[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
SOCIAL SECURITY ADMINISTRATION OVERSIGHT: EXAMINING THE INTEGRITY OF
THE DISABILITY DETERMINATION APPEALS PROCESS
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 10, 2014
__________
Serial No. 113-128
__________
Printed for the use of the Committee on Oversight and Government Reform
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 TAMMY DUCKWORTH, Illinois
DOC HASTINGS, Washington ROBIN L. KELLY, Illinois
CYNTHIA M. LUMMIS, Wyoming DANNY K. DAVIS, Illinois
ROB WOODALL, Georgia PETER WELCH, Vermont
THOMAS MASSIE, Kentucky TONY CARDENAS, California
DOUG COLLINS, Georgia STEVEN A. HORSFORD, Nevada
MARK MEADOWS, North Carolina MICHELLE LUJAN GRISHAM, New Mexico
KERRY L. BENTIVOLIO, Michigan Vacancy
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
C O N T E N T S
----------
Page
Hearing held on June 10, 2014.................................... 1
WITNESSES
The Hon. Tom Coburn, A U.S. Senator from the State of Oklahoma
Oral Statement............................................... 2
Mr. Harry C. Taylor II, Administrative Law Judge, Charleston,
West Virginia, Office of Disability Adjudication and Review,
Social Security Administration
Oral Statement............................................... 20
Written Statement............................................ 23
Mr. Charles Bridges, Administrative Law Judge, Harrisburg,
Pennsylvania, Office of Disability Adjudication and Review,
Social Security Administration
Oral Statement............................................... 27
Written Statement............................................ 30
Mr. Gerald I. Krafsur, Administrative Law Judge, Kingsport,
Tennessee, Office of Disability Adjudication and Review, Social
Security Administration
Oral Statement............................................... 36
Written Statement............................................ 38
Mr. James A. Burke, Administrative Law Judge, Albuquerque, New
Mexico, Office of Disability Adjudication and Review, Social
Security Administration
Oral Statement............................................... 41
Written Statement............................................ 43
APPENDIX
June 9, 2014 letter to U.S. Attorney for the Eastern District of
Kentucky by Rep. Speier, submitted by Rep. Cummings............ 78
Opening Statement of Rep. Cummings............................... 81
Staff Report: ``Systemic Waste and Abuse at the Social Security
Administration: How Rubber-Stamping Disability Judges Cost
Hundreds of Billions of Taxpayer Dollars, submitted by Chairman
Lankford....................................................... 83
Opening Statement of Chairman Lankford........................... 138
Questions for the record sent to all witnesses................... 140
Judge Harry C. Taylor II responses to member questions........... 142
Questions for Mr. Charles Bridges................................ 169
Responses to committee questions for Judge James A. Burke........ 179
SOCIAL SECURITY ADMINISTRATION OVERSIGHT: EXAMINING THE INTEGRITY OF
THE DISABILITY DETERMINATION APPEALS PROCESS
----------
Tuesday, June 10, 2014
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 9:33 a.m., in Room
2154, Rayburn House Office Building, Hon. Darrell E. Issa
[chairman of the committee] presiding.
Present: Representatives Issa, Mica, Turner, Duncan,
Jordan, Chaffetz, Walberg, Lankford, Amash, Gosar, DesJarlais,
Gowdy, Farenthold, Woodall, Meadows, Bentivolio, DeSantis,
Cummings, Maloney, Norton, Tierney, Clay, Connolly, Speier,
Duckworth, Kelly, Davis, Horsford and Lujan Grisham.
Staff Present: Brian Blase, Senior Professional Staff
Member; Molly Boyl, Deputy General Counsel and Parliamentarian;
Lawrence J. Brady, Staff Director; Caitlin Carroll, Press
Secretary; Sharon Casey, Senior Assistant Clerk; John Cuaderes,
Deputy Staff Director; Adam P. Fromm, Director of Member
Services and Committee Operations; Linda Good, Chief Clerk;
Tyler Grimm, Senior Professional Staff Member; Christopher
Hixon, Chief Counsel for Oversight; Mark D. Marin, Deputy Staff
Director for Oversight; Emily Martin, Counsel; Laura L. Rush,
Deputy Chief Clerk; Jessica Seale, Digital Director; Andrew
Shult, Deputy Digital Director; Katy Summerlin, Press
Assistant; Sharon Meredith Utz, Professional Staff Member;
Peter Warren, Legislative Policy Director; Rebecca Watkins,
Communications Director; Jaron Bourke, Minority Director of
Administration; Aryele Bradford, Minority Press Secretary;
Jennifer Hoffman, Minority Communications Director; Elisa
LaNier, Minority Director of Operations; Juan McCullum,
Minority Clerk; Suzanne Owen, Minority Senior Policy Advisor;
Brian Quinn, Minority Counsel; and Dave Rapallo, Minority Staff
Director.
Chairman Issa. The committee will come to order. The
oversight committee exists to secure two fundamental
principles: First, Americans have a right to know that the
money Washington takes from them is well spent--well, at least
that we are trying to have it 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
a right to know what they get from the government. It is our
job to 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 our mission statement. And, Senator, I only did
that one because we are pleased to have you here today. We will
do our opening statements after your testimony. Take the time
you need. The fact is that there is no better watchdog in
Congress, either side of the Capitol, than you have been, and
the hearing we are going to have later today really is the
result of the hard work you have done to bring this issue, this
growing multibillion-dollar issue to the American people.
So my friend, and Senator from Oklahoma, you are
recognized.
STATEMENT OF THE HON. TOM COBURN, A UNITED STATES SENATOR FROM
THE STATE OF OKLAHOMA
Senator Coburn. Well, thank you, Mr. Chairman and
Representative Cummings. I appreciate the invite. I would
correct your statement. Actually all this comes about because
loyal Americans who work for the Social Security system have
raised the issues that we looked at and found to be credible.
Most of us know that the Social Security Disability Trust
Fund is in precarious shape. At the end of this year, we will
go into 2015, probably in this last year, where we don't have
to make cuts. And there are some pretty significant rules about
whether we can transfer money to that Disability Trust Fund.
Our research says we can't, which means the 11 million
Americans who are presently in need of those payments will
receive a cut.
I have been investigating this for about the past 4 or 5
years, and, again, it came on the basis of whistleblowers who
actually work for the Federal Government. I look forward to
reviewing the findings of your report, and that we continue to
have an ongoing investigation. The first report we put out was
bipartisan. We will continue to do that in bipartisan. Senator
Levin and I have been very interested in making sure we know
what the rules are, how the program works, how it is supposed
to work, and whether or not there is compliance with that.
What we do know is the size of the program is staggering.
We spent $137 billion on this program last year. Senator Carl
Levin and I did a review. My staff initially reviewed 300
random cases that were selected randomly through a computerized
model from Social Security for three different offices, one in
my home State. I try to do something for my home State every
time to make sure we are not missing it when I am doing
oversight.
And what we found was alarming. What we found is 25 percent
of those cases--and I personally read the medical history on
about 100 of these cases as a practicing physician. But what we
found is 25 percent of the cases should never have been
approved for benefits based on Social Security's own rules and
procedures. So we had 25 percent where their own administrative
law judges didn't follow their own rules. Interesting, they
shared with us that their own internal review showed that they
found 22 percent of like cases of their own ALJs not following
the procedures and rules that have been set up.
We specifically looked in our investigation at Huntington,
West Virginia, because the problems that we came to find were
similar to those we found in our prior investigation, only
much, much worse. And this got our attention because this
office processed more disability cases than any other office in
the Nation, and so when we looked at it, much of that could be
accounted to one attorney, Eric C. Conn. In spite of practicing
in a town of 500 people, he had become the third highest
payment, Social Security, receiving over $4 million in agency
fees in 2010.
When we looked more closely at Mr. Conn's operations, we
found reasons for serious concern. Some of what Mr. Conn did
was outright fraud; at times, he was simply able to exploit
loopholes in the program. Both of those should be a concern for
us in Congress given the precarious nature of the trust fund.
To ensure that Mr. Conn's cases were approved and keep his
fees flowing, Mr. Conn colluded with an ALJ in Huntington, West
Virginia, by the name of David Daugherty. The two worked
together to award billions of dollars in fraudulent disability
claims. Their plan involved several calculated steps. First, in
order to make sure Mr. Conn's cases were approved, Judge
Daugherty needed to make sure Mr. Conn's cases got in front of
him. Normally, agency rules require that the oldest case goes
to the first available ALJ. He bypassed that, and I won't go
into details. It is in my written testimony on how he did that.
But he inappropriately reassigned cases when they weren't
assigned to him by going into a computer system and reassigning
them to himself.
The next thing he would do is he would call the attorney's
office with a list of names and Social Security numbers telling
Mr. Conn what he needed in terms of either a medical or
physical or psychological impairment to be able to approve the
case. And it wasn't really that difficult because Mr. Conn had
prefilled out all the forms. He had about 30 different forms,
and he would just randomly put one, whether it had any
connection whatsoever to the patient's history at all. And so
he would assign one of those.
Mr. Conn also collected a number of doctors who actually
conspired to do what he wanted done at his bidding, and paid
out millions of dollars to these doctors, many of whom had lost
licenses in other States and had significant histories that
would render their regular practice of medicine questionable.
He paid around $500 per review, which sometimes took less than
15 minutes. So you can see that there was motivation for money
with the physicians as well.
In one instance our committee determined that 97 of Mr.
Conn's claimants approved by Judge Daugherty had the exact same
residual functional capacity, a statistical impossibility,
which showed that he was using preset forms to get the answers
that he wanted. Judge Daugherty would then write a boilerplate
decision to approve the claim for benefits, always finding that
the information and evidence provided by Mr. Conn outweighed
any and all other evidence in the file, most of which was
never, ever looked at.
Mr. Conn made millions, as I said. The committee also
discovered that Judge Daugherty had deposited in his bank
account $100,000 in unexplained cash deposits over this period
of time. But Judge Daugherty wasn't only approving Mr. Conn's
cases. In just the last 5 years working for the agency, Judge
Daugherty awarded more than $2.5 billion and had an approval
rate in excess of 95 percent.
If that is not bad enough, the breakdown in the management
of the Social Security system was evident as well. Judge
Charlie Andrus--and Judge Daugherty could have been stopped by
Judge Andrus. He chose not to do that. He chose not to
discipline him. He chose not to reprimand him. He chose not to
do what he had in his powers, the chief judge.
He allowed Judge Daugherty to approve a high number of
claims, and, because of this, Judge Andrus was touted and sent
around the country on how to do things by the Social Security
system. Mr. Andrus did nothing to stop Mr. Conn or Judge
Daugherty. He looked the other way. At one point it became
obvious that Judge Daugherty was no longer bothering to even
hold any hearings. They were all done on the record.
The other thing that we know is that Judge Daugherty would
come in, sign in, leave the Social Security office, come back
in the afternoon, sign out and leave. He wasn't even there.
The other thing that we found was that Mr. Andrus colluded
with Mr. Conn to target a whistleblower in his office. That is
a big charge. When he was questioned about this by our staff,
he said he couldn't recall whether or not he instructed someone
to do certain things.
However, he wasn't happy about losing the top position in
his office, so he teamed up with Mr. Conn to target a
whistleblower trying to--when there was work from home on one
Sarah Carver. What they did was spy on her, try to photo her,
proving that she wasn't actually working from home so that they
could terminate Ms. Carver.
Judge Andrus, after lying to the committee, later confessed
to the plan, explaining what he and Mr. Conn were trying to do.
He had asked a Ms. Sarah Nease to call one of Mr. Conn's
employees on the days Ms. Carver was scheduled to work from
home, and then he would have one of Mr. Conn's employees follow
her and track her and stalk her to make sure during the work
hours she wasn't doing anything but work. And, of course, Sarah
was a great employee. She actually did her work from home. That
is why she was a great whistleblower.
He was not truthful with the committee. Twenty-four months
after he--correction, a few months after he lied to the
committee, he had a sudden remembrance of the facts and
confessed to exactly what happened, and signed a 24-page sworn
statement to the agency, and he confirmed what I just laid out.
After that Mr. Andrus was put on paid administrative leave
and filed a claim with the Merit Systems Protection Board. This
is after he admitted to conspiring with Mr. Conn to target one
of his own employees. He voluntarily retired, according to a
decision from the Merit Systems Protection Board. The system
charged him with conduct unbecoming an ALJ, engaging in
apparent conflict of interest, lack of candor--in other words
lying--and unauthorized disclosures.
Despite these charges he had a settlement agreement, that
this agency did nothing. He retired today with full pension
intact. So there was no consequence.
The final point I would make is when we finished our
investigation on Huntington, the entire package was sent to the
Department of Justice. To date nothing has happened. Mr. Conn
has not been indicted; Judge Daugherty has not been indicted;
Judge Andrus has not been indicted.
So something has to change in terms of the enforcement of
our laws and the rule of law if, in fact, we are to change
Social Security system. We have a lot of great employees at the
Social Security system, and we have a lot of people with true
needs. If we don't fix this through both oversight and
legislative changes, this system will not be available to the
extent it is today for those that are truly disabled in this
country.
I would be happy to take any questions you might have for
me.
Chairman Issa. Thank you.
The Senator has agreed to take a few questions. I am going
to yield first to the ranking member Mr. Cummings.
Mr. Cummings. Thank you very much.
Senator, thank you very much for being here. I have the
utmost respect for you, and I thank you for looking into these
kinds of matters.
I must say that the Social Security Administration is based
in my district, headquarters, and I am thankful that you said
that we have a lot of great employees, because sometimes we can
give this broad brush. And all those people who are working
overtime and busting their butts, they get painted with the
brush. So I am glad you said that.
And I find, as a lawyer, the comments that--the
descriptions that you gave, if people are doing those types of
things, and I have no reason to believe they are not, it is
reprehensible. And we are better than that, and we should be.
I want to see if we can come to some areas. You know, a lot
of times we have hearings, and in the words of my former
sharecropper mother, she says, you have motion, commotion,
emotion and no results. And so I want to see if we can find
areas of agreement, and I want to ask you just three questions.
The Social Security Administration is supposed to conduct
continuing disability reviews every 3 years. These reviews
ensure that individuals continue to have the disabilities that
qualify them for disability assistance, that they are not
receiving payments improperly. But there is currently a backlog
of 1.3 million CDRs.
During our investigation witnesses told us these reviews
are highly cost effective, and I know that is a big deal for
you, cost effectiveness, and for me, too. They estimate that
every dollar spent on the CDR saves $9 in improper payments.
The inspector general testified that if the backlog in CDRs
were eliminated, we could save more than $2 billion per year.
The problem he identified is a lack of adequate funding. In
our previous hearing, Congresswoman Duckworth asked the
inspector general if there was any reason for this backlog
other than adequate funding. This was his response: No, because
we can pretty much show from all the work that we have done is
when Social Security dedicates the resources of doing it, and
the dedication is coming from their funding, they will reduce
the backlog.
Question: Dr. Coburn, Senator, do you believe that Congress
should fully fund continuing disability reviews to eliminate
the current backlog, and did your research go into that at all?
Senator Coburn. Not under the way it is done today, because
a lot of CDRs are just a postcard mailed to somebody that says,
are you still disabled? And they fill it out and send it back,
so there is no real investigation with a lot of them.
What needs to happen, I believe, is those people who we
know are going to be permanently disabled, you know, the
medical science and the medical record would show there is not
going to be a way for them to get into the workplace, those
should never have a continuing disability review. We shouldn't
waste any resources on it.
What we should do is recategorize those who get disability,
ones with what should be a short-term, ones that have a chance,
and then ones that have no chance, and then concentrate that,
but it needs to be a CDR. So I am all for funding a real CDR at
adequate levels, but you are fixing the wrong problem.
Chairman Issa. Yeah.
Senator Coburn. The problem is a census report--the Senate
report came out. The approval rates dropped precipitously
because the judges weren't, in uniform, following their own
regulations. So if you put people on disability who are not
truly disabled, and you send a postcard saying, are you still
disabled, they are going to answer yes. So it is not going to
do anything. So I agree that we should fund it, but we need
major changes.
I would make one other point: Remember, when somebody comes
before an ALJ, they have already been turned down twice by
people very knowledgeable in the system. Two separate Social
Security employees have looked at either the grid or the
medical history, looked at the law and the requirements, and
have said no. The key thing we need is that input, since the
judges routinely won't read their input, into the trial
hearing, into the disability determination so that the input of
the paid professionals working for Social Security is actually
heard.
There is a lot of other gimmicks and loopholes that Eric
Conn used to change the medical record falsely so that the most
recent piece of information would be there and only arrive a
day before a hearing, and that is what routinely happens today.
So we need structural change within how we do this, and we need
continued oversight.
If we do good work over the next year or so in terms of
fixing this, and we don't oversight it afterwards--you know,
the reason this happened is because we weren't doing good
oversight routinely. What is your approval rate? Are you
following the regulations? Are you doing the continuing
disability reviews? So I would say if we have a good system, we
ought to fund it adequately to make sure it can work.
Mr. Cummings. I had said three questions, I am just going
to ask you one more. The inspector general said that we should
fully fund antifraud efforts because he believes that we can
save a lot of money generally in Social Security. I mean, do
you agree with that?
Senator Coburn. Yeah, I do, but the antifraud efforts have
to look at those ALJs that are fraudulent as well. So you have
to look inside as well as outside.
Mr. Cummings. Again, I really appreciate you being here.
Senator Coburn. Thank you, sir.
Mr. Cummings. Thank you.
Chairman Issa. Senator, our report found that 191 ALJs,
administrative law judges, had allowance rates in excess of 85
percent, and these are people, as you said, that were turned
down once or twice by the previous reviews, 85 percent over the
past decades. These ALJs collectively awarded more than $150
billion in lifetime benefits. Does that seem about consistent
with what you had seen during your investigation?
Senator Coburn. It is, yes.
Chairman Issa. Now, in the Senate it takes 51 people to
pass something.
Senator Coburn. No, it takes 60.
Chairman Issa. It seems to take 51 lately, but okay. It
takes 60 to get a vote and 51 to pass. How many people got to
vote on what these judges got to do? How many got to second-
guess them? Were these effectively administrative law judges
that each time they said yes when they should have said no,
they were writing a $300 million appropriation of the
taxpayers' money--$300,000. I am sorry, $300,000.
Senator Coburn. I actually don't put the blame on the
administrative law judges. I put it on us. You know, until we
had whistleblowers come forward, we weren't doing the due
diligence that we are supposed to be doing. We weren't having a
hearing to see what was going on.
Chairman Issa. You have got Judge Huntington, who
effectively was the Duke Cunningham of ALJs, wasn't he? Similar
to our colleague who took bribes in order to do appropriations,
he was taking money in order for a lawyer to make a few hundred
thousand dollars, a few tens of thousands of dollars, but a
client to receive $300,000 over a lifetime. He was essentially
selling for a few thousand dollars millions or billions of
dollars' worth of yours and my money.
Senator Coburn. Well, to be fair to Judge Daugherty, we
don't know where he got the cash. So the assumption would be--
--
Chairman Issa. He may have simply colluded with this guy
for free.
Senator Coburn. Yeah.
Chairman Issa. That is an incredible level of generosity.
Senator Coburn. Either way, the fact is the system is
broken. We are not following the guidelines. It is improving as
we've improved our oversight. But we have not done the
oversight, and that is why I am thankful that you all are doing
this. What needs to come forward--we are working with the
disability community right now to try to make the major reforms
with the truly disabled to make sure we don't put anything we
do at peril for them, but at the same time exclude those that
want to game the system. So we are trying to work with that. We
have offered to work with your committee in terms of trying to
formulate and then get it to the appropriate committee of
jurisdiction what needs to be done.
I want to tell you one other story. There is a gentleman in
Oklahoma that has been in a wheelchair his whole life. He works
for the State Disability Determination Unit, and he has put
over 300 people who are totally disabled to work in the last 2
years, full time, paying jobs with health insurance. So, you
know, that is the better answer is if we are going to spend
money, let us spend money on helping people become productive
members of the society with their disability.
And so I think we need to do it all, but there certainly
needs to be a continuing oversight, a continuing IG. The other
question you should ask yourself, and this is no reflection on
the IG that is there presently, is why wasn't the IG catching
some of this before, before it became a story through
whistleblowers' leaks through a newspaper?
So we have real work to do, and it is not just in Social
Security disability; it is throughout government.
Chairman Issa. I appreciate it.
Real quick follow-up. In the case of Judge Daugherty, do
you believe he should be prosecuted? You suggested----
Senator Coburn. Absolutely.
Chairman Issa. --referral, you sent it. The statute of
limitations probably hasn't expired for it. He could still be
prosecuted as we speak.
Senator Coburn. I believe he should be prosecuted, I
believe Judge Andrus should be prosecuted, and I believe Mr.
Conn should be prosecuted.
Chairman Issa. Now, I was just in Oklahoma this weekend,
and the one thing I figured out quickly in Oklahoma is you love
your football.
Senator Coburn. We do.
Chairman Issa. And my understanding is when you win or lose
a game, the coach doesn't get to come out the next day and say,
you know, what I needed was more players, or I needed to pay my
players more. He gets to have----
Senator Coburn. We don't pay players in Oklahoma like
California, like some of the other States.
Chairman Issa. Well, minor versus major. But the--don't the
Texans laugh. Don't even think about it. It was a Texan that
built that big stadium in Oklahoma, so just get over it. I have
got a lot of Texans here, and I have only got one great
Oklahoman. I think he is right down there.
But the fact is that the IG recommends basically a whole
lot more money for a lot more people, a bigger team. Do you
believe if that team were reviewing the excesses of these ALJs,
the cases that were allowed that should not have been allowed,
isn't that the low-hanging fruit? Couldn't you have basically
moved the ball a lot of yards down the grid if, in fact, you
were able to just simply look at people over 85 percent and
say, let us look at those cases again? And if we look at those
cases, those are the people we ought to go find out if they are
really disabled. Would you agree with that?
Senator Coburn. Well, I think, to some extent. But
remember, you have had this swelling application because we
have created the predicate that it is so easy to get
disability, and you have lawyers advertising all the time
telling them, we will get you taken care of. So you have a
workload there. And in that mix, 50 percent in that mix are
people who are really disabled, and if we don't attend to that,
we are not.
So I would agree that we ought to review where the outliers
are, but we also ought to fund appropriately and also have the
judges really pay attention to the career Social Security
people who are making these determinations in the first place.
Almost all of them get appealed to a judge. And then after two
professionals within Social Security have said, no, you are not
eligible, even now 50 percent of them get overridden by a judge
who isn't looking at the whole record. The professionals inside
Social Security look at the whole record. The judges rarely do.
You know, some of these stacks are this thick. Let me just
give you a little bit of history. Michael Andrus was approved--
Astrue was approved to be head of Social Security. The message
Congress gave him is, get rid of the backlog. Guess what? He
did. He didn't do it right, but he got rid of a lot of the
backlog while he was head of Social Security. Sloppy work. And
that became their impetus. It is not whether they are disabled
or not, it is to get rid of the case, and we created that
demand on him. So Congress, again, we need to look at our own
House, and we need to do continuing oversight, not just bullet
oversight. We start it, and we continue it.
Chairman Issa. Thank you, Senator.
Mr. Lankford, do you have a quick question?
Mr. Lankford. I do have a quick question.
Chairman Issa. Senator, we understand you are going to have
to leave shortly, so we are on your schedule.
Mr. Lankford.
Mr. Lankford. Just a quick question. We have obviously had
multiple hearings on this, as you have in the Senate as well.
One of the things that comes up over and over again, the Social
Security Administration says there is no way to be able to
address to the CDRs overturning any of these cases because they
can't show medical improvement because of the way the opinion
was written by the ALJ, that they don't have anything.
One quick note from one that is just an illustration, you
have tracked all those well, the focused review--and I am going
to pull out one judge's focused review--said during the
hearing, he asked the claimant if he had difficulty walking.
They responded in the affirmative, and so he said he had
degenerative disc disease, though there was nothing in the
medical record that actually said it.
Now, CDR doesn't matter on that because you are not going
to show medical improvement because they can't show there is
any medical problem at the beginning. How widespread have you
seen that is, and what is the difficulty there with this
evaluation on showing medical improvement when they can't show
there was a medical problem in the first place?
Senator Coburn. What you are talking about is an
incompetent ALJ that didn't look at the record, because unless
it is in the record and you have scientific proof for it, you
have no basis to take the statement. Every one of us is
disabled in a certain way, and so all of us could claim a
certain disability for some aspect of our health, but the fact
is is there is a record, and if the record isn't looked at, you
can't ever get the right answer.
Mr. Lankford. And trying to overturn that, no matter what
your CDR is, you can't show medical improvement if you can't
show there was a medical problem in the first place. So you are
permanently stuck in the disability system without any way to
be able to come out of it.
Senator Coburn. Well, here is the other problem with it. If
you put somebody in disability that is not truly disabled, what
you did is put a ceiling on their ability to achieve, perform,
grow, succeed. And they carry that label as, ``I am disabled,
and I can't,'' rather than ``I am not disabled, I have
problems, but I can.'' And so not only do we have an impact
financially in our country, we take all these people's--their
hopes and aspirations and say, we confirm you can't, instead of
saying, we believe you can.
And that is what is so great about Jason Price in Oklahoma
is he has taken people who have real hard disabilities and
showed them how they could. And that is what we need to do more
of.
Mr. Mica. [Presiding.] Thank you, Mr. Lankford.
We will let Ms. Speier--I think she had a quick question.
Ms. Speier. Thank you, Mr. Chairman.
And thank you, Senator, for the outstanding work that you
and Senator Carper have done in the Senate on this issue.
Chairman Lankford and I have worked closely together in a
bipartisan fashion in the subcommittee hearings that we have
had on this issue. One of the things that is most disturbing to
me is that even with the mountains of evidence against the ALJ
Daugherty and Eric Conn, no action has been taken against
either of them, and, in fact, my understanding is that Eric
Conn is still handling cases in the Huntington office on behalf
of claimants.
So the inspector general--I think Patrick O'Carroll has
done an outstanding job. I mean, I think he is top drawer, and
his investigation with over 130 interviews suggests that there
is plenty of evidence. Now, the Attorney General has not taken
any action. The Social Security Administration has been waiting
for a prosecution, and just yesterday both Mr. Lankford and I
signed a letter to the U.S. attorney in the Eastern District in
Kentucky to request an independent evaluation, because nothing
is happening on these cases.
In your reviews is there anything the Social Security
Administration can do independent of waiting for a legal
prosecution to take place? What administrative action do you
think they still have the ability to take against both Judge
Daugherty and Eric Conn?
Senator Coburn. Well, I am not a lawyer, and so I really
don't know. What I can tell you is they can sanction Mr. Conn
if they wanted to. I mean, the evidence is out there in the
report that Senator Levin and I published along with Senator
Carper and Senator McCain. They could sanction him; say, you
can no longer practice before the Social Security
Administration. They could do that.
Now, there would be a fight, because he is going to fight
that because he is making millions of dollars a year off of it,
but they could do that. And that is called leadership. That is
setting an example to send the same example to other law firms
that are abusing the system. We are in the midst of taking a
good look at another large law firm right now that specializes
in this.
And the whistleblowers, the story they tell is not pretty:
cheating, misinformation, nonauthenticated facts, not including
pertinent facts in the records even though they assert that
they do.
So there is a lot of things they can do, but if Justice
Department isn't going to do anything, and Social Security
isn't going to do anything, it is not going to matter what we
do if we don't do something. We have to ask them to do that.
And I am truly frustrated. We sent a very well-packaged
case to the Justice Department on this with stuff under oath,
documented, the facts laid out, and no action has been taken on
them.
Ms. Speier. So from a legislative perspective, I mean, I am
with you 100 percent in terms of our responsibility in terms of
oversight and that it has to be consistent and not just a drop
in the bucket. But what legislative remedies would you
recommend that we embrace to fix this problem? Now, in fairness
to ALJs generally, there is 1,500 of them----
Senator Coburn. Yes.
Ms. Speier. --and we cannot suggest that 1,500 of them are
not doing their job.
Senator Coburn. No, that is not true at all.
Ms. Speier. In fact, the vast majority are doing their
jobs.
Senator Coburn. As a matter of fact, a lot of the
information we got was from very good ALJs saying, here is what
is going on. They would see it in their colleagues.
Ms. Speier. So----
Senator Coburn. And they would say, how in the world could
somebody do this when I am struggling to get through all these
records every day and make a real determination? How can
somebody do that?
Ms. Speier. Right.
Senator Coburn. So this is not to impugn all ALJs, but we
have a large number of ALJs who are improving now, now that the
story is out.
Here is the answer: If we write a reform bill on Social
Security, we have to be very specific about what we expect.
Here is what Congress typically does. We pass a law, and we
say, you figure out how to implement it, and what we need to do
is start being very specific on what we mean and what we want
to be implemented. Here is the standards. In other words, not
let the bureaucracy set the standards; we will set the
standards in statute so that they have to comply.
Ms. Speier. So what would your standards be?
Senator Coburn. My standards would be is, number one, a
continuing review of ALJs to see that they are actually looking
at the record; number two, continuing review of lawyers before
the ALJ court to see if, in fact, they are abusing the
privileges of practicing before that court, not submitting all
the information. That is routine today. Pertinent medical
information is excluded from the record on purpose, because if
it was in there, they would not get their disability; adding
new material after the case is set for docket, in other words,
finally finding a doctor that will say what they want them to
say and then that being the latest piece of information. So the
system is gamed.
So we have to write a bill, and we have to put the rules
and the specs, commonsense stuff. Not stuff--we want to err on
the side of giving somebody disability that doesn't have
disability, because if we don't, we are going to miss some
people who are truly disabled. So a small percentage of that
would be commonsensical, but we can't do what we are doing
today, and so what I would recommend is having Social Security
before you, what are you doing to change this? How are you
changing it? How are things improving? What is your approval
rate? What is your denial rate? What is happening? What are you
doing on late evidence? What are you doing to lawyers who bring
up cases and don't put the information in the medical record;
in other words, exclude bad information. And that happens
routinely right now.
Ms. Speier. Thank you. I yield back.
Chairman Issa. [Presiding.] Thank you.
Senator, I want to thank you for the generosity of your
time. You stayed far longer than we thought you were going to
be able to.
Senator Coburn. Well, I just appreciate you all looking
into this. We have got to fix it, because the people who truly
are disabled in this country are depending on this system, and
it is belly up in a year.
Chairman Issa. Thank you.
We will take a short recess and just set up for the second
panel. Thank you.
[recess.]
Chairman Issa. The committee will come back to order.
The Social Security Disability Insurance Program and the
Supplemental Security Insurance Program have both seen
explosive growth over the last decade. Through these programs
nearly 20 million people received $200 billion of annual
benefits. At this rate, however, the program is financially
unsustainable. The SSDI program is set to go bankrupt in 2016,
when the trust fund is finally depleted. Those who have genuine
disabilities who depend on this program will be hurt the most.
It is no secret that serious problems within the disability
programs are contributing to the insolvency. Today's hearing
will focus on the role of administrative law judges, often
referred to as ALJs, and concerns about the agency's lack of
oversight for these key actors.
ALJs work in the executive branch. They are, in fact,
executive or, if you will, nonjudges in the sense of the other
branch. They work for the President and for the administration.
These quasi-independent government adjudicators are responsible
for determining whether or not a person who has already been
denied disability benefits should, in fact, receive those
benefits.
Every case that comes before an ALJ has already been denied
at least once, and often twice. Yet ALJs overturn a shocking
number of these denials. Between 2005 and 2013, two-thirds, 66
percent, of all applicants who appealed benefit denial
decisions to an ALJ were awarded benefits and placed on Federal
disability.
During this time period seven different ALJs went an entire
year where they approved every single case that came across
their desk. Some even repeated this dubious feat, receiving
1,000 batting average, if you will, for another year. In a
previous hearing ALJs told this committee that denying a claim
requires more paperwork to justify the decision and invites
scrutiny. This gives ALJs a bureaucratic incentive to approve
cases.
ALJs also told the committee that they felt pressured to
meet quota of decision each year. The judges testified that
they received training from the agency to speed up their
decisionmaking, including instructions to set an egg timer,
limiting reviews to no more than 20 minutes per case. And
again, that is 20 minutes per case that might be, as the
Senator said, 2 feet high.
Prior to 2011, the only metrics the Social Security
Administration used to evaluate ALJs was the number of cases
the judges decided; in other words, the measure of quantity but
not quality in their review. In 2010, the agency finally
decided to publish allowance data. These are statistics about
how often ALJs reverse denials and/or allow benefits.
Tellingly, the national allowance rate began to fall after the
agency made the data public. Again, it was not known; once it
was known, the rate of approval began falling. During the time
after it was made public, not a single ALJ received a perfect
batting average.
As we see time and time again, transparency and access to
information improves governing. The fact that ALJ allowance
rates declined so rapidly in such a short period of time raises
serious questions about the high national allowance rate prior
to 2010, meaning prior to 2010 it is likely that hundreds,
thousands or even millions of individuals who were not disabled
received that lifetime benefit of approximately $300,000 in
disability payments.
On 60 Minutes last fall, one administrative law judge
stated that ``if the American public knew what was going on in
our system, half would be outraged, and the other half would
apply for benefits.'' Today's hearing is an opportunity for the
American people and the American public to see just what
exactly is going on in these disability programs and how much
it is costing the American taxpayer each year.
The four administrative law judges who join us here today
have approved an average of more than 95 percent of disability
cases they have received combined. These ALJs have awarded more
than $11 billion in lifetime benefits in just over the last
decade. Internal agency reviews of their decisions shows
significant and frequent problems in both decisions they made
and the hearings they conducted.
The reviews raise serious concerns about how many of the
individuals they awarded benefits to actually met the criteria
for disability compensation. The committee staff report
released today found evidence the ALJs disregarded established
procedures for deciding cases. Some examples: Instead of
following procedures to inform applicants in writing after all
evidence had been considered, ALJs sometimes made it their
practice to immediately tell applicants when they testified
that they would be awarded benefits.
Vocational experts hired by the Social Security
Administration to provide professional expertise during
hearings were sometimes ignored, not permitted to testify, or
even only permitted to testify after the ALJ had proclaimed the
conclusion granting the disability. Some ALJs actually
discussed, perhaps even bragging to applicants during
proceedings, about how many cases they heard and approved.
In short, and despite the fact that every appeal they heard
had been denied at least once before, some ALJs rubber-stamped
for approval almost every single case that came before them.
For a program that is staring down bankruptcy, this lack of
accountability is unacceptable and must be changed. I am
looking forward to today's testimony as we try to get to the
bottom of the problem before us and restore integrity to these
important programs.
I now recognize the ranking member for his opening
statement.
Mr. Cummings. Thank you very much, Mr. Chairman. I truly
thank you for holding this hearing today. I think it is a very,
very important hearing. And today the committee begins 2 days
of hearings to examine the actions of administrative law judges
who determine whether individuals with disabilities qualify for
financial assistance under the Social Security Disability
Insurance Program.
Congress created this program in the 1950s as a lifeline
for millions of Americans who pay their taxes and show up at
their jobs every day, but experience disabilities that stop
them from working. Recently there have been allegations of
criminal fraud by one particular judge. These actions are
reprehensible, and they diminish the confidence that most
Americans have in this program.
Yesterday our colleague Jackie Speier, the ranking member
of the Subcommittee on Energy Policy, Health Care, and
Entitlements, sent an important letter to the U.S. Attorney for
the Eastern District of Kentucky. She asked them to evaluate
evidence of criminal activity committed by an administrative
law judge there. I want to thank her for these efforts, and I
ask that her entire letter be included in the hearing record.
Mr. Lankford. [Presiding.] Without objection.
Mr. Cummings. Thank you very much, Mr. Chairman.
I also want to thank Senator Carper, who was supposed to be
here, who I also had a chance to talk to, and Senator Coburn,
who was here with us today, for their role in exposing the
details of this case.
Today's hearing does not concern allegations of criminal
activity, but rather claims that some judges simply approve too
many disability cases. Today the majority has invited four
judges with allowance rates higher than 90 percent. This means
that on an average they find disabilities and award financial
aid in 90 percent of the cases they hear.
I believe that it is appropriate to review the actions of
individual judges not to compromise their independence, but to
ensure that they are following agency policy. It is interesting
that Senator Coburn said that there are some judges that don't
even follow agency policy; said that in 25 percent of the cases
that he looked at, that was the case. That is most unfortunate.
All four judges here today received attention from the
Social Security Administration long before this committee ever
got involved. They received in-depth reviews of their decisions
and training to address problems identified by the agency. In
fact, the Social Security Administration is in the process of
removing one judge, one of our judges here, from his job to a
filing with the Merit Systems Protection Board.
Although I support these individual reviews, I strongly
oppose the broad condemnation of all administrative law judges.
As Senator Coburn said, a lot of the information that he got,
and others, in looking at these cases came from those
administrative law judges who do their jobs and follow the
rules. The 4 judges here today are not representative of the
1,500 judges who work at the Social Security Administration.
Even they admit that they are outliers.
According to the Social Security Administration, last year
the entire pool of administrative law judges had an average
allowance rate of 57 percent. That is the lowest overall
allowance rate since 1979. The fact is that over the last
decade, the Social Security Administration has significantly
improved its efforts to collect and analyze data about judges'
decisions. It has expanded training, improved performance,
sharpened disciplinary procedure and enhanced efforts to combat
fraud.
But if more needs to be done, we have to make sure it is
done. We cannot continue to have this kind of situation where
90 percent of the cases are being approved. But those efforts
have been hindered by failure of Congress to provide adequate
funding. Right now the agency cannot hire enough judges to hear
cases. So individuals now wait more than a year for disability
hearings, and it is even getting worse. We even received
testimony during our investigation about people dying while
they waited for their benefits.
Congress has also underfunded antifraud programs to save
taxpayers money. There is a huge backlog of continuing
disability reviews, for example, which are supposed to be
conducted every 3 years to make sure beneficiaries continue to
have the disabilities that make them eligible. Again, Senator
Coburn said we should do that, but we should find a way to make
it more effective and properly funded, and I agree with him.
These reviews save taxpayers $9 for every $1 they cost, but
Congress has not provided enough funding to conduct them.
Congress has also failed to fully fund inspector general's
antifraud investigating units, so they simply do not exist in
nearly half the country. This is the price of austerity. When
we starve an agency of resources, it affects not only my
constituents in Baltimore, but the constituents of every member
of this committee in the House. If we care about improving this
program, we need to invest in its success.
Let me close by noting the inaccuracy of claims that judges
with high allowance rates are contributing to the insolvency of
the Disability Insurance Trust Fund. The projected insolvency
of the fund was forecast in 1995 by the chief actuary of Social
Security, and the cause has brought demographic changes across
the country. As he explained, Congress can address this issue
by passing a modest reallocation of payroll taxes to extend
benefits by decades as Congress has done several times before.
And with that, Mr. Chairman, I look forward to hearing our
witnesses, and I yield back.
Mr. Lankford. Thank you.
I will do a brief opening statement as well, and then I
will yield to the ranking member on the subcommittee.
Mr. Lankford. As you know, my subcommittee has held three
hearings over the past year on the problems with Federal
disability programs. It is clear that the growth of these
programs is unsustainable for the Nation's taxpayers and it
threatens the livelihood of the truly disabled who face large
benefit cuts in the future if the program is not reformed.
The Social Security Board of Trustees and the Congressional
Budget Office estimated that without reform the Social Security
Disability Insurance Trust Fund will be depleted in 2 years. At
the outset, let me state that I appreciate the bipartisanship
which my subcommittee has been able to approach this in all of
our oversight. Ranking Member Speier and I both recognize there
are significant problems with these programs and that reform is
needed. I thank her very much for her work and our partnership
on this issue.
For all practical purposes the decision to allow benefits
is an irrevocable commitment of taxpayer funds, since favorable
decisions are not appealed and less than 1 percent of
disability beneficiaries ever return to the workforce.
Therefore, it is a decision which must be made with great care
and proper consideration of all the evidence. It appears some
ALJs are being very benevolent with other people's money.
In June last year, my subcommittee heard testimony from two
former and two current Social Security administrative law
judges. That hearing showed that the agency's emphasis on
processing cases quickly likely had the unintended consequences
of ALJs putting too many people onto a program who are able to
work. We learned that many ALJs use shortcuts and don't have
time to consider all the evidence prior to rendering a
decision.
In addition to discussing problems within the appeals
process, my subcommittee has also explored problems with the
agency's continuing disability review process. The agency
allowed a huge backlog of CDRs to develop. Moreover, the
agency's current medical improvement standard is so flawed that
a claimant who is not disabled and wrongfully received benefit
initially cannot be removed from the program. This was part of
my conversation with Dr. Coburn earlier.
Today's detailed staff report and the hearing continues the
committee's important oversight. I would like to add into the
record the staff report for this. Without objection.
Mr. Lankford. Here are some of the central facts explained
in the committee report. First, Jasper Bede, regional chief
administrative law judge for the agency, testified that it
raises a red flag when ALJs allow benefits at a high rate,
which he defined as over 75 or 80 percent. Between 2005 and
2009, over 40 percent of ALJs had an allowance rate in excess
of 75 percent and over 20 percent of ALJs had an allowance rate
in excess of 85 percent.
Second, between 2005 and 2013, over 1.3 million individuals
were placed onto disability by an ALJ with an allowance rate in
excesses of 75 percent.
Third, the raw numbers also suggest that the historic
problem of ALJ decision making has been one-sided. For
instance, 191 ALJs had a total allowance rate in excess of 85
percent between 2005 and 2013. Only a single ALJ had a total
allowance rate below 15 percent during this same time period.
Fourth, prior to 2011, the agency failed to assess the
quality of ALJs' decisions in any way. The agency even failed
to monitor whether ALJs were appropriately awarding benefits
when ALJs awarded benefits without holding hearings. Instead,
it appears that the only metric used by the agency to evaluate
ALJs was the number of cases processed.
Fifth, a 2012 Social Security Administration internal
report confirmed this ``A strong relationship between
production levels and a decision quality on allowances. As
ALJs' production increases, the general trend for decision
quality is to go down.''
A committee analysis of 30 internal agency reviews of high-
allowance ALJs confirms this. The 30 reviews showed troubling
patterns in judicial decision making, particularly how ALJs
with high allowance rates failed to utilize medical and
vocational experts in their hearings, how they improperly
assessed drug and alcohol abuse in their decisions, and how
they improperly assessed whether individuals can work.
Tragically, evidence suggests that the agency's emphasis on
high-volume adjudications over quality decision making has
eroded the credibility of the disability appeals process, and,
as a result, a large number of people are inappropriately on
disability.
In addition to the problems the excessive growth has on the
truly disabled, these programs have too often limited people
from reaching their full potential. According to a 2010 paper
published jointly by the liberal Center for American Progress
and the left-of-center Brookings Institute, the Social Security
disability insurance program provides strong incentives to
applicants and beneficiaries to remain permanently out of the
workforce.
I look forward to these two hearings today and tomorrow,
and I hope to facilitate a productive discussion about how we
can fix the systemic problems in the Federal disability
programs so that precious taxpayer dollars are preserved for
the truly disabled and those that we need to work and be
engaged in work in our economy for their families are also
incentivized to be able to return to the workforce.
And with that, I recognize the ranking member on the
subcommittee, Mrs. Speier.
Ms. Speier. Mr. Chairman, thank you, and thank you for your
outstanding leadership on this issue.
During the course of the committee's oversight of Social
Security Administration we have learned that there is room to
do disability insurance better. We need to have more program
integrity, more prevention of improper payments, and more
commitment to improving quality. While the agency has taken
steps towards reform, it has become clear that some of the
concerns can only be addressed by Congress with additional
resources for quality assurance and program integrity efforts.
In April of this year, Chairman Lankford and I sent a
bipartisan letter to the Social Security Administration that
outlined several reforms and recommendations to improve the
disability adjudication and review process to restore
confidence in Federal disabilities programs. Just yesterday, I
sent a letter to the U.S. Attorney for the Eastern District of
Kentucky requesting an independent review for prosecution of
the evidence Social Security Administration has gathered with
regard to an administrative law judge and a claimant's
representative who allegedly colluded with fraudulent medical
evidence to obtain disability benefits awarded to some
thousands of individuals. And Senator Coburn has provided us
with ample evidence of those cases.
The American people expect and deserve action. I am
concerned that justice has been long delayed in this case.
Administrative actions against the judge and the lawyer have
been put on hold pending a possible criminal prosecution. White
the Inspector General has conducted over 130 interviews,
examined bank and phone records, reviewed decisions, and
collected thousands of documents to build a case, we have heard
nothing--I repeat, nothing--from the U.S. Attorney in West
Virginia. It is long past time to prosecute this case.
I would like to acknowledge the work of Chairman Carper and
Ranking Member Coburn of the Senate Committee on Homeland
Security and Government Affairs for its investigation into
these matters and reported findings released in a committee
staff report. To echo the words of Chairman Carper, while we
don't have any evidence that this is more than an isolated
case, one example of inappropriate actions of this nature is
one too many.
Our oversight has also determined that the vast majority of
administrative law judges are hardworking and strive to be
compliant with the policies and regulations of the Social
Security Administration. I do not believe that the judges
invited to testify today are representative of the judge corps.
Today the committee has invited a panel of current ALJs with
extraordinarily high allowance rates. They are not reflective
of the 1,500 judges nationally whose allowance rates averages
are much lower.
Some of today's invited judges also have alleged personal
conduct issues that also raise concerns. All four of these
judges have been evaluated by Social Security for their conduct
and performance and have received additional training and
counseling to help them become more compliant and responsive to
the policies of the agency. Two of the judges are facing or
have faced disciplinary actions for persistent conduct or
performance problems.
I don't know what this panel of witnesses can tell us. But
I would alert all members that no one should appear at this
hearing to try and influence how the Social Security
Administration conducts its actions regarding the discipline of
these specific judges. We should not thwart, influence, or sway
the legal actions that are pending against these judges.
Social Security disability benefits are an important
lifeline for millions of American taxpayers with disabilities.
It is critical that this lifeline is preserved. Our
investigation is focused on identifying improvements to ensure
that only those who meet the eligibility guidelines receive
benefits so that the truly disabled can access this important
lifeline and the American public can have confidence in the
disability determinations process.
Tomorrow, during Part II of this oversight hearing, we will
hear testimony from Social Security officials on the efforts to
enhance its abilities to oversee ALJs to ensure consistent and
quality decisions. Our investigation has shown that Congress
has not provided the funding the agency needs to fulfill its
mandate to effectively monitor program integrity and save
taxpayer dollars.
We know continuing disability reviews, CDRs, yield a return
of $9 for every $1 spent. Social Security Administration and
the OIG have also established cooperative disability
investigations programs to coordinate and collaborate on
efforts to prevent, detect, and investigate fraud in Federal
disability programs. Those efforts pay for themselves many
times over. Yet for some reason Congress has refused to fully
fund the Inspector General and the agency to carry out its
program integrity efforts.
I hope all of my colleagues would agree that given the
results of various quality improvement measures and program
integrity efforts we should ensure that the agency has
sufficient funds to address alleged ALJ misconduct, review ALJ
decisions for errors and policy compliance, and conduct all its
scheduled continuing disability reviews and continue other
program improvements.
I look forward to hearing the testimony from today's
witnesses as well as tomorrow's testimony from the Social
Security Administration officials on improving the disability
appeals process and how Congress can support and enhance these
efforts.
With that, I yield back.
Mr. Lankford. And I would like to add that I also concur,
this is not a judicial proceeding today, this is a
congressional hearing. So this is not about trying to pull out
additional information that may be used by the Social Security
Administration in the days ahead on any actions they may take.
Members will also have 7 days to submit any other opening
statement they would like to put on the record as well.
I would like to welcome our second panel of witnesses
today. Mr. Harry C. Taylor II is an administrative law judge
for the Social Security Administration, Office of Disability
Adjudication and Review, in Charleston, West Virginia.
Mr. Charles Bridges is an administrative law judge for the
Social Security Administration, Office of Disability
Adjudication and Review, in Harrisburg, Pennsylvania.
Mr. Charles Krafsur is an administrative law judge for the
Social Security Administration, Office of Disability
Adjudication and Review, in Kingsport, Tennessee.
And Mr. James A. Burke is an administrative law judge for
the Social Security Administration, Office of Disability
Adjudication and Review, in Albuquerque, New Mexico.
Gentlemen, thank you for being here.
Pursuant to committee rules, all witnesses are sworn in
before they testify. If you would please rise, raise your right
hand.
Do you solemnly swear or affirm the testimony you are about
to give will be the truth, the whole truth, and nothing but the
truth, so help you God?
Thank you. You may be seated.
Let the record reflect the witnesses have answered in the
affirmative.
In order to allow time for discussion, I will ask each of
you to limit your testimony to 5 minutes. Of course, your
entire written statement will be made part of the record.
I'd Like to recognize Mr. Taylor for an opening statement.
STATEMENT OF HARRY C. TAYLOR II
Judge Taylor. I'm Harry C. Taylor, the----
Mr. Lankford. Mr. Taylor, can I have you push the--there's
a talk button right in front you. Apologize for that.
Judge Taylor. I'm sorry.
Mr. Lankford. No, that's fine. This is new for everybody on
it. There's a little button that's in front of you. If you'll
hit that when you talk and that will put your microphone on.
When you finish, if you'll turn that off, and we'll make sure
that we're not getting your side conversations as well.
Mr. Taylor, you're recognized.
Mr. Tierney. I'm Harry C. Taylor II. I'm a United States
administrative law judge currently assigned to Charleston, West
Virginia. I was asked to provide input concerning the role of
the administrative law judge and how decisions are made.
Basically, the ALJ is the third layer in the administrative
process which a claimant must go through in order to apply for
Social Security disability benefits. Additionally, it's the
only level where the claimant has a right to a due process
evidentiary hearing in order to present his or her case.
The ALJ will conduct an evidentiary hearing wherein the
claimant has certain due process rights to present evidence on
his or her behalf, to cross-examine expert witnesses, to appeal
an adverse decision, and to obtain counsel, as well as experts
to assist in the presentation of his or her case. Due process
involves giving the claimant every opportunity to prove his or
her entitlement to benefits and perhaps to help him or her
obtain evidence helpful in their case, if unrepresented.
On the ALJ's part, due process involves being open minded
until the evidentiary hearing and the record are closed. After
the hearing is closed, the record is closed, the ALJ must make
a written decision as to the claimant's entitlement to benefits
or whether he or she should be denied. In so doing, the ALJ has
help from clerical staff, paralegal and attorney writers,
medical experts, and vocational experts. The ALJ must consider
the facts of each case, the applicable agency regulations, and
of course the applicable law. One's experience is also helpful
in making an informed decision.
A decision adverse to the claimant may be reviewed by the
Appeals Council in Falls Church, Virginia. A decision adverse
to the claimant that is affirmed by the Appeals Council may be
appealed, too, and reviewed by the claimant's geographical
Federal district court. If adverse again, the decision may be
reviewed by the pertinent Federal appeals court.
Although most appeals stop here, it's possible that the
United States Supreme Court may review the adverse decision.
And of course there's no restriction on a claimant filing again
for benefits and going through the process again.
In my case, I prefer to review a case assigned to me as
early as possible in the process. This allows me to identify
the issues in the case and make notes, both written and mental,
to determine what is needed to complete the record and to
determine the need for experts, such as medical, psychological,
or vocational. I make a point to stay balanced and keep an open
mind on each case until it's closed and ready for a decision.
In making a decision as to disability, the Social Security
ALJ must always use the sequential evaluation process as
defined by Social Security regulations. This process involves a
logical way of thinking for the ALJ who must make a decision as
to disability. And the sequential evaluation process includes
five steps.
The first step is referred to as what we refer to as
substantial gainful activity. Is the claimant engaging in
substantial gainful activity? If the claimant is engaging in
SGA, this is an automatic denial, and the process stops there.
If the claimant is not engaging in SGA, the ALJ will then go on
to step two. As to what constitutes SGA, it is a level which is
changed every year.
Second step involves determining whether the claimant has
a, quote/unquote, ``severe impairment.'' A severe impairment is
by definition one that has significant impact on one's life and
which decreases a person's RFC or MRFC to perform SGA. If the
claimant does not have a severe impairment, the claimant is
found to be not disabled and the process stops there.
If, however, a severe impairment is found, then the process
goes to step three. Studies have shown, of course, that not a
lot of claims are denied at this step. Step three involves a
finding of whether the claimant's impairment or impairments
meet one of our listed impairments in the CFRs, or whether the
impairment/impairments in combination would equal any of our
listed impairments.
An ALJ may decide whether there is a meeting of a listing.
Often, though, listed impairments are those medical or mental
conditions deemed to be so bad by experts that those conditions
meet the severity would be considered to be totally disabled
and unable to work.
If the claimant meets or equals the listing, the claimant
is found disabled and the process stops there. If the claimant
does not meet or equal the listings, the process goes to step
4.
Step 4 involves whether a claimant can return to past
relevant work, or PRW, as we call it. In other words, if a
claimant's impairment is such that he or she can return to past
relevant work, the claimant is denied benefits and the process
stops there. If, however, a claimant's impairments are such
that he or she is precluded from being able to perform past
relevant work, then the process continues to step 5.
Step 5 involves whether there is any other work which
exists in significant numbers which the claimant can do despite
his or her limitations. At this step, if the claimant cannot do
past relevant work, the burden shifts, at step 5, shifts to the
Commissioner to show that there are jobs that exist in
significant numbers which the claimant can do despite his or
her impairments.
In its decision, the Fourth Circuit, of which West Virginia
is part, has stated that vocational experts are necessary at
step 5. I don't know about any other location, but if we're
going to deny one at step 5 in West Virginia, we need a
vocational witness at step 5.
A hypothetical question to the VE will include all the
claimant's limitations and impairments. If the VE finds no
jobs, the process is complete and the claimant is found
disabled at step 5. If the VE finds there are jobs which the
claimant can do based upon his or her limitations, the VE will
state what those jobs are, what the number of those jobs are in
the national economy, and whether his or her testimony on those
jobs is consistent with the Dictionary of Occupational Titles.
The claimant's counsel is permitted to cross-examine the
VE. If there are no jobs available and if the ALJ agrees with
the vocational witness, the claimant is found not disabled at
step 5. By regulation, the sequential evaluation process must
be used in all cases involving disability.
Certain cases can be decided at step 5 using our vocational
rules, our so-called Grid Rules, which I'm sure the committee
is aware of. Grid Rules are rules set forth in the CFRs wherein
if a claim is limited to a certain RFC, have had a certain set
of skills during their life, or are of a certain age, then the
particular Grid Rule will dictate a finding of disabled.
Mr. Lankford. Mr. Taylor, can you wrap up this part of it
fairly quickly?
Judge Taylor. With regard to my own bio, as humble as it
is, I was born and raised in Wheeling, Ohio County, West
Virginia, ranking second in my high school class. I went to
West Virginia University, there graduating as an honor student.
I received an academic scholarship to attend the George
Washington University here in Washington, D.C. I spent a year
in D.C. studying here. I got a master's. In between serving 5
years as a military officer, I was able to earn my law degree
from the law school at West Virginia University and my
doctorate of philosophy degree from the graduate school at West
Virginia University.
I've always been a person driven to work, with very few
hobbies except those of my children. My dedication and
attention has always been on my workdays, nights, and even
weekends. I enjoy work. Even though I have always felt the need
to work, I have never failed to include my family time in my
thoughts and efforts. People would call me a workaholic.
I believe this need to work came from the times in which I
was raised. At the end of World War II, Americans knew that if
they wanted to make something of their lives they had to work
hard, get an education, and above all be a loyal American. This
is how I was raised and this is how I live.
I would like to make a note that when I was in private law
practice, my background was in medical legal issues. I was
largely involved in personal injury, workers' compensation,
Social Security. And I have completed certain continuing
education classes in those issues and have completed two 6-week
classes in medical terminology.
Mr. Lankford. Thank you, Mr. Taylor.
[Prepared statement of Judge Taylor follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. Before we move on, we are obviously well
aware that we have some storms in the area. There is flooding
and everything else that is happening. Someone's phone is
notifying them frequently. If that happens to be yours, if you
could try to silence that as quick as you can when that goes
off so that we do not enjoy the reminder every few seconds here
that we are having storms in the area.
Mr. Bridges, you're recognized.
STATEMENT OF CHARLES BRIDGES
Judge Bridges. Good morning, members of the U.S. House of
Representatives Committee on Oversight and Government Reform.
My name is Charles Bridges. I am an administrative law
judge for the Social Security Administration, Office of
Disability and Review, located in Harrisburg, Pennsylvania.
I want to start off by saying a hearing before the ALJ is
de novo and impartial. This is required by the Federal
Administrative Procedures Act, known as the APA. The ALJ has
been granted independence to render decisions under the APA
without agency interference and a decision is issued in his own
signature on behalf of the Commissioner of SSA.
This hearing is not, however, adversarial. The ALJ
considers the full record, has access to medical, vocational,
and psychological experts, as well as treating sources and any
other sources he or she may deem necessary in order to render
informed decisions. More importantly, the judge is given an
opportunity to observe the demeanor and candor of witnesses and
make credibility assessments.
The decisions of the ALJs at this level are appealable to
the SSA Appeals Council. The decision may be appealed directly
to the United States District Court. The Appeals Council
renders a post-decision review of a judge's decision. I have
been recently reviewed with no adverse findings.
At the hearing at the office level the HOCALJ is
responsible for supervising and distribution of disability
appeals cases to subordinate judges. However, HOCALJs do not
physically perform this function. Since the electronic age,
cases are distributed rotationally as far as practical by lower
management officials called GS's. The GS's distribute those
cases. There are exceptions to this process. The exceptions are
factors that involve terminal illnesses of a claimant, military
personnel injured in Active Duty, and also claimants who have
dire need.
The Group Supervisors are also responsible for the match-
up, assembly, collection, organization, and preparation of the
claimant's file for the judge to hear. This is called working
up a file.
Recently, I was referenced in a Harrisburg, Pennsylvania,
CBS local affiliate television station which reported waste,
fraud, and abuse in government. This report came inaccurate,
false, and misleading numbers concerning my record as a judge
and misconceptions concerning the Social Security disability
and supplemental insurance program.
I have been specifically mentioned in prior testimony
before this committee by employees of the Social Security
Administration. This Harrisburg CBS affiliate reported a figure
of $4.6 billion dollars of taxpayers' money--how erroneous a
statement was that--and was contributed to my record. The
numbers were not verifiable, factually inaccurate, in my
opinion an unfortunate example of irresponsible and
sensationalist journalism.
Further, significant points I wish to make, emphasize here,
that at the conclusion of the Inspector General report in
August 2008, pursuant to request of Honorable Michael R.
McNulty, House of Representatives, Chairman, Subcommittee on
Social Security, Committee Ways and Means, concerning
``Administrative Law Judge and Hearing Office Performance,''
called as Congressional Response Report #A-O7-O8-28094, which
was dated August 8, 2008. That report provided significant
review of the roles of the poor performance of administrative
law judges with SSA. The central problem addressed by this
Congressional report was to reduce the backlog of SSA cases.
Congressional Report #A-07-08-29094 concluded in its executive
summary the following things. SSA was facing the highest number
of pending cases, highest average of cases of processing time,
ever since the inception of the disability program. As of April
of 2008, there were over 755,000 cases awaiting decisions at
the hearing levels. Furthermore, in fiscal 2008, ALJ processing
time averaged 505 days in April 2008. While the average number
of cases processed for ALJ has increased from fiscal year 2005
to fiscal year 2007, some ALJs continue to process cases at
levels below agency expectations to increase ALJ productivity.
Congressional Report, I repeat, #A-07-08-29094 further
concluded: Our interviews disclosed that ALJs have varying
levels of productivity due to factors such as motivation,
number one, and work ethic. In fact, our interviews with
RCALJs, regional chief administrative law judges, disclosed
that motivation, number one, and work ethic were one of the
main factors that contributed to higher or lower productivity
of ALJs.
The reference of the 2008 congressional response report is
supportive of two essential points that I want to make here
today. The first point is there are many factors affecting the
productivity of SSA administrative judges. However, the 2008
congressional report cited motivation and work ethic as the
main factors in this area.
A highly productive judge would necessarily have more cases
on which a sample may be taken. I have been a highly productive
judge in the Social Security Administration because of my
motivation and work ethic. According to statistics produced by
administrative law judges and hearing office performance audit
of 2007 of the Harrisburg, Pennsylvania, office, under
supervision myself, we had an average processing time of 265
days. This processing time was the best SSA time in the United
States. And, in fact, this fact placed the Harrisburg office as
one of the most well run offices during my tenure at HOCALJ.
The second point I wish to make, it is clearly misleading
and factually inaccurate to suggest that there is or should be
a numerical basis on which to compare administrative law judges
on their outcomes on the adjudication and the disposition of
Social Security appeals. When the public hears statements that
a judge approves X percentage of cases assigned to him or
reverses a denial of benefits X percent of the time, these
figures are misleading to the public. They are simply contrary
to the law, in violation of the Federal Administrative
Procedures Act and United States Constitution for an
administrative law judge to make an adjudication of the
entitlement to Social Security benefits on the basis of any
factors that are outside the record of that particular case.
As noted, judges apply the facts to the law and the record
before him or her and concludes whether or not that claimant
meets the legal requirements of disability. Any judge who
considers factors outside the record of that case would commit,
in my opinion, a gross violation of the rights of that
claimant. When any person uses a numerical figure which to
compare judges and the outcomes, that suggests an impermissible
and unlawful use of quotas, q-u-o-t-a-s, quotas.
In conclusion, after the claimant is successful in
receiving an award of benefits, there is a process in place and
funded for a post-audit review to determine if those conditions
resulted in award still exist. It was apparent that post-audit
reviews were not being conducted. That is an issue not of the
ALJ's concern. That is agency issue and a powers--a separation
of powers issue to be concerned with that.
That's why a preposterous figure of $4.6 billion was tossed
out in my particular case because there evidently and could not
have been any post-audit reviews. Because if you consider one's
lifetime, starting about 25 to go up to about 80, and figuring
some figure, I don't know how it could be determined $300,000,
this is preposterous. We hear no cases, set of cases that has
these kind of specific parameters. There are too many changed
circumstances by which we cannot make a determination that no
one fits that particular parameter at all.
And all I can say is that those two factors come into
place, work ethic and motivation. Without those--those are the
driving factors. And that was found by this Congress--not this
Congress, but a previous Congress in their report. And this was
what they said was the factors that are motivating the judges
to do what they do.
And I have been reviewed. And the APA gives the
administrative law judge the independence, the independence to
make those decisions. That's why we see those disparity. But,
evidently, the Congress decided when it passed the APA that we
would have these disparities, that those disparities was not
outweighed by the public good of providing good service to the
public--to the public.
Thank you, distinguished committee, for your time and my
testimony.
Mr. Lankford. Thank you, Mr. Bridges.
[Prepared statement of Judge Bridges follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. Mr. Krafsur.
And by the way, I don't know who still has that phone going
off, but if we could identify it somewhere.
Judge Bridges. I am the guilty party. I have done something
about it.
Mr. Lankford. Thank you.
Mr. Krafsur.
STATEMENT OF GERALD I. KRAFSUR
Judge Krafsur. Good morning. I am here because of a
friendly subpoena kindly issued by this committee. I am here
also to report to this committee and the Congress of the United
States that SSA, and in particular ODAR, has seriously
interfered with my First and Fifth Amendment rights. The SSA
has been harassing me with a series of Merit System Protection
Board disciplinary complaints, the first of which has been
recently dismissed. I will be filing a complaint with the
Office of Special Counsel in this matter for retaliation and
whistleblowing through my attorney, Charlton R. DeVault.
My name is Gerald I. Krafsur. I am an administrative law
judge assigned to the Social Security Administration position
in Kingsport, Tennessee, ODAR office.
I want to give you my adult background. I served in United
States Army. Thereafter, I graduated from Babson Institute, now
known as Babson College, in Wellesley, Massachusetts, in June
of 1959, with a bachelor of science degree in business
administration.
In May 1962, I received my master's degree in business
administration from Wayne State University in Detroit,
Michigan, where I assisted faculty in Teaching Management Line
and Staff. In 1962, I began my employment with the Ford
Division Ford Motor Company, in its Product Planning Office and
varied other company activities.
In 1968, I was encouraged by Ford executives to apply for
law school. In June 1971, I was awarded a doctorate degree in
jurisprudence from Wayne State University. Shortly thereafter,
I entered the practice of law, during which I was co-counsel on
several major cases, among those Bass v. Spitz in the Wayne
County Circuit Court, Detroit, Michigan, and Michael Baden v.
Mayor Edward Koch, in the Eastern Federal District in New York.
After 20 years of litigation in the private sector, I was
awarded the opportunity to serve as an administrative law
judge. On July 18th, 1991, I was officially appointed
administrative law judge, the Office of Appeals, Social
Security Administration, Department of Health and Human
Services, assigned to the OHA office in Detroit, Michigan.
In the mid-1990s, the Social Security Administration Office
of Hearings and Appeals, now known as ODAR, directly came under
control of SSA. Thereafter, the functions of line and staff
began to merge contrary to sound management practice.
I will now describe what was and has always been since July
18, 1991, my constitutional duties as administrative law judge.
During ALJ training in July and August of 1991, we were taught
what is commonly known as the three hats.
The first hat is my responsibility to perform my
constitutional duties, uphold the Constitution of the United
States, administer the Federal rules and regulations as they
apply to SSA, and administer SSA rules and regulations together
with Federal court decisions as they apply to SSA cases and
conduct fair and impartial hearings.
Second hat. This hat involves protection of claimants'
rights before, during, and after their application for
disability benefits. This is performed in a nonadversary formal
hearing by matching claimant testimony with medical and
vocational testing records presented by representatives and/or
individual claimants.
Third hat. To represent the best interests of the Social
Security Administration to protect the integrity of the Trust
Fund. That hat is why I believe I was originally requested to
appear before this committee. SSA has never provided me with
evidence of disability that I could personally verify. I am
restricted from deposing any and all individuals who generated
the records provided me. ODAR hearings are the only forum where
one side presents evidence and the other side, namely the SSA,
fails to provide the same.
In order to overcome the deficiency, I have requested SSA
to perform a series of medical, psychological, and psychiatric
tests on various claimants. I realize the cost of this may be
expensive. If these functions cannot be completed as described,
then SSA should enable me to depose any and all parties who
generate any document which is presented to me in the formal
hearing. SSA may believe written interrogatories are effective,
but any litigator knows cross-examination under oath and live
testimony are critical. I believe if I had the authority as
outlined, my favorable decisions versus unfavorable as a
percentage would be diminished.
Now I would like Congress to investigate the mismanagement
and misconduct of SSA officials in authorizing secret job
evaluations in violation of the Administrative Procedures Act
by conducting what is known as post-effectuation reviews of
final decisions. SSA is using this secret process to listen to
tapes and analyze decisions in violation of the Privacy Act and
the APA. The SSA then uses the information to seek removal of
ALJs from service.
Before closing, I have three recommendations. First, ODAR
be physically separated from SSA and function independently
with a separate budget. Secondly, have all ALJs present and in
the future attend the National Judicial College to be taught
the three hats. The college would be required to seek input by
SSA and other organizations necessary to undertake the task as
mandated by Congress and watched over by an independent body.
Thirdly, on record reviews by the Appeals Council of favorable
decisions should be abolished and replaced by a direct appeal
to the appropriate Federal district court prevent SSA from
getting a second bite of the apple.
Having heard thousands of disability cases, I have never
had any case returned by the Appeals Council because the
claimant was not disabled.
In closing, I would like to thank each and every one of you
for my kind invitation.
Mr. Lankford. Thank you, Mr. Krafsur.
[Prepared statement of Judge Krafsur follows:]
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Mr. Lankford. Mr. Burke.
STATEMENT OF JAMES A. BURKE
Judge Burke. Mr. Chairman, members of the
committee,colleagues, first of all, I want to congratulate my
colleagues for their excellent opening statements. I am Judge
Jim Burke, from Albuquerque, New Mexico.
First and foremost, I want to object to the fact that we
are here following Senator Coburn excoriating a dishonest
situation in Huntington, West Virginia. As Mr. Cummings
mentioned, it's not right to paint us with the same broad brush
following a case like that. If I were in court representing a
client behind a terrible case like that, I would get a
continuance so it wouldn't spill over on us. So I don't want
anybody in this committee putting us together with that
situation in Huntington.
My personal background is I was born on Welfare Island in
New York City in 1943. My father was James Joseph Burke, he was
the son of Irish immigrants. He was killed in action in March
of 1945 when my sister and I were babies. My mother, Madeleine
Burke, raised us with her hard work, veterans' benefits, and
Social Security benefits. So we know how important those
benefits are.
I got to go to a municipal college in New York, Hunter
College in the Bronx. After I graduated, I went into the Army.
I served in the armored division in--the armored brigade in
West Berlin. And when I got out, I applied to Hastings College
of Law in 1968 and got my law degree in 1972. I graduated with
honors, top 10 percent. I wrote a Law Review article about
suing the United States Government by individual citizens.
In my practice, I represented people in employment--working
people--in employment litigation, workers' compensation,
insurance problems, personal injury, and Social Security
disability. As part of that representation, I learned the
close-up dynamics of the legal practice concerning injuries and
disease, including scrutinizing medical records under the
pressure of a busy and contentious plaintiffs' practice.
I also learned of the dynamics that illness and injury and
mere unemployment have on individuals and their families.
That's a breadth of experience that many ALJs don't have. I was
appointed in July 2004--next month is my 10-year anniversary--
during the Bush Administration. I served in Spokane and now in
the Albuquerque office. But I am comfortable in the 10 years of
my judgeship and in the 30 years of my practice in quickly and
with particularity evaluating claimants' testimony, witness
statements, and medical records as my high pressure trial
practice trained me for in New Mexico.
Now, we have heard a lot about people getting benefits when
they weren't entitled to that. But we see a lot of benefits
being denied below, and I am happy to make decisions reversing
that process. One egregious case was a gentleman who lost his
leg and an eye to a Viet Cong booby trap and was told that he
was too fat and if he lost some weight he wouldn't have to take
off his artificial leg during the daytime. I was very, very
honored to be involved in that case. And that is not fraud, but
it certainly does speak to the other side of your concern about
the integrity of the program.
I think the other gentlemen have done a very good job of
informing you about the Social Security procedure. And I have
got a couple of seconds left. I would like to introduce my
daughter, Johanna Conroy. She is a 9/11 survivor, and she has
been with the Office of Emergency Management and in that area
since 9/12. And I am very happy to have her come down from New
York to give us some support.
Thank you.
Mr. Lankford. Thank you.
[Prepared statement of Judge Burke follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Lankford. And thank you to all of you for being here.
I will try to honor the 5-minute clock time for our
questions, make sure that all of us have the opportunity to be
able to ask questions today. And then we will have a second
round if time permits as well to be able to go through that,
and I will try take the lead on that.
Judge Taylor, let me start with this. You did a good
outline of the sequential evaluation process on this. I think
that some of the questions that we have, because we interact
with individuals that met the qualifications for disability,
but when we interact with them don't see the same sequential
process to be there. Three years ago I had the opportunity to
be able to interact with a gentleman at an event. He was very
active, he was very involved. He was asking me questions about
Social Security. I asked him if he was on Social Security
disability. He told me yes. He was about 26 years old. He was
very engaged in what was happening that day. And he told me he
was on ADHD medication, so he was on Social Security disability
for, I assume, for life on that.
So as we interact with individuals like that, the question
rises up immediately, how did they not meet the--all these
severe impediment, the listings, the past relevant work, any
other work that they can do in the economy becomes a challenge
for many of us that interact with people as well as individuals
that we interact with at home. So the challenge is, as you work
through this vocational grid, how much pertinence do you put on
this fifth one, they can't do any other work in the economy?
Judge Taylor. Every step in the process is important. Most
of our cases are ended up being decided at step 5. At least I
think back in West Virginia, back in the Fourth Circuit, I
think most are.
I remember when I was in private law practice, the first
case, the first Social Security case that I ever----
Mr. Lankford. By the way, I hate to interrupt you, but keep
your answers short because we are going to try to keep to this
5-minute clock.
Judge Taylor. Okay. We try to analyze the evidence as best
we can. I use my background in medical terminology to try to
determine what the doctors are saying. But if you have a
claimant who is a young man like you mentioned, he might have
diabetes. And if he has diabetes, he might have diabetic
retinopathy. If he has diabetic retinopathy, he might be going
to Johns Hopkins clinic to get laser treatments for his eyes.
If he's getting laser treatments for his eyes, he might be
under a 5-pound weight-lifting restriction.
Mr. Lankford. Okay. I understand all that, except for my
aunt, who has been in a wheelchair for 35 years, who lost her
right leg to cancer, who is a diabetic, who is also blind in
one eye, has worked as a receptionist for 35 years. She just
retired at 69 last year. Excuse me for saying a lady's age out
loud. That makes sense in that sense except for the transition
to work. The requirement is any other work in the economy. And
that is the grand challenge that a lot of us face. And there's
a lot of individuals that have capability, they have skills,
they have assets to be able to give much to their family and
the economy, they seem to be slipping through this.
Mr. Taylor, have you received some awards of excellence
over the past couple of years? You have submitted to our staff
some of those awards.
Judge Taylor. Sir, I did include those. The agency has got
to be very careful in doing that. Judges are not supposed to
accept awards. We are not supposed to be allowed to work
overtime. We are not allowed a lot of things. But on those
particular occasions, yes, I got a few letters.
Mr. Lankford. It seemed that the letters and awards seemed
to be about either processing time or disposition of cases or
the number of cases. That seems to be what the agency was
affirming, was the number of cases. Was that consistent for you
as well?
Judge Taylor. Yes, sir.
Mr. Lankford. Mr. Bridges, can I ask you a question as
well? I went through some of the focused review on some of your
cases. As I walked through them, a couple of them popped out to
me. This one in particular. This one said, the bench decision
check list stated--I'm going to leave the names out on this--
filled out an employability assessment form September 2011
advising the claimant was temporarily disabled due to
degeneration of his lumbar. However, no such medical opinion
evidence or employability assessment form was actually in the
record. Neither the ALJ nor the representative asked the
claimant any questions regarding his impairments. Rather, the
ALJ asked the representative whether the claimant had a gait
and had difficulty walking, which the representative answered
in the affirmative, and then was actually, that person was
found there.
Have you had moments that you have not seen medical
evidence in the file, but you have interacted with someone and
made a judgment call in medical history, though there was not a
medical record in the file?
Judge Bridges. Well, it's sometimes difficult to match up,
that you may not see it at that particular time, but that
evidence constantly flows back and forth. What I think needs to
be done is that there needs to be a better system of matching
up evidence, the flow of evidence to the file, because many
times evidence, particularly with the new electronic age,
evidence is not coming till after proceedings or you don't get
it before or other times, but sometimes you do get it, you get
it in----
Mr. Lankford. So let me just ask this because we are about
to run out of time. So you don't have all the evidence at the
time of the decision-making time, or the time of the actual
hearing. How do we actually compel that? Because you don't need
to make a decision until you actually have all the evidence to
be able to gather that. Or you're making a judgement call on
something you don't have medical evidence in front of you.
Judge Bridges. Well, sometimes you are--in order to
expedite cases, you are--you know that the evidence is there.
The attorney cite to the evidence or he will try to get the
evidence or I will get the evidence to you.
But what we do many times, it's very difficult because of
the fast flowing of information. There needs to be better
cutoff times, times set for the receipt of evidence, and that
comes into the file.
I can't state specifically as to this case what happened.
But the thing is that evidence should be there when I look at
it. If it is a bench decision, bench decisions were approved by
the Social Security Administration as a way of cutting down the
backlog for judicial economy and efficiency and that is done at
a hearing. A bench decision means bench. It is a decision that
is done over the bench, which you conduct a trial and all the
legal requirements are there when you make the decision.
Mr. Lankford. Thank you, Mr. Bridges.
Judge Bridges. I am saying it must have been there or I
can't recall every specific case. But we do look for that
particular evidence. And sometimes the reviewing group make
mistakes as well.
Mr. Lankford. I understand. I understand. I didn't mean to
cut you off because I want to pass this on. Just the concern
is, is that the people that were before you have made a
decision on this. When it came to you at times it seems like
some of the medical evidence wasn't there, whatever it may be
that was coming is not in a file, and you have a 93 to 95
percent overturn rate. And that is the concern.
Let me pass this on to Mr. Cummings. Recognize Mr.
Cummings.
Judge Bridges. Well, can I say, I can't say specifically to
every case because we hear a lot of cases. But what I am saying
is that we do--I do look at the evidence. And I go through--I
work very hard and I view the evidence when I do it.
Now, as I said before, the Administrative Procedures Act,
each individual case is peculiar to that person. And what we do
is we make a very diligent and careful effort to make sure that
that person gets due process. We don't put everybody into one
category and say that everybody----
Mr. Lankford. I understand.
Judge Bridges. As I said before, that could be a quota. But
we decide that, well, only 30 percent of the people should get
disability. Each and every individual is entitled to his own
disposition of his case.
Mr. Lankford. Sir, I'm going to interrupt you for just a
moment because I want to continue to pass this on. We
understand that very well. We're just trying to find out today
how we are following the process that is stated by SSA.
Judge Bridges. Well, I just want----
Mr. Lankford. Sir, sir, sir, hold on. You will have plenty
of moments to be able to respond. I want to be able to make
sure I honor everyone's time on the dais.
Mr. Cummings is recognized.
Mr. Cummings. Mr. Burke, I listened to all the testimony
very carefully. And we face a problem here, and I think--I'm
asking you because I could--I think I need to ask you this
because you came at the end. Do you agree that, I mean, that at
some point--we got a problem. We want judges to have
independence, which they should have.
But do you agree that at some point questions should arise
if procedures are not being properly followed by those judges?
Because we want equal protection under the law, we want due
process for all people. I mean, are you there?
Judge Burke. Mr. Cummings?
Mr. Cummings. Yes.
Judge Burke. Yes.
Mr. Cummings. If you can make your answer as brief as you
can. I know it's a tough question.
Judge Burke. Procedures, as a matter of law and procedures,
they can be reviewed by the agency. But the principle of
judicial independence which we have under the Administrative
Procedure Act and of which I was assured when I left my
practice to come to this job is very important.
There are countries south of our border where the society
has lost faith in their judges because they are seen to be
under the thumb of the government. Now, you might get some bad
choices when you hire an ALJ and want to regret it. But it is
the best system that we can devise, just like democracy in
general. It doesn't always work, but there is nothing better.
If you----
Mr. Cummings. But would you that agree that you have got to
have some procedures and those procedures should be followed? I
mean, I just was listening to Mr. Bridges and I was just--it
sounded like he was saying that there is evidence that may come
in later after the hearing that you then might consider. I
mean, is that----
Judge Burke. Sure, yes.
Mr. Cummings. So that happens?
Judge Burke. Yes.
Mr. Cummings. All right.
Judge Krafsur, I want to thank you for being here. I think
you know that you were invited today because you have a record
of awarding disability benefits over 90 percent of the time.
Have you ever been told by the Social Security Administration
the way you make disability determination decisions does not
comply with agency policy?
Judge Krafsur. Yes.
Mr. Cummings. And what did you--what did they tell you?
Judge Krafsur. They just arbitrarily said that. Didn't
explain why they disagree with it. They just don't agree with
it. And if you see this form here, this is the form that I fill
out and review every case before me. It's right here. It has
186 different ailments on it. I have--and you see marked in
yellow just----
Mr. Cummings. What is that form?
Judge Krafsur. This is a form that I use when I----
Mr. Cummings. This is your personal form?
Judge Krafsur. This is a personal form.
Mr. Cummings. Okay. This is not something that was put out
by the Social Security Administration?
Judge Krafsur. That is correct.
Mr. Cummings. All right. Well, let me go on.
Now, at the present time, you are subject to disciplinary
action, are you not?
Judge Krafsur. That's correct.
Mr. Cummings. And, Judge, we have an agency's complaint
against you, which says this: ``Respondent conducts hearings
and makes decisions in accordance with his own theories rather
than the process required by the agency.'' Is that true? And do
you have your own theories for awarding benefits?
Judge Krafsur. No, sir, I don't have that at all.
Mr. Cummings. All right.
Judge Krafsur. I use--there is something called diagnosis
produces this illness. I use what is known--same thing. I call
it cause and effect.
Mr. Cummings. Okay. So you're saying you do follow
procedure.
Judge Krafsur. Exactly.
Mr. Cummings. Okay. And if you followed the agency--let me
ask you this. Let me read again from the complaint. It says
that during a hearing in 2011 you said this: ``Every certifying
nurse assistant I ever had had the same thing you have. They
are all female. They are all fibromyalgia, or what I call post-
traumatic stress syndrome, 100 percent of them because of what
happened as a child.''
Did you say that?
Judge Krafsur. Well, what basically happens, these people
are nervous when they appear before me. So to make them more
relaxed, I told them that. - that's my evidence. I have 5,000
or 6,000 women, some of them are CNAs who are before me, every
one, fibromyalgia, has been caused by some post-traumatic
stress syndrome.
Mr. Cummings. So you went on to say--let me make sure we
get the whole picture in here--at another hearing, you said
this: ``One hundred percent of certified nurse assistants have
been abused. Anyone that is a CNA has automatically been
abused.''
Judge Krafsur. No. They took it out of context. And that's
the people that appear before me, not everyone in the United
States.
Mr. Cummings. But 100 percent of the--you were saying that
100 percent of the certified nurse assistants that have
appeared before you----
Judge Krafsur. That's correct.
Mr. Cummings. --were abused.
Judge Krafsur. That's correct.
Mr. Cummings. You said that.
Judge Krafsur. That's correct, because I have evidence to
show it. I have testimony in every case I have had when CNAs
were there to show what I just got through saying, what you
just got through addressing.
Mr. Cummings. Okay. I understand that the agency conducted
what is called a focused review of some of your decisions. This
was followed by a consultation with you and additional
training. Were you instructed to stop using your own theory for
determining medical impairments?
Judge Krafsur. Not in those exact words.
Mr. Cummings. Yeah. Yeah. Did they tell you to do it
differently?
Judge Krafsur. No.
Mr. Cummings. They didn't say you could continue to do what
you were doing, did they?
Judge Krafsur. No, but they----
Mr. Cummings. Then what did they tell you?
Judge Krafsur. They basically told me at the time that I
couldn't use cause and effect. And I tried to explain to them
it wasn't cause and effect, just my terminology to make it
simple was diagnosis resulting in ailments. That's all it is.
Same thing.
Mr. Cummings. Did you stop applying your theory for
determining medical impairment?
Judge Krafsur. I never had a theory. It's not my theory.
Mr. Cummings. And--okay.
Judge Burke.
Judge Burke. Yes, sir?
Mr. Cummings. And then I am finished, Mr. Chairman.
When you have a situation where a person has taken a lot of
cases--it sounds like Coburn, Senator Coburn talked about the
former head of Social Security kind of pushing cases in, we got
to get these cases done--do you think that has an impact on--I
mean, what impact did that have?
Mr. Bridges seemed like he thought that it has some type of
impact on getting judges to move cases along. And what impact
does it have on the decisions, though, and the percentage of
decisions?
The thing I am also worried about is the chilling effect
that these hearings will have on people who have legitimate
problems.
Judge Burke. Yes.
Mr. Cummings. Go ahead.
Judge Burke. You are absolutely right, Mr. Cummings. Until
2008, 2009, we were told that there was a backlog of 600,000
people for whom--who had been waiting longer than the tolerant
waiting measures of Social Security. We were told to try to
address that 600,000 people.
Since 2011 or 2012, Chief Judge Bice advised us that we
could only do 800 cases a year. What happened to those 600,000?
They are still there. They are still waiting inexcusably long
periods of time. In Albuquerque, 3 years between application
and hearing is not unusual. And that's not right.
I know you have to try to save the government money, but
you should also look to the fact that hiring new--more ALJs
with more support staff is one good way of not only addressing
that problem, but also helping to support more uniformity in
the ALJ corps.
Mr. Cummings. Thank you, Mr. Chairman.
Mr. Lankford. Mr. Issa. Sorry. Mr. Mica.
Mr. Mica. He has a bigger nose.
Mr. Lankford. Yes.
Mr. Mica. Thank you.
First of all, let me ask a couple of questions in general.
I guess you all get the same salary. How much are you earning?
Mr. Taylor?
Judge Taylor. I am not sure.
Mr. Lankford. Microphone.
Mr. Mica. What's your annual salary?
Judge Taylor. I'm sorry. I am not sure what that is right
now.
Mr. Mica. Do you know, Mr. Bridges, what your salary is?
Annual salary.
Judge Bridges. One sixty-five.
Mr. Mica. One sixty-five. About the same--Mr. Krafsur, do
you get more because you have been on the bench longer? All the
same?
Judge Krafsur. All the same.
Mr. Mica. Is it a lifetime appointment?
Judge Taylor. Yes.
Mr. Mica. Lifetime appointment.
Judge Krafsur. Yes, it is. Until the MSPB reviews our cases
and may remove us.
Mr. Mica. Now, you are on suspension, Mr. Krafsur.
Judge Krafsur. No, administrative leave.
Mr. Mica. Administrative leave. You getting paid while
you're on administrative leave?
Judge Krafsur. That's correct.
Mr. Mica. Okay. You're reviewed from time to time. How
often? Is everyone reviewed the same? When was your last
review, Mr. Taylor, your performance?
Judge Taylor. I'm thinking within the last----
Mr. Mica. Focused review. When was that done?
Judge Taylor. I'm thinking within the last 2 years, sir.
Mr. Mica. Mr. Bridges?
Judge Bridges. What are you talking about?
Mr. Mica. Your focused review.
Judge Bridges. Focused review.
Mr. Mica. Yes. When they write you up. I've got some of the
copies of----
Judge Bridges. Okay. I did receive a focused review in
February that is a matter of litigation.
Mr. Mica. Okay. But that was your last one. Yours was about
a year and a half, 2 years ago? You get a copy of those when
they are issued, right?
Mr. Taylor, did you get one? Do you get to see them?
Judge Taylor. I did not.
Mr. Mica. Did you get to see yours, Mr. Bridges?
Judge Bridges. I saw it, but I felt it didn't follow due
process.
Mr. Mica. And you have challenged that.
Judge Bridges. Yes, I did, because I think I violated the
Administrative Procedures Act.
Mr. Mica. Mr. Krafsur, when did you have your last review?
Judge Krafsur. I never had a review.
Mr. Mica. What?
Judge Krafsur. Never had a review.
Mr. Mica. You have never had a focused review?
Mr. Lankford. Mr. Krafsur, I'm sorry. Can you turn your
microphone on?
Judge Krafsur. I never had a review because it's against
the Administrative Procedures Act, right, I have a code right
here. We're exempt from these reviews.
Mr. Mica. The other two just said they had a review.
Have you had one, Mr. Burke?
Judge Burke. I had a focused review offered. I did not
accept or reject the criticisms. I know the law better than the
staff people who did the focused review back in Falls Church.
Mr. Mica. That really would be the only basis for somebody
reviewing your performance, would that be correct? I don't know
that much about the procedure.
Is that right, Mr. Taylor?
Judge Taylor. I think that would be right.
Mr. Mica. And, Mr. Bridges, you agree?
Judge Bridges. I disagree. I think that that is illegal
act----
Mr. Mica. My question wasn't an evaluation of what kind of
an act it was. It would be that is the only review that's
conducted of your performance, right? You are not subject to
election, you are not----
Judge Bridges. We're not----
Mr. Mica. How could you be removed? Impeached?
Judge Bridges. We're not subject to review.
Mr. Mica. How can you be removed? Does anyone----
Judge Bridges. Through the Administrative Procedures Act.
But we're not subject to those kind of reviews.
Mr. Mica. That's what they're going through with Mr.
Krafsur.
Judge Krafsur. Let me answer this. I can answer this. They
have--they accused me, they filed a complaint with the MSPB.
They actually have filed three complaints. Two have been
dismissed. We are now on the third. We have a chance to answer.
We have asked for discovery.
Mr. Mica. But you just told me you didn't have any.
Judge Krafsur. I'm talking--if you're talking about the
background of my office doing that, no. But if it crossed the
secret--the secret one--they do a secret one.
Mr. Mica. Okay. Well, I have copies here of two reviews,
your latest, March 7, 2014. Have you seen that?
Judge Krafsur. No.
Mr. Mica. Here's another one, November 22, 2011. So you
have had these done?
Judge Krafsur. I never saw those.
Mr. Mica. And you've never seen these?
Judge Krafsur. Correct.
Mr. Mica. Well, again, we're here because it appears that
you all have an extraordinary amount of approval of some of
these disabilities claims that have previously, either one or
two times, been rejected. You have a 99 percent approval rate;
is that right, Judge Krafsur?
Judge Krafsur. That's correct, and none of them have ever
been reversed by the Appeals Council.
Mr. Mica. And, Mr. Bridges, a part of the process, I think,
is also you reviewing all the documentation, et cetera. Mr.
Bridges, you had an overall allowance rate exceeding 95
percent, and you awarded benefits in cases without holding a
hearing 9,000 times--or 7,000 times between 2005 and 2013. Did
you want to comment on, again, your 95 percent approval rating
overturning these awards?
Judge Bridges. My comment is, I don't think that--there are
too many variables for that to be acceptable. I would have to
know a breakdown of what was considered and what it
constitutes. As I said in the congressional----
Mr. Mica. But you didn't hold a hearing 7,000 times----
Judge Bridges. I'm not aware of that. And I certainly
wasn't counting. What I do is I focus on specifically on the
case that I deal with and make it the right decision.
Mr. Mica. But we did, and we have questions about 7,000
times overturning these without holding a hearing.
Judge Bridges. I--I----
Mr. Mica. It appears to be----
Judge Bridges. I'm not aware of that.
Mr. Mica. Well, that's what this hearing is doing is making
the committee and public aware of your performance.
Judge Bridges. Well, I'm not--that--I dispute that because
I'm not aware of--I was not counting times that we're holding
hearings. I was concentrating on the person who I was making a
determination of.
Mr. Mica. Thank you, Mr. Chairman.
Mr. Lankford. [Presiding.] Ms. Speier.
Ms. Speier. Thank you, Mr. Chairman.
Thank you, gentlemen, for appearing today.
Mr. Taylor, let me ask you a few questions. Is it true that
on February 20, 2009, while you were presiding over a hearing,
you fell asleep?
Judge Taylor. No, ma'am.
Mr. Lankford. Microphone, please.
Judge Taylor. No, ma'am.
Ms. Speier. No.
It appears that you were reprimanded by the Chief
Administrative Law Judge, Jasper Bede, for sleeping while on
duty. Is that true?
Judge Taylor. That's been several years ago.
Ms. Speier. Well, you were reprimanded?
Judge Taylor. Not for that, no, ma'am.
Ms. Speier. So I have the hearing transcript here.
``Hearing begins at 10:06. At 10:23, attorney is questioning
the claimant. During claimant's testimony, snoring is heard in
the background.''
Judge Taylor. Uh-huh.
Ms. Speier. ``Attorney: I just want to put on the
record''--this is at 10:24--``that it appears as though the
administrative law judge is sleeping at the moment.''
Judge Taylor. Uh-huh.
Ms. Speier. ``No response. The ALJ apparently continues
sleeping. Attorney: I think--do you have anything else you need
to say because I'd like to call the other witness at this time?
Claimant says he has nothing else to say. Attorney then directs
claimant to move to another seat and says, I will call Mr.
Temple. Approximately 40 to 45 seconds of silence as attorney
leaves the room to get witness. ALJ does not speak and is
apparently sleeping. No sound is heard until attorney brings
witness into the room. 10:25 some banging is heard and sound of
someone breathing or sighing. 10:25, Judge, I think we need to
swear in a new witness.''
Judge Taylor. Uh-huh.
Ms. Speier. All of that transpired, correct?
Judge Taylor. Ma'am, I don't recall the specifics of that
hearing.
Ms. Speier. All right. You know, it's one on which you've
been reprimanded, and there's an action right now to suspend
you because of that, and you don't remember it?
Judge Taylor. I don't remember that specific date.
Ms. Speier. Well, all right. Okay. Let's forget the date.
Judge Taylor. Uh-huh.
Ms. Speier. Have you ever slept on the job?
Judge Taylor. Some years ago with my medication, yes.
Ms. Speier. All right. And what kind of medication were you
on?
Judge Taylor. I was on some--the effects of some medication
that I was using to make sure that I got enough sleep at night,
and it was keeping me drowsy in the morning.
Ms. Speier. Now, on September 13 of 2010, you made a
statement to a Charleston head office employee, Richard
Triplett, regarding another employee within the Charleston
office, Christine Boone, and to the effect you said, Isn't she
a looker? Is that correct?
Judge Taylor. No, ma'am, I did not.
Ms. Speier. You didn't say that? You're under oath. You
appreciate that?
Judge Taylor. I understand, ma'am, and I do know that.
Ms. Speier. On September 13, you made a statement again to
employee Richard Triplett about Christine Boone to the effect,
Don't worry, she will keep her hands to herself, she's married.
You don't recall that either?
Judge Taylor. Ma'am, not only do I not recall it, I didn't
make it.
Ms. Speier. And then on that same date you said again to
Mr. Triplett, She's a hot one. And you have no recollection of
that either?
Judge Taylor. Not only do I have no recollection, I didn't
say it.
Ms. Speier. And you never made a nonverbal gesture of
thumbs up to Mr. Triplett regarding Ms. Boone?
Judge Taylor. No, ma'am.
Ms. Speier. And you've never used your hands to make a
clawing, catlike gesture towards Ms. Boone?
Judge Taylor. No, ma'am.
Ms. Speier. So everyone is writing falsehoods about you, it
appears.
All right. Let's move on. Between 2005 and 2013, you
completed more than 8,000 decisions with an average award rate
of 93.8 percent. Almost 6,000 of these decisions were on-the-
record decisions----
Judge Taylor. Uh-huh.
Ms. Speier. --decisions in which the judge decides not to
hold a hearing. Can you explain the high number on-the-record
decisions you've completed? I mean, that's virtually three-
quarters of the cases. You don't need to have a hearing?
Judge Taylor. Ma'am, in the year 2002----
Ms. Speier. I'm not asking about 2002. I'm asking about
2005 to 2013. And let's restrict ourselves to a discussion of
those 8,000 decisions and the fact that 6,000 of them were made
on the record.
Judge Taylor. The first two hearing office chief judges
during that period of time approached me about whether I would
be willing to take some cases off the docket, look at those
cases to determine whether they could be done on the record in
order to meet our office productivity goals. I indicated that I
would do that.
From that period of time up until last year, I would
receive lists of cases from our hearing office staff indicating
a particular claimant, indicating a particular Social Security
number. I would then review the case to determine whether it
could be done on the record.
Ms. Speier. But three-quarters of the cases you handled
between those dates, three-quarters of them were on the record.
You never had a hearing. I mean, I can't imagine that in three-
quarters of the cases coming before you, you don't find
compelling evidence or questions that would require a hearing.
Because the reason why many ALJs say their relevance is so
important is because the first two hearings are done without
the benefit of spending any eyeball-to-eyeball time with the
claimant, but in three-quarters of your cases, you never sat
down with the claimant. You never had a hearing.
Judge Taylor. If that's what the statistics show. It's
going to depend upon the case--upon the specifics of each case
to determine whether it could be done on the record.
Ms. Speier. Mr. Chairman, I know my time has expired, but
if I could just ask one more question.
On average, how many pages are there in a file for a
claimant?
Judge Taylor. There are some of them that are quite
lengthy; there are some of them that don't have very many pages
at all.
Ms. Speier. Well, but by the time they get to an ALJ,
they've got lots more paper than they had when they were first
reviewed by the first Social Security official and then the
second Social Security official.
Judge Taylor. It's possible.
Ms. Speier. It's possible. It's more than possible. It has
to be because there's going to be more documentation, correct?
Judge Taylor. Yes.
Ms. Speier. So give me--are we talking about 300 pages of
documents?
Judge Taylor. Probably not that many.
Ms. Speier. Two hundred?
Judge Taylor. Could be.
Ms. Speier. So on average, if you're looking through 4
cases a day, that means you're looking through 800 pages a day
and doing it in a timely and thorough fashion?
Judge Taylor. Yes, ma'am.
Ms. Speier. All right. I yield back.
Mr. Lankford. Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Judge Krafsur, I'm going to read you a quote, and you tell
me whether or not you know who said this, okay?
``A hundred percent of the women at call centers have been
abused. It's an atmosphere of abuse. Any time we see a call
center person, female, all have been abused.'' Do you know who
said that, Judge?
Judge Krafsur. I did, but it was taken out of context.
Mr. Lankford. Sir, your microphone. Can you repeat that,
sir?
Judge Krafsur. Yes.
Mr. Gowdy. Well, you said that was taken out of context.
Well, let's put that in context, Judge. Did somebody testify to
that at a lower level? Was that in the record?
Judge Krafsur. No, sir. That was my experience.
Mr. Gowdy. Did you rely on a learned treatise? You made a
point of saying in your opening statement how much respect you
pay to the Federal Rules and the Constitution. Was that a
learned treatise you relied upon, Judge?
Judge Krafsur. That was my experience over 20 years.
Mr. Gowdy. So you made yourself a witness even though the
Federal Rules are very clear that judges are not witnesses; is
that what your testimony is, Judge?
Judge Krafsur. That was my opinion, not----
Mr. Gowdy. ``A hundred percent of female employees at call
centers have been abused.''
Judge Krafsur. I didn't say that. A hundred percent of the
people that came before me have been abused.
Mr. Gowdy. And you relied on no learned treatise, no
testimony at a lower level, just your innate sense of medicine?
Judge Krafsur. No. That's been my experience having
hearings over 20 years.
Mr. Gowdy. Well, let me ask you about another one of your
experiences, Judge. I want to read you another quote and ask
you whether or not you recognize who said this, okay?
Judge Krafsur. Uh-huh.
Mr. Gowdy. ``How did your family discipline you? Did they
hit you on the butt? I'm starting to do some analysis. It's
starting to be when women are hit at an early age, they start
developing problems in their twenties, late teens and twenties.
My ex-wife told me about this. There's something in a girl
that's a sexual thing. It arouses certain things.'' Did you say
that, Judge?
Judge Krafsur. Yes, I did, based upon----
Mr. Gowdy. Did you rely upon a learned treatise in reaching
that determination?
Judge Krafsur. No, I relied on----
Mr. Gowdy. Did you rely on something at a lower level? A
hearing? A witness testified to that?
Judge Krafsur. No, I relied on my experience hearing cases
over 20 years.
Mr. Gowdy. Judge, I hasten to add, because you made a point
of saying in your opening statement that your first
responsibility is to the Constitution and the Federal Rules of
Evidence, are you aware that judges can't be witnesses? Are you
familiar with that, Judge?
Judge Krafsur. I don't consider myself a witness.
Mr. Gowdy. You just testified to your own personal
experience. If that's not a witness, what is it?
Judge Krafsur. That's a personal opinion.
Mr. Gowdy. Judges can't express personal opinions either.
That's why we have something called experts.
Judge Krafsur. That's why----
Mr. Gowdy. Did an expert testify to that, Judge?
Judge Krafsur. That's called a First Amendment right.
Mr. Gowdy. You're considered--so you have a First Amendment
right to say whatever the hell you want in a hearing; is that
what you're saying?
Judge Krafsur. No, sir.
Mr. Gowdy. And you can rely upon that when you're spending
taxpayer money?
Judge Krafsur. No, sir. But that's an isolated case. You--
--
Mr. Gowdy. Well, it can't be an isolated case. I just cited
two, and my colleagues cited others.
Judge Krafsur. Yeah. Yeah, but you're taking isolated
cases. I've had----
Mr. Gowdy. Well, let's go a little broader than that,
Judge. What is your reversal rate of the hearing officer? Is it
in excess of 90 percent?
Judge Krafsur. Yes, it's based upon testimony given----
Mr. Gowdy. All right. And it has to be adjudicated twice
before it gets to you, right?
Judge Krafsur. That's correct.
Mr. Gowdy. And only if it's denied does it get to you. So
90 percent of the time the people under you are wrong.
Judge Krafsur. No. I want to be able to cross examine
them----
Mr. Gowdy. Well, it has to be or you wouldn't be reversing
them. They've denied benefits, Judge, and you've reversed their
denial. That means that you're hiring some really dumb people
to be hearing officers because they're wrong 90 percent of the
time.
Judge Krafsur. No, sir. I want to be able to cross examine
the people from Social Security----
Mr. Gowdy. I'm glad you mentioned cross examination. I
can't tell you how glad I am.
Judge Krafsur. Yeah.
Mr. Gowdy. Because in every other court proceeding, there
is someone cross examining the witnesses, but it's not a judge.
It's an attorney. And that's true in misdemeanor crimes; that's
true in felony crimes; that's true in civil cases. So what I
think you need, Judge, is I think you need an advocate and an
attorney for the taxpayer in the hearing room, because I don't
want you cross examining witnesses.
If you really think that paddling a child leads to sexual
issues, I don't want you doing the cross examination. And if
you really think that 100 percent of CNAs have been abused and
100 percent of females in call centers have been abused, I
don't want you doing the cross examination, Judge.
Judge Krafsur. Sir, we wear three hats. One hat is a Social
Security hat; the other hat is the claimant's hat; the other
hat is my--is the Social Security hat.
Mr. Gowdy. Where's the expert witness hat? You just said
you were an expert witness.
Judge Krafsur. We have an adversary system, and I have the
right----
Mr. Gowdy. It's not an adversary system. There's no
advocate for the taxpayer that's in the courtroom.
Judge Krafsur. We have a nonadversary system, sir. It's a
nonadversary system, and I have to wear three hats.
Mr. Gowdy. It can't be too adversarial, or you would not
reverse the hearing officer 90 percent of the time. And some of
your colleagues, 99 percent of the time they reverse a hearing
officer. And we mistakenly, Judge, thought it was because you
were eyeballing the witnesses so you could assess credibility,
but we learn from your colleague Mr. Taylor that that's not
even true. You don't even have a hearing. You just do it on the
paper.
Judge Krafsur. Sir, it's not eyeballing the witness. I take
testimony. I've had here this sheet----
Mr. Gowdy. And who does the cross examination?
Judge Krafsur. It has 186 analysts on it.
Mr. Gowdy. And who does--well, that's your document. Mr.
Cummings just exposed that that's your document.
Judge Krafsur. No, no. I'm--the attorney also provides one
for me.
Mr. Gowdy. The attorney for whom?
Judge Krafsur. For the claimant.
Mr. Gowdy. That's my point. There is no attorney for the
taxpayer.
We're going broke--Mr. Chairman, I know I'm out of time,
but I'm going to tell you a story from Spartanburg real quick.
I had a judge call me--he's apolitical--and he said, I just
sentenced someone for crawling under people's houses and
stealing their copper. And he said, what really struck me as
being unusual, Trey, is he is 100 percent disabled in the back.
I want you to think about that, Judge, and I want you to
think about one other thing, too. I went on a tour of something
called a workability center where people with special needs
value work enough that they go to work every single day. And
there was one man who was confined to a wheelchair, had no use
of his hands or legs, but his job was to encourage his fellow
employees.
There is inherent value in work, and one reason your
backlog may be so big is because it's so damn easy to get
benefits.
Judge Krafsur. Not for me. Not for me. I hear every case. I
see every person that's ever appeared before me. Every one.
Mr. Gowdy. You reversed the hearing officer over 90 percent
of the time, Judge. Ninety percent of the time, the person at
the first level is wrong in your judgment, and you are citing
your own version of medicine, 100 percent of the people are
abused, that if you paddle a little girl she's going to wind up
with sexual issues, despite the fact it's not in the record,
Judge.
Judge Krafsur. Well----
Mr. Gowdy. You may be a judge, but you're not God.
Judge Krafsur. Let me explain to you, if I had this person
in front of me that was down below, I could examine him on
behalf of Social Security, and that would allow the
claimant's----
Mr. Gowdy. Well, then why don't your colleagues have
hearings? Why don't they do it on the paper? If it's that
important to eyeball the witness and assess credibility and
cross examine, why are you doing it on the paper?
Judge Krafsur. That's what I said in my remarks here. We
need--we need the ability to be able to have the witnesses who
give any comment down below should be up here before me so I
can examine them, and they can be cross examined by the----
Mr. Gowdy. I want them being cross examined by an advocate
for the taxpayer, Your Honor, with all due respect, not a
judge.
Judge Krafsur. Well, then you need an adversary system,
which we don't have today.
Mr. Lankford. Mr. Horsford.
Mr. Horsford. Thank you, Mr. Chairman. And I want to first
start by saying that I know you and other members of this full
committee, we serve on the subcommittee where we've had
repeated hearings on this same issue. And while today's hearing
is about getting some facts out, I think we need to be careful
not to use the panel that's here before us today as the full
representation of the administrative law judges in general,
because to do so, I think, would be going against the
publications that we have received in prior hearings. The
Social Security Administration's publication, the national
hearings decisional allowance and denial rates through fiscal
year 2013 don't support or align with some of the testimony
that we're hearing from a select group of panelists that
appears the majority may have intended to only give one
perspective of how the system is not working efficiently.
And, Mr. Chairman, as I think I've indicated to you before,
one of the reasons I asked to be on this committee is because I
think we should be finding ways to reform government and to
make it work more efficiently, but for some reason, this
committee only focuses on the oversight function, and it never
gets to the reform side. Where is the legislation? Where are
the proposals to enact the change that's necessary so that we
can improve the delivery of services to our constituents? I
think ultimately, when I hear from my folks back home in
Nevada, that's what they want.
We can sit here and argue back and forth among ourselves.
It doesn't fix anything. I think the Veterans Administration is
a very clear indication of that.
Mr. Lankford. Mr. Horsford, would you yield? We can hold
your time.
Sometime when we're offline on that, Ms. Speier and I can
get a chance to lay out a whole series of things. We met with
Social Security Administration ALJs and others to be able to
develop the long list of how we actually reform the system.
We've done some of that in hearings and the gathering of our
fourth hearing and a lot of it offline as well, and we'd be
glad to be able to share that with you, because you're exactly
correct; it's not just a matter of exposing the problem, it's
about solving it.
I yield back.
Mr. Horsford. Thank you, Mr. Chairman. And I respect that,
and, again, I know, having served on the subcommittee with you
and Ms. Speier as well as the ranking member on other topics,
that we all together are concerned with certain aspects. But
fundamentally for me, the Social Security Administration is
about providing a vital mission to our constituents, and that's
not being discussed here today.
What I hear is a perspective by some of my colleagues on
the other side who say that every person regardless of
disability should be working. Well, that's just not the case,
and we need to have a balanced perspective of what this process
should really be about.
So I want to ask each of the panel if you would tell me
about the training that you receive and whether the training
that has been offered by the SSA to address some of the
compliance areas, the issues that have been identified, whether
that has improved the management flow and focused an area for
review based on the training that has been offered. Have each
of you gone through training through the SSA, yes or no?
Judge Krafsur. Yes.
Judge Taylor. Yes.
Mr. Horsford. And has that training addressed policy
compliance issues?
Judge Krafsur. No.
Judge Taylor. Yes.
Mr. Horsford. You say no?
Judge Taylor. Yes.
Mr. Lankford. Could the witnesses turn the microphones on
to respond?
Judge Krafsur. Excuse me, the answer is no. It just trained
me to be a writer. To be a writer. I'm an ALJ. I had 6 weeks of
training in 2013, and it had to do with how to write a
decision, and it wasn't addressed about an ALJ--it wasn't
addressed from ALJ, it was how to write a decision----
Mr. Horsford. Okay.
Judge Krafsur. --to use the FIT program.
Mr. Horsford. The rest of you, did each of you attend the
required training?
Judge Bridges. We attended a required training, but it
looks like the regulations need to be updated and modernized.
There are too many loopholes and too many--what you have is
variable interpretations, and these interpretations are because
the regulations are too loose and not focused. We as judges do
what we do as judges. We don't make policy, but we have to
respond to the policy that's there. For instance, the
transferability of skills should have been changed 20 years
ago, should have been updated, has not been updated.
I don't think that the solution is the beating up upon
judges. If the Social Security wants a different result, then
you have to define clearly what it is that you want, and then
we can respond to that. We will apply the laws. But the way the
laws and regulations are now, they haven't been updated,
they're subject to interpretations, and then you have all kinds
of repercussions because those rules are not followed. What
we----
Mr. Horsford. And we've heard that before, that there's too
much ambiguity.
Judge Bridges. Well, I think that's true. If you've heard
that then----
Mr. Horsford. Let me ask the last judge at the end if he
would respond.
Judge Taylor. Yes. I think every year----
Mr. Lankford. Mr. Taylor, I'm sorry, can you turn your
microphone on?
Judge Taylor. I'm sorry about that. I apologize.
Every year the ODAR takes about a third to a fourth of us
and gets us all together for about a week of refresher training
to try to bring us up to date with regard to new things that
are going on, some recent court decisions, and they usually
have some people there to talk to us about issues like paying
the mental disorders and so forth.
Mr. Horsford. Okay. So I'll close, Mr. Chairman, because I
know my time has expired. Again, I look forward to us getting
to the point where we're actually debating policy and bills to
reform what's broken, not bringing a select few of cherry-
picked judges to make some type of a political statement about
what's broken. We know things are broken, but it's time for us
to fix it.
Mr. Lankford. Dr. Gosar.
Mr. Gosar. Thank you very much.
Mr. Bridges, I have to compliment you on your tie. I think
we have the same vision of today.
Judge Bridges. I think I'm part Irish.
Mr. Gosar. Mr. Burke, I enjoyed your introductory
statements. Would you say that it gives you a bias?
Judge Burke. No, sir.
Mr. Gosar. Why not?
Judge Burke. Because I apply the facts to the law in an
unbiased situation. I do have life experience, just like any
other person that----
Mr. Gosar. So you would have to be very careful; would you
not?
Judge Burke. Yes, sir.
Mr. Gosar. Okay. Mr. Taylor, do you have a medical degree?
Judge Taylor. No, sir.
Mr. Gosar. Can you push the button, please? You're
constantly missing that.
Judge Taylor. Sorry, sir.
No, I do not have a medical degree.
Mr. Gosar. So when you go through this, as you said,
sequential evaluation----
Judge Taylor. Yes, sir.
Mr. Gosar. --you said always has to happen, right?
Judge Taylor. It's mandated by our regulations, yes, sir.
Mr. Gosar. So all these five steps you take with every
single complainant?
Judge Taylor. Yes, sir.
Mr. Gosar. So the majority of people that you see, they've
gone through a rigorous background, because most the people
that have done visual at the State level, the majority of them
are actually included in disability from what the people at the
State level see, right? So you're getting the hard of the hard
cases.
Judge Taylor. That's correct.
Mr. Gosar. Okay. That's great.
Oh, by the way, I forgot to tell you, I'm a dentist.
Do you understand about diagnosis?
Judge Taylor. Yes, sir.
Mr. Gosar. How do you perform a diagnosis?
Judge Taylor. It's where a doctor examines an individual,
performs tests on the individual, does some kind of interview.
Mr. Gosar. Oh, I want to stop you right there. I'm glad you
said that, because you said that you're making decisions, and
your bench cases, over half of them are that way, that you
didn't really look at the medical benefits because, in your
opinion, you're making those decisions. So what gave you that
right to the degree of medical? I mean, you told me you didn't
get a medical degree, did you?
Judge Taylor. No, sir, I didn't get a medical degree.
Mr. Gosar. So, how do you make that assertation without
going to an expert witness? I mean, my colleague Mr. Gowdy
actually brought this forward with another one of the bench
witnesses.
Judge Taylor. Uh-huh.
Mr. Gosar. So why wouldn't you rely on a face-to-face
empirically, and number two is ask for expert witness? Because
you didn't do that.
Judge Taylor. In some cases, that's correct. I didn't.
Mr. Gosar. How did that--I mean, that's a violation by your
own standards here, the five steps of constant evaluation that
have to be followed through. You violated right now in your own
terms, you violated that rule.
Judge Taylor. No, sir.
Mr. Gosar. Oh, please, share it with us. Please, share us
with your diagnosis.
Judge Taylor. No, sir, it wasn't my diagnosis. One of the
things that we have to work with in the fourth circuit is a so-
called treating physician room, and that came forth in a case
by the Fourth Circuit Court of Appeals several years ago. I
don't have the date for you. But the Commissioner issued an
acquiescence ruling, I believe, and the rule says that unless
rebutted by credible evidence of record----
Mr. Gosar. Well, I've got to stop you there because you're
getting the hardest of hard cases, and you're rebutting it on
your jurisdiction, not with an expert witness. So the people
actually on the State level have been doing a visual and have
actually seen an eye-to-eye, and you're defying that without an
expert witness because you don't have a medical degree.
Mr. Bridges, the review stated that you only consider the
opinions of medical experts in 4 percent of your cases. Do you
have a medical degree?
Judge Bridges. No, and I dispute that.
Mr. Gosar. You don't like being asked questions, do any of
you?
Mr. Taylor, you don't like being cross examined, do you? I
mean, I see a hostility all the way across here.
How about you, Mr. Bridges? You don't like answering
questions either?
Judge Bridges. Yes, I do, but I honestly said I dispute
that.
Mr. Gosar. Okay. Mr. Krafsur, you don't like being cross
examined either?
Judge Krafsur. It depends where the questions are being----
Mr. Gosar. Oh, come on, now. I'm a dentist.
Mr. Lankford. Can you turn your microphone on, as well,
sir?
Judge Krafsur. I want to be cross examined providing the
questions are fair and impartial.
Mr. Gosar. How about you, Mr. Burke?
Judge Burke. I'm happy to answer any questions by members
of this committee.
Mr. Gosar. Do you believe you periodically ought to have
calibration?
Judge Burke. Say again?
Mr. Gosar. Do you believe that you should have periodic
calibration, a kind of renewal to kind of get you back to
square one?
Judge Burke. I think that's reasonable management, too.
Mr. Gosar. Mr. Krafsur, do you believe that, calibration?
Judge Krafsur. Yes. Yes.
Mr. Gosar. How about you, Mr. Bridges?
Judge Bridges. Would you ask the question again?
Mr. Gosar. Yeah. Do you believe in recalibration; you know,
getting together kind of recalibrating?
Judge Bridges. I think it's reasonable.
Mr. Gosar. We're human, right?
Judge Bridges. Right. I think that's a reasonable thing to
do.
Mr. Gosar. How about you, Mr. Taylor?
Judge Taylor. Yes, I do.
Mr. Gosar. Do you understand why we're having such a
problem here is that the methodical aspects of these cases have
gone to the State level, where they actually visually looked at
this individual, they compiled the data, and they've rejected
it twice looking them in the eye. And yet you, in many cases,
and your colleagues don't even look at them and make a bench
decision without even making an assertation of the merits. And
that's why I was asking about diagnosis, because if you can't
look at the patient, you can't see a medical doctor, you can't
make a decision. You cannot make a decision.
Judge Taylor. Uh-huh.
Mr. Gosar. And the hearsay that I'm seeing from down the
list here is absurd to me. This is problematic. Wouldn't you
agree based upon what I've just talked to you about, Mr.
Taylor?
Judge Taylor. Sir, with all due respect, could I mention
something?
Mr. Gosar. Sure. Keep it brief.
Judge Taylor. Certainly. The first two steps in our process
are done by something called the State agency. Their
regulations are far different from ours. They have different
regulations.
Mr. Gosar. Wait a minute, stop right there, because the
majority of these cases of people actually getting on
disability actually happen there in the first two steps,
because they actually look at the client, they looked at the
claimant and saw them personally. Half the time we don't even
see that from you, do we?
Judge Taylor. Usually in the first two cases, they have
reviewed some documentation.
Mr. Gosar. And they look the person in the eye, right?
Judge Taylor. In the case of a consultative----
Mr. Gosar. So let me ask you a question. So you can
actually make a diagnosis without seeing the complainant?
Judge Taylor. No, no, I couldn't do that.
Mr. Gosar. That's my whole point is you're making these
decision without even seeing the patient and actually having a
credible, medical testimony. I mean, you said--I mean, the
gentleman over here, I didn't see you do anything but nod, was
in agreement. You hold three hats. Well, part of it is justice.
A blindfolded lady--my good friend Mr. Gowdy makes a perfect
comment. A blindfolded lady, she doesn't see who she's giving
justice to; she's weighing information presented to her. That's
the most important thing is justice.
Judge Taylor. Uh-huh.
Mr. Gosar. Okay. Weighing the information. You're not
credible as a medical technologist or a physician. You need to
have that expert testimony, and not having it is a dereliction
of duty.
Number two is not seeing a person and making a claim is
despicable about the process particularly of those people down
below at the State level who have actually done service. This
is rightful that we are actually exposing this.
I disagree with my colleague Mr. Horsford, because you have
to show the problem in order to fix the problem, and this is
what exactly is shown. I hope America's watching because it's
sad.
I yield back the balance of my time.
Mr. Lankford. Ms. Lujan Grisham.
Ms. Lujan Grisham. Thank you, Mr. Chairman.
And I agree that this is a critical hearing, and, in fact,
we're going to have another hearing this week talking about the
staffing shortages. So if we're really going to talk about
getting these issues addressed, and we're going to have
physicians who are already difficult to see to do the
diagnosis, to provide the information, the expert testimony
that they're required to have on the initial applications, and
have them always be available for in-person hearings on the
appeal level, then we better be prepared as a body to put the
right resources into the Social Security Administration.
And like every Member here, I certainly want a system
that's objective and fair. We want the judges to meet the
highest level of professional standards. And as I'm listening
to some of the issues that have been identified and to some of
the--my colleague Mr. Horsford talk about training, I know
there's some peer review here. There probably needs to be much
more peer review at the ALJ level as diagnoses and disability
issues actually change, given a newer technology and better
tools for diagnosis.
So I want to make sure that we're even, too. I want
accountability in a system. I want accountability not only from
the claimant level, from everybody who's making decisions in
the Social Security system, but I also recognize that many of
these systems were actually created in reverse, which means
that the practice is to deny the benefits up front, and then
you hope that the claimants don't have the wherewithal, the
ability, the stamina to continue the process.
And State programs, then, are left with significant
behavior health issues, homelessness, a whole host of domestic
issues that we are trying to figure out how to fund. I can tell
you that New Mexico, and given that Mr. Burke, you're from
Albuquerque, my district, I know that you're aware that we have
one of the most significant disability and behavioral health
problems in the country per capita.
Now, I'm not suggesting that every person that applies for
Social Security benefits is actually eligible, and that some of
those people--maybe we could make it simple and put it in two
categories. Some of them mean to defraud the government. Some
of them do not mean to defraud the government, but believe
their disability is tantamount to an award under Social
Security.
But I have plenty of practice with that situation where you
are trained to deny up front, because that is one way to manage
resources, no question. So I hope at this hearing that we
figure out exactly that, accountability in a system for both
the individuals working to use Social Security inappropriately;
making sure we have accountability in the administration by the
judges at all levels; making sure that we have appropriate
training, but be very clear about what resources we're going to
need, when I think, Mr. Burke, you testified it takes currently
2 years for someone to be able to get through the process for a
potential award.
Is that still your--2 years, did I get that right?
Judge Burke. Representative, that's about the case in
Albuquerque. In northern New Mexico, which is the most
depressed part of the State, people wait 3 years on a regular
basis.
Ms. Lujan Grisham. All right. And Mr. Burke and anyone else
in the panel, given my opening statements--and, again, I'm not
trying to diminish any of the accountability issues here--but
do you believe that in your experience as a lawyer or judge
that the problems with underfunding and understaffing, does
that deter legitimate claimants from appealing their cases and
receiving benefits?
Judge Krafsur. Yes, ma'am.
Ms. Lujan Grisham. Anybody else agree with that statement?
Judge Burke. Representative, I agree with that statement,
but you're talking about training, and your neighbor
Representative Mr.----
Ms. Lujan Grisham. Horsford.
Judge Burke. --and Mr. Lankford mentioned before, and
Senator Coburn, trying to get people back to work who have
suffered an impairment or a disability. Now, the disability
unit that makes these decisions before they get to us is a part
of the New Mexico Department of Vocational Rehabilitation. In
three States where I've practiced or been a judge, State of
Washington, State of Tennessee and New Mexico, I see very, very
little activity on the part of the Departments of Vocational
Rehabilitation in getting disabled people back to work, and I
think it's definitely a question of funding and resources. I do
suggest that this committee look toward the question of getting
vocational rehabilitation----
Ms. Lujan Grisham. And, Your Honor, I really appreciate
that very much, that statement, and I'm running out of time.
And I don't mean to be so rude as to interrupt you, but I want
to make sure that we focus on and I want to end with a
statement on the record about the balances here.
I agree that anybody who wants to work should have the
opportunity to work, and given my 30-plus years experience with
the disability population, I think most individuals,
irrespective of a disability, desire to work. But supportive
employment and training programs, and employment access, and
those tools and resources are not but almost completely gone;
not just diminished, they don't exist in so many States and
programs, that includes DVR.
But what I would like to suggest, given the testimony that
we've heard today, that we need strong oversight mechanisms. We
need to ensure that benefits are not incorrectly approved and
not incorrectly denied, and that we have to create a criteria
where both those things are achieved. Congress needs to fully
invest in reducing the backlog, because right now this program
is failing to provide timely service, support and due process
to individuals who desperately need it, and I am looking
forward to that focus in these hearings as well. Thank you.
I yield back.
Chairman Issa. [Presiding.] Thank you.
We now go to Mr. DeSantis for 5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman.
Mr. Krafsur, you, in 2011, when the agency reviewed your
decisions, your decisions were found to have consistently
failed to provide a substantive evaluation of medical evidence
or rationale to support their findings in that when you would
evaluate cases--when they evaluated your cases, that the
theories that you were using were not in compliance with Social
Security Administration regulations.
Now, between 2005 and 2013, while you're rendering
decisions which this review said failed to provide a
substantive evaluation of medical evidence or rationale to
support the findings, nevertheless, during that whole time,
your allowance rate was 99 percent. And so that would mean that
claimants who come before you, they've been denied twice by and
large at the State level, and then almost all of them, 99
percent, you're overruling that without providing substantive
justifications.
And so my question to you is if you're overruling the State
99 percent of the time, you're not really evaluating the
evidence or providing the justifications, is it just obvious
that all these cases are wrong? How is it that 99 percent of
the cases at the State level on those two reviews are
incorrect?
Judge Krafsur. First of all, I'm reviewing all the medical
records, not the ones just the DDS happens, because I've seen
many times DDS people don't even agree with each other. So I
have to take and consider all the records, the ones put in by
the representative or the claimant, and take everything as a
fact that's put before me. So I review every piece of paper
that's medically in front of me.
So I would show----
Mr. DeSantis. That doesn't mean just because, you know, you
read it, they're saying your decisions are not justified in a
substantive way. It seems like you're intent to find one way.
And I do take a little bit of issue, because I think it was a
little misleading when you were in a colloquy with Mr. Gowdy
and you said that 99 percent of your decisions have never been
reversed on appeal. But isn't it the case that if you award a
claimant, if you find for the claimant, then there is no
appeal, correct?
Judge Krafsur. That is why----
Mr. DeSantis. Is that correct?
Judge Krafsur. Right now, yes.
Mr. DeSantis. That is correct. So to say that 99 percent of
your cases that you haven't been reversed, yeah, because it's a
factual impossibility for you to have been reversed. And so I
don't understand how you could posit that as some type of
justification for your decisionmakings. I mean, it may fool
somebody who's not familiar with the system, but those cases
are done. As Gowdy said, there's not a taxpayer advocate who
then will appeal beyond that.
Now, let me--you mentioned when you were talking with
Gowdy, when he asked you about some of the theories that you
had been injecting into these cases, you essentially are making
yourself a witness, and he called you on that, and your
response was that you have a First Amendment right to speak in
those cases. And to me that just is a fundamental
misunderstanding of the First Amendment. No one is saying that
you're going to be prosecuted for saying; the question is is
that the correct role of someone in your position to be
injecting their own theories?
And I know you have this cause-and-effect theory, and I
just want to read this quick snippet. ``Claimant said, I worked
in a slaughter house wrapping meat. You said, exposed to blood,
right? Claimant says, yes. And then you say, I call this the
effect, and what we try to do is find the cause. We found the
cause today. Once you find a cause, it's easy to pay a case.
It's impossible to pay a case if you can't find the cause. My
job is to just get enough information to do what I have to
do.''
So my question to you is is the cause and effect in the
reviews that have been done, or other folks, has that been
determined to be consistent with Social Security Administration
guidelines for adjudicating these cases, or is that a test that
you developed yourself?
Judge Krafsur. No, that is developed by Social Security.
And if you notice my presentation, I said on-the-record reviews
by the Appeals Council, a favorable decision should be
abolished and replaced by direct appeal to the appropriate
Federal court to prevent the SSA from getting the second bite.
So if the State should be allowed to take--if they think my
case is incorrect, should be sent to Federal court for their
review, and if the Federal court deems it incorrect, send it
back for another hearing. But SSA gets a second bite from the
Appeals Council.
Mr. DeSantis. Look, Mr. Krafsur, I think we're concerned
here. I agree with Dr. Coburn. People are disabled. We want to
make sure, we even err on the side of paying too much. But when
you see figures like this and taxpayer dollars going out the
door without substantive reviews, billions and billions of
dollars, it's a tremendous cause for concern.
And I yield back to the chairman.
Judge Krafsur. May I interrupt, please, Mr. Chairman?
Chairman Issa. Yes, please. You can finish your response.
Judge Krafsur. I see every one of those people that appear
before me. Everyone who appears before me I've seen physically.
I've seen their ailments. I've seen their pain, I've seen
everything. I don't give on-record decisions. I actually see
these people. And I see their pain right in front of me. I can
visually see the pain. That--maybe the panel doesn't understand
that, but I see the pain. I'm looking at them very carefully to
make sure that I see something in their system that's a pain.
I review every case I've ever had, except for the ones that
may be on record because they can't appear because of another
disability. But I've seen every case since 1991. I've never,
never had a case that I gave an on-record decision to.
Chairman Issa. Would the gentleman yield?
Mr. DeSantis. Yes.
Chairman Issa. So you're saying that you award because you
see their pain?
Judge Krafsur. No, no. It's matched--it's matched with the
record. It's matched with the record of the disability that I
see from the physicians or from down below. Everyone is
matched. It's matched through the attorneys, who give--who take
my sheet that lists all the evidence. They give me exhibit
numbers, and I match every one very carefully to make sure that
they match what the claimant is testifying to during the
hearing.
Chairman Issa. I'll use my own time in a minute, but it is
interesting, and I hope you'll be prepared to answer, why the
people beneath you who initially say no are nearly 100 percent
wrong, in your opinion. So be prepared to answer that when it
comes on my time.
We now go to the gentlelady from Illinois Ms. Duckworth.
Ms. Duckworth. Thank you, Mr. Chairman.
I just wanted to say that the topic of today's hearing is
critically important for every American worker. Social Security
disability programs provide a modest benefit, $1,140 a month
for the average SSDI recipient, and just $537 a month for the
average SSI recipient. But these modest payments make all the
difference when Americans face a life-changing disability or
illness. It's often the difference between making ends meet and
facing deep poverty and potential homelessness. It's vital that
we make sure this program that workers are paying into each
month continues to be there for them when the worst thing
happens: They get hurt.
Now, given how important this program is, there's
absolutely no excuse for those who seek to defraud or take
advantage of it. We can and must redouble our efforts to combat
waste, fraud and abuse in the system and make sure that Social
Security has the resources it needs to maintain the program
integrity.
In reviewing all four of today's witnesses, I notice you
all have something in common with each other that makes you
different from the typical judge in the Social Security
Administration. The typical judge has an allowance rate of 57
percent. We touched on this--my colleagues touched on this a
little bit earlier, and I'd like to explore this further.
That's a national average rate with which judges award
disability benefits in the cases that they hear. The large
majority of the ALJ corps is close to the national rate of 57
percent, but the judges here today have an average rate between
33 and 99 percent.
For each of you, why do you think that all the other judges
with allowance rates nearer to 57 percent have such a vastly
different performance from you? And remember that, you know,
Judge Krafsur, what you said about you see their pain and every
one of their pain, that can't be the reason, because you and
Judge Taylor have very different approaches. If you see
everyone, but he does not see most of his folks, you still have
the same allowance rate.
So could each of the four panelists discuss why do you
think that your rates are so much higher than the others, and
what is it that the other judges are doing that they only have
an allowance rate of 57 compared to your 99 percent--93 to 99
percent? Thank you.
Mr. Burke, do you want to start, and we'll just go down the
row.
Judge Burke. I think one factor in that, I think a factor
that I think the four of us share, is that we have some
experience in personal injury representation, representing
injured people, and litigating cases, and being able to, as I
say, read medical records, take depositions of medical
personnel, and use the fact-finding process that we've learned
in adversary situations.
I think many and most of the ALJs coming now have been--
worked for government agencies in a relatively--and military--
in a relatively sterile environment that doesn't have that
human connection and awareness of the various forces and
interest in the various medical people and that sort of thing
that we have learned as trial lawyers.
Ms. Duckworth. So you're saying that because you have a
history of representing folks, that makes you more apt to give
awards more generously?
Judge Burke. I think--I think it helps your perception,
yes.
Ms. Duckworth. Okay. I find that somewhat troublesome,
because I think that's a bias that should not be there as a
judge.
But, Mr. Krafsur?
Judge Krafsur. Yes, ma'am. I--I once--I asked the DDS to
provide me with medical, psychological and psychiatric tests,
which they refuse to do. And they won't provide it. So I have
to--so what I'm asking for to be able to do is bring the DDS
people who have made these recommendations down below to appear
before me so I can examine them and have them be cross examined
by the claimant rep.
Ms. Duckworth. Okay. I only have a minute left, so I'm
going to have to cut you off. I apologize. Are you saying that
you're the only one--that these other judges that are 57
percent have access to these people, and that's why they're
giving less, and you're giving more because you don't? I mean,
you're the only judge--or these four judges are the only four
that don't have access? Is that what you're saying? Because
that doesn't make sense.
Mr. Bridges?
Judge Bridges. I can't speak for any other judge but
myself. When I've applied all my knowledge, my training to the
case in front of me, this is what I get. So I'm satisfied that
I've done the best I can with all the facts of that particular
case that's unique to that person. I can't address what any
other judge has done, but to do what I can do to the cases that
I have.
Ms. Duckworth. Mr. Chairman, could we allow Mr. Taylor to
do the final?
Chairman Issa. Please. Take such time as you need. Go
ahead.
Ms. Duckworth. Thank you, Mr. Chairman.
Mr. Taylor?
Judge Taylor. If I understand your question correctly,
there are obviously some cases that I've done, as I mentioned,
and in some of those cases it's obvious that sometimes the
judge's hands are tied. If they're of a certain age, they have
a certain RFC, a certain work background, a certain goodwill
kicks in, there's really nothing you can do about it.
If the committee will note, beginning last year, the agency
began an initiative to limit each judge to 80 cases a month,
and this is all that judges are given now. There's no on-the-
records, or at least very few that are being issued at the
present time. I know that I can't think of any that I've issued
since about this time last year, because we really can't.
There's 80 cases being assigned to each judge. We are supposed
to make our 5- to 700, but based upon that, as well as make an
effort to reach our productivity goals.
Ms. Duckworth. But the judges here average more than 1,000
decisions in a given year, and one of you actually completed
more than 2,000 decisions in multiple years, and yet the
average is 500 to 700 for those who get the 57 percent. So
maybe the common denominator here is that you're just pushing
these through and not really reviewing them. I don't know.
Mr. Chairman, I'm out of time. Thank you.
Chairman Issa. Thank you.
Mr. Taylor, I've been told it's 70 a month, 840 a year. Do
you get a different number?
Judge Taylor. Your Honor--excuse me, Mr. Chairman, I've
been told 5- to 700. Now, maybe I'm wrong. If I'm wrong, I will
admit it. I haven't seen that number.
Chairman Issa. Well, for all of you, if you're reversing
the lower decisions by 90-some percent, in your opinion does
that mean that, in fact, the denials are inherently
overzealous, wrong; that the people beneath you that are saying
no are by definition almost always wrong?
Judge Bridges. I'm not--I wouldn't say that, but I would
say that they are not legally trained.
Chairman Issa. Well, but you're reversing them 90-some
percent, right?
Judge Bridges. All I can say is that they are not legally
trained.
Chairman Issa. No, no.
Judge Bridges. And that is--and we are also seeing----
Chairman Issa. Well, but, Mr. Bridges, we're kind of funny
about our questions here. We're fairly nuanced. Are you
reversing them 90-some percent?
Judge Bridges. I really don't know, because I don't pay
attention to those figures. All I do is concentrate on each
case, one at a time.
Chairman Issa. Okay. So you don't know that you've been
awarding as a reversal of earlier claims over 90 percent of the
time?
Judge Bridges. I don't look at those figures because it may
influence me.
Chairman Issa. Mr. Bridges, you mean that you don't
notice----
Judge Bridges. No.
Chairman Issa. --that you're essentially saying approved,
approved, approved almost all the time?
Judge Bridges. I don't notice because I don't want to be
influenced. Each individual is due his just and accurate
decision, so I don't want to be influenced by that, so I take
each case at a time.
Chairman Issa. That is the most astounding thing I've ever
heard in this here. That's sort of like saying that you don't
look at the speed limits signs because you don't want to be
influenced by what speed is safe on the highway.
Mr. Taylor, you've been distinguished by multiple awards
for your work; isn't that true?
Judge Taylor. Some, yes, sir.
Chairman Issa. And were those awards based on volume?
Judge Taylor. Yes, sir.
Chairman Issa. So all four of you were brought here--three
of you, not you, Mr. Taylor--but three of you under subpoena,
involuntarily, if you will. And we want to be fair to you, but
we're obviously disappointed in the performance overall of this
disability claim system. But I just want to make sure I make
for the record very clear: You're awarding almost all the time
a reversal granting this roughly 300,000 per person in benefits
for disability, reversing the lower decision, but you're being
given awards because the only thing your bosses care about, at
least in those awards, is volume; is that correct?
Judge Taylor. I don't think that's the only thing that they
care about. That's not the reaction that I get. The thing that
we have to meet is these goals that we've had over the years,
and the goals have changed a little bit since I came in, but
they've always gone up. And, of course, last year the goals
were taken off, and they are no more. I don't think that's the
most important thing. But we do have a set of goals that we're
supposed to meet, a set of productivity goals.
Chairman Issa. Mr. Bridges, Mr. Krafsur and Mr. Burke, have
you, any of you, received similar quality awards--quantity
awards? Have you received any awards for the work and the
volume that you're pumping through your----
Judge Bridges. No, it would be illegal for us to receive
awards.
Chairman Issa. So Mr. Taylor illegally receives an award?
Judge Bridges. ALJs should not receive awards for----
Chairman Issa. Mr. Taylor, you're shaking your head yes. Do
you think your award was illegal?
Judge Taylor. It was just a letter, sir.
Chairman Issa. Okay. Any of the rest of you receive letters
saying good things about your work based on quantity?
Judge Krafsur. Just the whole office, not just the
individual judge.
Chairman Issa. Okay. So there was an ``attaboy'' based on
volume.
Mr. Burke?
Judge Burke. No, sir.
Chairman Issa. Okay.
Mr. Burke, I'm concerned, in one case you decided in
October 2012, you found an established offset date of 2002,
even though in the filing the earliest treatment records were
2009. Do you remember that case?
Judge Burke. No, sir, I don't.
Chairman Issa. It was in your focus review. Your reviewer
reviewed it, and I guess the question is, isn't it true that
people are only entitled to retroactive disability payments to
the point at which they can substantiate the onset of whatever
made them unable to work?
Judge Burke. Correct.
Chairman Issa. So it's extremely important to get that date
right, because if it's 7 years earlier, that's a lot of money,
isn't it?
Judge Burke. No, sir. You can only be paid a year prior to
your Title 2, your Social Security application. So if you
apply, say, in 2008, with an onset date of 2002, you're still
not going to get paid prior to 2007.
Chairman Issa. Have you discussed the focus review with
anyone?
Judge Burke. No, sir.
Chairman Issa. Okay. Now, we are the Committee on Oversight
and Government Reform, and people often don't see the reform,
so let's go through the numbers a little bit. I asked Mr.
Bridges; he doesn't keep track of them. I'll go to you, Mr.
Taylor.
If you're reversing 100 percent, then doesn't that
inherently mean that either you're wrong, or the people beneath
you are saying no when they should be saying yes a lot of
times? Because, I mean, you're the first to say that you're
handling too many cases, but if cases are coming to you at
almost 100 percent you're reversing them, then wouldn't that
inherently mean that these cases should not come to you because
they should be approved at a lower level, in your opinion?
Judge Taylor. That's a hard question to answer, sir. I can
only talk about some of the cases I've received. I know very
little about the general overall picture as to what other
judges are getting.
Chairman Issa. Well, let me ask you a question. I know Mr.
Bridges said he doesn't even look at the number, but those are
your numbers up on the screen. So let's just take, you know--I
don't know, we'll take the first date, 2005, 95.2 percent.
Judge Taylor. Uh-huh.
Chairman Issa. In each of those years in which you ran in
the '90s until 2013, which is, I believe, when sort of we
started changing, 2011, 2012, 2013, those numbers are coming
down for you down to 74 percent now.
Judge Taylor. Uh-huh.
Chairman Issa. During that time, did you ever write any
letters or do anything to try to ask, why am I getting 90
percent misdecisions that I have to reverse?
Judge Taylor. No, sir.
Chairman Issa. Why not?
Judge Taylor. I never really thought that at the time I was
getting the cases, which I got to look at from the standpoint
of on the records, I never really thought that those were given
to me in an extraneous manner. Looking at them, I could tell
why a senior staffer might have referred that case to me to
look at. But of course I didn't grant everything that was on
the list of recommendations. I might have found earnings after
onset, I might have found subsequent reports that went in the
record after the staffer reviewed it.
Chairman Issa. Now, you particularly made a lot of
decisions without ever having hearings. How do you justify that
I need a judge to do that rather than simply another
bureaucratic review?
Judge Taylor. It's interesting you should mention that. We
have, at least we used to have at our office, three senior
attorneys who--well, one of their jobs was to review cases to
determine whether they could be done on the record. For one
reason or another, now we only have one there now, at least one
full-time. And that is part of their job, to look at these
cases from the standpoint of whether they can be done on the
record and perhaps to refer it to a judge to determine whether
it can be.
Chairman Issa. Well, those lawyers that were pumping
through those for those determinations, weren't those just part
of the productivity, part of getting more volume out?
Judge Taylor. They are part of ODAR, yes, sir.
Chairman Issa. Okay. Well, that may be why they have less
of them, is that they weren't achieving better decisions, just
more volume.
Now, I share with Ms. Duckworth the concern about the
backlog, and that is still an area that I am very, very
concerned about. But let me ask you a question. The ranking
member and I authored a bill called the DATA Act that now has
been signed into law. Part of the intent was to organize data
to make it more useful. The nature of many of the points that
are part of your decision, aren't those, in fact, data points
that are codified in law, they're not discretionary? In other
words, what Mr. Burke said about how far back you can award
based on when the application was, when the document onset is,
and so on, aren't those points that should be essentially
loaded into computers and absolutely determined away from the
judge's decision? Because they are decisions of fact, that in
fact you don't need to take human error into account, you need
to make sure that the law is complied with? Would you agree
with that?
Judge Taylor. That would be very helpful, sir, very
helpful.
Chairman Issa. The rest of you? Would that be helpful, if
all the data points of fact and law would already be put in so
that you wouldn't be, in a sense, trying to make a judgment
call about those kinds of things and having to remember, like
Mr. Burke, what the details of how far back you go or what the
effect would be?
Mr. Cummings, do you have additional questions?
The gentleman is recognized.
Mr. Cummings. Let me ask you this. Senator Coburn talked
about--Mr. Burke--Judge Burke--you referred to this. Senator
Coburn talked extensively about this judge in Oklahoma,
administrative law judge, who was able to get people back to
work. I think that's what he said. And, you know, I think when
you talk about no other job--a person not being able to do
another job, I'm just trying figure out, do you think--and then
you said that there is so--there is not sufficient resources
and support systems to even accomplish those things.
So how is that done normally? I mean, how would it be--that
this fellow be able to do it in Oklahoma and then some people
probably, that if they--maybe if they were a truck driver and
maybe they had an injury and maybe they would be in a position
to do something else. And I'm just curious. Talk about that for
a minute.
Judge Burke. In the best of all possible worlds, the
continuum between employment and total disability should go
from employment to unemployment to partial disability to full
disability and then to vocational rehabilitation to put the
person back to work. They should dovetail. But in my experience
in those three States I have practiced in, the vocational
rehabilitation part of it is forgotten. It is funded by the
Social Security Act or regulated by the Social Security Act,
but apparently the appropriations are--it doesn't get the
attention that it should.
Another factor about going back to work for disabled people
is the level of skill that they had when they were injured or
became sick. A skilled individual is much more likely to be
able to be retrained or to have a skill level that they can
exercise at a more sedentary level.
In northern New Mexico, where I am from, there's a high
degree of lack of skill, manual labor jobs. There is no
industry in northern New Mexico to speak of. So in that
situation you get a lot of straight total disability cases.
Mr. Cummings. So if you have an area where you have got a
lot of people doing laboring type work, then you are more
likely to see higher rates of approved disability claims? Is
that----
Judge Burke. Yes, sir. And the Social Security regulations,
for instance that grid, talks about whether or not a person is
skilled or semi-skilled or has transferrable skills that can be
used at a light or sedentary level. That is what the vocational
experts advise us on.
Mr. Cummings. So basically some of these people have no
skills.
Judge Burke. Yes, that's quite correct.
Mr. Cummings. So there's nothing to really fall back on.
Mr. Burke. Exactly.
Mr. Cummings. Interesting.
All right. Thank you.
Chairman Issa. Thank you.
We are going to stand in recess. And I would expect that if
there are no votes by 1:30, if we don't come back, that we will
have you dismissed.
So what I'd say is we will be in recess for at least 20, 25
minutes, if you want to get a bite to eat. And then if you will
come back here, we will give you a final determination. Thank
you.
[Whereupon, at 12:38 p.m., the committee was adjourned.]
APPENDIX
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