel's office. They are very experienced; they look at the full breadth of referrals. Mr. Woodall. But is that a Social Security Administration decision to route them that way or have we directed you to route them that way? Mr. Sklar. No, that is our decision, and part of the reason is if everybody is sending cases, claimant information and other potentially privacy unprotected material over to the State bar, it is really dangerous both to claimants and the judges; and in many ways it is for the protection of individual privacy of claimants and to make sure that judges don't run afoul of the Privacy Act. I mean, we have had situations where people just turn things over to the State bar and they give them the whole case file, and they can't do that; that is a Privacy Act violation, with potential criminal and civil violations. Mr. Woodall. As a good conservative from the south, Judge Swank, I am always concerned when someone tries to protect me from myself, even if they do in the best possible sense of the word. I think that Commissioner Sklar is absolutely right, I think he is protecting some judges from themselves. Do we need to protect you from yourself? Judge Swank. Well, if I may, Congressman, I worked directly on this topic in my article before with the American University published the Social Security Administration's condoning of and colluding with attorney misconduct, and with all due respect to Deputy Commissioner Sklar, we are not talking about reporting information on claimants to the State bar. And I wrote about this very explicitly in my article. We are talking about the conduct of an attorney; and that is not protected by the Privacy Act. I can merely report to the State bar saying this is what has occurred in a case before me, and I meet my requirement. But I can't do that because of their regulation. Nor can I report it to the Office of General Counsel. Mr. Woodall. Commissioner Sklar, I tend to be sympathetic with Judge Swank. I have those same obligations to my State bar. Certainly, he would not be allowed to turn over things that implicate Privacy Act issues, but does have an obligation to report behavioral issues as they relate to attorneys that appear in his court. Does the Social Security Administration regulation intend to prevent attorneys, folks with bar obligations, like Judge Swank and myself, from fulfilling those obligations, or would you support a change in the regulation to allow us to fulfill those bar obligations? Mr. Sklar. I believe any administrative law judge that informed whatever appropriate authority that the disclosure is made through the General Counsel's Office would hardly be in jeopardy. I do think it is a complicated issue, because we have seen instances in the past where folks are not as thoughtful as you are representing, and in a perfect world it would probably be fine, but sometimes judges are frustrated and they decide I am just going to send the whole file over, and then the disaster starts and nobody is happy. Mr. Woodall. I know my time has expired, Mr. Chairman, but I hope in the next round I will be able to pursue why it is we have judges on the bench who aren't thoughtful enough to at least make an accurate reporting to the bar. That may be a secondary issue that we need to confront. I thank the chairman. Mr. Lankford. Thank you. Dr. DesJarlais? Mr. DesJarlais. Thank you, Mr. Chairman. And thank you all for being here today. Let's shift gears just a little bit and talk about the priority of continuing disability reviews. The law requires that the SAA perform regular continuing disability reviews for people who are expected to be able to return to work. Coming to Congress from a 20-year primary care practice, I have seen a lot of various disability claims cases and what-not from the physician standpoint, and I will tell you I know that every year I will have a patient who comes in who is a quadriplegic in a wheelchair that we have to go through the paperwork and renew the application for his disability or her disability. To me it is painfully obvious that they are never going to work again, but we can't seem to expedite that process. But then there are other cases, too, where I don't see the same people who went in for their disability and they seem to get lost in the system. Judge Swank, you were very critical of the Social Security Administration for allowing a huge backlog of medical continuing disability reviews to compile. Can you explain why CDRs are so important? Judge Swank. Yes, sir, and thank you for the question. First and foremost, as I wrote in my Hofstra University Law Review article, pursuant to the Social Security Administration's own statistics from the inspector general reports, for every $1 spent on a continuing disability review, it saves $15. That is a great return. I worked specifically at childhood continuing disability reviews and, for instance, in 2002, 163,768 childhood disability reviews were done by the agency. In 2007 the agency did 4,440. The inspector general of the agency has pointed out that the Administration is not doing what is required by law; not by choice, it is required by law. And the agency and Deputy Commissioner Sklar had referenced this earlier. In all due respect to him, he refers to it as being a budgetary issue, and I point out in my Law Review article that since 2009 Congress has given additional money merely for continuing disability reviews, $1.4 billion worth through the date of my article; and yet the agency was doing 87 percent fewer with more money than they did in 2003 when they had no additional funding. Mr. DesJarlais. I think that would be a good point to stop and ask Commissioner Sklar does the Social Security Administration decide how much of its resources to allocate to medical CDRs? Mr. Sklar. I guess the answer to that really is it depends. At times there has been dedicated funding exclusively for CDRs, and that has been incredibly helpful. In fact, we got caught up, so I would say maybe about 10 years ago there was dedicated funding. We are very happy to do the CDRs, in fact, we want to do the CDRs, and we had the money and those were completed. More recently, from fiscal year 2007 through fiscal year 2012 we have increased the number of CDRs we have done, but our budget has been cut severely. We lost over 10,000 employees and it is becoming exceedingly difficult to stay on pace with all the continuing disability reviews in light of the lack of adequate and sustained funding. Mr. DesJarlais. So he is saying that there is a $15 return for each $1 spent. Do you disagree with that? Mr. Sklar. I wouldn't want to get into a jousting match with the IG or the actuary, but I have heard about nine to one for each $1. Mr. DesJarlais. Sounds like a money maker. Mr. Sklar. Yes. Yes, indeed, and we agree, and we think it is really, really important for Congress to fund these important activities. I will say in our fiscal year 2014 budget proposal, there is a proposal to increase our funding by $1.5 billion. Mr. DesJarlais. But you can divert resources now to this, so why don't you divert some of those resources? He just said there was extra resources allocated. Mr. Sklar. Sir, when our Acting Commissioner Colvin testified before our appropriators, she brought some pictures with her, and they were pictures of folks in Florida, elderly folks standing outside a field office in the heat with a line like opening day for a Harry Potter movie. It was unbelievable, two blocks long. We have just unbelievable lines outside our field office now. Mr. DesJarlais. Okay, so it is more important to get more people on than to get people back to work. I just want to tell you, as a physician, I have seen a lot of people who are handicapped and become dependent on this system. The chairman was saying that only one percent leave Social Security disability. I have a seen a lot of young people who have an injury and there is no doubt they can get back in the workforce, but the longer they are on this disability insurance, they become dependent on the system; and I have seen it ruin marriages, lives, and careers, and I think it is very important that we do that. Mr. Sutton, you seemed very frustrated as Judge Sullivan was talking about the pressures that are put on judges. Do you think her testimony is inaccurate? Mr. Sutton. I wouldn't say that any judge's testimony is inaccurate, but I would say this: I note, not just with Judge Sullivan, but all the judges here, the answer to the direct question from any of the members have you ever been told to pay a case, the answer is no. I would say that the actual data, the statistics about allowance rates at every level, at the State agencies, the initial decisions and re-considerations, and the ALJ considerations, over the last five years has shown a significant decline in the number of allowances. Mr. DesJarlais. Well, what she is saying has got to be very alarming to you. It is to me. If that is happening at all, that is wrong, isn't it? Mr. Sutton. Dr. DesJarlais, I do not know all the ins and outs of this. I do know that the union, of which I guess all these ALJs are a member, has filed a lawsuit making allegations along these lines, and I assume that the court is going to resolve those allegations. Mr. DesJarlais. I guess you have probably gone to the court and at sat with some of these judges and watched their typical day to get this opinion you have. Have you spent quite a bit of time in the courtroom watching them? Mr. Sutton. Not these particular ALJs, but I am before ALJs many days of the week, all the time. I work in their courtrooms. They do an excellent job, by and large, of adjudicating these cases. They do make some mistakes on either side of the line, but they are doing yeoman's service. And as Commissioner Sklar has pointed out, the backlog has come down very significantly in the last five years with the additional resources they have been able to throw at the problem. People really need decisions on these cases and they need the right decisions. Mr. DesJarlais. And I think we have established that your drive is to get more people on the disability than to possibly get them off and get them back to work. Mr. Sutton. I would tell you that, for myself and for our organization, doing CDRs, continuing disability reviews, is appropriate and should be done. Some people do improve. In fact, some people do go back to work. Other people are disabled so significantly that they pass away from their conditions. Mr. DesJarlais. Right. And I have seen them both, but I want you to agree with me that it is essential to do these CDRs, because we are handicapping these folks by not doing them. And I yield back. Thanks for the extra time. Mr. Lankford. Thank you. Let's start a second round of questions in just conversation as we try to walk through some of these things as well. Mr. Sklar, let's talk a little bit about the grid. It has come up a couple times. I am sure there is an ongoing process to be able to evaluate the grid. My understanding is that the grid has not had a major redo since the 1970s. What is the process right now to be able to evaluate some of the issues on how do we evaluate disability, and is that current; deal with age, occupations? There have been a few changes that have happened since the 1970s. Mr. Sklar. That is a fair assessment. We have partnered with the Department of Labor and the Bureau of Labor Statistics to try to get the grid updated. They are collecting occupational information. They are doing some testing. But it will be a little bit longer before they are done. It is a very complicated task. As you well understand, anything we do is subject to scrutiny both from Congress and from the legal community. Mr. Lankford. I have noticed, yes. Mr. Sklar. And the commissioner is probably the most sued person in America, sustaining 10,000 lawsuits annually. So we know as soon as we do it, we will be challenged, so we want to make sure that we do it right and we do it with a good research base. Mr. Lankford. Sure. But there are obvious changes in occupational abilities there that have happened since the 1970s, so it is well past updates. Just a couple questions as I run through it. It hasn't really changed dealing with age. Obviously, life expectancy is longer now than it was in the 1970s. Working age is typically longer now. The type of occupations are more sedentary occupations than they were in the 1970s, a lot more computer driven with this wonderful thing called the internet that has come onboard. There is a lot of economic activity. It also has a listing for English proficiency as one of the issues, whether you have proficiency in English, you get a different score with a disability. Is that true in Puerto Rico as well, by the way? Because I know we have benefits all over. Is that true whether you are in the 50 or in one of the territories as well? Mr. Sklar. There are two parts to your question. Can I just take each piece, if I may? Mr. Lankford. Sure. Mr. Sklar. The first part was about the age grids and perhaps the need to bump up the age categories. Mr. Lankford. Just to evaluate them. Mr. Sklar. Sure. Sure. And I would just offer that was attempted back in 2005. There was not a research base under it and it was highly controversial and was pulled back at the time. On the second issue, nobody gets paid because they can't speak English. That is correct, it is one of the factors; age, education, work experience. Overall, in the grand scheme of things, it is a very small number of cases, probably less than 5 percent, maybe even less than 2 percent. We could try to pull the figures for you. But, yes, that is a factor that in some cases does tilt somebody's way as a claimant. Mr. Lankford. Is that true of Puerto Rico as well? Mr. Sklar. Yes. Mr. Lankford. In Puerto Rico there are a lot of folks who don't speak English, a lot there. So obviously employment is fairly easy in Puerto Rico if you are speaking a non-English language. Is that something that can be evaluated and changed fairly soon or is this a broader piece, everything has to be done all at once? Mr. Sklar. It really all hangs together. There is a second work stream. We are talking to a different group, research group, the Disability Research Consortium, and we asked them to look at age, education, work experience, and so on. Mr. Lankford. Okay, so give me a guess on time. Are we talking about six years or are we talking about six months? Mr. Sklar. Somewhere in between, I would say. [Laughter.] Mr. Lankford. Five and a half? Mr. Sklar. Probably closer to the six months, but maybe about two, three years for the full grid. It is a massive project. It is a huge amount of work. Mr. Lankford. Sure, I understand that. How can we help in that journey for that? Because that is obviously important. That has hung out there through multiple administrations. That is something that needs to be done over time. How can we help in the process? Is there a way that we can engage to get draft documents of that and to be able to evaluate time lines? Is there a time line that has been set with metrics to say we are going to have this part of it done by this, this part of it done by this, we are going to put it out to comment by this point? Has that time line been established? Mr. Sklar. There is a very fair offer. I should add that our oversight committees have been incredibly helpful in joining us with the Department of Labor. For a while we were going down different paths, and now those paths have come together and I think we are making much faster progress, and I would hope it is closer to the six months than six years. Mr. Lankford. Is there a way that we can request to get the time line of those and the metrics of what are the standards, what are you trying to accomplish by when so at least we will have a good, accurate time line? Mr. Sklar. Again, my day job is running the hearings and appeals operation, and the policy component is a little closer to the details as to where they are on time frames. But I generally have awareness because it is very important to the job we do and I know there is a lot of frustration about the fact that Internet jobs and anything modern is not included in the DOT. Mr. Lankford. And we will follow up with the Administration to be able to make that request formally of them by letter so we can get the time lines and the metrics and what you are trying to achieve by that. Here is part of my struggle on it, and everyone has their own biases and issues as they approach this: I have a very close family member that lost her leg to cancer in the early 1980s. She retired a month ago, after working another 30 years. She is blind in one eye. She lost her right leg and has been confined to a wheelchair. But you won't find anyone that works harder than her. It is not possible to find anyone that works harder than her. By every part of the grid she would have qualified. The challenge that she has is she has a passion to actually be productive and to set the tone. I want people that are disabled and can't work to be able to get disability. We have a safety net for a reason, and we have intense compassion for people, and that is what sets us apart from many nations around the world. But if the criteria is they can work in any part of the economy that we can transition into it, I don't want to lose what that person brings to the economy and to their family and to the next generation. My family member's example will never be forgotten by her children. Never. Will never be forgotten by me. And we will pass that on year after year, generation after generation, and tell our children, because my children have watched her. There is no doubt that will be a part of our family conversation for a long time. I want that gift to be given to other individuals, but I also want to make sure we, as a Nation, still stand by people and have the safety net. Reforming the grid becomes very important to me because I want that safety net to be there. But I also don't want people to be automatic, to be able to go through the process. And you have articulated extremely well that only a third of the individuals that come through the State process are actually approved, and you said just under half that go through the ALJs are. We understand it is not automatic, which is another part of our conversation that we can have if possible we have a moment as well, and that is to try to figure out how do we keep so many people from getting in the pipeline that it clogs up the pipeline. If it looks like the pipeline is wide open and go ahead and give it a shot, you may have a good shot to get this, go ahead and try. We are discouraging people from working because immediately their counsel will say, well, the first thing you need to do if you are going to get disability insurance is don't work now, stop working and wait. Don't work. And then once you get to that spot, then we will go before the judge and tell them you are already not working. If you stand before the judge and say I am working already, that is going to be a whole different issue. So we have some issues. Mr. Sklar, you wanted to be able to mention something as well? Then I need to move on. Mr. Sklar. First, thanks so much for sharing that story, and it is a story we hear every day about folks with disabilities really wanting to work and not wanting to be on the disability rolls. Second point that is really important, we really want to get to a place where everybody has an opportunity, and what we don't want to do is clog up the rolls with folks who shouldn't be going through the system. And one area where this committee could be helpful, we do have States actually giving out finder's fees to bring people to us. Mr. Lankford. That is a problem. Mr. Sklar. In other words, if you can't cost shift from State government, sometimes there are finder's fees for bringing---- Mr. Lankford. Do you have recommendations on how we fix that? Mr. Sklar. I do not, but I think your point of a lot of people showing up to apply for benefits, a lot of people later abandon those claims. Mr. Lankford. Right. But it just clogs up the system as we go. Mr. Sklar. But we share the same goal that you do, that only the right people get on and that we do get a quality decision as well. Mr. Lankford. Thank you. Ms. Speier. Ms. Speier. Thank you, Mr. Chairman. I would like to have each of you express whether you support a more robust continuing disability review. And just very briefly, if you would. Judge Swank. Yes. I will elaborate a little bit. Ms. Speier. I don't have time for that, so yes will be great. Judge Butler. Yes. Ms. Speier. Mr. Sklar? Mr. Sklar. I am sorry. I apologize, I thought that was a question for the judges. Ms. Speier. No, I am asking you as well. Mr. Sklar. I am sorry. Could you please re-ask the question? Ms. Speier. Sure. So do you believe that we should have a more robust continuing disability review? Mr. Sklar. Absolutely. Judge Sullivan. Congresswoman Speier, I am so sorry, I am not quite sure what that question encompasses. Are you talking about just the adjudication review or the program as a whole? Ms. Speier. I am talking about whether, after someone has been on disability for a period of time. Judge Sullivan. Okay, after the decision to grant benefits. Ms. Speier. Whether or not there should be a review to see if they still qualify. Judge Sullivan. I would say, wholeheartedly, yes. Ms. Speier. Okay. Judge Snook? Judge Snook. Absolutely. Ms. Speier. Mr. Sutton? Mr. Sutton. Yes. With funding, of course. Ms. Speier. Okay, so, Mr. Sklar, let's talk about that a little bit more. How would we make it more robust in terms of making it effective? Because, as I understand it now, it is fairly catch-as-catch-can or kind of informal in nature. Mr. Sklar. Well, the first part really is the funding part. We have been funded about a billion below the President's budget for the last few years, so it really has to start with funding. We do do these reviews; we like to do them timely, and we do need sustained funding to make it happen. In the past, when we have had dedicated funding, we have done the reviews. Ms. Speier. So what would dedicated funding amount to? Mr. Sklar. I believe, again, the Administration is asking for $1.5 billion next year to get us caught up. I think that would buy about a million CDRs and get us back in the game and get us pretty close to up on track, and I think everybody certainly at Social Security would be very happy to get caught up. Ms. Speier. Is that one year funding, is that what you are referring to? Mr. Sklar. I know it is in the fiscal year 2014 budget. I believe it is $1.5 billion. Ms. Speier. $1.5 billion would give you sufficient funding to do the kinds of reviews we are talking about, or is that more inclusive of everything that you want to do? Mr. Sklar. No, no, that is for CDRs, to get us caught up to where we need to be. Ms. Speier. Okay, so that would be just for CDRs, $1.5. Now, in your experience historically, when CDRs are done, what percentage of those who have been receiving disability no longer quality? Mr. Sklar. It is actually quite small. Once you actually get through the entire process, I believe it is somewhere between 4 and 7 percent. They do have multiple levels of appeal and in the end it is a fairly small number, but it is still absolutely cost-effective. And, as mentioned earlier, the return could be somewhere in the neighborhood of $9 to $1 or so. Ms. Speier. Okay, so it would be prudent to do it. Mr. Sklar. It is certainly cost-effective, prudent, and it goes to good government and integrity of the process. Ms. Speier. All right, great. So that is something, certainly, we can get our arms around and in a bipartisan fashion probably support. All right. Secondly, final date for evidence. I mean, it makes sense to me, but let's hear from each of you very quickly. Final date for evidence. Judge Swank. I would not make a decision, ma'am, until I did get all the evidence, so if I didn't have all the evidence at the time of the hearing, I was going to hold the record open until I did get it, whether it was from the attorney or from the doctor. It is certainly more cost-effective to have it before the hearing, all the evidence. Ms. Speier. Judge Butler? Judge Butler. At least five days. I think NOSSCR wanted 75 days. Excuse me, I am sorry. At least five days, maybe two weeks. There is no reason you can't put that information together and get it to the judge so the judge has an opportunity to look at it before they go and have a hearing, and that is important. Ms. Speier. And you can always ask for a continuance. Judge Butler. Well, that is a problem. It costs a lot of money to continue these cases. Ms. Speier. I see. Judge Butler. And there is no reason, generally, for an attorney that is doing their job, and they are getting paid a lot of money to do this job, to get that information to the judge and in the record so we can make a decision. Ms. Speier. All right. Mr. Sklar? Mr. Sklar. I am really not in a position to offer a formal agency position, but I will say we are running a pilot in our Boston region where we do have soft closure of the record five days before the hearing, and it appears to be working reasonably well. We have asked the Administrative Conference to study that and report back sometime over the summer, and they will do that. Ms. Speier. All right. Judge Sullivan? Judge Sullivan. Thank you. I would say two to four weeks before the hearing. And I will adopt Deputy Commissioner Sklar's language a little bit, to have a hard closure, which means that that is a final closure of the record. And I would simply also say that records should be summarized by the proponent, the person who is moving, so that the records are identified as why they are relevant and probative to the issue before the court, as opposed to, for example, just dumping into the electronic file 2,000 to 4,000 pages of material and saying, here you go, good luck, which is what is happening now. Ms. Speier. Judge Snook? Judge Snook. I would say 10 business days, Congresswoman. The Disability Service Improvement Act for formal rulemaking came up with the five business day rule, but most of the medical experts in Miami testify by telephone. So it is not just a question of the judge reviewing the record, we have to get the record to the medical experts and the vocational experts. Most courts require more than 10 days before, but my recommendation is 10 business days. Ms. Speier. Mr. Sutton? Mr. Sutton. I don't agree with Judge Swank on a lot of things, but I agree with him on this. The record should close when the record is complete. That is how we do business now. We endeavor to get all the records well in advance of the hearing, but even with lots of resources in terms of my staff's time and lots of money paid in cost to medical records providers, there are often cases where they simply are not provided on time. I will also tell you that medical providers decide when my client is going to be sent for an MRI, and if that happens to be 10 days or two weeks before the hearing has been scheduled, we are just not going to have that report by the day of the hearing. So there has to be some understanding that the full record, if meaningful adjudication is the standard, to use Judge Sullivan's term, we have to have a complete record. Ms. Speier. Well, Mr. Sutton, this is someone who has been through the process. This is not like an initial case. This is a case that has been reviewed twice before within the Social Security system, has now come up to the ALJ. There has been a long period of time to cull together the information necessary. Mr. Sutton. Congresswoman, if I may, remember that when the case is coming up to the ALJ, on average, it is 380 days since the last determination was made by a State agency. That is over a year. Things change in people's medical portfolio, in their medical file, and often these are people with multiple conditions, physical and/or mental. They may be seeing five, six, seven different providers, specialists; they may be being sent for tests all over the place. We have filed where we have 12 and 15 different providers to try to get updated records on. It is not an easy process. We want to provide all the relevant and probative evidence of disability as soon as possible. Ms. Speier. All right, thank you. My time has expired. Mr. Sklar, one last question. Attorney misconduct. Makes sense that you should be able to report attorney misconduct. Can you comment on that? Mr. Sklar. So we do have procedures for handling attorney misconduct. We are looking at those at this time as well. I know there is some degree of frustration about evidence not getting into the record quick enough or right before a hearing. I suspect if you do travel around the Country talking to judges, you would find that there is tremendous frustration about evidence coming in late. I actually met with the NOSSCR group, 1,000 representatives from across the Country, and basically begged and pleaded and said we need the evidence in, we need the evidence before the hearing, and please don't drop 600 pages on us the day before the hearing, it is just not fair. So we have a little bit of work to do. I am hoping we can do it voluntarily. I am hoping Mr. Sutton and others can help us get to the right answer; otherwise, we do have a code of conduct and certainly that is something we think about. Mr. Lankford. I am going to go to Mr. Woodall in a second, but I want to make a quick follow-up question. Can you define your term soft closure that you used before, that you are experimenting with? Because I am still struggling with the responsibility to get your paperwork in. Mr. Sklar. Right. In classic administrative law practice you have hard closure of the record; there is a date, boom, that is it, you can't submit any more evidence. But the closure provision up in the Boston region that we are working with right now gives the judges in Boston a little bit more discretion to allow in critical pieces of evidence that they think should come in, so it is not the classic administrative law closure, it is a little bit softer than that; and it seems to be working out pretty well. Mr. Lankford. But the judge is making the decision at that point whether this is relevant and needs to be added in, rather than just it is an automatic, it gets dumped in, is that what you are saying? Mr. Sklar. There is actually some legal language. And if anybody wants to jump in and rescue me on this, what the exact provision says, you are welcome to. Mr. Lankford. Well, the concern for me is that in the past SSA has allowed this to come in, that there is not a rule that has been set. Obviously, you see what is going on as well. You are beginning to move on it, that is good. But it is disconcerting to me to say that decisions have been made when hundreds of pages of documents have landed the day of, or even after, the hearing was done. Mr. Sklar. Typically, those cases wind up getting postponed and everybody is frustrated. The claimant is frustrated with us, they think we are the responsible party. Often the representative doesn't even self-identify as the person who dropped the records at the last minute and the records were from two years ago. It is a problem we need to work on together and I have really tried to join forces with the attorney groups to fix this problem, and I am hopeful we can get there. Mr. Lankford. Thank you. Mr. Woodall. Mr. Woodall. Thank you, Mr. Chairman. I am sympathetic to what Mr. Sutton said about cases coming up a year later, new medical records have appeared. You absolutely want a thorough and complete record. Judge Butler, let me ask you, because I can feel your frustration. You care about the tax dollars who are paying in, you care about the needy folks who would be getting these dollars. As Senator Coburn laid out, we are really at risk in less than a year and a half from now. What is the challenge with scheduling that we can't require the record to be complete before we schedule the hearing? Is there something special about the process that we have to schedule those hearings so far out in advance? Why can't we ask Mr. Sutton's folks to have the record complete before you all schedule the hearing? Judge Butler. The hearings are scheduled months and months in advance; the notices go out. They are entitled to a 20-day notice according to the regulation in most parts of the Country. In prototype areas they have a 75-day notice that they have allowed, and NOSSCR likes the additional time. But, in my opinion, in most situations, there are going to be unusual ones where somebody is sent for an MRI or something, and there is no problem dealing with that. Mr. Woodall. Well, I guess I want to demand even more accountability from my folks who are getting paid a hefty sum of money to represent me and my constituents. What is the reason we can't refuse to schedule a hearing until that record is complete? Now, I try to respond to constituents who ask me a question. Now, sometimes I get 20 days behind, but the same number of inquiries come in. If I could respond to them all on day one, if I respond to them all 20 days later, it is the same number of inquiries coming across my desk. What is the metric that we are trying to achieve by not going---- Judge Butler. Let me make sure I understand your question. You are asking me, as a judge, could I refuse to schedule that case until I feel like that record is complete and the case is ready to hear? Well, in my opinion, yes, I could do it, but the practical matter is, if I did that, I would have some real difficulties with this agency, who focuses on moving the cases, moving the cases, and to use the term pay down the backlog, I think that is what has driven a lot of these. It has gotten the backlog down, but you have paid a tremendous number of people, in my opinion, who are not disabled. The APA I think gives a judge that discretion, but, as a practical matter, if I did that, I would have real problems. Mr. Woodall. Absolutely. We are talking about two different things. You are talking about using your discretion on which folks are going to bring pressure to bear on you. I am not. I am talking about changing the way we do business to tell folks that we want you to get your money as fast as you can, and we want you to get your money, if you deserve it, in the most timely fashion possible; and the way we are going to improve the system is by saying we are not going to bog down the system with attorneys who are doing what Mr. Sutton and I would both agree they should not be doing, serving their clients poorly. We are going to schedule those cases for those attorneys and those clients who are doing it right first, and not delay those with the process. Let me ask you, Mr. Sklar, I remember Senator Coburn testified that his research showed about a 25 percent error rate. He quoted a Social Security report quoting about a 21, 22 percent rate. Is that granting benefits when they shouldn't be granted, or does that include both benefits denied that should have been and benefits granted that should have been denied? Mr. Sklar. I see the challenge. It is very difficult to articulate that report precisely, so let me try. So you are correct, the statistic was 22 percent ``error rate'' in fiscal year 2011, and that was cited PSI minority report basically citing Social Security's own internal report on pay cases. Now, let's take a minute and talk about what is in error, per se. A lot of the items classified as an error were not necessarily outcome-based, they were really about technical issues. Let me give you a good example. Let's say a judge finds somebody disabled as of October 2011 and it was really November 2012, the onset date. Not that they weren't disabled; maybe they got the onset date wrong, something like that. So some errors fall into that category. Others are a reviewing body basically looking at the case and saying, you know, the judge probably should have gotten a vocational expert here, they shouldn't have paid this case without a vocational expert. The judge will go get a vocational expert and still wind up paying the case. Mr. Woodall. And did they then cite a number for cases that were paid that shouldn't have been paid, or the entire report was on these---- Mr. Sklar. I think we are pretty close to that now. Obviously, we recognize Senator Coburn's enduring interest in that report and the ideas expressed therein, so we have been tracking those cases to see what happened, and, again, don't hold me to this number, but I would say probably the true wrong case rate would be less than 10 percent. Mr. Woodall. And thinking about Ms. Speier's question about going back and doing that aggressive re-certification, if our re-certification reviews are only denying 4 to 7 percent of cases, yet we have an 8 or 9 percent error rate in granting cases, I wonder why those numbers wouldn't come into sync. I know my time has expired, Mr. Chairman, but I just wanted to ask one more question of Mr. Sklar. I don't know if you remember a November 2011 article on The Wall Street Journal cover talking about the Baltimore office and a great shakeup among physicians there working for Social Security. Do you recall that article? Mr. Sklar. I think I do, yes. Mr. Woodall. Or that episode even less than the article. In that article they quoted doctors as saying they had been pressured, doctors who were being paid by Social Security, but they were being pressured to change their medical opinion in order to meet some of the Social Security Administration's goals. Do you recall that statement and can you speak to that? Mr. Sklar. The best I recall, representative, is that there was a shift from an hourly wage to a paper case model, and I believe the State agencies largely follow a paper case model, and now the Federal unit moved to a paper case model and there was quite a bit of unhappiness there. Mr. Woodall. Absolutely. Though, in expressing that unhappiness, some of those physicians said they were pressured, and I will quote it: ``Pressured by a supervisor to change his medical opinion and award benefits to someone he didn't believe had disabilities that would prevent the person from working.'' Two other doctors said they were pressured to award benefits in cases where they were reluctant. Those were front-page accusations on The Wall Street Journal. Do you know if SSA investigated those doctors' statements that they had been pressured by Social Security officials? Mr. Sklar. Actually, I would be very surprised if that was the case. I don't have first-hand knowledge. Mr. Woodall. Surprised if it was the case that it was investigated or surprised if it was the case that it happened? Mr. Sklar. Surprised if it actually happened. Mr. Woodall. Well, do you know if it was investigated? Because it is a serious accusation. Mr. Sklar. Again, that is certainly outside of the purview of my operational area, so I don't know the answer to that question. Mr. Woodall. Could you direct me who to ask or ask that question on my behalf and get an answer for the record? Mr. Sklar. For the record, we will certainly get you the appropriate person to send that information to. And I will obviously go back and talk to the IG and try to find out whether they have ever gotten a formal referral. Mr. Woodall. I appreciate that. Thank you, Mr. Chairman, for your indulgence. Mr. Lankford. Mr. Horsford. Mr. Horsford. Thank you, Mr. Chairman. You know, I have to say I am rather frustrated by the prior speaker and the gentleman from Tennessee. Somehow the discussion went from how do we make this work better to how do we prevent people who are entitled to benefits from getting them. And as the chairman shared his experience with a family member, let me share mine. My grandmother, who had a stroke in her fifties and came out of a coma and was paralyzed on the left side of her body relied on Social Security disability benefits to live in a nursing home for 27 years of her life, until she passed away. While we want to encourage those who can return to work to return, there are some people who cannot, and that is what Social Security disability benefits are about. So if we are here to create some adversarial role between administrative law judges and the beneficiaries, then I think we have to question what the purpose of this is to begin with. I would like to point to the facts. I would like to request that a chart be displayed which shows, in fact, in aggregate, ALJs have approved fewer disability claims since they were expected to decide 500 to 700 cases a year. Sometimes the judges talked about feeling pressure to award benefits to claimants that are not actually injured. But the facts, however, show a different picture. Judge Butler, I am sure you would concede the cases of poorly decided disability eligibility determinations do exist, correct? Judge Butler. Yes, they do, a lot of them. Mr. Horsford. Do you believe that it is a widespread practice among administrative law judges to intentionally engage in professional malfeasance and fraud by awarding disability benefits to people who they don't believe are in fact disabled, yes or no? Judge Butler. No. Mr. Horsford. That would be a violation of the law, subjecting them to termination and disbarment, wouldn't it? Judge Butler. Yes, it would. Mr. Horsford. So improper decisions do happen. But you do not believe that there is a systematic problem of illegal eligibility decisions. Judge Butler. Not with the judges. Mr. Horsford. So, Mr. Sklar, can judges avoid review of their decisions by rubber-stamping applications for disability benefits, since those cases are not appealed. Mr. Sklar. We recently started a statistically valid nationwide sample of favorable cases. We started that about two years ago. It is certainly not going to sweep up 100 percent of the cases, but it gives us enough information to determine where the problems might be; and we do feed that information back to the judges. Mr. Horsford. So there is a quality review process that is not dependent upon a claimant appealing a decision alone? Mr. Sklar. Correct, as of 2011. Mr. Horsford. So can we administer disability insurance better? Mr. Sklar. Absolutely. There are always opportunities to get better, and one of the areas where we have really spent a lot of time is on communication. And we do have new electronic tools, actually tools called How Am I Doing?, where the oversight body, the Appeals Council looks at the statistically valid sample, then they feed the data back right to the judges, and they can go right into this tool and see why their case was remanded; and they can actually get training right on the spot. We also do that for unfavorable cases that came up to the Appeals Council that the Appeals Council is remanding back. So we are trying a lot of different things. We are looking at a lot of data to try to find areas where there might be systemic problems or policy weaknesses. And the fact that we do have this electronic folder gives us lots of opportunities. So we are really trying to bore down into why cases are improperly decided. Mr. Horsford. And that is where I hope that we can focus. The ranking member, Ms. Speier, talked about three things that we could work on in a bipartisan manner to give administrative law judges and the system tools to better do your job. That is what I am here for. I am not here to come up with rationale to justify my position about how to keep someone in or out of a program. The program is here, people are entitled to it, and we need to make it work better. But the evidence before this committee refutes Chairman Issa's assertion of a widespread, systematic problem. The evidence we have received would not support a wholesale dismantling of the disability system and the laws that created it. I hope that we can focus on making it work, and not tearing it down. Thank you, Mr. Chairman. Mr. Lankford. Mr. Horsford, I would agree with you that this is designed, was written in by Congress and is to be carried out by the Social Security Administration to take care of people that qualify and that need it, and that is the right position for us to do as a Nation. But when we have any increase in anything, we have to be able to ask the questions the why and the what, and is it something we can fix and process, and things we have already spoken about, things like the grid not being updated since the 1970s. That is something that is already in process and we can try to figure out how we can evaluate that and what can we do; the CDRs that we have spoken about. We have to find out if we are not funding those correctly or if there is a different shift that needs to occur. Some of the studies that have been done to try to evaluate why so many people are included in--the Federal Reserve Bank of San Francisco put out a statement about Social Security disability insurance and tried to list--and I will add this to the record. I don't think I added your chart earlier to the record, your chart. Let me include that as well, unless there is any disagreement. There is not. Let's include that. Mr. Lankford. But to be able to include some of the facts of the case, and it is very difficult to get the numbers here because there are so many different studies and so many different reviews and so many years and qualifications. But this particular piece tried to evaluate is it because we have more people that are senior adults? Is it because we have more women in the workforce? They broke down all those different factors and by the end of it they said they can break down all those different factors, but they still have about 44 percent of the people they actually could identify why there was the increase. So those are just questions I think that are reasonable questions to ask and say how can we try to resolve this. The last thing I want is, three years from now, Social Security disability to struggle with insolvency and the people that need it have a reduced payment because we have people that don't qualify in the system. Let me just run through a couple questions. I think we need to close out, unless there are any additional final statements here as well from anyone else. I want to try to resolve just a couple other things. Mr. Sklar, a couple years ago it looked like there was some intent to go to high-producing judges and to send them additional cases, some of them up to over 2,000 cases in a year. You had mentioned in your earlier statement you are trying to limit that now, to set a cap of how many cases can actually head to them. Are you familiar with that process in the past and what happened with so many cases being directed towards judges that are putting out a tremendous number? Mr. Sklar. I guess my comment would be not on my watch. I started in this position in January 2010 and that certainly has not been my position. And I would add that first we dropped the cap down to 100 cases a month, and then this fiscal year it is 80 cases a month. And some of the judges are actually upset because they like to do large numbers of cases, and we had taken a hard look at the data and said, you know what, quality starts to suffer when you get up over about 1,000 cases. Mr. Lankford. Is that something you could share with us as well, just the metrics that you all used for that and how you evaluate as far as setting the number, the low number and the high numbers? Is that something that our committee could request? Mr. Sklar. Again, part of this is, let me just parse the question. Your first question on the high cap, absolutely. The second part I would have to consult with counsel because, again, this is an interesting panel where four of the people at the table are on one side of the litigation and the agency is on a different side. Mr. Lankford. All right. We will follow up with a letter. We will both get a chance to visit with counsel. But I would like to know just the metrics of how that decision is made. Obviously, you all put a lot of research and study into it, and it would be helpful to us to be able to see some of that and to be able to know the process. Mr. Sklar. And just to give you a really quick answer, too, previously, the study by ACUS that Dean Krent from Chicago-Kent Law School had done, they looked at this issue of when does quality begin to deteriorate, and basically their cut point was the top 1 percent of what we call super-producers, actually. Mr. Lankford. Yes. Two thousand cases in a year seems to be a super-producer on that one. Let me run through a couple things here. We mentioned before the treating physician rule and this issue about basically putting a higher priority on a treating physician or maybe other physicians or a family physician. Is that something that is under conversation right now, to be able to evaluate the effectiveness? Several folks have made comment on that. Outside research has made comment on that as well. Mr. Sklar. Right. There was an outside research stream going right now. The Administrative Conference also recently rendered a report on that issue, and we can be sure to get you a copy. Mr. Lankford. Agree or disagree with that report, for you? Mr. Sklar. Again, too early to take a position; we are analyzing it. We just received it. In fact, it just made it out of the full committee of ACUS. Mr. Lankford. Okay. Can we also get the timing on that, when that is going to move? We will follow up with a letter to request that as well, formally, but we will get the timing on when that is moving. We talked about updating the grid and already where we are on that. We talked about trying to get complete medical evidence as a big issue. You are already experimenting in Boston with doing a soft close on that and trying to work through that. Those are things we need to try to correct in the process. I mentioned earlier about the issue of social media and allowing judges to be able to pull up, for instance, a Facebook page of the person that is in front of them to evaluate are they working, do they have pictures. Is that under consideration at all? Mr. Sklar. Not at this time. It is really mostly about our computer network. We are really worried that somebody might introduce malware into our system. We are a fully electronic body, one of the largest recordkeeping system probably in the public or private sector. Mr. Lankford. So they don't have Internet access at all? Mr. Sklar. They do, but not to go onto social media sites. And we are very nervous about that. The other issue is it does compromise the role of the judge as the judge, and now they are judge and investigator; and we would prefer that those allegations go right to the IG. Mr. Lankford. Okay. Yes, the challenge still is another person to try to figure out how to advocate for this to be able to get full evidence. The full evidence is still the need. We can have an ongoing conversation about that, but some way to be able to garner full evidence and to make sure that we actually have that, getting complete files on it. The mention of subpoenas came up earlier. We didn't really have a conversation about that, but how many subpoenas are enforced by the U.S. attorney that come out? Is that a common practice, are there a lot of subpoenas that are coming out? When they do come out, are they enforced? Mr. Sklar. I will have to get back to you on the record for that, it is really outside my domain. I will say, though, that the U.S. attorney's offices are really, really busy, and enforcing subpoenas from us is not their highest priority. Mr. Lankford. I understand that. Mr. Sutton, you had a quick comment on that? Mr. Sutton. Yes, Congressman. The issue of enforcement doesn't even arise if the subpoena by the ALJ is complied with by the medical provider or whomever it may be, and many of these subpoenas are complied with. So it shouldn't just be focused on enforcement by the U.S. attorney's office. Mr. Lankford. If one is not complied with, though, we do have enforcement issues. Mr. Sutton. It is an issue for the U.S. attorney's office and a workload issue. And if they don't have the horses to take care of, enforcement is not going to happen. Mr. Lankford. And that is part of our issue on this and why I come back to Mr. Sklar on it as well, is the issue of trying to reduce people in the pipeline. That is the great unknown. Are there recommendations that you have? I mentioned that before, but if there are ideas that are out there that we can have an ongoing conversation, whether it is legislation we need to fix or whether it is regulations that are out there in the process. But we want people that qualify to get in the pipeline, but people that are clogging up the pipeline that don't quality, and it is clear and they are just trying to take the shot because it is free to take the shot, we need to find someway to make it clear from the beginning you don't have a shot on this and you are slowing down the whole process for everybody. So we can have an ongoing conversation. Then the issue of dealing with inappropriate conduct from counsel and how we are going to resolve that. We will follow up on that as well in the days ahead. Ms. Speier? Ms. Speier. Thank you, Mr. Chairman. A couple of peripheral questions. Who pays for the attorney? Judge Snook. The claimant does, Congresswoman. And if I may expand on that, one of the basic problems with the whole system is the attorneys get paid on past due benefits. They have no incentive--let me stop for a moment. Mr. Sutton and I work together on the ABA. I am not talking about attorneys. But for some of these large firms they sign that 1696; it is money in the bank if they win. They don't start working on the case until they get the notice of hearing. Why? That is profit. I mean, you are not going to update a case if it is going to take a year or two to get to the judge. So somebody should look at a different formula, because we do need attorneys to assist us. They do a tremendously good job. Ms. Speier. All right, let me just ask this. What percentage of the cases, when they get to the ALJ level, are represented by attorneys? Judge Snook. In Miami, I would say more than 80, close to 90 percent. Ms. Speier. Mr. Sklar, what is it countrywide? Mr. Sklar. Nationwide, if you include both attorneys and non-attorney representatives, probably somewhere between 80 to 90 percent. Ms. Speier. And non-attorneys are typically persons in a law firm providing that service, whether it is a paralegal, or it could be the next door neighbor? Mr. Sklar. They have to pass a test administered by SSA, but they are non-attorneys. Ms. Speier. All right. And who pays for the doctor consult? Mr. Sklar. Typically, if there is a consultative exam, the agency would pay for that. Ms. Speier. So I would like to learn more about that, and I think it would be advantageous to the committee; how much money we spend on physician consults, how they range, and how comprehensive they are. I think unless you have doctors that have been approved by the Social Security Administration, you could have wildly different kinds of reports being provided. You could have boilerplate reports. I mean, we just need to make sure we are getting our money's worth from those physician consults. Mr. Sklar. Just for the record, to be clear, we do have a fairly stable cadre of consultative examiners, and we do do oversight. There is a professional responsibility group that goes out, they will visit and they will make sure that they do it in a format that is useful to the agency. Ms. Speier. But you don't limit how much they can be paid? Mr. Sklar. Actually, they are not paid very much, to be honest. There is a set fee for a consultative exam. Ms. Speier. Oh, there is? Mr. Sklar. Yes. Ms. Speier. All right. Okay. Mr. Sklar. When we are paying. And, again, also recognize that representatives could go out and introduce additional medical evidence at their choice. They would then pay for that. Ms. Speier. All right, so Social Security pays for one consult. Mr. Sklar. Typically. Ms. Speier. And it is typically a set fee. Mr. Sklar. That is correct. Ms. Speier. All right. Okay, that takes care of that. All right, performance review of ALJs. Mr. Sklar. Can't happen. Not legal under the Administrative Procedures Act. Ms. Speier. Okay, that is a problem. Mr. Sklar. That is the law. Ms. Speier. That is the law that Congress has passed? Mr. Sklar. Yes, indeed. Ms. Speier. It wasn't done by regulation; it was done by Congress? So if you really have someone who is showing malfeasance, isn't doing their job, there is nothing you can do because they are appointed for life? Mr. Sklar. Okay, let me be a little bit more precise. In terms of an actual performance review where you sit down with somebody and say, hey, you are doing a great job or this is an area you need to work on, we can't do that. But, there are avenues for both potentially misconduct cases brought before the Merit Systems Protection Board, as well as performance cases for somebody. Under certain circumstances that could happen, but all these cases must be processed by an entity outside of SSA. We do not impose discipline directly on judges; we can't. It has to go to a second agency on the Merit Systems Protection Board. Ms. Speier. Does that operate like a judicial counsel, then? Mr. Sklar. It is a second set of administrative law judges, yes, presiding over those proceedings. Ms. Speier. So do you feel comfortable that if there are bad performers, that there is a process by which they can be terminated? Mr. Sklar. It does take a long time. Mr. Speier. So how many judges have fallen into that category? How many have been recommended to this board? Mr. Sklar. I can get the number for the record. I don't want to guess, but somewhere in the neighborhood of 25 to 35. Ms. Speier. A year? Mr. Sklar. I think in the last five years, since fiscal year 2007. Ms. Speier. What percentage of the ALJs are retired judges? Mr. Sklar. I would have to get that information for the record. I am sure we have it in our personnel files, but I don't know it offhand. Ms. Speier. Could you provide that for us? Mr. Sklar. Yes. Ms. Speier. So this one judge in Oklahoma, I guess, who was handling 2,000 cases a year and was approving 90 percent of them, or more, at any point in time was there any effort made to have him reviewed by this independent board? Mr. Sklar. I will just add for the record that he no longer works for the agency. Ms. Speier. No, I understand that. We want to make sure we have competent people providing services, and there should be a means by which, if someone isn't competent or isn't doing their job, that action can be taken. So I am just interested in making sure we have a robust system to do that. So are you suggesting we have one? Mr. Sklar. I am suggesting there is a system. Whether it is robust, speedy, and efficient is another matter. Ms. Speier. Judge Snook, you raised your hand. Judge Snook. Yes, Congressman. The reason why the APA says no performance appraisals for judges is not for the judges, it is to protect the American public. If this agency said, judge, get your production up, there is a history of the Government directing, before the APA was enacted, the result, and Congress, after it took many years to pass the Administrative Procedure Act, made a determination: no performance appraisals so the agency couldn't influence our decisions. Ms. Speier. Judge, are you a retired judge? Judge Snook. I was the chief trial judge of the Coast Guard, so in that sense, yes, I am a retired judge. Ms. Speier. Because I think at some point we have to assess whether we want this to be a full-on judicial environment that is adversarial or is this an administrative procedure that works differently. And I think we have historically felt that this was different and, as such, is not going to have the adversarial relationships and is not going to be a full-on judicial proceeding. So that is why I was asking those questions. I want to thank you all again for your participation, and I have concluded my questions. Mr. Lankford. Thank you. I am going to allow anyone just to make a quick statement if they need to be able to close up anything on that as well. One thing. Mr. Sklar, we had mentioned about numbers earlier in my conversation with Mr. Horsford, about how difficult it is to be able to get numbers together. Is there a record of the regional local office production goals for the different judges or the different groups? Is that a scheduled record that has existed in the past? Was that a formal or was that an informal kind of production goal? Mr. Sklar. It is fairly informal. Again, we do have a national goal for the agency, and typically that is just chopped into pieces. Mr. Lankford. If we can get a copy of that for as far back as you may have, let's say 10 years or so, if that is out there. I know that is prior groups as well, I get that, but that would help us get accurate numbers, because a lot of what we are looking at are different numbers and types, and to see the ebb and the flow, that would be helpful; and any kind of schedule to heard ratio that is in that as well, so that we get a feel of how that is actually ebbing and flowing, and we will know it is the accurate data coming from you. That would be extremely helpful. Any final closing comment? You don't have to make a comment, but any final closing comment from anyone? Yes, Ms. Sullivan. Judge Sullivan. Thank you, Congressman. I would simply thank, again, everyone here on the committee and encourage you to pursue that agenda that Congresswoman Speier talked about in terms of making a decision about what kind of system we want to have for our people in terms of addressing and reviewing disability applications on appeal. And I would urge all members of Congress to consider reimplementing a meaningful adjudication system into the Social Security Office of Disability Adjudication to replace what I consider to be an incredibly failed experiment of a factory-line production process that is in the offices now. Thank you so much. Mr. Lankford. Judge Snook? Judge Snook. Mr. Chairman, I wholeheartedly agree with what you said recently about I want to get to the worthy claimants in a timely manner. Mr. Lankford. Right. Judge Snook. Several years ago, a very good staff member asked me, judge, do you know what the problem with the system is? And I said, no, Buddy, what is the problem? We have so many unworthy claimants filing, we can't get to the worthy claimants in a timely manner. So that is why I think you need to look at how the attorneys are compensated. Some of the large firms, once the claimant signs a 1696, they have it filed. They don't do any work on the case until they get the notice of hearing, and then if it is a bad case, they withdraw the day of the hearing; if it is a good case, they bring in new evidence. Something has to be done at that end, rather than why isn't the judge moving along. Mr. Lankford. Okay. Mr. Sutton? Mr. Sutton. Mr. Chairman, you talked about your relative, and I have relatives like that too, and I get calls from clients frequently; they have been out of work a year, two years, they have been hurt, they have been ill. Whether because they are feeling a little better or because they are completely desperate, they want to try to go back to work, and I encourage them to do so, without fail. That is my position; that is my firm's position. That is any attorney's position. We are fiduciaries for our clients. They are better off working; not just theoretically or not just in terms of a work ethic, but because they can make more money in the economy working. And there is no guarantee that I am ever going to be able to win their disability case. So we encourage people to go back to work. But what I will tell you about your relative is she is heroic. That is why she is a role model for your whole family for generations to come. And there are people like that, but they are unusual. And this system has to be calibrated toward average folks. That is just the reality. Not everybody who is confined to a wheelchair with the kind of impairments it sounds like your relative has can really manage to work. She did and God love her, and we need people like that, and we should all look up to them. But I don't think we can calibrate a system for millions of people that is predicated on heroes, because they are off the distribution. Mr. Lankford. And I will pass on your word of relic to her in the most encouraging of ways. I made that comment earlier because I talked this week with some family members back in Oklahoma that are going through the process and asked them personally how is this going, because it is an awful long wait. I mean, everybody here knows that; it is a terrible process for them. They said consistently to me that they were advised at the very beginning make sure you are not working; live off relatives, live off family individuals, don't work. Because if you work, you are going to have to walk in and explain why you are asking for disability while you are still working. And I am glad you are counseling people like that. I said that from family members that I talked to them; that it wasn't them applying, it was their family member, and their family member was living off of them. Mr. Sutton. Look, there may be bad advice going on, but it doesn't really make sense to tell anybody that. If they are able to work, they should. And if they try and can't do it, that becomes an unsuccessful work attempt; it tends to prove that they really meet the definition of disability. Mr. Lankford. The issue is just systemic reform, if it is needed. Let's fix it and make sure it is clear and it is what you are talking about on that. Ladies and gentlemen, thank you for being here. It is a long morning and I really appreciate your time and all the effort. Mr. Sklar, we gave you a tremendous amount of homework. For that, I apologize, but you will help this committee tremendously as we try to pursue the facts, and we are here to help you in this process. This is not adversarial for us; we want to help in the process because this is going to be right of people for a long time. With that, this hearing is adjourned. [Whereupon, at 12:15 p.m., the subcommittee was adjourned.] APPENDIX ---------- Material Submitted for the Hearing Record [GRAPHIC] [TIFF OMITTED] 82276.111 [GRAPHIC] [TIFF OMITTED] 82276.112 [GRAPHIC] [TIFF OMITTED] 82276.113