[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

                              ----------                              
                                                                   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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    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

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[GRAPHIC] [TIFF OMITTED] 82276.112

[GRAPHIC] [TIFF OMITTED] 82276.113

                                 
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