Home Legislative Action Congressional Testimony Determining Eligibility for Disability Benefits

Determining Eligibility for Disability Benefits

9/19/2017

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Chairman Johnson, Ranking Member Larson and members of the Subcommittee, thank you for allowing NTEU to share its thoughts on methods to improve the Social Security Administration’s disability process. NTEU represents 150,000 federal employees in 31 agencies including 1,900 attorneys and paralegals in theSocial Security Administration’s Office of Disability Adjudication and Review (ODAR).  I appreciate the opportunity to discuss these important issues.

INTRODUCTION

The Social Security Administration’s Office of Disability Adjudication and Review (ODAR) handles appeals of disability claims. ODAR strives to issue legally sufficient decisions and award benefits to disabled claimants “as early in the process as possible”. The decades-old disability hearings process, however, was not designed to process the unprecedented number of claims filed in the past ten years. The hearing process also was not designed to accommodate the increased participation of attorneys representing claimants. Adding to these challenges, the hearing process has been encumbered by insufficient resources, inadequate staffing, expanding case files, expansive changes in regulations, conflicting operational messages, and escalating internal tensions.[2]

These are some of the factors causing the most needy members of society to wait one to two years for a disability decision while they face life-altering medical and financial stressors. In September 2016, the Office of Inspector General (OIG) determined that almost half (45%) of pending disability claims languish in prehearing development.[3] Due to the huge number of pending claims, currently more than 1.1 million, and lack of sufficient staff, a claim can sit in a hearing office queue for 6-9 months before it reaches an employee for processing. By the end of FY 2016, average case processing time rose to 540 days while Administrative Law Judge (ALJ) productivity declined nationwide even as the Agency hired more ALJs.[4] Today, despite a host of initiatives outlined in the Agency’s Compassionate And REsponsive Service (CARES) plan, ODAR does not expect average wait times to improve substantially until 2020.[5]

And yet, ODAR could begin to make a dent in the backlog immediately, reduce wait times, and bring relief to thousands of claimants simply by fully engaging its existing cadre of highly trained senior attorney advisors (SAAs). SAAs can screen, develop, and decide claims that do not require a hearing—and they can do it within a few months rather than a few years. SAAs can meet with unrepresented claimants to advise them about the hearing process. SAAs can also identify evidentiary needs and develop the record as well as meet with claimants’ attorneys to resolve cases without a hearing or obtain stipulations to streamline cases that require hearings. Crucially, this cadre of skilled and experienced attorneys is prepared to act immediately and requires no additional funding or hiring. 

REINSTATING SAA ADJUDICATORY AUTHORITY WILL INCREASE ODAR’S DECISIONAL CAPACITY

SAAs have regulatory authority to fully adjudicate fully favorable decisions. An SAA, “instead of an administrative law judge,” can conduct prehearing proceedings and issue fully favorable on-the-record (OTR) decisions, eliminating the need for a hearing.[6]  Even when SAAs determine that claims cannot be decided without a hearing, they play a pivotal role by initiating case development as soon as the claim enters the hearing office queue, significantly reducing the 6-9 month wait time. Further, SAAs can request additional evidence. They can hold conferences with claimants’ attorneys to resolve procedural and evidentiary issues. SAAs also can hold conferences with unrepresented claimants to explain hearing requirements and procedures.  

Unfortunately, SAAs are an underutilized resource at ODAR; most do not perform any of these roles in the hearing process. This was not always the case. In years past, when the Agency allowed full use of adjudicatory authority, SAAs contributed significantly to decreasing the number of pending claims and the extent of claimants’ wait times.

• From 1995 to 2000, 475 SAAs adjudicated over 200,000 decisions with an average processing time (APT) of 100 days compared to 386 days for ALJ hearing decisions.[7]

• In 2007, when the Agency reinstated the SAA adjudication program, it acknowledged SAA adjudications conserved ALJ resources for more complex cases that required hearings, reduced the backlog, and increased adjudication capacity.[8]  

• From 2007 to 2012, SAAs adjudicated a significant number of decisions. For example, in FY 2010 SAAs issued 54,000 decisions, 7% of all Agency dispositions.[9]   

SAA disposition numbers from 2008 to 2013 were striking:[10]

Year	SAA dispositions
2008	24,575
2009	36,366
2010	54,186
2011	53,253
2012	37,422
2013	18,627

  

SAA decision processing time also improved claimant wait times. In FY 2010, SAA decisions took only 165 days to process compared with 462 days for all cases. [11] 

The value of the SAA adjudicatory program has been widely accepted. OIG acknowledged in its 2013 audit report that the “SAA program has contributed to both an increase in adjudicative capacity and improved average processing time.”[12] Hearing office managers reported that office goals were met or exceeded due to SAA dispositions. One manager reported that SAAs issued between 50 and 135 cases per month, and another reported that SAAs handled 20% of the office productivity goal.[13] The OIG acknowledged that “SAAs’ additional adjudicatory capacity is especially important when the Agency is struggling to reduce its pending hearings backlog.”[14] The OIG recommended that ODAR consider expanding the types of cases SAAs adjudicated and align SAA positions and promotions with predicted workloads.[15]    

Nevertheless, in the face of surging hearing requests in 2014, ODAR eliminated SAA adjudicatory authority and imposed an arbitrary cap of 7,500 SAA decisions. Currently, ODAR prohibits its 550 highly experienced SAAs from independently screening pending claims or adjudicating fully favorable OTR decisions. Instead, hearing office supervisors (many of whom are not attorneys) select and assign cases to SAAs to review. If the SAA determines the case can be paid without a hearing, the SAA must write a detailed case analysis for an ALJ to review. If the ALJ agrees, the SAA writes the decision for the ALJ to review and sign (although the SAA has worked the case, the ALJ gets credit for the disposition). SAAs are allowed two hours to review cases assigned for OTR review, regardless of the size of the file or number of issues involved. SAAs may not independently obtain medical or vocational expert opinions or otherwise develop the claim. If the claim cannot be paid, the SAA completes a summary of the medical evidence and sends the case back to the queue—where the case will languish for 6-9 months before any development will be initiated. The case will not be scheduled for a hearing for another 2-3 months. By the time the hearing actually takes place, the claimant will have waited a year or more from the date he or she requested a hearing.

The Agency’s arbitrary refusal to allow SAAs to fully adjudicate favorable OTR decisions needlessly slows down the disability hearing process. From 2007 to 2013, when SAAs had full adjudicatory authority, they produced a high number of quality OTR decisions and significantly reduced claimants’ wait times. Since 2014, the Agency has restricted this talented and dedicated cadre of legal professionals from resolving cases early in the hearing process. The Agency could improve the disability determination process and expand decisional capacity—immediately and at almost  no cost—by fully using SAAs’ legal, analytical, and programmatic skills.  

SENIOR ATTORNEY ADVISORS ARE POISED TO IMPROVE ODAR’S PUBLIC SERVICE

ODAR’s senior attorneys deal with the intricacies of the legal-medical aspects of the Social Security disability program every day. They are experienced disability practitioners, well-versed in the law and possess a wealth of adjudicatory experience. Most have worked on thousands of cases and routinely advise ALJs. They are dedicated professionals who take pride in their work and are committed to the Agency’s public service mission, a logical and reliable adjunct to the ALJ corps. The public would be better served if ODAR leveraged the skills of its SAAs to screen, develop, and adjudicate OTR decisions, conduct pre-hearing conferences, and work with claimants’ representatives to simplify issues requiring a hearing. The public would be even better served if ODAR expanded the role of SAAs to include deciding unfavorable decisions on the record as claims examiners. 

A. ODAR Should Restore SAA Full Adjudicatory Authority

Currently, there are 550 SAAs at ODAR.[16] With full adjudicatory authority, this cadre would significantly streamline and expedite the disability hearing process at no additional taxpayer expense. Consider:

   SAAs Increase Adjudication Capacity

The Agency has hired approximately 200 ALJs in the past few years at great taxpayer cost. Most of these ALJs are new to the Agency and require significant training (at significant cost) and initially work a reduced workload while they learn the job. SAAs, by comparison, are fully trained. Each SAA has at least three years’ of experience at ODAR; most have substantially more. SAAs are a ready and reliable decision-making resource that can decrease the backlog and claim processing time without additional expensive hiring. They have regulatory authority to fully adjudicate certain cases without a hearing. They also would continue to write the more difficult ALJ decisions, thereby providing management with flexibility to direct either decision-making or decision-writing resources, as needed. 

SAAs Save ALJs Time

Under current regulations, ALJs are the only ODAR employees who can hold hearings. Allowing SAAs to screen and adjudicate OTR decisions in cases that do not require hearings leaves more time for ALJs to prepare for hearings, hold hearings, and make decisions in cases that require hearings. ALJs are under pressure to dispose of 500-700 cases per year. Allowing SAAs to fully adjudicate OTR decisions will conserve ALJ time and redirect staff resources to support ALJ dispositions and goals.

SAAs Require Less Staff Resources

Hearing office staff must conduct extensive development for ALJ cases. However, no such staffing is needed to process cases that a SAA adjudicates on the record, significantly reducing administrative costs. In OTR cases, the staff does not have to implement standing ALJ orders for case development, organize voluminous and often duplicative evidence, or schedule medical or vocational experts. And, because most hearing offices are significantly understaffed, preserving staff to support ALJ needs will produce greater efficiencies at the ALJ level.

Senior attorney advisors are trained to quickly recognize serious disabilities and analyze sophisticated and voluminous medical evidence. They do not require a cadre of support staff. They easily can identify gaps in the record. They can move cases in two months instead of two years.   

To address the hearing backlog effectively and immediately, the Agency can and must:

• Restore full adjudicatory authority to SAAs, including signatory authority.

• Allow SAAs to independently screen cases, including cases assigned to ALJs.

• Allow SAAs to fully develop cases, including obtaining medical and vocational opinions.  

• Promote more GS-12 attorney-advisors to GS-13 SAA positions

These are tried and proven processes in adjudicatory proceedings. Indeed, a similar federal agency, the HHS Office of Medicare Hearings and Appeals (OMHA), has implemented many of them. Like ODAR, OMHA faces a daunting number of current pending claims. OMHA, however, recognizes the value of using its experienced attorneys to expand the pool of available adjudicators. To increase efficiency and streamline the appeals process, OMHA allows its attorneys to independently decide and issue OTR decisions.[17] OMHA also allows attorneys to adjudicate claims on the record in which the claimant does not wish to appear at a hearing.[18] OMHA expressly recognizes that attorneys are as capable of processing these appeals as ALJs, but faster and at a lower cost.[19]

Implementing the proposed measures at ODAR will optimize resources, increase adjudicatory capacity, increase dispositional productivity, and provide immediate and significant relief to claimants. These measures also will create a career ladder, and provide increased incentives and advancement opportunities for productive and valuable employees. Inexplicably, ODAR is the only disability adjudication component that provides no career ladder after the initial GS-11 or 12 attorney advisor entry level position. The Office of Inspector General, the Office of General Counsel, and the Appeals Council all provide a career ladder to a GS-14. Rather than create a career ladder and incentivize legal and professional excellence in its ranks, ODAR has told its skilled GS-12 attorneys who seek promotional opportunities that they can either find a managerial position or leave the agency. The practice of underutilizing and disincentivizing skilled attorneys in whom ODAR has invested years of training serves no one, least of all the claimants who need their services.

B. The Agency Must Allow Senior Attorneys and Attorney Advisors to Conduct Pre-Hearing Conferences.

In October 2016, ODAR began a pre-hearing conference pilot in some hearing offices. A few days per month, SAAs met with unrepresented claimants a few weeks prior to their scheduled hearings.[20] Following a uniform script, the SAAs told claimants about their right to an attorney and provided a list of attorneys and representatives. Because the SAAs had reviewed the cases prior to the conference, they were able to ask claimants specific questions about recent work activity and medical treatment. This enabled SAAs to resolve evidentiary gaps in the record and recommend specific additional development before the hearing.  

ODAR’s data shows that pre-hearing conferences were productive and successful. Hearing postponements decreased. According to the Agency’s 2017 Updated CARES and Anomaly Plan, claimants who attended prehearing conferences went on to complete their hearings without postponement 56 percent of the time, compared to 28 percent for those who did not participate in a prehearing conference.[21] Beyond this, claimants were happy to talk to someone about their case. Most were unaware they had a right to representation. Some withdrew their claims. ALJs benefitted from the pre-hearing conferences because claimants came to hearings informed about the right to representation and other procedural matters. SAAs reported that conducting pre-hearing conferences improved morale because they knew they were making a difference and providing a service that claimants appreciated.    

Despite proven benefits to claimants, ODAR staff, and hearing office workflow, ODAR discontinued pre-hearing conferences in January 2017 and redeployed SAAs to focus on what the Agency termed a decision writing “crisis.”[22] ODAR plans to reinstate pre-hearing conferences, but on a limited basis and only with unrepresented claimants.[23] Rather than restrict measures that yield proven results, ODAR should expand pre-hearing conferences to provide even greater efficiencies by allowing SAAs to meet with claimants’ attorneys and representatives to obtain stipulations and discuss evidence.   

   Stipulations

SAAs and claimants’ attorneys and representatives can use pre-hearing conferences to reach written stipulations as to uncontested issues. For example, there often is little dispute as to the onset date of disability or whether the severity of a claimant’s impairments meets or equals a listing. These and other stipulations to facts not in dispute would simplify the ALJ’s case review, reduce the number of issues to be addressed at the hearing, and eliminate the need for decision writers to revisit the same issues again when they draft ALJ decisions.  

Evidence and On-The-Record Decisions 

A pre-hearing conference is the ideal venue for SAAs and claimants’ representatives to discuss and procure updated medical evidence and address gaps in the record. A pre-hearing conference is also the ideal venue to examine whether a hearing is needed, whether the claim can be decided on the record, what evidence would make that possible, and any other matters that might facilitate the expeditious processing of the claim, whether at hearing or on the record.      

Again, OMHA has recognized the value of expanded pre-hearing conferences conducted by experienced attorneys.  In OMHA’s FY 2018 budget request, the Chief Administrative Law Judge said:

OMHA will invest in the hiring [of] additional senior attorneys to support its administrative initiatives to address the pending workload. For example, the agency’s settlement conference facilitation program for interested appellants having multiple claims pending at OMHA was established in June 2014. OMHA has been encouraged by the results of the pilot program, which has resolved 10,383 appeals or the equivalent of one year of work for 10 ALJ teams (data as of February 28), and anticipates incorporating the program into its business model on a permanent basis.[24]  

To make good on the CARES commitment to benchmark with other agencies and learn about successful strategies, ODAR would do well to follow OMHA’s example and expand its adjudicatory capacity by embracing its SAA cadre. ODAR’s SAAs have the skills to conduct pre-hearing conferences and resolve claims that do not require expensive and time-consuming hearings, and the ability to narrow issues and streamline the hearing process for those claims that do. 

C.  The Agency Should Create a Claims Magistrate Program  

SAAs can quickly recognize serious disabilities and analyze sophisticated and voluminous medical evidence. They do not require a cadre of support staff. They easily can identify gaps in the record. They can move cases in two months instead of two years.

These skills easily support a new Claims Magistrate Program. Under this program, SAAs would screen the hearing office queue to identify cases that have fewer than 300 pages of medical evidence. Represented claimants would waive their right to a hearing but preserve the right to appeal. Representatives would submit a brief in support of the claim. The SAA claims magistrate would analyze the case and the entire record and issue a decision. This model is similar to the OMHA Settlement Conference program, in which claimants can waive a hearing and allow attorneys to adjudicate claims on the record without any ALJ involvement.

Although a Claims Magistrate Program would require new regulatory authority, the Program would expand ODAR’s adjudicatory capacity and streamline the hearing process by creating another adjudicatory avenue. Claimants who waive a hearing would get a faster decision without forfeiting their appeal rights. And, the Program would increase productivity, create a career ladder where currently there is none, and provide increased incentives and advancement opportunities for productive and valuable employees.   

CONCLUSION AND RECOMMENDATIONS

Every claimant is entitled to a disability claim decision, but not every disability claim requires an expensive and time-consuming ALJ hearing. The current ODAR model, in which only ALJs can hold hearings and the Agency continually needs more ALJs, more  support staff, and more funding, is not sustainable.  Nor is the practice of introducing one initiative after another only to halt them in order to redeploy resources to address one workload crisis after another (many of them predictable and months, if not years, in the making). The only business model realistically capable of providing mission-critical services on a sustained basis is a permanent expansion of adjudicatory capacity—but without the costs associated with hiring and onboarding new ALJs and more support staff. ODAR would do well to recognize, as OMHA has, that the Agency has built-in capacity if only it would allow its talented and experienced senior attorneys to use their legal skills and program knowledge to process claims early in the hearing office process.

NTEU recommends:

• Senior Attorney Advisors should be allowed to fully exercise their regulatory authority to screen, develop, and issue fully favorable decisions where the medical evidence supports disability.

• Senior Attorney Advisors should be allowed to conduct comprehensive pre-hearing conferences with claimants and their attorneys with the goal of resolving cases as early as possible in the hearings process. Senior attorneys should be allowed to enter into wide-ranging stipulations with claimants’ attorneys concerning procedural and evidentiary issues.

• The Agency should establish a Claims Magistrate Program to allow Senior Attorney Advisors to review and decide claims without a hearing. In developing such a program, the Agency would have wide latitude to decide the types of cases suitable for magistrate decisions and the contours of the program.  

• Rather than hire more ALJs who require extensive training and additional support staff, the Agency should promote its trained and qualified GS-12 Attorney Advisors to fill all the available 200 Senior Attorney Advisor positions.

NTEU believes these recommendations will significantly increase the Agency’s adjudicatory capacity, and thereby reduce the disability backlog, reduce case processing times, increase operational efficiencies, avert workload crises, and markedly improve the level of service the American public needs and deserves.     

Thank you for the opportunity to provide our comments.