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21–182 PDF 2016

S. Hrg. 114–424 

EXAMINING DUE PROCESS IN ADMINISTRATIVE 

HEARINGS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

OF THE

COMMITTEE ON 

HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

SECOND SESSION 

MAY 12, 2016 

Available via http://www.fdsys.gov 

Printed for the use of the Committee on Homeland Security 

and Governmental Affairs 

( 
(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

CHRISTOPHER R. HIXON, Staff Director 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

LAURA W. KILBRIDE, Chief Clerk 

BENJAMIN C. GRAZDA, Hearing Clerk 

SUBCOMMITTEE ON REGULATORY AFFAIRS AND FEDERAL 

MANAGEMENT 

JAMES LANKFORD, Oklahoma, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

MICHAEL B. ENZI, Wyoming 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

HEIDI HEITKAMP, North Dakota 

JON TESTER, Montana 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

JOHN CUADERESS, Staff Director 

ERIC BURSCH, Minority Staff Director 

RACHEL NITSCHE, Chief Clerk 
(III) 

C O N T E N T S 

Opening statement: Page 

Senator Lankford .............................................................................................. 1 

Senator Heitkamp ............................................................................................ 3 

Prepared statement: 

Senator Lankford .............................................................................................. 27 

Senator Heitkamp ............................................................................................ 29 

WITNESSES 

THURSDAY, MAY 12, 2016 

Theresa Gruber, Deputy Commissioner, Disability Adjudication and Review, 

U.S. Social Security Administration ................................................................... 5 

Hon. Marilyn Zahm, Administrative Law Judge, Buffalo, New York, Office 

of Disability Adjudication, and President, Association of Administrative 

Law Judges ........................................................................................................... 6 

Joseph Kennedy, Associate Director, Human Resources Solutions, U.S. Office 

of Personnel Management ................................................................................... 8 

ALPHABETICAL LIST OF WITNESSES

Gruber, Theresa: 

Testimony .......................................................................................................... 5 

Prepared statement with attachment ............................................................. 30 

Kennedy, Joseph: 

Testimony .......................................................................................................... 8 

Prepared statement .......................................................................................... 69 

Zahm, Hon. Marilyn: 

Testimony .......................................................................................................... 6 

Prepared statement with attachment ............................................................. 57 

APPENDIX 

Chart submitted by Judge Zahm ............................................................................ 68 

Statements submitted for the Record: 

Federal Administrative Law Judges ............................................................... 74 

Allsup, Inc. ........................................................................................................ 77 

National Organization of Social Security Claimants’ Representatives ........ 83 

Responses to post-hearing questions for the Record: 

Ms. Gruber ........................................................................................................ 89 

Ms. Zahm .......................................................................................................... 103 

Mr. Kennedy ..................................................................................................... 120 

(1) 

EXAMINING DUE PROCESS IN 

ADMINISTRATIVE HEARINGS 

THURSDAY, MAY 12, 2016 

U.S. SENATE, SUBCOMMITTEE ON REGULATORY, AFFAIRS AND FEDERAL MANAGEMENT, OF THE COMMITTEE ON HOMELAND SECURITY

AND GOVERNMENTAL AFFAIRS, Washington, DC. 

The Subcommittee met, pursuant to notice, at 9:04 a.m., in room 

SD–342, Dirksen Senate Office Building, Hon. James Lankford, 

Chairman of the Subcommittee, presiding. 

Present: Senators Lankford, Sasse, Heitkamp, and Tester. 

OPENING STATEMENT OF SENATOR LANKFORD 

Senator LANKFORD. Good morning, everyone. Welcome to today’s 

Subcommittee hearing. Today we are going to look at several issues 

surrounding administrative law judges (ALJs), their independence, 

and the importance of due process as provided by the Administrative Procedures Act (APA). The APA validates due process principles through the guarantee of an administrative hearing before 

an independent decisionmaker. These independent and impartial 

decisionmakers are most often administrative law judges. 

The office of the ALJ is unique in our Federal Government. Although they are like Federal judges in the sense that we expect 

them to preside over formal administrative adjudications independently, ALJs are, in fact, executive branch employees selected by the 

Office of Personnel Management (OPM) to oversee adjudications as 

required by law. Though ALJs are spread throughout the executive 

branch, our focus today will center on ALJs from the Social Security Administration (SSA), as they employ the largest number of 

Federal ALJs. ALJs are hired through the Office of Personnel Management. OPM is tasked with reviewing all ALJs’ qualifications. 

And OPM has made strides in providing qualified ALJs to the Social Security Administration and elsewhere across the executive 

branch. 

At the same time, over the last four 4 years, Congress has appropriated significant resources so that the Social Security Administration could hire more ALJs to address its backlog of disability 

claims. Yet, the agency has been unable to hire sufficient numbers 

of approved ALJs to tackle the rising backlog of cases—a backlog 

which topped 1 million last year and, may I say, in my own State 

of Oklahoma around 13,000. But instead of hiring more ALJs, in 

a misguided effort to expedite the adjudications process, the Social 
2 

Security Administration is in the process of moving tens of thousands of pending cases from ALJs to non-APA attorney examiners, 

who are regular employees of the agency and lack the requisite 

decisional independence. In March, SSA posted close to 30 nonAPA ‘‘Attorney Examiners’’ job openings to support this initiative. 

The Social Security Administration proposal raises important questions about whether cases heard by non-APA attorneys constitutes 

a violation of the Administrative Procedures Act. Further, Social 

Security regulation makes repeated reference to a claimant’s right 

to an independent decision from an ALJ. 

SSA’s newfound policy also raises procedural issues. Given the 

magnitude and potential economic effect of the Social Security Administration’s proposed reinterpretation of its own rule here, it appears that the rule should also have been submitted by SSA to the 

Office of Information and Regulatory Affairs (OIRA). Economics 

aside, the proposal creates an inequity where some claimants will 

receive the independent decision guaranteed to them by the APA 

and others may not. Furthermore, for non-disability cases the loss 

of due process is compounded by the fact that a majority of these 

individuals are unlikely to have access to attorney representation 

due to a lack of a financial incentive for that attorney representative. But once a sizable number of claimants have been denied a 

hearing before an ALJ, there is the potential that the Social Security Administration’s proposal to move cases away from ALJs to 

non-APA attorneys could result in a large class action lawsuit. 

While we all share the goal of eliminating the hearing 

backlog—and I do agree we all share that goal—it is our concern 

not just about meeting those results; we must also focus on how we 

get there. Accordingly, there are three main points I would like to 

address today: 

First, I would like to focus on the how attorney examiners, 

drawn from the SSA’s own ranks, can be said to appear impartial, 

especially to the extent that they may review cases de novo. 

Second, I would like to know more about the Social Security Administration’s policy pivot, which in the past allowed for certain 

transfers on a case-by-case basis, to permit now large-scale transfers of entire classes of cases. 

Third, I believe we need to carefully consider alternative proposals to the Social Security Administration’s untested and legally 

ambiguous policy, such as using retired ALJs from local offices to 

hear these cases. If the Social Security Administration believes 

that there are not enough qualified ALJs to meet the current demand, shouldn’t they and OPM instead focus on new recruitment 

efforts to increase the supply of worthy applicants? 

There are a lot of issues as we deal with Social Security right 

now. There are some success stories. I met yesterday with the Inspector General (IG), talking about the fraud that has now been exposed in the West Virginia case. It is a $600 million fraud case that 

was exposed. There are others on the horizon. I am proud of the 

work that SSA is doing in changing some of the processes for handling ALJs and some of the oversight and some of the intentional 

things they are doing to be able to work on the backlog. We just 

have to make sure that we do this right. 
3 

There are millions of dollars in each of these fraud areas, and 

there is a lot that is pending in case we have an exposed area for 

a class action lawsuit. It has got to be done right. 

We are happy to have with us here today Deputy Commissioner 

Theresa Gruber from the Social Security Administration, Associate 

Director for H.R. Solutions Joseph Kennedy from the Office of Personnel Management, and Marilyn Zahm, an ALJ from the Social 

Security Administration, to help us navigate these important 

issues. We are grateful for your testimony. I look forward to the 

issues we will discuss at this hearing. 

With that, I would like to recognize Ranking Member Heitkamp 

for her opening remarks. 

OPENING STATEMENT OF SENATOR HEITKAMP 

Senator HEITKAMP. Thank you, Mr. Chairman, and thank you for 

that great outline of why we are here today. I think over several 

decades, Congress has held dozens of hearings about the Social Security Administration and its management of retirement and disability benefits. This oversight is important since traditional Social 

Security and Social Security disability are critical and important 

programs that impact people all across the Nation, and in North 

Dakota. 

Since I took office in 2013, literally hundreds of North Dakotans 

have asked me for help in navigating the Social Security programs. 

It works out to about five new cases every month. Many of these 

individuals are seeking help with the appeal of a disability claim. 

Others find themselves subject to overpayments or caught in some 

other kind of bureaucratic struggle. Nationwide, there are over 1 

million people awaiting a decision or hearing by the Social Security 

Administration. These millions of individuals find themselves 

caught up in bureaucracy, struggling to find the correct path forward—whether it is submitting the correct medical proof or understanding the disability program rules. It is critical that today we 

keep these citizens in mind. 

Our interest today in the big and complicated subject of Social 

Security disability is relatively narrow. We want to learn about the 

Social Security Administration’s proposal to shift certain non-disability appeals away from the realm of administrative law judge 

hearings to proceedings presided over by administrative appeals 

judges (AAJs) and attorney examiners within the agency’s Appeals 

Council. This proposed action has raised, I think, very serious 

questions about whether this change will accomplish what the Social Security Administration hopes to achieve and, most importantly, the impact of this policy on the thousands of Americans 

seeking appeals of these decisions. 

I look forward today to better understanding the differences between ALJs and attorney examiners, as well as the challenges the 

Social Security Administration faces in managing competing needs 

and challenges. I want to fully understand the rationale for this 

change and, most importantly, get clarity on how claimant due 

process will be affected if this plan is implemented. 

Those who are familiar with the work of this Subcommittee know 

that we are interested—in fact, charged with the responsibility of 

improving the efficiency, transparency, and effectiveness of our 
4 

Federal Government. This hearing provides an opportunity to discuss how this proposal meets those standards, while ensuring the 

integrity and fidelity of administrative appeal decisions. 

Finally, given the important role that the Administrative Procedures Act plays in much of this Subcommittee’s work, I welcome 

testimony that illuminates how and why the independence conferred upon ALJs by the APA should be preserved or enhanced. 

That is a critical question here, because it seems that we have 

taken a turn and deviated from what has always been the norm 

when you make a change like this, especially when it involves due 

process under law, the only opportunity that someone has to 

present their case, impartiality, the fact that you should have an 

opportunity to not be judged by people who probably already were 

part of a system that judged your claim. It is a troubling set of 

facts, but my mind I think remains open to better understand how 

we can improve efficiency but not take shortcuts on due process or 

on the rights of citizens of this country, especially to critical programs like the Social Security program. 

So thank you again. I look forward to your testimony, and I look 

forward to this Committee’s discussion after your testimony. 

Senator LANKFORD. Thank you. At this time we will proceed with 

testimony from our witnesses. 

Ms. Theresa Gruber is the Deputy Commissioner for Disability 

Adjudication and Review at the U.S. Social Security Administration. Ms. Gruber has served the Social Security Administration in 

various capacities since starting with the Minnesota field office in 

1991. She has a Bachelor of Arts from St. Mary’s University in 

Minnesota. 

Ms. Marilyn Zahm is an administrative law judge at the Buffalo, 

New York, Office of Disability Adjudication and Review with the 

U.S. Social Security Administration, where she was appointed in 

1994. She is in the first year of a 3-year term as president of the 

Association of Administrative Law Judges. You know what the best 

role is in any association? Past president. [Laughter.] 

Yes, and you are in your first year of 3 years as the president, 

so you have to take it on. 

Before becoming an ALJ, Ms. Zahm was a litigator for the National Labor Relations Board (NLRB) and legal services authority. 

Mr. Joseph Kennedy is Associate Director for Human Resources 

Solutions at the U.S. Office of Personnel Management. He has 

worked on H.R. reform in various capacities within the OPM office 

and was a Fellow to Congresswoman Morella. Mr. Kennedy received his Bachelor of Arts from the University of the District of 

Columbia. 

I would like to thank all of our witnesses for appearing before 

us today. It is the custom of the Subcommittee to swear in witnesses, so if you do not mind, I would like to ask you to please 

stand and raise your right hand. Do you swear that the testimony 

that you will give before this Subcommittee will be the truth, the 

whole truth, and nothing but the truth, so help you, God? 

Ms. GRUBER. I do. 

Judge ZAHM. I do. 

Mr. KENNEDY. I do. 
5 

1The prepared statement of Ms. Gruber appears in the Appendix on page 30. 

Senator LANKFORD. Thank you. You may be seated. And let the 

record reflect the witnesses have all answered in the affirmative. 

We are using a timing system today. You will see a clock in front 

of you as you start your oral testimony. Obviously, your written 

testimony is already a part of the permanent record. In your oral 

testimony, if you can stay as close to 5 minutes as you can, that 

will allow question time, and we will have interaction time for a 

while. 

Ms. Gruber, we are honored to be able to receive your testimony 

first. 

TESTIMONY OF THERESA GRUBER,1 DEPUTY COMMISSIONER, 

DISABILITY ADJUDICATION AND REVIEW, U.S. SOCIAL SECURITY ADMINISTRATION 

Ms. GRUBER. Thank you, Chairman Lankford, Ranking Member 

Heitkamp, and Senator Sasse. My name is Theresa Gruber. As the 

Deputy Commissioner for Disability Adjudication and Review since 

July 2015, I am responsible for SSA’s hearings and appeals operation. Thank you for inviting me today to discuss the significant 

public service challenge that we face, over 1.1 million individuals 

and their families awaiting a hearing decision. 

I began my career at SSA in a Minnesota field office, as you said, 

and I have known firsthand the faces behind each appeal and am 

profoundly aware that they are counting on us to make decisions 

in their cases. 

It troubles me that people are waiting an average of 17 months 

for a hearing decision, and in some places the wait is considerably 

longer. Any wait, but especially this wait, is too long for Americans 

who are facing hardship, having to make unimaginable choices between one basic need like paying a mortgage or rent over another 

equally important one. The status quo is unacceptable. 

Given the urgency of the situation, we must take every reasonable step to reduce the amount of time people across the Nation 

wait for a hearing decision. As outlined in my written testimony, 

we have developed a comprehensive multi-year plan: the Compassionate and Responsive Service (CARES) plan. 

A key pillar of that plan is our significant and collaborative effort 

to timely recruit, hire, and retain enough administrative law 

judges, to meet the extraordinary demand. And I thank both my 

colleagues on the panel for their help toward that end. 

We know, though, that progress on that front will not come fast 

enough to address the critical need to increase decisional capacity 

quickly, so ALJ hiring is not our only strategy. 

Our plan combines a number of initiatives to help increase 

decisional capacity. One of the initiatives, the Adjudication Augmentation Strategy, is part of an all-hands-on-deck approach where 

we will use highly qualified administrative appeals judges, or 

AAJs, from the Appeals Council to help bring down the backlog. 

These adjudicators will hold hearings, where necessary, and issue 

decisions in non-disability cases and in disability cases that are already pending before them that may have otherwise been remanded back to an ALJ. If we are going to be successful in reduc-
6 

1The prepared statement of Judge Zahm appears in the Appendix on page 57. 

ing wait times for Americans, we must increase our decisional capacity at the hearing level. 

Let me assure you at the outset that our decision to have AAJs 

on the Appeals Council hold hearings and issue decisions in certain 

cases comports with due process. Since its inception in 1940, the 

hearings process has safeguarded a claimant’s right to due process 

and continues to do so. 

The fundamental requirement of due process is that the decisionmaker be fair and impartial. While hearings have generally been 

conducted by ALJs, previously called ‘‘referees’’ and then ‘‘hearing 

examiners,’’ our Appeals Council members have always had the authority to hold hearings and issue decisions. When our Appeals 

Council members take these actions, they follow the same rules as 

ALJs. 

Our hearings process provides, for example, a neutral decisionmaker; an opportunity to make an oral presentation to the decisionmakers; an opportunity to present evidence and witnesses; an 

opportunity to confront and cross-examine evidence and witnesses; 

the right to appoint a representative; and a decision based on the 

record with a statement of the reasons for the decision. Our Appeals Council members will provide no less. 

The augmentation strategy is just that: an augmentation of, not 

a replacement of, ALJs. In fact, with adequate and sustained funding, we plan to have a record number of ALJs on board by fiscal 

year (FY) 2018, that number being 1,900. 

We will continue to collaborate with Congress, our employees, 

our Federal partners like OPM, our union, and advocates to reduce 

wait times. We have made some progress. We are on target this 

year to reduce the wait time for those who have waited the longest. 

The Fiscal Year 2017 President’s budget request gives us the 

best chance to stay on track to fulfill our collective duty as public 

servants and take the steps we need. 

The people and families waiting are not just numbers or a distant statistic. They are people in our communities, and for some of 

us in our families, each entitled to a quality and timely hearing decision, and I am confident both our ALJs and AAJs will provide. 

We ask for your support, and I thank you for your time today. And 

we will be happy to take any questions. 

Senator LANKFORD. Thank you. Ms. Zahm. 

TESTIMONY OF HONORABLE MARILYN ZAHM,1 ADMINISTRATIVE LAW JUDGE, BUFFALO, NEW YORK, OFFICE OF DISABILITY ADJUDICATION AND REVIEW, U.S. SOCIAL SECURITY ADMINISTRATION, AND PRESIDENT, ASSOCIATION OF 

ADMINISTRATIVE LAW JUDGES 

Judge ZAHM. Chairman Lankford, Ranking Member Heitkamp, 

Senator Sasse, thank you for this opportunity to discuss the Social 

Security Administration’s plan to divert two categories of cases 

from administrative law judges to attorney examiners. 

As mentioned, I am president of the Association of Administrative Law Judges, and the views I express today are those of the 

judges. 
7 

1The chart referenced by Judge Zahm appears in the Appendix on page 68. 

No one is more aware of the seriousness of the unprecedented 

pending caseload than the ALJs, who every day see the toll that 

waiting for a hearing can take on a claimant. 

The agency plans to hire 65 new attorney examiners with the internal organizational title of administrative appeals judges, along 

with close to 300 staff, to hold hearings and issue decisions on nondisability and remanded cases. 

The agency’s initiative to remove these cases from ALJs violates 

the Administrative Procedure Act, which requires APA judges to 

hear APA cases. It also violates the agency’s own regulations. 

Moreover, this plan eliminates valuable rights that have been 

granted to the American public. 

For decades, ALJs have conducted evidentiary hearings on appeals made from adverse agency determinations in conformity with 

SSA’s own regulatory scheme set out in the Code of Federal Regulations (CFR). The regulations guarantee the right to a hearing before an ALJ. 

What SSA plans to do is to remove categories of cases from ALJs 

and have these cases heard by their own hand-picked people. It 

contends that Appeals Council attorneys are equivalent to ALJs. 

This is simply not true. 

Please review the chart1 that is included and is up here on the 

floor—yes—comparing ALJs to Appeals Council attorneys with regard to qualifications in hiring, discipline, hearing authority, ex 

parte contacts, performance reviews and bonuses, and claimants’ 

appeals rights. 

Why are all these safeguards and rules for APA judges important? They are what gives the American public confidence that they 

will get a fair hearing, that a judge is independent and cannot be 

improperly influenced by the agency. This is the very right that 

Congress granted to the American people when it passed the APA 

in 1946. 

These new Appeals Council attorneys, who have never held SSA 

hearings or issued decisions, will have to undergo training, and 

since they will all be located in the D.C. area, they will have extensive and costly travel to hold hearings. 

SSA has told the Association of Administrative Law Judges 

(AALJ) that this new program is temporary and will last for one 

year. But the precedent of having decisions made by individuals 

who are not APA judges will be long-lasting. 

Under the agency’s plan, claimants who appear before these Appeals Council adjudicators will lose their right to a level of appeal. 

Instead of simply writing a letter to the Appeals Council to obtain 

a review of their cases, their recourse will be to file an action in 

Federal district court, a much more difficult and expensive endeavor. 

The regulations SSA uses to justify its plan do not provide sufficient legal support for its position. I refer you to the legal analysis 

prepared by administrative law expert Dean Harold Krent, who 

has concluded that these regulations do not permit the agency to 

transfer whole categories of cases to the Appeals Council for hearing. This plan is a case of unnecessary bureaucratic overreach. 
8 

1The prepared statement of Mr. Kennedy appears in the Appendix on page 69. 

The AALJ has suggested an alternative use of these resources to 

reduce the pending caseload. The particulars are set out in my 

written Statement. Our proposal does not violate a claimant’s right 

to an independent APA adjudicator or a claimant’s right to an internal level of appeal, nor does it contravene long-standing regulatory procedures. 

In conclusion, SSA’s initiative to supplant ALJs with Appeals 

Council attorneys eliminates APA protections for the American 

public in the name of expediency. Not only is this plan ill-advised, 

it will not make a dent in the backlog of pending cases. More likely, a court challenge will necessitate the rehearing of all of these 

cases by an ALJ. We are adamantly opposed to this plan. 

Thank you. 

Senator LANKFORD. Thank you. Mr. Kennedy. 

TESTIMONY OF JOSEPH KENNEDY,1 ASSOCIATE DIRECTOR, 

HUMAN RESOURCES SOLUTIONS, U.S. OFFICE OF PERSONNEL MANAGEMENT 

Mr. KENNEDY. Chairman Lankford, Ranking Member Heitkamp, 

and Members of the Subcommittee, I am pleased to have the opportunity to testify this morning regarding the role of OPM with respect to the hiring process for administrative law judges. 

ALJs help ensure fairness and certain procedural requirements 

are met in administrative proceedings before Federal agencies. 

Twenty-eight Federal agencies employ ALJs, and as of September 

2015, there are approximately 1,800 ALJs across the Federal Government. 

Consistent with the Administrative Procedure Act and civil service law, OPM is responsible for establishing ALJ qualifications and 

classification standards, developing and administering the ALJ examination, and maintaining a register of qualified candidates. To 

preserve the independence of ALJs, OPM approves certain personnel actions affecting incumbent and former ALJs, such as promotions, transfers, reassignments, reinstatements, and details, and 

approves agencies’ position descriptions for ALJs. 

To provide surge support, OPM also administers the ALJ loan 

program and the senior ALJ program. To be qualified, applicants 

must be licensed and authorized to practice law and must also 

have 7 years of relevant experience. ALJ applicants also must undergo an examination. For the 2013 examination, OPM psychologists surveyed the Federal ALJ population and worked closely with 

incumbent ALJs from across the country to develop the current 

multi-hurdle assessment process. 

Given the breadth and the input from ALJs across the government and the rigor with which the exam was developed, OPM has 

great confidence in the ability of this examination to identify highquality candidates for ALJ positions across government. Under this 

examination process, applicants who meet the preliminary qualification requirements go through an online assessment. Applicants 

in the higher-scoring subgroup are invited to participate in the inperson component of the examination. Eligible candidates are then 

placed on the ALJ register based on their final numeric rating. 
9 

Agencies make selections from the candidates provided by OPM 

consistent with the law governing Competitive Service. 

OPM is confident there is a robust list of candidates on the current register to cover the near-term hiring needs of agencies. However, we recognize that SSA is facing an unprecedented challenge 

to manage their current backlog. We are working closely with SSA 

leadership to respond to the increasing need of ALJ candidates 

they need to meet their hiring goals to manage the backlog. 

For example, during the past year, OPM processed additional applicants under the 2013 announcement and added candidates to 

the register. OPM also opened the ALJ examination for new applicants by April 1st, as required by the Bipartisan Budget Act of 

2015. Prior to opening, OPM conducted an extensive recruitment 

effort, targeting national bar associations, women and minority bar 

associations, ALJ associations and unions, chief ALJs, and various 

veterans organizations. When the announcement was posted, it 

yielded more than 5,500 applications, the largest applicant pool in 

more than 15 years. OPM is currently reviewing the applications 

to determine which applicants meet preliminary qualifications. 

After we complete the administration of the examination, which 

will take some time, OPM will add the candidates who successfully 

completed all the components of the examination to the register. 

The new candidates and the candidates currently on the register 

will remain there until they are appointed to an ALJ position or 

until OPM develops and administers a new ALJ examination. 

While keeping in mind its government responsibilities, OPM has 

worked collaboratively with SSA for over a year to assist SSA with 

its hiring needs. OPM meets with SSA officials, providing suggestions to their hiring process, and as noted previously OPM recently 

administered the examination to an additional wave of 2013 applicants to further supplement the list of available candidates on the 

register. These efforts added depth to the pool OPM draws from to 

provide candidates to agencies that employ ALJs, including SSA. 

OPM is committed to continue working with SSA so it can appoint 

more ALJs. 

Thank you for having me here today, and I will be happy to answer any questions you may have. 

Senator LANKFORD. Thank you, Mr. Kennedy. Thank you to all 

of our witnesses for their testimony today. This conversation, as is 

the habit of this Subcommittee, is a more open dialogue as we go 

through the questions, and so we will have a lot of back-and-forth. 

I want to get just a couple clarifying statements here at the beginning of this. Ms. Gruber, how many ALJs does the Social Security Administration have right now? 

Ms. GRUBER. At last count, 1,506. 

Senator LANKFORD. OK. And your statement is we need to get to 

1,900. 

Ms. GRUBER. That is our current hiring plan: 250 this year, 250 

next year, 250 the following year. I will say we have slightly adjusted our expectation this year because we are trying to gauge 

whether this summer, will be able to hire enough ALJs to meet the 

250. So I am thinking 225 to 250 will be our target for this year. 

But by that, we would top out at about 1,900. 
10 

Senator LANKFORD. Do you have enough in the pool from what 

OPM is sending you? My understanding is OPM is sending about 

5,000—they get about 5,000 applications coming in for ALJs. Then 

they are whittling that number down to try to get you the number 

that they would recommend from the pool that then they are handing to you. Do you have enough to be able to get to that 250 number? Or are you saying there are not enough qualified folks to be 

able to get to the 250 number? 

Ms. GRUBER. Just to be clear, as for the new exam, we will not 

have access to those names until about, I would say, the spring of 

2017, although we are working collaboratively with OPM to see if 

there is any way to streamline and speed up that timeline. 

With respect to the—— 

Senator LANKFORD. How many do you have access to now? If 

that is the spring of 2017, do you have access to some in the spring 

of 2016? 

Ms. GRUBER. As Mr. Kennedy testified, they updated our registers or our certificate of eligibles both in November and in March. 

Right now, we are interviewing from the March certificate. We 

have 81 certificates for 81 different geographic locations. In each 

geographic location, we have multiple vacancies, generally, two or 

three. In some places we have as high as six, seven, or eight vacancies. 

When we received our aggregate list of certificates in March, we 

received about 5,800 names. It is important, though, to recognize 

for us that is not the number of candidates—and if I were an ALJ 

candidate myself, I would apply for many locations. So when we 

looked at the 5,800, we actually only have access to, I think, 260 

unique names for vacancies across 81 offices. What we are doing 

right now is interviewing those individuals—— 

Senator LANKFORD. So wait. I am sorry to interrupt you. 

Ms. GRUBER. Sure. 

Senator LANKFORD. You have 260 applicants for—— 

Ms. GRUBER. Unique names that we can consider for the vacancies across 81 locations, correct. 

Senator LANKFORD. So when we talk about 5,000 on this, for 

OPM, how many does OPM receive as far as applicants total that 

you have worked down to that 260 then? Is that the 5,000 number 

that I have seen before? There are 5,000 applicants as you interview and go through the first stage and as you are getting down 

to about 260, then they are trying to apply to multiple locations 

from there? 

Mr. KENNEDY. Mr. Chairman, thank you for that question. When 

we receive about 5,000 applicants, you typically will see about 

maybe 50 percent of those will actually fall out. 

Senator LANKFORD. Right. And so you are thinking there are 

2,500 or so that are going through the process. Then that actually 

gets down to 260? That is what I am trying—this is a new number 

for us, to say there are 260 individual names. 

Ms. GRUBER. Sure. Again, as Mr. Kennedy had said, there are 

applicants who apply for the exam. 

Senator LANKFORD. Sure. 

Ms. GRUBER. Then they go through a number of stages in the 

OPM process, and as he had said, about half fall out. What actually 
11 

gets referred is the list of eligibles to all the hiring agencies, which 

might be, for example, 2,500 names. When we go in, we say we 

have 81 locations that we would like lists of eligibles for. They give 

us a list of 75 names per location, and what I was explaining is 

when we go through the process of saying how many of those 75 

names per location across 81 certificates are duplicates, we only 

really have 260 unique individuals. 

For example, if I hire Candidate A for Newark, New Jersey, and 

Candidate A also applied for Fargo, North Dakota, I cannot hire 

that candidate for Fargo. I have to move down the list. And that 

is where the difficulty comes. It is really a numbers thing for us. 

Senator LANKFORD. OK. So part of the question then I have is 

that when I wrote a letter earlier to Carolyn Colvin about this, the 

statement came back to me, ‘‘We cannot hire enough qualified ALJs 

to be able to actually hit the backlog numbers that we need,’’ which 

begs the question then: Who are the AAJs here that are these individuals? Because the first thing that comes up is if you cannot hire 

enough of these and you say, well, we cannot hire enough of these 

and so we are going to go to these, it is an obvious question to say 

are we getting people less qualified than we are getting for the 

ALJs? Who are these individuals that are then being tapped on as 

the AAJs? 

Ms. GRUBER. Thank you, Mr. Chairman, for the question. One 

thing I will also say is, we have seen in both your opening statement and Judge Zahm’s statement, talk about attorney examiners. 

That is really the personnel title for this position. Attorney examiners on a position description are administrative appeals judges. 

They are the administrative appeals judges that staff our Appeals 

Council. They are the administrative appeals judges that are referred to even on OPM’s own website. And it is the administrative 

appeals judges back, in the early 2000s that Congress acted to 

bring on par from a pay standpoint with ALJs. The pay scale for 

both are exactly the same. 

In terms of who they are, many are internal hires, although we 

do plan, as we open the positions to also have external vacancies. 

Senator LANKFORD. So do they have other tests that they will do 

internally? 

Ms. GRUBER. Well, in terms of what we look for are people who 

have good interpersonal skills. We look for people who understand 

the sequential evaluation process. That is why a number of internal candidates will certainly be individuals that will compete well. 

Senator LANKFORD. So what I am trying to figure out is—and it 

is one of the things that we have tried to search through everything to figure out who these individuals are. When you are talking 

about bringing on other individuals to be able to supplement, I 

know who ALJs are. I know the training that they have. I know 

the background; I know the qualifications. I cannot seem to figure 

out who these individuals are other than they are internal. Are 

they internal to the Washington, D.C., office? Do they have other 

jobs? And will they retain those other jobs while they are also 

doing this so this is really kind of a part-time—occasionally, they 

are going to do some of these hearings, but at other times they are 

going to do something else with their tasks? Or who are these individuals, and what is their interaction with other individuals? An 
12 

ALJ obviously is separate and independent through the process. 

They are receiving a case. I do not know if these other individuals 

are sequestered away from other folks that are in the middle of the 

decision process because I just do not know. 

Ms. GRUBER. Thank you again for the question. 

First, in terms of how we are recruiting, we are opening job vacancies across the country. They can be individuals who are in the 

Baltimore-Washington area. They can be individuals across the Nation. We have opened the vacancies internally. We plan to open external vacancies as well. Not everybody, I would certainly say, who 

applies to be an administrative appeals judge, is someone who has 

ever even applied for an ALJ position. 

In terms of the training, we are working right now on a pretty 

significant training plan that mirrors and tracks closely the plan 

in terms of ALJ training. One big difference between administrative appeals judges currently is they do not conduct face-to-face 

hearings. Part of the training that we do for a new ALJ who has 

never done a hearing in our process, we teach them sequential 

evaluation. We teach our AAJs the same thing. We teach a class 

on how to conduct and do fair and impartial hearings. 

The same will happen with our AAJs. We look for people with 

good interpersonal skills because I think that is one other thing to 

point out. Our process is non-adversarial. That is unlike other administrative law proceedings. We need people who can understand 

how to work with a claimant who comes to us at a very difficult 

time. And as both have said—or as you had said in your opening 

remarks, I think about 20 percent of our claimants are not represented. So it takes a unique kind of skill. And we are a high-production environment. 

Senator LANKFORD. OK. I would expect, though, when you are 

talking about the non-disability cases, these are folks that are coming back—they may have retirement or pension issues or overpayments. I would expect them to have a much lower number for representation because, quite frankly, the representatives are paid to 

get someone on disability, not necessarily someone is overpaid, 

there is no benefit to them to do that. So I would expect for these 

administrative judges you are talking about that very few would 

have representation with them. Is that correct? 

Ms. GRUBER. When you look at the non-medical piece, I think 

that that is a fair—— 

Senator LANKFORD. OK. So then I am still trying to get an answer to my initial question. Will these individuals also do something else? Or will they solely be dealing with these cases, these 

40,000 cases? Or will they do the case hearings at times but they 

also do something else at other times? 

Ms. GRUBER. In our Appeals Council, the other category of cases 

that folks handle are cases that are pending for the Appeals Council review. That is at 30,000. All of the members will do that piece, 

but we will segregate out a group of the judges to focus solely on 

the non-disability cases 

Senator LANKFORD. So they will solely focus on hearings, is what 

they are hired for, they are not current employees that will do 

something else part-time and they will also do—— 
13 

Ms. GRUBER. In terms of the non-DIB cadre, they will be solely 

dedicated to that. The rest are already doing the work. We are simply proposing that they would expand the amount of work they do. 

Senator LANKFORD. OK. We will have a lot of questions here. I 

do not want to take up all the time here for our interaction. 

Senator HEITKAMP. Obviously we are concerned about taking a 

process that we believed was required by law, which is an independent ALJ, and now doing a process internally that draws upon 

some of the folks who have already done the informal kind of adjudication, which was unsatisfactory. Right? You have an informal 

process where you review these and obviously have denied benefits, 

resulting in the need for an appeal. That is where we are at, right? 

So what we are trying to get at is are these same people who are 

involved in this informal process of determining appeals going to 

be the ones that sit as now a fact finder for what could result in 

an appeal to the Federal district court? 

Ms. GRUBER. No, they are not. 

Senator HEITKAMP. OK. Good. That is what I need to know, because we are trying to figure out why you are doing this. We understand that you are in crisis when you have this many appeals 

pending. I want to know, in your decisionmaking, what was the 

matrix of ideas that came in? And why didn’t you choose an idea 

that would beef up the ALJs whether you go back and find some 

retired Article III judges, whether you go back and find retired 

ALJs to come on to amp up, the ability to do this, working with 

OPM? I understand the OPM process, and we do not want people 

classified as ALJs unless they are clearly qualified. But by the 

same token, we do not want people deciding cases unless they are 

qualified. And so why do we think we need this level of qualification for an ALJ but have someone within your agency doing these 

tasks without the same level of qualification? 

I think we are buying ourselves—I think our concern here is, No. 

1, to understand your decisionmaking, and I applaud you. The last 

thing we want to do here is tap down creative thinking on how we 

solve governmental problems. But we also do not want to buy ourselves a bigger problem, and I think that the Chairman in the front 

end here talked about, the potential for a class action, the potential 

for more appeals to the district court, which would, in fact, result 

in more resources being utilized and more time in the appeals process. 

And so what were the alternatives that you examined coming to 

this decision to make this change? 

Ms. GRUBER. Thank you, Ranking Member Heitkamp. One of the 

things that I think is important for me, when I came into this job, 

I was asked to look at the challenge that faces us and what can 

we bring to bear to address it. As I have said in my testimony, both 

written and oral, this piece of the plan is a small part of our overall 

plan. There is no single silver bullet or solution. 

Senator HEITKAMP. But you have to admit it is small but controversial. 

Ms. GRUBER. Absolutely. 

Senator HEITKAMP. So you are taking on a lot of water for something that you are calling small. 
14 

Ms. GRUBER. But I do think that it is important for me to say 

we are looking at business process changes. A number of the business process changes in our plan are about how can we best support our decisionmakers, our ALJs, so that they can do what only 

they can do, which is conduct hearings and issue decisions. 

We are looking at a lot of IT innovations, a lot of changes, how 

we can move out manual work and paper workloads, how we can 

leverage video so that we can erase service imbalances from State 

to State, which there certainly are, when I look at wait times. 

Senator HEITKAMP. But when the public says you made a decision to hire your own judges, it seems like I would say, the system 

is rigged. 

Ms. GRUBER. I do not think that that is actually the case. The 

rigor with which we look to hire administrative appeals judges mirrors the rigor, in my mind—— 

Senator HEITKAMP. Then why not hire administrative law 

judges? 

Ms. GRUBER. I think that is part of the—— 

Senator HEITKAMP. That is the problem. You cannot come here 

and say we are going to do this and de facto they have the same 

qualifications, the same ability, and the same independence as an 

ALJ. I go back to then why not hire ALJs? That is the disconnect 

for us here. 

Ms. GRUBER. But we are not adopting one construct over another. Our plan calls for aggressively hiring ALJs at the same time 

we are utilizing all of our other strategies. To hire ALJs—— 

Senator HEITKAMP. I do not think you are answering my question. And I do not mean to be combative. I came into this without 

a strong opinion one way or the other and recognizing—because as 

I said in my opening comments, this is something that I do consistently. Our office spends a lot of time dealing with your office on 

appeals. People, especially elderly people, struggle with process. 

They struggle with understanding the bureaucracy. We help them 

navigate that. We get great responses from you. So I did not come 

to this—but I keep hearing the same thing, which is we are not 

taking shortcuts, it will be impartial and independent, they will 

have the same qualifications, the appeals rights will not be violated 

because we will keep an adequate record. 

Then I keep going back to if you can find people who can do that, 

who have the level of qualifications, why can’t they be ALJs? Why 

do we have to have this hybrid risking the potential for, a lot of 

mischief later on? 

Ms. GRUBER. Again, I think that from my standpoint it is a matter of timing. We are hiring as many ALJs as we can. I will give 

you an example, though, from 2015. We planned to hire—— 

Senator HEITKAMP. I get it. I get it that you can hire faster than 

you can through the process of OPM. 

Ms. GRUBER. But we have not set that process aside. We are trying—— 

Senator HEITKAMP. I get that. But why can’t we amp up the 

OPM process so that there is more—these same people who you say 

are qualified to do this, or looking at kind of how do you clear this 

backlog. And so I think, Mr. Kennedy, the question comes back to 

you. Do you believe that OPM can meet the needs of Social Secu-
15 

rity as they are looking at trying to take care of this backlog and 

do their job? I mean, I am sympathetic to them. 

Mr. KENNEDY. Thank you, Senator. We are confident that we 

have the number of candidates on the current register to meet 

agency projections as we know them. 

Senator HEITKAMP. No. Let us assume that she now tells you she 

wants to hire ALJs instead of going the route that she is committed 

to. What is your role? And how do you meet her needs in providing 

a pool? She has already explained that, the numbers get skewed 

because somebody applies for five different positions so you count 

them five times in the numbers. That is not helpful to her. It is 

not helpful to us to understand this problem. 

Mr. KENNEDY. Thank you for your question, Senator. In March 

of this year, we added additional names to the register. We released the new re-administration of the current exam, and we will 

be adding additional names. That will take some time because the 

process is a really detailed and structured process to get through. 

We will be also meeting with SSA later on this month in our Innovation Lab to think through other creative ideas of how OPM 

and SSA can work together to meet their backlog. We take this 

very seriously. 

Senator HEITKAMP. But I think she is telling you that she does 

not have enough qualified people in the pool that you have sent in 

order to take care of her backlog. That is what she is saying, and 

so they are turning to an alternative method. And if that is not the 

reason why they are turning to an alternative method, then we 

really have a lot bigger discussion here. 

Mr. KENNEDY. Senator, I think that is something that OPM and 

SSA are working through. OPM looks at the examination process 

that we put ALJs through. It is potentially the most comprehensive 

examination in government. And we feel those who come through 

that process are extremely qualified. 

We do know that the Social Security Administration has some 

concerns, and we want to sit with our colleagues and make certain 

we better understand that to see what we can do in the future to 

support our colleagues. 

Senator LANKFORD. I am just as turned around, though, because 

I understand if there are 250 openings this year and you get 260 

applicants for it, I am fairly confident you are not going to be able 

to hire 250 people out of 260 applicants. So if we are starting with 

5,000 and we end up with 260 at the end, are we agreed that is 

the number that we are at? Because I have heard 5,000, I have 

heard 2,500. And I am trying to figure out how to be able to get 

the accurate number here. 

Mr. KENNEDY. Senator, I do not have the actual number with 

me. I will be more than happy to get the number to you. 

Senator LANKFORD. Somehow we need to be able to followup, and 

we will get that for the record in the days ahead, because that is 

a critical aspect of—if OPM is not sending enough people over that 

are qualified, then we need to obviously get that resolved, and that 

is very helpful to everyone on this. 

I do share Senator Heitkamp’s concern on this that the more that 

we go outside the structure and the system, the more exposed that 

we are and the more exposed the taxpayer is to some sort of litiga-
16 

1 Approximately 8.5 percent of non-disability claimants opted for an in-person hearing instead 

of a video hearing. 

tion so we have a class action suit coming in the days ahead. So 

that is the concern here. 

And the other concern is, Is this a temporary program or do you 

think this is a long-term structure? Is this a temporary program? 

Ms. GRUBER. It is a temporary program. It is a program that we 

believe will be temporary as we bring down the backlog—— 

Senator LANKFORD. So what does temporary mean? Help us understand. 

Ms. GRUBER. And Judge Zahm—— 

Senator LANKFORD. Because, by the way, in the Federal Government, it is hard to find anything temporary. [Laughter.] 

Ms. GRUBER. Judge Zahm, I know that you said that someone 

had said a year. 

Judge ZAHM. Yes. More than once. 

Ms. GRUBER. OK. What I intend is that this will be in play until 

about 2020, which is our target for eliminating the backlog and reducing our wait time to 270 days. 

Senator LANKFORD. So starting that in 2017, about a 3-year time 

period to actually use these individuals to try to help. And you are 

talking about dealing with about 40,000 cases of 1.1 million—— 

Ms. GRUBER. Correct. 

Senator LANKFORD [continuing]. Creating a training structure, a 

hiring structure, a whole unique section for 40,000 people. And I 

am still confused why we should do that. Is it your expectation that 

most of these hearings will be done by video or will be—— 

Ms. GRUBER. Yes. 

Senator LANKFORD [continuing]. Done in person? 

Ms. GRUBER. The expectation is most of the hearings will be done 

by video. And I think it is also important to note just for the record 

that ALJs travel today. 

Senator LANKFORD. Sure. 

Ms. GRUBER. And we spend roughly a little over about $1 million 

today to support traveling. So I do anticipate there will be some 

travel, but right now about 30 percent of our claimants opt out of 

the option to have a video hearing. 

Senator LANKFORD. 30 percent of the total group or 30 percent 

of this non-disability—— 

Ms. GRUBER. 30 percent of the total. 

Senator LANKFORD. What is the percentage of this non-disability 

group that opt out of the video? 

Ms. GRUBER. I would have to—— 

Senator LANKFORD. Because that is a very different section. 

Ms. GRUBER. Right. So as to not give you the wrong information, 

I would have to submit that for the record,1 if I may. 

Senator LANKFORD. OK. 

Ms. Zahm, can I ask you a question on this? Of your history and 

background around this, how many folks opt out on a video hearing? And you had mentioned in your testimony as well that this 

creates an entirely new large bloc. Historically, someone could opt 

out as an individual, as a single person, in order to be able to make 

the decision that they are going to avoid this process and they are 
17 

1 Approximately 24.6 percent of claimants declined a video hearing following an Appeals Council remand. 

going to expedite it. Now we are talking about a whole class of people being pulled, 40,000 people. What has been your experience in 

the past of how many people actually opt out either the video conference at this level or opt out of this entirely? 

Judge ZAHM. I would say probably that Terrie’s 30 percent is 

probably accurate. I do not have access to those figures. However, 

I would note that in the application for these attorney examiner positions, the agency said there would be 50 percent travel. So they 

are anticipating these people will travel 50 percent of the time. 

Senator LANKFORD. So is the assumption that individuals then 

would say, ‘‘I do not want to do the video conference,’’ and at that 

point they are going to have to travel? 

Judge ZAHM. Correct. 

Ms. GRUBER. No, the assumption in that is that we tell prospective applicants, ‘‘You might have to travel.’’ So some people say, ‘‘I 

do not want to apply for that job because it might involve travel.’’ 

In terms of claimants, they will have the same rights to either opt 

in or opt out of video. 

Senator LANKFORD. Right. But is it your expectation at this point 

that 30 percent of the folks—or 30 percent of the individuals will 

say, ‘‘I do not want to do a video conference,’’ and these new AAJs 

are going to have to travel to those locations? 

Ms. GRUBER. I do not have any information to suggest that we 

would widely vary from the 30 percent, but, again, I will look at 

these two specific categories of cases to see if the opt out is higher 

or lower than the typical hearing population.1

Senator LANKFORD. Some of this goes back to the legal standing 

as well. Ms. Zahm, you brought this up as well. We are crossing 

into unknown territory because it has not been done before. We are 

talking about 40,000 people. We are talking about, I think, a significant exposure for a class action suit once it is all said and done. 

We are trying to come back and redo these things. Most of these 

individuals will not have representation with them because the 

class of cases that are coming through do not have representation. 

Our office had asked the Social Security Administration for information of how did you come to this legal decision, which we 

thought was a fair question of oversight. The response that we got 

back was, ‘‘That is attorney-client privilege, and we cannot tell you 

how we came up with this decision.’’ 

Attorney-client privilege is not recognized by Congress. Executive 

conversations, that is exempted can get access to. But the conversation internally within the agency and your conversations of how 

you came to the legal justification on this is something that should 

be appropriate in our oversight. 

Senator HEITKAMP. Yes, and it would suggest that you guys are 

concerned about litigation when you are trying to privilege that information. If it is just legal advice, then why privilege it? The taxpayers paid for it. Let us see it. 

You said in your testimony you always have authority. We now 

have a legal brief in the testimony here that you do not have the 

legal authority. That is a foundational piece for us to understand 
18 

in oversight. And so we have not even talked about that. We start 

from the beginning. Is this legal what you are doing? And are we 

buying, like the Chairman said, a lawsuit? We have a difference of 

opinion. We have one—and the only person who has presented any 

kind of argument—and, obviously, this is not a court of law. But 

the only person who has presented any argument is Ms. Zahm. 

And so, in order to do our job of oversight, we need to know what 

your legal justification is so we can evaluate it here. Otherwise, we 

will draw our own conclusions on what your legal authority is. And 

we may only consider the evidence in front of us, and that would 

not be good for you because we do not have yours. 

Senator LANKFORD. So can we get it? 

Senator HEITKAMP. Yes. 

Ms. GRUBER. I just want to make sure that I am clear. In Attachment C to my testimony was a summary of our legal analysis, and 

I know that staff had late last week met with your staffs to talk. 

We included our Office of General Counsel (OGC). I would be very 

happy to set up any sort of additional setting where we can go at 

length through the legal analysis. Our point of view is that, and 

our legal analysis is that, we have had longstanding regulatory authority to vest the Appeals Council with these functions. 

Senator LANKFORD. But in individual cases, not in whole new 

blocs of cases. Has that ever been done before? 

Ms. GRUBER. No, it has not been done before. But what I can say 

is that this is a very small percentage. 

Senator HEITKAMP. Do you understand that when you take a 

classification of claimants and you say these folks are going to get 

the ALJ and these folks are not going to get the ALJ, you may 

have an equal protection problem? I am just saying, we are not exaggerating, I do not think—— 

Senator LANKFORD. No. 

Senator HEITKAMP [continuing]. The concern that we have for 

your legal underpinnings. And, sometimes the fix that you create 

to a problem has unintended consequences, and that is our concern. 

I want to go back to taking a look at where you are—what your 

thought process was in selecting this alternative. And if there is a 

way that we can better understand the kind of relationship that 

you have with OPM, the concerns that you have about OPM, 

whether we are looking at, recruiting people who have already 

been vetted and in the system, there is probably some 67-, 68-yearold, former ALJs or judges who could be brought back on a temporary basis to adjudicate some of these claims. Those are the 

kinds of things that I need to know. What was your decisionmaking 

process? 

Ms. GRUBER. Like I had said, Ranking Member Heitkamp—— 

Senator HEITKAMP. I know. It is a small part. 

Ms. GRUBER. I was not actually going to say that. What I was 

going to say is we are using senior ALJs to the greatest extent that 

we can. And we have worked with our judges’ union and our management associations to let us recruit as many senior ALJs as we 

can. 

One of the things that we are looking to collaborate with OPM 

on is what incentives, what kind of—staying with us a little bit 

longer incentives can we provide. So senior ALJs are part of our 
19 

plan, absolutely. In fact, right now we have—I think the latest 

number was right around 21 senior ALJs. If I can get more than 

that, that helps us, for example, in 2015, for the 50 ALJs we were 

unable to hire, even though our target was 250, that translates into 

25,000 lost hearings. Any way that we can speed up our hiring of 

ALJs, that is a key tenet of our entire plan, as is recruiting enough 

ALJs to meet our hiring targets. 

In terms of the analysis—and I appreciate the question—the first 

thing I asked is, What options are available to us legally? That is 

where this option, which I think had been talked about many years 

in the past, how can we use the Appeals Council differently? Again, 

the Appeals Council is currently the group that reviews ALJ decisions today. That is their function, to review. It is the Appeals 

Council that has led most of the quality efforts that we have seen 

over the past several years that have resulted in lower remand 

rates to ALJs, that have resulted in better quality numbers in 

terms of agree rate. The second thing I looked at was cost-effectiveness, and then, finally, operational viability? 

And so, again, I think that our plan looks at this. How do we 

augment, how do we increase decisional capacity? 

One of the other things that we are actively using are data analytics. How can we pinpoint those cases that do not need to go to 

an ALJ of any sort, that because there has been a change in the 

condition or a worsening, can we identify—can we make a decision 

sooner in the process? And we have seen excellent initial outcomes 

from those efforts. 

To me, it is really about looking at cases at every stage of the 

process and how can we make it better, and that is what we have 

laid out in our plan. But this piece is about increasing decisional 

capacity, and for me it is not choosing one type of adjudicator in 

favor of another. And it is not abandoning in any way the ALJs. 

In fact, I think the evidence, at least from my standpoint, shows 

a significant long-term investment in the ALJ construct now and 

moving forward. 

Senator LANKFORD. So if I am picking this up still correctly, we 

are still talking about trying to get from OPM more people in the 

process, more qualified people in the process. If there were more 

people coming from OPM, qualified, ready to go in this, this would 

not have been considered? 

Ms. GRUBER. I would think—— 

Senator LANKFORD. Because you have the funding that is necessary to hire the ALJs. You are talking about bringing on quite 

a few additional folks, these AAJs. You have already said they are 

the exact same pay scale. They are going to require 300 additional 

staff around them. You have enough money to be able to hire and 

bring on all of those additional folks, so you clearly have enough 

money to be able to hire the ALJs as well. This is about the number of qualified people coming in the process. 

Ms. GRUBER. I think that that is a fair assessment. 

Senator LANKFORD. OK. So somehow we have to be able to resolve this back-and-forth on how we are getting more qualified 

folks in there. If you are identifying qualified people but they are 

not getting over here to OPM to be able to come back to you, we 

are standing up a new temporary system for three years and 
20 

spending a tremendous amount of money creating a new system 

and, we believe, creating a system that is legally vulnerable for us 

long term, that we have asked for the justification on this, and I 

understand you do not want to be able to turn over everything on 

this. I do think it is important so that we get the documents, even 

if we see them in camera, that we have the ability to be able to 

go through the legal justification because there are real questions 

here that I would assume your counsel would have gone through 

and would have given you all the different alternatives. 

But at the end of the day, we have still got to have more people, 

and even three years past this time, we may still have the same 

situation here. So from the OPM side of it, how do we increase the 

flow? 

Mr. KENNEDY. Mr. Chairman, thank you for that question. Out 

of respect for the Ranking Member, I do want to give the number 

that I at least have right now. There are currently about 600 candidates on the register, and we clearly will be able to increase that 

number when the other exam actually is—when we actually put 

additional individuals—— 

Senator HEITKAMP. Does that include the duplication that Ms. 

Gruber is talking about? 

Mr. KENNEDY. No. This would be 600 individuals. 

Senator HEITKAMP. Individuals. 

Mr. KENNEDY. Yes. 

Senator HEITKAMP. And geographically dispersed? 

Mr. KENNEDY. Geographically dispersed. And one thing I want to 

say, because I want to make certain that everyone understands, 

that SSA and OPM are working together. We are trying to make 

certain that we typically try to give at least three names for every 

vacancy. SSA brought it to our attention a few months back that 

we need to make certain we are doing a better job on the unique 

names, and we are trying our best to make certain that we are responding to provide more unique names. 

Again, I think that everyone understands that SSA is just in an 

unprecedented situation, and I think the more we talk with SSA, 

the more the two organizations work together, we are going to remedy this. This is important for both of us. We are going to remedy 

this. 

Senator HEITKAMP. But we do not want the inefficiency of starting this whole process when we could, fix the one that we have. I 

think that is really the challenge. As the Chairman outlined, we 

are taking on a lot of work, a lot of training, a lot of folks here on 

a temporary basis, if we could just get to making this process that 

you have work better. 

Senator LANKFORD. Can I ask a question? Was OPM involved in 

creating the job description for these attorney examiners? Was this 

something that you cooperatively did together? 

Mr. KENNEDY. No. The Office of Personnel Management would 

not have had a role in that, sir. 

Senator LANKFORD. So the creation of the job description and the 

design of this just SSA did on their own? 

Ms. GRUBER. And just to be clear, the administrative appeals 

judge position, which is what we functionally call it, has been 

around for several decades. This is not a new job description for us. 
21 

Senator LANKFORD. OK. Mr. Kennedy, one of the statements you 

made just brought this to my mind. You were talking about the unprecedented backlog. I wish in some way this was an unprecedented backlog. You go back to 10 years ago, 12 years ago, we are 

still dealing with a 500-day wait, where you have 17 months 

through the process to be able to wade through it. And so this is 

not new. The sheer numbers, we are dealing with 1.1 million now 

in the backlog, but the time period to wait for the individual is not 

unprecedented. 

So I guess one of the background questions we did not ask on 

this, Ms. Gruber, and what you are sensing at this point is the 

why. Why have we reached this number? Why do we have these 

high numbers in the backlog that cannot seem to come down? We 

continue to invest more resources in this. We continue to see a 

growing amount here. 

Ms. GRUBER. Thank you, Mr. Chairman. The why is difficult. 

Certainly, back in 2007–08 when we saw a similar backlog, maybe 

not the total pending at 1 million but, rather, right around the 

750,000 mark, the wait times, like you said, were over 500 days. 

Part of the why is a number of years, about three years, of funding 

that was $1 billion less than the President’s budget. I do think continued growth in receipts—right now, the main factor in our issue 

where we are is that our receipts continue to outpace our dispositions. And until that dynamic shifts, we are going to continue to 

grow the backlog. And that is a problem for us. 

So I would say funding is a big factor. I do think continued receipts is a big issue in it, and ensuring that staff at all 

levels—ALJs, our support staff, our administrative appeals judges 

at the Appeals Council—no matter what role they play, are accountable and productive. 

Senator LANKFORD. Right. Ms. Zahm, why do we have a backlog? 

Judge ZAHM. The American public is getting older, so that is a 

factor. The recession was a factor. And I noticed in the agency’s 

submission of their chart of ALJ hiring, there were years when 

there was no hiring, so the cases accumulated. 

We also do not have the most efficient system. We have made 

suggestions to the agency on how to modernize our adjudicatory 

system. We need to have some rules of practice. We need to have 

more support for the ALJs. This is a very labor intensive process, 

and the courts have added more and more layers of requirements 

on ALJs in terms of issuing decisions, and it takes longer to do so. 

It always takes longer to do a good job than a slipshod job, and 

the danger with the backlog is that the pressure to get the cases 

out the door may undercut the quality of those decisions. 

Senator LANKFORD. Right, and that was our concern in 2010 

when it seemed to be a higher priority on getting things out the 

door and just decreasing the backlog than getting good cases. We 

do not want to have that again because every one of these cases 

is $300,000 to the Federal taxpayer. And if the paperwork is not 

done right and if we do not have a good opinion at the end of it, 

we have no way to evaluate whether this person has had any medical improvement. And so they are in the system forever regardless 

of their physical condition because we do not have a good paper-
22 

work trail on it. So it is a nightmare scenario for the American taxpayer. 

I do not know of a single place that I have traveled in my State 

of Oklahoma, not one, where somebody in that region has not said 

to me, ‘‘I have a cousin, I have a neighbor, I have someone that 

is on disability. They work for cash all the time. They are very engaged.’’ It is a common conversation in many areas. The West Virginia cases that were just exposed were $600 million in fraud. And 

in my conversations with the Inspector General yesterday, we have 

another case coming out soon that will be even larger than that one 

dealing with disability fraud that is coming out. 

This is an incredibly important issue to a lot of people, both for 

the individuals that are truly disabled, that while they are waiting 

500-plus days, their counsel has told them, ‘‘Do not go get a job, 

do not work,’’ because if you are working, that is the first thing the 

ALJ is going to ask you, ‘‘Are you working now? ’’ Well, if you are 

working now, then clearly you can work at another time. And so 

no matter what situation they are in, they are waiting 500 days 

without a job for a decision, and so they have either got this huge 

gap in their employment record, or they are truly disabled, and 

they have waited a year and a half for a hearing. So either way 

it is a really bad situation for them. 

Judge ZAHM. Yes. 

Senator LANKFORD. So the resolution, you all understand, we understand it. We just want to make sure at the back end of it we 

are not having to redo it and we have a backlog that gets even bigger because we created another system, and then that system did 

not work, and now everything is even worse with the new set. 

Senator HEITKAMP. I think the question becomes where do we go 

from here, Mr. Chairman. Obviously, we hope that this oversight 

Committee hearing has at least raised some flags within the Social 

Security Administration to maybe, slow down implementation of 

this idea, to think differently or at least have this ongoing discussion. 

We can talk until we are blue in the face, but if your decision 

is we are going to proceed, for us to try and do something here to 

stop you from proceeding, let me tell you, that is a difficult thing 

for us to get done. 

And so I am curious on where we are today. Are you, gung-ho 

we are going to get this done, we are going to move ahead? Or will 

you kind of take a pause here with us and help us better understand this? 

Senator LANKFORD. Or find a way to get more ALJs. 

Ms. GRUBER. Yes, as I said in my oral testimony it is about capacity. My history is working with the disability process. One of my 

first jobs in the Senior Executive Service (SES) was to look at a 

backlog at our initial level and ask ‘‘how do we increase capacity’’. 

And some of the solutions were not popular ones. But certainly at 

the end of the day, my job is to make sure claimants are not 

harmed, and that is my absolute commitment. I think the issues 

raised here, the issues raised by Judge Zahm, are ones that I will 

take back and, with my team look at very closely. 

I do think, we have not given you insight, deeper insight into the 

legal analysis we have done. I myself am not an attorney, but the 
23 

summary we gave, laid out the regulations that really flow from 

the Social Security Act. And nowhere in the Social Security Act, in 

Section 205 or anywhere else, does it talk about the type of decisionmaker that must preside at a hearing. But I understand, we 

certainly have a longstanding practice where we used ALJs. 

That said, I would like to find a way to meet with you. 

Senator HEITKAMP. I guess what I am saying is we would prefer 

that you hit the pause button on this idea so that we can better 

understand the oversight, better understand where you are at, and 

have further conversations about this. 

Senator LANKFORD. And I would comment only in the legal aspects of it. It has not been done before. It will be challenged because it has not been done before. De novo cases, for instance, are 

clear within the statute that they cannot be transferred to a nonAPA decisionmaker. There are some areas that are pretty clear in 

it. And to try to transfer a whole class of cases into a new area 

rather than individuals is a big shift, and there will be a lot of 

challenges. And at the end of the day, I do not want us to end up 

with a longer backlog because we tried a novel theory that may or 

may not have worked. That is why the legal opinion on this is so 

important to us as well. We want to help walk through this. And 

if we can help resolve these issues, we want to do this, because all 

of us have the dual responsibility with this to the individuals that 

are applying that are legitimately, clearly disabled, cannot work 

anywhere in the economy, to be able to get through the system. 

But those that are on the edges that are not disabled to also make 

sure they do not get into the system, because they are $300,000 

each and they create a culture around our communities that is 

very, very destructive. 

So both of those are very important to us. So it is not just a matter of speed. And I know a lot of these cases you are talking about 

are overpayment cases that do resolve some of those issues, but it 

is very important that we deal with both the taxpayer interest and 

those individuals in the disability community. 

Senator HEITKAMP. I guess you are going to hit the pause button 

so we have a chance here to kind of vet this further? 

Ms. GRUBER. I think it is a very fair question. As you know, we 

have not implemented it yet. Part of what we are doing is vetting, 

and I think that this is a significant discussion, and I am very willing to engage in additional discussion. 

Senator HEITKAMP. Yes, and thank you for that. And in no way 

do I want to even suggest that we should not be looking at creative 

ways to do this—— 

Senator LANKFORD. Right. 

Senator HEITKAMP [continuing]. That we do not appreciate the 

difficulty of your job, and that you really have presented very appropriate testimony here today. We just do not have a comfort level 

both legally and in terms of due process with the direction you are 

taking. And we do not have a comfort level that we have really explored all potential opportunities for going the traditional route. 

And so thank you for your testimony today. It has been very 

helpful. 

Senator LANKFORD. Judge Zahm, any final statements? 
24 

Judge ZAHM. Just that when Terrie mentioned that the position 

description for attorney examiners has been around a long time, 

that was accurate. However, adding the duty of holding hearings 

only appeared in the position description in February of this year. 

That had not been a part of the position description in the past. 

Also, in terms of is an attorney examiner the same as an administrative law judge or the same qualifications or are you getting the 

same benefits if you are a claimant, I would point to the fact that 

Mr. Kennedy has outlined just how rigorous a hiring process and 

vetting process it is, that it takes a year between the time someone 

applies and someone gets on a list. And the position application for 

these attorney examiner AAJ jobs had a 15-day application period, 

and they are already starting to hire. So you can see there is quite 

a bit of difference in terms of looking at candidates and evaluating 

their qualifications. 

Senator LANKFORD. We had a hearing not long ago on the Federal hiring process, period, and USAJOBS and all of the great joy 

that it really is in getting through the process. There is a tremendous amount of other issues that need to be resolved there with 

length of time. Often we get very qualified candidates that are not 

going to wait a year to get a job. They are going to go do something 

else in that year. And we are going to call them and say, ‘‘OK, we 

are ready now,’’ and they are going to say, ‘‘Sorry. I have already 

taken a new job somewhere.’’ So that is a whole different issue that 

you bring up there on that one. 

Mr. Kennedy, any final statements? 

Mr. KENNEDY. Mr. Chairman, I just want to thank you for having the Office of Personnel Management at this hearing. As I was 

listening, all I could think about was those individuals out there 

waiting. There is probably a chance that everyone in this room 

probably knows someone who is waiting. And the Office of Personnel Management feels confident in the number of candidates 

that we have on the register, but we do recognize that the Social 

Security Administration has some concerns, and we want to work 

with them. We pledge to work with them, and we will work with 

them, and we will remedy this situation. 

Senator LANKFORD. OK. Ms. Gruber, any final statement? 

Ms. GRUBER. No. Thank you for the opportunity, and I absolutely 

commit to work with you, Senator Lankford and Senator 

Heitkamp, to address all of the concerns as thoroughly as we can. 

Senator LANKFORD. OK. Thank you. And I would say only as a 

final statement, please do not hear from us we are interested in 

speed and not quality. We have done that before. We have seen the 

results. I think that is part of the reason we have so many people 

in the pipeline now, because since that was created, if you get in 

the pipeline, you get onto the system. So we want this to be done 

well and to be done right. So do not accelerate the process just to 

be able to get people through the pipeline. But at the end of the 

day, we have to have good legal justification. The individuals that 

are truly disabled need to be protected in the system, and people 

that just want to get a government check that may have legitimate 

pain but can work in the economy based on the definitions that 

have been provided in statute, they can work in the economy, still 

should work in the economy, as tough as that may be. 
25 

So you have a lot of tough decisions on a day-to-day, all of you 

do, to be able to make those decisions, and I appreciate what you 

are doing on that. 

So, with that, let me make a quick closing statement. The hearing record will remain open for 15 days until the close of business 

on May 27 for the submission of statements and questions for the 

record. I thank all of you for being here. 

This hearing is adjourned. 

[Whereupon, at 10:20 a.m., the Subcommittee was adjourned.] 

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