SSA Administration

9/16/2008

Committee on Ways and Means

Good Morning Mr. Chairman and members of the subcommittee. My name is James Hill. I have worked as an Attorney-Adviser in the Office of Disability Adjudication and Review (formerly the Office of Hearings and Appeals) for over 25 years. I am also the President of Chapter 224 of the National Treasury Employees Union (NTEU) that represents Attorney-Advisers and other staff members in approximately 110 Office of Disability Adjudication and Review (ODAR) Hearing and Regional Offices across the United States.

Let me also mention that I am a resident of the 11th congressional district of Ohio. For many years I was deeply honored to be represented in Congress by the late Stephanie Tubbs-Jones. She was an outstanding member of the House and ably served on this subcommittee. I, my family and the members of my union mourn her passing.

Disability adjudication at SSA has a troubled history. The backlog problems of the SSA disability program began in the early 1990s when the cases pending at the then Office of Hearings and Appeals (OHA) hearing offices rose from approximately 180,000 in 1991 to approximately 550,000 in mid-1995. At the end of FY 1999 the number of cases pending at OHA had been reduced to slightly over 311,000 primarily as the result of over 220,000 decisions issued by Senior Attorneys in addition to the then record level of productivity by ALJs. In fact by the end of FY 1999, there was no longer an appreciable backlog, since 300,000 cases was deemed to be the optimum number of pending cases for efficient adjudication. The Hearings Process Improvement Plan (HPI) ended the Senior Attorney Program. The demise of the Senior Attorney Program and the rise of the backlog were not coincidental and are illustrative of the management deficiencies that have plagued the disability program. Since that time the number of cases pending at ODAR has risen to over 767,000 cases.

The size of the disability backlog (now over 467,000 cases) does not in and of itself illuminate the degree of suffering endured by our claimants. Because of this enormous backlog, the average age of cases pending at the hearings level increased from approximately 160 days in FY 2000 to the current 316 days. Average processing times at the hearings level have increased from approximately 260 days at the beginning of FY 2000 to the current 532 days. Even the 532 day figure is somewhat misleading. The average processing time for a case that has an ALJ hearing is 588 days. These unconscionable numbers do not include the time the case was at the State Agency for an initial and reconsideration determination. Further darkening the picture is the specter of significantly increased receipts resulting from the aging “baby boomers” and a less than robust national economy. Currently, SSA disability adjudication is unconscionably slow causing untold harm to some of the most vulnerable members of society. Unless decisive action is taken now, the dysfunction of the disability system may lead to the public’s loss of faith in Social Security.

Currently, it is in vogue to blame low producing Administrative Law Judges (ALJs) for the backlog. This is merely scapegoating. Further, given the recent statement by Office of the Inspector General (OIG) that the higher producing ALJs tend also to pay more cases, it is not unreasonable to assume that unreasonably high ALJ productivity will come at the price of stewardship of the trust fund. The Congress is also blamed for persistently underfunding the Social Security Administration as well as adding a number of non-core workloads diverting assets from its traditional programs. While SSA has been underfunded, it is under an absolute duty to use that funding as efficiently as possible. SSA has consistently failed to efficiently apply the resources it has at its command to effectively manage the disability adjudication process. The Government Accountability Office (GAO) in a report entitled Better Planning, Management, and Evaluation Could Help Address Backlogs published in December 2007 stated: “… management weaknesses as evidenced by a number of initiatives that were not successfully implemented have limited SSA’s ability to remedy the backlog.”

Because of a persistent lack of vision and leadership in its administration of the disability process, SSA has failed to prevent or reduce the backlog. Previous Commissioners have indulged in a number of expensive and ineffective initiatives that were intended to improve the disability system. The Disability Process Redesign of the mid-1990’s never got off the ground and the Hearing Process Improvement (HPI) of the early 2000’s is one of the prime causes of today’s backlog. Finally, the Disability Improvement Initiative (DSI) has been suspended. While each of these programs alleged that they were correcting fundamental flaws in the adjudication process, each was more concerned with form than function. As a result each of these plans cost the taxpayers millions and produced virtually nothing of value.

The process at the hearings level is quasi-judicial, not unlike the process that prevails in modern day court houses. There are some significant differences related to the informality of the proceedings such as the inapplicability of the rules of evidence, but these aid rather than impede an efficient process. The most significant difference between the ODAR process and that of most courts is the percentage of cases that do proceed through a hearing. The Honorable Ronald G. Bernoski, President of the Association of Administrative Law Judges, has noted on numerous occasions the necessity of reducing the number of cases that proceed to an ALJ hearing. In his response to questions from the Appropriation Committee, he stated: “Social Security can no longer have over 90% of its disability cases continuing on to a full hearing before an administrative law judge.” Judge Bernoski further stated “nowhere in our judicial system is a judge required to take to hearing such a high percentage of cases compared to the total docket.” NTEU absolutely concurs.

There are a number of contributing factors to the backlog at ODAR, but its fundamental cause is an inefficient adjudicatory process. ODAR is severely understaffed at the hearing office level. There is an over-reliance on the ALJs and a failure to make effective use of the other hearing office staff. Because of the lack of adequate staffing, ALJs are now performing many of the tasks formerly done by the other staff. ALJs are the only hearing office personnel that can conduct hearings, but much of their time is spent doing tasks that can be performed as well or better and certainly in a more efficient and fiscally responsible manner by other members of the hearing office staff.

The lack of adequate staff impedes the development and preparation of a case at the pre-hearing stage and causes further delays after the hearing. ALJs are expected to do prehearing screening, review “unpulled” files, conduct hearings on cases that have not been properly prepared, adjudicate cases not requiring a hearing for disposition, and decision writing. Primarily as a result of ill-advised short sighted fixes, ALJs have been drafted to perform many of the job duties of other staff. While in the short run these “fixes” appeared to increase productivity, in the long run they merely exacerbated the problem. The ALJs should be doing their job, not everyone else’s.

Another “quick fix” in the Plan to Eliminate the Hearing Backlog and Prevent Its Recurrence is an initiative that ordered the remand of profiled unworked cases from the hearing office back to the state agency. The state agencies reviewed the cases, and according to OIG paid 33% of those cases. Since only paper files were involved, both the hearing office and the state agency were required to allot significant work hours to the transportation, both to and from, of these files. This work was done on overtime by the state agencies. The review could have just as easily been performed by Attorney Adjudicators in the hearing office. More to the point, the state agencies have their own workload including Continuing Disability Reviews (CDRs) that have been to a great extent sacrificed to the disability backlog. The reduction in CDRs is particularly painful since each dollar spent on CDRs saves the trust fund 10 dollars. Additionally, failure to identify those who are no longer entitled to disability benefits seriously erodes the credibility of the disability system with the general public.

Staffing shortages have also resulted in the elimination and degradation of functions performed by the support staff that are essential in an efficient adjudicatory process. Because of the failure to replace the 450 clerical workers who were promoted to the Paralegal Specialist position pursuant to HPI, the task of the then Legal Assistants to prepare a case summary for the ALJ was eliminated. This significantly increased the time an ALJ must spend reviewing a file before the hearing. The lack of sufficient clerical staff has led to the overwhelming backlog in cases to be “pulled”. The current streamlined and modified pulling initiatives and the policy of encouraging ALJs to hear “unpulled” cases, instituted because of the lack of clerical staff to perform the “pulling” function, significantly increases the time much more highly paid ALJs, Attorney Advisers, and Paralegal Specialists must spend to perform their jobs. This is inefficient and fiscally irresponsible.

Because of inadequate numbers of Attorney Advisers, ALJs drafted over 91,000 decisions, about 10% of the decisions drafted in FY 2007 and FY 2008. ODAR maintains a staff of nearly 1300 Attorney Advisers and Paralegal Specialists whose primary responsibility is to prepare written draft decisions. While it is difficult to accurately quantify the amount of time ALJs devoted to decision drafting, it substantially reduced the time they could spend conducting hearings. A similar observation can be made about the overall effectiveness of having ALJs involved in early pre-hearing screening and adjudicating cases that do not require a hearing for disposition.

After the termination of the Senior Attorney Program in 2000, until November 2007, an Administrative Law Judge was required to adjudicate each and every case at ODAR hearing offices. During FY 2007 approximately 16% of ODAR dispositions and in FY 2008 over 18% of dispositions were dismissals. In FY 2007 over 18% of decisions and in FY 2008 over 20% of decisions were made on-the-record – without a hearing. Only an ALJ can conduct a hearing, but obviously not every case of ODAR hearing offices requires a hearing or ALJ involvement. In fact, during FY 2007 and FY 2008 nearly 1/3 of ODAR hearing office dispositions did not involve an ALJ hearing. The simple fact of the matter is that neither a hearing nor an ALJ is needed to dispose of every case. By relieving ALJs of the responsibility for adjudicating cases which do not require an ALJ, the ability of ALJs to focus on those cases requiring their expertise can be enhanced. That is the rationale behind the Attorney Adjudicator Program. The disposition of many of the dismissals and all on-the-record decisions can be accomplished without ALJ involvement, freeing the ALJs to hold more hearings and issue additional decisions.

Many cases (dismissals, fully favorable on-the-record cases, favorable requested closed period cases, and cases in which the claimant waived his/her right to a hearing) should be adjudicated without ALJ involvement. In FY 2007 84,800 decisions were issued on-the-record (without a hearing) and through the end of August 2008 88,175 on-the-record decisions have been issued. It is likely that over 95,000 on-the-record decisions will be issued in FY 2008 and over 100,000 in FY 2009. Nearly all of these decisions could have been issued by ODAR Attorney Adjudicators. With sufficient staffing to support the ALJs and an effective Attorney Adjudicator program, ODAR dispositions could easily increase by over 150,000 a year at a minimal cost.

As part of his Plan to Eliminate the Hearing Backlog and Prevent Its Recurrence, Commissioner Astrue has reinstituted a version of the original Senior Attorney Program that was largely responsible for eliminating the disability backlog in the 1990’s. Decisional accuracy is not an issue with the Attorney Adjudicator Program. Quality review by the Office of Quality Performance (OQP) establishes an accuracy rate beginning at 95% and subsequently rising to 97%, an extraordinarily high accuracy rate, particularly since OQP utilized a preponderance of the evidence standard (essentially substituting the judgment of the reviewer for that of the adjudicator) rather than the substantial evidence standard applied by most appellant bodies including the Appeals Council. The success of the former Senior Attorney Program in eliminating the backlog of the 1990’s and the very favorable beginning of the current Attorney Adjudicator Program render arguing the merits of the concept of attorney adjudication unnecessary. The Program should be made permanent immediately.

However, the current Attorney Adjudicator Program is only temporary and too limited in scope and range to attack the backlog problem as effectively as did the original Senior Attorney Program. Additionally, inadequate staffing of Attorney Advisers and Attorney Adjudicators and a limited, haphazard, ineffective and occasionally obstructive implementation by ODAR have severely limited the effectiveness of the Attorney Adjudicator Program in terms of the number of on-the-record decisions issued. Properly administered, this program will produce over 150,000 decisions a year in addition to, and not at the expense of, the number of ALJ decisions issued. Like its predecessor Senior Attorney Program of the 1990’s, the Attorney Adjudicator Program can help eliminate the current backlog and ensure that a backlog does not recur.

Nonetheless, despite the promise of the Attorney Adjudicator Program, the current crisis is of such magnitude that additional changes are required if SSA is to get control of the backlog problem within an acceptable timeframe. Recently, the Agency announced an increase in the number of Senior Attorneys to 450; a net increase of 81 positions. This is certainly a step in the right direction. However, the time allocated to case adjudication by Attorney Adjudicators is typically about one day a week. In a number of offices the initiative has never been implemented. At the current rate, the Program will have generated approximately 25,000 on-the-record decisions during FY 2008. While this reduced the rate of the increase in the pending, its long term effect, even considering the augmentation of the ALJ Corps to 1,250 ALJs, will not eliminate the backlog. Attorney Adjudicators, who in this very truncated program have produced over 22,000 on-the-record decisions so far this year with an accuracy rate of 97%, have demonstrated that fuller implementation of even this limited Attorney Adjudicator Initiative could have produced as many as 50,000 on-the-record decisions in FY 2008 thereby freeing the ALJs to hold many additional hearings. Such productivity from the Attorney Adjudicator Program requires securing sufficient decision drafting capacity to adequately support the ALJs. The productivity gains from the implementation of an expanded and comprehensive Attorney Adjudicator Program would be far greater.

ODAR can decrease its pending by well over 150,000 cases a year by promoting just 250 skilled and experienced GS-12 Attorney Advisers one grade, to the GS-13 Senior Attorney position, and allowing the Attorney Adjudicators to devote nearly all of their time to reviewing every disability case appealed to ODAR and adjudicating those cases that do not require ALJ participation (dismissals and cases in which on-the-record decisions can be issued). With unnecessary ALJ involvement, ODAR is currently generating nearly 100,000 on-the-record decisions. Given the number of receipts and the size of the backlog, the number of cases suitable for on-the-record treatment is at least 50% greater than the number of on-the-record decisions currently issued.

Because Attorney Adjudicators work on “unpulled” cases, an additional important benefit of a vigorous Attorney Adjudicator Program would be a significant decrease in the number of cases that need to be “pulled” leading to a significantly reduced average processing time. Attorney Adjudicators work on “unpulled” or “unassembled” files. Those that result in fully favorable decisions do not have to be “pulled”. The benefit from not having to “pull” these cases cannot be overstated. Today there are approximately 450,000 cases pending “pulling”; a workload that will require over 200 work days to process at which time approximately 450,000 new cases will have been received that will need to be pulled. Most ALJs will not and should not hold hearings on “unpulled” cases. ODAR’s inability to “pull” sufficient cases to maintain ALJ dockets is a significant factor in the creation and maintenance of the current backlog. Each disposition by an attorney adjudicator is one less case that must be “pulled” and one less case contributing to the backlog.

An extensive and intensive Attorney Adjudicator Program would involve a decrease in ALJ decision drafting capacity that must be replaced. In a Statement on Behalf of the Association of Administrative Law Judges, before the House Subcommittee on Labor, Health, and Human Services and Related Agencies of the Committee on Appropriations, Judge Bernoski stated that a judge could not perform his/her work in isolation and the support of sufficient competent and trained staff is essential. He further indicated that adequate staff included 2.5 attorneys and 2.0 clericals for each ALJ. While NTEU believes that ratio may be too high, clearly at least 1.5 Attorney Advisers are needed for each ALJ to draft ALJ decisions.

Currently, there are 1190 ALJs available for duty (the highest number since at least 1996) and approximately 1,270 Attorney Advisers and Paralegal Specialists (decision writers). In light of the current shortfall in the number of Attorney Advisers, the replacements needed for Attorney Advisers that would be promoted to the Senior Attorney position (250), and the capacity required to replace decision drafting by ALJs, approximately 400 new Attorney Advisers should be acquired. This is slightly less than the 440 attorneys that Judge Bernoski indicates are necessary to support the new 175 ALJs. NTEU recognizes that this constitutes a major increase in staff, but given the value of the 150,000 decisions in addition to those issued by ALJs and the increase in the number of ALJ decisions that adequate levels of staffing will facilitate, the cost of the additional staff is well justified. The current backlog could be eliminated by the end of FY 2011. The backlog would never recur.

The most effective remedy for the disability backlog is to hire sufficient staff, effectively utilize the skills of the staff, and permit the ALJs to direct their attention to the tasks that only they can do. Without sufficient support staff, SSA cannot properly prepare enough cases to fill the dockets of the ALJs or timely prepare and issue the written decisions. NTEU does not have sufficient information to accurately assess the number of additional clerical employees currently required to permit an efficient hearing operation. The acquisition of sufficient support staff would facilitate developing the record, scheduling hearings, pulling cases, and the other clerical work that needs to be done to support administrative hearings. In addition, hiring 400 additional attorneys and expanding the Attorney Adjudicator Program would permit ALJs to return to the task of deciding cases that required a hearing and would provide those disabled claimants who do not require a hearing a favorable decision months, if not years, earlier than otherwise would be the case.

SSA seems unwilling to acquire sufficient staff to permit efficient hearing office operations as it apparently believes that automation will significantly increase productivity without hiring additional staff. The GAO Report of December 2007 reported that many SSA senior managers and ALJs recommended a staffing ratio of 5.25 support staff to administrative law judge. With over 767,000 cases pending and the backlog continuing to grow it would be dangerous to reduce or suppress staffing based on potential improvements from unproven and in some cases non-existent electronic automation initiatives.

Even if all of the Agency’s electronic initiatives can be developed and implemented successfully there is no evidence that ODAR will require significantly less staff in light of an increasing case load and the 767,000 cases currently that have to be processed. If history is the guide, optimism is probably not justified. SSA automation initiatives rarely, if ever, come in on time, and even more rarely deliver what was promised. For example, the unjustified reliance in technology instead of professionally trained employees is demonstrated by the Agency’s proposal to increase the number of decisions drafted by ALJs through automation. OIG reported that a SSA initiative involves using a FIT template to create instructions that generate the rationale for favorable decisions. I have seldom, if ever, seen instructions detailed enough to generate the rationale for a decision. These “decisions” may well be CDR proof preventing those who are no longer disabled from being removed from the rolls. It also betrays a tendency to deal with the backlog by “paying down” the backlog that winds its way throughout the Plan to Eliminate the Hearing Backlog and Prevent Its Recurrence.

In any event the crisis is now, and the solution should be directed toward the present. While automation may and almost certainly does hold promise for the future, ignoring the present while focusing on the future is one of the causes of the backlog. Even if the success of automation does reduce the number of employees needed, the demographics of the work force indicate that retirement will more than eliminate any chance of excess employees.

SSA is also committing funds to establishing “National Hearing Centers”. The first is already operational in Falls Church, VA; the second is in Chicago which already has four hearing offices; and a third is to be situated in Albuquerque, NM co-located with the hearing office. No operational efficiencies are achieved through the establishment of these adjudicating entities that are not already and better served at hearing offices. Certainly the capacity for conducting video-conference hearings already exists in nearly every current hearing office to facilitate conducting remote hearings and for adjudicating temporary excess workloads. We see no value in creating a duplicate hearing structure and attendant bureaucracy. The centralized nature of National Hearing Centers, which do not provide for in-person hearings, will alienate the public and further damage the Agency’s credibility. For more than seventy years SSA has strived to maintain face-to-face contact at the local level with the public it serves. This is one of the factors that separate SSA from the majority of federal agencies. The proliferation of National Hearing Centers will significantly weaken the bond between SSA and the public it serves while not adding value to the process. Not incidentally, National Hearings Centers significantly lessen the ability of a Member of Congress to effectively protect the rights of his/her constituents.

The advent of electronic hearing folders facilitates the movement of cases to other hearing offices as easily as to a National Hearing Center. There is no operational justification for the establishment of such centers. Moreover, their unique staffing structure emphasizes the Agency’s commitment to achieving its political rather than operational goals over providing high quality service to the public. The extent and the expense to which SSA pursues the National Hearing Center concept rather than committing these assets to hearing offices should give all a reason to doubt the sincerity of the Agency to provide quality service to the public.

In order to expeditiously eliminate the backlog and prevent its recurrence NTEU recommends:

Hiring 400 additional Attorney Advisers.

Expanding and making permanent the Attorney Adjudicator Program.

Expanding the jurisdictions of Attorney Adjudicators to include dismissals and cases in which the claimant waives his/her right to a hearing.

Hiring sufficient clerical staff to adequately support the ALJs.

Ensuring that new automation processes are properly tested and viable before they are fully implemented.

Making no reduction of hearing office staff based on unproven automation initiatives.

Making no reduction in hearing office staff until the backlog is eliminated and there are no more than 300,000 cases pending at ODAR hearing offices.

Eliminating the National Hearing Centers in order to expand the local hearing offices.