[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
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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
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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:]
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[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:]
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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:]
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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:]
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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:]
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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:]
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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:]
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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
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Material Submitted for the Hearing Record
[GRAPHIC] [TIFF OMITTED] 82276.111
[GRAPHIC] [TIFF OMITTED] 82276.112
[GRAPHIC] [TIFF OMITTED] 82276.113